Professional Responsibility-SULC- Exam 4

Shortly after the county grand jury handed down an indictment for armed robbery against fugitive Drooles, District Attorney Daly met with the working press outside the door to the grand jury room. Daly told the press, "You all know that I'm limited as to what I can say about pending cases, so I only have three statements to make to you. You can save your time and mine by not asking any other questions because 'no comment' is the only way I'll be able to answer them." Daly made the following three statements to the press: I. "Drooles has been indicted by the grand jury for armed robbery, but like all other American citizens he should be considered innocent until proven guilty." II. "Drooles was indicted after grand jury testimony by two credible witnesses." III. "The public should be warned that Drooles is a fugitive and is considered to be armed and dangerous." Which of the above numbered statements was proper for the District Attorney to make?

I and III Cant use the extrajudicial statement such as "credible" witnesses

Larry Litiger has been practicing law for two years. The following statements were broadcast in a recent radio ad: I. "Larry Litiger specializes in personal injury and divorce cases. He is a certified trial specialist." II. "Larry Litiger comes from a long line of lawyers. In fact, his father and grandfather are both judges." III. "Larry has never lost a jury trial, and 99% of his clients end up receiving some form of payment." IV. "Litiger succeeds where others fail. Don't find out the hard way, call Litiger first." Assuming that all of the above statements are true and that Litiger complied with all the procedural requirements for running a radio advertisement, which of the statements are proper?

I. only

Alexandra is a recent law school graduate who has just been admitted to the State Bar. She returns to her hometown, Sodville, a town of 20,000 in population in the center of the state. Gastrix, who has practiced out of a one-person office in Sodville for many years, asks Alexandra to associate with him. He produces an employment contract that he asks Alexandra to sign. Gastrix is the only attorney in Sodville who regularly handles bankruptcy cases. The following provisions in the employment contract would bar Alexandra, for one year after leaving Gastrix's employ, from: I. Practicing law within a 50-mile radius of Sodville. II. Accepting any cases dealing with bankruptcy. III. Accepting business from clients who had been represented by Gastrix's law firm during the period of Alexandra's employment. For agreeing to which of the above provisions would Alexandra be subject to discipline?

I., II., and III

Attorney Augusta decided to run against incumbent Judge Isadore in the forthcoming election. Judge Isadore was widely regarded by members of the local bar as a "party hack," who had no business being on the bench. The opposition party was very pleased to be able to slate Augusta because she had a high reputation for intelligence, honesty, and overall competence as an attorney. Augusta realizes that she will have to fight an uphill battle to unseat Judge Isadore because her political party is a minority party in the county and most voters know very little about judges and candidates for the judiciary and therefore, voters are likely to vote a straight ticket for judges of their own political party. Augusta wants the public to know that Isadore has been a poor judge, but she also wishes to comply with all ethical rules governing judicial campaigns. Attorney Eve, Augusta's best friend and chief advisor, suggests that Augusta should make the following statements during her campaign: I. "Judge Isadore has had the highest percentage of cases reversed on appeal of any judge in the state over the past two years." II. "Eighteen months ago Judge Isadore was publicly disciplined by the State Judicial Conduct Board." III. "A recent poll taken by the local bar association indicates that a majority of bar association members feel that Judge Isadore lacks the proper judicial temperament." IV. "A recent newspaper article comparing judges of the county states that Judge Isadore has handed out an average sentence of only two and a half years to persons convicted of serious felonies. I won't be soft on crime!" Assume that all the facts cited in the numbered statements are accurate. Which, if any, of the numbered statements would it be proper for Augusta to make in her judicial campaign?

I., II., and III., but not IV

Attorney Aggie is prosecuting a complex tax case. After two government witnesses testified, the defendant, Daft, took the stand in his own defense. Daft asserted that he always complied with all tax rules and regulations. He also testified that the two government witnesses had deliberately falsified Daft's Internal Revenue Service records because the witnesses belonged to a Satanic cult which bore a long-standing grudge against Daft. In Aggie's closing argument, she made the following statements relative to the defendant's testimony: I. "Defendant's testimony is clearly in conflict with the testimony of two government witnesses." II. "Of the persons who have given testimony, who has the better reason to lie, the defendant or the government's witnesses?" III. "If you believe the testimony of the defendant, you will also believe that the Moon is made of green cheese!" For which, if any, of these statements would Aggie be subject to discipline?

III. "If you believe the testimony of the defendant, you will also believe that the Moon is made of green cheese!"

Attorney Arlo has hired Clarissa, a third-year student at a local law school, to assist him as his clerk. Clarissa is not licensed under any state law or court rule that allows third-year law students to engage in practice under the supervision of a licensed attorney. Arlo has Clarissa perform the following tasks: I. Draft a release form for personal injury plaintiffs to sign after their cases have been settled. (Arlo himself has the plaintiffs sign the forms.) II. Interview witnesses to accidents, and have them sign Clarissa's written version of the interview. III. Reach settlement agreements with insurance company representatives before suit has been filed. For which, if any, of the above is Arlo subject to discipline?

III. Reach settlement agreements with insurance company representatives before suit has been filed

During the trial of a case by attorney Alpha, attorney Beta, who had been playing a round of golf at Country Club, takes refuge from a sudden rainstorm in the "19th Hole Pub," Country Club's tavern for members and their guests. While in the "19th Hole," Beta sees attorney Alpha seated at a corner booth having a drink with Snyrd, whom Beta knows to be a juror in the case Alpha is presently trying. Attorney Beta considers his options; he can: I. Keep this knowledge confidential. II. Identify himself to Alpha and reprimand Alpha for drinking in a public place with a juror. III. Inform the State Bar. What should Beta do?

III. only

Attorney Arlette represented Ted Tingus in a wrongful discharge action against Apex Petroleum Corporation. Apex had fired Tingus from his job as a "service station field representative.'' Such representatives are responsible for visiting and inspecting Apex service stations to ensure that the station operators are obeying the terms of their leases; following Apex's rules about retail gasoline pricing; keeping full stocks of Apex brand tires, batteries, and accessories; not carrying competitors' tires, batteries, and accessories; and maintaining the stations in a clean and at attractive condition. Apex claimed that it fired Tingus for poor job performance, but Tingus claimed that he was fired because he refused to enforce certain Apex policies that he believed were violations of federal and state antitrust laws. In the course of preparing the case for trial, Arlette and Tingus talked in confidence at great length about how Apex expects its field representatives to enforce its allegedly anticompetitive roles against service station operators. Shortly before trial, Apex settled with Tingus for a generous sum. Tingus did not, however, return to his job at Apex, nor has he communicated with Arlette since the case ended. Now, three years later, a former Apex service station operator named Operman has hired Arlette to represent him in a federal antitrust action to collect treble damages from Apex for subjecting him to the very same anticompetitive policies that cost Tingus his job. Artette is handling Operman's case on a contingent fee basis. In preparing Operman's case for trial, Arlette was able to save many hundreds of hours of discovery and research work because of the information she learned in confidence from Tingus about the way Apex treats its service station operators. Thanks to what Tingus taught her about Apex's business practices, Arlette was ready for the Operman trial in record time--which panicked the lawyers for Apex and ultimately resulted in an extraordinarily generous settlement for Operman. Arlette, of course, took her share of the settlement under the contingent fee arrangement and thus profited personally from Tingus's information. Is Arlette subject to civil liability to Tingus for using his confidential information for her own monetary benefit?

No, because Arlette's recycling of Tingus's information did not harm Tingus; she simply took advantage in her law practice of her earlier experience and accumulated knowledge.

Jilllan has just been elected a judge of the circuit court. She has been assigned to the probate division. Prior to Jillian's elevation to the bench, Jilllan was a partner in the law firm of Judkins & Jarvis. During her last week with the firm, Jilllan filed a number of very routine, uncontested probate motions. At the time, Jilllan had no idea that she would be assigned to the probate division. These routine probate motions have been assigned to her courtroom by a lottery system of random assignment that the circuit court regularly employs to assign cases. Is it proper for Judge Jillian to rule on these motions?

No, because Judge Jilllan has a conflict of interest

Client Celia comes to attorney Adnan seeking representation in bringing a breach of contract action. Celia tells Adnan that she originally retained lawyer Louis about a year ago, but that as far as she knew he had not even filed the papers. According to Celia, Louis never returned her calls, and when she went to his office to find out the status of her case, he was drunk and verbally abusive. Celia told her friends and family about Louis's treatment of her, and when her brother fared no better in getting information froth him, he suggested that she contact Adnan. Celia advised Adnan that since Louis did not return her calls, she had sent a certified letter to him notifying him that he was discharged. Adrian knew that there was only a one-year statute of limitations on this type of action, so he quickly checked the dates and discovered he had only a few days to file the action. Adnan called Louis to get tile information from Celia's file. Louis did not recall the letter of discharge and was surprised to get Adnan's call. He was, however, very cooperative and agreed to send a messenger to Adrian's office with Celia's file. Louis tells Adrian, 'I feel terrible about this. My wife has been very ill this year, and I haven't been myself. Tell Celia I am sorry. And I would appreciate it if you would keep this between the two of us. I would hate for this incident to scare away any more clients. 1 could sure use the money with my wife's illness and all." Attorney Adnan filed the papers in Celia's suit on time, and did not report Louis to the disciplinary authorities. Were Adnan's actions proper'?

No, because Louis's actions indicate that he is not currently fit to practice law

Pilate, a local assistant district attorney, has just finished prosecuting a case against Dudley Defendant, who was accused of committing a serious felony. Pilate believed he had a strong case, but Justinian, the judge trying the case, ruled to acquit the defendant. Justinian is running for reelection in a contested campaign. The judicial election will occur in two months. Immediately after Dudley's trial is over, Pilate makes the following statement to reporters assembled on the courthouse steps: Dudley Defendant is walking away front this courthouse a free man only because of the erroneous rulings of Judge Justinian. In the many years that I have tried cases for the state in this courthouse, I have become aware that in every case heard by Judge Justinian where I have appeared before him as prosecutor, there have always been clearly erroneous rulings in favor of the defendant. I am going to do everything in my power to see that Justinian is not reelected, and I am going to work very hard for the election of Genseric, his opponent in the forthcoming judicial election. Pilate has personally tried four cases in front of Justinian. Is Pilate's statement proper?

No, because Pilate has brought the administration of justice into disrepute

Windy was a named partner in the law firm of Blowhard, Windy, and Crooke. After being approached by officials of his political party, Windy decided to run for Governor of State North. Windy won both the primary and the general election and was recently sworn in as the state's new Governor. Although Windy has made it clear to his law partners and the public that he will not practice law during his tenure as Governor, senior partner Blowhard has decided to leave Windy's name on the firm's stationery and on the door of the firm's plush offices. Is Blowhard's decision proper?

No, because Windy is not actually practicing with the firm.

Attorney Aoki represents client Carson, the plaintiff in a personal injury suit arising out of a tour bus accident in Hawaii. Nearly all of the eyewitnesses were tourists who have now returned home to the mainland. Without notifying the defense attorney, Aoki has interviewed most of the witnesses by phone. By far the most compelling witness, and the one most favorable to Carson, is Willa. Willa is a librarian who lives in North Dakota and had spent the bulk of her life savings on a vacation to Hawaii. It was on this vacation that Willa witnessed the tour bus accident. Willa is a very appealing witness, and Aoki is confident that if a jury saw her testify personally, Carson would win his suit. Aoki tells Willa that if she is willing to come to Hawaii for one week to testify, he will pay for her plane tickets, an oceanfront hotel room at a first class hotel, all meals, and one week's salary for her lost time. This is the same offer Aoki makes to all witnesses traveling to testify in any of his cases. Willa, who cannot believe her good fortune, readily agrees. Is Aoki subject to discipline?

No, because a lawyer may pay a witness's reasonable expenses and lost wages

Charlene went to the law office of Leopard and told Leopard that she wished to divorce her hard-drinking, abusive husband, Buster However, since she was a housewife, she told Leopard that ~he could not afford to pay a big lawyer's fee. Leopard was sure that Charlene had adequate grounds for divorce in that Buster was adulterous, alcoholic, and frequently beat Charlene. Therefore, Leopard told Charlene, "The filing fees for a divorce in tills county amount to $135. If you can put up that much money, I'll do all the work for 10% of whatever I get you for alimony and child support." Charlene was elated and replied, "Thank you! Thank you! I'm sure I can find or borrow $135. So many lawyers want a big fee up front, and you've just told me you'll get me out of this living Hell for $135 up front! God bless you, Leopard, you're a wonderful man!" Leopard left his office that night with a warm feeling that he had helped a fellow human being, secure in the knowledge that at least one person in the community would have something nice to say about lawyers. However, personal satisfaction aside, was Leopard's conduct proper?

No, because contingent fee arrangements are inappropriate in divorce cases

Attorney Alex has been retained by Cal Carbon, a wealthy and socially prominent resident of Salt City, where Alex maintains his offices. Cal has held a number of local political offices and is presently engaged in a hotly contested primary election contest for the seat in the United States Congress for Salt City and environs. Cal tells Alex that he is being blackmailed by Sarah Sadstory, who is threatening him with a paternity suit. Cal admits to a brief dalliance with Sarah, but denies being the father of her child. Cal tells Alex that he is willing to settle with Sarah for $10,000 to prevent the bad publicity that would result from the filing of a paternity suit against him and which would probably ruin his chances for election to Congress. Alex approaches Sarah and tells her he is willing to negotiate a settlement with her on Cal's behalf He strongly urges Sarah to retain counsel, as there will be legal documents to be signed should the negotiations succeed, and she should be fully informed of her rights. Sarah tells Alex that she is presently unemployed and lacks the funds to employ an attorney. She further tells him that she thinks she can adequately represent her interests herself. Sarah meets with Alex in a private area of his law offices. During the course of their discussions, Alex tells Sarah, "Blood tests will establish that Cal is not the father of your child. Be that as it may, we are willing to offer you $10,000 in settlement of this matter only to avoid unfavorable publicity." The next day Sarah calls Alex and tells him she will agree to the settlement. Alex tells her to be in his office at 3 p.m., to sign the settlement papers and receive a $10,000 settlement check. Alex shows Sarah the settlement papers and explains them to her. Sarah signs the papers and receives a $10,000 check from Alex. Is Alex subject to discipline for negotiating with Sarah?

No, because he advised her to retain counsel.

The legislature of State A conducted open hearings concerning a bill pending in the state legislature that would make it much more difficult for corporations chartered in State A to be taken over by corporate raiders. By making unfriendly takeovers more difficult, the proponents of the bill hope to save jobs in State A and to encourage corporations not now chartered in State A to obtain State A charters which would bring added revenue to the state. Attorney Armor, a senior partner in the prestigious firm of Armor, Baldwin & Chase, asked to testify at the hearings. Armor had been retained by Tentacle Corporation and was asked by Tentacle's president to testify against the pending legislation at the legislative hearings. Tentacle's president also told Armor that under no circumstances was he to tell the legislature that he was working for Tentacle or to mention the name of Tentacle in his testimony. Armor complied with Tentacle's strictures and never mentioned that he was being retained to give testimony against the pending legislation. Armor's testimony before the legislative committee was effective and hard-hitting. After his testimony, Armor was asked a few questions by committee members, but he was never asked if he was appearing on some other party's behalf. Was Armor's conduct at the hearing proper?.

No, because he did not disclose that he was appearing at the hearings in a representative capacity

Mr. Smith and Ms. Jones wish to tr de parcels of real estate. Smith presently owns Puceacre and Jones owns Limeacre. Jones retains Alan Attorney as counsel. Jones wishes to complete the deal as cheaply as possible. She asks Alan to draw up papers for the transfer of property and asks him to order a title search and survey of Puceacre. Alan recommended a similar search and survey for Limeacre as well, but Jones replied that she wished to save money and did not need a search and survey for Limeacre. Jones and Smith exchange warranty deeds. Smith takes possession of Limeacre and Jones takes possession of Puceacre. A year later Smith contracts to sell Limeacre. The prospective purchaser of Limeacre orders a title search and survey. He then discovers that there are defects that will substantially reduce the value of the property. Smith eventually sells Limeacre, but at a price much lower than he could have commanded had the defects not been present. Smith sues Jones for damages and receives an award of $10,000. Jones feels that Alan is responsible for this and sues him to recover the $10,000. Is Alan subject to liability for malpractice?

No, because he was following his client's instructions

Judge Jacques is often referred to behind his back as "Judge Continuance" by lawyers who practice in Bayou County. This soubriquet is well-deserved because Judge Jacques is known to grant continuances whenever requested by an attorney, regardless of the substantiality of the attorney's grounds. He has turned down a continuance request on occasion, but such occasions are so few and far between that local attorneys are shocked when they hear of them. When queried by his colleague Judge Jeanne about his policy on continuances, Judge Jacques told her, "This society has gotten to be litigation crazy. It's sue, sue, sue over every little thing. Most of this stuff can be settled between the parties if they really want to try. If I grant a continuance, it gives the parties that much more time to come to their senses and settle. If they settle, it saves them and the taxpayers the expense of a full-blown trial. This country and its court systems would be a lot saner if more judges tried to promote settlements like I do." Is Judge Jacques's policy of granting continuances to promote settlements proper?

No, because judges have a duty to expedite litigation

Tom Tuttle is the trustee of a trust for the care and support of his deceased sister's minor children. Tuttle wishes to sell some of the trust property to pay for the schooling of one of the children who has special needs. Tuttle hires lawyer Lemke to file the appropriate papers to get court approval for the sale. In the course of the conversations between Lemke and Turtle, Tuttle discloses that he has committed several breaches of trust in the past, including borrowing trust funds to pay for his home improvements and gambling trust funds at the race track. Most of the money has been repaid with reasonable interest, and Tuttle tells Lemke that he has learned a few things about being a trustee, and will be much more careful about his handling of trust funds in the future. Lemke urges Tuttle to tell the court of his wrongdoing and resign as trustee, but Tuttle refuses. Lemke proceeds to represent Tuttle in the proceeding seeking court approval for the sale of trust assets. Lemke fills out all of the court papers truthfully and does not in any way state anything false or misleading to the court. The court does not inquire about the management of the trust or any dissipation of trust assets, and neither Lemke nor Tuttle volunteer the information. Is Lemke subject to discipline?

No, because the information was confidential

Lawyer Lou LaCosta represented Carter Corp. in some business negotiations with Alconn Construction Inc. Only four persons were present during the negotiations: (i) Carter Corp.'s president, Cora Carter;, (ii) Carter Corp.'s business lawyer, Lou LaCosta; (iii) Alconn's chief executive officer, A1 Corm; and (iv) Alconn's attorney, Arlo Askew. During the negotiations, Cora Carter and LaCosta clearly heard A1 Corm make a certain representation that was vital to the success of the negotiation. Based on A1 Corm's representation, the parties reached an oral, handshake agreement to pursue a certain business opportunity as a joint venture. Six months later, after Carter Corp. had invested $11 million in the joint venture, Carter Corp. discovered that Alconn's representation was false and that A1 Corm undoubtedly knew it was false when he made it. Due to the false representation, the joint venture failed, and Carter Corp. lost its $11 million. Carter Corp. sued Alconn Construction Inc. and A1 Corm in federal court for intentional misrepresentation. Caner Corp. selected one of LaCosta's law partners, Liddy Gator, as its trial counsel. The defendants denied making the representation. Carter Corp.'s final pretrial statement listed Cora Carter and LaCosta as witnesses for Carter Corp., stating that they would testify that they heard Al Corm make the representation. Counsel for the defendants then moved to disqualify Liddy Gator as trial counsel due to LaCosta's role as a witness for Carter Corp. Is Liddy Gator subject to disqualification?

No, because there is no conflict of interest presented by LaCosta's role as a witness for Carter Corp., and because a lawyer is ordinarily allowed to serve as trial counsel in a case where her law partner will testify on behalf of her client

Wanda is greatly distraught since her late husband Harry provided only a $1,000 bequest for her in his will. Under the terms of his will, the rest of his substantial estate (over $1 million) will go to a fraternal lodge of which Harry was a lifelong member. Wanda consults Anita Attorney. Anita studies the will and determines that there has been an important flaw in its execution. Anita successfully challenges the will's validity, and the probate court rules that Harry's estate will descend by the laws of intestate succession, which means, in this jurisdiction, that Wanda will take all of Harry's estate. Anita charges Wanda a reasonable fee, which Wanda pays promptly. Wanda, however, is so pleased with Anita's work that she wants to give Anita a gift as a token of her gratitude. Wanda goes to an antique shop and purchases a $500 vase. She smilingly presents the vase to Anita. Will Anita be subject to discipline if she accepts the vase?

No, because there is nothing wrong with an attorney accepting a gift from a client

Attorney Amber is representing Davis in the civil case of Preston v. Davis, which arose out of a business deal gone sour. One evening after court was out of session, but with the trial set to resume the next day, Archer attended a $5,000 per person charity fund-raising dinner. When he found his assigned seat, he was shocked to find he was seated next to Preston, the plaintiff in the suit. Archer asked the hostess if she could change his seat, but she said it would be impossible. Determined to make the best of it, Archer and Preston did not discuss the case but made small talk about the charity, the weather, etc. They soon found they had much in common, including a love of sports. After a long, enjoyable evening of discussing their favorite teams, Preston gets up to leave. Preston turns to Archer and says, "You're not a bad fellow after all. It has been a real pleasure talking to you this evening. First thing in the morning, I'm going to talk to my lawyer about reaching an agreeable settlement in this case. I'll have her call you." The next day, Preston calls lawyer Layton and tells her, "After talking to Archer last night at the fund-raiser, I have decided to settle the case for the amount proposed in our last negotiating session. If Davis agrees to it, please notify the court and draw up the appropriate papers." Furious, Layton does as Preston asks, but reports Archer to the proper disciplinary authorities. Is Archer subject to discipline?

No, because they discussed the charity, the weather, and sports

Bellatrix, a local attorney, has recently defended David Defendant in a civil action tried before a jury. Defendant lost the case, and Paul Plaintiff was awarded a substantial amount of damages. Bellatrix receives an anonymous, handwritten letter that states: "Joan Juror, who sat on the jury when Paul Plaintiff got that big damages award, was bribed to influence other members of the jury to side with Paul and to award a large sum in damages." Bellatrix hires Seamus Sleuth, a local private investigator, to investigate Joan Juror, and to determine if the anonymous charges are true. Is it proper for Bellatrix to hire the private investigator?

No, if the investigation is to be conducted in such a manner as to harass the jurors

Claude walked into the law offices of lawyer Leda. As Leda was not busy at the time, she agreed to talk to Claude right away. Claude told Leda that he had "a criminal problem," and was concerned that he might be indicted soon. He explained the details of his predicament at length to Leda, but after he finished, Leda told Claude, "You certainly do need a lawyer, but I only handle civil matters. I suggest you consult with my friend Swann; he has a large criminal practice and he's pretty good." Claude went on to retain Swann. A few days after her interview with Claude, Leda read a news item announcing Claude's indictment. It quoted the district attorney at some length. After reading the article, Leda became convinced that something Claude had told her during their interview would probably exonerate Claude or, at the very least, lead to a reduction in the charges against him if the district attorney became aware of the information in Leda's possession. May Leda reveal the information to the district attorney?

No, unless Claude consents to the disclosure

Judge Jonathan, considered a great personal injury litigator when he was in private practice, is trying a very complicated commercial law case. He has carefully listened to the opposing attorneys' arguments and has read the briefs several times. He has found neither the oral arguments nor the briefs to be very enlightening. Sheba, a former law partner of Judge Jonathan, is considered to be one of the leading experts on commercial law in the state. Judge Jonathan wishes to lend the briefs to Sheba, and have her write an advisory memorandum on the issues of the case. Judge Jonathan sincerely feels that this will enable him to render a proper judgment in a difficult case. Is it proper for Judge Jonathan to seek such help from Sheba?

No, unless he receives written permission from the parties prior to the consultation.

Castor and Pollux are law partners. Castor represents Scurvy, and Pollux represents Smythe. Both are criminal defendants whose cases are seemingly unrelated. During the course of an interview with Castor, Scurvy tells him that he was involved in the crime with which Smythe is charged and that he is willing to testify against Smythe if he can be granted immunity from prosecution on that charge and plea bargain the crime with which he is presently charged down to a lesser offense. Which of the following courses of action is proper for Casto?

Not inform Pollux and withdraw from representation

Judge Josephine ruled in favor (ff Plaintiff in a civil action where Defendant was ordered to pay Plaintiff $50,000 in damages. Josephine has since resigned from the bench. Defendant has refused to pay the $50,000, asserting that the verdict was obtained through improper means. Defendant asks Josephine, now in private practice, if she will represent him. Would Josephine be subject to discipline if she represents Defendant?

Yes, because Josephine ruled on this case when she was a judge.

Lawyer Lapin represented defendant Defiance Holding Corp. in a West Dakota civil case brought by three named plaintiffs suing on behalf of a class of similarly situated people. The plaintiffs allege that Defiance owns nearly 100 apartment houses throughout West Dakota and that it refuses to rent apartments to persons of color, in violation of the West Dakota discrimination law. The civil discovery rules of West Dakota do not require voluntary document production--i.e., a litigant does not have to produce a document until the adversary asks for it in a timely, specific document request. Immediately after the complaint was filed, and before any discovery had started, Lapin made a quick but careful investigation of the types of records Defiance keeps concerning tenants and prospective tenants. She found that, starting more than 20 years ago, the manager of each Defiance apartment house filled out a paper "application form" for each person who wanted to rent an apartment. The application form called for information about the person's age, sex, marital status, race, religion, current and past employment, and approximate yearly income. About eight years ago, Defiance started entering information from the application forms into a computer system, but the computer version omits information about the person's race and religion. The computer system makes it unnecessary to keep and store the paper application forms. Nonetheless, through inertia and corporate ineptitude, Defiance has carefully preserved all of the paper application forms for the past eight years. Lapin advised her client as follows: "I suggest that you get rid of those old paper application forms before the plaintiffs get around to requesting document production. The paper forms are of no use to you, and they could prove embarrassing if the plaintiffs get hold of them." Defiance did as Lapin suggested. Is Lapin subject to criminal liability for suggesting the destruction of the paper application forms?

Yes, because Lapin knew that the paper application forms were relevant and would probably be requested by the plaintiff.

Lawyer Lydia represents defendant Dave, who is being prosecuted in a jury trial for an armed robbery and attempted murder that occurred on June 15. Dave has pleaded not guilty to the charges, but Lydia knows that Dave is the perpetrator and that the crime occurred at approximately 10 p.m. Vivian, the victim, testifies that she is certain that the crime occurred at midnight. Dave has an airtight alibi for midnight. At 11:40 p.m. he was arrested on a drunk driving charge, and he was in police custody until 6 a.m. on June 16. On cross examination, Lydia does nothing to challenge Vivian's recollection of the time of the attack. Also, as the trial unfolds, Lydia does not introduce any evidence at her disposal that would help establish the time of the attack at 10 p.m. Lydia calls as a witness Officer Tatum, who testifies that Dave was in fact in custody at midnight on the night in question. Dave does not testify and is acquitted. Are Lydia's actions proper?.

Yes, because Lydia did not present false evidence

Arlington is an attorney engaged in private practice in the city of New Novgorod. Arlington has many friends who belong to the Ancient Society of Sultans, a fraternal and charitable organization with chapters throughout the state. Arlington is not a member of the Society, but knows a number of its officers socially and has performed legal work for them on matters unrelated to the Society. The officers of the Society are sometimes consulted by members who have legal problems. The officers, being very pleased with the quality of Arlington's work, often refer such members to Arlington. Arlington has never asked the officers for such referrals, but is, of course, very pleased since he has earned substantial fees from these referrals. The Society is presently organized as an unincorporated association, but the leaders are interested in incorporating the Society under the State Nonprofit Corporation Act. One of the officers asks Arlington what his fee would be for incorporating the Society. Arlington tells the officer that he is very grateful for the client referrals from the Society and, as a token of his appreciation, he will not charge a fee for the incorporation work. Is Arlington subject to discipline?

Yes, because an attorney must not give something of value in return for client referrals

Lawyer Larry happened upon an accident scene and stopped his car to see if there was anything he could do to help. Several police officers were on the scene, and Larry told one of them that he was a lawyer and asked if he could do anything to assist the accident victims. The police officer told Larry, "One of the victims is a physician and he claims that he knows that he's going to die from his injuries and he keeps moaning about wanting a will." Larry went over to talk to the physician, who lay on a stretcher. The physician, Peter, begged Larry to write a will for~ him on the spot. Larry at first demurred, explaining to Peter that he had only been sworn into the state bar two weeks before, he had never written a will for a client, and he had received a "D" in his only law school class covering the subject. Peter said, "I know the police officers will be glad to act as witnesses and I'll keep it simple; I just don't want those greedy worms in my mother's family to get their hands on my estate." After listening to five minutes more of Peter's pleading, Larry agreed to write the will for Peter. He wrote the will on the blank backside of an accident report. Peter signed the will and two police officers witnessed it. Larry told Peter, "Of course, there's no fee for this." Peter died two hours later. Was Larry's conduct proper?

Yes, because he acted in a humane manner appropriate to an emergency situation.

Hemoglobin, a licensed attorney, represents the plaintiff, Portia, in a personal injury case. Portia has authorized Hemoglobin to settle the case for $2,000. She further tells Hemoglobin that if he receives $2,000 from the defendant, he may keep $750 of it as his fee, and that he should pay Dr. Arzt, the physician who examined Portia, $250 for his examination and treatment of her injuries. Hemoglobin reaches a $2,000 settlement with the defendant. Upon receipt of a $2,000 check from the defendant, he immediately places $750 in his personal account, sends Dr. Arzt a check for $250, and places $1,000 in his clients' trust account at Beelzebub National Bank. Sixty days after Hemoglobin received the $2,000 check, Portia calls him to inquire about any progress made on a settlement of her case. Hemoglobin tells her that he has settled the case and paid Dr. Arzt. Immediately after he hangs up the phone, he writes out a check to Portia in the amount of $1,000 and mails the check on his lunch hour. Is Hemoglobin subject to discipline?

Yes, because he did not promptly pay his client the money due her.

Booker is employed as an accountant for Hyrax Corporation. Several months ago, Hyrax's president, Potsdam, noticed that there were some discrepancies in the company's books, and that some funds seemed to be missing. Unbeknownst to Booker, Potsdam has been checking Booker's work after hours and he is convinced that Booker has been embezzling funds from Hyrax. Potsdam, on behalf of Hyrax, retains the services of Arnold Attorney to determine if Hyrax has a case against Booker. Arnold agrees with Potsdam that there is a strong indication that Booker has been embezzling funds. In fact, Arnold has already determined that tomorrow he will file a civil suit against Booker to recover Hyrax's money and go to the prosecutor's office to sign an embezzlement complaint against Booker. Arnold, however, tells Potsdam that the more evidence they can get against Booker, the stronger their case will be. Potsdam suggests that Arnold interview Booker before he presses charges, as Booker may make some remarks that would implicate him in the embezzlement. Arnold readily agrees to this. Potsdam tells Booker that Arnold is investigating some problems in account recordkeeping to make sure Hyrax's procedures comply with all applicable laws and regulations. He asks Booker to explain how his operation works. Arnold and Booker go to a private office, where Arnold interrogates Booker for approximately two hours. During the course of the interrogation, Booker becomes suspicious of the line of questioning, and asks if he is in any trouble. Arnold tells him not to worry, as the amount of money involved is so small that the action may not be worth pursuing. Is Arnold subject to discipline for questioning Booker?

Yes, because of his statements urging Booker not to worry. Gave advice to an unrepresented party.

Lawyer Linda placed an advertisement in The Clarion, a newspaper of general circulation published daily in the community in which Linda practiced. The ad was to run every Tuesday and Thursday for a six-month period. The ad listed Linda's office address and office phone and properly identified her as an attorney. The ad also included the statement "after 5 p.m., call 932-4585,' which was Linda's home telephone number. The ad further included Linda's telex number, which was identified as such. Was Linda's ad proper?

Yes, because the information supplied will make it easier to contact her and make her services more accessible to more people

Attorney Alpheus worked for two years for the Veteran's Administration. While there, his main function was to investigate claims filed by veterans. During the course of his employment, he once investigated a claim filed by Charles, a Vietnam War veteran. After Alpheus left the Veteran's Administration, the agency denied Charles's claim. Charles comes to Alpheus, who is now engaged in private practice, and asks him to represent him in a suit against the Veteran's Administration for the benefits to which Charles believes he is entitled. Is Alpheus subject to discipline if he accepts Charles's case?

Yes, if Alpheus had substantial and personal responsibility for Charles's Veteran's Administration claim

Attorney Axelson has been retained by Sludge Corporation. Axelson has done legal work for Sludge for many years and is on very friendly terms with its officers and directors. Axelson is also Chair of the State Bar Association's Committee on Corporate Law. A bill has been introduced into the state legislature that would allow corporate boards of directors to vote by telephone, thus eliminating the necessity for the directors to be physically present at meetings. The State Bar Committee on Corporate Law has been studying the bill and is about to have a meeting where a vote will be taken on whether to recommend to the legislature that the bill be passed. The committee's recommendation will probably carry a great deal of weight with the legislators, and in fact may well be determinative of whether the bill is enacted into law. Axelson meets the president and the treasurer of Sludge after work for cocktails at the Snob Club, a private club to which Axelson and the officers of Sludge belong. Although the occasion is primarily social, the president of Sludge tells Axelson that he is very interested in the work of the State Bar Committee on Corporate Law. The president tells Axelson that he and the other officers of Sludge strongly favor the bill pending in the legislature, as telephone voting would be much more efficient for Sludge and would save all the time and trouble of gathering the directors together for meetings. He urges Axelson to argue in favor of the bill in the committee meeting and to vote in favor of recommending that the bill pass. Is it proper for Axelson to support the corporation bill in the State Bar Committee?

Yes, if he conscientiously believes the bill is in the public interest and if he discloses to the committee that one of his corporate clients will benefit if the bill passes.

Preacher is a law school graduate but is not a licensed member of the bar. After Preacher graduated from law school, he felt called to the ministry, received a degree in divinity, and was formally ordained as a minister of his faith. Preacher is now pastor of a local church, where Alfred Attorney is a member of the congregation. Preacher has been very disturbed about the high rates of divorce and the breakdown in American family life. Therefore, he holds frequent "family counseling sessions" where, among other things, he explains to the parishioners who attend these sessions many of the legal ramifications of divorce, alimony, child support, and child custody. These sessions are usually followed by question-and-answer periods, during which Preacher gives legal advice to parishioners who cannot afford a lawyer. Preacher knows that the legislature has passed a new marriage dissolution law that changes the law substantially from what Preacher was taught in law school. Preacher asks Alfred if he will prepare an outline and a memorandum fully explaining the new law, so that Preacher will be better informed for the sessions with his parishioners. If Alfred agrees to do this, is he subject to discipline'?

Yes, since Alfred is assisting in the unauthorized practice of law

The law firm of Rice and O'Malley represents P.J. Kilmer, a successful businesspers0n who has given the firm almost all of his substantial legal business. Kilmer is presently involved in complex civil litigation in which Kilmer stands to receive a large damages award if the suit is successful. Harmon, the attorney for the defendant in the case, has filed a motion that, if granted, would result in dismissal of the suit. The named partners have studied tile motion and feel that there is some merit in the motion, and at least a 50% chance that Judge Jensen, who is trying the case, will rule in favor of the defendant. During the course of explaining the defendant's motion to Kilmer, Rice and O'Malley call in Costello, who is a recently hired associate. Costello is Judge Jensen's former law clerk, and wrote several speeches for her when the judge was running in a contested reelection campaign. Rice and O'Malley tell Kilmer that it would be to his advantage for Costello to argue against the motion. Costello, during the course of the meeting with the client, tells Kilmer, "I think we'll get a break on this because Judge Jensen owes me a favor." Is Costello subject to discipline?

Yes, since his statement implies that the judge will give him preferential treatment because of their past association.

Attorney Ariadne has an arrangement whereby a local radio station broadcasts four times each day a prerecorded tape advertising her services. Ariadne pays the station its standard rate for "spot advertising." The advertising tape is as follows: Ariadne Attorney, 355 Main St., is a fully licensed member of the State Bar engaged in general practice. She will handle bankruptcies for $150 and uncontested divorces where there arc no custody or property problems for $250 plus the filing fee. She will take personal injury cases on a contingency fee basis, her fee being 30% of the amount recovered after deduction for costs. Ariadne Attorney offers a free consultation regarding your case. You may call 922-2739 for an appointment. Is Ariadne's advertising proper'?

Yes, there is nothing wrong with Ariadne's advertising

Athos and Porthos are law partners. For many years their firm has represented Cardinal Industries, a local manufacturing firm. Cardinal gives the bulk of its legal business to the firm. Such business is handled by Athos. Porthos has never done any work for Cardinal, but he knows that Cardinal is a major client of the firm. Along with other work for Cardinal, Athos is doing some collection work for Cardinal. A number of Cardinal's customers have not paid their bills, and Athos is in the process of obtaining judgments against them. These particular judgments are all default judgments, as none of the customers have filed answers to the complaints within the time limit stated. Thus, the judgments will be handled in a routine manner by the court with virtually automatic rulings in favor of Cardinal. In the meantime, Porthos has been retained by Dartagnan Products, Inc. Porthos has been asked by Dartagnan to draw up a number of contracts. Athos files the papers for default judgments against Cardinal's delinquent customers. Among these customers is The Aramis Company. After the papers have been filed, Athos discovers that Aramis is an unincorporated division of Dartagnan Products. Athos tells Porthos. Porthos in turn tells the appropriate officer of Dartagnan that he will have to withdraw from representing Dartagnan because of a conflict of interest. After explaining the problem fully to the Dartagnan officer, they part on very cordial terms with Porthos being given permission to withdraw. Athos proceeds with his cases against Cardinal's delinquent customers. Is Athos subject to discipline?

Yes, unless his client consents after full disclosure. He needs to tell both clients.

Attorney Alondra and client Cyprian agree that Alondra will represent Cyprian for a contingent fee of 25% of any eventual settlement or judgment in Cyprian's personal injury action. The case comes to trial and the judgment awarded is $20,000. The day after the trial, Cyprian calls Alondra and tells her, "I just talked to my brother-in-law's cousin; he's a file clerk for an insurance company and he says that any good attorney would've gotten $40,000 for the kind of injury I had. You shouldn't get any fee for getting me a measly $20,000." That afternoon a check for $20,000, payable to Alondra from the defendant, arrives in Alondra's office. It would be proper for Alondra to: I. Send $20,000 to Cyprian. II. Send $15,000 to Cyprian and deposit $5,000 in her client trust account. III. Send $15,000 to Cyprian and deposit $5,000 in her personal account.

I and II

Attorney Quarles is embittered as he has recently had to expend a great deal of time and money defending himself against a frivolous malpractice suit brought by a disgruntled former client. To forestall such suits in the future, Quarles decides to take extra precautions. As a result, he enters into the following arrangements with clients: I. Taping a "closing interview," during the course of which Quarles explains to the client each aspect of his handling of the case and asks the client if she understands fully the explanation, or if she has any further questions about the case. Quarles tells the client he is taping the interview. II. Agreeing to represent a client for no fee or for a low fee, but only if the client promises not to sue him for malpractice. III. Refusing to return a client's papers until the client signs a release of liability for malpractice. For which, if any, of the above is Quarles subject to discipline?

II and III

Lawyer LePage represents Prudence, the plaintiff in a sexual harassment case against defendant Dartmore Industries, Inc. Dartmore is represented by its regular corporate counsel, Clem. Prudence, who works on an assembly line, alleges that she was repeatedly harassed by the foreman on her work shift, Frank Farmer. Further, she alleges that the plant manager, Marianne Martin, was aware of Farmer's misconduct and did nothing to stop it. Prudence tells LePage that two of her co-workers on the assembly line, Will Whorley and Wendy Winston, each witnessed harassment incidents, but neither Whorley nor Winston reported the incidents to supervisory personnel. Whorley quit working for Dartmore at about the time Prudence filed her lawsuit. LePage wants to do some fact investigation before he starts discovery in the case. Which of the following best states proper conduct for LePage in interviewing the potential witnesses?

LePage may freely interview Whorley and Winston, but he must obtain Clem's consent to interview Farmer and Martin

Alfonso is the mayor of the city of Dustbowl. Alfonso is also a licensed attorney who has a law partnership with Bella. Under the city charter of Dustbowl, the mayor has the authority to determine what issues are to be placed upon the agenda of the city council. Several council members have told Alfonso that they would like to see a particular zoning measure placed upon the agenda. This proposed ordinance would ban commercial development of a certain area within the city limits. Bella has been retained as attorney for Octopus Development Corp. Octopus has acquired land in the proposed noncommercial zoning area and has plans to construct a large shopping center there. May Bella represent Octopus in this matter?

No, because of Alfonso's position as mayor.

Cato Client brings an extremely complicated case to Art Attorney. This case is so complex that it will require the undivided attention of a qualified attorney for three months to do the necessary research, draw up the proper papers, and take the case to trial. Cato, realizing the complexity of the case, makes the following offer to Art. Cato promises to pay Art $30,000 in advance for three months if Art agrees to take no other cases during that period of time, it being determined that Art's usual income from fees for a three-month period was $30,000. Art agreed to this arrangement and proceeded to work on Cato's case only. During the first month that he was preparing Cato's case, Art was approached by more than the usual number of prospective clients. Had he accepted employment from those who asked him to represent them during this period, he would have received $30,000 in fees from them. Art, however, in compliance with his agreement with Cato, refused to take on any of these prospective clients. At the end of the first month, Art and Cato had a conference to discuss the case. A number of points of disagreement arose between them; Cato became angry, and summarily fired Art as his counsel. Cato demands the return of the $30,000 fee advance. Which of the following best describes proper conduct for Art?

Retain an amount that represents fair compensation for work actually performed on the case.

Using the previous fact pattern, assume that during the questioning, Booker not only admitted to embezzling funds, but also described company-wide accounting practices that could subject Hyrax to civil and criminal liability. In an effort to avoid publicity and liability, Hyrax fired Booker but agreed not to turn the matter over to the police. Hyrax has since rectified its accounting problems. Sometime later, Hyrax was sued by Cable Corp., one of its creditors, for fraud based on the above accounting practices. During the trial, Cable's attorney calls Arnold to the stand to testify about his conversation with Booker. Hyrax's attorney objects, claiming attorney-client privilege. The objection should be

Sustained, because Booker talked to Arnold at Potsdam's request and his statements concern accounting. Attorney client privilege

Uncle, a wealthy landowner in Moocow County, has become very infirm in his old age, even though his mind is still very sharp. His doctor tells Uncle that although Uncle has survived open-heart surgery, he will never be really robust and healthy again. In fact, the doctor says that Uncle should either enter a nursing home or employ a nurse to care for him full-time at his ranch. Uncle, who has always prided himself on his independence, shudders at the thought of being put in a nursing home. He also finds the thought of bringing a stranger into his home to nurse him distasteful. Uncle contacts Niece, his youngest sister's daughter, who is a registered nurse employed as a head nurse at a major research hospital in a large city in another state. Uncle urges Niece to come and live with him at the ranch and take care of him. Uncle, always known in Moocow County for his generosity, tells Niece that he understands she would be making a major sacrifice and that "I aim to make this worth your while. The Doc tells me I don't have more than a year or two left anyway, but I know it's tough for a young, educated, city gal to be stuck out here in Moocow County with nottin' but old men, steers, and no-account cowboys. So if you stay and take care of me until I die, I'll leave you one-third of my ranch in my will." Niece agrees to care for Uncle. Niece arrives in Obelisk, the county seat of Moocow County where Uncle is hospitalized. She is met at the train by Cowhand, one of Uncle's employees, who takes Niece to the hospital. Uncle is then released from the hospital, but before going home he stops by the law offices of Archon, his attorney, to pick up some tax documents Archon has completed for him. Uncle tells Archon, in the presence of both Niece and Cowhand, "The next time I come to town, I'm going to have you draw up a new will for me, leaving one-third of my ranch to Niece, who's come all the way out here to Obelisk to take care of her poor old uncle." Uncle never has another opportunity to go into Obelisk. Niece feels he is too weak to travel very much after his operation, and insists he stay home where she can care for him. Two months later, Uncle has a massive heart attack, followed by a stroke. He goes into a lingering coma and dies after two weeks in the comatose state. Uncle's will is duly admitted to probate, and under its terms Uncle left everything he had to Son, Uncle's only child, who is a highly successful businessman in another state. Son arrives in Obelisk to attend Uncle's funeral and to settle the affairs of his father's estate. Naturally, he consults with Archon. Son mentions to Archon that he thinks it was very good of Niece to come all the way to Obelisk to care for Uncle, and that he is sure that Uncle would have wanted to reward her in some special way, even though there is no mention of Niece in the will. Son tells Archon that he would like to do the "right thing," but has no idea what Uncle might have had in mind. What should Archon do?

Tell Son about Uncle's statement about leaving one-third of the ranch to Niece, but offer no further advice

Attorney Ace placed an advertisement that ran daily in the classified section of the Pikeville News Journal, a newspaper of general circulation, widely read in the Pikeville area where Ace practiced. Besides stating Ace's office address and telephone number, and identifying Ace as a licensed attorney, the ad included the following statement: DIVORCES - LOW RATES!!! Just $100, plus costs for uncontested divorces According to bar association surveys, the "low average" fee in the Pikeville area for an uncontested divorce is $125, plus costs. Is Ace's advertising proper?

Yes, because Ace's rates really are low

Newshound regularly wrote the "Courts and the Law" column that appeared twice each week in the Daily Bugle, a newspaper of general circulation in the Bricktown area. Newshound approached Arlington, an attorney with offices in Bricktown. Newshound told Arlington that Arlington's name would appear frequently in Newshound's column in a favorable light if Arlington would supply Newshound with "behind the scenes" items about local judges, lawyers, and important or otherwise interesting cases. Arlington readily agreed to Newshound's proposal, and Arlington began supplying information to Newshound. Arlington's name did appear often in Newshound's column, and Arlington was characterized as a "top legal eagle," an "outstanding trial tactician," and otherwise touted in the newspaper. Is Arlington subject to discipline?

Yes, because Arlington has given consideration for favorable publicity.

Agnes and Bertram represent two corporations who oppose each other in a civil suit. Agnes has filed a petition with the court, seeking to have Bertram removed as opposing counsel. She claims he has a conflict of interest because he once did certain work for her present client. Bertram calls Agnes and tells her that he thinks the conflict of interest matter can be resolved if she listens to his explanation. Agnes and Bertram meet and begin to negotiate the conflict of interest issue, and during the same meeting discuss a settlement of the lawsuit. Agnes and Bertram agree to meet again and continue their discussions. Immediately after the first meeting, Agnes goes to her office and dictates a letter to Judge Jowl)', who is trying the case. The letter tells Judge Jowly that Agnes and Bertram are attempting to resolve their differences on the conflict of interest matter and are also negotiating a settlement of the underlying lawsuit. Agnes mails the letter to Judge Jowly that afternoon. Is Agnes subject to discipline?

Yes, unless Agnes sends Bertram a copy of the letter.