Professional Responsibility Final--2018

The Attorney General's Office of State One does not include any lawyers who are skilled in the field of condemnation law (the law of eminent domain). Consequently, whenever State One wants to use its power of eminent domain to condemn some private property for a public use, the Attorney General must hire a private law firm to represent the state in the condemnation proceedings. In contrast to the paltry fees that State One pays to appointed defense counsel in criminal cases, the Attorney General pays quite handsomely for condemnation work. In State One, the Attorney General is a partisan political position that is filled by a contested election every four years. The law firm of Feldspar & Flynt limits its practice to condemnation law. The founding partner, Reginald "Rocky" Feldspar, is an 87-year-old multimillionaire who remains active on the firm's management committee. When it is time to elect a new Attorney General, Feldspar makes large donations from his personal wealth to each candidate who has any reasonable chance of becoming the next Attorney General. The other members of the firm's management committee know about Feldspar's contributions, and they have formally and informally expressed the firm's thanks for helping the firm obtain future appointments by the Attorney General. May the firm accept an appointment from the new Attorney General to represent State One in a condemnation case?

ABA Model Rule 7.6 prohibits "a lawyer or law firm" from accepting an appointed legal engagement if "the lawyer or law firm" makes a political contribution "for the purpose of obtaining or being considered for" that kind of legal engagement. The tricky part of this question is whether a political contribution by one of the firm's lawyers ought to bar the entire firm from taking subsequent appointments. Neither the rule nor its comments speak directly to that point, but the purpose of the rule would be served by imputing one lawyer's contribution to the entire firm, just as a conflict of interest would be imputed under ABA Model Rule 1.10(a). To adopt the opposite position would make ABA Model Rule 7.6 too easy to evade—the firm could simply ask its lawyers to make "pay to play" contributions from their own pockets. Using a different theory, at least Feldspar's colleagues on the management committee should be barred from accepting appointments from the Attorney General because they knew about Feldspar's political contributions and thanked him rather than stopped him. [See ABA Model Rule 5.1(c)—ratification or acquiescence by managing lawyers] (B) is wrong for the reasons stated above. (A) is wrong because Feldspar's practice of contributing generously to all candidates who have a reasonable chance to win the Attorney Generalship demonstrates that his purpose is to secure business for the firm, not to participate legitimately in the political process. (D) is not as good as (C) because (D) relies on the outdated "appearance of impropriety" rubric of the old ABA Model Code, Canon 9. That rubric was cast aside in the ABA Model Rules—seeking to avoid even the "appearance of impropriety" is useful in a person's own moral creed, but it is too amorphous to be useful in a professional code of conduct.

Attorney Adams is defending defendant Dutcher at his trial for armed robbery of a liqour store. Dutcher tells Adams in confidence that at the time in question, he was sitting watching television with his aged mother and that his mother can confirm his alibi. Adams interviews the mother, who solemnly confirms Dutcher's story. After talking with her, Adams strongly suspects that she is lying to protect Dutcher. Adams does not know for that Dutcher and his mother are lying, but every instinct tells him that they are. Adams has warned both of them about the dangers of perjury, but both have insisted that testify to the alibi at trial. May Adams call Dutcher, or his mother, or both, as trial witnesses?

A lawyer has a general duty of loyalty to the client and a general duty to represent the client with dedication and commitment to the client's interest and with zeal in advocacy on the client's behalf. When acting as an advocate for a client, as Adams is doing here, a lawyer must resolve reasonable doubts in favor of his client. There are certain situations under which the lawyer must act in a way that is adverse to his client, but each of the situations requires that the lawyer have actual knowledge of adverse facts, not just doubt or suspicion. [See ABA Model Rule 3.3(a)] Here, Adams does not have actual knowledge that Dutcher and his mother are lying or even any knowledge of circumstantial facts that indicate that they are lying; at best, he has a strong suspicion based on his instincts. This falls well short of actual knowledge. Note that a lawyer may refuse to offer evidence if he reasonably believes that it is false, other than the testimony of a criminal defendant. [ABA Model Rule 3.3(a)(3)] This rule does not apply to Dutcher's testimony because Dutcher is a criminal defendant; it also does not apply to Dutcher's mother's testimony for two reasons: First, the question asks whether Adams may offer the testimony, not whether he may refuse to offer it. Second, there is nothing in the facts to indicate that Adams's belief that the testimony is false is reasonable. Thus, Adams may call Dutcher and his mother as trial witnesses.

Client Carlin hired attorney Adler to put tool:her a complex real estate syndicate. In connection with that work, Carlin disclosed to Adler a great deal of confidential information about Carlin's financial affairs. When the task was about half completed, Adler's wife was killed in a car accident, and his family's house burned down, all in the same week. Adler was so emotionally and physically drained that he felt he could not competently continue with the work for Carlin. Carlin refused to allow Adler to withdraw, stating: "Listen, Adler, you are the only person I trust to handle this matter. I know you are distraught, but hard work may help take your mind off the disasters that have befallen you." Adler begged Carlin to allow him to turn the files over to Adler's law partner, Pamer, an excellent real estate lawyer who was completely trustworthy and perfectly competent to handle the matter. Carlin refused to allow his files to be turned over to any other lawyer and insisted that Adler himself promptly complete the work. What should Adler do?

A lawyer must withdraw if the lawyer's physical or mental condition will materially impair his ability to represent the client. [ABA Model Rule 1.16(a)(2)] Carlin may be right in thinking that hard work will be good for Adler, but Adler has to be the ultimate judge of his own physical and mental capacity to carry on. If Adler believes that his condition prevents him from serving Carlin competently, he must withdraw regardless of what Carlin wants. (A) is wrong because the files include confidential information about Carlin's financial affairs, and Adler cannot turn them over to Parner against Carlin's express wishes. [ABA Model Rule 1.6] (C) is wrong because Carlin has asked Adler to complete the work promptly. Adler's recovery may take months or years. Adler must not continue representing Carlin unless he can complete the work with reasonable diligence and promptness. [ABA Model Rule 1.3] (D) is wrong because, as discussed above, if Adler believes his mental and physical conditions prevent him from serving Carlin competently, he must withdraw.

The University of West Dakota ("UWD") receives 45% of its annual budget from the state of West Dakota. The other 55% of the budget comes from private sources. UWD is chartered by the Constitution of West Dakota, and it is regarded for all purposes as a unit of West Dakota's government. The governing body of UWD is its Board of Overseers, a group of 17 West Dakota citizens. The chief executive officer of UWD is the Chancellor, and the chief legal officer is the General Counsel. UWD has always strived for a student body and faculty that are diverse in age, politics, wealth, race, nationality, religion, sex, and sexual orientation. One year ago, the voters of West Dakota passed a ballot initiative that prohibits all units of the West Dakota government, including UWD, from considering a person's race when offering employment or admission to school. The initiative prohibits giving any state funds to a governmental unit that violates the initiative. With reluctance, the UWD Board of Overseers adopted a new university-wide regulation that requires all admissions officers and hiring committees to obey the initiative. The West Dakota Supreme Court sustained the constitutionality of the initiative, and the United States Supreme Court denied certiorari. Lawyer LaRue is one of 15 lawyers in the UWD General Counsel's in-house law office. The General Counsel assigned LaRue to work with UWD's School of Engineering to develop new admissions criteria that will comply with the initiative. At the outset, LaRue reminded Engineering's admission director that she was not his lawyer, but rather the university's lawyer The Admissions Director told LaRue: "The engineering profession in this state has long been dominated by white males. You can draft whatever new admissions criteria you wish, but in practice, I will continue to consider race when I admit students because t's the right thing to do." Deep in her heart, LaRue agrees with the Admissions Director. Which of the following may LaRue do in responding to this situation? I. Keep the Admissions Director's statement in confidence, even if she reasonably believes that UWD is likely to lose its state funding as a consequence. II. Promptly disclose the Admissions Director's statement to the Attorney General of West Dakota, who is the official in charge of enforcing the voter initiative. III. Attempt to convince the Admissions Director to obey the voter initiative, and if he refuses, then disclose the situation to UWD's General Counsel. IV. Anonymously leak the Admissions Director's statement to the UWD Board of Overseers

ABA Model Rule 1.13 governs this question. LaRue has been informed about the stated intent of a university Admissions Director to violate the voter initiative in a manner that imperils 45% of the university's funding. LaRue began her conversation with the Admissions Director in a proper manner by reminding him that she is the university's lawyer, not his lawyer. However, LaRue may not allow her personal views about the use of race in university admissions to affect how she responds to the Director's stated intent. Here, the voters have spoken by passing the initiative, the university's Board of Overseers has acquiesced in the initiative, and the constitutional challenge to the initiative has failed. If LaRue feels strongly enough about the issue to resign her position, she may do so [see ABA Model Rule 1.16(b)(4)1, but she cannot remain in the General Counsel's office while subverting the voter initiative. Thus, item I. is wrong. Item III. is correct; if LaRue cannot convince the Admissions Director to obey the voter initiative, she must "refer the matter to higher authority in the organization." [ABA Model Rule 1.13(b) and Comment 4] In this instance, LaRue's immediate boss, the General Counsel, is the obvious first choice. ABA Model Rule 1.13 requires LaRue to report up the chain of command, not leap immediately to the top rung. [Id.] Only if her report to the General Counsel proves futile should she take the matter to the Board of Overseers, and if she needs to report it to the Board of Overseers, she should do so forthrightly, not by an "anonymous leak" that the Board would be likely to ignore. Therefore, item IV. is wrong. Item II. is wrong because it appears to allow LaRue to report first to the West Dakota Attorney General, who should be regarded as outside the structure of the university for this purpose. [See ABA Model Rule 1.13(c)] True, the university is part of the state, and the Attorney General is the state's highest law enforcement official, but ABA Model Rule 1.13 seeks to have legal issues resolved at the lowest possible command level, not the highest possible level. [Compare Rule 1.13(b) with 1.13(c) and Comment 6]

patent attorney Amari focuses her practice on patents that involve genetically engineered medicines. Representatives of Biogenco had a preliminary conversation with Aman about representing Biogenco in a patent infringement action against Turner-Kline Pharmaceuticals, Inc. Amari had never represented-either company previously. Biogenco's representatives talked to Amari for more than an hour about Biogenco's patent and about Turner-Kline's supposedly infringing product. This conversation covered only public information, nothing confidential. Biogenco's representatives detected a distinct lack of enthusiasm from Amari, and they ended the conversation cordially but without hiring her. In due course, Biogenco hired a different patent attorney and sued Turner-Kline for patent infringement. Turner-Kline hired Amari as defense counsel in the infringement case. Biogenco's attorney promptly made a motion in the trial court to disqualify Amari because of her earlier conversation with Biogenco's representatives. Is Amari subject to disqualification?

ABA Model Rule 1.18 provides that a lawyer must not use or reveal confidential information of a prospective client. [See also ABA Model Rule 1.6] Here, the information communicated to Amari was not confidential; thus, Amari's undertaking representation of Turner-Kline did not create a concurrent conflict of interest— there is no significant risk that the representation of Turner-Kline would be materially limited by Amari's responsibilities to Biogenco. Consequently, Amari may continue to represent Turner-Kline. (A) is wrong because it does not matter that Biogenco previously consulted Amari on the same matter if Amari did not obtain any confidential information that would limit her representation of Turner-Kline, and she does not breach any duty owed to Biogenco. (B)is wrong for the same reason as (A)— even if the infringement suit is substantially related to Amari's conversation with Biogenco's representatives, unless Amari obtained confidential information from Biogenco, she may represent Turner-Kline. (C)is not as good as (D) because (C) is general, while (D) is specifically on point. Here, Amari did not get any material confidential information from Biogenco's representatives during the preliminary conversation, but if she had, she would be subject to disqualification as defense counsel, even though Biogenco never became Amari's actual client.

Personal injury lawyer Lingenfelter and orthopedic surgeon Sturgeon are good friends, an they have a high mutual regard for each other's professional abilities. One day on the golf course, they made a reciprocal referral agreement: whenever Lingenfelter has a personal injury client with need for an orthopedic surgeon, Lingenfelter promised to refer the client to Sturgeon. Simiilarly, whenever Sturgeon has an injured patient with a need for a personal injury lawyer, Sturgeon promised to refer the patient to Lingerifelter. The agreement was oral and not written, and there was no mention of an expiration date; both women simply assumed that the agreement would continue indefinitely until one or the other wanted to end it. Likewise, they did not discuss whether the agreement would be exclusive; both women simply assumed that neither of them would refer someone to a competitor of the other. Was it proper for Lingenfelter to make this agreement with Sturgeon?

ABA Model Rule 7.2(b)(4) permits a sawyer to make a reciprocal referral agreement with another lawyer, or with a nonlawyer professional, if the agreement is not exclusive and the referred person is told about the agreement. However, Comment 8 to ABA Model Rule 7.2 cautions lawyers that such an agreement should not be indefinite in duration. (A) is wrong because ABA Model Rule 7.2(b)(4) does not require a reciprocal referral agreement to be in writing. (C) is wrong because reciprocal referral agreements are one of four exceptions to the general rule that a lawyer must not give something of value for a referral. [See ABA Model Rule 7.2(b)] (D) is wrong because ABA Model Rule 7.2(b)(4) expressly permits reciprocal referral agreements with nonlawyer professionals.

Attorney Anthony Altamirez has organized his law practice as a professional corporation. Altamirez is the sole shareholder. The sign on the office door states: Anthony Altamirez, P. C.— Attorney at Law Corporate and Business Law Torts and Domestic Relations Altamirez has only one lawyer-employee, Leola Lipkis, who was admitted to practice two years ago. Altamirez pays Lipkis a modest monthly salary plus 60% of the fees collected in cases that Lipkis handles by herself. Altamirez has a general business practice, and when a client needs representation in a tort or domestic relations matter, Altamirez turns the case over to Lipkis. When Altamirez turns a case over to Lipkis, he provides general guidance and is available to answer any questions she may have, but he does not supervise every step she takes. Is Altamirez subject to discipline?

Altamirez is not subject to discipline. Because Lipids is a lawyer-employee of Altamirez, she is regarded as being "in the same firm." She and Altamirez are thus allowed to split fees without complying with the rules that govern fee splits between lawyers who are not in the same firm. [ABA Model Rule 1.5(e)] (A) is wrong for the reason just stated. (B) is wrong because no rule requires Altamirez to supervise Lipids at every turn, so long as he takes reasonable steps to assure that she performs her work competently and otherwise within the bounds of legal ethics. [See ABA Model Rule 5.1—supervisory duties of lawyers within a firm] (C) is wrong because a lawyer may state that he does (or does not) practice in particular fields of law. [ABA Model Rule 7.4(a)] Altamirez has not held himself out as a specialist in these areas; thus, no certification is required. [See ABA Model Rule 7.4(d)]

Consolidated Insurance Corporation offers a legal services insurance policy. In return for a yearly premium, an insured person will be reimbursed by Consolidated for a specified amount of legal services during the year. The insured selects a lawyer from a list of "Authorized Providers" supplied by Consolidated. Any lawyer who agrees to follow a maximum fee schedule set by Consolidated can become an "Authorized Provider." Consolidated solicits insurance sales by in-person and live telephone contact with potential insurance buyers. Will attorney Alvarado be subject to discipline if he becomes an "Authorized Provider" and receives clients through Consolidated's insurance plan?

Alvarado will not be subject to discipline if h becomes an authorized provider under Consolidated's plan. Consolidated has set up a prepaid legal services plan of the kind referred to in the ABA Model Rules. A lawyer may receive legal business through such a plan, unless the operator of the plan uses in-person or live telephone contact to solicit people who it knows are in need of legal services in a particular matter covered by the plan. [ABA Model Rule 7.3(d)] (B) is wrong because there is no rule concerning the selection of counsel in a legal services insurance plan. (C) is also wrong because it would be an antitrust violation (and also an ethics violation) for a group of lawyers to conspire to follow a minimum or maximum fee schedule [see Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982)], but it is neither illegal nor unethical for a lawyer to agree to follow an insurance company's maximum fee schedule for work done for that company's insureds. (D) is wrong because it is too broad. ABA Model Rule 7.3(d) permits in-person and live telephone solicitation by the operator of an insurance plan, except of persons who are known "to need legal services in a particular matter covered by the plan."

Universal Steel, Inc. merged with Delta Iron Corp. The Attorney General of State A sued Universal and Delta in federal court to enjoin the merger, alleging that it was in violation of the federal antitrust laws. The federal district judge enjoined the merger, and Universal appealed the judge's decision to the United States Court of Appeals for the Fourth Circuit. Universal's lawyer on the appeal is attorney Alvarez. In doing the legal research for the appeal, Alvarez found a recent merger decision rendered by the Federal Trade Commission ("FTC") that is directly adverse to Universal's position. FTC decisions do not control in the United States Courts of Appeal, but they are persuasive. The Attorney General for State A failed to cite the FTC decision. Must Alvarez disclose it to the court?

Alvarez need not disclose the FTC ruling cause the court need not follow the decision. An attorney can be disciplined for failing to cite the court to legal authority that is "directly adverse" to the client's position and is from the "controlling jurisdiction." [ABA Model Rule 3.3(a)(2)] Although the decision is directly adverse to Universal's position, the facts state that FTC decisions do not control in the United States Courts of Appeal. Thus, the decision is not from the "controlling jurisdiction." (A) is wrong because in order to invoke the disclosure rule, the decision must be from a controlling jurisdiction, not merely persuasive. (B) is wrong because it states only one portion of the test that triggers the disclosure rule. While true that the decision is adverse, it is not from a controlling jurisdiction, and thus need not be revealed. (C)is wrong because although the rule as stated is true, in this case we are not concerned with harmful facts. The issue is whether Alvarez must reveal harmful law.

Attorney Anderson received her law degree two years ago from Flatland College of Law and Technical Sciences. Last summer she attended a three-day trial practice seminar, atthe Harvard Law School. During her brief career, she has tried five cases—two jury trials and three bench trials. She won both of the jury trials and two of the three bench trials. Anderson placed an ad under the subject heading "Trial Lawyers" in the classified pages of the local phone book. Her ad states in relevant part: Arlene Anderson, Trial Attorney Harvard Trained Never Lost a Jury Trial Which of the following make Anderson subject to discipline? I. Placing her ad under the heading "Trial Lawyers" in the phone book classified pages. II. Describing herself as a "Trial Attorney" in her ad. III. Describing herself as "Harvard Trained" in her ad. IV. Stating "Never Lost a Jury Trial" in her ad.

Anderson is subject to discipline for the last two statements in her advertisement. She is subject to discipline for item III. because it is misleading for her to state that she is "Harvard Trained." Reasonable readers could interpret that to mean that she received her law degree from that school. [See ABA Model Rule 7.1 and Comment 2] Anderson is also subject to discipline for item IV. because the statement "Never Lost a Jury Trial," although literally true, could create unjustified expectations and is therefore misleading. [See ABA Model Rule 7.1 and Comment 3] Items I. and II. would not make Anderson subject to discipline. Given her brief time in law practice, she has had significant experience as a trial lawyer. A lawyer is allowed to state the fields of law in which she does or does not practice. [ABA Model Rule 7.4(a)]

For the past five years, attorney Arles has represented art dealer Corot in the sale of many valuable paintings. One of the major transactions occurred three years ago, when the'American Museum of Art paid Corot $23 million for a Post-Impressionist landscape purportedly painted by Vincent Van Gogh in 1890. The American Museum of Art subsequently resold the painting to the Amsterdam Fine Arts Museum for $35 million. Today, Corot asked Arles to do the legal work in connection with the sale of a smaller, less valuable landscape, also a purpored Van Gogh. The propo§ed purchase price is $ 2 million, and the prospective purchaser is Lavita Lavish, a wealthy television personality who knows nothing about art. During a confidential conversation in Arles's office, Arles said to Corot: "I assume you have appraisal letters certifying the painting as a genuine Van Gogh?" Corot replied: "Of course I have letters! I forged them myself, just as I did for that bogus Van Gogh you helped me sell to the American Museum of Art three years ago!" When Aries inquired further, Corot told him in confidence that both of the purported Van Gogh paintings were in fact counterfeits created by a clever art student. Which of the following must Arles do at this point?

Arles must refuse to represent Corot in the present transaction. Note that the call of the question asks what Arles must do, not what he would be allowed to do. ABA Model Rule 1.2 states that a lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent. Here, Arles must refuse to represent Corot in the sale of the painting to Lavish because the sale would be fraudulent—Arles knows that the painting is not a Van Gogh as Corot represented to Lavish. ABA Model Rule 1.6(b) permits a lawyer to reveal a client's confidential information to the extent necessary to prevent the client from committing a crime or fraud that would result in substantial financial harm to a person, if the client is using or has used the lawyer's services to further the crime or fraud. A lawyer also may reveal confidential information if the client has already acted and the disclosure will mitigate the consequent financial harm. Thus, Arles is permitted to disclose information to law enforcement authorities in order to prevent harm to Lavish and possibly mitigate subsequent financial harm caused by the first transaction to the American Museum of Art; however, Arles is not required to do so. The same holds true regarding Arles's warning Lavish about the proposed sale. Consequently, I. and II. are wrong. III. is also wrong because even if it can be argued that Arles's revealing information about the fraudulent sale to American would mitigate subsequent financial harm, Arles is not required to reveal Corot's confidential information.

Attorney Atley was representing plaintiff Putkis at the bench trial of a civil pending before Judge Joiner. Midway through Putkis's case-in-chief, the judge called Atley into his chambers and said: "You've known me a long time, and I've always been honest with you. I'm going to be honest with you now, I don't think you have much of a case here. I may be mistaken though—my mind is distracted by money troubles. If only I could get a loan of $50,000 somewhere, it would free my mind considerably." Atley responded: "Your Honor, a loan of $50,000 is not a problem, and I'd be glad to help you out as a friend." Later that afternoon, a messenger delivered an envelope containing $50,000 in cash to Judge Joiner's chambers. No mention was made of a promissory note, a repayment date, or an interest rate. Two days later, Putkis settled his lawsuit so Judge Joiner never had to decide the case. Three months later, Jude Joiner repaid the $50,000 to Atley, together with interest at the market rate. Is Atley subject to criminal liability for lending the money to the judge?

Atley is subject to criminal liability if he intended to induce Judge Joiner to decide the case in Putkis's favor. The common law crime of bribery consists of the corrupt payment or receipt of anything of value in return for official action. The $50,000 loan was obviously a thing of value. Thus, if Atley intended the loan as an inducement to Judge Joiner to decide the case in favor of Putkis, then Atley is guilty of bribery. (A) is wrong because in deciding whether Atley is subject to criminal liability, it is Atley's intent that counts, not Judge Joiner's intent. (C) is wrong because Atley's crime was complete when he gave the loan, even though Judge Joiner never had to decide the case. (D) is wrong because bribery does not require an outright gift; a $50,000 loan is a thing of value, especially a loan with no repayment date, no promissory note, and no interest specified.

Wilma the only living child of widower Warner age 83. Warner's main asset is a 51% partnership interest in Mobiland, Ltd., a wealthy real estate syndicate that owns and operates mobile home parks throughout the state. Wilma is married to attorney Atwater. One of Atwater's regular clients Christopher, asks Atwater to represent him in negotiating the sale of 3,000 acres of roadside property to Mobiland. Mobiland is represented by its own lawyer in the matter. May Atwater represent Christopher?

Atwater may represent Christopher if Christopher gives informed, written consent to the representation. Atwater's wife, Wilma, is likely to inherit Warner's interest in Mobiland. That gives Atwater a personal interest in Mobiland, albeit an attenuated interest. If Atwater is to represent Christopher in selling land to Mobiland, he must first disclose his personal interest to Christopher. If Christopher gives informed consent, confirmed in writing, then Atwater may represent Christopher. [ABA Model Rule 1.7(b)] (A) is wrong because informed, written consent will solve the potential conflict of interest. (B) is wrong because Atwater's personal interest is significant, even though it is remote. (C) is wrong because informed, written consent will solve the conflict problem and avoid the appearance of impropriety.

During a brief recess in jury deliberations in a criminal case, juror Jimmerson telephoned a friend of hers, attorney Aulet, and asked for help in understanding a legal concept that was puzzling the jury—the meaning of "beyond a reasonable doubt." Aulet explained the term as best he could, given the circumstances and shortness of time. Is Aulet subject to discipline?

Aulet is subject to discipline because he communicated with a juror about a pending case. During the trial of a case, no lawyer, whether or not connected with the case, is allowed to communicate with a juror about the case. [ABA Model Rule 3.5(b)—referring the matter to local law, which generally prohibits communication with a juror during the trial of the case or jury deliberations; see also ABA Model Rule 8.4(d)—proscribing conduct that is prejudicial to the administration of justice] (B) is wrong because Aulet should not have communicated with Jimmerson about the case at all, whatever the quality of his advice. (C) is wrong because Aulet is subject to discipline for communicating with a juror, regardless of whether he was or was not competent in the field of criminal law. (D) is wrong because the prohibition against a lawyer communicating with a juror while a trial is pending applies to all lawyers, not just to those connected with the case.

Two years ago, Weaver obtained a divorce from her husband, Hubbard, in State A. The court awarded Weaver custody of the three children and ordered Hubbard to pay Weaver $3,000 per month in child support and alimony payments. The attorney who represented Weaver in the divorce proceedings died. Hubbard failed to make the $3,000 payments for 17 months in a row. Weaver ran out of money, and in desperation, hired attorney Avilla to represent her in a proceeding to collect the past due payments from Hubbard. State A has no law or court rule that requires the loser to pay the winner's attorneys' fees in domestic relations matters. Because Weaver had no money to pay Avilla a regular fee, Avilla agreed to do the work on a contingent fee basis for 10% of whatever amount Weaver was ultimately able to recover. Avilla won an award for Weaver of the entire amount due ($51,000), and by tracking down and attaching Hubbard's secret bank account, he got the full amount paid to Weaver. He then sent Weaver a bill for his share, $5,100. Is Avilla subject to discipline?

Avilla is not subject to discipline for this fee arrangement unless $5,100 is an unreasonably high fee. The ABA Model Rules flatly prohibit a lawyer from using a contingent fee arrangement when the payment of the fee is contingent on the securing of a divorce or an amount of alimony or support (or property settlement in lieu thereof). The Rules do not, however, prohibit a lawyer from using a contingent fee to recover money that is past due under a child support order. [ABA Model Rule 1.5(d)(1) and Comment 6] In Weaver's case, she had already obtained her divorce, and the amount of alimony and child support payment had already been set. The only problem was extracting the money from Hubbard; thus, Avilla's use of the contingent fee arrangement in this case was proper. The contingent fee arrangement is particularly appropriate in light of Weaver's lack of money to pay a regular fee and State A's failure to provide for fee shifting in domestic relations matters. [See Restatement §35, comment b] (B) is wrong because it ignores the possibility that $5,100 may be unreasonably high for the work Avilla did. Also, Avilla would not necessarily be subject to discipline for using this fee arrangement even if Weaver had money to pay a regular fee. (C) is wrong because the collection of past due amounts of child support on a contingency fee basis is not considered a prohibited contingent fee in a domestic relations case under the Rules. (D) is wrong because it invokes a nonexistent policy. Contingent fees are generally allowed, even though they typically involve taking a share of money awarded for the support or compensation of the client (as in the ordinary personal injury case).

After graduating from law school, attorney Ayala was admitted to practice in State One, and not in any other jurisdiction. She joined the United States Army Judge Advocate General's ("JAG") Corps—the corps of lawyer-soldiers who provide legal services to the Army throughout the world. After completing her officer training and her training in military law, she was assigned to the JAG office at Fort MacArthur in State Two. Even though she was not admitted to practice in State Two, she was assigned to the legal assistance desk. According to Army regulations, her job is to provide legal services to military personnel and their dependents concerning a wide range of personal legal problems, including civil, domestic, and financial matters. Corporal and Mrs. Smithers ask Ayala for legal advice about financingc a mobile home, which they plan to put in a mobile home park located in the town closest to Fort MacArthur. Ayala knows absolutely nothing about the business and legal issues involved in financing a mobile home. Would it be proper for Ayala to give the requested advice to the Smitherses?

Ayala does not need to be admitted to practice in State Two because the JAG Corps is an organ of the federal government, and army regulations authorize JAG officers to provide legal services to Army personnel and their dependents on a wide range of personal legal problems. [See ABA Model Rule 5.5(d)(2)] But before she advises the Smitherses, Ayala must do enough research to become competent on the legal aspects of mobile home financing. [See Comment 2 to ABA Model Rule 1.1] (B) is wrong for two reasons. First, as stated above, federal law authorizes Ayala to dispense this kind of advice in State Two. Second, the pro bac vice procedure does not entitle a person to practice law throughout a state—it only permits a person to handle a particular case before a particular tribunal [See ABA Model Rule 5.5(c)(2) and Comment 9] (C) is wrong for the reason stated in the first sentence, above. (D) is wrong because the problem specifies that army regulations authorize a legal assistance officer to give legal advice on a wide range of personal legal problems that affect military personnel and their dependents. These regulations reflect the Army's strong interest in keeping its people out of legal troubles no matter what the source.

Two years ago, attorney Azari represented client Claubert in the sale of Blackacre to buyer Boyer. Unbeknownst to Azari, Claubert made some fraudulent statements to Boyer about the value of some mineral deposits on Blackacre. Boyer recently discovered the fraud and is now in Azari's office threatening to immediately file a civil fraud suit against both Claubert and Azari. Boyer accuses Azari of engineering the fraud and helping Claubert carry it out. The only way that Azari can convince Boyer that he had no part in the fraud is to tell Boyer a fact that Claubert disclosed to him in the deepest confidence when he was working on the Blackacre transaction. May Azari disclose the fact without the consent of Claubert?

Azari may reveal the confidence even if doing so will subject his client to civil or criminal liability. A lawyer may disclose a client's confidence "to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved . . ." [ABA Model Rule 1.6(b)(5)] Although the lawyer must wait until the assertion of misconduct arises, he need not await the filing of a formal charge or complaint. The lawyer may defend himself by responding directly to a third party who has made such an assertion. [See Restatement §64, comment c] (A) is wrong because the lawyer may disclose the fact even if doing so harms the client. (C) is wrong because the lawyer need not wait for the complaint to be filed, as explained above. (B) is wrong because it ignores the self-protection exception to the general rule of confidentiality.

Seymour is applying for admission to the State A Bar. When Seymour was in high school, he and his parents lived in State B, next door to attorney Azevedo. Azevedo is admitted to practice in State B, but not in State A. Seymour seemed to be a promising lad, and Azevedo was disappointed to learn that during Seymour's senior year in high school, he was convicted of burglarizing a liquor store. After serving his sentence, Seymour went to college and later to law school. Azevedo has had no contact with Seymour since his high school years, but so far as Azevedo knows, Seymour has not done anything since high school that would reflect badly on his character. The Bar of State A sent Azevedo a routine questionnaire, asking a series of questions about Seymour's character. Azevedo does not know whether Seymour disclosed the burglary conviction on his bar application, and she does not know where to contact him to find out. Which of the following would be a proper response to the questionnaire?

Azevedo should state what she knows about Seymour, including mentioning his burglary conviction. An attorney who is properly asked for information about a bar applicant's character has a duty to respond and to do so accurately. [ABA Model Rule 8.1] (A) is wrong because Azevedo does have relevant information—she knows about Seymour's burglary conviction, and that is relevant to (but certainly not conclusive of) the inquiry about his character. (B) is wrong because an attorney's duty to provide bar applicant information is not confined to the state in which the attorney practices. (C) is wrong because the burglary conviction is relevant to the character inquiry, and nothing indicates that Azevedo learned about it in confidence.

Swimming coach Larry was charged with assaulting the coach of the opposing team. Larry hired criminal attorney Bailey to conduct his defense. Subsequently, Larry pleaded not guilty and was released on his own recognizance. At his first trial, a jury was empaneled, and prosecutor Portman was almost finished presenting the testimony of her first witness when a signal from her electronic pager interrupted her. Trial Judge Judy granted her request for a short recess, at the end of which Portman told Judge Judy: "My office has instructed me not to proceed with this case at this time, your Honor. I am sorry for this inconvenience." Judge Judy responded: "If you stop now, counsel, this man ' will go free—is that what you want?" Portman replied: "Do what you have to do, your Honor." With that, Judge Judy entered a judgment of acquittal and set Larry free. Twenty days later, Portman recharged Larry with the same offense. Larry again hired Bailey to defend him. Judge Judy presided over the second trial. Bailey made no pretrial motions. This time Portman did not falter, and in due course the jury at the second trial found Larry guilty as charged. Judge Judy sentenced him to prison for the period required by law, but she stayed the sentence and released him on his own recognizance pending appeal. Larry reluctantly paid Bailey's bill for the second trial—$5,000. However, Larry hired new lawyer Cochran for the appeal, and in due course the appellate court reversed the conviction and set aside the prison sentence, stating in the appellate opinion: "We have never seen a clearer double jeopardy violation, nor a worse error by a criminal defense attorney." Will Bailey be subject to civil liability in a legal malpractice action brought by Larry for having missed the double jeopardy issue?

Bailey will be subject to civil liability in a legal malpractice action brought by Larry for failing to object to the second trial on double jeopardy grounds. A reasonably competent criminal defense attorney would know that a defendant is put in jeopardy when a jury is empaneled and sworn, not to mention that Portman started presenting her case-in-chief. Larry was obviously a proper plaintiff, and he was injured by Bailey's error; he should be able to recover at least part of the $5,000 attorneys' fee, plus damages for his anguish and for the reputational injury caused by the conviction at the second trial. Note that (C) provides that in the malpractice action Larry must prove by a preponderance of the evidence that he was innocent of the underlying criminal offense. That is required by the law of most states that have ruled on the issue. [See Restatement §53, comment d] Observe that in this particular case, a good argument can be made for allowing Larry to recover even without proof of innocence. Here, the malpractice was Bailey's failure to object to the second trial. If Bailey had acted competently, the second trial would never have taken place, and Larry would have lawfully gone free, even if he were unquestionably guilty of the assault. [See Levine v. Kling, 123 F.3d 580 (7th Cir. 1997)—Judge Posner's dictum] (A) and (D) are incorrect because they overlook the $5,000 fee and other less tangible injuries Larry suffered. (B) is incorrect for the reasons stated above with respect to (C).

After lawyer Laben graduated from law school, she joined the congressional staff of United States Senator Senders. In that role, she personally drafted a bill that was ultimately enacted as the Educational Rights of Disabled Americans Act ("ERDAA"), a far-reaching statute that requires colleges and universities to make many changes in the facilities they supply to blind, deaf, and physically impaired students. Shortly thereafter, Laben moved to State A, where she became an associate in the private law firm of Dillard & Dornish. Seeking legal advice on how to comply with the ERDAA, the University of State A hired partner Dillard and specifically asked Dillard to assign Laben to assist him in doing the work. In light of Laben's earlier role as the drafter of the ERDAA, which of the two lawyers may work on the matter?

Both Dillard and Laben may work on the matter, assuming Laben complies with the applicable federal statutes and regulations concerning former government employees. Drafting a piece of legislation is not regarded as a "matter" for purposes of the legal ethics rules on former government employees. [ABA Model Rule 1.11(e); ABA Formal Op. 342 (1975)] Therefore, Laben may advise the University. Because Laben is not disqualified, neither is her firm. Thus, Dillard may also work on this project. (A) is wrong because, as discussed above, Laben's congressional work disqualifies neither Laben nor Dillard. (B) is wrong because it states one of the requirements for Dillard's representation had Laben been disqualified. As discussed above, Laben is not disqualified and thus need not be screened off. (D) is wrong for the reasons stated above. Moreover, it is not the University that would need protection if this were a "matter" for the purpose of disqualification under the conflict of interest rules. In that case, Laben would have been screened off, Laben would not be apportioned any part of the fee, and written notice would be promptly given to the government agency.

Pringle consulted lawyer Louder, hoping to hire Louder to represent him as plaintiff in a medical malpractice action against Dr. Dooley. Without mentioning Dr. Dooley's name, Pringle described the alleged acts of malpractice and said that they happened more than two years ago. Only at that point did Pringle mention Dr. Dooley's name. Louder immediately stopped Pringle and said: "I am sorry, but I cannot represent you in this matter. I am presently representing Dr. Dooley in an entirely unrelated lawsuit, but that means that I cannot represent you. You will need to consult another lawyer." That was the end of the conversation. Pringle did nothing further for 15 months, at which point he consulted another lawyer. By that time, the statute of limitations had run on Pringle's claim against Dr. Dooley. Pringle then sued Louder for legal malpractice, alleging that Louder was negligent in not warning him about the statutr of limitations. Is Louder subject to civil liability in Pringle's malpractice case?

Generally speaking, a lawyer must not represent a client in a presently pending piece of litigation and simultaneously oppose that client in a different piece of litigation, without each client's informed, written consent. [See Comment 6 to ABA Model Rule 1.7] Here, Louder may have believed that the conflict of interest that would have been created by his undertaking representation of Pringle was unconsentable. Thus, he acted properly in declining to represent Pringle, even though Pringle's case was unrelated to the one in which Louder was representing Dr. Dooley. However, a lawyer does owe a duty of reasonable care to a prospective client, even though no attorney-client relationship ever comes about. [See Restatement of the Law Governing Lawyers (hereinafter "Restatement") § 15] Ordinarily, that duty would include cautioning the prospective client about an impending statute of limitations deadline. [Id.] Here, however, a cautionary word to Pringle would constitute disloyalty to the existing client, Dr. Dooley. [See, e.g., Flatt v. Superior Court, 9 Cal. 4th 275 (1994)—warning prospective client about statute of limitations was not required when it would be disloyal to present client] Louder therefore acted properly in simply suggesting that Pringle consult other counsel. (B) is incorrect because a lawyer does owe a duty of reasonable care to a prospective client. (C) is incorrect because Louder did have a legal and ethical reason to reject Pringle as a client: the simultaneous representation of Dr. Dooley in the unrelated matter. (D) is incorrect because the foreseeability of the harm is not the whole of the analysis. Even if Louder could foresee that Pringle would dawdle and let the statute of limitations run, Louder's duty of loyalty to Dr. Dooley required him not to warn Pringle about the statute of limitations.

Attorney Adams is a voting member of the legislation committee of Citizens for Safer Food ("CSF"), a consumer-based law reform group that drafts and advocates the passage of proposed statutes on food safety. CSF is currently debating a draft statute that sets quality and safety standards for growth hormones administered to chickens, turkeys, and other poultry. Adams is also engaged in the private practice of patent law. She regularly represents Genetico, Inc., a biotechnology firm. Using the techniques of genetic engineering, Genetico invents, develops, and sells a variety of patented growth hormones. Adams herself has obtained patents on some of these hormones for Genetico. If enacted into law, CSF's proposed statute on poultry hormones could materially increase Genetico's hormone sales because it is the only firm whose hormones would meet the statute's quality and safety requirements. Would it be proper for Adams, as a member of the CSF legislation committee, to participate in the debate on, and to cast her vote on, the proposed statute?

It would be proper for Adams to participate in the debate and cast her vote on the proposed legislation, provided that she informs the committee that she represents a client whose interests could be materially benefited by the statute. A lawyer may participate in a law reform activity that will affect the interests of the lawyer's client. [ABA Model Rule 6.4] When a lawyer knows that a client will be materially benefited by the activity, the lawyer must disclose that fact, but she need not name the client. (A) is wrong because a lawyer is not prohibited from engaging in a law reform activity that might benefit her client. (B) is wrong because a lawyer is not prohibited from participating in a law reform activity, unless the participation would create an impermissible conflict of interest. [ABA Model Rule 1.7(a)] That is not the case here. A client who hires a lawyer does not thereby purchase the right to control the lawyer's views and activities in all contexts. [See ABA Model Rule 1.2(b)1 Adams may even advocate new legislation that she thinks is sound that would harm Genetico's sales. [See ABA Model Rule 6.4] (D) is wrong because Adams need not disclose the name of her client; simply disclosing the fact of representation will inform the CSF legislation committee of her possible bias.

Client Corrales lives in State A and is a regular client of attorney Amundson, who is admitted to practice only in State A. When Corrales was on vacation in distant State B, she was injured in a car accident caused by a resident of State B. Corrales hired Amundson to represent her in a civil action against the State B driver. For masons of jurisdiction and venue, the case had to be filed and tried in State B. The written fee agreement between Corrales and Amundson provided that: (1) Amundson would assume full responsibility for the case as lead lawyer; (2) Corrales would pay Amundson 40% of the net recovery after deduction of litigation expenses; (3) Amundson would associate State B lawyer Linz to serve as trial counsel in State B; (4) Linz would assume responsibility only for his work as trial counsel; and (5) Amundson would pay Linz an appropriate portion of the 40% contingent fee. Corrales ultimately recovered $1.2 million. After deduction of $200,000 in litigation expenses, Corrales paid Amundson $400,000 (40% of $1 million). By measure of both quality and quantity, Linz did 10% of the work in the case, and Amundson did the other 90%. Assuming that $400,000 is a reasonable fee for all the work done, which of the following amounts would be proper for Amundson to pay Linz?

It would not be proper for Amundson to plit his fee with Linz because the written fee agreement with Corrales does not comply with the ABA Model Rules. ABA Model Rule 1.5(e) allows a lawyer to split a fee with a lawyer who is not in his firm if: (i) the total fee is reasonable; (ii) the split is in proportion to the services rendered by each lawyer, or in some other proportion if each lawyer assumes joint responsibility for the matter; and (iii) the client agrees to the split in a writing that discloses the share that each lawyer will receive. Here, the written fee agreement did not specify the share that each lawyer will receive; thus, a fee split between Amundson and Linz would be improper. (A) is wrong because there is no requirement that a lawyer be licensed in the same state as the attorney with whom he is splitting a fee. (C) is wrong because the written fee agreement with Corrales did not indicate the share that each lawyer will receive, and thus the agreement was improper regardless of whether Linz was assuming responsibility for his work. (D) is wrong because even though there was a fee agreement, it did not comply with the ABA Model Rules.

Plaintiff Prentice, represented by lawyer Leer, brought suit in federal district court against Exterminate, Inc., a pest control company, and nine chemical companies for "grave physical and emotional injuries" Prentice suffered after accidentally inhaling cockroach spray emanating from an apartment that had recently been fumigated by Exterminate. Leer's theory for suing the nine chemical companies was that Exterminate had probably purchased its cockroach spray from at least one of the nine chemical companies. The law firm of Alvarez & Aarons represented one of the nine chemical company defendants, Calloway Chemicals Corp. By using depositions and document demands early in the discovery phase of the case, the Alvarez firm established that Calloway had never at any time sold any type of chemical to Exterminate. The Alvarez firm then moved for summary judgment as to Calloway. Leer offered no substantive response to that motion, but rather filed a counter motion to disqualify the Alvarez firm on the ground that the firm was "seeking on behalf of its client to evade the jurisdiction of this court," that the firm was "biased against the plaintiff" and was seeking to "deprive plaintiff of a judgment on the merits," and that the firm was "guilty of gross conflicts of interest," the specifics of which were not stated. The trial judge denied the motion to disqualify the Alvarez firm and granted Calloway's summary judgment motion, whereupon Leer immediately moved for a rehearing, moved to stay the trial judge's two orders, and moved to disqualify the trial judge for "demonstrated gross bias and prejudice against the plaintiff and in favor of the defendant Calloway," the nature of the bias and prejudice being unspecified. The disposition of these motions consumed an entire year, due to Leer's obstreperousness and his repeated requests for postponements and extensions of time. Meanwhile, the Alvarez firm had to stay actively involved in the case to protect Calloway's position. This year-long ordeal ended up costing Calloway $14,500 in attorneys' fees and $6,750 in litigation costs. Is Leer subject to litigation sanction in the form of an order against Leer personally to pay the $14,500 in attorneys' fees and the $6,750 in litigation costs?

Leer is subject to litigation sanction because Federal Rule of Civil Procedure 11 provides that sanctions can be imposed on a lawyer, firm, or party for filing a pleading, motion, or other paper merely to harass, delay, or multiply expense for the opponent. [See also Hudson Motors Partnership v. Crest Leasing Enterprises, Inc., 845 F. Supp. 969 (E.D.N.Y. 1994)— federal courts have inherent power to sanction lawyers for frivolous legal positions to harass or delay; and see 28 U.S.C. § 1927—court can impose sanctions on lawyers who knowingly or recklessly multiply proceedings unreasonably and vexatiously] (A) is incorrect because it is beyond the bounds of the law to harass an opponent with a legal position that the proponent knows is frivolous. (B) is incorrect because Rule 11 allows the court to sanction both the lawyers and the parties they represent. (C) is incorrect because lawyers are not subject to litigation sanction for taking legal positions that they, in good faith, believe to be meritorious.

Retired lawyer Regeria practiced admiralty and maritime law for 45 years in Maine. He stopped paying his bar dues in Maine when he retired, and he is no longer licensed to practice there. He and his wife moved to a retirement village in New Mexico, but he did not seek to become licensed to practice law in New Mexico. After a few months of playing golf and puttering in the garden, Regeria got bored and started missing the challenges of law practice. He therefore joined the unpaid staff of volunteer lawyers at the Rio Grande Walk-In Legal Advice Clinic, which is run by a nonprofit organization. The clinic's purpose is to offer free, quick, accurate, compassionate legal advice to walk-in clients who cannot afford ordinary legal service and who have legal problems that can be solve quickly, without litigation or other time-consuming procedures. Before they ever see one of the clinic's lawyers, all of the clients must give informed consent to the limited nature of the legal services they will receive. Regeria works at the clinic three days a week, and he dispenses legal advice on all sorts of matters—although he has yet to find a client who needed admiralty or maritime advice. Regeria enjoys the work because it makes him feel useful again, and because it gives him a cornucopia of interesting stories to tell his wife about his clients' various legal troubles. Which of the following statements are correct? I. Regeria is subject to discipline for practicing law without a license. II. Regeria is subject to discipline for telling his wife about his clients' legal troubles. III. Regeria's volunteer work is proper because one does not need to be licensed to dispense legal advice at a quick-service clinic like this one. IV. Regeria's conversations with his wife are proper because no confidential lawyer-client relationship is formed at a quick-service clinic like this one.

Item I. is correct because Regeria's dispensation of legal advice constitutes the "practice of law," and he is doing it in a jurisdiction where he is not licensed. [See ABA Model Rule 5.5(a)] Item IL is correct because there is a lawyer-client relationship between Regeria and his walk-in clients. [Comment 1 to ABA Model Rule 6.5] One element of that relationship is the lawyer's duty of confidentiality [ABA Model Rule 1.6], and Regeria breaches that duty when he tells his wife about his clients' legal troubles. Item HI. is incorrect because one does need to be licensed in order to dispense legal advice at a walk-in legal clinic. [See ABA Model Rule 6.5, which loosens the conflict of interest rules for clinic lawyers but does not authorize them to practice without a license] A law student or similar unlicensed person can work at such a clinic under the close supervision of a lawyer, but the question makes no mention of Regeria's work being supervised. [See Comment 1 to ABA Model Rule 5.3] Item IV. is incorrect for the reason stated above concerning item H.

Lawyer Lorenz agreed to represent wife Withers on an hourly fee basis in securing a divorce from her husband Hullar. Hullar is represented in the matter by attorney Atwell. Despite repeated warnings by Lorenz, Withers kept pestering Lorenz with telephone calls and office visits concerning inconsequential details and trifling personal complaints. When Withers was unable to contact Lorenz on the phone or in person, she would telephone Atwell, her husband's attorney, and try to put her questions and complaints to him. Atwell always refused to talk Withers. Lorenz repeatedly told Withers not to contact Atwell, but to no avail. Finally, Lorenz told Withers that she would withdraw unless Withers changed her ways, but Withers did not do so. Lorenz withdrew and sent Withers a fee bill for the total number of hours she had spent on the case. Withers refused to pay the bill, and after futile efforts to settle the matter, Lorenz sued her to collect the fee. Which of the following propositions are true? I. it was proper for Lorenz to withdraw. II. It was proper for Atwell to refuse to talk with Withers on the phone. III. It was proper for Lorenz to bill Withers for the total amount of time she spent on the case. IV. It was proper for Lorenz to sue Withers to collect the unpaid fee.

Item I. is true because one of the grounds for permissible withdrawal is that the client has made the lawyer's task unreasonably difficult (e.g., the client will not cooperate with the lawyer). [ABA Model Rule 1.16(b)(6)] Item II. is true because a lawyer must not communicate about a matter with a person who is represented by another lawyer in the matter, unless that other lawyer consents. [ABA Model Rule 4.2] Item III. is true because there is no reason in this case for Lorenz to charge Withers less than the full amount (assuming, of course, that the fee is reasonable in the circumstances). Item IV. is true because a lawyer may sue to collect her fee. Comment 3 to ABA Model Rule 1.5 urges lawyers to take advantage of arbitration schemes to avoid fee suits. Lorenz has tried to settle with Withers, but to no avail; in this situation, a suit may be her only way to get the money.

Lawyer Langdell was a widely admired, highly compensated, trial lawyer in solo practice. He represented clients in all types of civil and criminal litigation, mostly in high-profile cases that draw a lot of media attention. The governor of the state where Langdell practiced had been harshly criticized for appointing appellate judges who lack significant experience as trial counsel. Hoping to silence his critics, the governor appointed Langdell to serve out the remaining seven years of recently deceased Supreme Court Justice Korptz's 12-year term. After the seven years, Langdell can run for election to a new 12-year term. Before taking the oath as judge, Langdell sold his entire law practice— books, client files, office lease, furniture, and goodwill—to attorney Altamont. Langdell gave appropriate advance notice to the clients, and Altamont covenanted that he would not raise their legal fees. A few years later, one of the cases that Langdell transferred to Altamont came before the State Supreme Court on appeal. Which of the following propositions are true? I. Langdell's sale of his law practice to Altamont was proper. IL Altamont's covenant not to increase the fees paid by Langdell's clients was proper. III. A practicing lawyer who is appointed to a judgeship may sell his law practice. IV. Langdell must disqualify himself from the case involving his former client. V. Langdell may participate in the decision of the case involving his former client, provided that all of the other supreme court justices give their informed consent.

Item I. is true. ABA Model Rule 1.17 permits the sale of an entire law practice, or an area of practice, subject to some conditions, all of which are met here. Item IL is true. ABA Model Rule 1.17(d) provides that when a practice is sold, the fees charged to the clients cannot be increased by reason of the sale. Item III. is true. The sale of a solo practice by a newly appointed judge is a good example of where ABA Model Rule 1.17 can be beneficial. [See Comment 2 to ABA Model Rule 1.17] Item IV. is true. CJC 3E(1)(b) says that a judge must disqualify himself if he previously served as a lawyer in the matter. Item V. is false. CJC 3F explains remittal of a judge's disqualification, and remittal requires the agreement of all of the parties and their lawyers, not the other justices.

For many years lawyer Lacy has done business transactions work for wealthy client Chung. Chung was recently injured in an automobile crash, and she has asked Lacy to represent her as plaintiff in an action against the driver who injured her. Lacy has taken some business cases to trial, but has never handled a personal injury case. Lacy would like to earn a profit from Chung's case. Which of the following would be proper ways for him to do so? I. Take the case and, with Chung's consent, associate a co-counsel who is competent in the field of personal injury law. II. Refer Chung to a competent personal injury lawyer and charge that lawyer a $1,000 forwarding fee. III. Take the case and do the study and research needed to handle it competently. IV. Refer Chung to a competent personal injury lawyer and charge Chung a reasonable sum for the time spent in making the referral.

Items I. and HI. are proper because a lawyer may take on a case that he is not competent to handle if he either: (i) puts in the time and study needed to become competent to handle it, or (ii) obtains his client's consent to associate a lawyer who is competent to handle it. [Comment 2 to ABA Model Rule 1.1] Item IV. is proper because a lawyer may refer her client to another lawyer who is competent to handle the case. Making a sound referral can take a significant amount of time, especially if the referring lawyer needs to research the backgrounds of several lawyers with whom she is not personally familiar. It is appropriate for the referring lawyer to charge her client for the time spent making the referral, subject of course to the general rule on reasonableness. [ABA Model Rule 1.5] (As a practical matter, however, many lawyers would not charge a regular client for making such a referral.) Item II. is not proper because a "forwarding fee" is another term for a "referral fee," and payments for referrals are prohibited. [ABA Model Rule 7.2(b)]

Criminal defendant DeVries exercised his Fifth Amendment privilege against self-incrimination and elected not to testify on his own behalf at his trial. Prosecutor Prichard presented compelling evidence of DeVries guilt. In her closing argument to the jury, Prichard made the following statements: I. "DeVries knows where he was on that fatal night. I have presented the testimony of three witnesses that he was with the victim. Did DeVries deny it? No! He sat there saying nothing." II, "What are you to make of defense witness Fergus Grutz? You heard evidence that Grutz has twice been convicted of perjury. Could there be better proof that Grutz is a liar?" III. "You may wonder why I cross-examined defense witness Emma Schlarp so vigorously. When you've been a prosecutor as long as I have, you can tell who is truthful and who is not. Was Emma Schlarp telling you the truth? I don't think so. Do you?" IV. "Is DeVries guilty? That's what you have to decide, but I hope you will conclude that the evidence points only one way: guilt beyond a reasonable doubt." Which of Prichard's statements were proper?

Items IL and IV. are proper; items I. and I. are not. Item I. is improper because a lawyer may not state or allude to any matter that the lawyer does not reasonably believe will be supported by admissible evidence. A prosecutor is rohi d from commentin n a e endant's failure to testifT-any-sucinuferlates the deferd'i ant's Fifth Amendment privilege against self-incrimination. [Griffin v. California, 380 U.S. 609 (1965)] Thus, Prichard's allusion in closing arguments to the defendant's failure to testify is reference to inadmissible evidence, and is improper. [ABA Model Rule 3.4(e)] In addition, a lawyer, especially a prosecutor, must not intentionally violate established rules of evidence or procedure. [ABA Model Rule 3.4(c)] Item II. is proper because Prichard was inviting the jury to draw its own conclusion about Grutz's credibility, not stating her own opinion about his credibility. [See ABA Model Rule 3.4(e)] Item III. is improper because Prichard was stating her own opinion about Schlarp's truthfulness. A lawyer must not state a personal opinion as to the credibility of a witness. [ABA Model Rule 3.4(e)] Item IV. is proper because Prichard's statement did not contain her own opinion about DeVries's guilt; rather, she was inviting the jury to reach the conclusion that she desired.

Judge Jeffery serves on a State A trial court that has nine other judges. Her husband, Horace, is a life insurance salesman for the Amalgamated Life Insurance Company. Amalgamated is occasionally a litigant in the court on which Judge Jeffery sits. Every year Amalgamated runs a national sales contest in which the person who sells the most life insurance during the year receives a valuable prize. Horace has just learned that he is the winner this year. The prize is an all-expense-paid vacation in Europe for two people. May Judge Jeffery urge Horace to accept the prize and take her on the European vacation?

Judge Jeffery may urge Horace to accept the prize unless giving Horace the prize could reasonably be perceived as an attempt to influence Judge Jeffery in the performance of her judicial duties. A judge must urge members of her family who live in her household not to accept a gift, bequest, favor, or loan from anyone, subject to eight exceptions. [CJC 4D(5)] One exception provides that it is permissible to accept a "gift, award, or benefit" that is incident to the business of the judge's spouse, unless it could reasonably be perceived as an effort to influence the judge in her judicial duties. [CJC 4D(5)(b)] (A) is wrong because the exception stated in it [CJC 4D(5)(h)] applies only if the donor is not likely to appear before the judge, and the facts state that Amalgamated is occasionally a litigant in Judge Jeffery's court (C) is wrong because it ignores the general rule on family members' accepting gifts and other benefits. (D) is wrong because if the prize is proper under CJC 4D(5)(b), it does not become improper simply because Amalgamated may later appear as a litigant in Judge Jeffery's court. (Judge Jeffery may, of course, have to disqualify herself in such a case pursuant to CJC 3E(1).)

Judge Jettelson sits on a United States Court of Appeals. He and two other Court of Appeals judges heard a diversity of citizenship case in which they were required to interpret a statute of State A concerning the marital communications privilege. Judge Jettelson's two colleagues wrote the majority opinion, in which they concluded that the statute gives only the witness-spouse the right to claim the privilege. Judge Jettelson wrote a vigorous and scholarly dissent, arguing that the statute gives both spouses the right to claim the privilege. Later, a State A senator legislator introduced a bill to amend the statute to reflect Judge Jettelson's position. The State Senate Justice Committee invited Judge Jettelson to testify about the public policy reasons for giving both spouses the right to claim the privilege. May Judge Jettelson testify?

Judge Jettelson may testify because a judge may engage in activities designed to improve the law. Under the CJC, judges are permitted to engage in nonjudicial activities that concern the law. [CJC 4B] Judges are in a unique position to help improve the law, including the revision of substantive and procedural law. Moreover, a judge may appear at a public hearing before a legislative body on a matter that concerns the law, the legal system, or the administration of justice. [CJC 4C] (A) is wrong because there is no rule requiring "equal time." (C) is wrong because it is overbroad. The general rule on judicial involvement in politics limits only some types of political activities, not including legislative testimony. [CJC 5A] (D) is wrong because, with respect to issues that are likely to come before the court, a judge is prohibited from making pledges, promises, or commitments that are inconsistent with the impartial performance of his duties. [CJC 3B(10)] That rule does not apply here because Judge Jettelson's testimony, which would be designed to improve the law, would not constitute a promise that is inconsistent with the performance of his adjudicative duties.

Client Chason hired lawyer Lucero to do the legal work in connection with a complex public securities offering. Lucero agreed to do the work for $160 per hour. Lucero did a great deal of legal research, prepared numerous memoranda of fact and law, and drafted most of the documents needed for the public offering. At that point Chason became angry with Lucero for no apparent reason and fired him. Chason paid Lucero at the agreed rate for the work Lucero had done, and Chason demanded that Lucero turn over to him the papers that Lucero had prepared, including the legal and fact memoranda and the document drafts. What papers must Lucero turn over to Chason?

Lucero must turn over all of the papers to Chason. When a lawyer is fired, he must return all "papers and property to which the client is entitled." [ABA Model Rule 1.16(d)] In this case, Chason is entitled to all the papers Lucero has prepared. Under the law of many states, an attorney can assert a lien on client papers in her possession to secure the payment of her fee, but here Chason has paid Lucero for all the work Lucero did. (A) is wrong because Lucero must turn over the memoranda as well as the other documents. (B) is wrong because Lucero must give Chason the document drafts as well as the memoranda. (C) is wrong because the fact that Lucero was fired, even without cause, does not in any way change Lucero's duty to give Chason all of the papers.

state alpha lawyer LaFrank represents Inventex Corp., a State Alpha corporation that owns a valuable United States patent. State beta lawyer Levin represents Demonics, Inc., a State Beta corporation. Inventex believes that Demonics is infringing the Inventex patent, and for the past three months LaFrank has been negotiating with Levin, seeking an amicable resolution of the dispute. The negotiations have broken down, and Inventex has decided to sue Demonics for infringement. Venue in an action for patent infringement is proper in any United States judicial district where the defendant or its agent resides or can constitutionally be served with process. For tactical reasons, LaFrank wants venue in State Alpha. She believes, but is not certain, that Demonics has a branch sales office somewhere in State Alpha. To find out for sure, LaFrank telephones Demonics's headquarters in State Beta and asks to speak with the president of the company. Without identifying herself, she asks the president where in State Alpha she can find a sales office for Demonics's products. The president politely tells her the address of the office and the name of Demonics's head sales agent in State Alpha. Is LaFrank subject to discipline?

LaFrank is subject to discipline because she talked with the president about the matter without obtaining Levin's consent. A lawyer must obtain the consent of adversary counsel before she speaks "about the subject of the representation" with a person who supervises, directs, or regularly consults with the organization's lawyer about the matter at hand. [Comment 7 to ABA Model Rule 4.2] The president of the company is clearly a person who supervises, directs, or consults with the organization's lawyer about legal matters. "Subject of the representation" is not limited to the substantive legal and factual issues concerning the alleged patent infringement; it also includes significant procedural matters, such as the factual predicate for laying venue in State Alpha. [See Hazard & Hodes, The Law of Lawyering (hereinafter "Hazard & Hodes") §38.5 (3d ed. 2000 & Supp. 2004)—"anything that could have an impact on the contested matter"] (A) is wrong because the rule against direct communication applies to all manner of disputes, whether or not suit has been filed. In this case, the claim of infringement had clearly been made—negotiations had been ongoing for three months. (B) is wrong because the conversation concerned a significant procedural matter, as explained above. (C) is wrong because, without Levin's consent, the conversation would have been unethical even had she properly identified herself.

Lawyer Laden regularly represents Electratec, Inc., a manufacturer of electric kitchen appliances. One morning the president of Electratec called Laden and said excitedly: Did you read in this morning's paper about the woman who got electrocuted when she opened the door of her dishwasher? The paper said the washer was three years old, and I'm pretty sure that it was one of ours. I found our quality control records from that period, and some of our washers left the plant without proper testing. Those records should have been shredded after two years, but somehow this batch was overlooked. I'm going to send them to the shredder now, unless you tell me that I can't. Must Laden advise the president to keep the records?

Laden must advise the president to keep the records because the records have potential evidentiary value if the company is sued. A lawyer must not counsel or assist a person to destroy material that has "potential evidentiary value." [ABA Model Rule 3.4(a)] Although it is not certain that the company manufactured the dishwasher in question, the president said he was "pretty sure that it was one of ours." Furthermore, it is not certain that the company will be sued if it was one of their washers, but the chances are good that it will be. If commencement of proceedings can be foreseen, the documents have potential evidentiary value and cannot be destroyed. [Comment 2 to ABA Model Rule 3.4] (A) is wrong because even if the company's records retention program called for the routine shredding of these records long ago, they were not shredded then, and they have potential evidentiary value now. (C) is wrong because commencement of proceedings is foreseeable. (D) is wrong because the standard is backward. The records should be preserved until the company is certain that the dishwasher in question was not manufactured by Electratec.

Lawyer Ladner represents defendant Dewy in a criminal case. Dewey is charged with vehicular homicide, a felony. Under the criminal statute in question, a defendant is guilty if he caused the victim's death by driving a motor vehicle either intentionally or recklessly in disregard of the safety of others. In Dewey's case, the critical issue is whether the traffic light facing Dewey's traffic lane was green at a specified moment. If the light was green, then Dewey is not guilty, but if it was red, then Dewey is guilty. Dewey himself has blocked the entire event from memory and has no idea whether the light was green or red. Five bystanders were in a position to see the light at the time in question. Ladner interviewed four of them. With varying degrees of uncertainty, all four of them told Ladner that they believe the light was red but that they are not positive. Based on their recollections, as well as certain physical evidence in the case, Ladner herself believes that the light was probably red, but of course she was not present at the scene and cannot be certain. Then Ladner interviewed the fifth bystander, Battista, who said that he simply could not remember what color the traffic light was. Ladner replied: "My client is facing 20 years in jail, and the whole case against him turns on the color of that light. My client and I would both be eternally grateful to you if you could testify that the light was green. Would you help us out?" After thinking it over, Battista said he would be glad to help by testifying that the light was green. At the trial, Ladner presented Battista's testimony that he saw the light, that he remembers what color it was, and that it was green. The jury believed Battista, and Dewey was acquitted. Is Ladner subject to criminal liability for inducing Battista to testify falsely?

Ladner is subject to criminal liability because he knew that Battista did not remember the color of the light. The crime of subornation of perjury is the corrupt procurement of perjured testimony. [See R. Perkins & R. Boyce, Criminal Law (hereinafter "Perkins & Boyce") 524-26 (3d ed. 1982)] Perjured testimony means a false oath in a judicial proceeding in regard to a material matter. [Id.] A false oath means a willful and corrupt sworn statement made without sincere belief in its truthfulness. [Id. ] In this case, the falsehood was not about the color of the traffic light, but rather about Battista's memory of the color of the traffic light. Battista testified that he saw the light and remembered what color it was— but in truth, he did not remember. Ladner knew that Battista did not remember, and Ladner knew that Battista knew that he did not remember. Therefore, Ladner is guilty of subornation of perjury. (B) and (C) are both incorrect because they focus on the wrong thing—the color of the light, rather than the witness's memory. (D) is a generally correct statement, but it does not apply here. A criminal defense lawyer must indeed resolve doubtful facts in her client's favor, but the state of Battista's memory was not a doubtful fact—Battista told Ladner at the outset that he "simply could not remember what color the traffic light was."

Author Arthur wrote a best-selling novel based on the life and crimes of John Dillinger, the famous bank robber. Arthur sold the movie rights to film producer Prosser, who promised to pay Arthur a lump-sum royalty of $5 million upon the release of the movie. After Prosser hired actor Clint Nickleman to play the lead role and made other expensive preparations for filming, Arthur repudiated the contract. Prosser hired lawyer Laine to sue Arthur for a declaratory judgment that the contract was valid and enforceable. At Prosser's request, Laine agreed to do the legal work on a contingent fee basis: If Prosser wins, Laine will be paid 1.75% of the gross receipts from the movie, but if Prosser loses, Laine will be paid nothing. Prosser and Laine entered into a written fee agreement that contains all the details required by the rules of legal ethics. Which of the following statements is true?

Laine's fee agreement is proper even though it gives Laine a personal interest in the subject of the litigation. Laine has acquired a personal interest in the movie, which is in one sense the real subject of the litigation. However, the rule against acquiring a personal interest in the subject of litigation has an exception that allows a lawyer to represent a client for a contingent fee. [ABA Model Rule 1.8(i)(2)] (A) is wrong because the rule on literary rights contracts covers only literary works based in substantial part on information relating to the representation. Here, the movie concerns John Dillinger, not producer Prosser. [See ABA Model Rule 1.8(d)] (B) is wrong because, as discussed above, a lawyer may acquire an interest in the subject matter of the litigation in the form of a contingent fee. (C) is wrong because the fee agreement between Prosser and Laine does not require Arthur's informed consent. Arthur is not a current or former client of Laine's, and Arthur has no apparent interest that would cause Laine a conflict and force him to disclose and explain the material risks and available alternatives and obtain Arthur's consent.

Lawyer Lars is defending Castco, Inc. in a suit broughtt in federal district court in the Second Circuit. One of the issues in the case is whether Castro violated a workplace rule promulgated by the Federal Employment Commission ("FEC"). Castro denies having done the act that allegedly violated the FEC rule. As a fallback position, Castco argues that even if it did the act, the rule should be interpreted to exclude acts of that kind. For which of the following actions is Lars subject to discipline? I. Failing to turn over incriminating documents that Castco gave him in confidence upon his employment, and which were requested during discovery. II. Failing to cite a case directly on point decided last month by the Ninth Circuit Court of Appeals. III. Failing to notify the opposing side of a witness who can testify that the president of Castco specifically instructed one of her deputies to commit the act in question. IV. Failing to cite a three-week-old FEC decision that Lars found in a computer search and that interprets the FEC rule to include precisely the kind of act Castro allegedly committed.

Lars is subject to discipline for failing to turn over evidence given to him by his client and for failing to cite authority directly adverse to his case from a controlling authority. [See ABA Model Rules 3.3(a)(2), 3.4(a)] Item I. is correct because a client cannot protect a preexisting document or thing from discovery simply by turning it over to the attorney. The privilege does not apply; if the thing is discoverable in the client's hands, it is equally discoverable in the attorney's hands. Furthermore, an attorney must not unlawfully obstruct another party's access to evidence, which is the result here if Lars fails to turn over the documents. Item IL is incorrect because the case is not from a controlling authority. This case is in the Second Circuit and the case to be cited is from the Ninth Circuit; as such, it does not control the courts in the Second Circuit. Item III. is incorrect because an attorney has no obligation to notify the other side of adverse factual evidence, unless of course, the opponent has made a proper discovery request for the information. Item IV. is correct because the FEC would be the controlling authority on the interpretation of an FEC rule; thus, Lars was obligated to cite it.

Lawyer Lawrence is a partner in the firm of Lawrence and Loeb. That firm regularly provides legal services to three major banks and two other important lending institutions in the community of Farmdale. Lawyer Lawrence has been invited to become a member of the board of directors of the Farmdale Legal Aid Society, the group that sets overall governing policies for the local Legal Aid office. One of the major issues that will soon face the board of directors is whether to amend the Case Intake Guidelines to allow the Legal Aid office to represent clients in disputes with banks and other lending agencies. Which of the following statements is most nearly correct?

Lawrence may join the board of directors, but she must refrain from participating in the decision about the Case Intake Guidelines. A lawyer may not participate in a legal service board decision that may adversely affect one of the lawyer's clients. [ABA Model Rule 6.3(b)] (B) is wrong because ABA Model Rule 6.3 encourages work with a legal services organization, even if the organization serves people whose interests conflict with the interests of the lawyer's clients. (C) and (D) are wrong because ABA Model Rule 6.3(b) prohibits a lawyer from taking part in a legal services organization decision if the decision will adversely affect one of the lawyer's clients.

Carla alleges that she was assaulted by Devlin, a very wealthy businessman. Carla contacted lawyer Lazar about representing her in a civil action against Devlin. After several lengthy discussions about the merits of the case, Carla decided to employ attorney Arnold to represent her instead. Devlin was later charged with criminal assault in connection with this incident, and his trial was televised. Lazar watched the trial and was astonished when Carla testified to facts that Lazar knew from their previous discussions to be false. Lazar sent a letter with a messenger over to the court to notify the court that Carla had perjured herself. Were Lazar's actions proper?

Lazar's actions were not proper because his 'information was gained from a confidential lawyer-client communication. [See ABA Model Rule 1.6] It was both privileged and confidential, and could be disclosed only if one of the exceptions to the duty of confidentiality applies. None of the exceptions applies here. The fact that Carla did not hire Lazar to represent her does not affect his duty of confidentiality; she was seeking legal advice and representation when she spoke to him. [See ABA Model Rule 1.18(b)] (A) is wrong because there is no exception to the duty of confidentiality to prevent a fraud on the court when the lawyer is not appearing before the court. (B) is wrong because this too does not fit within any exception to the duty of nondisclosure. A lawyer may reveal confidential information to the extent he reasonably believes necessary to prevent, mitigate, or rectify substantial injury to the financial interests of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud, if the client has used the lawyer's services in furtherance of such crime or fraud. [ABA Model Rule 1.6(b)(3)] Here, the facts do not indicate that Carla used Lazar's services in furtherance of her perjurious testimony. Thus, although the perjury could result in substantial injury to Devlin's financial interests, Lazar is not permitted to reveal the confidential information. (C) is wrong because it states the rule for an ex parte communication to the judge by one of the parties. Here, Lazar does not represent one of the parties. Furthermore, the information is confidential and cannot be disclosed to the disadvantage of the client regardless of whether Lazar sends copies to all parties.

Lawyer Leavitt practices environmental law. He also happens to be one of the nation's leading experts on the environmental effects of filling wetlands. The legislature of State A has scheduled hearings on a bill to prohibit the filling of wetlands surrounding Clearwater Bay. One of Leavitt's regular clients is Bay View Development Company, which owns development rights to some of the wetlands in question. Bay View wants to fill its wetlands so that it can build low-cost housing for underprivileged families. Bay View hired Leavitt to appear as a witness at the legislative hearings and to testify in opposition to the ban on wetland filling. Leavitt appeared as a witness, identified himself as an expert on wetlands, and testified vigorously against the proposed legislation. Was Leavitt s conduct proper?

Leavitt's conduct was not proper unless he informed the legislators that he was appearing in a representative capacity. When a lawyer appears before a nonadjudicative body on behalf of a client, he must disclose that he is acting in a representative capacity. [ABA Model Rule 3.9] One important purpose of the rule is to enable the members of the nonadjudicative body to assess the biases that may influence the lawyer's testimony. In this case, the legislators might well think that Leavitt was speaking in his capacity as a wetlands expert, rather than as a developer's spokesman. (A) is wrong because Leavitt should have told the legislators that he was acting in a representative capacity, whether or not his testimony was consistent with his own views. (C) is wrong; indeed, the fact that he is an expert in his own right makes his appearance particularly misleading. (D) is wrong because it invokes a nonexistent rule. There are limits on when a client's trial counsel may testify in a court proceeding, but no such limits apply in nonadjudicatory proceedings.

Building contractor Carter and his lawyer Lewis met with landowner Owens to negotiate a contract whereby Carter would construct an office building on land owned by Owens. Carter, Lewis, and Owens were the only persons present at the meeting. Ultimately, the three of them worked out a written agreement, and Carter commenced work on the building. It soon became apparent that the building site required far more preparation work than Carter had contemplated when he agreed to the contract price. Carter and Owens got into a dispute about who had to pay for the additional site preparation. One important issue is whether Owens made certain oral representations to Carter during the contract negotiating session that Lewis attended. Carter contends that Owens did make the representations, and Owens contends that he did not. Lewis was present during the entire negotiating session, and she is virtually certain that Owens did not make the representations. Carter stopped work on the building and refused to proceed until Owens paid for the extra site preparation. Owens then sued Carter for specific performance of the construction contract. Carter asked Lewis to represent him as trial counsel. Lewis should.

Lewis should decline to serve as trial counsel because she can foresee that she will be called as a witness. A lawyer must not act as an advocate at a trial at which the lawyer is likely to be a necessary witness. [ABA Model Rule 3.7(a)] Lewis was the only person other than the parties present at the negotiating session. Owens will almost certainly call Lewis as a witness. Because Lewis can foresee at the outset that she will likely be called as a witness, she should decline to serve as trial lawyer for Carter, even if Carter is willing to consent to the conflict of interest. [ABA Model Rule 1.7(a); Comment 6 to ABA Model Rule 3.7] (A) is wrong because a person's choice of counsel is limited by the restraints imposed by the ethics rules. The client may choose Lewis, but Lewis cannot ethically accept the employment. (B) is wrong because Lewis cannot refuse to testify if Owens calls her to the witness stand. (C) is wrong because if a lawyer is called to the witness stand and sworn to tell the truth, she must do so, even if it is prejudicial to her client.

Union Bank and Trust Company maintains a list of Approved Estate and Trust Lawyers as a service to Union customers who seek Union's advice on estate planning matters. When lawyer Lieu opened her trust and estate practice in town, she asked other lawyers how to get on Union's approved list. They explained that Union lists lawyers who regularly name Union in wills and trust agreements they draft for clients who need an institutional executor or trustee. Union is one of the most stable and reputable banks in the state, and its fees for executor and trustee services are competitive with those of similar institutions. In light of what she has been told by the other lawyers, may Lieu seek to have her name included on Union's list?

Lieu may not seek to have her name included on the list because naming Union as executor or trustee in wills and trusts is a tacit condition of being on the list. A lawyer may not give anything of value to a person for recommending the lawyer's services. [ABA Model Rule 7.2(b)] When a lawyer names a bank as institutional executor or trustee for a client, the lawyer confers a monetary benefit on the bank in the form of the fees the bank will earn from the client's trust or estate. Here, Union apparently lists only those lawyers who are willing to compensate it in this manner. That makes the arrangement "exclusive" and prevents the arrangement from being a reciprocal referral agreement of the kind permitted by ABA Model Rule 7.2(b)(4). Moreover, Union's scheme creates a conflict of interest between the lawyer and the client who needs an institutional executor or trustee. The lawyer has a personal interest in staying on Union's referral list, and that interest may skew the lawyer's judgment in advising a client whether to name Union or a different institution. [See ABA Model Rule 1.7(a)] (B) is wrong because it is overbroad and does not hit on the specific problem with Union's scheme. In proper circumstances, a lawyer may solicit business through an intermediary, e.g., through a prepaid legal service program or an approved lawyer referral service. (C) is wrong because a client is entitled to the unbiased advice of a lawyer in deciding what institutional trustee or executor to name. Even if Union is just as good and its fees are as reasonable as other institutional fiduciaries, Union's scheme deprives clients of unbiased advice. (D) is wrong because clients who use Union for their routine banking needs might nevertheless desire to name some other institution as their executor or trustee; in any event, they are entitled to unbiased legal advice on that subject.

Lawyer_Lim practices real estate law in State One, an old-fashioned jurisdiction in which almost every real estate transaction requires the services of one or more lawyers. Lim is also licensed by State One as a real estate broker. Lim conducts her law practice and her real estate brokerage business in a single office, using one secretary and one paralegal as her support staff. Lim specializes in small, relatively old apartment buildings (from 4-12 units) that are not in peak condition. They make good investments because they can be bought cheap, fixed up, and leased at favorable rates. Lim generates most of her business by discovering who owns a likely looking building and then making a face-to-face pitch to the owners, trying to interest them in selling and using her to find a buyer. After the owners sign her up as their real estate broker, Lim lets them know that she can also do the necessary legal work—the title search, the financing documents, the land transfer documents, and the like. Is Lim subject to discipline?

Lim's real estate brokerage business is a "law-related service" within the meaning of ABA Model Rule 5.7, and Lim offers her real estate brokerage services "in circumstances that are not distinct from" her provision of legal services. [See ABA Model Rule 5.7(a)(1)] That means that she must follow the rules of legal ethics in her real estate brokerage work as well as her law work. [Id.] One of the legal ethics rules forbids a lawyer from initiating in-person contact with a prospective client when a significant motive for doing so is the lawyer's pecuniary gain. [See ABA Model Rule 7.3(a)] Therefore, Lim must not initiate face-to-face contact with potential real estate clients to interest them in using her brokerage services. [See Comment 10 to ABA Model Rule 7.3] (A) is wrong because it overstates the rule expressed in ABA Model Rule 5.7. (C) is wrong because it turns ABA Model Rule 5.7 on its head—because Lim is offering her ancillary service in circumstances that are not distinct from her legal service, she must follow the legal ethics rule for both kinds of service. (D) is wrong because Lim's face-to-face pitches violate the no-solicitation rule even if her statements are truthful and not misleading. [Compare ABA Model Rule 7.1 with ABA Model Rule 7.3(a)]

The Bar of State A has established a peer counseling program whereby lawyers who are addicted to alcohol or other drugs can receive confidential counseling from other lawyers. The Bar of State A's ethics rule on confidential information provides that communications between the counselor lawyer and the counseled lawyer are to be treated just like confidential communications between an attorney and client. Lawyer Loomis is addicted to alcohol and is receiving peer counseling under the program from lawyer Lin. Loomis is a large, strong man, and his addiction has made him subject to periodic fits of physical violence. This afternoon, during their peer counseling session, Loomis told Lin: "My client Crothers has refused to pay the fees he owes me; the next time I get drunk enough, I'm going to smash the little creep's face in." From working with Loomis over an extended period, Lin believes that he may really do it. May Lin disclose Loomis's statement to Crothers and the police?

Lin may disclose the statement even if Loomis objects. State A's ethics rule on confidentiality treats communications between Loomis and Lin just like communications between an attorney and a client. If Lin had heard one of her clients make this threat, she could have warned the police and the intended victim. An attorney may reveal confidential information to the extent she reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. [ABA Model Rule 1.6(b)(1)[ Thus, Lin may warn Crothers and the police. (A) is wrong because Lin may act to prevent Loomis from causing substantial bodily harm. Loomis's consent is not necessary. [ABA Model Rule 1.6(b)(1)] (B) is wrong because if an attorney reasonably believes that her client (or anyone else) is about to inflict substantial bodily harm on someone, she may take steps to prevent it, even if she is not certain that the client (or other person) will do it. (D) is wrong because the State A ethics rule on confidentiality equates the peer counselor relationship with the relationship between an attorney and client; thus, the ability to disclose is the same.

Lawyer Lohman (age 34) regularly represented client Cruikshank (age 78) in matters relating to the investment of Cruikshank's considerable wealth. Cruikshank told Lohman that he wanted to put $500,000 into a sound, income-producing investment. Lohman suggested that the two of them pool their money and talent and buy an attractive new apartment house. Lohman would put up $75,000 and do the legal work, and Cruikshank would put up $500,000 and serve as the live-in manager of the apartment house. Cruikshank enthusiastically agreed to the arrangement and told Lohman to draw up the papers. Lohman drafted an agreement between himself and Cruikshank, negotiated the purchase of the apartment house, and drafted a deed from the seller to himself and Cruikshank as joint tenants with right of survivorship. Lohman gave Cruikshank a carefully written explanation of the terms of the transaction, but he forgot to explain the significance of the joint tenancy, i.e. , that upon the death of one joint tenant, the property would pass automatically to the other joint tenant. Lohman advised Cruikshank in the writing explaining the terms of the transaction to have an outside lawyer look over the transaction, and he also urged him orally to do so. However, Cruikshank said that he trusted Lohman and signed all of the papers without further ado. Lohman and Cruikshank operated the apartment house successfully for several years, until Cruikshank died at age 83. The executor of Cruikshank's estate sued Lohman to have the apartment house declared part of Cruikshank's estate, but the court concluded that the joint tenancy created a gift to Lohman, effective on Cruikshank's death. Were Lohman's actions proper?

Lohman's actions were not proper because a lawyer may not draft a legal instrument for a client that gives a substantial gift to the lawyer, unless the client is a relative of the lawyer. [ABA Model Rule 1.8(c)] The deed creating the joint tenancy bestows a substantial gift on Lohman, particularly in light of the high likelihood that Cruikshank would die first. The transaction is also particularly suspect in light of Lohman's failure to explain the joint tenancy to Cruikshank. [See ABA Model Rule 1.8(a)— business transaction with client requires full disclosure of interest granted lawyer] (A) is wrong because the court's determination does not free Lohman from discipline for drafting the deed that bestowed the gift on him. (B) is wrong because the right of survivorship is a substantial gift regardless of who actually dies first; thus, it was not proper for Lohman to draft the document. (C) is wrong because it is overbroad. A lawyer may enter into a business transaction with a client, provided he follows certain safeguards. Here, for example, had Lohman met all of the requirements of ABA Model Rule 1.8(a), the transaction would have been a proper business transaction. However, the transaction still would have been improper because Lohman drafted the deed.

Lawyer London and her nonlawyer friend Ferguson created a partnership to serve people who want to invest in commercial real estate. Ferguson, a licensed real estate developer, finds promising commercial real estate projects, brings together groups of investors, and works with local planning authorities to gain approval for the projects. London drafts the legal documents for the projects, assists the investors with the legal technicalities, advises the investors on their tax liabilities, and does whatever legal work the investors need in connection with management and operation of the projects. London and Ferguson charge the investors a single fee for their work, and they divide the partnership profits 50%-50%. Is London subject to discipline?

London is subject to discipline because she and Ferguson are partners in the abovedescribed business. A lawyer is prohibited from entering into a partnership with a nonlawyer if any of the partnership activities constitutes the practice of law. [ABA Model Rule 5.4(b)] The rationale and social policy behind this rule have been sharply questioned, but the ABA has not abandoned its traditional distrust of partnerships with nonlawyers. [See Hazard & Hodes, §45.7] (A) is wrong because although there are potential conflicts here in that London appears to work partly for the investors and partly for Ferguson and herself in putting the real estate projects together, informed, written consent by the investors will solve these conflict issues. In any event, London is still subject to discipline for entering into the partnership with a nonlawyer. (B) is wrong because the division of responsibility does not solve the partnership with a nonlawyer problem. (D) is wrong because Ferguson is not engaging in activities that could be construed as practicing law. All of the legal work (i.e., work calling for the professional judgment of a lawyer) is done by London.

The Bar of State Alpha has established an Interest on Lawyers' Trust Accounts ("IOLTA") program, whereby lawyers deposit client trust funds into special client trust accounts that pay interest to the Bar of State Alpha, which then uses the money to help fund legal services for poor people. The State Alpha IOLTA program requires lawyers to deposit a particular client's funds in an IOLTA account unless the funds would earn more than $50 in interest during the time they are entrusted to the lawyer. If the client's funds would earn more than $50 in interest during that time, the lawyer must deposit them in a separate interest-bearing trust account and pay the interest to the client. State Alpha lawyer Longfisher settled a personal injury case brought by her client Choy. The defendant sent Longfisher a check for $9,000. Because she was leaving that day for a one month vacation in Fiji, Longfisher instructed her assistant to deposit the check in Longfisher's IOLTA account. The assistant is authorized to make deposits to and withdrawals from the account. Longfisher did not tell her assistant to notify Choy that the check had arrived. When Longfisher returned a month later, she notified Choy that the check had been received, and Choy came to Longfisher's office that same day to collect the $9,000. At the prevailing rate of interest, the $9,000 would have earned $40 during the month that Longfisher was gone. Was Longfisher's handling of the matter proper?

Longfisher's handling of the matter was not proper because she should have made sure that Choy was promptly notified that the check had arrived. When someone delivers money to a lawyer to hold for the lawyer's client, the lawyer must promptly notify the client that the money has arrived. [ABA Model Rule 1.15(d)] Had Choy known that the money had arrived, she could have promptly collected it and put it to her own use. (A) is wrong because the State Alpha IOLTA program required the funds to be deposited in an IOLTA account. (C) is wrong because although Longfisher did comply with the IOLTA requirement, she failed to take appropriate steps to have Choy promptly notified that the money had arrived. (D) is wrong because Choy was harmed; she was deprived of the use of the money during the month that Longfisher was on vacation in Fiji.

Lawyer Lubner is defending client Marine Supply, Inc. ii1 a civil action brought by the State Attorney General under the State Corrupt Practices Act of 1931. That statute makes it a civil offense for any person or business entity to bribe or give a kickback to a state official. The statute authorizes fines of up to $100,000 per transaction for any violation. Marine Supply has a strict corporate policy that prohibits its employees from bribing or giving kickbacks to anyone. Employees who violate the policy are subject to immediate discharge and are required to indemnify Marine Supply for any loss it suffers as a consequence of the violation. The Attorney General has noticed the depositions of dozens of Marine Supply employees, including one Dan Dowling. Prior to his recent retirement, Dowling was the sales manager of Marine Supply. Lubner met with Dowling to prepare him for his deposition. At the outset of the interview, Lubner agreed to represent Dowling without charge, and Lubner told Dowling that anything said between them would be confidential. During the interview, Lubner asked Dowling whether he had ever bribed any State A officials. Dowling responded: "Certainly. All our competitors were doing it too, and l had to do it to sell anything to the state." What course of action should Lubner pursue at this point?

Lubner may withdraw from the case and keep Dowling's statement in confidence. When an organization is the lawyer's client, the lawyer owes a duty of loyalty to the organization. When the interests of the organization and its constituents conflict, the lawyer should remind the person that the lawyer represents the organization and not the person. It would be appropriate for the lawyer to remind the person that communications between them may not be protected by the attorney-client privilege, and that the person may want to obtain independent counsel. [ABA Model Rule 1.13] Here, Lubner should not have asked the question unless he was prepared for an affirmative answer. He should have known before asking that if the answer was yes, Dowling's interests and Marine Supply's interests would conflict; thus, Lubner should not have offered to represent Dowling, and certainly should not have promised to keep Dowling's statements in confidence. (Note that Lubner could be subject to discipline for this conduct.) The issue here, however, is what course of action Lubner may now take. Now that Lubner has agreed to represent Dowling, and Dowling has confessed in confidence, the only thing Lubner can do is withdraw from the matter entirely and keep Dowling's confession in confidence. [See ABA Model Rule 1.9] (A) is wrong because he would violate Dowling's confidence by disclosing the confession to the Attorney General. (C) and (D) are wrong because revealing Dowling's confession to Marine Supply would also violate Dowling's confidence.

Sigmund and Fritz are partners in a bakery that makes Austrian pastry. Their partnership agreement says that they will share the work and the profits equally. They are the best of friends, but they constantly bicker—each claims that the other is taking an unfair share of the profits and shirking on the work. Six months ago, they hired lawyer Ludwig to act as a third-party neutral, to e p them resolve their differences once and for all. At the outset, Ludwig explained that he would be strictly neutral between them; he would not be representing either one, and neither of them would be entitled to the protections afforded by an attorney-client relationship. After a long series of meetings with them (sometimes separately, sometimes jointly), Ludwig proposed a solution. Sigmund and Fritz liked his solution, reduced it to writing, and signed it, vowing to end their bickering forever. Six months later, the feud erupted again, worse than ever. Fritz asked Ludwig's law firm to represent him in a lawsuit against Sigmund, seeking to declare the partnership at an end and to bar Sigmund from entering the bakery premises. Which of the following is correct? (A) Ludwig is subject to discipline for his failed effort to serve both Sigmund and Fritz when their interests were patently in conflict. (B) It would be proper for Ludwig to represent Fritz in the lawsuit, even without the informed, written consent of Sigmund. (C) Ludwig's law partner Leonora may represent Fritz in the lawsuit, but only if Sigmund is notified in writing, and only if Ludwig is timely screened and does not share in the fee earned in the lawsuit. (D) Ludwig's law partner Leonora would be subject to discipline for representing Fritz in the lawsuit, even if Ludwig is timely screened and does not share in the fee earned in the lawsuit.

Ludwig was not representing either Sigmund or Fritz; rather, he was acting as a third-party neutral to help them resolve their differences. ABA Model Rule 2.4 permits a lawyer to serve in that role. Therefore, (A) is incorrect. (B) is incorrect because, when a lawyer has served as a third-party neutral between two conflicted parties, he cannot later represent one of the parties in that matter, unless both parties give informed, written consent. [ABA Model Rule 1.12(a)] (C) is correct because ABA Model Rule 1.12(c) permits screening to avoid a conflict in this situation. (D) is incorrect for the same reason.

Police officer was charged with murder. He is alleged to have savagely beaten and ultimately killed a teenage gang member in the course of an arrest. Neither the police department nor officer Owens's union was willing to provide legal counsel for his defense, and Owens himself lacked funds to hire private counsel. The public defender's office could not represent him due to a conflict of interest from a related case. The trial court therefore appointed lawyer Lee to defend Owens. Lee is only three years out of law school. Lee practices criminal defense, but he has never handled a murder case before. For which of the following reasons may Lee decline the court appointment?

None of the reasons given would allow Lee to decline the appointment. A lawyer is subject to discipline for trying to avoid a court appointment without good cause. [ABA Model Rule 6.2] None of the four items listed would constitute good cause. Item I. is not good cause because a lawyer's belief that the defendant is guilty is not a sufficient reason to turn down a court appointment. Competent defense of a murder case certainly does not require a defense lawyer to believe in the client's innocence. Item H. is not good cause because the facts state that Lee is three years out of law school and practices criminal defense law. That indicates that his training in criminal law and procedure is recent, and that he knows how to defend a criminal case, even though he has not handled a murder case before. Thus, Lee cannot claim lack of competence as an excuse for turning down the appointment. [See Hazard & Hodes, §51.3] ABA Model Rule 6.2(c) recognizes that a lawyer may turn down an appointment if the client or cause is so repugnant to him as to interfere in the lawyer-client relationship. Neither Lee's race nor his sympathy for young people who get involved with gangs should be regarded, without more, as likely to interfere with Lee's ability to represent Owens competently. Thus, item HI. is not good cause. Finally, item IV. is not good cause because Lee must not allow his other clients to control his work in matters that do not affect them. [ABA Model Rule 1.2(b)] Even if some of those other clients might take their work elsewhere in the future, that would not create the kind of immediate unreasonable financial burden that would justify Lee in rejecting the court appointment. [See ABA Model Rule 6.2(b)]

Duffy graduated from law school, but he never took the bar examination and was never admitted to practice. He works as an investigator and paralegal for the law firm of Schnell & Gao, a professional corporation. Which of the following statements are true? I. On Duffy's recommendation, one of Duffy's friends retained lawyer Gao to represent her as plaintiff in a personal injury case. It would be proper for Schnell & Gao to pay Duffy 10% of its fee in the case as compensation for the referral. II. Lawyer Schnell frequently assigns Duffy to draft wills for Schnell's estate planning clients. Schnell supervises Duffy's work, revises Duffy's drafts, and is ultimately responsible for the final product. Schnell is subject to discipline for assisting a nonlawyer to engage in the unauthorized practice of law. III Schnell & Gao established a retirement plan that is funded partly by legal fees earned by the firm's lawyers. The firm may include Duffy as a beneficiary of the retirement plan. IV. Schnell & Gao established a stock option plan to compensate its personnel for hard work. The options allow recipients to purchase shares of stock in the law firm at a reduced price. It would be proper for Duffy to acquire stock in the firm through the stock option plan.

Only item III. is true. Item I. is improper because it involves fee splitting with a nonlawyer. [ABA Model Rule 5.4(a)] Item II. is not grounds for discipline. When Duffy's work is properly supervised by Schnell, Schnell is not assisting a nonlawyer to engage in unauthorized practice. [See ABA Model Rule 5.5(a) and Comment 2] Item III. is proper because a nonlawyer employee of a law firm may participate in a retirement plan that is funded by legal fees. [ABA Model Rule 5.4(a)(3)] Item IV. is not proper because a nonlawyer must not hold stock in an incorporated law firm. [ABA Model Rule 5.4(d)(1)]

law professor pompman was selected as the neutral arbitrator of a boundry line dispute between land owners Owens and Osborne. Pompman decided the matter in favor of Owens. Shortly thereafter, Pompman quit his teaching position and entered private law practice. Osborne brought suit to have the arbitration award set aside. Owens asked Pompman to represent him in the suit. If Pompman takes the case, will he be subject to discipline?

Pompman would be subject to discipline for representing Owens because his earlier service as neutral arbitrator creates a conflict of interest. A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as an arbitrator. [ABA Model Rule 1.12(a)] (A) is wrong because the consistency of his position does not solve the conflict of interest. (B) is wrong because it does not go far enough. Informed, written consent by both Owens and Osborne would solve the conflict, but consent by Owens alone will not suffice (and Owens did not consent in writing). (D) is wrong because it invokes a nonexistent rule; unlike judges, lawyers are not expected to be impartial. Here, Pompman would be acting as an advocate, not as a judge or arbitrator; thus, he should be partial to his client. The issue here is not partiality but conflict of interest.

Paul Poller brought a civil action to recover damages for personal injuries he suffered as the victim of alleged police brutality inflicted by defendant police officers Able, Baker, and Carter. The trial was widely reported by the media. The jury returned a verdict in favor of Poller and against the three police officers for $500 million. When Trial Judge Johnston received the verdict, he was shocked by the size of the award. Before dismissing the jurors, Judge Johnston directed the following statements to the jury: When you people were sworn in as jurors in this case, you promised that you would deliver a verdict based on the evidence, and that you would not be swayed by passion or prejudice. You have failed in those duties and made a mockery of justice. You should be ashamed of yourselves. He then dismissed the jury, and the defense lawyers renewed their motion for judgment as a matter of law and, alternatively, moved for a new trial. Judge Johnston announced that he would rule on the motions the following Monday at 10 a.m. in open court. The press reports of the verdict and the judge's comments to the jury created a great public tumult in the city where the case was tried. On the following Monday, the courtroom wag jammed with reporters. Primarily for the purpose of educating the reporters, Judge Johnston first gave a detailed explanation of the legal requirements for granting a renewed motion for judgment as a matter of law and for granting a new trial motion. He then granted the renewed motion for judgment as a matter of law and, alternatively, the motion for a new trial. Were Judge Johnston' s actions proper?

The communication with the reporters was proper, but the statements made to the jury were not. A judge should not "commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding." A judge's commendation or criticism may impair a juror's ability to be impartial in a subsequent case. [CJC 3B(10)] Judge Johnston's statements to the jury clearly violate this rule; thus, (A) and (C) are incorrect. Although judges should not comment on pending cases in a manner that might interfere with justice, judges are not prohibited "from making public statements in the course of their official duties or from explaining for public information the procedures of the court." [CJC 3B(9)] Judge Johnston's explanation of the motions to the reporters was an appropriate way to inform the public of the meaning and significance of Judge Johnston's decision to reject the $500 million verdict; thus, (B) and (C) are incorrect.

Client Cox hired lawyer Lerner to draft a will for him. Cox willed his entire estate to Ruby ,Riddle, the 43-year-old widow of Ralph Riddle. Cox told Lerner in confidence that he was neither a relative nor a friend of the Riddles. Cox explained that he felt a moral obligation to Ruby because he had killed her husband, Ralph, and he had never become a suspect or confessed his sin to anyone. One day after signing the will, Cox committed suicide. In due course, all of Cox's assets were distributed to Ruby Riddle, and the probate court closed his estate and discharged his executor. Lerner never told Ruby or anyone else that Cox had confessed to killing Ralph. Now, a few years later, an enthusiastic young prosecutor is charging Harry Hapless with murdering Ralph in the first degree with aggravating circumstances, and the prosecutor is seeking the death penalty. May lawyer Lerner voluntarily tell Hapless's defense counsel what Cox told him in confidence about killing Ralph?

The controlling doctrine in this case is the lawyer's ethical duty of confidentiality, not the attorney-client privilege. Lerner needs to know whether he can voluntarily reveal Cox's confession, not whether he would be forced to do so if he were put on the witness stand in a court. ABA Model Rule 1.6(b)(1) states the applicable exception to the ethical duty of confidentiality: A lawyer may reveal confidential information if the lawyer reasonably believes that doing so is necessary to prevent reasonably certain death or substantial bodily harm. One might quibble whether Hapless's death is "reasonably certain" when his trial has not even started, but surely the ethics rule should not be read to require Hapless to order his last meal before being loosed from the executioner's grip. (A) is wrong because ABA Model Rule 1.6(b)( l) gives Lerner discretion to reveal Cox's confession; the rule does not force him to do so. [See Comment 15 to ABA Model Rule 1.6] (A few states go farther and require disclosure to prevent death or substantial bodily harm, but they are a small minority.) (C) is wrong for two reasons. First, the applicable doctrine is the ethical duty of confidentiality, not the attorney-client privilege. Sec: ond, even if the privilege were the applicable doctrine, who could claim it in this situation? Cox cannot because he is dead: Cox's executor cannot because Cox's estate was closed and the executor was discharged. Lawyer Lerner cannot claim it because a lawyer's right to claim the privilege is only derivative from the client. (D) is wrong for two reasons. First, the admissibility of this hearsay is irrelevant to the ethics issue. Second, Cox's confession would likely be admissible if offered by Hapless against the prosecution because it is a declaration against penal interest by an unavailable declarant, and Cox's will and suicide are independent evidence of the confession's trustworthiness. [See Fed. R. Evid. 804(b)(3); see also Chambers v. Mississippi, 410 U.S. 284 (1973)—due process violation where another man's confession was excluded in a murder trial].

Twelve-year-old Jim was badly injured when he was struck by a dump truck owned by Damassa Construction Corte. and driven by amassa's emp oyee E onds. Jimmy and his parents sued Damassa and Edmonds. The first count of their complaint alleges that Edmonds drove negligently while acting within the scope of his duties for Damassa, and that Damassa is therefore liable for Jimmy's injuries. The second count alleges that Edmonds drove negligently while on a frolic of his own, and that Edmonds is therefore liable for Jimmy's injuries. Damassa hired lawyer Lazarro to defend both Damassa and Edmonds. Lazarro conducted a careful investigation of the facts and concluded that Edmonds was in nowayriegligent; he was driving slowly and carefully when Jimmy suddenly ran out into traffic from between two parked cars. Lazarro further concluded that Edmonds was acting within the scope of his duties when the accident happened. Lazarro concluded that he could win the case because of the lack of negligence, and that he could effectiv613776Preser irb -WE morras an sa. He then—M.6E111y explained tiieI1Ul =coicts of interest to botnrthem and obtamea their ormed, written con to the joint representation. After e aus ye discovery proceedings, Lazarro remained convinced that Edmonds was not negligent, but he nonetheless explained the potential conflicts to Edmonds and Damassa a second time and again obtained their informed, written consent to the joint representation. Three weeks before the case was scheduled for trial, counsel for the plaintiffs moved to disqualify Lazarro due to a conflict of interest between Edmonds and Damassa. Must the trial judge disqualify Lazarro?

The judge must not disqualify Lazarro because Edmonds and Damassa gave informed, written consent to the joint representation. The interests of Edmonds and Damassa are in potential conflict as respects the agency issue: If Edmonds were on a frolic of his own, Damassa will not be liable, but if he were acting within the scope of his duties, Damassa will be liable. A lawyer may represent two clients in civil litigation if their interests are potentially in conflict, provided that the lawyer: (i) reasonably believes he can represent both clients effectively, (ii) discloses the potential conflict and explains how it can harm each client, and (iii) obtains the informed, written consent of each client. Because it appears that Edmonds was not negligent, the conflict between Edmonds and Damassa is only potential. Lazarro apparently believes that he can represent both parties effectively and took all of the right steps to deal with this potential conflict. Because Edmonds and Damassa gave informed consent in writing, the trial judge should refuse to disqualify Lazarro. [ABA Model Rule 1.7(b); Restatement §.122] The judge should also consider that it is the plaintiffs who seek the disqualification; one may reasonably conclude that they were trying to harass the defendants rather than serve the interests of justice. (A) is wrong because, as discussed above, there is a potential conflict between Edmonds and Damassa. (C) is wrong because the potential conflict has been handled properly and does not create an appearance of impropriety. (D) is wrong because informed, written consent is sufficient in this situation. A client cannot be asked to consent when a disinterested lawyer would conclude that the client's interests would not be adequately protected in light of the conflict. Here, the conflict is merely potential; thus, a disinterested lawyer could conclude that the clients can agree to the representation. Consequently, Edmonds's and Damassa's informed, written consent are sufficient to solve the potential conflict of interest.

Casper, a Hollywood movie producer who was charged under a criminal statute for unfair trade practices, now faces a civil claim under the same statute. Casper retains attorney Adams to represent him in both suits. Adams is a nationally known defense attorney who has represented many famous people. Most recently, he defended a celebrity in a notorious murder case that held the country rapt for several weeks. Adams explains to Casper that the representation is very complex and would take a majority of his time for several months. Given Adams' s steep hourly rate, Casper's legal fees would likely be around $1 million. Casper is short on cash and makes the following proposal: If Adams will represent him in both the civil and criminal suits, Casper will produce a movie based on Adams's most famous past cases, told from the lawyer's viewpoint. Adams would have complete creative control and would be entitled to all of the movie's profits, which could be anything from $0 to $100 million dollars. Casper had his personal attorney draw up a proposal to this effect, and Casper submitted it to Adams. Assuming that Adams receives any consent necessary from his former clients who might be portrayed in the movie, is this proposed arrangement proper?

This arrangement is proper if the fee is reasonable under the circumstances. As long as the fee paid does not turn out to be excessive, taking into account Adams's risk of not being paid, the delay in payment, etc., this arrangement is acceptable. A lawyer may enter into a business relationship with a client, provided certain safeguards, such as an opportunity to consult with independent counsel, are used. [ABA Model Rule 1.8(a)] (A) is wrong because although it is improper to use a contingent fee in a criminal case, this fee is not a contingent fee. Whether Adams gets paid does not depend on the outcome of the case; it depends on how well the movie does. (C) is wrong because it is not clear that any amount over $1 million is excessive, given that Adams is risking that he will be paid nothing and is delaying payment by a substantial period of time. (D) is wrong because it misstates or incompletely states the rule. The rule is that prior to the conclusion of the representation of the client, a lawyer cannot acquire media rights to a story based substantially on information relating to the representation, In this case, the movie does not relate to the current representation, rather it involves past representations in Adams's career. While Adams could not disclose any information related to those representations without the clients' consents, the acquisition of such media rights is not improper.

Prospective client Corbin comes to the law offices of Lewis&Smith seeking a lawyer to defend him in a civil action for aggravated assault and battery. Law er Lewis agrees to talk preliminarily with Corbin, just to obtain enough background information to decide whether she can defend him. Corbin explains that he has an alcohol problem; indeed, he gets roaring drunk about three nights a week. On the night in question, Corbin said that a loud-mouthed stranger in his neighborhood tavern made a derogatory comment about Corbin's favorite basketball team. Corbin responded by "tapping" the stranger over the head with a pool cue, riot once but four times. At that point, Lewis suddenly realizes that Corbin must be the rotten husband in the hotly disputed divorce and child custody case in which her law partner, Smith, is representing the aggrieved wife. Lewis stops Corbin and tells him that she cannot defend him in the assault and battery case because of Smith's work for Corbin's wife. Corbin responds: "Oh, man, I didn't know that your Smith is her Smith!" With that, Corbin leaves the law office. Which of the following is true?

This question is governed by ABA Model Rule 1.18, which concerns duties to a prospective client—a person like Corbin. The information that Lewis obtained about Corbin's alcohol abuse and his violent response to the stranger's comment could be harmful to Corbin if the wife uses it to help prove that the couple should be divorced and that Corbin should not be given custody of their children. Therefore, Lewis herself could not represent the wife in the divorce and child custody case. [See ABA Model Rule 1.18(c)] Lewis's disqualification is imputed to her law partner Smith. [Id.] However, if the conditions mentioned in (D) are satisfied, then Smith may continue representing the wife. [See ABA Model Rule 1.18(d)(2)] (C) is wrong because it calls for informed, written consent by the wife only. ABA Model Rule 1.18(d)(1) would require informed, written consent by both Corbin and the wife. (B) is wrong because the two matters are "substantially related" [ABA Model Rule 1.18(c)] in that use of the information that Corbin disclosed to Lewis could be harmful to Corbin if used in the divorce and child custody case. (A) is wrong because it ignores the two possible ways that would allow Smith to continue representing the wife. [ABA Model Rule 1.18(d)(1), (2)]

Lawyer Long, three years out of law school, had never set foot in a courtroom. Long was on the board of directors of the Community Nursery School ("CNS"), a nonprofit preschool for underprivileged children. One of the CNS teachers was charged with felony child abuse for allegedly molesting three of the CNS pupils. After conducting its own careful investigation, the CNS board of directors concluded that the criminal charge was totally unfounded, and the board resolved to provide defense counsel for the teacher. Long volunteered to do the work without a fee. A few days before the trial was to begin, Long got cold feet and became convinced that he was incompetent to serve as the teacher's trial counsel. He asked the trial judge for permission to withdraw. After thoroughly questioning Long about his preparation for trial, the judge said: Mr. Long, I understand your anxiety, but you are perfectly competent to handle this case. Your motion to withdraw is denied; I will postpone the trial for seven days to allow you to complete your preparation. Now go do your job. Instead of doing what the judge ordered, Long advised the teacher that he would not defend her. He handed her all of the files in the case and advised her to retain another lawyer. Is Long subject to discipline?

When ordered to do so by a tribunal, a lawyer must continue representation notwithstanding good cause for terminating the representation. [ABA Model Rule 1.16(c)] Even if Long was absolutely convinced of his own incompetence, he is subject to discipline for abandoning the teacher in violation of the trial judge's order. (B) is wrong for the reason stated above. (C) is wrong because a lawyer is not subject to discipline for taking on a case that he is not competent to handle if he puts in the time and study needed to make himself competent to handle it. [See Comment 4 to ABA Model Rule 1.1] Having volunteered to take on the case, Long's duty was to put in the requisite time and study. (D) is wrong because a lawyer's duties of competence, diligence, and loyalty are no lower in a pro bono matter than in a fee-paying matter.

Judge Jackman is a full-time judge in State A. Her father lives in a retirement home in State B. Judge Jackman's father told her on the telephone that several of his friends in the retirement home had employed attorney Abbott to write wills for them, that in each will attorney Abbott had included a bequest to himself, and that each bequest was approximately 50% of the estimated total value of the person's probable estate. The friends told Judge Jackman's father that they did not really want to leave Abbott anything; they had assumed it was merely a matter of routine, a part of the attorney's compensation for drafting the will. Abbott is admitted to practice in State B, but not in State A. Judge Jackman did not talk personally with any of her father's friends, but she believes that her father's rendition of the story is entirely accurate. Would it be proper for Judge Jackman to communicate directly with attorney Abbott about the matter, and if that does not satisfy her, to communicate with the attorney disciplinary authority in State B about the matter?

Yes, it would be proper for Judge Jackman to take the steps mentioned because she has received information indicating a substantial likelihood that Abbott has violated a legal ethics rule. Abbott has apparently violated ABA Model Rule 1.8(c), which generally prohibits a lawyer from drafting a will under which he will receive a substantial gift. A judge who receives "information indicating a substantial likelihood" that a lawyer has violated a legal ethics rule should take "appropriate action," which may include direct communication with the lawyer, direct action, and reporting the violation to the appropriate authority. If a judge knows that a lawyer has committed an ethics violation that raises a substantial question about the lawyer's honesty, trustworthiness, or fitness to practice law, then the judge must inform the appropriate authority. [CJC 3D(2)] (B) is wrong because Judge Jackman does not have "personal knowledge" as that term is used in evidence law. [See CJC, Terminology] (C) is wrong because the duties imposed by CJC 3D(2) are not confined to lawyers in the judge's own jurisdiction. (D) is wrong because "appropriate action" may include direct communication with the lawyer who violated the legal ethics rule. [CJC 3D(2), Commentary]

Solo practitioner Proctor is one of only three lawyers in the small town of Sandy Gulch. Proctor is presently defending client Cridley in a criminal action for assault and battery. This morning one of Proctor's regular clients, the Sandy Gulch Gas & Grocery, asked Proctor to sue Cridley to recover $638.64 that is past due on Cridley's gasoline and grocery charge account. Would it be proper for Proctor to represent the Sandy Gulch Gas & Grocery in the charge account case?

t would not be proper for Proctor to represent the Grocery unless both Cridley and the Grocery give informed, written consent to the representation. A lawyer who is presently representing a client in one litigation matter should not simultaneously oppose that client in a different litigation matter, even if the two matters are unrelated. [ABA Model Rule 1.7(a) and Comment 6] The purpose of the rule is to avoid putting the client into the difficult position of treating the lawyer simultaneously as friend and foe. The conflict can be solved only by the informed, written consent of both Cridley and Sandy Gulch Gas & Grocery. (A) is wrong because the rule prohibiting the representation applies regardless of whether Proctor has obtained relevant confidential information. (B) is wrong because the rule applies even if the two cases are unrelated. (D)is wrong because the conflict is not obviated by the shortage of legal talent in Sandy Gulch.