Barbri PE 2
Alpha Corporation ("Alpha") is incorporated in State A and its principal place of business is located there. It manufactures and sells clothing under the trademark Alpha ® and licenses its trademark to garment makers in other states. Beta Clothing Co. ("Beta") is incorporated in State B and has its sole place of business there. Beta hired a lawyer licensed to practice only in State B to accompany Beta's chief buyer on a trip to State A to negotiate a license to use Alpha's trademark. Beta's lawyer will be negotiating with Alpha's lawyer, who is licensed to practice only in State A. Neither lawyer is licensed to practice before the United States Patent and Trademark Office. If Beta's lawyer travels to State A to negotiate the contract, is she subject to discipline?
(A) No, because admission to practice in State A was not necessary to negotiate the trade- mark license there.
When a lawyer was an associate at a law firm, she did the legal work for one of the firm's clients on a land sale transaction that earned the client millions of dollars. In gratitude, the client asked the lawyer whether she had any unful- filled wishes. The lawyer told the client that she wished she had enough money to start her own solo law practice. The client then told her that he would lend her $100,000 to set up her new practice. In return, she would thereafter do all of his legal work at a 5% discount from her normal hourly fee, and she would pay off the $100,000 loan by monthly payments equal to 10% of her net income for the prior month. The lawyer was delighted. She drafted a complete, detailed agreement between herself and the client, and she advised the client in writing to obtain outside legal advice before signing the agreement. The client obtained the outside advice and signed the agreement, and the lawyer set up her solo practice accordingly. Is the lawyer subject to discipline?
(A) No, unless she allows the client to interfere with her professional judgment in handling work for other clients.
A lawyer is one of only nine lawyers who practice probate law in a particular county. In that county, all probate matters go before a single judge-_the probate judge. The probate judge's duties include appointing counsel for the administrators of intestate estates. Serving as an administrator's counsel can be very lucrative. The incumbent probate judge recently retired. Her custom was to appoint out-of-county lawyers to serve as administrators' counsel, believing that such lawyers are less subject to local political and social pressures than county lawyers. The probate judgeship will be filled in six months in a partisan, contested election, and the lawyer is one of the candidates. The lawyer met jointly with the county's eight other probate lawyers and said he was seeking the probate judgeship, and would be making some important changes, such as appointing only local lawyers as counsel for administrators of intestate estates. He also said that if they'd like to contribute money or time, so please get in touch with his campaign committee via his website. Five of the eight lawyers sent generous monetary donations to the lawyer's campaign committee for the self-confessed purpose of securing legal appointments if the lawyer wins. The other three lawyers volunteered generous amounts of their time in the lawyer's campaign, but their motives for doing so were unexpressed and unclear. Which of the following is correct?
(A) The lawyer is subject to discipline for personally soliciting money and publicly stated support from the eight lawyers. The five lawyers who contributed money will be subject to discipline if the lawyer wins and if they accept appointments from him.
An attorney is licensed to practice law in State A, but he is not engaged in the active practice of law. The attorney and his non-attorney partner operate a temporary placement service for legal secretaries in State B. The attorney performs most of his work for the agency in State A and is not licensed to practice law in State B. Neither does he hold himself out to be so licensed. An investigation by State B authorities results in the discovery that the attorney and his partner have intentionally filed improper state business tax returns. Is the attorney subject to discipline in State A?
(A) Yes, because his actions in State B constitute fraud.
A probate attorney obtained a decedent's coin collection in order to inventory it. The attorney put the coin collection into a heavy brown envelope, labeled it as part of the decedent's estate, put the brown envelope and the decedent's other belongings into the file drawer of his desk, and left for lunch without locking the file drawer. The attorney's secretary saw the coins and saw what the probate attorney did with them. While the attorney was at lunch, the secretary took the envelope of coins and disappeared, never to be seen again. Is the probate attorney subject to discipline?
(A) Yes, because the attorney did not put the coins in a safe place.
A lawyer represented a plaintiff in a personal injury case. While on his way home after the first day of the trial, the lawyer stopped for dinner at the pub down the street from the court- house. A juror walked in, sat at the barstool next to the lawyer, and complimented the lawyer on his opening statement. In an effort to be polite and without any intention of influencing the juror, the lawyer replied, "Thanks. I did my best to explain the scope of my client's injuries— she's had a really hard time since the accident." The lawyer then excused himself and moved to a table. The jury eventually returned a verdict in favor of the plaintiff. Is the lawyer subject to discipline?
(A) Yes, because the lawyer spoke with the juror outside of the official proceedings.
A lawyer is on the in-house legal staff of a large corporation. In that capacity, she works daily with the corporation's top executive officers. She was assigned to defend the corpora- tion in a lawsuit brought by a bank to collect a $750,000 promissory note. The note was signed on behalf of the corporation by its treasurer and chief financial officer. The corporation's defense is that the treasurer had no authority to sign the note and that the bank knew it. The corpora- tion has advised the treasurer that it may seek indemnification from him if it is held liable to the bank. The treasurer is not represented by counsel. Shortly before the treasurer was to have his deposition taken by the bank, he called the lawyer and asked her what to expect at the deposition and how to respond to the bank's questions. What should the lawyer do?
(A)Advise the treasurer to hire a lawyer to represent him at the deposition.
A judge presides over a state trial court. Every six years, trial judges in the state must stand as candidates in a partisan public election to deter- mine whether they will retain their positions. The judge will be a retention candidate in the election to be held nine months from now. In that same election, the judge's husband, an attorney, will be a candidate for lieutenant governor of the state. The state allows judicial candidates to form campaign committees up to a year before the election. Which of the following may the judge do?
(A)Establish a campaign committee that will solicit reasonable contributions for the judge's campaign.
A lawyer is admitted to practice only in one state. One of her regular clients is a corpora- tion incorporated in the same state and has its principal place of business there. The president of the corporation went to another country to negotiate a contract that would be governed by foreign law. He telephoned the lawyer to ask whether a particular provision that he proposed would be lawful under foreign law, and he needed a quick answer because he had to resume negotiations in a few minutes. The lawyer had studied that country's law in school, but warned the president about the danger of relying on off-the-cuff, unresearched legal advice. The president asked the lawyer to do the best she could. She then advised the president that the contract provision would be lawful. The president signed a contract that included the questioned provision. As it turned out, the provi- sion violated that country's law and rendered the contract unenforceable. Is the lawyer subject to discipline?
(A)No, because she did the best she could in an emergency situation.
A law firm represented an oil company in a merger transaction in which the oil company acquired all of the assets of a smaller petroleum company in exchange for a specified amount of capital stock of the oil company. The law firm's work for the oil company was limited to the antitrust and securities law issues raised by the merger, and the firm lawyers who worked on the matter did not become privy to any confidential information concerning the routine operations of the oil company's business. The merger work was completed two years ago, and the law firm has not subsequently represented the oil company in any other matter. Recently, the law firm took in a new partner who had previously practiced as a solo practitioner. One of the cases that the new partner brought the firm from his solo practice was an employment discrimination case in which the new partner's client claims that the oil company fired him solely because of his age. When the new partner joined the law firm as a partner, the oil company promptly made a motion in the trial court to disqualify the new partner and the law firm as counsel for the plaintiff due to the law firm's earlier representation of the oil company in the merger matter. Are the new partner and the law firm subject to disqualification?
(A)No, because the merger matter and the discrimination case are unrelated matters and because the law firm did not gain confidential information from the oil company that would be material in the discrimination case.
An attorney limits her practice to family law. A married couple came to her, hoping to save their marriage. After hearing their story, the attorney explained that she could act as a third- party neutral between them—not representing either one of them, but facilitating their efforts to work through their difficulties. The attorney explained that neither of them would have the protections afforded by an ordinary attorney- client relationship, such as the attorney-client privilege, and both said that they understood. The attorney held a series of meetings with the couple (sometimes with both, and other times with just one). The attorney began each meeting with a reminder that, in the event of later litigation between the husband and wife, the attorney-client privilege would not protect what was said at the meeting. At one of the attorney's individual meetings with the husband, he disclosed that he occasionally used drugs and sometimes used the family's savings to purchase them. Ultimately, the husband and wife were unable to resolve their differences, and the wife sued the husband for a divorce and for custody of their three children. At the custody hearing, the wife's lawyer called the attorney to the witness stand and asked what the husband told her about his drug use. The attorney refused to answer, citing the attorney-client privilege. Which of the following is correct?
(A)The privilege claim should be overruled; if the attorney refuses to answer, she would be subject to litigation sanction. (C)The attorney is subject to discipline for attempting to serve as a third-party neutral in a family law matter.
In an effort to prevent homosexual persons from moving to their small town, a city council passed a zoning ordinance prohibiting the use of any dwelling house as a residence for two or more adults of the same sex unless they are related to each other. Violation of the ordinance is a misdemeanor and carries a fine of $10,000. A landlord who owns several rental houses in the city and does not want his potential renter pool limited hired an attorney to advise him. The attorney advised the landlord that the ordinance could probably be overturned under the state constitution, but that one would have to obtain legal standing to challenge the ordinance. The attorney advised that one way to obtain legal standing would be for a landlord to bring an appropriate action for declaratory judgment, and another way would be to simply violate the ordinance and raise the constitutional challenge as a defense to its enforcement. After receiving this advice, the landlord promptly rented one of his houses to two gay men. The landlord was cited for violation of the ordinance. The landlord subsequently brought an action to challenge the ordinance, and the ordinance was held unconstitutional. Was the attorney's conduct proper?
(A)Yes, because violating the ordinance was one of the few ways to gain legal standing to challenge the constitutionality of the law.
A solo practitioner limits her law practice to two kinds of cases: medical malpractice and products liability. When the solo practitioner turned 67, she began looking for someone to buy her law practice. Ultimately, she sold the medical malpractice part of her practice to lawyer Alpha for $400,000, and she sold the products liability part of her practice to attorney Beta for $250,000. The solo practitioner then retired. Within 30 days after the sales to Alpha and Beta, approximately 40% of the solo practitioner's former clients decided to collect their case files and take their business to different lawyers. Were the sale from the solo practitioner to Alpha and the sale from the solo practitioner to Beta proper?
(A)Yes, even though the solo practitioner sold pieces of her practice to two different buyers, and even though 40% of the solo practitioner's clients left the buyers within 30 days.
An attorney volunteers her legal services one night each week at a county legal advice hotline. The hotline is run under the auspices of the superior court, and it supplies free legal advice by telephone to callers who could not otherwise obtain legal services. Every caller assents to a "Statement of Understanding" at the outset of the call, informing the caller of the limited nature of the legal services that the hotline provides. Eighty-five lawyers volunteer their services as the attorney does. They come to the hotline office at various times on various days, and the volunteers hardly ever see or talk with each other. The nature of the hotline's work makes it impossible for the lawyers to conduct the kind of conflict-of-interest checks that an ordinary law firm would conduct before taking on a new client. One Tuesday night, the attorney counseled a distraught mother about her husband's physical and mental abuse of their school-age children. The attorney told the mother how to seek help from Child Protective Services. On the following Friday evening, a different hotline lawyer volun- teer counseled the mother's husband about how to prevent Child Protective Services from scooping up his children and putting them in a foster home. Because the hotline does not do conflict-of-interest checks, the lawyer who counseled the husband had no way to know that the first attorney had counseled the mother a few nights before. Which of the following is correct?
(B) Both lawyers and the judges of the superior court all acted properly because the hotline cannot do the kind of conflict-of-interest checking that a private law firm would do.
A solo practitioner who does municipal bond work in a single state is nearing retirement age and takes on a young attorney as a partner. Their partnership agreement provides that the solo practitioner will train the young attorney and will receive 75% of the partnership's net earnings during the first three years, and that the young attorney will receive the remaining 25%. The agreement also provides that if the young attorney leaves the partnership before the end of the first three years, he will remit to the solo practitioner 75% of all fees he earns thereafter from municipal bond work in the state. Finally, the agreement provides that if the solo practitioner and the young attorney are still partners when the solo practitioner retires, the young attorney will pay the solo practitioner retirement benefits of $3,000 per month until the solo practitioner's death; in return, upon his retirement, the solo practitioner will turn over to the young attorney all of the partnership assets (including goodwill) .4,nd will not thereafter practice municipal bond law in the state. Are the solo practitioner and the young attorney subject to discipline for entering into this partnership agreement?
(B) No, because the agreement enables the solo practitioner to sell the partnership assets in return for the restriction on his right to practice.
A farmer asked an attorney to represent him in an eminent domain proceeding in which the state sought to obtain a right-of-way across the farmer's land. The attorney had not handled an eminent domain case before, but she planned to make herself competent through diligent research and study. As it turned out, the attorney did not have enough time to do what she had planned, so she associated an eminent domain specialist as her co-counsel in the case. The attorney did not consult the farmer about associating the specialist. The specialist did about 90% of the work in the case, and the attorney did the other 10%. Together they secured a very favor-able result for the farmer, and the attorney sent the farmer a fee bill for a reasonable amount. The farmer paid the bill, and the attorney remitted 90% of the proceeds to the specialist. Is the attorney subject to discipline?
(B) Yes, because she did not consult the farmer about associating the specialist.
An attorney has just opened an office in a town where he does not know many people and has few contacts. The attorney has just heard that a group of townspeople, including a former client, have been arrested and are being held at the county jail for conducting a noisy demonstra- tion outside the local high school to protest an impending strike by the teachers. The attorney strongly believes that the arrests were politi- cally motivated and that the demonstrators have been deprived of their freedom of expression in violation of the First Amendment. He also realizes that he might gain some favorable public exposure if he were to help the arrestees. He therefore goes down to the county jail and offers his legal services, free of charge, to any of the arrested demonstrators who want legal assis- tance. Are the attorney's actions proper?
(B) Yes, because the attorney was offering his services free of charge.
An entertainment lawyer has for many years represented a country music star. One evening, the lawyer and the music star were having a quiet business dinner together at a restaurant. Another diner approached their table and in a loud voice began a vulgar and defamatory tirade against the music star. Everyone in the restaurant heard the entire exchange. While all of the defamatory comments about the music star involved her personal life, about which the lawyer had no real knowledge, he felt that they could not possibly be true. At the music star's request, the lawyer commenced a slander suit against the diner, after spending considerable time reacquainting himself with slander law. In his answer to the complaint, the diner admitted making the allegedly slanderous statements, and as an affirmative defense, he alleged that the statements were entirely truthful. When the case comes to trial, would it be proper for the lawyer to act as the music star's trial counsel?
(B) Yes, because the lawyer is not a necessary witness.
A concerned environmentalist hired a lawyer to obtain preliminary and permanent injunc- tions against a highway construction project that would require draining and filling certain wetlands inhabited by migratory waterfowl. The lawyer is the nation's leading expert in wetland preservation law, and he charges $400 per hour for his services. The environmentalist agreed to pay him at that rate. She gave him a $40,000 advance on attorneys' fees and a $5,000 advance to cover future litigation expenses. The lawyer deposited the entire $45,000 in his client trust account. The lawyer then spent 80 hours preparing and filing a complaint and preparing and arguing a motion for a preliminary injunction. He paid a court filing fee of $50, plus $1,950 in witness fees to wetlands experts who testified at the hearing on the preliminary injunction motion. The judge denied the preliminary injunction motion. The lawyer sent the environmentalist a bill for $32,000 in attorneys' fees and $2,000 in litigation expenses, and he told her he would deduct those sums from the advances she had given him unless he heard from her to the contrary within 15 days. In light of the loss of the preliminary injunction motion, the environ- mentalist was outraged at the size of the lawyer's fee; she immediately fired him and demanded the prompt refund of her entire $45,000. Which of the following amounts must the lawyer promptly refund to his former client, the environmentalist?
(B)$11,000
A lawyer represented a woman in a court proceeding to raise the alimony and child support payments set in the woman's divorce decree. The woman's ex-husband refused to get a lawyer in the matter. The evening before the court hearing, the ex-husband telephoned the lawyer at home and asked the lawyer to explain the legal standard the judge would apply to his wife's request for increased payments. The lawyer responded that she was not his lawyer and could not give him legal advice. She urged him to get a lawyer. . The ex-husband said he did not want a lawyer, and then asked the lawyer whether his wife and the children really needed more money to live on. The lawyer responded that she had no personal interest to serve here—that she was simply trying to do what was best for everyone involved, and that he should pay the extra money because they did need it to live on. The ex-husband thanked the lawyer and hung up. Was the lawyer's handling of the matter proper?
(B)No, because the lawyer pretended to be disinterested and advised the ex-husband to pay the extra money.
A judge is a loyal member of the alumni association of the women's college from which she was graduated. The 25th reunion of her graduating class is coming up, and she has been asked to participate in some activities designed to raise money for a gift from the class to the college scholarship fund. Which of the following activities would be improper for the judge to do?
(B)Telephone other members of her graduating class and urge them to make a donation to the class gift fund.
The mother of a full-time trial judge owns a small business that she wishes to sell. After she and a prospective buyer come to terms on the sale, the buyer has his lawyer draw up a sales contract and presents it to the judge's mother, who asks her son, the judge, to review it for her. The judge agrees, marks up the contract, and returns it to his mother to present to the buyer's attorney. The judge's mother did not tell the buyer that her son reviewed the contract. The buyer has no known reason for being likely to appear in the judge's court. Were the judge's actions proper?
(B)Yes, because he did not charge his mother a fee.
A technology company makes computer chips. It is incorporated in State A and it has a chip manufacturing plant in State B. Recently, the chip manufacturing plant has been afflicted with a rash of employment discrimination claims. The company's general counsel instructs one of the company's lawyers, who is admitted to practice only in State A, to move temporarily to State B, settle all existing meritorious claims, prepare all nonmeritorious claims for trial, and train the managers of the State B plant to comply with federal and state employment discrimina- ion laws. The general counsel knows that the lawyer is not admitted to practice in State B. State B requires out-of-state lawyers to seek pro hac vice admission before undertaking pretrial preparation. May the lawyer do as the general counsel has instructed?
(B)Yes, but because State B requires out-of- state lawyers to be admitted pro hac vice in order to engage in pretrial preparations, the lawyer must seek such admission.
A lawyer represents a defendant in a drug smuggling case. The defendant is in pretrial custody in a distant city and cannot be reached by telephone. One key issue in the defendant's case is on the cutting edge of search and seizure law, and the lawyer believes that he needs help to deal with the issue competently. The lawyer's former law professor is a nationally known expert on search and seizure law, but is not licensed to practice law in that state. The lawyer calls his former professor to ask for help and also asks that the professor keep their conversa- tion confidential. To frame the issue accurately, the lawyer tells the law professor some informa- tion that the defendant revealed to the lawyer in confidence. The lawyer does not tell the professor the name of his client. Is the lawyer subject to discipline for disclosing the defendant's confidential informa- tion to the professor?
(C) No, because the disclosure was necessary to effectively carry out the representation.
Solo practitioners Alpha and Beta share office space. Each of them has organized her practice as a professional corporation. The sign on their office door reads: Attorney Alpha, P.C. Personal Injury Law Attorney Beta, P.C. General Practice Alpha and Beta frequently consult each other about their respective cases, and they often refer clients to one another. Sometimes they work on cases together under a fee-sharing arrangement. When one of them is out of the office, the other responds to client inquiries to the extent that she is able, and to facilitate that practice, each attorney has physical access to the other's client files. A plaintiff hired Alpha to sue a bakery for personal injuries he sustained when he bit into a piece of glass in a dinner roll baked by the bakery. The bakery's liability insurance carrier asked Beta to serve as defense counsel in the case. Alpha and Beta each disclosed her relation- ship with the other to their clients, and the plain- tiff, the bakery, and the insurance company each gave written consent to Beta's serving as defense counsel. May Beta take the case?
(C) No, even though Alpha and Beta believe that they can effectively represent their respective clients.
A lawyer takes on a client who was hit by a car and was unable to work for 18 months. At the client's request, the lawyer agreed to repre- sent the client on a contingent fee basis. The client requested that the lawyer provide him with certain financial assistance during the pendency of the lawsuit. The lawyer agrees to provide a $20,000 loan, in an agreement reviewed by independent counsel. The $20,000 would cover $5,000 to support the client's family, $5,000 for the client's medical treatment, $5,000 to retain an expert witness, and $5,000 for job training. Which of the following was proper?
(C) The $5,000 to pay the expert witness fee.
A family-owned chemical company receives information that some of its sales associates may have entered into price fixing agreements. in violation of federal antitrust laws. The shares of the chemical company are not publicly traded, and the company is not subject to the jurisdiction of the Securities and Exchange Commission. The general counsel of the corporation hires an outside antitrust lawyer to investigate the matter. The antitrust lawyer and her associate investi- gated the matter and discovered that some of the sales associates had indeed entered into agree- ments that could make the corporation civilly and criminally liable under the antitrust laws. The antitrust lawyer reported these findings and her antitrust advice in a confidential letter addressed jointly to the company's chief executive officer and the general counsel. The general counsel wrote back, asking the antitrust lawyer to stand by to defend the company if needed. Months went by, and the antitrust lawyer heard nothing more. Her associate grew restless, and without telling the antitrust lawyer, he told a friend in the Justice Department what the company's salespeople had done. The Justice Department began a price fixing investigation of the company and its competitors. Which of the following is correct?
(C) The associate is subject to discipline for tipping off the Justice Department, but the antitrust lawyer's conduct was proper.
An attorney is defending her client in a civil fraud case in which it is relevant to know what advice the client received in confidence from an independent certified public accountant. The jurisdiction has no evidentiary privilege for confidential communications between accountants and their clients. The accountant telephoned the attorney and asked how he should respond to the plaintiff's lawyer's request to speak with him privately about the case. Reason- ably believing that the accountant would not be harmed by refusing to talk informally with the plaintiff's lawyer, the attorney responded that if the plaintiff's lawyer subpoenaed him to testify, then he must do so, but encouraged him not to talk to the plaintiff's lawyer about the case unless under subpoena.
(C) Yes, because the accountant acted as the client's agent in rendering accounting advice to the client.
An attorney is a partner in a four-partner law firm. A client entrusted $40,000 to the attorney, instructing the attorney to hold it in safekeeping for a few days and then to use it as the down payment on a piece of lakefront property. The attorney promptly deposited the money in his law firm's law office account, a special bank account that the firm uses to pay the office rent, pay staff salaries, advance litigation expenses on behalf of clients, and the like. A few days later, when it was time to make the down payment, the attorney discovered that one of his law partners had made two large withdrawals from the law office account, reducing the account balance far below the $40,000 needed for the client's down payment. The client's attorney was unable to come up with other money to make up the difference, and the client thus lost the chance to buy the lakefront property. Is the attorney subject to civil liability to the client for mishandling the money?
(C) Yes, because the attorney mishandled the money and is therefore civilly liable to the client for breach of his fiduciary duty.
A federal prosecutor is stationed in State A and is gathering evidence to support federal racketeering charges against a swindler. The prosecutor believes in good faith that a wealthy banker in State B.has personal knowledge about three federal felonies committed by the swindler, but the banker will not disclose what he knows. The prosecutor discovers from a secret infor- mant that the banker illegally drained off $4.7 million from a failing State B bank—a state felony punishable by 10 years in prison. The prosecutor therefore mails a letter from his office to the banker, stating in relevant part: "I am coming to State B next week. If you don't give me what I need concerning the swindler, I am going to tell the State B prosecutors what you did to that bank." Is the federal prosecutor subject to criminal liability because of his evidence-gathering technique?
(C) Yes, because the federal prosecutor made an interstate threat to accuse the banker of a crime for the purpose of extracting valuable information that he could use against the swindler.
A law student is applying to become a member of the state bar. The bar application questionnaire asks whether the applicant has ever used any illegal drug in violation of state law. When the law student was in high school, she occasionally smoked marijuana, which is a misdemeanor under state law. However, the statute of limitations has run on these incidents, and the law student believes that she could not validly be kept out of the state bar for those offenses. She therefore believes that the question is irrelevant and an invasion of her privacy in violation of the state constitution. She fears, however, that challenging the question could brand her as a troublemaker and delay her admission to the bar. Which of the following would be proper?
(C)Decline to answer the question, citing the state constitution's privacy provision.
Attorneys Alpha and Beta have been law partners for six years. Beta was suspended from practice for one year based on an inten- tional tax law violation. Alpha took over Beta's clients when his suspension went into effect. Shortly before his suspension, Beta had negoti- ated a $30,000 personal injury settlement with an insurance company on behalf of his client. Two weeks after the settlement was reached, the insurance company sent a $30,000 check to the law offices. By this time Beta's suspension had gone into effect. Alpha placed the check in the proper firm account and confirmed the amount of the fee with Beta's client. Alpha then promptly forwarded a $20,000 check to the client and a $10,000 check to Beta, the latter check representing Beta's one-third contingent fee. Is Alpha subject to discipline?
(C)No, because Beta earned the fee prior to his suspension.
A lawyer is interested in obtaining legal business from a mineworkers' union that has many members in the state in which the lawyer practices. As a result of a recent mine fire and explosion in which several union members were killed, the union has succeeded in persuading the appropriate state agency to bring an adminis- trative action against the company that owns the mine for failing to install smoke detectors, which might have saved some lives in the disaster. Although the lawyer is in no way involved in the case, he sees this as an opportunity to obtain future business from the union by showing the union that he is strongly on its side in the mine disaster case. The lawyer telephones a popular call-in radio show, and says that he is shocked and appalled at the callousness of the mining company that caused the recent disaster in which so many miners were killed. He further opines that the mining company was willful and wanton in its failure to install smoke detectors, and expresses hope that the company will not be allowed to escape the consequences of its despi- cable conduct. Without the lawyer's knowledge or consent, his statement was later printed in several news- papers in the state. Is the lawyer subject to discipline for his conduct?
(C)No, because he did not make any false or misleading claims about himself or his services.
For many years, a tax attorney has handled all of the tax work for his client, a sculptor. One evening, the sculptor invited the attorney to his studio to discuss some tax returns that had to be filed the next day. In the studio, the attorney saw a small sculpture that would be perfect for his office. At the close of their tax discussion, the attorney offered to buy the sculpture for $10,000, its approximate fair market value. The sculptor told the attorney that it was not for sale. In due course, the attorney sent the sculptor a bill for a $750 fee for the tax work. A few days later, the small sculpture was delivered to the attor- ney's office with a note from the sculptor, saying that he hoped the sculpture would satisfy the recent bill, and he wanted the attorney to have the sculpture as a token of his gratitude for the excellent tax advice. Would the attorney be subject to discipline for accepting the small sculpture from the sculptor?
(C)No, because the attorney did not solicit the gift.
A lawyer is the head of the in-house law department of a children's clothing company, which has its principal place of business within the state. Under state law, it is a felony to manufacture or sell children's sleepwear that is not fire retardant. The president of the company informed the lawyer in confidence that the company is stuck with a whole warehouse full of children's pajama fabric that does not meet the state's fire standards, and that to avoid financial disaster, the company will use the fabric to make children's sleepwear and take its chances on legal liability. The lawyer was unable to convince the president to change his mind; she then raised the issue with the company's board of directors, which ratified the president's decision. Will the lawyer be subject to discipline if she resigns as house counsel and reports the matter to the appropriate state law enforcement authorities?
(C)No, because the lawyer is entitled to reveal this type of confidential information.
A bank operates a professional referral hotline for its depositors. Any bank depositor who needs to find a physician, lawyer, accountant, dentist, or the like can telephone the hotline and obtain a free referral from lists of professionals compiled by the bank. The lists are limited to profes- sionals who maintain an average balance of at least $10,000 in an account at the bank, but the professional does not pay a fee to the bank for receiving a particular referral. A lawyer keeps $10,000 on deposit with the bank for the express purpose of being included on its lawyer referral list. Is this arrangement proper?
(C)No, because the lawyer is required to keep $10,000 on deposit to be included on the list.
An attorney was appointed by the court to defend a client at his criminal trial for second degree murder. The attorney started interviewing potential witnesses. When she interviewed the client's landlord, the landlord said that on the night of the murder, the client came home very late and was wearing a shirt covered with blood. The landlord died before trial without speaking to state authorities. Which of the following best states what the attorney should do with respect to the informa- tion she has learned from the landlord?
(C)The attorney should keep the information in confidence unless the client authorizes her to reveal it, even though the death of the landlord has made it impossible for the prosecutor to obtain the information in any way other than from the attorney.
An attorney and her client endured a stormy attorney-client relationship until the attorney finally withdrew due to the client's repeated refusals to pay the attorney's fee bills. At the end of the relationship, the client owed the attorney more than $10,000. The client said he would not pay because the attorney's legal services were - "defective." In a final effort to avoid having to sue the client for the unpaid fees, the attorney proposed a settlement agreement to the client. Under the proposed agreement, the attorney would accept $4,000 as full payment, reserving the right to sue the client for the other $6,000 if the client filed a State Bar disciplinary complaint against the attorney or filed a legal malpractice action against the attorney. The client signed the settlement agreement without consulting outside counsel, and the attorney did not suggest that he should consult outside counsel before signing it. Is the attorney subject to discipline for entering into the settlement agreement with the client?
(C)Yes, because the attorney did not advise the client to seek outside counsel before entering into the settlement agreement.
Continuously since 1910, the law firm of Alpha & Beta has practiced under that name. The founders of the firm are long dead. No partner named Beta now practices with the firm. Two partners named Alpha were practicing with the firm, but one recently left because she was appointed to the state supreme court. May the firm continue to use the name Alpha & Beta?
(C)Yes, unless the firm name would be misleading.
A client made a preliminary contact with a lawyer to see if she wanted to hire the lawyer to defend her in a tort case that had been assigned to a judge. The lawyer told the client that the initial consultation was free of charge. After listening to the client's brief outline of the case, the lawyer told her that she knew how to get a favorable decision from that judge. She said that he would be running for re-election 18 months from now, and he would need money for his campaign. She advised the client to send him a $2,000 campaign contribution now, with a nice note wishing him well in his bid for re-election. She explained that the judge's opponent in the election would be a local lawyer, and that although the local lawyer was an honest fellow, his two brothers were associated with organized crime. The lawyer offered to write a guest editorial for the local paper, praising the judge's judicial record and implying that the local lawyer was a crook. With the contribution and the letter, the lawyer said she thought they could count on the judge to reach a wise decision in the client's case. The client hired the lawyer and sent the judge the $2,000. The lawyer wrote the guest editorial, and it was published in the local paper. For which of the following is the lawyer not subject to discipline?
(D) Accepting the case after giving free legal advice.
A public defender was assigned to represent a defendant at the defendant's preliminary hearing on a charge of kidnapping for ransom. Against the public defender's advice, the defendant testified on his own behalf at the preliminary hearing. The defendant was bound over for trial. At that point, the defendant's brother provided money to hire a private lawyer to represent the defendant, and the public defender was discharged. The defendant testified on his own behalf at the trial, and the matter concluded after the jury acquitted him. Later, in connection with his work on another matter, the public defender read the transcript of the defendant's trial. Based on information the public defender learned while representing the defendant, the public defender concluded that the defendant had committed perjury, both at the preliminary hearing and at the trial. However, the public defender does not believe that the defendant poses a danger to the community. May the public defender reveal the defendant's perjury?
(D) No, because disclosure would violate the public defender's duty of confidentiality.
A private adoption agency handles over 65% of all private adoptions in the state in which the agency is located. The agency provides each set of prospective adoptive parents with a list of lawyers whom the agency recommends and tells them that it is in their best interest to obtain a lawyer experienced in adoptions. The agency has investigated each lawyer on its list to ensure the lawyer's experience and reputation for honesty and ethical behavior. To further protect prospective adoptive parents, the agency also requires each lawyer on the list to agree not to withdraw from any case where he has been retained by parents adopting through the agency. A lawyer who has handled many private adoptions and is highly regarded as an honest and competent lawyer would like to be placed on the agency's list. Would it be proper for the lawyer to sign the agreement and have himself included in the list?
(D) No, because the agreement allows a third party to exercise influence over the lawyer- client relationship.
A young associate was assisting a senior partner in writing the reply brief in an appeal for one of the partner's clients. In doing the legal research, the associate discovered a recent case from the controlling jurisdiction that had not been cited in the adversary's brief. In the associate's opinion, the case was directly opposed to the position of the partner's client. The associate asked the partner about citing it in the reply brief, but the partner explained that, in his view, the case was not directly on point and did not have to be cited. The associate and the partner argued back and forth at some length and finally decided to submit the question to one of the other senior partners in the firm for a fresh view. That partner sided with the other partner, and the reply brief was filed without mentioning the case. May the associate write a short letter to the appellate court and the adversary lawyer, explaining his position and enclosing a copy of the case?
(D) No, because the associate should abide by the partner's resolution of the matter.
An attorney is admitted to practice only in State A, where he specializes in securities and real estate finance law. In that role, the attorney advised his client that the law of State B did not require the client to include information about certain mineral rights in a disclosure statement that the client had to file in State B in order to sell some real estate limited partnership inter- ests to State B citizens. Acting on the attorney's advice, the client did not disclose the informa- tion and did sell partnership interests to State B citizens. Later, the attorney became a full-time trial court judge in State A. Later still, State B brought a criminal action against the client for failing to disclose the mineral rights information in his State B disclosure statement. One of the client's defenses is that he lacked the necessary criminal intent because he was acting in good faith based on the advice of his counsel, the attorney who is now a judge. The client needs the judge's testimony to prove that the judge did indeed advise him that he was not required to disclose the mineral rights information. The judge, in State A, is beyond the subpoena power of the State B court. May the judge voluntarily testify on behalf of the client?
(D) Yes, because his testimony would concern the giving of the advice, not his client's character.
An attorney practices sports law, primarily representing professional women's basketball players in contract negotiations and other kinds of civil matters. The attorney also serves as a sports agent for a number of clients, taking steps to advance their careers in every way possible, such as team placement, public relations, product sponsorship, and the like. The attorney uses a single office for her law work and her sports agent work, but she charges her clients separately for the two types of work. For her sports agent work, she charges a flat annual fee that she negotiates with the client once a year. For her law work, she charges the client by the hour at a reasonable hourly rate. The attorney is lawyer and sports agent for two players on the local basketball team, Alpha and Beta. Both women are excellent players, and both are well-educated, well-spoken, photogenic, and popular with fans. A local bank approached the attorney, expressing interest in signing up Alpha to serve as the bank's spokeswoman. The attorney responded that Alpha would fit the bank's needs well, but that Beta would be an equally good fit and would do the work "for substantially less money." In due course, the attorney served as Beta's lawyer in negotiating an 18-month exclusive sponsorship contract with the bank. Is the attorney subject to discipline?
(D) Yes, because the attorney does not keep her sports agent work clearly distinct from her lawyer work, and therefore she must follow the lawyer conflict of interest rules in both kinds of work.
A worker sued his employer, claiming that he was permanently and totally disabled due to a back injury he suffered on the job. The employer's lawyer strongly suspected, but had no proof, that the worker continued his hobby of skydiving after the alleged back injury. In due course, the employer's lawyer met with the worker's lawyer for a settlement discussion. The employer's lawyer told the worker's lawyer that they had movies of the worker jumping out of an airplane two weeks after his purported injury. The worker's lawyer excused herself to make a telephone call to the worker. When she asked the worker whether he had been skydiving after the accident, he admitted that he had. With the consent of their respective clients, the two lawyers then settled the case for $400. Is the employer's lawyer subject to discipline?
(D) Yes, because the employer's lawyer lied about having movies.
A justice was on the state supreme court. The state's supreme court rules provide that in capital punishment cases, any one justice of the supreme court is empowered to grant a stay of execu-tion pending appeal to the supreme court. The justice granted such a stay in a recent criminal case, on the ground that the defendant had been denied the effective assistance of counsel at his trial. A few months later, the justice retired from the supreme court and went back to private law practice. In due course, the supreme court heard the appeal in the case, rejected the defendant's effective assistance of counsel contention, and affirmed the death penalty. The defendant' then commenced a federal habeas corpus proceeding in an appropriate federal district court and asked that court toappoint a private lawyer to represent him. The district court appointed the retired justice to represent the defendant. A key issue in the habeas corpus proceeding is whether the defendant was deprived of the effective assis- tance of counsel at his trial. May the retired justice represent the defendant without getting informed consent, confirmed in writing, from all parties to the habeas corpus proceeding?
(D) Yes, because the respondent in the habeas corpus case is the prison warden, not the state.
A lawyer in a partnership died, leaving his daughter, a doctor, as his sole heir. Under the partnership agreement, the firm plans to make the following payments to the deceased lawyer's daughter: $100,000, which represents the decedent's share of the firm's assets, as measured by his capital contribution; $45,000, which represents the decedent's share of fees that had been earned but not collected from clients at his death; and a $125,000 death benefit, representing a percentage of the decedent's earnings the year prior to his death, and payable in 12 monthly installments. Under the Model Rules, which of the following represents the most that the firm may properly pay to the decedent's daughter?
(D)$270,000, which includes the decedent's share of the firm's assets, his share of uncollected fees, and the death benefit.
An inventor asked a patent lawyer to represent him in obtaining a patent on a new computer technique for predicting the growth patterns of tumors in the human body. The lawyer informed the inventor that he had never worked on that kind of patent application before, and that he would have to do extensive background research on the patentability of computer techniques. The lawyer will be able to use the knowledge that he gains through the research to serve other clients who wish to obtain patents for all manner of other computer techniques. The lawyer offered to do the work for the inventor for his standard hourly rate, but the inventor proposed instead to assign the lawyer a 10% interest in the patent, if and when it was issued. The lawyer agreed to do the work on that basis, and he and the inventor entered into an appropriate written fee agreement. The lawyer did the work; the patent was ultimately issued and proved so valuable that the lawyer was able to sell his 10% interest for $9:7 million (which was a reasonable fee for the work performed). Is the lawyer subject to discipline?
(D)No, because $9.7 million is not an unreasonably high fee for the work that the lawyer did.
A man walked into a lawyer's office and explained that he is a dealer of illegal drugs, that one of his sales associates has just been arrested, and that he would like the lawyer to defend the sales associate. The drug dealer offered to leave a $10,000 retainer comprised of a shoebox of $100 bills. The lawyer was uncertain about getting involved with the drug dealer and especially about accepting a large sum in cash from the dealer. The lawyer told the dealer that he would think about his request and would let him know later that day. When the drug dealer left the office, the lawyer telephoned his friend and mentor, a retired judge. The lawyer told the judge the entire story, including the dealer's name, and asked the judge whether it would be ethical to defend the sales associate and accept the dealer's cash. Is the lawyer subject to discipline for telling the judge the whole story?
(D)No, because the ethical duty of confidentiality has an exception that allows a lawyer to reveal confidential information to obtain legal ethics advice.
A full-time trial judge, in addition to her judicial work, is the chief executive officer of a corporation that is closely held by the judge and her three brothers. The corporation owns and operates a nursing home. Because of strong anti-homosexual religious beliefs on the part of residents, the nursing home does not employ gays and lesbians. The judge's responsibilities for the corporation do not interfere with her judicial duties. Is it proper for the judge to continue as chief executive officer of the corporation?
(D)No, because the nursing home practices employment discrimination against gays and lesbians.
An attorney recently opened his solo law practice in a small town. His practice is fairly evenly divided between civil litigation and criminal defense. The Superior Court has just appointed the attorney to represent two defen- dants, who will be tried jointly for their alleged kidnapping and brutal murder of nine local school children. Which of the following is not a valid reason for the attorney to decline the appointment?
He believes many of his potential clients will be outraged if he represents the two defendants.
A client sought the advice of a lawyer on a difficult and sensitive family problem. The client suspected that her husband had been molesting the client's 12-year-old daughter by a prior marriage. The client asked the lawyer what she should do. The lawyer advised the client that all three members of the family should consult a licensed family counselor who specializes in precisely this sort of problem. Fearing that if the client were aware of the law she would not seek counseling, the lawyer purposely failed to tell the client that a new state statute requires family counselors to report to the district attorney all instances of suspected child abuse. The client and her family consulted the family counselor, and the family counselor reported the matter to the district attorney, as she was required to do by law. The district attorney commenced criminal proceedings against the client's husband, much against the wishes of both the client and her daughter. Were the lawyer's actions proper?
No, because a lawyer should fully advise a client of relevant information.
An attorney worked at the United States Department of Labor and was responsible for compiling certain corporate safety records into an annual report containing the accident statis- tics. The report is used internally and in discus- sions with companies, but it is not distributed to the general public. However, a person may obtain a copy of the report by filing a formal request under the Freedom of Information Act. During the last three years, Company A has had more accidents than any of the other reporting companies. Six months ago, the attorney left the Labor Department and took a job with a private law firm. Recently, a person came to the attorney seeking representation in a suit against Company A for injuries he sustained while working at Company A's factory. The attorney agreed to represent the client.
No, because the information is available by formal request under the Freedom of Infor- mation Act.
A lawyer was assigned by the court to defend an indigent teacher at her murder trial. The jury convicted the teacher, and she was sentenced to 40 years in prison. The lawyer's court appoint- ment expired at the end of the trial, but he promised the teacher that he would represent her without cost in taking an appeal from her conviction. The lawyer advanced $350 on the teacher's behalf to cover the expenses of the appeal, knowing that the teacher would probably not be able to pay him back. While the appeal was pending, the teacher wrote the manuscript for a book about life in a women's prison. She hired the lawyer to negotiate a contract with a publisher to have the book published, and in return for the contract work, she promised to pay the lawyer 30% of the royalties from her book. Is the lawyer subject to discipline?
No, unless 30% of the book royalties is unreasonably high for the contract negotia- tion work.
The state bar certifies specialists in nine fields of law, one of which is tax law. An attorney has not yet earned her certificate of specialization in tax law, but she is working toward that goal. The attorney's ad states that she is a specialist in tax law, and that tax law is a field in which the state bar grants certificates of specialization. The attorney limits her practice to tax matters; she refers all other kinds of legal matters to a solo practitioner in general practice. The solo practitioner, in turn, refers all tax matters to the attorney. Without exception, the solo practitioner and the attorney have followed that pattern of referrals for five or six years; they have no formal reciprocal referral agreement, but each invariably follows the pattern, expecting the other to reciprocate. Which of the following most correctly describes the attorney's situation?
The attorney is subject to discipline for her ad, and her referral relationship with the solo practitioner is improper because it would need to be nonexclusive, and the two lawyers would need to disclose it to referred clients.
A defendant asked a lawyer to defend him in a criminal case in which the defendant was charged with running a gambling operation. The defendant was known in the community as a wealthy person, but one who seldom kept his word and seldom paid his bills. The lawyer agreed to do the necessary work for a flat fee of $5,000, which was reasonable in light of the difficulty of the case and the number of hours required. However, the lawyer required that the defendant pay $3,000 in advance. When the defendant protested that he did not have that amount available in ready cash, the lawyer accepted the defendant's full-length fur coat in lieu of the cash advance. The fair market value of the coat is $3,000, and the lawyer agreed to return it upon payment of his fee. Their agree- ment was reduced to writing and signed by both parties. After the lawyer had put in considerable time in preparing the case for trial, the defendant fired the lawyer for no good reason and refused to pay him anything for the work already done. Assuming the reasonable value of the lawyer's services to date is $4,000, which of the following statements is correct?
The lawyer is not subject to discipline because all of his described conduct was proper.
A paralegal works for the law firm of Alpha & Beta. Her direct supervisor is partner Alpha, whose practice is limited to international trade law. Partner Beta is the firm's leading trial lawyer, both in commercial and personal injury cases. On her way to work one morning, the paralegal saw a pedestrian run down in a cross- walk by a speeding car. The paralegal rendered first aid, and while she was waiting with the pedestrian for the ambulance, the paralegal provided the pedestrian with a business card and urged him to call the firm to obtain legal repre- sentation in connection with his injuries. When she got to work, she told partner Alpha what she had done. Alpha admonished the paralegal not to hand out the firm's cards in such situations, but he did not discuss the matter with partner Beta. Is Alpha subject to discipline?
Yes, because he failed to warn Beta not to take the pedestrian's case.
For three years, an attorney was a partner in a law firm. During that period, the attorney represented a client, Alpha, in obtaining a business loan from a bank. Alpha disclosed to the attorney a great deal of confidential informa- tion about his business and his personal assets. No other attorney in the law firm gained access to that confidential information. Recently, the attorney died. Shortly thereafter, Beta asked the senior partner of the law firm to represent him in a civil suit for serious personal injuries Beta suffered when he was run over by a delivery truck driven by one of Alpha's employees. Would it be proper for the senior partner to represent Beta?
Yes, because neither the senior partner nor any other attorney in the law firm gained access to Alpha's confidential information.
After a series of brutal muggings, the police captured a person whom they charged with the crimes and the person was eventually ordered to stand trial. Two days before jury selection for the case began, a local newspaper reporter cornered the prosecutor, a district attorney, in a cafe. The district attorney said she was certain the defen- dant was the right man because, among other things, they had discovered that he was previ- ously convicted three times for brutal muggings in other states.
Yes, because the district attorney should have known that the statement would be quite likely to prejudice the trial.
