PACE UNIVERSITY SCHOOL OF LAW

PROFESSIONAL RESPONSIBILITY

PROFESSOR HUMBACH May 14, 2003

FINAL EXAMINATION TIME LIMIT: 3 HOURS

IN TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE SCHOOL OF LAW RULES AND PROCEDURES FOR FINAL EXAMINATIONS. YOU ARE REMINDED TO PLACE YOUR EXAMINATION NUMBER ON EACH EXAMINATION BOOK AND SIGN OUT WITH THE PROCTOR, SUBMITTING TO HIM OR HER YOUR EXAMINATION BOOK(S) AND THE QUESTIONS AT THE CONCLUSION OF THE EXAMINATION.

DO NOT UNDER ANY CIRCUMSTANCES REVEAL YOUR IDENTITY ON YOUR EXAMINATION PAPERS OTHER THAN BY YOUR EXAMINATION NUMBER. ACTIONS BY A STUDENT TO DEFEAT THE ANONYMITY POLICY IS A MATTER OF ACADEMIC DISHONESTY.

This is a closed book examination.

GENERAL INSTRUCTIONS:

This examination consists of five fact situations. You are to provide responses with respect to any four of these fact situations. Please indicate on the front cover of your Examination Booklet the number of the question you have chosen not to answer. (If you answer all five questions, your grade will be based on only the first four.)

The questions are to be answered in the Examination Booklets that are provided. Please clearly number your answers.

For each of the fact situations, your task is this:

First, identify the professional and ethical issues raised, and make a numbered list.

Second, after you have made your numbered list of issues, briefly state how you would resolve each of the issues you identify, giving the reason(s) why. Be sure to number each of these brief explanations with the same number as on your list of issues, to be sure that I will understand what you are talking about.

You will be graded on the quality of the explanations that you give for your suggested resolutions, not on how you think the issue would be resolved. If you think there is a strong argument or consideration weighing against the position you take, state it. Remember to keep your reasons on point. Do not circle around your point. Aim for the bull's eye. Otherwise, you will risk running out of time. You have about 35-40 minutes per fact situation, plus about a 1/2 hour of reading time.

I.

Fred Gordon agreed to represent Holly, who is accused of burglary, along with an accomplice. The alleged accomplice, Fairbanks, is represented by David Reardon. It is Gordon’s policy never to ask a client whether he actually committed the crime charged and, in fact, he has told Holly several times that he “doesn’t want to know.” Gordon thinks the prosecution’s case is fairly strong, and he strongly urges Holly to plead guilty to a lesser charge (possession of stolen property), rather than run the risk of conviction of the “big one,” which carries a prison term of up to 15 years. However, Holly refuses to accept any plea bargain and wants to plead not guilty. Gordon’s response has been to tell Holly, in effect, that he’d better be ready to accept a plea deal when offered by the prosecutor (meaning plead guilty to the lesser offense) “or else.”

Both Holly and his alleged accomplice, Fairbanks, are skinheads. Fairbanks even has some virulently racist tattoos on his arm and shoulder. Holly wants Gordon to take the position that Holly and Fairbanks were “set up” by the principal investigator, a certain Detective Neal Parks, who happens to be an African-American. In fact, Fairbanks has told his own lawyer, Reardon, that during the police interrogations Parks made a number of statements along the lines: “You lousy ___ing skinheads think you can get away with ___ing anything. But I’m going to show you who’s on top. If I say you’re going to jail you’re ___ing going to jail. I can get the evidence on you, all that I need. No problem. You can be sure of that.” Reardon has proposed using the theory that Parks was under political pressure to solve a long string a burglaries and he saw Holly and Fairbanks as suitable targets (in more ways than one), on which he could pin the crimes.

Gordon has great reservations about Reardon’s proposed strategy. For one thing, Holly never mentioned that Parks engaged in any such inappropriate behavior until he heard that Fairbanks claimed that it happened. It was then, suddenly, that Holly “remembered” a whole bunch questionable remarks that he said Parks had made. When Gordon asked Reardon how the subject of Detective Parks’ alleged behavior came up, Reardon replied as follows: “Well, I asked my guy if he recalled anything like that from Parks. I told him it could be very helpful to his defense if we had evidence that Parks acted out of improper motivations—maybe getting the jury to believe that he was just trying to pin the crime on the nearest handy bigot. Out it all came.”

For another thing, Gordon has always respected Parks as being a straight-shooter, not a person likely to let emotions get in the way of his job. Gordon’s daughter was in Girl Scouts with Parks’ daughter and Gordon is personally repelled by the idea of mounting a personal vilification of Parks. Gordon is personally a civil libertarian, and got into criminal defense partly because he dislikes bigots like Holly and tactics like Reardon’s. He doesn’t want to be associated with them in the public mind. He’s got to admit, though, that Reardon may be on to something. Tearing down Parks’ credibility may be the only way to get Holly off.

Just to add to Gordon’s problems, two nights ago he attended a mandatory CLE on professional ethics, where he learned about a lawyer who was recently disbarred for failing to report another lawyer’s misconduct to the disciplinary authorities. Although Gordon believes that the story of Parks’ alleged remarks was planted by Reardon in Fairbanks’ mind, Gordon is not sure he wants to report this to the bar authorities. Testimony concerning those remarks might do his client a lot of good. At any rate, Holly is convinced. “If you don’t let me plead not guilty and go after Reardon,” he says, “you’ll be denying me effective assistance of counsel”

II.

Eaton was engaged by Good Hands Insurance Co. to represent one of its insureds, Norbert, who was being sued by Melanie Branch in an automobile personal injury case. The case had arisen out of a three-car crash. Norbert’s car had been banged up pretty badly, and required $6000 of repairs. However, Norbert’s policy with Good Hands did not include collision coverage, and Eaton regarded Norbert’s repair bill as basically none of his concern.

Eaton’s strategy in the personal injury case was to take the position that the third driver (who had run a red light) was primarily responsible for the crash. Indeed, based on the evidence at hand, it appeared fairly easy to prove that the third driver was primarily responsible for the all the damage that had occurred.

The plaintiff, Melanie Branch, was represented by Warren Justinius in her action against Norbert and the third driver. After a flurry of initial activity, Justinius went quiet. He had taken his most recent deposition approximately two years before and he had done nothing “visible” concerning the case ever since. About 10 months ago Eaton telephoned Justinius and offered a $25,000 settlement “to let Norbert out of the case.” Justinius said that offer was way too low (the complaint demanded $400,000). Moreover, he added, he would soon be putting in papers to bring the matter to trial. Eaton never heard back on his offer and, in fact, Justinius never communicated the offer to Branch. Almost another year elapsed with nothing more happening. Eaton recently made a motion to dismiss the case for failure to prosecute. The motion was granted.

The next thing Eaton hears is that Branch has a new lawyer, Corinth, who has moved to reopen the case. Eaton called Corinth made another offer of settlement, this time for $10,000. Corinth accepted on the spot. Then the next thing Eaton hears is that Branch has still another lawyer, Usery. This new lawyer has pressed the pending motion to reopen the case on the ground that Justinius was incompetent and lacked diligence in pursuing Branch’s claims. Usery also contends that Corinth had no authority to accept Norbert’s settlement offer of $10,000, and so (he says) so-called settlement releasing Norbert is “simply irrelevant.” He asserts that Norbert is still very much in the case.

III.

Thomas Becker was riding in a taxi with a business client, Donner, whose company (Mason Foundry Co.) was experiencing financial difficulties. Donner was a middle manager for the company, and he was in charge of the company’s Smithfield operation. Although Becker is technically retained as attorney for the company, not just the local operation, in practice virtually all of Becker’s dealings are with Donner and other local management personnel.

In the midst of a conversation about ways to keep the Smithfield operation’s creditors at bay, Donner asked Becker: “Can I tell you something confidentially?” Becker nodded his head at the taxi driver, who could overhear everything they were saying, but Donner pressed on. “Some of the sales contracts that I showed the accountant aren’t exactly for real.” Becker asked: “What do you mean ‘not for real?’” Donner replied: “I mean that I ginned them up myself. They don’t represent real sales.” Becker expelled a deep sigh. He nodded once again, indicating the presence of the driver, but Donner was undeterred. “Nobody will find out, though,” he continued. “Business is picking up really fast now and, when I get real sales contracts, I just pre-date them and replace the phonies.”

Becker was appalled. Donner had to submit the accountant’s monthly interim statements to the bank in order to keep a revolving line of credit, which the Smithfield operation depended on. But Donner assured Becker that he was only going to keep up with the phony contract routine until the large bunch of expected orders came in. Then he wouldn’t have to do it any more. Becker wasn’t sure what to do next.

A couple of days later, Becker was in Donner’s office and Donner showed him several of the phony contracts. “I guess we can throw these away now,” Donner said with a smile. “I have now real contracts to replace them.” Becker replied: “Let me see those.” Becker eventually left Donner’s office with the phony contracts in his briefcase. Two days later Becker received a subpoena for a deposition in an action by one of Mason Foundry’s trade creditors (not the bank). The subpoena did not mention the phony contracts, but Becker is afraid he might be asked under oath if he has any reason to believe that Donner is obtaining credit on false pretences (fraud). If so, he wonders whether he might be legally required to disclose information about the phony contracts—not to mention produce the contracts themselves. He believes that the information he has would be protected by his ethical duty of confidentiality (though he is not sure), but he is a little worried about the limits on the attorney-client privilege. He wishes he had never taken phony contracts away from Donner’s office, but now he doesn’t know what he should so with them. They are appear to be evidence of a crime. If he just gives them back to Donner, he’ll undoubtedly destroy them.

One of the things that occurs to Becker is to go and have a conversation with Donner. He wants to find out more about what, exactly, Donner did. He plans to assure Donner that anything the latter says will be kept confidential. Yet, Becker is not certain that he can, in fact, refuse to disclose relevant statements that Donner my make to him.

IV.

Phillips was representing Thompson in a house closing. Thompson was the seller. Shortly before the closing date, Phillips received a call from the buyer’s lawyer asking if it would be all right for the buyer to send over a termite inspector to examine the house. Phillips said he’d check with his client, but he added that he “happened to know that an inspection was done only a couple months before,” in connection with a prospective sale to another purchaser “who didn’t take the property because he couldn’t get the financing.” As Phillips well knew, however, the foundational beams of the house were infested with termites and the report to which Phillips referred had been negligently prepared. It stated, incorrectly, that the house was free of infestation. “Well, I think a see a chance to save my client some money,” the buyer’s lawyer cheerily replied. “Why don’t you just send me over a copy of that report you already have.” Phillips did so.

As Phillips was also aware, Thompson’s property was subject to an easement to a utility company under which the company was entitled to trench through the back and side yards of the property in order to install long-distance transmission lines. For some reason, however, the title insurance company had not separately listed this easement but, apparently, lumped it together with an exception for “utility company easements” when preparing its title report. The problem is that the impact of this particular utility easement is far from “ordinary,” and it will probably prevent the buyer from ever building a garage in the area where it is located—and that is the only area of the property where a garage would be practical. (The property does not currently have a garage on it.) At any rate, Phillips is delighted that the title company’s report does not spotlight this easement. He knows that the buyer will almost certainly rely on the title report in assessing the acceptability of the title, and he knows also that if the buyer finds out about this major utility easement she would probably walk away from the deal. Phillips has no intention of mentioning the easement to the buyer or her lawyer.

So far Phillips has found nothing that puts him in an ethical quandary (such being the possible limitations on Phillips’ ethical sense). Now, however, there is another wrinkle. His client has told the buyer that the house recently was completely rewired. However, Phillips has found out that only certain portions had been rewired; the statement made by his client was, effectively, fraud. He knows the truth will come out before long, and he doesn’t want to be stung, especially if there is a fire due to faulty wiring. He has given some thought to simply withdrawing from this matter, but he realizes that, even if he does, Thompson will almost surely just go ahead and close the deal using documents already drafted and provided by Phillips.

V.

Until last month Roper and Fipps, both were associates at Miller & Miller. They have both just been hired away by the law firm of Delphi & Hart.

Prior to changing law firms, Roper (but not Fipps) was working on a lawsuit in which Evans Restaurant Supply was being sued Jimmy’s Grill and Bar-B-Cue. Evans Restaurant Supply is a longtime client of Miller & Miller, while Jimmy’s is a longtime client of Delphi & Hart. At the time of the job-change, the lawsuit was just about to go to trial.

The litigation is complicated, but essentially it involves an alleged practice of re-labeling perishable foodstuffs that are about to go out of date. Jimmy’s alleges that Evans has fraudulently engaged in such a practice.

Almost immediately after the two lawyers moved, Miller & Miller (representing defendant Evans) made a motion to disqualify Delphi & Hart from representing Jimmy’s in the lawsuit, alleging a “successive conflict of interest.” Miller & Miller also alleges a second ground for disqualification. It seems that one of the Delphi & Hart lawyers working on the Jimmy’s-Evans case, Christine Massingale, has become engaged to be married to Elton Grandshaw, a retired Miller & Miller partner. For many years, Grandshaw was in charge of his firm’s handling of Evans’ various legal matters, including a couple of mislabeling claims (which, however, had not led to litigation).

<End of examination.>