Lawyer Lou has represented Client Carl for many years in a variety of matters

PACE UNIVERSITY SCHOOL OF LAW

PROFESSIONAL RESPONSIBILITY

PROFESSOR HUMBACH May 19, 2004

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.

George Chudley was eyeing the pet food specials in Sandia Treat, a mega department store in the state of Bliss, when he slipped on spilled olive oil. He fell and broke his kneecap as well as a large display case. The fall was witnessed by Colin Rice, a stock clerk who had been sent out to clean the spilled olive oil but who (negligently) wasted time carrying some stolen groceries out to his car. Due to the time required to pilfer the groceries, Rice was delayed in doing his assigned task. Chudley demanded compensation, claiming that Sandia Treat had negligently allowed a dangerous condition to persist on the premises, proximately causing his injuries.

Sandia Treat’s attorney Delilah Clark, was given the task of interviewing all persons having possible information concerning the incident. In addition to Rice, she interviewed Mel Armitage, head of maintenance; Louise Freeh, the janitor; Wilma Frist, a sales clerk; and Jack Reno, assistant manager of the store.

During his interview, Rice was initially reluctant to talk. However, after being assured by Clark that anything he told Clark “was protected by the attorney-client privilege,” Rice broke down and admitted that he had delayed “for a long time” in getting to the spilled oil. On further questioning, he admitted what had delayed him.

Now Chudley has sued Sandia Treat. His lawyer, Joanna Kirby, has deposed all of the potential witnesses mentioned above, but their memories during the depositions were uniformly faulty. At one point during a deposition, Kirby asked Rice: “Is it not a fact that you were sent out at 10:15 a.m. to clean up some spilled olive oil off the floor?” Rice responded (under oath): “The boss told me to clean up some ice cream at 9:15, and some olive oil at 10:40—in different parts of the store.” In fact, what “the boss” had done was to tell Rice to clean up the olive oil twice, once at 10:15 and once at 10:40 (and well as telling him to clean up the ice cream). Rice was never directly asked about 10:15 again. But since Rice had previously told Clark that he’d been told twice to clean up the olive oil, Clark knew Rice wasn’t telling the whole story—but for the moment she sat mute.

Kirby then demanded production of Clark’s memos of her interviews with the witnesses. Sandia Treat has asserted attorney client privilege. In addition, Clark told Sandia Treat management that Rice had confessed to stealing groceries, and management plans to fire Rice as soon as this thing is over.

A: Can Kirby have Clark be compelled to disclose the information she received from any of the above named potential witnesses?

B: Does Rice have any possible or potential causes of action against Clark for disclosing his theft to Sandia Treat?

II.

Burton Webber is representing Irwin Symmes in the sale of a restaurant. A few minutes before walking into the closing, Irwin said to Burton: “Boy, I’m sure glad to be getting rid of that place. The Board of Health came in last night and found all kinds of violations. Mostly simple stuff, but a couple of things won’t be so easy to correct, especially the one about the ceiling being too low in the food storage area.” Later at the closing, during the exchange of papers, the buyer says: “I assume everything’s still all right with the restaurant?” Irwin says: “If there was a problem, don’t you think I’d tell you?” A couple of minutes later Burton watches as his client hands over a certificate, as required by the contract, stating that the restaurant entity (a corporation) has all of the permits required by law to carry on its business. Technically, the certificate is correct: The Board of Health has not yet completed the paperwork to suspend the restaurant’s license, and it probably won’t actually issue the suspension until later in the afternoon.

A. Does Burton have any ethical responsibilities here? Would it make any difference if Burton had handed over the certificate, himself?

B. Is there any chance that Burton might be liable for damages to the buyer?

III.

Tina Kindred, Esq. has represented Jenkins in a number of transactions in the past. One day Jenkins came to her office and said he had a business proposition “that could be ‘win-win’ for all of us.” He planned to enter into a joint venture with Henderson to own and operate a medium sized office building near the courthouse. The building is now owned by Henderson alone. In order to get the money he needs to buy into the deal, Jenkins said would borrow money at the bank. He added that would be required to put up his house as part of the collateral for these loans, but he was willing to do so because “this deal is so good.” And “here’s the best part,” Jenkins went on: If Tina would put in a cash investment of just $75,000, she would receive a 10% share in the project along with the right to occupy one of the ground floor office suites, rent free. For Tina Kindred, this would be a tremendous bargain.

As negotiations progressed on the deal, Kindred couldn’t understand why it was necessary for Jenkins to put up his house as additional collateral. That was apparently Henderson’s idea, to lower the overall rate of interest, and Jenkins went along. However, Kindred thinks that this particular aspect of the deal is out of line, and she’s tempted to suggest that Jenkins should object. But Kindred is also keenly aware that the fair rental value of the office suite is considerable, and for her to get it for $75,000 flat would be a tremendous bargain—far less than she would normally have to pay. With this in mind, she doesn’t want to do anything that might change Henderson’s mind, or make him rethink that point. After all, it was Henderson’s idea, and it was okay with Jenkins.

There’s another thing that makes Kindred very happy to move her office to this new space. She’s on very good terms with Jenkins and, in addition, she has known Henderson for a long time—ever since her husband, also an attorney, used to represent Henderson in various real estate deals. Since her husband was elected to public office, Henderson has been represented for a time by Arthur Bauble. In fact, Bauble was the lawyer that Henderson used when he bought the office building in question a couple of years ago. Bauble was Kindred’s law partner at the time (though no longer).

Kindred told Jenkins right up front that she couldn’t act as “attorney for them all” in doing the deal. She said she was almost sure that doing that would be a conflict of interest. The way things are, however, she doesn’t think there’s any problem. Is she right? Is there anything she needs do under the Model Rules?

IV.

Oscar Madison has a new client, Felix, who is charged as an accessory in a robbery of a convenience store. He was allegedly the lookout. In interviewing prospective witnesses, Madison met with several people who are either friends of the defendant or generally inclined to want to help him. Among other things, Madison said to them: “One of the crucial issues in a case like this is alibi. A jury won’t convict if there’s any real doubt about whether Felix could have even been there. The man in the convenience store identified Felix from a photograph, but so far it’s basically his word against Felix’s. So I need you all to think—think hard about whether and when you saw Felix on the day of the robbery.”

Later, Madison told Felix that he was trying to find possible alibi witnesses, and asked Felix to help think of possibilities. However, Felix responded: “That’s gonna be tough, man, ‘Cuz I was there. I was right outside that convenience store that afternoon, probably no more than ten minutes before the robbery occurred, maybe less. But I wasn’t no look-out. Not for them or nobody.”

Then an amazing thing happened. The prosecutor (who has a constitutional obligation to share potentially exculpatory evidence) sent over a copy of a videotape from an ATM machine. The tape appeared to show Felix at a location 3 miles from the convenience store only 5-7 minutes before the robbery occurred. Madison is initially mystified but then he realizes that what probably happened is that somebody messed up in resetting the camera clock for daylight savings time. The robbery had occurred in early April.

The prosecutor refuses to agree to a favorable plea bargain. He asserts that it was physically possible for Felix to get from the ATM machine to the convenience store by the time of the robbery. However, Madison wants to introduce the ATM tape and then vigorously argue that “the only way Felix could have gotten from that ATM machine to the scene of the robbery would have been to drive like a madman at over 70 mph through downtown streets.” He also wants to introduce testimony of Felix’s friend, Biff, who now says he remembers seeing Felix near the ATM machine location at exactly the time of the robbery. After several sessions talking with Biff, Madison is pretty sure Biff believes what he’s saying—though his story is apparently at odds with that of Madison’s own client. Finally, Madison wants to rigorously cross-examine the man from the convenience store to see if he can break or cast doubt on his assertion that he’d seen Felix.

Suppose that Biff testifies but, after his testimony, Biff took Madison aside and said that he had taken Madison’s advice and made up a story to make Felix look good.

Any ethics issues here?

Lou has represented Carl for many years in a variety of matters. It has been over a year since Lou has done any legal work for Carl. However, Lou has never said or done anything to indicate that he no longer considers himself to be Carl’s lawyer. Recently Lou ran into Carl at a dinner party. After Carl had a few drinks, he began espousing white supremacist views. Lou was disgusted and he resolved to reevaluate his professional and personal relationship with Carl. At that same party, Carl told a story to Lou and several other guests about how he had recently been rear-ended by a municipal street-cleaning vehicle and that his 2004 Cadillac Escalante had been damaged to the tune of $8,000.

The next day, as Lou was sitting in his office, it suddenly hit him that if Carl did not promptly file a claim against the city, he would lose any claim he might have. Lou had not, of course, mentioned this to Carl. A few minutes later, by seemingly sheer coincidence, Carl walked into Lou’s office and presented him with a new problem. Carl explained to Lou that he had formed a group called the White Aryan Deputies (WAD), and that his new group wanted to stage a march through a racially mixed neighborhood to protest the Emancipation Proclamation. The march was scheduled for July 4. Carl tells Lou that the group was denied a parade permit because that date is booked for the next five years by the Rainbow Action League (RAL), a coalition of civil rights groups.

Carl’s question is this: What would the penalties be for marching without a permit—because that’s what he’s thinking of doing. He says he thinks the permit requirement is unconstitutional, and that WAD should not allow itself to be bound by an invalid law. In addition, Carl wants to know what the penalties would be if he were to “accidentally” toss rotten eggs at and/or slap a few RAL marchers around—insisting that there is absolutely no intention that anyone be seriously hurt.

Lou finds the whole thing repulsive.

A. Is he ethically obligated (or even permitted) to answer any of Carl’s questions? Is he ethically obligated (or even permitted) to notify the authorities that Carl plans to march and that there might be trouble?

B. Is there any possibility of liability to Carl if Lou does not say anything about the truck-Cadillac collision?