PACE
PROFESSIONAL RESPONSIBILITY
PROFESSOR HUMBACH May
15, 2006
FINAL EXAMINATION TIME
LIMIT: 3 HOURS
IN
TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE
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 4 essay questions, each with subparts, followed by 18 multiple-choice questions. Each of the 11 subparts of the four essay questions will be weighted roughly equally. The set of 18 multiple-choice questions will have roughly the same weight as two essay-question subparts.
The multiple-choice questions are to be answered on the answer sheet provided.
The essay questions are to be answered in order in the Examination Booklets that are provided. Please clearly number your answers, indicating each question and subpart.
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 30 minutes per essay question, plus about a 1/2 hour of
reading time and a 1/2 hour for the multiple choice questions.
I.
Benedict represented the Robert Grell, a builder, in the sale of several houses that Grell built in 2001. Now Talbert, one of the original buyers of a Grell house, wants to sell. The prospective buyer, Shrymp, has retained Benedict to represent him in the purchase.
At first Benedict was a little concerned because, as he delved into the paperwork, he recalled that that the septic system for Talbert’s house was partially located under the lot next door (still owned by Grell). Due to an oversight, Benedict had forgotten to create an easement for this intruding use in connection with the original sale. As a result, Talbert’s title is technically “unmarketable” and Shrymp could refuse to accept it. If Shrymp did reject the defective title, then Talbert could sue Grell and recover damages, in which case Benedict might be liable for malpractice. However, Benedict is comforted by the thought that all of this is mainly “technical” and that, between a willing buyer and seller, the easement thing would not likely be an actual obstacle to a sale. Indeed, it was highly unlikely that anybody would even find out about the septic-system problem, at least as least not as long as Benedict acted as Shrymp’s lawyer in the sale.
Shrymp agreed to pay Talbert his asking price of $660,000 for the property. Unfortunately, it later emerged that Shrymp’s credit would only allow for a $400,000 first mortgage. In order to save the deal for his client, Benedict stepped up to the plate and offered to provide Shrymp with second-mortgage financing for the additional $200,000 that he needed. A four-way deal was structured that involved Shrymp, the bank, Talbert and Benedict, who drew up all the papers.
Shortly before the deal was to close, the septic system malfunctioned and all heck broke loose. Shrymp has a right to reject Talbert’s title, but Benedict is reluctant to tell Shrymp this because that might trigger a lawsuit against Grell, who would in turn sue Benedict.
1. Identify and discuss a concurrent conflict of interest of Benedict’s.
2. Identify and discuss another concurrent conflict of interest of Benedict’s.
3. Identify and discuss a successive conflict of interest of Benedict’s.
II.
On March
17, 2004, a 911 call came into the police headquarters in the City of
About a half hour later, at a small shopping center near the house, a car owner discovered a woman passed out in the back seat of his car. He called the police. By the time the officers responded, the woman in the car, Patricia Revson, had come to and she was arrested for disorderly conduct. Later, though still considerably dazed and somewhat incoherent, she basically said that she’d been raped at a party. The location she described turned out to be (or, at least, was consistent with) the softball team house. Blood tests later revealed that Revson had been very intoxicated at the time she was found, and a physical examination revealed abrasions, lesions and other signs that were “consistent with rape.”
Meanwhile, police went back to the softball team house and got the names of all the people there. Later, in a line-up, Revson identified one of them, Kevin Ivers, as the person who had raped her at the party. Ivers was arrested, arraigned and released on bail.
Ivers claimed (and friends agreed) that he had left the party early to study for a physics exam, and that he had not returned to the party until after the police got there. Indeed, the police saw him arrive. Meanwhile, during the 30-minute period from 15 minutes before the 911 call to 15 minutes after it, Ivers had used his ATM card at a bank, bought some beer at a distant convenience store (where he was picked up on surveillance cameras), used his swipe card to get into his dorm, logged on to MySpace.com using his password, and made a call from his dorm phone. All of these locations were a mile or more away from the party house.
Despite this evidence, the prosecutor went to trial based on the statements of the complaining witness and the “possibility” that Ivers could have covered to the mile to the party and back during the critical 30-minute interval. As he said at a press conference at the time: “It doesn’t matter what I believe happened; it’s what the jury believes.” When asked about the above evidence of Ivers’ whereabouts during the critical half-hour period, he added: “Who knows if any of that is even admissible? There’re a number of rules of evidence and procedure that we could use to keep this stuff from the jury. Date stamps on automatic recording devices aren’t necessarily accurate.”
Meanwhile Ivers’ defense lawyer has managed (with the help of the softball team) to locate the woman who made the 911 call. She claims it was all a stupid hoax, and blames her own intoxicated state and that of her fellow party-goers for poor judgment in making the call. When the prosecutor attempted at trial to introduce the tape of the 911 call as evidence that a rape occurred at the house, the defense objected, pointing out that the prosecutor had failed to “authenticate” the tape. That is, the prosecutor had failed to put on witnesses who would testify as to the date and time that the tape was made. This failure was a pure oversight by the prosecutor, and Ivers’ lawyer knew it. Indeed, he had no doubt that the call recorded on the tape had in fact come from the softball team house at the relevant time and date. But he had no qualms about objecting to it nonetheless. The jury never got to hear the tape.
In a desperate attempt to salvage his case, the prosecutor put several softball team members on the stand and asked them: “During the party on March 17, did you see or hear anyone make a telephone call reporting a rape?” Anticipating something like this, Ivers’ lawyer had already talked to most of the people present at the house and explained to them the difference between a “call reporting a rape” and a hoax call that pretends there is a rape. The clever college students all had no trouble grasping this distinction, and each of them gave the exact same answer to the prosecutor’s question: “No, sir.”
1. Do you see anything ethically questionable about the prosecutor’s decision to proceed to trial against Ivers and to keep out the evidence of Ivers’ his whereabouts around the time of the 911 call?
2. Do you see anything ethically questionable about the defense lawyer’s decision to keep out the 911 tape on “authentication” grounds, even though he had absolutely no doubt that it was authentic.
3. Do you see anything ethically questionable about the defense lawyer’s pre-trial discussions with persons present at the party and bringing to their attention the supposed distinction between a call “reporting a rape” and a hoax call that pretends there is a rape? Is there in fact such a distinction?
III.
Dettman was trying to negotiate a settlement between his client, Baker, and Gibbs. During their most recent conversation on the subject, Baker told Dettman that he was willing to pay up $150,000 in settlement of the Gibbs claim, but no more. However, the lawyer for Gibbs seemed to be holding firm at $175,000 and, after considerable effort, Dettman decided it was almost hopeless to expect to get him down further. What’s more, if forced to go to trial, Dettman’s legal fees would be at least $25,000, equaling or greater than distance between the two parties’ positions.
As Dettman and Gibbs’ lawyer were talking, the dinner hour approached. Gibbs’ lawyer suggested that they stop at the nearby Riverside Wine Bar to get something to eat. Dettman remarked: “That’s a coincidence. My client was just returning from lunch at the Riverside Wine Bar when the accident in this case occurred.”
When they were parting after dinner, Dettman said to Gibbs’ lawyer, just to see the reaction, “Okay, how ‘bout we pay you $160,000? I know it’s not what you want, but I just can’t go any higher. To Dettman’s surprise, Gibbs’ lawyer said okay. Even though this figure was $10,000 more than Dettman and Baker had discussed, Dettman was confident, in the exercise of his independent professional judgment, that it was the best deal he could get, and the best way to proceed for his client.
Baker was furious when he heard what Dettman had done. He insisted he “didn’t want to pay a dime to that crook” and wanted to go to trial. Later hearing this, the lawyer for Gibbs remarked to Dettman, “Too bad. You know, if there’s a trial I’m going to have to introduce your statement that Baker was at a wine bar just before the accident, and that’ll 90% convince the jury that Baker was at least a little drunk.” Now Baker is even more furious. He strenuously denies that he had been at the wine bar at any time during that day, and says that he has “a thousand” witnesses to prove it. Even more painful to Dettman, the lawyer for Gibbs also says he’ll object to the introduction by Dettman of certain critical documents because Dettman, in violation of court rules, failed to disclose the existence of those documents during the discovery process.
1. Is the settlement at $160,000 binding on Baker?
2. Can the statement of Baker’ lawyer be introduced against Baker in court? Is it “binding” on Baker, so that he cannot bring in other evidence to show that he had not been at the wine bar that day?
3. Can Baker be made to suffer for Dettman’s failure to disclose critical documents during discovery, even if the result is that Baker will lose a case that, on the facts and law, he really ought to win?
IV.
While at the courthouse for a routine appearance for a client charged with insurance fraud, Robert Yorman was asked by the judge if he would represent a man, Cummins, who had just been arrested in connection with a payroll robbery at a local cement plant. While Yorman could have technically refused, he felt he needed to stay in the judge’s good graces, so he agreed to represent Cummins “until a public defender could be assigned.”
Yorman talked to his new client, who essentially admitted the robbery. Yorman asked where the cash was, and Cummins didn’t say, but he did mention in passing that his family owned a farm on Teasdale Pike, about 15 miles out of town. Later that day, Yorman sent his investigator out to the farm and the investigator found a van matching the description of the get-away vehicle in the robbery. Inside the van there was a gun (with the serial number filed off) and a paper bag containing about $17,000, roughly the amount stolen from the bank The investigator placed the van inside a small barn, so it would not be visible from the road, and he took the cash and gun back to Yorman’s office.
Yorman knows he cannot turn the cash and gun over to the authorities without practically pointing the finger straight at Cummins, even though the prosecutor still would not be able to tie these items directly to Cummins, except by very broad inference. Nonetheless, Yorman is in a quandary what to do about the cash and gun, and also about the van—which he somehow feels the investigator should not have moved.
1. Does the attorney-client privilege allow Yorman to keep the cash and the gun without saying anything? How about the duty of confidentiality?
2. If Yorman manages anonymously to get the cash and gun into the possession of the prosecutor, can the prosecutor later force Yorman to testify whether these items were ever in Yorman’s possession or control? If so, can the prosecutor force Yorman to testify where he got them and where they were found? If so, can the prosecutor force Yorman to disclose who provided the information that led him (or his investigator) to go looking around at the place where the items were found?
Multiple Choice
questions
1. Lionel Parsnip represents the defendant in a personal injury case. The plaintiff and defendant are close relatives. According to Lionel’s client, the plaintiff does not want to be “unreasonable” about a settlement. However, the plaintiff’s lawyer seems to be pressing for every possible advantage. Lionel suspects he may be trying to maximize the amount of his contingent fee. At any rate, Lionel’s client has tried to talk to the plaintiff several times, in family settings, but just can’t quite explain some of the technicalities. Both Lionel and his client are convinced that, if Lionel could just talk to the plaintiff privately for just a few minutes, the case could be amicably resolved, with results that would be satisfactory to both parties.
a. Lionel may not privately talk with the plaintiff about the subject of the representation without the permission of the plaintiff’s attorney.
b. Lionel may not privately talk with the plaintiff about the subject of the representation with or without the permission of the plaintiff’s attorney.
c. It’s a free country, and nothing prohibits Lionel from talking privately with anybody that’s willing to talk with him, no matter what the subject.
d. Without the permission of the plaintiff’s attorney, Lionel may not talk with the plaintiff about anything whatever.
2. Suppose in the preceding question the plaintiff is perfectly willing, even eager, to have a private talk with Lionel, in order the keep peace and harmony in the family.
a. Plaintiff can at any time waive his right to have counsel present and talk privately to Lionel about the subject of the representation.
b. It is said that a represented client may not waive the right to have counsel present, that the right belongs to the lawyer.
c. There is no problem with Lionel having a private conversation with plaintiff about the subject of the representation as long as the plaintiff approaches Lionel rather than the other way around.
d. None of the above.
3. Lionel, counsel for the defense, has an idea. Even if he cannot talk directly with the represented plaintiff about the case in litigation, maybe he can do so indirectly, through his client.
a. This would not be ethical because, during a lawsuit, a represented party is not permitted to discuss the case directly with another represented party unless the attorneys for both are present.
b. This would not be ethical because even though, during a lawsuit, the clients are free to talk to each other, the lawyers for the clients may not discuss such communications with their clients.
c. There should be no ethical problem as long as Lionel limits himself to advising his client concerning such communications.
d. There should be no ethical questions even if Lionel goes so far as to prep his client with things to say, arguments to make, and strategies for getting crucial information out of the plaintiff.
4. Suppose attorney Phil Newmeier is himself the defendant in a personal injury case, and he’s representing himself. Would he be ethically permitted talk directly to the plaintiff about the case without the permission or presence of plaintiff’s counsel? (Pick the best answer.)
a. Yes.
b. No.
c. The authorities are divided on the question.
d. No. In fact he wouldn’t be permitted to talk directly to the plaintiff about any subject whatsoever.
5. Marsha Poorhouse came into Holden’s law office and said that a department store was hounding her to pay her overdue charge account, on which she owes a substantial amount. Holden realizes that the department store’s tactics are probably violating the Fair Debt Collection Practices Act. His first instinct is to call up the store and tell them to lighten up.
a. Holden can do so without raising ethical problems unless he has actually been told that the department store is represented by counsel.
b. A lawyer has no obligation to investigate whether another person has counsel or not, and Holden’s mere suspicion that the department store may have a lawyer on retainer should pose no ethical barrier to his making the call.
c. It’s a free country, and nothing prohibits Holden from talking privately with whomever is willing to talk with him, no matter what the subject.
d. When there is reason to believe that another person is represented by counsel, it is said that a lawyer cannot evade the no-contact rule by closing his eyes to the obvious.
Facts for RockRoll Music questions (6-12). RockRoll Music Co. is in the business of producing, manufacturing and selling CDs. Concerned about the extent to which consumers copy and share CD music using their personal computers, RockRoll management told its software engineering department to design a system that would limit or prevent such copying. They came up with a system that embedded a small program (called “ripworm”) on every CD. The ripworm program works by secretly installing itself on the consumer’s computer when the CD is first played on the computer. After that, the ripworm program automatically registers the computer’s serial number and automatically reports back to RockRoll after attempts are made to copy the CD. Unfortunately, a side effect of ripworm is to make the user’s computer vulnerable to hackers. The software engineers were aware of this problem and informed senior management, but they could not devise a way to eliminate the problem without seriously compromising the power of ripworm as a defense against unlawful copying. One engineer broached the idea of giving a full warning to consumers, to head off possible backlash, but that idea was rejected as “impractical.” It was feared that telling consumers about ripworm, and its effect of making computers vulnerable to hackers, might have a negative impact on sales.
Ken Javer, a junior attorney in the RockRoll legal department, learned of the new anti-copying program from Mark Promm, a friend of his and a lowly employee in the software engineering department. The topic came up when Promm had asked Javer what legal consequences ripworm might have for the company and, potentially, for himself. Javer notified his boss that the company was incurring a substantial legal risk with ripworm since hackers could tap valuable personal data from users’ computers whenever ripworm was installed. Also, tampering with others’ computers without the owner’s authorization is a serious violation of federal law. However, the boss told Javer that senior management was eager to go forward with the ripworm system and that if Javer cared about his career he should keep his concerns to himself.
When the first shipments of CDs containing the new anti-copying program was about to go out, Javer’s conscience got the best of him, and so he anonymously sent a copy of a report by RockRoll’s engineers to a magazine that reviews electronic products, including CDs. He then informed his boss what he had done so the company could stop the shipment and, also, get in touch with the magazine staff and let them know that the plan to install the risky anti-copy software on consumers’ computers had been scrapped—as he was sure it would be. Unfortunately, however, before the shipments could all be stopped, several hundred CDs containing ripworm were sold into the chains of distribution.
6. Suppose RockRoll now wants to terminate Javer for sending out confidential information:
a. Javer can expect no sympathy from any courts, as he has breached his ethical duty of confidentiality.
b. The information would not be considered subject to confidentiality since Javer did not receive it, directly or indirectly, from senior management in the corporation.
c. Traditionally a client (RockRoll) can freely discharge an attorney whenever the client wants to, and courts have not been inclined to make exceptions for attorneys who happen to be employees of the client.
d. In some states, Javer would likely have an action for retaliatory discharge.
7. Under an early retaliatory discharge case (dialysis machine):
a. It was said that allowing retaliatory discharge actions by employee-lawyers is unnecessary to support the ethical rules because employee-lawyers are obligated to follow such rules anyway.
b. It was held that employee-lawyers have an action for retaliatory discharge but only in cases where the lawyer discloses confidential information in order to prevent death or serious bodily harm.
c. It was held that employee-lawyers generally may sue for retaliatory discharge just as any other employees as long as they can prove their case without making use of otherwise confidential client information.
d. It was held that employee-lawyers have an action for retaliatory discharge whenever such an action would serve to promote or preserve an important public policy.
8. In states where it’s been recognized that employee-lawyers like Javer have an action for retaliatory discharge:
a. The employee-lawyer is almost always permitted to use otherwise confidential client information to prove the retaliatory discharge claim.
b. The use of otherwise confidential client information to prove the claim is often prohibited despite a provision in the Model Rules on confidentiality that would seem to create an exception for such a case.
c. The use of otherwise confidential client information to prove the claim is properly prohibited because the Model Rules on confidentiality contain no provision that would appear to create any exception for such a case.
d. The use of otherwise confidential client information to prove the claim is sometimes permitted and sometimes prohibited although the Model Rules on confidentiality appear to contain nothing that supports taking a position one way or the other on such a case.
9. On the advice of RockRoll’s general counsel, RockRoll cut a deal with Javer under which he could keep his job, and even get a pay raise, but would be thenceforth restricted to working in the company’s collections department bringing routine lawsuits against late-paying wholesalers and distributors. A month later, the US Attorney launched an investigation of alleged violations of the federal laws against unauthorized tampering with others’ computers (via ripworm). In that connection the US Attorney wants to talk to Javer and Promm, the software engineer, about their conversation where Promm told Javer about ripworm. When neither is willing to speak up, the US Attorney seeks a subpoena. Under the Upjohn rule,
a. Promm would be entitled to assert the attorney-client privilege in order to avoid being forced to talk to the US Attorney.
b. Javer would be entitled to assert the attorney-client privilege in order to avoid being forced to talk to the US Attorney.
c. RockRoll would probably be able to assert the attorney-client privilege in order to prevent the US Attorney from forcing Promm or Javer to talk.
d. All of the above.
10. Concerned about the company’s legal exposure to criminal prosecution for unauthorized tampering with others’ computers, RockRoll’s senior management sent the company’s general counsel out to interview Promm about what he knew. At first Promm was reluctant to talk, but the general counsel reminded him about the attorney-client privilege and stated that anything Promm said would be kept confidential. Promm then spoke freely with the general counsel about ripworm and how it modified the users’ computer operating system. However, Promm is worried that the US Attorney might later indict Promm individually for his role in developing and disseminating ripworm. Assuming that Upjohn applies and this interview falls within the Upjohn rule:
a. There’s little reason for Promm to worry as anything he says about the matter to the general counsel would be privileged.
b. The general counsel for the company would normally be considered in an attorney-client relationship for both the company and its employees.
c. The general counsel should have told Promm that he (Promm) would have no right to insist that the substance of the interview remain confidential.
d. Even if the general counsel were not representing Promm individually, the ethical duty of confidentiality would protect Promm’s right to keep the interview confidential in this situation.
11. In Upjohn the Supreme Court rejected the traditional “control group” test for determining the extent of the attorney client privilege in cases where attorneys represent corporations. Below are several possible reasons. Which reasons were given by the Supreme Court?
(i). The “control group” test discourages communication of relevant information by lower-level employees to lawyers seeking to render legal advice to the corporation.
(ii). The “control group” test makes it unduly difficult for the government to get information and enforce the laws when wrongdoing occurs within the corporation.
(iii). The corporate attorney’s advice will frequently be more significant to lower-level employees (below the control group) whose actions within the scope of their employment can embroil the corporation in serious legal difficulties.
(iv). The “control group” test is too uncertain and unpredictable in its application, possibly deterring full and free communication between corporate counsel and various corporate employees.
(v). The “control group” test leaves management officials with too much legal exposure if they talk freely with corporate counsel.
a. (i), (ii) and (iii)
b. (i), (iii) and (v)
c. (ii), (iii) and (iv)
d. (i), (iii) and (iv)
e. (i), (iv) and (v)
12. Reanswer the preceding question. (You may give the same answer or a different answer, but bear in mind that if you give two different answers at least one of them will be marked wrong.)
13. Kent and
Warner are negotiating a settlement. They represent the plaintiff and
defendant, respectively.
a. Warner
has no abstract ethical obligation to let
b. Warner should not mislead Kent, but it should be possible (and ethical) for him to say, in effect: “I frankly don’t buy into your formula but, in the interest of settling this case I’m authorized to offer the $780,000 that you’re demanding.”
c. Both of the above.
d. Warner
has a clear ethical obligation to let
e. It
would violate Warner’s duty of zealous advocacy to inform that
14.
a. To represent his own client’s interests just as he normally would and let the chips fall where they may.
b. To explain the material terms of the documents he’s drafted, so Ormand understands their actual effect.
c. To try, as best he can, to represent both the buyer’s and seller’s interests equally and evenhandedly.
d. To try to get Ormand to pay one-half of the bill for legal services in papering the transaction.
15. It is said that the legal system has various possible ideal goals (fair process, “right” outcomes, etc.) Which of the following statements is most correct?
a. The ideal goal of “fair process” (or “just process”) is primarily concerned with getting at truth, and determining what is truly the “right” result in each case.
b. In the adversary system, individual advocates generally should consider it to be among their own main goals to make sure that the “right” side wins and that justice prevails.
c. It is consistent with the ideal goal of “fair process” (or “just process”) to say that the lawyer cannot know who’s “right” and who’s “wrong” until after the case has been decided in court.
d. As a practical matter getting at the truth is considered such an important goal that values other then truth are rarely allowed to take precedence
.
16. Which of the following barriers to information do the courts condone even though they may be used to prevent the truth from coming out and may mean that the party in the right loses (and the party in the wrong wins)?
a. Marital, physician-patient, attorney-client and various other “privileges”
b. The hearsay rule.
c. Rules declaring that witnesses are “incompetent” to testify in certain instances.
d. All of the above.
e. None of the above.
17. Dickins represented Lehman and Evans after they were involved in an accident while allegedly drag racing. The prosecutor offers a deal in which the maximum sentence will be 60 days if the two defendants both plead guilty to reckless driving in the third degree. Otherwise, the two risk a sentence of up to one year. Lehman is willing to take the plea bargain, but Evans now maintains (contradicting prior statements by both Lehman and Evans) that he was not “drag racing” but merely trying to get ahead of Lehman because, up ahead, he’d seen a parked car blocking his lane. Evans wants to plead not guilty—risking the sentence of up to one year.
a. Dickens’ proper choice is to do whatever, in his independent professional judgment, best serves the interests of both his clients.
b. Dickens’ proper choice is probably to withdraw from the representation of Evans.
c. Dickens’ proper choice is probably to withdraw from the representation of both Evans and Lehman.
d. If Dickens makes a serious error in representing Evans, resulting in a conviction that might otherwise have been avoided, he’d likely be liable for malpractice even if Evans were in fact guilty of the crime charged.
18. An attorney is most likely to get into serious trouble with the disciplinary authorities if he or she:
a. Commits malpractice by failing to prepare with sufficient thoroughness for a negotiating session in an important business transaction and then missing a key contractual provision as a result.
b. Mounts a vigorous but “within-the-law” defense in a tort case, successfully preventing the gravely injured plaintiff from proving her case, even though the client has as much as admitted certain key facts which, if they’d been learned by the jury, would had certainly led to a big judgment for the plaintiff
c. Any one of the above would likely get an attorney into serious trouble with the disciplinary authorities.
d. Borrows relatively small amounts from escrow funds held in trust for clients and others even the attorney is scrupulously careful to make sure that no one loses any money as a result and, in fact, no one ever does.
<end of examination>