PACE UNIVERSITY SCHOOL OF LAW

 

 

 

 

PROFESSIONAL RESPONSIBILITY

PROFESSOR HUMBACH     April 6, 2001

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:

 

            The questions in this examination are based on seven fact situations. You are to answer the questions with respect to any six of these fact situations.

 

            The questions are to be answered in the Examination Booklets that are provided. Please clearly number your answers. Please indicate on the front cover of your Examination Booklet which question that you have chosen not to answer.

 

            Follow the instructions carefully and answer only what is asked, giving reasons for your answers.             Remember to keep your answers on point, and answer only what is actually asked, backing up your answer with reasons. Do not circle around your point. Aim for the bull's eye. Otherwise, you will risk running out of time. You have about 25 minutes per fact situation, plus about a 1/2 hour of reading time.

I.

Foster applied to be admitted to practice law in the state of Hypo. She received a letter from the bar admission authorities stating that her application could not be processed for the following three reasons:

 

            1. Her application stated that she was not a resident of the state of Hypo and did not intend to become one.

 

            2. Her application stated that she had been arrested for possession of marijuana six years earlier.

 

            3. The documents supporting her application stated that she had been given an “F” in college for turning in, as her own work, a paper that she had downloaded from the Internet.

 

Are any of these really a problem?

 

 

II.

Pritchard specializes in the licensing of computer software, and he has a national reputation. He received a call from a lawyer in a distant state, where Pritchard was not admitted. The lawyer asked Pritchard to come out and consult on a major negotiation to license a new software system, which had been developed by his client, MicroQuick. Pritchard responded positively, and spent several weeks of work consulting with MicroQuick’s home counsel, about half in the latter’s office in the distant state, and half at home. Now MicroQuick doesn’t want to pay Pritchard’s bill. First, they say, Pritchard had an undisclosed conflict of interest when he represented them. They’ve since found out that, before even starting work for MicroQuick, Pritchard had already begun helping one of MicroQuick’s arch-competitors in similar licensing negotiations with another manufacturer. “He learned the ins-and-outs of our kind of software deals (charging us by the hour for his self-“education”), and then he used that knowledge to help out our rivals,” said MicroQuick’s president. More than that, says the president, “the fee he wants is unconscionably high,” referring to the fact that Pritchard’s hourly rate is several times more than what local lawyers charge for representation in negotiations of business contracts. Does Pritchard face any legal problems in trying to collect the full fee?

 

 

III.

            Kepler is a lawyer who represents landlords in commercial eviction proceedings. As such, he sits many hours each week in court waiting for his cases to come up. While sitting in court he observes the long daily parades of tenants in residential eviction proceedings. These are people who are being evicted from their homes. Mostly unrepresented by counsel, they are unable to assert various “defenses” and matters in mitigation which, as Kepler and the other landlords’ lawyers know well, often suffice to induce the judge to hold for the tenant or, at least, delay issuing a warrant of eviction, sometimes saving the tenancy entirely.

 

            Lately, Kepler has begun making use of his time waiting in court to approach apparently unrepresented tenants, asking them if they have an attorney and, if not, offering his services gratis “for this one hearing, today.” He makes it clear that the scope of his representation will be limited to this one hearing, and that he may obviously not be as prepared as he otherwise might, but he points out to the tenant that she is probably far better off with a lawyer than without one, and that those without lawyers usually get evicted while those who have lawyers are far more likely to keep their homes.

 

A couple of weeks ago, Kepler was in the clerk’s office and looked at some of the recent eviction filings. He sent out post cards to the respondents (tenants) in ten of these cases saying: “At the courthouse, the records show that your landlord is in the process of trying to evict you. You may defenses that will allow you to delay or avoid eviction. If you aren’t a lawyer, you may not be able to present these defenses effectively. I am offering my services to you. My normal fee will be will be reduced, in appropriate cases, based on ability to pay.”

 

So far, Kepler has had no takers from the postcards. However, most of the people he approaches in court are extremely grateful to accept his services on the limited basis that he offers them. Regrettably, several of his colleagues see it differently. These lawyers, who practice on the landlord’s side (and are, in effect, Kepler’s “competitors” in more ways than one), are very annoyed by these “antics” of his. “What does he think he’s doing?”, they say. Two lawyers have reported Kepler to the disciplinary authorities.

 

            A friend of Kepler’s told him he’s definitely protected by the Constitution on one of his ways of approaching prospective clients, and possibly on both. Which is which? And why does the Supreme Court analyze the two differently?

 

 

IV.

            Newton received a notice that there was to be a routine compliance audit of the client trust accounts that he maintains in connection with his law practice. The notice contained the following request: “Please provide a list of banks in which you maintain escrow, trust or other client accounts.” 

 

In response, Newton supplied a list that contained the names of 4 banks under the heading: “I maintain client trust accounts at the following banks”; the list contained no false statements. However, the list failed to mention the Granby Savings Bank. At Granby Savings, Newton then currently maintained client accounts in which he deposited clients’ funds that he received from third parties in connection with various matters and transactions. During the past year, Newton had “borrowed” from these accounts for personal use. Such borrowings varied in amount and every cent was repaid, as Newton had always intended to do. In fact, he kept careful records of his “borrowings,” since he wanted to be absolutely sure that nobody would lose any money, and nobody did. At Freemont National, Newton had, until a few weeks before, maintained another client account from which he had made similar borrowings, all of which he had fully repaid.

 

Newton’s firm has a policy that all correspondence concerning ethics compliance must be circulated to certain of the partners.  His law partner, Sheila, saw the list of banks that Newton supplied to the bar authorities. She immediately noticed the omission of the Granby Savings Bank from the list. She asked Newton about it and he said it was an oversight, and that he would send in a correction. That was three weeks ago and, when Sheila mentioned it to him earlier today, he still had not sent any correction.

 

Has Newton committed any violations of the Model Rules so as to warrant discipline? If Sheila does not actually know about Newton’s “borrowing,” does Sheila have any responsibility to say something under the Model Rules?

 

 

V.

            Fairborne came to see Richard Gillis at his office and said he needed a lawyer because he had been in a boating accident. Gillis asked Fairborne to tell his side, and Fairborne did. Among other things, Fairborne mentioned that he’d had a “couple” of drinks before the accident. After Fairborne finished his story, Gillis said: “Well, I think the next step is to wait to see if any action is actually brought by any of the other people involved. I’ll wait to hear from you. If and when somebody sues you, we can make arrangements about my retainer then.” Fairborne left.

 

The next day, the mother of the person injured in Fairborne’s accident came in to Gillis’ office and asked Gillis to represent her daughter, Lauren. It turns out that, unbeknownst to Fairborne, Lauren was in fairly serious condition. Gillis saw Lauren’s case as worth at least a quarter of a million in contingent fees, if not more--with a “slam- dunk” winner if Fairborne really had been drinking. Gillis took the case.

 

Fairborne sought unsuccessfully to have Gillis disqualified from representing Lauren in the case. Then, before the trial, Gillis followed up on Fairborne’s comment about the drinks. Based on this lead, Gillis uncovered evidence that Fairborne had spent about 3 hours in a riverside bar before the make the fateful trip. This evidence was presented with great effect at the trial.

 

Now Fairborne has sued Gillis in “malpractice,” and seeks to prove that Gillis is liable to Fairborne for violating Model Rule 1.9(c), which states, in pertinent part: “A lawyer who has formerly represented a client . . . shall not thereafter . . . use information relating to the representation to the disadvantage of the client. . . .”

 

Gillis’s defense is 1. Fairborne has never been his “client,” and 2. in any event, the Model Rules have no relevancy to this case because, even though the Model Rules have been adopted in the state, lawyers cannot be held liable to clients just for violating the Model Rules. Is there anything to these contentions?

 

 

VI.

            While working at the Hardins law firm, Anthony worked on many deals for Cuthbert Real Estate Ventures, Inc.--buying and selling apartment buildings, putting together investment packages, big financings and so on. A couple of months ago, Anthony accepted a position in the Robard firm, another large law firm. A new client, Dallance, has sought to retain the Robard firm to represent it in a major action against Cuthbert for fraud in the sale of investment units in several of its big real estate financing projects. None of the projects are ones on which Anthony ever worked, but they are all very similar in their legal “design” to ones on which he has worked. At the same time, one of Anthony’s contacts at a branch office of Cuthbert has contacted Anthony and asked if Anthony would represent Cuthbert (via Robard) in a routine zoning application.

 

1. Can the Robard firm represent Dallance in the action against Cuthbert?

 

2. If Robard were to take the Dallance’s side against Cuthbert, could Anthony represent Cuthbert in connection with the zoning matter?

 

 

VII.

            Fenton has a client, Delmont, who was arrested when the police found an illegal gun in the borrowed car where he was riding with two friends. Although the police did not have probable cause to search the car, they asked for consent to search anyway. Delmont (who was driving) and one other occupant consented. The third said: “No way.”

 

            Delmont says he wants to plead not guilty, and deny on the stand that he had any knowledge of the gun. Secretly, however, he has told you that the three were making a delivery of the gun to a buyer with a criminal record, who could not obtain guns legally.

 

1. Can you let Delmont testify that he had no knowledge of the gun?

 

2. Must you report that Delmont admitted he was making a delivery of the gun?

 

3. Can you bring out the fact the Delmont gave the police his consent to search the car, and argue to the jury that such consent would not be given by a person who knew there was an illegal gun in the car? What’s the difference between doing that and putting Delmont on the stand to say he had no knowledge of the gun?

 

Have you indicated on the front cover of your Examination Booklet the question that you have chosen not to answer? If not, do so now.

 

{End of Examination}