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[Barbri 2002-3] Attorney Dave is defending Datatec Corporation in an employment discrimination suit in which the plaintiffs are represented by attorney Perello. Wallner is a Datatec employee, but he is not an officer or shareholder in Datatec, and he is not a party to the lawsuit. Wallner is in charge of Datatec's Personnel Department, and he is responsible for insuring that Datatec's hiring practices comply with the laws against employment discrimination. Wallner is in poor health, so Dave scheduled the taking of Wallner's deposition as a precaution in case Wallner should die before trial. Without seeking Dave's consent, or even telling him, Perello had lunch with Wallner several days before the deposition, and on that occasion Perello pumped Wallner for information relevant to the lawsuit. When Dave learned what had happened, he telephoned Perello and called him a slimy, mud-sucking shyster. Which of the following is most nearly correct?
1. Perello ' s conduct was proper.
2. Dave's conduct was proper.
3. Perello is subject to discipline because he talked with a deposition witness about the subject of the litigation before the deposition was taken.
4. Perello is subject to discipline because he should not have talked with Wallner about the case without Dave's consent.
Diplock, a juvenile, has been charged with auto theft, a felony, and has hired Lucinda to represent him. Before the case comes to trial, Lucinda confers with Patrick, who has been assigned by the district attorney's office to prosecute the case. Patrick knows that Lucinda plans to run for public office and is always interested in getting as much publicity as possible. She is often referred to in the press as a "hotshot" criminal defense attorney, and almost all of her victories over the state are publicized. Patrick suggests to Lucinda that, since Diplock is a juvenile, the charge might be reduced to "joyriding," a misdemeanor. Lucinda refuses, telling Patrick, "I win by trying cases. You must not have read the newspapers lately--there's going to be a lot of coverage of this case because Diplock's father is socially prominent, so I'm not about to cop a joyriding plea for the kid." The proper conduct for Patrick is to: I. Ask the court to dismiss the auto theft charge and prosecute Diplock for joyriding. II. Prosecute the auto theft charge. III. Send an investigator to talk to Diplock about the offer to lower charges.
1. I. only.
2. II. only.
3. I. and II., but not III.
4. III. only.
Using the previous fact pattern, if Diplock is convicted of auto theft, would it be proper for Patrick to report Lucinda to the disciplinary authorities?
1. No, if Lucinda defended Diplock competently at trial.
2. Yes, if he knows that Lucinda never conveyed the offer of a lesser charge to Diplock.
3. No, unless Lucinda got publicity from the trial.
4. Yes, but only if he is certain that Lucinda's motive was to gain publicity
During his second year in law school, Peter's wife divorced him, as a result of which he suffered serious emotional imbalance. Ultimately he managed to graduate, and the state bar sent a routine form letter to Professor Schultze, asking her to comment on Peter's fitness to practice law. Professor Schultze is a member of the bar of that state. In response, she gave her candid opinion--that Peter was prone to extreme and irrational tirades against women, and that he was not yet recovered flora hi~ emotion al trauma. Based partly on this information, the state bar denied Peter's petition for admission. Now, three years later, Peter has asked Professor Schultze to support his re-petition for admission. After carefully checking the facts, Professor Schultze concludes that Peter has regained his emotional balance. Which of the following is most nearly correct?
1. Now, Professor Schultze should remain neutral, since she is untrained in psychology or the science of emotional illness.
2. Three years ago, Professor Schultze should have kept her opinion to herself, since she is untrained in psychology or the science of emotional illness.
3. Three years ago, Professor Schultze should have kept her opinion to herself, since emotional imbalance is not a valid ground for denying admission to the bar.
4. Now, Professor Schultze should support Peter's re-petition, since she believes that he has regained his emotional balance.
Attorney Alex has a high-profile divorce law practice in Centerville. Because of his heavy case load, Alex often appears before the four chancery judges of the county court. One of the chancery judges, Jamal, is getting married, and he sends a wedding invitation to Alex. Alex wishes to send Judge Jamal, as a wedding gift, an imported Italian machine that makes espresso and cappuccino coffee because Alex knows that Judge Jamal loves fine coffee. The coffee machine sell~ far $200 at Centerville's best cooking equipment store. Would it be proper for Alex to send the coffee machine to Judge Jamal?
1. No, because the value of the gift exceeds $150.
2. No, because the gift is not a campaign contribution, and lawyers should not give other types of gifts to judges.
3. Yes, but only if Alex and Judge Jamal are friends and only if the gift is not excessive for the occasion and the relationship.
4. Yes, unless Judge Jamal believes that he would be unduly influenced by the gift.
The state in which attorney Lawrence practices levies an annual tax on trusts for the benefit of minors. Tax returns must be filed, and the taxes must be paid, by March 15; late filing results in an automatic penalty of 15%. In mid-January, trustee Morris retained attorney Lawrence to prepare and file a tax return. Morris heard nothing from Lawrence during February, and he became seriously alarmed when the first week of March passed with no apparent action from Lawrence. He called Lawrence repeatedly during late February and early March, but the secretary always said that Lawrence was "in conference," "in court," or "in deposition." Lawrence never returned any of Morris's phone calls. On March 10, Morris fired Lawrence and hired Donita to do the necessary work. She was able to complete the tax return and get it filed on time. Is Lawrence subject to discipline?
1. No, because neither Morris nor the trust suffered any loss.
2. No, provided that he would have been able to complete the necessary work between March 10 and March 15.
3. Yes, provided that the excuses given by his secretary were not in fact true.
4. Yes, even if he would have been able to complete the necessary work between March 10 and March 15.
Judge Johnhie heard through the "courthouse grapevine" that the District Attorney was investigating corrupt practices in the courts and that the investigation focused on some as yet unascertained time in the past. The "rumor mill" also indicated that several judges and former judges were likely to be indicted for taking bribes to "fix" cases and to generate business for certain attorneys. Judge Johnnie was alarmed at this news, and he telephoned Abe, a retired attorney, arranging to meet Abe for cocktails and dinner. At the restaurant, Judge Johnnie slipped the maitre d' a 10-dollar bill to secure seating at a secluded corner booth. Over dinner, Judge Johnnie told Abe that he had accepted bribes in the past and that he did not know what he should do in light of the District Attorney's investigation. Abe advised Judge Johnnie to do nothing. Judge Johnnie picked up the $120 dinner tab, and Abe thanked him for the fine meal. A month later, indictments were handed down against two sitting judges and three former judges. Judge Johnnie was not among them, and it turned out that the period covered by the District Attorney's investigation was prior to Judge Johnnie's election to the bench. Six months after the indictments were announced, a member of the state appellate court died, and the Governor announced that he was appointing Judge Johnnie to serve the remaining three years of the justice's unexpired term. Must Abe report his knowledge of corruption in office by Judge Johnnie?
1. Yes, because Abe never entered into an attorney-client relationship with Judge Johnhie.
2. No, because Judge Johnnie's disclosures to Abe dealt with past crimes.
3. Yes, because Abe's knowledge bears upon maintaining the integrity of the courts, which takes precedence over other ethical considerations.
4. No, because Abe is retired from practice.
In a trade secret action against defendant Devere Corp., pending in a United States district court, plaintiff's lawyer Latimer gave timely notice that on July 22 at 9 a.m., he would take the deposition of Devere's Vice President for Manufacturing and Marketing, Sigmoid Fletcher, Ph.D. From earlier discovery in the case, Latimer had good reason to believe that Dr. Fletcher's testimony would prove that Devere had stolen and was using the plaintiff's trade secrets. On the appointed day, defense lawyer Lakk showed up with no witness; she explained that Dr. Fletcher was a very busy man and had been "unavoidably detained" on a trip to one of Devere's factories in Asia. Latimer rescheduled the deposition for August 3, and Lakk promised to have Dr. Fletcher available that day. On August 3, Lakk again showed up with no witness, explaining that Dr. Fletcher had to take his aged mother to the doctor that day. Latimer rescheduled the deposition for August 14, and Lakk promised: "If I don't have Sigmoid Fletcher with me on August 14, I will eat your socks on the courthouse steps at noon." On August 14, Lakk showed up for the deposition in the company of a nine-year-old boy, whom she introduced as Sigmoid Fletcher. Upon questioning by Latimer, Lakk laughingly explained that young Sigmoid was Dr. Fletcher's son, that the boy knew nothing about the case, and that Dr. Fletcher was "unable to attend." At that point, Latimer invited Lakk to accompany him to see Judge Jackson to whom the case was assigned. After hearing the story, Judge Jackson asked Lakk what day and time the witness would assuredly be available, and Lakk said that August 16 would be good. Judge Jackson then entered a formal order that Dr. Fletcher's deposition would be taken that day; Judge Jackson also warned Lakk that she would be sanctioned if she did not present Dr. Fletcher on August 16, and that the issues of trade secret misappropriation and use would be deemed proven in plaintiff's favor. Alas, on August 16, Lakk again showed up alone, explaining that Dr. Fletcher "had to make an unexpected trip out of state." After appropriate notice and hearing, Judge Jackson ordered that the issues of trade secret misappropriation and use would be deemed proven in plaintiff's favor. She also ordered Dr. Fletcher to pay 60% of the plaintiff's expenses and attorneys' fees incurred because of the failed deposition attempts, and she ordered Lakk to pay the other 40% of plaintiff's expenses and attorneys' fees. Was Judge Jackson correct in holding Lakk subject to litigation sanction?
1. No, because the facts show that Lakk could not control Dr. Fletcher, and that she was therefore not at fault when he failed to show up on August 16.
2. Yes, because Lakk violated the court's discovery order by showing up on August 16 without the witness.
3. Yes, because the facts show that Lakk acted obstinately and disrespectfully in defiance of Judge Jackson's direct order.
4. No, because when a party or a managing agent of a party violates a discovery order, the sanction must be imposed on the party or managing agent, not on the lawyer.
While she was attending law school at night, Adela served as a clerk for Judge Jones of the county court. During the course of her employment by Judge Jones, the case of Lyndon v. Baines came before Judge Jones. The case was very complicated and Adela did a lot of research on the case for Judge Jones, submitting a number of memoranda on issues in the case. Judge Jones always carefully supervised his clerks, and this case was no exception. He was exceptionally pleased with the care and high quality of Adela's work. Shortly after Judge Jones handed down his final judgment on Lyndon v. Baines, Adela was admitted to the bar and she accepted employment with Nixon, Dixon & Yates, a prominent local law firm. A few days later, Baines, who was the loser in the Lyndon v. Baines case, appeared at the offices of Nixon, Dixon & Yates. He told the interviewing attorney, "My lawyer at the trial was terrible. I hired him because he was cheap, and I guess I got what I paid for. I'd like your firm to handle the appeal." If Nixon, Dixon & Yates accepts Baines as a client, and Adela's supervising attorney asks Adela to handle the appeal, would it he proper for Adela to do so?
1. Yes, if no confidential information was revealed to Adela during her work on the case for the judge.
2. Yes, because Adela was not licensed to practice law when she worked on the case for the judge.
3. No, because Adela was previously personally and substantially involved in work on the case.
4. No, unless Judge Jones consents.
The State Bar and the State University are joint sponsors of the State Continuing Legal Education Foundation. The purpose of the Foundation is to provide continuing legal education to lawyers and judges in the state. Its board of directors is composed one-half of members of the legal profession and one-half of university personnel. Judge Anistopolous has been invited to serve on the board of directors. Which of the following are correct? I. She. may serve on the board of directors, as long as it does not interfere with her judicial duties. II. It would not be proper for her to serve on the board of directors, since to do so would involve her in the teaching of law. III. If she serves on the board of directors, it would not be proper for her to accept the modest salary that is paid to other directors. IV. If she serves on the board of directors, she may accept the modest salary that is paid to other directors.
1. I. and IV. only.
2. II. only.
3. I. and IV. only.
4. None of the above.
Assistant District Attorney Krytzer has been assigned to prosecute Abdala for petty theft and attempted sale of stolen property. Abdala's arrest was the result of information provided by O'Leary, a local pawnbroker. O'Leary has himself been in trouble with the law on prior occasions, but he is not suspected of any present crime. Abdala is represented by Public Defender Fuchinello. Krytzer wants to interview O'Leary for possible use as a prosecution witness. Which of the following is most nearly correct?
1. Krytzer may interview O'Leary without Fuchinello's consent, but he would be subject to discipline for inquiring about O'Leary's prior criminal record.
2. Krytzer would be subject to discipline if he interviewed O'Leary without Fuchinello's consent.
3. Krytzer may interview O'Leary, but only with Fuchinello's consent, and Krytzer would be subject to discipline for inquiring about O'Leary's prior criminal record.
4. Krytzer may interview O'Leary without Fuchinello's consent.
The city of Auburn is located in State A. The city of Burnett is located right across the river in State B. Many people who live in Burnett work and shop in Auburn, and vice versa. Lawyer Alford is admitted to practice in State A, but not State B, and Alford has his law office in Auburn. When he is asked to represent a criminal defendant in the Burnett Superior Court, he customarily refers the case to lawyer Bemis. Bemis has his law office in Burnett. He is admitted to practice in State B, but not State A. Likewise, when Bemis is asked to represent a client in the Auburn Municipal Court, he refers the case to Alford. Each customarily sends the other a small referral fee. The precise amount of the fee varies in accordance with the gravity and complexity of the case. In no case does the referral fee increase the amount paid by the client. Bemis and Alford have evolved their mutual arrangement in order to provide better service to their respective clients. Is the arrangement proper?
1. Yes, since Alford is not licensed in State B, and Bemis is not licensed in State A.
2. Yes, since the clients are not required to pay more than they would otherwise pay.
3. No, because, on the facts given, the referral fee could not be proportionate to the services rendered by the referring lawyer, and there is no indication of joint representation.
4. No, because a lawyer is not allowed to earn fees for work done in a state where that lawyer is not licensed.
Attorney Bob was engaged in a partnership law practice with his sister, Sarah, for almost 10 years. Sarah then decided to run for judge. She was successful in her efforts and was duly sworn in as one of the 15 sitting judges on the district court. According to state venue rules, at least 90% of the cases that Bob usually handles must be filed with the district court. Would it be proper for Bob to continue to handle such cases and appear before the district court?
1. Yes, unless an opposing party objects.
2. No, because it creates an appearance of impropriety.
3. Yes, unless Bob implies that his clients will receive unfair advantages because his sister is a judge.
4. No, because an attorney should not appear in a district court where a close relative serves as one of the judges.
Capra hired lawyer Laslo to represent him in a personal injury action against Giant Co. As Capra and Laslo discussed the case, Capra stated, "Of course, I can't predict what the future will hold, but I am ready to go all the way on this. If we have to go to trial to see justice done, so be it. I probably wouldn't agree to a settlement under $500,000, no matter what." Laslo agreed that the claim was worth at least that, but felt they would receive a much higher award if the case went to a jury. Shortly before the trial started, the lawyer for Giant Co. contacted Laslo with a settlement offer of $150,000. Laslo tried to call Capra, but couldn't reach him. After two hours of trying to reach Capra, Laslo called Giant Co. back and rejected the offer. At trial, the jury awarded Capra $1 million. Is Laslo subject to malpractice liability for his actions?
1. No, because Capra impliedly authorized Laslo to reject any offer under $500,000.
2. No, because the jury award was much greater than the settlement offer.
3. Yes, because decisions to accept or reject settlement offers are to be made by the client.
4. Yes, because a lawyer has a duty to keep his client informed of all settlement offers.
During the course of researching a reply brief, attorney Amy discovered a case in the controlling jurisdiction that seemed to be right on one of the key issues involved in the litigation that she was researching. Although much of the dicta in the case seemed to favor Amy's client, one critical sentence in the holding clearly put the court behind the position asserted by Amy's opponent, Bertram. However, Bertram had done a slipshod job of researching the issues and had failed to find the case and to cite it in his brief. Amy decided to cite the case in her reply brief, but she cited the case as favoring her client by quoting much of the dicta and deliberately omitting the key sentence in the holding. Amy filed the reply brief with the court and sent a copy to Bertram, who she knew often bragged, "I haven't actually read a case since my first year of law school." Amy was also aware that this judge's clerks tended to be overworked and so did not always read all the cases cited by attorneys in their briefs. Therefore, she hoped that the negative aspects of the case might slip by unnoticed by the judge and opposing counsel. Is Amy subject to discipline?
1. No, because an attorney has no duty to educate, and Amy fulfilled her duties to the court and opposing party by citing the case.
2. Yes, because Amy is attempting to mislead the tribunal.
3. No, because an attorney has a duty to present cases in the light most favorable to her client.
4. Yes, because an attorney has a duty to cite all opposing cases accurately and objectively.
Attorney Almas was fully licensed to practice in State Green. Her office was located in Endogreen, a small town located on the extreme western border of State Green, on the western edge of a desert area. Almas received a retainer from client Chum, with the agreement that Almas would use funds from the retainer for such things as filing fees when they came due. There was no federally insured bank or savings institution in Endogreen. The nearest such institution in State Green was located in the county seat, which was over 60 miles away from Almas's office and where Almas and Chum resided. Therefore, Almas decided to put Chum's money in his client trust account in a bank in Blue start, a medium-sized city located just across the state line in neighboring State Blue. The account was fully insured by the federal government, hut was not an interest-bearing account. Almas is not licensed to practice law in State Blue. Was it proper for Almas to place Chum's money in an account in State Blue?
1. No, because the funds were not placed in an interest-bearing account.
2. No, because Almas is not licensed to practice in State Blue.
3. Yes, because retainer fees belong to the attorney and not to the client.
4. Yes, because client funds must be placed in a safe account and the closest federally insured institution was in Bluestart.
Defendant Devereaux was charged with first degree murder. It is claimed that Devereaux captured his victim, dragged her into dense woods, and stabbed her with a knife. Devereaux has pleaded not guilty. Pamela is the prosecutor, and Denise is Devereaux's defense attorney. During the prosecution's case-in-chief, one of Pamela's witnesses testified that he had seen Devereaux's car near the scene of the crime shortly before the murder. This courthouse has no private room set aside for conferences between defendants and their counsel. Thus, at the next recess, Denise and Devereanx held a hurried, whispered conference in the hallway, as follows: Denise: "Were you driving around that area at the time?" Devereaux: "Yes." Denise: "Why didn't you tell me that before?" Devereaux: "I didn't realize that anybody saw me." Unbeknownst to Denise and Devereaux, Pamela was standing nearby and overheard their whispers. Which of the following are correct? I. Pamela should seek the court's permission to withdraw as trial counsel and testify to what she heard. II. Pamela should ignore what she heard and proceed with the case in the normal manner. III. Denise should seek the court's permission to withdraw as trial counsel and inform the trial judge in chambers what Devereaux said. IV. Denise should proceed with the case in the normal manner, even though Devereaux's statement may cause her to doubt his innocence.
1. Only I. and IV.
2. Only II. and III.
3. Only II. and IV.
4. Only I. and III.
Attorney April represents Chuck, plaintiff in a personal injury suit arising out of an automobile collision. Chuck asserts that he had the right-of-way to enter the intersection where the accident occurred. The defendant claims otherwise, but Chuck tells April that there was a witness present who would be able to verify Chuck's version of the accident. April obtains a copy of the police report on the accident, but the name of the witness is not contained in the report. April contemplates running an ad in the newspaper or hiring an investigator to find the witness, but April concludes that Chuck's testimony ought to be strong enough to win the case. The case comes to trial, and the jury finds for the defendant. Is April subject to discipline for failure to try to find the witness?
1. No, because the name of the witness was not in the police report.
2. Yes, because she failed to properly prepare the case.
3. Yes, because her client lost.
4. No, if she reasonably believed that Chuck's testimony would be sufficient.
Newspaper reporter Dabba Ratchet writes a semi-humorous gossip column in which she reports on the vices and victories in the private lives of prominent citizens. Among her favorite targets are judges and lawyers. Over the years, Ms. Ratchet and lawyer Lubner have worked out a tacit arrangement. Every now and then in her column, Ms. Ratchet gives glowing praise to Lubner's legal talents; in return, Lubner calls Ms. Ratchet whenever he learns a juicy tidbit about another lawyer or judge. Is Lubner's conduct proper?
1. No, because a lawyer is subject to discipline for demeaning members of the legal profession.
2. No, because a lawyer should not use this means of obtaining favorable publicity.
3. Yes, unless the information that Lubner gives her is the subject of a privilege or a confidential relationship.
4. Yes, unless the information that Lubner gives her is untrue.
After a major airplane crash in the vicinity of Biggston, in which 122 passengers and crew were killed, Biggston's attorneys swarmed like locusts to get a "piece of the action" and the potentially huge contingent fees that were likely to arise from the case. Interested in fees himself, but also rather disgusted at the performance of some of his colleagues of the bar, attorney Axe/ placed an ad in the Biggston Law Journal, a weekly newspaper whose readership was almost entirely lawyers. The ad suggested that any attorneys representing plaintiffs in the airline crash matter contact him in order to consolidate lawsuits against the airline. The ad ended with a statement, "This should materially benefit everyone in that it should reduce court costs and encourage prompt settlements for our clients." The ad was signed by Axel and indicated his office address and telephone number. Was it proper for Axel to place such an advertisement?
1. No, because the ad is in bad taste.
2. Yes, if the lawyers will split the fees in proportion to work done.
3. Yes, provided the ad was not misleading.
4. No, because Axel is soliciting business.
Sales manager Morton testified before a federal grand jury that was investigating price-fixing in the automobile tire industry. Ultimately the grand jury indicted Morton for price-fixing, a felony under the Sherman Act. After his indictment, Morton sought to hire attorney Agnes to represent him at his criminal trial. Morton is a middle class business executive with enough savings to pay for private counsel. He told Agnes in confidence that he had lied to the grand jury about several meetings he had had with competitors. Further, he told her that he wanted to plead not guilty to the criminal charge, and he told her that he intended to testify as he did before the grand jury. Which of the following would be proper for Agnes to do in this situation? I. Decline to represent Morton. II. Agree to represent Morton, and represent him as best she can at the criminal trial. III. Inform Morton that unless he pleads guilty to the criminal charge, she will tell the prosecutor about his false testimony before the grand jury. IV. Decline to represent Morton, and inform the prosecutor about his false testimony before the grand jury.
1. I. or II. only.
2. I. or III. only.
3. IV. only.
4. I. only.
Attorney Patricia limits her law practice to the representation of plaintiffs in actions for medical malpractice. She has developed a standard employment contract to use with all clients who desire a contingent fee arrangement. The contract requires the client to pay in advance the first $500 of litigation expenses, and states that Patricia�s fee shall be 20% of any amount recovered without going to trial, 30% of any amount recovered if the case goes to trial, and 35% of any amount recovered if the case is appealed. Client Nesbitt signed Patricia�s standard form contract. After putting in only 10 hours' work on Nesbitt's case, Patricia was able to work out a settlement agreement in which Nesbitt received $10,000 from the defendant' s malpractice insurance carder. Nesbitt was delighted with the settlement, but he is unhappy with having to pay 20% of it ($2,000) m Patricia for so few hours' work. With respect to the clause of Patricia's standard form contract that requires the client to pay in advance the first $500 of litigation expenses, which of the following is most nearly correct?
1. Patricia is subject to discipline for using the clause because clients are required to pay litigation expenses as they are incurred.
2. Patricia is subject to discipline for using the clause because an attorney is required to advance reasonable litigation expenses to contingent fee clients.
3. The clause is proper, unless $500 is a clearly excessive estimate of the amount of litigation expenses that will be incurred in the ordinary medical malpractice case.
4. Patricia should delete the clause because it is an effort to impose a uniform provision on all clients, irrespective of their particular needs and situations.
Charlene was involved in an aviation mishap. The airline company has admitted liability and has settled with 10 other persons involved in the mishap for amounts ranging between $120,000 and $150,000. Charlene's injuries are very similar to those suffered by the persons with whom the airline has settled. Charlene received a settlement offer of $135,000 from the airline company. Upon receiving the offer, Charlene decided to employ counsel to determine if the offer was a fair amount, and generally to read over the settlement papers and the release that the airline asked Charlene to sign to get the $135,000. Charlene went to the offices of attorney Alp, bringing the settlement papers and release with her. She asked Alp what his hourly fee for reading the papers would be. Alp responded that Charlene had a personal injury case and that Alp's standard fee for personal injury cases was 30% of any settlement or judgment received by the plaintiff. Is Alp subject to discipline?
1. No, because contingent fees are appropriate in personal injury cases.
2. No, because Charlene was free to obtain counsel other than Alp.
3. Yes, if 30% exceeded the usual contingent fee percentage in Alp's geographical area of practice.
4. Yes, because Alp's fee bears no rational relationship to the time and effort required to perform the work requested by the client.
Before Judge Jerkins was elected to the bench, she and her law partner, Perkins, purchased a piece of property to be held in cotenancy by Perkins and Jerkins. After Judge Jerkins was elected to the bench, Judge Jerkins agreed to pay Perkins an annual fee to manage the property, since Judge Jerkins's time would be severely limited by her judicial duties. Judge Jerkins and Perkins meet every three months to discuss the status of the property. Perkins sometimes appears as an attorney in Judge Jerkins's courtroom. Was it proper for Judge Jerkins to make this arrangement with Perkins?
1. Yes, because Judge Jerkins acquired the property before she became a judge.
2. No, because judges should not engage in remunerative outside enterprises.
3. Yes, if dealings concerning the property do not take up so much of Judge Jerkins's time that her judicial duties will suffer.
4. No, because Perkins appears in cases before Judge Jerkins's court.
Lawyer Lewellen represented defendant Devonshire in a felony case that charged him with intentional evasion of over $9 million in state income tax. Devonshire allegedly earned the unreported income from selling child pornography. The state's criminal procedure law requires a unanimous jury verdict to convict in a felony case. Midway through the prosecutor's case-in-chief, Lewellen instructed one of Devonshire's employees, Snagg, to attend the trial daily, to sit in the spectator section as close as possible to the defense counsel table, and to "put the evil-eye on Juror No. 4, the little guy with the pink nose." Snagg, a wicked-looking man with a jagged scar down the side of his face, attended every court session and stared constantly with cold, squinting eyes at Juror No. 4. One day, when no one but Juror No. 4 was looking, Snagg pointed his hand like a pistol directly at Juror No. 4's head, and pretended to shoot by moving his thumb downward. Then Snagg smiled an evil smile and continued to stare. Juror No. 4 was too frightened to tell anyone, but he endured the torment day after day. Finally the case was submitted to the jury, and Juror No. 4 joined the rest of the jurors in returning a prompt, unanimous verdict of guilty. Is Lewellen subject to criminal liability for what Snagg did?
1. No, because Juror No. 4 was not intimidated; he voted to convict along with the rest of the jury.
2. No, Lewellen may be subject to sanction by the court or discipline by the bar, but not criminal liability.
3. Yes, but only if it is proven that Lewellen induced Snagg to intimidate Juror No. 4 for the purpose of influencing the jury verdict.
4. Yes, but only if it is proven that Lewellen gave Snagg money, or something else of value, to stare and gesture at Juror No. 4.
Attorney Aria placed an advertisement in the Clarion, a newspaper of general circulation published in Old Salem, the city in which Aria practiced. The ad contained Arla's name, office address, telephone number, and the following additional information: (i) "Attorney Arla is a graduate of State University Law School"; (ii) "Attorney Aria has an M.B.A. from the Graduate School of Business of Laffercurve University''; and (iii) "Attorney Arla is the only lawyer in town who speaks fluent Spanish." Is Arla's advertisement proper?
1. Yes, provided the Clarion's distribution area is limited to Old Salem.
2. No, because an M.B.A. is not law-related.
3. No, because the ad is self-laudatory.
4. Yes, if all statements contained therein are true.
Lawyer Munoz was employed to represent Claus Schnauffier at his trial for treason. Schnauffier was charged with smuggling top secret military information to a foreign government. Munoz had reason to suspect that some of the prosecution's witnesses were paid liars. Therefore, with Schnauffier's consent, Munoz hired Dr. Clara Belle to assist him in the defense. Dr. Belle is a psychologist whose specialty is the behavior of liars. Munoz agreed with Schnauffier that Munoz would advance Dr. Belle's fee as a part of the expenses of litigation. At the trial, Dr. Belle sat with Munoz at the counsel table. She watched the witnesses testify, and she advised Munoz when she believed that a witness was lying and ought to be pursued on cross-examination. Most of the time, Munoz followed Dr. Belle's advice, but sometimes he did not. Ultimately, Schnauffier was convicted and sent to prison for 20 years. Which of the following propositions are correct? I. Munoz is subject to discipline for allowing a third party to interject herself into the relationship between him and his client. II. Munoz is subject to discipline for advancing Dr. Belle's fee as a part of the expenses of litigation. III. Munoz is subject to discipline for allowing a nonlawyer to sit at the counsel table and to participate in his legal representation of a criminal defendant.
1. Only III. is correct.
2. Only I. and III. are correct.
3. None of the above is correct.
4. I., II., and III. are all correct.
Hal and Wilma, a married couple, experienced continuing marital difficulties and, being unable to resolve their problems, decided to divorce. Wilma retained attorney Ambrose, and Ambrose filed papers on Hal. Shortly after he was served, Hal telephoned Ambrose and suggested that "all this can be resolved amicably.'' Ambrose asked Hal if he was represented by counsel. Hal replied that he was not, to which Ambrose said, "I strongly advise you to retain an attorney to represent you and safeguard your interests." Hal insisted, "I don't need a lawyer." A few weeks later, after ascertaining that Hal still had not retained counsel, Ambrose sent Hal a proposed "Division of Marital Property." There were spaces at the bottom for both Hal and Wilma to sign, but the copy sent to Hal was unsigned by Wilma. In his cover letter to Hal, Ambrose indicated that Hal could sign the settlement agreement, which Ambrose characterized as "fair and equitable." However, Ambrose also stated in the letter that, "I am not your attorney and therefore cannot advise you whether or not you should sign this, and I strongly urge that you obtain independent counsel to review these papers before you sign them. However, Hal, the choice remains yours, and I cannot compel you to hire an attorney to protect your interests." Were Ambrose's actions in handling Hal and Wilma's divorce proper?.
1. No, because Ambrose did not have Wilma sign the settlement papers before sending them to Hal.
2. No, because Ambrose should have required that Hal have the papers reviewed by an attorney.
3. Yes, because Ambrose did not give Hal legal advice.
4. Yes, because Ambrose urged Hal to obtain representation.
Walters is insured under an auto liability policy issued by Farmers Insurance Company. The policy requires Farmers to provide a lawyer to defend Waiters, and it requires Walters to cooperate in the defense. Walters had an accident and was sued. In a sworn statement to Farmers' insurance investigator, Walters told a story that showed he was clearly not at fault. Based on that story, Farmers rejected plaintiff's offer to settle the case for a modest sum. Farmers hired attorney Chen to represent Walters at the trial of the case. Shortly before trial, Walters told Chen in confidence that he had lied to the investigator, and he recounted facts that showed he was clearly at fault in the accident. Chen realized that under the applicable state law, Walters's falsehood was a breach of the "cooperate in the defense" clause, and that it relieved Farmers of any further duties to Walters. At this juncture, what should Chen do?
1. Promptly advise Walters that his best interests will be served by reverting to the story he told originally to the insurance investigator.
2. Promptly advise Farmers of the situation and carry out Farmers' instructions as to how to dispose of the matter.
3. Promptly advise Walters of the legal consequences of his false statement, and continue representing Walters and Farmers in the matter as best he is able in the circumstances.
4. Promptly seek the court's permission to withdraw from the matter, without revealing Walters's confidential statement to anyone.
Three months from now, Judge Torpor will be up for reelection. His opponent is Vernon Vigoroso, a bright and ambitious young attorney in the prosecutor's office. Due to the press of his judicial duties, Judge Torpor has not paid much attention to the upcoming election. One afternoon an old law school friend, Getta Movin, visits him in his chambers. She convinces him that he must get busy if he hopes to defeat Vigoroso. Getta frequently represents clients in Judge Torpor's court, and he trusts her judgment and ability; thus, he agrees to have her serve as chairperson of his reelection campaign committee. Which of the following would be proper in the context of Judge Torpor'a campaign for reelection? I. Getta contributes $200 of her own money to the campaign fund. II. Getta urges other lawyers who appear in Judge Torpor's court to make contributions to his campaign fund. III. Getta urges other lawyers who appear in Judge Torpor's court to allow their names to be listed in a half-page newspaper advertisement in favor of Judge Torpor's reelection. IV. Getta urges the local newspaper that will run the half-page advertisement to give her a discount from the regular commercial advertising rate because her advertisement concerns a campaign for public office.
1. I. only.
2. I. and II. only.
3. I., II., and III. only.
4. All of the above.
Attorney Asrrid represented Charles and Wanda, a married couple, for many years, handling such matters as wills, real estate closings, and the occasional lawsuit. Wanda died suddenly, and shortly after her funeral Astrid paid a visit to Charles, wishing to pay her respects as a friend as well as Charles's attorney. Astrid found Charles in an obviously drunken state. He told Astrid that he just "couldn't go on" without his wife and that he planned to commit suicide that evening. He told Astrid directly, "I know you're a friend and you mean well, but I don't want you to do anything to try to stop me." Using a rose to distract the intoxicated Charles, Astrid called the police, who promptly took Charles to the psychological emergency receiving area of University Hospital. Suicide is a felony in the criminal code of State Brown, where Astrid is licensed to practice law. Was Astrid's conduct proper?.
1. Yes, because her client was drunk.
2. Yes, because her client proposed to commit a crime involving serious bodily harm.
3. No, because she disobeyed a clear directive of her client.
4. No, because she revealed a client's confidences to the police.
Attorney Alice and attorney Baxter were brother and sister. They were licensed to practice in the Province of Manitoba, Canada. For five years they practiced together in a partnership in Winnipeg, Manitoba. Alice then moved to International Falls, Minnesota, where she passed the Minnesota Bar Examination and was duly licensed to practice law in the state of Minnesota. She opened up a law office in International Falls and had letterhead stationery printed which read "Alice and Baxter, Partners, Attorneys at Law." Is it proper for Alice to use such letterhead?
1. Yes, because American courts have no jurisdiction over Canadian attorneys.
2. Yes, because both Alice and Baxter are licensed to practice law.
3. No, because the letterhead indicates Alice is aiding the unauthorized practice of law.
4. No, because Canadian lawyers must swear an unconstitutional oath of loyalty to a foreign monarch.
Lewis, an attorney, was formerly employed by the Environmental Protection Agency ("EPA") as government counsel in the New York office. In this capacity, Lewis acted as chief counsel in several suits brought by the EPA involving chemical dumping into public waterways. Two years after leaving the employ of the EPA, Lewis was retained to represent Acme Chemical Corporation in a suit brought by the EPA alleging violations of certain EPA regulations regarding the dumping of chemical wastes. While with the EPA, Lewis was never directly involved in a case concerning Acme Chemical Corporation. The EPA Washington office had exclusive responsibility for the drafting, promulgation, and enforcement of the regulations in question. Which of the following statements is correct?
1. Lewis may represent Acme, but only with the consent of the EPA.
2. If Lewis represents Acme, he will be subject to discipline, even if the EPA consents to the representation.
3. If Lewis represents Acme without the consent of the EPA, he will be subject to discipline.
4. Lewis may represent Acme, whether or not the EPA consents.
Criminal defendant Daggs is facing trial for the unlawful possession of a large quantity of a controlled substance---specifically, 400 kilograms of cocaine. Daggs originally asserted that he could not afford to pay a lawyer, and the court arranged for him to be represented by a public defender. Later, Daggs was visited in jail by one Wiggens, who identified himself as a skilled criminal defense lawyer who had been hired by Daggs's "friends" to defend him. Wiggens said that Daggs would not have to pay anything for the legal defense if Daggs "played the game straight" and did not implicate the "friends" in the cocaine caper. Daggs consented to the conditions, and in due course Wiggens was substituted in as defense counsel. Shortly before trial, the prosecutor offered Daggs an attractive plea bargain---a mere six months in jail in exchange for a guilty plea, an identification of the persons for whom Daggs was transporting the cocaine, and testimony against those persons. Wiggens solemnly advised Daggs to reject the plea bargain, saying: "Not only would you owe me a big fee, but your friends would dismember you." Daggs did reject the plea bargain. Thereupon the prosecutor moved to disqualify Wiggens as defense counsel on the ground that he was being paid by an unidentified third party and that the third party was unduly interfering with Daggs's constitutional right to effective assistance of counsel. Is Wiggens subject to disqualification?
1. No, because Daggs consented to the fee arrangement after having been informed of the conditions on which it was offered.
2. Yes, because both the prosecutor and the judge have a duty to protect the defendant's constitutional right to the effective assistance of legal counsel.
3. Yes, because in a criminal case it is unlawful for a private criminal defense lawyer to accept compensation from an outsider for his legal services.
4. No, because the prosecutor has no right to interfere with a criminal defendant's choice of counsel.
Cesar comes to attorney Abigail with an invention he wants to patent. Cesar explains that he and a competitor have been racing one another to come up with the ideal cleaning solution. If Cesar's competitor were to find out that Cesar was at the patent stage, and worse, if he found out Cesar's formula, Cesar would be mined. Abigail, a trained and certified patent attorney, agrees to represent Cesar in the patent process. The invention involves complex chemical formulae, and Abigail's particular area of expertise is electronic devices. However, having worked with inventions of all types, she has no doubt that she can properly shepherd the solution through the patent process. In putting together the necessary paperwork, Abigail asks Barbara and David, who are associates in her firm and hold chemistry degrees, to help her out on the project. In due time, Cesar's product receives a patent. Cesar's total bill for legal fees was $60,000, which was reasonable for the work done. When Abigail received Cesar's final payment, she decided to give Barbara and David each a $10,000 bonus from the fee. Are Abigail's actions proper?.
1. Yes, unless the division of the fee is not in proportion to the work performed by Barbara and David.
2. No, unless Cesar consented after consultation to the disclosure of information to Barbara and David.
3. No, unless Cesar consented to the splitting of the fee with Barbara and David.
4. Yes, because with the aid of her associates, she was competent to handle the matter.
Attorneys A and B are law partners. They are, however, contemplating incorporation of their law practice. With respect to the proposed incorporation, which of the following statements best describes what A and B may properly do? I. A and B may incorporate their law practice and convey an interest in the corporation to their children. II. A and B may incorporate their law practice and thus avoid liability to clients for malpractice. III. A and B may incorporate their law practice and when they die, a fiduciary representative of their estates may hold the stock in the corporation for a reasonable time during administration. IV. A and B may incorporate their law practice and make their accountant treasurer of the corporation as long as the accountant does not own any interest in the corporation.
1. III. and IV. only.
2. III. only.
3. None of the above.
4. I., II., and IV. only.
Jones, the driver of a car, and Smith, his passenger, were injured as the result of a collision with a bus. Jones and Smith believe the bus driver was entirely at fault, and they want to bring a negligence action against the bus company. Jones and Smith seek to hire attorney Adams to represent them. Which of the following would be proper conduct by Adams? I. Accept the proffered employment only after informing Smith that he may have a cause of action against Jones and obtaining Jones's and Smith's consent to represent them both against the bus company. II. Withdraw from the common representation if discovery shows that Smith has a claim against Jones. III. Represent Jones and Smith, and also represent the bus company in a solely unrelated matter before the Transportation Board.
1. II. and III. only.
2. I. only.
3. I. and II. only.
4. None of the above.
Attorney A wants to advertise his legal services in a local newspaper. Which of the following statements would be proper for A to make in the advertisement? I. That he graduated Phi Beta Kappa from Lewis College and now teaches a course in Law and Economics. II. That he is a licensed real estate broker and a member of the National Broker's Association. III. That he speaks Polish and accepts credit cards. IV. That he is a major with the National Guard and a former State Senator.
1. I., III., and IV. only.
2. All of the above.
3. II. and IV. only.
4. I. and III. only.
The Department of Children's Services ("DCS"), a state agency, has removed Clara's children from her home and is attempting to terminate her parental rights. Clara retains lawyer Laura to fight DCS's actions. Prior to the first heating on the matter, a lawyer from DCS contacted Ben, Clara's brother, to set up an interview. The lawyer told Ben that he wanted to talk to him about Clara, and that the interview would last for about one hour. Ben, who is childless, had never had any contact with DCS before, and did not know what his duties were. He told the lawyer he would get back to him. Ben then called Laura. He told Laura that he does not want to talk to DCS because he is afraid he might inadvertently say something that will hurt Clara's case. Ben asked Laura how he should proceed. Laura replied, "My advice to you is to simply refuse the interview. You do not have to talk to them, and your sister will be better off if you don't. If they really want to talk to you, they can get a subpoena." Is Laura subject to discipline?
1. Yes, because she gave advice to an un-represented party.
2. Yes, because she is attempting to secure the noncooperation of a witness.
3. No, because Ben is Clara's brother and he did not want to hurt her case.
4. No, but only if she also advised Ben to seek the advice of independent counsel.
Attorney A is representing C. Judgment at the trial court is against C. C wants to appeal the case. The appellate court rules provide a 60-day deadline for the filing of appeals, and no exception is ever granted. During the first 30 days of the period, A was frantically busy in his office on other matters, and he had no chance to file the appeal. Then, during the second 30 days, he went on vacation and simply forgot to file the appeal. The trial court's error was so obvious that the appellate court would undoubtedly have reversed the case and entered judgment in C's favor. Which of the following is most nearly correct?
1. A is neither subject to discipline nor liable for malpractice.
2. A is liable for malpractice, but he is not subject to discipline.
3. A is subject to discipline, but he is not liable for malpractice.
4. A is both subject to discipline and liable for malpractice.
A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. In this regard, which of the following statements are correct? I. A lawyer may charge a reasonable fee since this allows the lawyer to serve his client effectively and preserves the integrity and independence of the legal profession. II. A lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse. III. A lawyer should not decline employment merely because the intensity of his personal feelings may impair his effective representation of a prospective client.
1. II. and III only.
2. I. and III. only.
3. I. and H. only.
4. All of the above.
Attorney Acheson represents Dell, who has pleaded guilty to a burglary charge. Dell told Acheson during one of their confidential conversations that this is the fourth time he has been busted for burglary, one other time in this state and two times in the neighboring state. Dell could be facing a mandatory 5-10 years in prison as a repeat offender, but he and Acheson are hoping that his pleading guilty will result in a shorter sentence. Unknown to Acheson or Dell, a glitch in the state computer files resulted in a presentencing report that did not pick up either Dell in-state or out-of-state prior convictions. At sentencing, Judge Johnson states, "Normally, I throw the book at young men like you who have no respect for the property of others. However, since I see you have no prior criminal record, I think you deserve another chance. I sentence you to two years probation and 300 hours community service." Both Acheson and Dell remain silent. Is Acheson subject to discipline?
1. No, because the mistake did not originate with Acheson or Dell.
2. Yes, because this is a sentencing hearing rather than a trial.
3. No, because Acheson could not reveal the confidential information even if he had been asked directly.
4. Yes, because failure to speak out when one knows that the court is operating on false information is the equivalent of affirmative misrepresentation.
Lawyer Lucy represents client Charlie, who is a writer and producer of Broadway stage plays. This morning Charlie telephoned Lucy and said: "Great news, Lucy! Anthony Hopper, the famous actor, has agreed to star in my new stage play, Guardian Angel. With Anthony Hopper in the lead, the play is certain to be a long-running blockbuster. Don't tell a soul because it's not public information yet. Please draft up the necessary legal papers and meet Hopper and me for dinner at 6 p.m. at the Franklin Club." After drafting the legal papers as Charlie requested, Lucy telephoned her friend Mitchell, who owns one of the best theaters on Broadway. Lucy said: "Mitch darling, I have a tip for you, but it will cost you $5,000. Are you buying?" Mitchell agreed to pay Lucy $5,000 for the tip, at which point she said: "Make a deal with Charlie to run his new play, Guardian Angel, in your theater. Set the rent so low Charlie can't refuse---even at a low rent you will make millions because Guardian Angel is going to be a long-running blockbuster. I can't tell you how I know that, but trust me." Mitchell promptly made the deal with Charlie, and he paid Lucy the $5,000. Is Lucy subject to civil liability to Charlie for selling the tip to Mitchell?
1. No, because Charlie was not harmed by what Lucy told Mitchell; in fact, Charlie benefited by getting one of the best theaters at a low rent.
2. No, because Lucy did not reveal Charlie's confidential information to Mitchell; indeed, Lucy told Mitchell that she could not disclose how she knew that Charlie's play would be a long-running blockbuster.
3. Yes, but only if Charlie was harmed by Lucy's unauthorized disclosure to Mitchell.
4. Yes, because Lucy profited by $5,000 from trading on Charlie's confidential information. She can be ordered to disgorge her profit to Charlie.
In which of the following situations is the attorney-client privilege applicable? I. Client C telephones her accountant and has him deliver tax returns and work papers to attorney A, who has been engaged to represent C in a tax case. II. Client C hires lawyer L to represent him in a relatively simple tax case. L employs his son A, a newly certified accountant, to help him with the case. At L's request, C discusses certain tax accounting facets of the case with A. III. Client C discloses confidential information to attorney A with the intention of hiring A to represent him. A, however, decides not to take the case.
1. All of the above.
2. I. only.
3. None of the above.
4. II. and III. only.
Attorney Allison, a member of the state bar, and Judge Jack, who sits on the district court, set up "The Profitable Probate School" ("PPS"). The announced purpose of the school was to educate laypersons as to probate procedures, to enable them to file their own papers and avoid the expenses of obtaining counsel for the probate process. The tuition was a modest $50 per student, which barely covered the expenses of books and forms handed out to the students. Despite the "Profitable" in PPS's name, Allison and Jack donated their time and received no remuneration from the school. However, each student was required to sign a paper that stated, "The $50 tuition fee establishes an attorney client relationship between an attorney teaching at PPS and all students. PPS and attorneys teaching therein are not liable for any damages that might be incurred by students as a result of pro se filings made in accordance with or at variance from instructions given by PPS." The statement was signed by Allison and Jack as "officers of the school." Is Allison subject to discipline?
1. Yes, because she has participated in the forcing of an attorney-client relationship upon the students.
2. No, because Allison is helping the public to avoid excessive legal fees through her participation in the school.
3. Yes, because an attorney may not limit her malpractice liability by contract.
4. No, because the clients agreed to the contract as a precondition for obtaining the benefits offered by PPS.
Attorney Anita is a fully licensed member of the state bar, but she is a rather junior associate with the prominent firm of Alpha, Beta, and Gamma, which handles many security matters. Anita interviewed Curry, a client who brought an exceedingly complex securities matter to the firm. Although Anita was highly competent, a couple of points in Curry's complex case were beyond her range of experience. Therefore, she consulted Gamma, one of the firm's senior partners, regarding these complicated issues. Gamma gave her excellent advice on how to handle the matters based upon his 30 years of experience in securities law. Anita continued to handle Curry's case and brought it to a successful conclusion. Was Anita's conduct proper?
1. Yes, if she kept the identity of her client secret when she consulted Gamma.
2. No, if she revealed any of her client's confidences and/or secrets to Gamma.
3. Yes, because she consulted with a lawyer in her own firm who had no reason to be screened from the case.
4. No, unless her client consented first.
Paul is a title insurance agent. In serving his customers, he routinely fills in the blanks in standard form documents that are prepared by lawyers. These documents include warranty deeds, quitclaim deeds, mortgages, releases of mortgages, affidavits as to debts and liens, lien waivers, and the like. On occasion, when his customers specifically ask, he advises them about the meaning and legal effect of the technical language used in the forms. Which of the following constitutes the unauthorized practice of law by Paul? I. Filling in the blanks on warranty deeds, quitclaim deeds, and mortgages. II. Filling in the blanks on affidavits as to debts and liens and lien waivers. III. Advising customers, at their request, about the meaning and legal effect of the technical language used in the forms.
1. All of the above.
2. III. only.
3. I. only.
4. None of the above.
L, P's attorney, knows that the statute of limitations on P's claim against D has run. However, the statute of limitations is an affirmative defense that D would waive if he failed to plead it. What should L do?
1. Not file the suit unless P consents to disclose the fact that the statute of limitations has run.
2. File the suit but inform the court that the statute of limitations has run.
3. Not file the suit as it is now a frivolous claim.
4. File the suit if P is willing to incur the legal fees and court costs.
Attorney A is a friend of B, a real estate broker. B is of the opinion that A is one of the best real estate lawyers in the community, and B recommends her to those persons seeking an attorney to close real estate transactions. Which of the following statements most correctly describes what A may do? I. A may represent clients referred by B, as long as A does not pay B a referral fee. II. A may give' B some of her professional cards to give to those persons seeking a real estate lawyer and accept employment resulting therefrom. III. A may take B and B's wife out to dinner as a way of expressing her appreciation for B's referrals.
1. II. only.
2. I. only.
3. All of the above.
4. None of the above.
According to the Code of Judicial Conduct, which of the following activities are improper for a judge? I. Teaching a course in advanced trial practice at a seminar for practicing attorneys, for a fee. II. Soliciting funds from the public to support the National Council on Penal Reform. III. Writing an article for a national magazine on fishing in the Great Lakes region. IV. Serving as the weekend manager at a local antique store.
1. All of the above.
2. I. and III. only.
3. II. and IV. only.
4. I., II., and IV. only.

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