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[PMBR 03-2] Attorney, a sole practitioner, limits his practice to personal injury cases. Attorney regularly places an advertisement in local newspapers. The advertisement contains the following statement: "Practice limited to personal injury cases, including medical malpractice." After seeing one of Attorney's advertisements, Baker approached Attorney for representation in a medical malpractice case. After a 30-minute interview Attorney told Baker: "I'm sorry, but I am very busy and your case appears to be very complicated. I would be happy to refer you to another lawyer who regularly practices in that field and who may have more room in his schedule. You should see another lawyer promptly before the statute of limitations expires and you lose your right to bring the lawsuit." Although Attorney did not charge Baker for the interview, Baker was upset at the waste of 30 minutes of her time. Baker did not contact another lawyer until eight months later, when she learned that the statute of limitations on her claim had expired six months after her interview with Attorney. In fact, Baker had a meritorious medical malpractice claim. Is Attorney subject to civil liability?
1. Yes, because Attorney did not advise Baker as to the date the statute of limitations would expire.
2. Yes, because Attorney falsely advertised his availability for medical malpractice cases.
3. No, because Attorney did not violate any duty owed to Baker.
4. No, because Attorney offered to refer Baker to another medical malpractice lawyer.
Alpha and Beta practiced law under the firm name of Alpha and Beta. When Beta died, Alpha did not change the firm name. Thereafter, Alpha entered into an arrangement with another attorney, Gamma. Gamma pays Alpha a certain sum each month for office space and for the use of Alpha's law library and secretarial services, but Alpha and Gamma each has his own clients, and neither participates in the representation of the other's clients or shares in fees paid. On the entrance to the suite of offices shared by Alpha and Gamma are the words "Law Firm of Alpha, Beta, and Gamma." Is Alpha subject to discipline?
1. No, because Alpha and Beta were partners at the time of Beta's death.
2. Yes, because Gamma is not a partner of Alpha.
3. No, because Gamma is paying a share of the rent and office expenses.
4. Yes, because Beta was deceased when Alpha made the arrangement with Gamma.
Attorney was employed as a lawyer by the state Environmental Control Commission (ECC) for ten years. During the last two years of her employment, Attorney spent most of her time in the preparation, trial, and appeal of a case involving the discharge by Deftco of industrial effluent into a river in the state. The judgment in the case, which is now final, contained a finding of a continuing and knowing discharge of a dangerous substance into a major stream by Deftco and assessed a penalty of $25,000. The governing statute also provides for private actions for damages by persons injured by the discharge of the effluent. Attorney recently left the employment of ECC and went into private practice. Three landowners have brought private damage actions against Deftco. They claim their truck farms were contaminated because they irrigated them with water that contained effluent from dangerous chemicals discharged by Deftco. Deftco has asked Attorney to represent it in defense of the three pending actions. Is Attorney subject to discipline if she represents Deftco in these actions?
1. Yes, unless the judgment in the prior case is determinative of Deftco's liability,
2. No, because Attorney has acquired special competence in the matter.
3. No, if all information acquired by Attorney while representing ECC is now a matter of public record.
4. Yes, because Attorney had substantial responsibility in the matter while employed by ECC.
Attorney Alpha is skilled in trying personal injury cases. Alpha accepted the representation of Plaintiff in a personal injury case on a contingent fee basis. While preparing the case for trial, Alpha realized that the direct examination and cross examination of the medical experts would involve medical issues with which Alpha was not familiar and, as a consequence, Alpha might not be able to represent Plaintiff competently. Without informing Plaintiff, Alpha consulted Beta, who is both a lawyer and a medical doctor and who is a recognized specialist in the care and treatment of injuries of the type sustained by Plaintiff. Alpha and Beta agreed that Beta would participate in the trial to the limited extent of conducting the direct examination and cross examination of the medical experts and that Alpha would divide the fee in proportion to the services performed and the responsibility assumed by each. Was the arrangement between Alpha and Beta proper? Yes, because the fee to be paid by Plaintiff was not increased by reason of Beta's association.
1. Yes, because the fee would be divided in proportion to the services performed and the responsibility assumed by each.
2. No, because Plaintiff was not advised of the association of Beta.
3. No, unless, upon conclusion of the matter, Alpha provides Plaintiff with a written statement setting forth the method of determining both the fee and the division of the fee with Beta.
Attorney represents Client, a famous politician in an action against Newspaper for libel. The case has attracted substantial publicity, and a jury trial has been demanded. After one of the pretrial hearings, as Attorney left the courthouse, news reporters interviewed Attorney. In responding to questions, Attorney truthfully stated: "The judge has upheld our right to subpoena the reporter involved (identified in our motion as Jane Doe) and question her on her mental impressions when she prepared the article." Is Attorney subject to discipline for making this statement?
1. No, because the trial has not commenced.
2. Yes, because Attorney identified a prospective witness in the case.
3. No, because the statement relates to a matter of public record.
4. Yes because prospective jurors might learn of Attorney's remarks.
Attorney Alpha has been employed as an assistant prosecutor in the District Attorney's office during the time that an investigation of Deft was being conducted by that office. Alpha took no part in the investigation and had no knowledge of the facts other than those disclosed in the press. Two months ago, Alpha left the district attorney's office and formed a partnership with Attorney Beta. Last week, Deft was indicted for offenses allegedly disclosed by the prior investigation. Deft asked Alpha to represent him. Alpha declined to do so, but suggested Beta. Is Beta subject to discipline if Beta represents Deft?
1. Yes, because Alpha was employed in the district attorney's office while the investigation of Deft was being conducted.
2. No, because Alpha had no responsibility for or knowledge of the facts of the investigation of Deft.
3. Yes, unless the District Attorney's office is promptly notified and consents to the representation.
4. No, unless Alpha participates in the representation or shares in the fee.
Deft was on trial for the murder of Victim, who was killed during a bar brawl. In the course of closing arguments to the jury, Prosecutor said, "Deft's entire defense is based on the testimony of Wit, who said that Victim attacked Deft with a knife before Deft struck him. No other witness testified to such an attack by Victim. I don't believe Wit was telling the truth, and I don't think you believe him either." Was Prosecutor's statement proper?
1. No, because Prosecutor alluded to the beliefs of the jurors.
2. Yes, if Prosecutor accurately stated the testimony in the case.
3. No, because Prosecutor asserted his personal opinion about Witness's credibility.
4. Yes, if Prosecutor, in fact, believed Wit was lying.
Attorney represents Client, the plaintiff in a civil action that was filed a year ago and is about to be set for trial. Client informed Attorney that he could be available at any time during the months of October, November, and December. In discussing possible trial dates with opposing counsel and the court clerk, Attorney was advised that a trial date on October 5 was available and that the next available trial date would be December 10. Without first consulting Client, Attorney requested the December 10 trial date because she was representing Deft, the defendant in a felony criminal trial that was set for October 20 and she wanted as much time as possible to prepare for that trial. Was it proper for Attorney to agree to the December trial date without obtaining Client's consent?
1. Yes, because a criminal trial takes precedence over a civil trial.
2. No, because Attorney should manage her calendar so that her cases can be tried promptly.
3. No, unless Attorney was court appointed counsel in the criminal case.
4. Yes, unless Client will be prejudiced by the delay.
Able, Baker, and Carter had been indicted for the armed robbery of the cashier of a grocery store. Together, Able and Baker met with Attorney and asked Attorney to represent them. Attorney then interviewed Able and Baker separately. Each told Attorney that the robbery had been committed by Carter while Able and Baker sat in Carter's car outside the store, that Carter had said he needed some cigarettes, and that each knew nothing of Carter's plan to rob the cashier. Attorney agreed to represent both Able and Baker. One week prior to the trial date, Able told Attorney that he wanted to plea bargain and that he was prepared to turn state's evidence and testify that Baker had loaned Carter the gun Carter used in the robbery. Able also said that he and Baker had shared in the proceeds of the robbery with Carter. It is proper for Attorney to:
1. continue to represent Baker and, with Able's consent and court approval, withdraw as Able's lawyer.
2. continue to represent Able and, with Baker's consent and court approval, withdraw as Baker's lawyer.
3. request court approval to withdraw as lawyer for both Able and Baker.
4. continue to represent Able and Baker, but not call Able as a witness.
While presiding over the trial of a highly publicized antitrust case, ABCO v. DEFO, Judge received in the mail a lengthy letter from Attorney, a local lawyer. The letter discussed the law applicable to ABCO v. DEFO. Judge knew that Attorney did not represent either party. Judge read the letter and, without mentioning its receipt to the lawyers in the pending case, filed the letter in his general file on antitrust litigation. Later, after reading the trial briefs in ABCO v. DEFO, Judge concluded that Attorney's letter better explained the law applicable to the case pending before him than either of the trial briefs. Judge followed Attorney's reasoning in formulating his decision. Was it proper for Judge to consider Attorney's letter?
1. No, because Attorney is not of record as counsel in the case.
2. No, unless Judge, prior to rendering his decision, communicated its contents to ail counsel and gave them an opportunity to respond.
3. Yes, if Attorney did not represent any client whose interests could be affected by the outcome.
4. Yes, because Judge did not initiate the communication with Attorney.
Attorney's recorded radio advertisement stated: "For a fee of $600 Attorney will represent a party to a divorce that does not result in a court trial of a contested issue of fact." Attorney had the advertisement prerecorded and approved by the appropriate bar agency for broadcast. Attorney retained a recording of the actual transmission in her office. Client, who had previously agreed with her husband to an uncontested dissolution of their marriage, heard the broadcast and called on Attorney in Attorney's office. Client told Attorney that she had heard the broadcast and asked Attorney to represent her. Attorney agreed to represent Client. Because of the nature of the parties' property, Attorney spent more time on the tax aspects of the case than Attorney anticipated. The time expended by Attorney, if charged at a reasonable hourly rate, would have resulted in a fee of $2,000. After the decree was entered, Attorney billed Client for $2,000. Is Attorney subject to discipline?
1. No, because Attorney, when the representation was accepted, did not anticipate the tax problems.
2. No, because Attorney's fee was a reasonable charge for the time expended.
3. Yes, because Attorney charged a fee in excess of the advertised fee.
4. Yes, unless Client pays the fee without protest.
Acton, a certified public accountant, has proposed to Attorney, a recognized specialist in the field of tax law, that Acton and Attorney form a partnership for the purpose of providing clients with tax-related legal and accounting services. Both Acton and Attorney have deserved reputations of being competent, honest, and trustworthy. Acton further proposes that the announcement of the proposed partnership, the firm stationery, and all public directory listings clearly state that Acton is a certified public accountant and that Attorney is a lawyer. Is Attorney subject to discipline if he enters into the proposed partnership with Acton?
1. No, because the partnership will assure to the public high-quality services in the fields of tax law and accounting.
2. Yes, because Attorney would be receiving fees paid for other than legal services.
3. Yes, because one of the activities of the partnership would be providing legal services to clients.
4. No, if Attorney is the only person in the partnership who gives advice on legal matters.
Client, who is under indictment for homicide, is represented by Attorney. II1 the course of representation, Client told Attorney that Client had previously killed two other persons in homicides completely unrelated to the murder indictment for which Attorney was providing representation. Attorney, with Client's consent, made a tape recording of Client's confession regarding the unrelated homicides. At Attorney's request, Client also drew a map on which he designated the remote locations of the graves of the victims of the unrelated killings. Those bodies have not been found by the police, and Client is not a suspect in either crime, both of which remain unsolved. Is Attorney subject to discipline for failing to disclose voluntarily to the authorities his knowledge of the two prior murders and the locations of the bodies of the victims?
1. No, because Attorney did not represent or advise Client with respect to the prior crimes.
2. Yes, because Attorney is impeding the state's access to significant evidence.
3. Yes, because as an officer of the court, Attorney must disclose any knowledge that he has, whether privileged or not, concerning the commission of the prior crimes by Client.
4. No, because the information was obtained by Attorney in the course of the representation.
Attorney Alpha is recognized as an expert in securities regulation law. Corp, a corporation, retained Alpha's law firm to qualify Corp's stock for public sale. After accepting the matter, Alpha decided that he preferred to spend his time on cases with larger fee potential, so he assigned responsibility for the Corp matter to Attorney Beta, an associate in Alpha's office who had recently been admitted to the bar. Beta protested to Alpha that he, Beta, knew nothing about securities regulation law and that he had too little time to prepare himself to handle the Corp matter competently without substantial help from Alpha. Alpha responded, "I don't have time to help you. Everyone has to start somewhere." Alpha directed Beta to proceed. Was Alpha's conduct proper in this matter?
1. No, because Corp had not given Alpha permission to assign Beta to work on the matter.
2. Yes, because as a member of the bar, Beta is licensed to handle any legal matter.
3. Yes, because Alpha may withdraw from a case if work on it would cause him unreasonable financial hardship.
4. No, because Alpha knew Beta was not competent to handle the matter, and Alpha failed to provide supervision adequate to protect the client's interest.
Attorney represents Bank in its commercial loan transactions. Corp has applied to Bank for a loan of $900,000 to be secured by a lien on Corp's inventory. The inventory, consisting of small items, constantly turns over. The security documents are complex and if improperly drawn could result in an invalid lien. Bank has approved the loan on the condition that Attorney prepare the necessary security instruments and that Corp pay Attorney's fees. This arrangement is customary in me city in which Attorney's law office and Bank are located. It is obvious to Attorney that he can adequately represent the interests of both Corp and Bank. After Corp and Bank consulted with other lawyers, each consented in writing to the representation. Is it proper for Attorney to prepare the security documents under these circumstances?
1. Yes, because the arrangement is customary in the community.
2. No, because Attorney's fees are being paid by Corp not Bank.
3. No, because Corp and Bank have differing interests.
4. Yes, because Bank and Corp have given their informed consent to the arrangement.
Attorney, recently admitted to practice, opened an office near a residential neighborhood and published the following advertisement in the local newspaper. COUPON Get Acquainted With Your Neighborhood Lawyer A. Attorney Suite 2 - 1100 Magnolia Avenue Sunshine City, State 01000 Telephone: (555) 555-5555 In order to acquaint you with our services, we are offering a one-hour consultation to review your estate plans, including your wills, trusts, and similar documents, all at the nominal cost of $25 to anyone presenting this coupon. Call now for an appointment. Is Attorney subject to discipline?
1. No, unless Attorney is seeking business from persons who are already represented by a lawyer.
2. No, if Attorney provides the services described for the fee stated.
3. Yes, because Attorney requires the use of a coupon.
4. Yes, because Attorney is soliciting business from persons with whom Attorney had no prior relationship.
Attorney represented Plaintiff in Plaintiff's action for defamation against Defendant. After Defendant's lawyer had filed and served an answer. Attorney, at Plaintiff's direction, hired Inv, a licensed private investigator, and instructed Inv to attempt to interview Defendant without revealing his employment. Inv succeeded in interviewing Defendant privately and obtained an admission from Defendant that the statements Defendant had made were based solely on unsubstantiated gossip. Is Attorney subject to discipline for obtaining the statement from Defendant in this matter?
1. No, because Attorney was following Plaintiff's instructions.
2. No, because the statement obtained was evidence that Defendant's allegations were unfounded.
3. Yes, because Attorney instructed Inv to interview Defendant.
4. Yes, because Attorney should have interviewed Defendant personally.
Attorney and Broker, a licensed real estate broker, entered into an agreement whereby Broker was to recommend Attorney to any customer of Broker who needed legal services, and Attorney was to recommend Broker to any client of Attorney who wished to buy or sell real estate. Attorney's practice is limited almost entirely to real estate law. Is Attorney subject to discipline for entering into the agreement with Broker?
1. No, if neither Attorney nor Broker shares in the other's fees.
2. Yes, because Attorney is compensating Broker for recommending Attorney's legal services.
3. No, if the fees of Attorney and Broker do not clearly exceed reasonable fees for the services rendered by each.
4. Yes, because the arrangement constitutes the practice of law in association with a non-lawyer.
Judge, prior to her appointment to the probate court, was a partner in Law Firm. Law Firm had an extensive probate practice. At the time of Judge's appointment, Law Firm had pending, before the court to which judge was appointed, numerous matters in which requests were being made for allowances for attorney's fees. When Judge left Law Firm, she was paid a cash settlement. She has no further financial interest in any matter handled by Law Firm. Judge is now being asked to rule on these requests for allowances for attorney's fees. Is it proper for Judge to rule on these requests?
1. Yes, if these requests are not contested.
2. No, because Judge was associated with Law Firm when these matters were pending.
3. No, unless Judge notes on the record in each case her prior association with Law Firm.
4. Yes, because Judge has no financial interest in the outcome of these cases.
Attorney, representing Client, with Client's approval settled a claim against Defendant for $60,000. The settlement agreement provided that one-half would be paid by Insco, Defendant's primary insurance carrier, and one-half by Sureco, a co-insurer. Attorney's agreed upon fee was 30% of the amount of the settlement. Attorney received Insco's cheek for $30,000 and a letter from Sureco advising that its check would be sent in two weeks. Attorney promptly advised Client and deposited the $30,000 in her Clients' Trust Account. Client demanded that Attorney send him the entire $30,000 and take her fee out of the funds to be received from Sureco. Which of the following would now be proper for Attorney? I. Send Client $30,000. II. Send Client $21,000 and retain $9,000 in her Clients' Trust Account. III. Send Client $21,000 and transfer $9,000 to her personal account.
1. I, 1I. and III
2. I only
3. I and II, but not III
4. I and III, but not II
Attorney is a well-known tax lawyer and author. During congressional heatings on tax reform, Attorney testified to her personal belief and expert opinion on the pending reform package. She failed to disclose in her testimony that she was being paid by a private client for her appearance. In her testimony, Attorney took the position favored by her client, but the position was one that Attorney believed was in the public interest. Was it proper for Attorney to present this testimony without identifying her private client?
1. Yes, because Attorney conscientiously believed that the position she advocated before Congress was in the public interest.
2. Yes, because Congress is interested in the content of testimony and not who is paying the witness.
3. No, because a lawyer may not accept a fee for trying to influence legislative action.
4. No, because a lawyer who appears in a legislative hearing should identify the capacity in which the lawyer appears.
Attorney represented Baker in a claim involving a breach of Baker's employment contract. The case was settled without suit being filed. The proceeds of the settlement were paid directly to Baker~ who subsequently paid Attorney in full for Attorney's fee and expenses. Thereafter, Attorney did no other work for Baker. Baker is now being audited by the Internal Revenue Service (IRS). The IRS has asked Attorney for details of the settlement, including the amount claimed for each item of damage and the amounts paid for the items. Attorney reported the request to Baker who told Attorney not to provide the information to the IRS. Is it proper for Attorney to furnish the information to the IRS?
1. No, because Baker told Attorney not to provide the information.
2. Yes, because Attorney no longer represents Baker.
3. No, unless Attorney believes the disclosure would be beneficial to Baker.
4. Yes, if the information does not involve Attorney's work product.
Attorney represents Driver, the plaintiff in an automobile accident case. Two weeks before the date set for trial, Attorney discovered that Wilt was an eyewitness to the accident. Attorney interviewed Witt. Witt's version of the accident was contrary to that of Driver and, if believed by the trier of fact, would establish that Driver was at fault. Witt told Attorney that she had not been interviewed by defense counsel. Witt also told Attorney that she intended to leave for Europe the following week for a one-month vacation unless she had an obligation to remain and attend the trial. Attorney told Witt: "No one has subpoenaed you yet. You have no legal duty to make yourself available. Trials can be difficult affairs. Witnesses sometimes get very nervous because of the questions asked by the lawyers. Why don't you take the vacation as planned, and, by the time you return, the trial will be over." Is Attorney subject to discipline.'?
1. Yes, because Attorney did not subpoena Witt knowing she was an eyewitness.
2. Yes, because Attorney advised Witt to leave the jurisdiction.
3. No, because Attorney did not offer Witt any inducement not to appear at the trial.
4. No, because Witt had not been subpoenaed by the defense.
Attorney is employed by Client, a fugitive from justice under indictment for armed robbery. Attorney, after thorough legal research and investigation of the facts furnished by Client, reasonably believes the indictment is fatally defective and should be dismissed as a matter of law. Attorney advised Client of his opinion and urged Client to surrender. Client told Attorney that she would not surrender. Attorney informed the District Attorney that he represented Client and that he counseled Client to surrender, but that Client refused to follow his advice. Attorney has not advised Client on how to avoid arrest and prosecution and he does not know where Client is hiding. Is Attorney subject to discipline if he continues to represent Client?
1. No, because Attorney reasonably believes the indictment is defective.
2. Yes, because Client is engaged in continuing illegal conduct.
3. No, because Attorney is not counseling Client to avoid arrest and prosecution.
4. Yes, because client refused to accept Attorney's advice and surrender.
Attorney in his capacity as part-time .assist .ant county attorney represented County m a criminal non-support proceeding against Husband. This proceeding concluded with an order-directing Husband to pay or be jailed. Husband refused to pay. Attorney, pursuant to applicable rules, is permitted to maintain a private law practice. Wife has discovered some assets of Husband. Attorney now has accepted employment from Wife to maintain a civil action against Husband to recover out of those assets arrearages due to Wife under Wife's support decree. Attorney did not obtain consent from the county attorney or from Husband to represent Wife in the civil action. Is Attorney subject to discipline for accepting employment in Wife's civil action against Husband?
1. No, because Attorney's responsibility in his public employment has terminated.
2. No, because Attorney is representing Wife's interest in both the criminal and the civil proceedings.
3. Yes, because Attorney had personal and substantial responsibility in the first proceeding.
4. Yes, because Attorney did not obtain Husband's consent to the representation.
Attorney is a lawyer for City and advises City on all tort claims filed against it. Attorney's advice is limited to recommending settlement and the amount thereof. If a claim is not settled and suit is filed, defense of the suit is handled either by lawyers for City's insurance carrier or by outside counsel specially retained for that purpose. In connection with any notice of claim and before suit is filed, Attorney arranges for an investigator to call upon the claimant at the claimant's home and, with no one else present, to interview the claimant and endeavor to obtain a signed statement of the claimant's version of the facts. Claimant has filed a notice of claim against City. Attorney has sent an investigator to interview Claimant. Is Attorney subject to discipline for arranging an interview with Claimant?
1. No, because claimant had not filed suit at the time of the interview.
2. Yes, if Claimant was known by Attorney to be represented by counsel.
3. No, because Attorney would not be representing City in any subsequent litigation on Claimant's claim.
4. Yes, if the statement taken is later used to Claimant's disadvantage.
Delta, a lawyer, has just joined the Law Offices of Alpha and Beta, a professional corporation engaged solely in the practice of law. Delta is a salaried associate and is not a member or shareholder of the professional corporation. Alpha's spouse, Veep, who is not a lawyer, is vice-president of the corporation and office manager. All of the other officers are lawyers in the firm. Alt of the corporate shares are held by lawyers in the corporation, except for ten shams held by the executor under the will of a lawyer member who died one month previously and whose will is now being probated. Delta knows that Veep is an officer and not a lawyer. Is Delta subject to discipline?
1. Yes, if a non-lawyer holds the stock as the executor of the will of the deceased member.
2. No, because Delta is a salaried employee and not a member or shareholder of the corporation.
3. No, if Veep does not participate in any decision regarding a client or a client's case.
4. Yes, because Veep is an officer of the corporation.
Attorney is representing Plaintiff in a paternity suit against Defendant. Both Plaintiff and Defendant are well-known public figures, and the suit has attracted much publicity. Attorney has been billing Plaintiff at an agreed hourly fee for his services. Recently, Plaintiff told Attorney, "I'm going broke paying you. Why don't you let me assign you all media rights to books, movies, or television programs based on my suit as full payment for all services you will render between now and the conclusion of the suit?" Attorney replied, "I'll consider it, but first you should seek independent advice about whether such an arrangement is in your own best interests. Why don't you do so and call me next week." Is Attorney subject to discipline if he agrees to Plaintiff's offer?
1. No, if Plaintiff received independent advice before entering into the agreement.
2. No, because the paternity suit is a civil and not a criminal matter.
3. Yes, because Attorney has not concluded the representation of Plaintiff.
4. Yes, because the amount received by Attorney would be contingent on the receipts from the sale of media rights.
Four years ago, Attorney represented Husband and Wife, both high school teachers, in the purchase of a new home. Since then, Attorney prepared their tax returns and drafted their wills. Recently, Husband called Attorney and told her that he and Wife had decided to divorce, but wanted the matter to be resolved amicably. Husband stated that they were planning to file and process their own divorce case, utilizing the state's new streamlined divorce procedure, applicable in "no-fault' cases where there are no minor children. Husband asked if Attorney would agree to work with them to prepare a financial settlement agreement that could be presented to the divorce court, reminding Attorney that the couple's assets were modest and that they wanted to "split it all down the middle." After considering the risks of a conflict of interest arising in this limited representation, Attorney wrote to the couple separately, and advised each that he or she might be better off with separate lawyers, but that Attorney would assist with the financial settlement agreement, charging an hourly fee of $140 per hour, provided that they were in complete agreement and remained so. Attorney advised that if a conflict developed, or if either party was dissatisfied or uncomfortable about continuing with the joint representation, Attorney would withdraw and would not represent either party from that point forward, forcing them to start all over again with separate lawyers. Finally, Attorney cautioned Husband and Wife that Attorney would be representing both of them equally, would not and could not favor one or the other, and that their separate communications to her could not be kept confidential from the other party. Both Husband and Wife signed their individual copy of the letter, consenting to the joint representation, and returned them to Attorney. Was it proper for Attorney to accept the representation on these terms?
1. Yes, because Attorney had previously represented Husband and Wife in their joint affairs.
2. No, because Attorney conditioned representation upon receiving a waiver of client confidentiality.
3. No, unless Attorney advised both Husband and Wife, in writing, that they should seek independent counsel before agreeing to enter into the financial settlement on the terms proposed.
4. Yes, because there was little risk that the interests of either Husband or Wife would be materially prejudiced if no settlement was reached.
Attorney represented Client in negotiating a large real estate transaction. Buyer, who purchased the real estate from Client, has filed suit against both Client and Attorney, alleging fraud and violation of the state unfair trade practices statute. Attorney had advised Client by letter against making the statements relied on by Buyer as the basis for Buyer's claim. Attorney and Client are each represented by separate counsel. In responding to a deposition under subpoena, Attorney wishes to reveal, to the extent Attorney reasonably believes necessary to defend herself, confidential information imparted to Attorney by Client that will be favorable to Attorney but damaging to Client. Is it proper for Attorney to reveal such information ?
1. No, because the disclosure will be detrimental to Client.
2. No, unless criminal charges have also been brought against Attorney.
3. Yes, unless Client objects to the disclosure.
4. Yes, because Attorney may reveal such information to defend herself against a civil claim.
Attorney, who is corporate counsel for Company, is investigating a possible theft ring in the parts department of Company. Attorney knows that Employee has worked in the parts department for a long time and believes that Employee is a suspect in the thefts. Attorney believes that if Employee were questioned, Employee would not answer truthfully if she knew the real purpose of the questions. Attorney plans to question Employee and falsely tell her that she is not a suspect and that her answers to the questions will be held in confidence. Is Attorney subject to discipline if she so questions Employee?
1. Yes, unless Attorney first advises Employee to obtain counsel to represent Employee.
2. No, because Attorney did not give legal advice to Employee.
3. No, because no legal proceedings are now pending.
4. Yes, because Attorney's conduct involves misrepresentation.
Manufacturer sued Partco for Partco's breach of warranty regarding machine components furnished by Partco. Judge, who presided at the non-jury trial, sent Clerk, her law clerk, to Manufacturer's plant to observe the machine that was malfunctioning due to the allegedly defective parts. Clerk returned and told Judge that the machine was indeed malfunctioning and that Engineer, an employee of Manufacturer, had explained to Clerk how the parts delivered by Partco caused the malfunction. There was testimony at the trial that supported what Clerk learned on his visit. Judge rendered a judgment for Manufacturer. Was Judge's conduct proper?
1. Yes, because Judge has the fight to gather facts concerning the trial.
2. No, unless Engineer was a witness at the trial and subject to cross examination by Partco.
3. Yes, because Judge's judgment was supported by evidence at the trial.
4. No, because Judge has engaged in ex parte contacts that might influence the outcome of litigation.
Attorney regularly represented Client. When Client planned to leave on a world tour, Client delivered to Attorney sufficient money to pay Client's property taxes when they became due. Attorney placed the money in Attorney's Clients' Trust Account. When the tax payment date arrived, Attorney was in need of a temporary loan to close the purchase of a new personal residence. Because the penalty for late payment of taxes was only 2% while the rate for a personal loan was 6%, Attorney withdrew Client's funds from the Clients' Trust Account to cover Attorney's personal check for the closing. Attorney was confident that Client would not object. Ten days later, after the receipt of a large fee previously earned, Attorney paid Client's property taxes and the 2% penalty, fully satisfying Client's tax obligation. After Client returned, Attorney told Client what Attorney had done, and Client approved Attorney's conduct. Is Attorney subject to discipline?
1. No, because when Attorney told Client what he had done, Client approved Attorney's conduct.
2. No, because Client was not harmed and Attorney reasonably believed at the time Attorney withdrew the money that Client would not object.
3. Yes, because Attorney used Client's funds for a personal purpose.
4. Yes, because Attorney failed to pay Client the ten days of interest at the fair market rate.
Attorney entered into a written retainer agreement with Deft, who was the defendant in a criminal case. Deft agreed in writing to transfer title to Deft's automobile to Attorney if Attorney successfully prevented Deft from going to prison. Later, the charges against Deft were dismissed. Is Attorney subject to discipline for entering into this retainer agreement?
1. No, because the retainer agreement is in writing.
2. No, because the charges against Deft were dismissed.
3. Yes, because Attorney agreed to a fee contingent on the outcome of a criminal case.
4. Yes, because a lawyer may not acquire a proprietary interest in a client's property.
Attorney Alpha filed a complaint on behalf of Client against Agri, a corporation, alleging that Agri had breached a valid oral contract entered into on Agri's behalf by Pres, the president and chief executive officer of Agri, to sell Client certain merchandise for a specified price. Attorney Beta, representing Agri, has filed an Answer denying the contract and asserting the statute of frauds as a defense. Attorney Beta has given notice to Alpha that he will take the deposition of Pres on the grounds that Pres will be out of the country on the date the case is set for trial. Pres is not a shareholder of Agri. Alpha would like to interview Pres, prior to the taking of the deposition, in order better to prepare her cross-examination. Is Alpha subject to discipline if she interviews Pres without Beta's knowledge and consent?
1. Yes, because Pres is being called as an adverse witness.
2. No, because Pres allegedly entered into the contract on behalf of Agri.
3. No, unless Pres will be personally liable to Agri for damages in the event judgment is rendered against Agri.
4. Yes, because Pres is the president of Agri, who is represented by counsel.
Attorney represents ten plaintiffs who were injured when a train operated by Railroad was derailed. Railroad has offered Attorney a $500,000 lump sum settlement for the ten plaintiffs. Attorney has determined a division of the $500,000 among the ten plaintiffs with the amount paid each plaintiff dependent on the nature and extent of that person's injuries. Attorney believes the division is fair to each plaintiff. Railroad will not settle any of the claims unless all are settled. Attorney has told each plaintiff the total amount Railroad is prepared to pay, the amount that the individual will receive, and the basis on which that amount was calculated. Attorney has not told any plaintiff the amount to be received by any other plaintiff. Attorney believes that if Attorney reveals to each plaintiff the amount of each settlement, there is danger that some plaintiffs will think that they are not getting enough in relation to the amounts others will receive and the entire settlement will be upset. Each of the plaintiffs has agreed to his or her settlement. Is Attorney subject to discipline if Attorney effects such a settlement?
1. Yes, because Attorney is aiding the lawyer for Railroad in making a lump sum settlement.
2. No, if the amount received by each plaintiff is fair and each plaintiff is satisfied.
3. No, if to disclose all settlements to each plaintiff might jeopardize the entire settlement.
4. Yes, because no individual plaintiff knows the amount to be received by any other plaintiff.
Attorney Alpha serves on a bar association committee established to counsel and rehabilitate lawyers who suffer from substance abuse. The day before Alpha was to leave on a fishing trip, Alpha's close friend, Attorney Beta, disclosed to Alpha that, over the preceding two years, Beta had become heavily addicted to cocaine and was afraid he had committed criminal offenses in his banking activities as a result of his addiction. Beta asked Alpha to represent him. Alpha agreed, but explained that Alpha could do little for two weeks and would consult with Beta immediately upon Alpha's return. While on the fishing trip, Cepa, an accountant who knew that Alpha represented Beta, told Alpha that Cepa had been retained by the trust department of Bank, a commercial bank, to audit several substantial trust accounts in which Bank and Beta are co-trustees. Cepa also told Alpha that the audit furnished incontrovertible proof that Beta had embezzled more than $100,000 from the trust accounts. Must Alpha report Beta's embezzlement to the appropriate disciplinary authority?
1. Yes, because Alpha learned of Beta's embezzlement from Cepa.
2. Yes, because Alpha's failure to report would assist the concealment of Beta's breach of trust.
3. No, because the information will probably be made public by Bank.
4. No, because Alpha gained the information while representing Beta.
The following advertisement appeared in a daily newspaper in a state in which both parties are members of the bar: A. ALPHA, M.D., J.D. and B. BETA, J.D. Attorneys at Law 1000 "A" Street, City, State, 00000 Telephone (555) 555-5555. Are Alpha and Beta subject to discipline?
1. No, because both law and medicine are licensed professions.
2. Yes, because the reference to the M.D. degree is self-laudatory.
3. No, if they possess the degree(s) stated.
4. Yes, unless they limit their practice to areas in which a medical degree is relevant.
While working on a complex matter for Client, Attorney Alpha, a partner in the law firm of Alpha and Beta, identified a particularly difficult issue of law that could prove decisive in the dispute. Alpha had not encountered this issue before and was uncertain of its effect. Alpha called Alpha's partner, Attorney Beta, and asked her for assistance. Was it proper for Alpha to consult with Beta?
1. No, because Client's consent was not previously obtained.
2. Yes, unless Alpha identified Client to Beta.
3. No, unless the total fee is not increased by the consultation.
4. Yes, because Alpha and Beta are partners in the same firm.
Judge, a state court judge, has presided over the pretrial proceedings in a case involving a novel contract question under the Uniform Commercial Code. During the pretrial proceedings, Judge has acquired considerable background knowledge of the facts and law of the matter and, therefore, is particularly well qualified to preside at the trial. Shortly before the trial date, Judge discovered that his brother owns a substantial block of stock in the defendant corporation. He determined that his brother's financial interests would be substantially affected by the outcome of the case. Although Judge believed he would be impartial, he disclosed to the parties, on the record, his brother's interest. Is it proper for Judge to hear the case?
1. Yes, because Judge believes his judgment will not be affected by his brother's stockholding.
2. No, unless after proper proceedings in which Judge did not participate all parties and their lawyers consent in writing that Judge may hear the case.
3. Yes, because Judge is particularly well qualified to preside at the trial.
4. No, because disqualification based on a relative's financial interest cannot be waived.
Attorney is representing Deft on a charge of armed robbery. Deft claims that the prosecution witness is mistaken in her identification. Deft has produced Baker, who will testify that Deft was in another city 500 miles away when the robbery occurred. Attorney knows that Baker is lying, but Deft insists that Baker be called on Deft's behalf. Is Attorney subject to discipline if she calls Baker?
1. No, because Deft has insisted that Baker be called as a witness on Deft's behalf.
2. Yes, because Attorney knows Baker will be testifying falsely.
3. Yes, unless, before calling Baker, Attorney informs the court of her belief.
4. No, unless Attorney relies on the alibi defense in her argument before the jury.
Attorney is a candidate for a judicial office that has been occupied by Incumbent for six years. Attorney has conducted a thorough investigation of Incumbent's personal and professional life. Assume all factual statements are accurate. Which of the following statements is it proper for Attorney to make during the campaign? I. "Incumbent has been reversed by the appellate courts more than any other judge in the state during the preceding two years." II. "Incumbent was publicly censured by the state Judicial Qualification Commission on one occasion for his overbearing conduct in court." III. "Incumbent was given a poor rating for judicial temperament in a county bar association poll." IV. "During the previous year, the average sentence in armed robbery cases tried in Incumbent's court was 3.5 years, and in murder cases was 8.2 years. If I am elected, I won't be soft on crime."
1. I, II, and IV, but not Ill
2. I and II, but not III or IV
3. I, II, and III, but not IV
4. I only
The state bar association has offered Judge and her spouse free transportation and lodging to attend its institute on judicial reform. Judge is expected to deliver a banquet speech. Is it proper for Judge to accept this offer?
1. No, if members of the bar association regularly appear in Judge's court.
2. Yes, unless the value of the transportation and lodging exceeds $500.
3. Yes, because the activity is devoted to the improvement of law.
4. No, because the bar association is offering free transportation to Judge's spouse.
Attorney represents Client, a well-known contractor, before Agency, a state administrative agency. Agency has ordered Client to show cause why Client's license as a contractor should not be revoked for violation of agency regulations. In a newspaper interview prior to the administrative hearing, Attorney truthfully stated that: I. "Client denies the charge made by Agency that Client engaged in conduct constituting grounds for revocation of Client's license as a contractor." II. "The next step in the administrative process is the administrative hearing; if Agency is successful, we will appeal, and Agency still cannot revoke Client's license until a court affirms the finding for Agency." III. "Client needs witnesses who are aware of the incidents that are the subject of the hearing." Which of these statements would be proper?
1. I only
2. II only
3. Ill only
4. I, II, and III
Leaving an airport, Attorney, who primarily practices criminal law, shared a cab with Doctor, a medical doctor. The cab was involved in a collision, and Doctor was seriously injured, while Attorney was only shaken up. Attorney accompanied Doctor to the hospital in the ambulance. Doctor believed that she was dying and asked Attorney to prepare a simple will for her. Attorney told Doctor, "I have never prepared a will, but hope that I can remember the basics from law school." Attorney then complied with Doctor's request. Doctor signed the will, and the two paramedics in the ambulance signed as witnesses. Was it proper for Attorney to prepare the will?
1. Yes, unless Attorney omitted some required formality that rendered the will invalid.
2. Yes, because Attorney provided legal services that were reasonably necessary under the circumstances.
3. No, unless Doctor waived Attorney's malpractice liability.
4. No, because Attorney did not have the skill required for the representation.
Attorney has recently started her own law firm with four other lawyers as associates. The law firm has moved into offices in a new building, which is owned by Bank. Attorney has borrowed heavily from Bank to finance her new law firm. In addition, Bank provides the law firm with accounting services through its computer. At Bank's suggestion, an employee of Bank, who is not a lawyer, serves as a part-time office manager for the law firm without compensation from the firm. The duties of the office manager arc to advise the firm generally on fees and time charges, program matters for the computer services, and consult with Attorney on accounting and billing practices to ensure solvency. Is the arrangement with Bank proper'?
1. No, because a non-lawyer will be advising the law firm on fees and time charges.
2. Yes, because the office manager is paid by Bank.
3. Yes, unless secrets or confidences of clients may be disclosed to Bank.
4. No, because Bank will be involved in the practice of law.
Attorney is representing Client, the plaintiff, in a personal injury case on a contingent fee basis. Client is without resources to pay for the expenses of the investigation and the medical examinations necessary to prepare for trial. Client asked Attorney to pay for these expenses. Attorney declined to advance the funds but offered to guarantee Client's promissory note to a local bank in order to secure the funds needed to cover those expenses. Client has agreed to reimburse Attorney in the event Attorney incurs liability on the guaranty. Is Attorney subject to discipline if she guarantees Client's promissory note?
1. No, because Attorney took the case on a contingent fee basis.
2. Yes, because Attorney is helping to finance litigation.
3. Yes, because Attorney is lending her credit to Client.
4. No, because the funds will be used for trial preparation.
Attorney Alpha represents Defendant in an action for personal injuries. Alpha, pursuant to Defendant's authorization, made an offer of settlement to Attorney Beta, who represents Plaintiff. Beta has not responded to the offer, and Alpha is convinced that Beta has not communicated the offer to Plaintiff. State law authorizes a defendant to move for a settlement conference and to tender an offer of settlement. If such a motion is made and the offer is rejected by Plaintiff and the eventual judgment does not exceed the amount of the offer, Plaintiff must bear all costs of litigation, including reasonable fees, as determined by the court, for Defendant's counsel. Alpha, with Defendant's consent, filed a motion requesting a settlement conference, tendered an offer to settle for $25,000, and served copies of the motion and tender on Beta and on Plaintiff personally. Is Alpha subject to discipline for serving Plaintiff with a copy of the motion and tender?
1. Yes, unless Alpha first informed Beta of Alpha's intention to serve copies of the motion and tender on Plaintiff.
2. Yes, unless service of copies of the motion and tender on Plaintiff were authorized by statute or rule of court.
3. No, because the motion and tender became public documents when they were filed in court.
4. No, because the decision to accept or reject a settlement offer rests with the client.
Attorney Alpha represents Wife in a marriage dissolution proceeding that involves bitterly contested issues of property division and child custody. Husband is represented by Attorney Beta. After one day of trial, Husband, through Beta, made a settlement offer. Because of Husband's intense dislike for Alpha, the proposed settlement requires that Alpha agree not to represent Wife in any subsequent proceeding, brought by either party, to modify or enforce-the provisions of the decree. Wife wants to accept the offer, and Alpha believes that the settlement offer made by Husband is better than any award Wife would get if the case went to judgment. Is it proper for Alpha to agree that Alpha will not represent Wife in any subsequent proceeding?
1. Yes, because the restriction on Alpha is limited to subsequent proceedings in the same matter.
2. No, because the proposed settlement would restrict Alpha's right to represent Wife in the future.
3. No, unless Alpha believes that Wife's interests can be adequately protected by another lawyer in the future.
4. Yes, if Alpha believes that it is in Wife's best interests to accept the proposed settlement.
Attorney represented Plaintiff in litigation that was settled, with Plaintiff's approval, for $25,000. Attorney received a check in that mount from Defendant, payable to Attorney's order. Attorney endorsed and deposited the check in Attorney's Clients' Trust Account. Attorney promptly notified Plaintiff and billed Plaintiff $5,000 for legal fees. Plaintiff disputed the amount of the fee and wrote Attorney, stating, "I will agree to pay $3,000 as a reasonable fee for the work you did, but I will not pay anything more than that." It is proper for Attorney to: I. Retain the entire $25,000 in Attorney's Clients' Trust Account until the fee dispute is settled. II. Send Plaintiff $20,000, transfer $3,000 to Attorney's office account, and retain $2,000 in Attorney's Clients' Trust Account until the dispute is settled. III. Send Plaintiff $20,000 and transfer $5,000 to Attorney's office account.
1. I and II, but not III
2. I only
3. I, II, and III
4. II only

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