Professional Responsibility Final

S97

Last 4 digits of SS#

This is a two and a half hour exam in two parts. The first

part is 25 questions, multiple choice and short answer, applying

the Model Rules and the material on Attorney Client privilege,

each question counting one point. Closed book and rules. The

second part is essay (45 points total) open book, rules and

personal notes (no commercial outlines). Turn in the multiple

choice/short answer portion when you pick up the essay questions.

Quiz is 25 points; attendance, participation, etc. is 5 points.

l) Must or subject to discipline asks whether the conduct in

question subjects the attorney to discipline under the Model

Rules of Professional Conduct.

2) Should asks whether the conduct in question at least

conforms to the level of conduct expected of an ethical attorney,

as reflected in the rules and comments of the Model Rules of

Professional Conduct.

3) May or it is proper asks whether the conduct in question

is professionally appropriate in that it would not subject the

attorney to discipline and is not inconsistent with the rules and

comments of the Model Rules of Professional Conduct.

It is intended that there be only one correct answer for

each multiple choice question. If you feel that there are two

correct answers, pick an answer and state your reasoning in the

margin.

* * *

l) C asked A, an old friend, for help in filing a pro se divorce.

A told C he would help prepare the petition as a favor. A helped

C prepare the petition. After the divorce was final C sent A a

country ham and a fruit basket. C also recommended A to a co-

worker contemplating divorce. A is subject to discipline for:

i) assisting C in the unauthorized practice of law;

ii) C's in-person solicitation of the co-worker;

iii) accepting a gift from C

a) (i) and (iii);

b) (i) only;

c) (ii) only;

c) (iii) only;

d) none of the above

2) Attorney A, an experienced personal injury attorney, moved to

River City and solicited referrals from River City attorneys who

didn't handle personal injury claims. One of the attorneys

solicited was Attorney B, a corporate attorney. B was asked by

client C to handle a personal injury claim. With C's consent B

retained Attorney A to handle the case. The written agreement,

signed by A, B and C, provided that A would do all the work, B

would be responsible for the actions of A, the fee would be a

one-third contingency, with A to advance all costs, which were to

be deducted off the top from any settlement or award before the

division between client and attorney. The attorney's portion of

the award, if any, was to be divided 60% to A and 40% to B.

i) A is subject to discipline for soliciting B;

ii) A is subject to discipline for agreeing to advance

costs, subject to repayment only in the event of settlement

or award;

iii) B is subject to discipline for accepting a "referral

fee" from A

a) (i) and (ii);

b) (i) only;

c) (ii) only;

d),~(iii) only;

d) none of the above

3) Atty. Green represented Widow Brown in the settlement of the

estate of her late husband. Green greatly admired an antique

shotgun owned by the late Mr. Brown. An independent appraisal

valued the gun at $5000. Widow Brown knew that Green admired the

gun and offered to give it to him. Green thanked her for her

generosity, stated that he would like to pay her but couldn't

afford $5000, and offered to pay her $2000. She agreed and Green

drew up a document, signed by both, which acknowledged that the

gun was worth $5000 and was being sold to Green for $2000 because

of the affection Brown held for Green. Green paid $2000 and took

the gun. Has Green done anything which may subject him to

discipline?

4) A was retained by H in connection with a divorce. The total

value of H and W's assets was $100,000; however, H had inherited

$500,000 from a distant relative after separating from W. A

recognized that a court would be required to set aside the

$500,00 to H a$500,000 to be set aside anyway. May A withdraw from the

representation?

a)Yes, but only with H's consent;

b) Yes, if A considers it repugnant or imprudent to carry

out H's wishes;

c) No, because A is obligated to carry out H's lawful

objectives;

d) No, unless the client breached the attorney/client

agreement

5) Relevant documents of the Acme company were shredded in the

following scenario. In response to a grand jury subpoena, A, head

of the law department, told B, an attorney in the law department

to gather up the documents and respond. B gave the assignment to

C, a junior attorney, saying, "It wouldn't surprise me if these

documents were already destroyed pursuant to our standard

document destruction practice." C found incriminating documents,

which should have been destroyed but hadn't been. C shredded the

documents and told B what he had done. B complimented C on his

good work. B reported the full story to A, who responded to the

subpoena by saying that the requested documents had been

destroyed. Who is subject to discipline?

i ) A ;

ii) B;

iii) C

a) all of the above;

b) (i) and (ii);

c) (ii) and (iii);

d) (ii) only;

e) (iii) only

6) Some years ago, Nixon and Mudge formed a law partnership

s "non-marital" property, resulting in an

inequitable imbalance between H and W. A discussed the law with H

but also asked H to consider the equities of the matter and the

effect such a result would have on W. H decided to press for the

called Nixon and Mudge. A year later Nixon became President and

Mudge continued to practice under the firm name. Mudge then hired

a partner named Rose, but the firm name was not changed.

Mudge then died and Rose continued to practice under the firm

name of Nixon and Mudge.

i) It was proper for Mudge to continue to use the firm name

after Nixon became President;

ii) It was proper for Rose to be a partner without his name

appearing in the firm name;

iii) It was proper for Rose to continue to use Mudge's name

in the firm name after Mudge's death

a) all of the above are correct

b) (i) and (ii) are correct;

c) ii) and (iii) are correct;

d) (ii) only is correct;

e) (iii) only is correct

7) A represented clients B and C in a business partnership. A

frequently met with B and C separately. One day B told A in

confidence that he had taken a business opportunity for himself

that arguably properly belonged to the partnership. Assume that B

is unwilling to make amends with C. Should A tell C what B

revealed? Why or why not?

8) On the facts of (7), assume C wishes A to represent her in a

suit against B over the loss of the business opportunity. Assume

B does not consent to C's representation by A or A's firm.

a) A may represent C;

b) A may not represent C but a member of A's firm may

represent C;

c) A may not represent C but a member of A's firm may

represent C if A is screened from the representation and not

apportioned any part of the fee;

d) A may not represent C and A's firm may not represent C

9) C asked A for legal assistance in selling shares in a marina.

A told C the shares would probably be considered "securities,"

and sale without registration would probably be criminal under

federal law. On hearing this C told A to forget it. Later A

learned that C had gone ahead and sold the shares in the marina

without registration.

a) A must tell the authorities of his discussion with C;

b may tell the authorities of his discussion with C;

c) A must not tell the authorities of his discussion with C

without C's consent

10) What is wrong, if anything, with an attorney telling a client

that she is a close friend of the judge who will hear the

client's case?

11) B and C were charged with possession of cocaine found in a

car owned by B and driven by C. Both denied any knowledge of the

cocaine. May A represent both with their consent? Why or why not?

12) A was a passenger in a car driven by B. A saw the accident

clearly and believes it was the fault of C, the driver of the

other car. B has asked A to represent him. May A do so? Why or

why not?

13) A represented B in a contract action against C. B testified

to certain matters which were relied on by the judge in rendering

a judgment for B. Two years later, after the case was concluded

and the A's representation was over, B told A at a social

gathering that he had lied when he had testified about the

matters in controversy.

a) A must tell the court of the false testimony on which the

court relied;

b) A may, but is not required to tell the judge of the false

testimony;

c)A must not inform the judge of the false testimony

because the representation had concluded before A learned

that B had testified falsely;

d) A must not inform the judge of the false testimony

because B's revelation is within the attorney client

privilege.

e) both (c) and (d) are correct

14) What is the difference, if any, in an attorney's ethical

obligation of candor to the court on matters of fact in an

adversary proceeding and in an ex parte proceeding?

15) A practiced law under the name Pea Ridge Lawyer Service,

Inc. He died leaving his entire estate to his widow B. Blanche

sold the practice to Attorney C under a contract allowing C to

use the trade name and requiring C to pay B $75,000 in three

yearly installments of $25,000. Pursuant to the agreement C

contacted existing clients, informed them he had purchased Pea

Ridge Lawyer Service, and gave them an opportunity to select

other counsel. C is subject to discipline for:

i) using a trade name;

ii) splitting fees with a non-lawyer;

iii) solicitation

a) all of the above

b) (i) and (ii)

c) (ii) and (iii)

d (ii) only

e) none of the above

16) B and his fifteen year old son, C, were involved in an

accident when their car ran off the road into a tree. C was

seriously hurt. B told the police he was the driver and C was

the passenger. B ' s auto liability policy is with Insurer. D, C ' s

mother and B ' s ex-wife, sued B for C ' s injuries and I retained A

to defend B. B admitted to A that C was the driver of the car and

asked A to "go along with the scam."

a) A must notify I of the intended insurance fraud.

b) A may, but is not required to, notify I of the intended

insurance fraud.

c)A is subject to discipline if he notifies I of the intended fraud without B ' s consent .

d) A must continue to represent B if B would be harmed by

B ' s withdrawal

17) Assume on the facts of (16) that A withdraws from the

representation and that a grand jury subpoenas him to testify to

what B told him. I instructs A to testify and B instructs him not

to testify on the basis of the attorney client privilege. A claim

of the attorney client privilege should be:

a) Sustained

b) Sustained because B did not attempt to commit a crime

involving death or bodily harm

c)overruled because I is the holder of the privilege

d)overruled because B attempted to use Attorney to

perpetrate a fraud

e) Overruled for the reasons in both (c) and (d)

18) Wasteco hired A in connection with a claim by the EPA that

Wasteco dumped toxic wastes in a marshlands wildlife area. A

interviewed Driver, a Wasteco employee, who admitted dumping the

waste in the marsh. A taped the interview and turned it over to

B, the general manager of Wasteco. A told Driver not to discuss

the matter with anyone without first contacting him. A's advice

to Driver:

a) subjects A to discipline because it interferes with EPA's

investigation of the case;

b) subjects A to discipline because Driver has admitted to

criminal conduct;

c) is proper if A reasonably believes that Driver will not

be adversely affected by refusing to cooperate with EPA;

d) is not proper because Driver is not part of Wasteco's

control group

19) On the facts of (18) assume that B, general manager of

Wasteco, decides to admit to EPA that Wasteco engaged in illegal

dumping, but that B will claim that Driver's actions were

unauthorized and without the knowledge of other Wasteco

employees. D objects, on the basis of the attorney client

privilege, to B giving his taped statement to EPA. D's claim of

privilege should be:

a) sustained because the attorney client privilege covers

statements made by those outside the control group;

b) overruled because the attorney client privilege is

limited to statements made by those in the control group;

c)overruled if A explained to Driver at the time of the

interview that A represented Wasteco and Wasteco management

would decide whether to release his statement to EPA;

d) overruled if D has told anyone other than A about the

dumping;

e) overruled for the reasons in both (c) and (d)

20) C asked A to incorporate his small business. Strapped for

cash, C offered A 10% of the stock as a fee. May A accept the

stock as a fee?

a) No, because she would thereby acquire a proprietary

interest in the business

b) No, because it is not known whether the business will

succeed or fail

c) Yes, if the arrangement is fair and reasonable, the

arrangement is in writing, and C is given a reasonable

opportunity to seek the advice of independent counsel

d) Yes, if C is a sophisticated client

21) A was employed by the state Department of Licensing, having

supervision over nursing homes. In that capacity A reviewed

confidential complaints against nursing homes, including TC

Center. A left state employment and joined Cheatum and Howe, a

personal injury firm. One of the clients of C&H is P, on whose

behalf C&H has sued TC Center for injuries sustained as a result

of TC Center's alleged neglect. A is familiar with the complaint

against TC because she reviewed it while employed by the state.

She also reviewed other similar claims against TC Center

contained in the confidential complaints in the state files. TC

Center does not consent to being sued by A or C&H.

a) Neither C& H nor A may represent P;

b) A may not represent P, but C&H may represent Pi

c) A may not represent P, but C&H may represent P if A is

screened from any participation in the matter and is

apportioned no part of the fee, and TC Center is given

notice of the arrangement to enable it to ascertain

compliance.

d) A and C&H may represent P

22) Attorney A represents B, the local franchisee of Pizza Inn in

its franchise operations. C, owner of an independent pizza

company, asked A to represent it in the acquisition of a piece of

property. B and C are fierce competitors. C isn't concerned about

A's representation of B, but B does not want A to represent a

competitor.

a) Neither A nor anyone in A' firm may represent C in this

matter.

b) A may not represent C, but X, A's partner, may represent

c) A and members of his firm may not represent C but A may

refer C's matter to another firm and receive a referral fee.

d) A and members of his firm may represent C.

23)While attending law school, Martha worked for Attorney Adams

as a baby sitter. Adams fired Martha after she admitted stealing

jewelry worth $1500. No criminal charges were filed. Adams is

aware that Martha has applied to take the bar, but has not been

requested to provide information about her.

a) Adams is obligated to inform the bar authorities of the

theft since the theft raises a substantial question about

her honesty;

b) Adams is not obligated to tell the bar about the theft

because it was unrelated to the practice of law;

c) Adams is not obligated to tell about the theft since no

request has been made of him;

d) Adams is not obligated to tell about the theft since no

criminal charges were filed

e) Adams is not obligated to tell about the theft for the

reasons in both (c) and (d).

24) I, a liability insurer, proposes to defend suits against its

insureds through I's corporate counsel (attorneys salaried by I),

rather than through attorneys retained on a case by case basis.

Implementation of such a proposal would:

i) subject I's attorneys to the charge of assisting in the

unauthorized practice of law;

ii) heighten the potential for conflict of interest claims

* * *

a) both (i) and (ii)

b) (i)

c) (ii)

d) neither (i) nor (ii)

25) A, an attorney licensed only in State X, represented C, a

resident of State X, in connection with C's tax liability to

State Y. A negotiated a settlement for C with representatives of

State Y's Department of Revenue.

a) A is subject to discipline in Y for the unauthorized

practice of law;

b) A is subject to discipline in Y for the unauthorized

practice of law in Y if A traveled to Y to negotiate with

the authorities;

c) A is not subject to discipline in Y, but only if A

associated an attorney licensed in Y to help him in the

matter;

d) A is not subject to discipline in Y