Last 4 digits of SS # ______________ Exam # _______________
This is a two and one/half hour exam. Closed book and rules. The first part is 20 questions, multiple choice and short answer, applying the Model Rules and the material on Attorney Client privilege, each question counting one point. The second part is three essays (50 points total).Quiz is 25 points; attendance, participation, etc. is 5 points.
1) 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.
Honor Code: This examination is being given on a number of dates. After taking the examination, do not discuss it with any student who has not taken the examination. The Honor Code prohibits unauthorized assistance, in addition to cheating. Remember that the Honor Code requires students to report cheating and unauthorized assistance.
Multiple choice/short answer ( one point apiece)
1) Attorney Al told potential Client Charlie, whose case was pending before Judge Jones, "I know Judge Jones very well -- in fact I know some things about him he wouldn't want made public -- so when I talk he listens." Al is:
a) subject to discipline
b) subject to discipline only if Client Charlie hires him
c) not subject to discipline if what he told Charlie was true
d) not subject to discipline
2) Client Charlie is represented by Attorney Ann. Charlie made a materially false statement during a deposition taken by Opposing Attorney Bob. At the time the statement was made, Ann did not know it was false. After the deposition was taken, Ann learned that the statement was false. Charlie refuses to correct the statement. What is Ann's obligation?
3) Would it make a difference in your analysis if the false statement were made in the course of private negotiations between Charlie and Bob's client? Why or why not?
4) To drum up business, Attorney Ann developed a marketing plan when she left the firm of Cheatem and Howe. For which of the following, if any, is Ann subject to discipline:
i) sending personalized letters (clearly marked "Advertisement") to persons cited for traffic offenses
ii) phoning the persons she had represented while at Cheatem and Howe, advising them that she had left C & H and offering to represent them
iii) giving rebates to clients who refer other clients to her
* * *
a) all of the above
b) (i) and (ii)
c) (ii) and (iii)
d) (i) and (iii)
e) (i) only
f) (iii) only
5) Law Student Sally hired Attorney Andy to advise her in connection with material false statements she had made on her application to law school. Andy advised Sally to report these matters to the law school and also to the bar's character and fitness committee in the state of her potential admission. Sally rejected the advice, did not correct her record, and made the same material false statements on her bar application.
a) Andy must tell the character and fitness committee what he knows of Sally's misstatements
b) Andy must tell the character and fitness committee what he knows of Sally misstatements, but only if asked to do so by the committee
c) While under no obligation to do so, Andy should tell he committee what he knows of Sally's misstatements
d) Andy must not tell the committee what he knows of Sally's misstatements
6) Attorney Al is licensed in State A but not in State B. Which of the following is most likely to be regarded as the unauthorized practice of law in State B?
a) Al takes a deposition in State B for a case arising in State B without having been admitted pro haec vice in State B
b) Al advises a client in State A about the legal ramifications of a divorce and custody decree obtained by the client's wife in State B
c) Al goes to State B to advise a client, who is a resident of State B, about the legal ramifications of a divorce and custody decree obtained by the client's wife in State A
d) Al moves to State B and joins a firm whose partners are licensed in State B
7) Ronald is an attorney who interviewed a new client, Henry. Henry stated that he planned to kill his wife, Helen, in the near future and wanted to know what countries would not extradite him to
the United States for murder. Ronald knows that Italy will not extradite persons wanted for murder to the United States because of this country's position on the death penalty. Is Ronald subject to discipline if he gives this information to Henry? Why or why not?
8) Assume on the facts of (7) that Ronald gives the information to Henry, but declines Henry's request for Ronald to "be my lawyer when I do it."
A) Ronald is subject to discipline if he reveals Henry's plan
B) Ronald is subject to discipline if he does not reveal Henry's plan
C) Ronald is not subject to discipline whether or not he reveals Henry's plan
D) Ronald is under no obligation to preserve the confidences of Henry because he declined to represent Henry.
9) Assume on the facts of (7) that Henry murders his wife and flees to Italy. A grand jury subpoenas Ronald and the prosecutor asks him what information he gave to Henry. Ronald asserts the attorney client privilege. The judge should compel Ronald to answer because:
i) Henry used the information provided by Ronald to commit a crime
ii) Only the client may assert the attorney client privilege
iii) The attorney client privilege covers only statements by the client to the lawyer, and does not extend to statements by the lawyer to the client
* * *
A) For all of the above reasons
B) (i) and (ii)
C) (i) and (iii)
D) (i)
E) (ii)
10) Jill was badly hurt in an auto accident, couldn't pay her medical bills, and was without income. Jill asked Lawyer Laura to represent her against the driver who had injured her. Laura agreed that she would take the case on a contingent fee basis, advance the costs of litigation, and and pay Jill's medical and hospital bills and living expenses during the pendency of the action. Is Laura subject to discipline for this fee arrangement?
A) Yes
B) Yes, unless Jill is required to repay Laura out of the recovery, if any
C) No, if Jill is required to repay Laura regardless of the outcome
D) No, if Jill is indigent
E) No
11)While on vacation in State X, Attorney Ann, licensed in State X and State Y, skipped out on a hotel bill of $1200. Criminal charges were threatened and Ann eventually paid the bill. Is Ann subject to discipline?
A) No, because she was not convicted of a crime
B) No, because the matter arose outside of Ann's practice
C) Yes, but only in State X
D) Yes, in both States X and Y
12) Carla, a law student, worked as a clerk for Attorney Andy. In talking to witnesses, Carla represented herself to be a lawyer. Andy did not know that Carla had misrepresented herself until the litigation was over. Is Andy subject to discipline?
A) No, if no one was harmed by Carla's misrepresentations
B) No, if he had instructed Carla about her duties under the Rules of Conduct
C) Yes, because Carla was Andy's employee and he is vicariously liable for her wrongdoing
D) Yes, because Carla is not subject to the Bar's disciplinary authority
13) Lawyer Linda and Lawyer Larry are wife and husband. Linda is an associate in ABC firm and Larry is an associate in XYZ firm. The firms litigate against one another, and want to know when they have to tell clients that an associate in one firm has a spouse in the other firm. As a matter of discipline when must this be revealed and clients' consent obtained?
i) in all litigation in which the ABC and XYZ firms are on opposite sides
ii) when one of the spouses is actively involved in the litigation against the other firm's client
iii) when both of the spouses are actively involved in the litigation
* * *
A) all of the above
B) (ii) and (iii)
C) (iii) only
D) none of the above
14) Lawyer Lou worked for the Justice Department and obtained confidential information about Macrosoft Corporation, which would be useful to its competitors. He left the Justice Department and joined the XYZ law firm, which represents Netscope in a private anti-trust case against Macrosoft. A motion to disqualify XYZ has been filed by Macrosoft's lawyers.
A) The motion should be granted
B) The motion should be granted unless Lou is screened from the litigation and apportioned no part of the fee therefrom
C) The motion should not be granted if the Justice Department consents to Lou's participation in the suit
D) The motion should not be granted
15) Curly and Moe were indicted for counterfeiting ten dollar bills. The indictment alleged that Curley was the counterfeiter and Moe passed the bills. Attorney Alice appeared at the arraignment for both defendants. The prosecutor objected to Alice representing both defendants, because, the prosecutor said, "it is anticipated that we will offer Moe a reduced charge in exchange for his cooperation." However, both Curly and Moe waived on the record "all present and future conflicts of interest" and asked that Alice be permitted to represent them. Should the motion to disqualify be granted:
A) No, because the judge may not refuse Curly and Moe's waiver of conflict
B) No, because the prosecutor does not have standing to complain of a conflict between defendants;
C) Yes, because there is a potential conflict which would become an actual conflict if the prosecutor offers Moe a deal
D) Yes, because a lawyer may not represent co-defendants in a criminal case
16) Howard is a criminal defense lawyer who charged in a press conference that: 1) his client, Bill, was innocent of drug charges; 2) that Bill had been falsely accused of being a drug smuggler; and 3) that the real culprits were specified police officials who themselves were drug smugglers.. Howard's charges were made after Bill was arrested, and before the case went to trial. The state bar where Howard was licensed brought charges against him for unethical conduct, for prejudicing the parties right to a fair trial. Consistent with the First Amendment,
A) Howard may be disciplined only if his statements were substantially likely to materially prejudice the state's ability to obtain a fair trial
B).Howard may be disciplined because attorneys have no first amendment right to speak about the case after indictment
C) Howard may not be disciplined unless his statements were knowingly false or made with reckless disregard as to truth or falsity
D) Howard may not be disciplined because the disciplinary rule in question applies only to prosecutors
17) The XYZ corporation asked Attorney Al to prepare an offer to purchase the publicly held shares of stock in XYZ at $60 a share. The stock is trading for $50 a share. Al believes that the value of XYZ stock will jump when the offer becomes public. Assuming no violation of federal or state law, is Al subject to discipline if he buys XYZ stock before the offer is made public?
A) No, assuming that XYZ is not harmed by Al's purchase of the stock
B) No, but only if XYZ consents to Al's actions
C) Yes, because Al is using confidential information for private gain
D) Yes, because Al is a lawyer, not a stockbroker
18) Clara hired Attorney Ann to represent her on a one third contingency basis in a sexual harassment claim against Employer Ed. Clara told Ann she wanted the case tried so she could tell the world what Ed had done to her. Ann estimated that the case was worth about $10,000 -- assuming the jury believed Clara. Ed badly wanted to settle the case and ultimately offered $150,000 in settlement -- fifteen times what Ann thought the case was worth. Clara rejected the settlement against Ann's strong advice because "it's the principle that counts" and "I want to see that S.O.B. squirm." Ann is considering a motion to withdraw.
A) Ann must move to withdraw from the representation since she and Clara disagree about the settlement
B) Ann may move to withdraw from the representation, but only if this can be accomplished without prejudice to Clara's case;
C) Ann may move to withdraw from the representation if Ann believes Clara's objectives to be imprudent or repugnant, even if Clara might be harmed by the withdrawal.
D) Ann may not move to withdraw
19) Client Carl sought advice from Attorney Abbie. Specifically, Carl told Abbie he was delinquent in his child support and asked Abbie to assist him in hiding his assets from his ex-wife. Abbie refused to represent Carl in this matter.
A) Abbie is subject to discipline if she voluntarily tells the ex-wife what Carl is planning
B) Carl's statements are protected by the attorney client privilege
C) Both (A) and (B) are true
D) Neither (A) nor (B) is true
20) For may years Attorney Al has represented Claude, a wealthy antique collector. For several years Carl, who is clearly a competent person, has said he wanted to bequeath Al a collection of antique guns worth about $50,000. When Al pointed out that he could not write himself into a will, Carl replied, "Heck, I'll give them to you now. Bring your station wagon over tomorrow and we'll load them up." What would you advise Al to do?
Essays
1) (10 points) Claude hired Ann to represent him because the police suspected him of murdering Susan, a young woman in his office. Claude was last seen with her at a restaurant about 10 pm on the night she was killed, and a number of people have told the police that they believe Susan and Claude, who is married, were having an affair, that Claude was trying to end. Claude's story - to the police and Ann, his attorney - is that he and his wife are happily married, that he and Susan had a platonic relationship, and he left her well and happy at her apartment at 10:30 on the night in question.
In the mail, Ann received a package with no return address containing a number of photos of Claude and Susan in compromising situations -- embracing, coming out of motels, etc. Ann wants to know to do with the photos -- which she recognizes would undermine Claude's story -- and whether she should (must?) tell Claude about them. Also, how this turn of events affects the issue of Claude testifying.
How would you advise her?
The only applicable criminal statute provides that:
A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he destroys, mutilates, conceals, removes or alters physical evidence with intent to impair its verity or availability in the official proceeding.
2) (20 points) Lawyer Lee is a general practitioner in a medium size city. Alice, his friend and long-time client (two divorces, on-going custody and visitation issues with husband number two over their children, ages 6 and 8) asked Lee to handle the legal work for her to buy a restaurant which was going out of business. Alice brought Mark with her to the meeting in Lee's office. Alice explained that Mark was her new boyfriend and was willing to invest $10,000 in the business -- to buy out the present owners and cover the first year's rent. Alice told Lee they were strapped for cash, and asked if she could pay him out of the profits of the restaurant. Lee suggested that he receive an ownership interest in the business in payment for his services.
Lee explained partnerships and corporations to Alice and Mark and, with their consent, formed a corporation named "Alice's Restaurant," with stock issued 40% to Alice, 40% to Mark (for his capital contribution), and 20% to Lee (for forming the corporation and serving as director and general counsel).
Lee continued his friendship and personal representation of Alice in her on-going custody dispute with her former husband. Six months after Alice took over the restaurant she told Lee in confidence that she had tested positive for HIV, had started on AZT and might need some help in the restaurant because the drug was making her tired. Alice reminded Lee she had told him "as a friend and lawyer" and he was not to say anything to anyone -- "not Mark, not my ex, and certainly not the Health Department -- they'll close me down." Alice refused to say how she contracted the disease (except that it wasn't Mark) but she did promise to practice safe sex in the future.
3) (20 points). Attorney Al was head of public relations and also general counsel for Chemco, which was sued for alleged contamination of the well water supply of a small town, allegedly causing a number of children to die of cancer. In his capacity as head of public relations, Al wrote a press release to the effect that Chemco had never disposed of chemical wastes in a way that might have contaminated the wells. This statement, which was illustrated with maps and charts, was used by the local media to give Chemco's side of the story.
One day Al had lunch with Ed, a long-time employee of Chemco, who commented on the litigation as follows, "I don't think they'll ever find it. Not too many people know about it." When asked what he meant, Ed said that before 1980 wastes were buried in metal barrels in a hidden unlined landfill. Ed went on to say that the wastes had been full of heavy metals, pcbs, and other toxic substances, which "have probably been leaking out as the barrels rust out."
Ed took Al to the old landfill, covered with undergrowth, but still an obvious burial place. Al took photos and promised Ed he wouldn't tell anyone how he knew about the landfill.
The next day, Al confronted Mark, the CEO of Chemco, with what he had learned. Mark denied that toxic wastes had been buried in the landfill and wanted to know Al's source for the story. Al refused to reveal Ed's name. Mark threatened to fire him, then calmed down and told him not to get involved -- Chemco would get a new public relations person.
Al wants to know his options. He is still working as house counsel for Chemco, handling employee relations. The new public relations person continues to use Al's press release to explain Chemco's position.
Al has the photos of the burial site in his desk drawer, but doesn't know for sure that toxic wastes were buried in the landfill, or, if they were buried, that the wastes contaminated the wells.