Last 4 digits of SS # ______________ Exam # _______________
This is a two and a half hour exam. Closed book and rules. The first part is 40 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 two essays (30 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.
Multiple choice/short answer
1) Jack is a new attorney who would like to specialize in family law. He is considering the following marketing schemes. Which of the following are permissible?
i) Television advertising on the talk shows -- Jerry Springer, Oprah, etc.
ii) Soliciting members of his family
iii) Doing a radio call-in show in which he fields questions from the radio audience
iv) Telephoning people who have filed pro se divorce complaints to offer representation
at a discounted rate
v) Using his secretary to personally solicit the members of her women's divorce recovery group
* * *
A) All of the above are permissible
B) (i), (ii), and (v) are permissible
C) (i), (ii), (iii) and (v) are permissible
D) (i), (iii) and (v) are permissible
E) (i), (ii). and (iii) are permissible
2) Jack would like to use direct mail marketing in which Jack sends letters to men and women who have recently been served divorce papers by their spouses. The state rule deems this to be impermissible solicitation. What Supreme Court case (by name or description) will Jack rely on to challenge the rule on First Amendment grounds?
3) What case (by name or description) will the state rely on to uphold the rule in the face of a First Amendment challenge?
4) Jack ran a newspaper advertisement in which he made the following truthful statements:
i) Uncontested divorces $250 plus court costs,
ii) Chairman of Judge Becker's 1997 successful campaign (Judge Becker is the judge who hears divorce cases);
iii) Certified by the Association of Family Lawyers (a bona fide organization)
For which of the above is Jack subject to discipline
A) all of the above
B) (ii) and (iii)
C) (i) and (iii)
D) (ii)
E) (iii)
F) none of the above
5) Jack is licensed in state X and has his office in X. He is consulted by a client who lives in state Y about property located in state Y. Jack meets the client initially in his office in X, and later travels to Y to see the property. He talks to the client in Y, returns to his office in X, drafts documents which affect the property, and sends them to the client in Y for signing. Has Jack engaged in the unauthorized practice of law in Y? Why or why not?
6) Marks and Sparks is a large law firm which represents McDonalds in its corporate affairs, including a franchise lawsuit with Lexington Mac, a franchisee. Marks and Sparks has just hired Attorney Laura, formerly with the firm of Upson Downs, counsel to Lexington Mac in the franchise dispute. While with Upson Down, Laura worked for Lexington Mac on a labor matter and knows nothing that would be of value to McDonalds in the franchise dispute. Upson Downs has moved to disqualify Marks and Sparks in the franchise action. Should the motion to disqualify be granted?
A) Yes, because of Laura's duty of loyalty to Lexington Mac
B) Yes, unless Laura is screened from the franchise litigation
C) No, because Laura is under no duty to maintain the confidences of Lexington Mac after leaving Upson Downs
D) No, because the litigation between McDonalds and Lexington Mac is not substantially related to the work done by Laura for Lexington Mac
7) Marks and Sparks has also hired Barbara, who was a law clerk for Judge Baker, the presiding judge in the McDonalds/Lexington Mac litigation. With the consent of Judge Baker, Barbara had negotiated for employment with Marks and Sparks during the McDonalds/Lexington Mac litigation. As Judge Baker's law clerk, Barbara knows a lot about the litigation and has considerable insight into the way Judge Baker will rule on contested matters. Upson Downs has moved to disqualify Marks and Sparks. Should the motion be granted?
A) Yes, unless Barbara is screened from the litigation, apportioned no part of the fee from it, with written notice given to the court to ascertain compliance;
B) Yes, because Barbara participated personally and substantially in the litigation;
C) No, because Barbara owes no duty of confidentiality or loyalty to Lexington Mac;
D) Yes, because Barbara negotiated for employment with Marks & Sparks while the case was before Judge Baker
8) Attorney Adams was sued for divorce by his wife Joan, who was represented by Attorney Baker. The judge issued a temporary restraining order, ordering Adams not to go around Joan at the marital home or anyplace else. After being served with the divorce papers and restraining order, Adams went to the home and argued with Joan, who called the police. Adams was not arrested. Adams is subject to discipline for:
i) not obtaining an attorney to represent him
ii) speaking to someone represented by counsel without counsel's consent
iii) violating a court order
* * *
A) all of the above
B) (ii) and (iii)
C) (ii)
D) (iii)
9) Harry and Larry were indicted for conspiring to traffic in cocaine. The indictment alleged that Harry was the "wholesaler" and Larry was the "retailer."Attorney Ann appeared at the arraignment for both defendants. The prosecutor objected to Ann representing both defendants, because, the prosecutor said, "it is anticipated that we will offer Larry a reduced charge in exchange for his cooperation." However, both Harry and Larry waived on the record "all present and future conflicts of interest" and asked that Ann be permitted to represent them. Should the motion to disqualify be granted:
A) No, because the judge may not refuse Harry and Larry'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 offered Larry a reduced charge
D) Yes, because a lawyer may not represent co-defendants in a criminal case
10) The standard liability insurance policy provides that the insurance company will provide a defense for the insured. The insurance company selects and pays for the attorney (A) to represent the insured. The insurance company retains the right to settle the case. Assume a case in which the policy limit is $100,000, the attorney (A) has estimated the plaintiff's potential judgment as between $80,000 and $120,000, and the plaintiff's lawyer has offered to settle for $98,000. What advice should A give the insurance company, and why?
11) Jack was the attorney for 12 passengers riding in a van that collided with a truck. He represented the 12 people in a personal injury action brought against the owner of the truck. Jack wants to offer a group settlement and would like the 12 plaintiffs to agree that all would settle if a majority votes in favor of the offer. Jack presents the majority vote proposal to all 12 plaintiffs who all agree to it. Is Jack subject to discipline for entering into the majority vote settlement agreement?
12)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 Denmark 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?
13) Assume on the facts of (12) that Ronald gives the information to Henry, but declines Henry's request for Ronald to "be my lawyer if 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.
14) Assume on the facts of (12) that Henry murders his wife and flees to Denmark. 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)
15) Attorney Terry sued the Abrasive Chemical Company for injuries allegedly caused to children by toxic waste discharges. Abrasive is represented by Attorney Wilson, who told Abrasive's employees not to talk to Terry without Wilson being present. Is Wilson subject to discipline for instructing the employees not to cooperate with Terry?
16) Wilson asked Abrams, an Abrasive employee, whether he had dumped toxic wastes into the Rapid River. Abrams replied that he had engaged in illegal dumping. Abrams' statement to Wilson is :
i) protected by the attorney client privilege;
ii) protected by Wilson's duty of confidentiality to Abrasive
* * *
A) Both (i) and (ii) are true
B) (i) only
C) (ii) only
D) Neither (i) nor (ii)
17) Assume that Abrasive fired Abrams after learning of the illegal dumping. Terry, attorney for the plaintiffs, talked to Abrams about the dumping without the knowledge of Wilson.
i) Terry is subject to discipline for speaking to an ex-employee without the consent of corporate counsel
ii) Terry should not inquire into conversations between Abrams and Wilson
* * *
A) Both (i) and (ii)
B) (i) only
C) (ii) only
D) Neither (i) nor (ii)
18) Attorney Al filed a civil rights action for Jill, who was subjected to a strip search at the local jail. The lawsuit was filed against the jailer individually and the county. The suit asked for damages and injunctive relief. Al asked Jill to "spread the word that I'm available if other women who have been strip searched want to sue." Jill spread the word and identified a woman named Claire who had undergone a similar experience. Jill asked Claire if she wanted Al to handle her case. Is Al subject to discipline?
19) Jill reported to Al that Claire was equivocal about suing. Al visited Claire in the jail, told her he would represent her and would guarantee that she would be successful. If successful, Al would be paid a statutory fee under the Civil Rights Act based on the number of hours worked and a reasonable rate. Is Al subject to discipline?
20) Howard was 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 in the department that arrested Bill. 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 trial of Bill's case.
B) .Howard may not be disciplined because his statements are protected under the first amendment.
C) Howard may be disciplined because attorneys have no first amendment right to speak once an indictment is filed
D) Howard may not be disciplined because he is acting as an advocate protecting his clients interests.
21) Assume instead that Howard made false statements in a press conference about the judge who was going to try Bill's case. The statements were to the effect that this judge regularly took bribes to influence the outcome of the case. Howard made the statements without investigating whether they were true or not.
A) Howard may.not be disciplined because his statements are protected under the First Amendment.
B) Howard may be disciplined if the statements are determined to be false.
C) Howard may not be disciplined because he is an advocate defending his client.
D) Howard may be disciplined, but only if he intended to cause the judge harm.
22) Francis hired Lawyer Larry to certify that Francis' inventory was worth $150,000 and could be used as collateral by Francis in obtaining a loan from American Finance. Based on Francis's representation as to certain facts, Larry made a written certification of value to American, and American is considering loaning Francis $150,000. Larry then learned that Francis's representations were false and the collateral was worthless.
i) Larry may withdraw from his representation of Francis
ii) Larry may notify American Finance not to rely on his certification
* * *
A) Both (i) and (ii)
B) (i) only
C) (ii) only
D) Neither (i) nor (ii)
23) Lawyer Larry represented Greg in the purchase of real estate from Sam. Greg sent Larry a check for $100,000 representing the purchase price of the property. Larry deposited the check in his personal account on Tuesday. On Thursday of the same week, Larry handled the transaction and wrote Sam a check on his personal account for $100,000. Sam noted that the check (which was good) was written on a personal account and filed a complaint with the bar
A) Larry is subject to discipline for commingling funds
B) Larry is not subject to discipline because no one suffered loss
C) Larry is not subject to discipline because Sam, a non-client, has no standing to complain that funds were commingled
24) 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
25) Lawyer Les represented a client who appeared before a judge for sentencing for sexual abuse of a child under 12. Neither the prosecutor nor the judge appeared to be aware that the sentencing statute precluded probation for the charged crime. The judge said, "This is your first offense and I am sentencing you to five years, but suspending the sentence and putting you on probation for three years." Is Les required to tell the judge about the restriction in the sentencing statute?
A) No
B) No, because there is no requirement to reveal adverse statutory authority
C) Yes, but only if the judge asks Les if the statute allows probation
D) Yes
26) Lawyer Lane represented Jill in a contract dispute with Jack, who was represented by Attorney Ann. During the pendency of that dispute, Jack asked Lane to advise him on estate planning and write his will. Lane agreed to represent Jack in this matter because it was not related to the contract dispute. Neither Ann nor Jill was told of Lane's representation of Jack. Lane is subject to discipline:
i) for talking to a person represented by counsel without counsel's consent
ii) for representing Jack without Jill's consent
* * *
A) Both (i) and (ii)
B) (i) only
C) (ii) only
D) Neither (i) nor (ii)
27) During closing argument Prosecutor Paul commented on the testimony of his star witness, Linda, as follows, "Defense counsel suggests that just because Linda received immunity from prosecution she has a motive to lie. I assure you that I would not put a witness on the witness stand that I did not believe was telling the truth." Is Paul subject to discipline for this statement?
A) No
B) No, because a prosecutor has an obligation not to call witnesses that he believes will testify falsely
C) Yes, but only if the prosecutor believed she had lied
D) Yes
28) Lawyer Linda represented Sam, charged with the murder of his business partner, Mark. Sam denied the offense and brought Linda a desk calendar which, he said, would show that he was in a different city at the time of the crime. In the back of the desk calendar Linda found a letter from Mark dated a week before the murder charging Sam with embezzling from the business. What should Linda do with the letter and why?
29) Attorney Ann, new in the practice, incorporated Client Carl's business. Carl said he was extremely pleased with Ann's work and felt her charges were reasonable. In the ensuing conversation, Ann asked Carl to recommend her to his friends and acquaintances who might need legal work. Is Ann subject to discipline:
A) No
B) No, but only if Carl was a close friend or relative
C) Yes, if Ann initiated the discussion about recommending her to others
D) Yes
30) Lawyer Larry and CPA Carl agreed to share offices. On the letterhead and the door appeared the following,
Larry and Carl
Complete Legal and Accounting Services for Businesses and Individuals
Is Larry subject to discipline:
A) No
B) No, so long as he and Carl do provide complete legal and accounting services
C) Yes, but only if Larry and Carl are partners
D) Yes
31) While on vacation in Canada, Attorney Ann skipped out on a hotel bill of $1200. Criminal charges were brought and Ann eventually paid the bill. Is Ann subject to discipline?
A) No, because the activity occurred outside the state in which Ann was licensed
B) No, because the matter arose outside of Ann's practice
C) Yes, but only if the charge resulted in a conviction
D) Yes
32) 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
33) On the facts of (32) assume that Andy fired Carla after finding out about her misrepresentations. When Carla applied to take the bar, the Character and Fitness Committee sent Andy a letter asking him to respond to certain questions, i.e. "Was the applicant fired and, if so, why?"
A) Andy must respond truthfully to this request for information
B) Andy should, but is not required to, respond truthfully to the request
C) Andy should not respond truthfully to the request without Carla's consent
34) Attorney Alice represents Pizza Hut on environmental matters. Domino's, a competitor of Pizza Hut, asked Alice to represent it in a labor negotiation.
A) Alice may not represent Domino's
B) Alice may represent Domino's but only with the consent of Pizza Hut
C) Alice may represent Domino's with or without the consent of Pizza Hut
35) 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
36) 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 of the matter."
A) Ann must withdraw from the representation since she and Clara disagree about the settlement
B) Ann may withdraw from the representation, but only if this can be accomplished without prejudice to Clara's case;
C) Ann may withdraw from the representation if Ann believes Clara's objectives to be imprudent
37) 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.
i) Abbie is subject to discipline if she voluntarily tells the ex-wife what Carl is planning
ii) Carl's statements are protected by the attorney client privilege
Which of the above is true?
A) both (i) and (ii)
B) (i) but not (ii)
C) (ii) but not (i)
D) neither (i) nor (ii)
38) Attorney Al filed a lawsuit against the Alamo Apartments on behalf of Ted, one of the tenants. Alamo's attorney called Al and offered $1000 for dismissal of the suit on condition that Al bring no action on behalf of any other tenant against Alamo. Al believes the offer is inadequate and will not fairly compensate him for his time. Ted wants to accept the offer.
A) Al must accept the offer and agree to Alamo's condition
B) Al may elect to reject the offer on Alamo's condition because he will not be fairly compensated for his time
C) Al must not accept the offer on Alamo's condition because the offer is inadequate
D) Al must not accept the offer because it restricts his right to practice
39) Attorney Andy is an estate planner. His wife, Betty, is a nurse. One of Betty's patients, Clara, wants to give Betty $5000 in appreciation for her kindness. Andy prepares a codicil for Clara to sign leaving Betty $5000.
A) Andy is subject to discipline for preparing the codicil
B) Andy is subject to discipline only if it is shown that Clara was subjected to undue influence
C) Andy is not subject to discipline if he will not personally benefit from the bequest
D) Andy is not subject to discipline if the codicil was witnessed by neutral witnesses
40) Attorney Arnie is asked by Bridget to try to set aside a pre-nuptial agreement. Arnie's investigation discloses a reasonable basis for concluding that Harry, Bridget's husband, concealed assets at the time of the pre-nuptial agreement. Arnie calls Harry and asks whether he is represented by counsel. When Harry replies that he is not, Arnie says that he represents Bridget and that suit will be filed to set aside the pre-nuptial agreement unless a more equitable arrangement can be worked out. Is Arnie subject to discipline?
i) for talking to an adverse party who is not represented by counsel
ii) for threatening civil litigation in order to achieve his client's goal
* * *
A) Both (i) and (ii)
B) (i) only
C) (ii) only
D) Neither (i) nor (ii)
Essays
1) (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 ("don't breathe a word of this to my ex or Mark") that she had tested positive for HIV. Alice refused to say how she contracted the disease (except that it wasn't Mark) and refused to authorize Lee to tell anyone.
Comment on the ethical issues raised by this fact situation.
2) (15 points) Lawyer Lana represented Peter Wolf, who was charged with the murder of his business partner. Shots were heard in the office at 3:15 pm and Bystander Bill identified Wolf in a lineup as the person who ran from the building at that time. Bill is subject to impeachment because his initial description of the assailant does not match Wolf.
Clerk Clara came forward in response to Wolf's photo in the paper to give Wolf a potential alibi. Clara told Lawyer Lana that she believes she waited on Wolf in Victoria's Secret, a shop twenty miles from the scene of the crime, at 3 pm, a time she is sure of because she checked the clock when she came back from break. She remembered Wolf because he was embarrassed by the lingerie.
Wolf told Lana he committed the murder at 3:15 and was never in Victoria's Secret. Lana believes Clara waited on someone who resembled Wolf -- that this is not a case of Wolf arranging an alibi. Lana also knows that Bill's lineup identification of Wolf is correct, and that his initial description of the robber was wrong.
Wolf will not testify. Comment on the ethical issues raised by Lana cross-examining Bill to cast doubt on his lineup identification and putting Clara on the stand to testify to what she honestly (as far as Lana knows) but mistakenly believes she saw in Victoria's Secret at 3:00 pm.