Last 4 digits of SS # ______________ Exam # _______________
This is a two and one/half hour exam. Closed book and rules. 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. The second part is three essays (45 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) Client Claude told Attorney Ann that Bob, Claude's brother-in-law, was an alcoholic who was stealing money from his clients. Bob is a licensed attorney. Claude told Ann not to tell anyone about Bob's problem because it would cause problems within the family.
a) Ann must report Bob to the appropriate disciplinary authority,
b) Ann must report Bob to the appropriate disciplinary authority, unless the information about Bob relates to Ann's representation of Claude,
c) Ann may, but it is not required to, report Bob to the appropriate disciplinary authority
d) Ann may not report Bob to the appropriate disciplinary authority
2) Ann and Betty are licensed only in State X. The law firm of Ann and Betty proposes to run the following newspaper advertisement, which will circulate in State X and State Y, which borders State X:
Think your employer discriminated against because of race, religion, gender, age or disability? You might have a case. For your free initial consultation Consult Ann and Betty, licensed attorneys at law at 252-4325, 101 State Street, Metro City, State X. Evening hours and all major credit cards.
Will Ann and Betty be subject to discipline for such an advertisement?
a) Yes, because the advertisement circulates in a state in which Ann and Betty are not licensed,
b) Yes, because the advertisement is designed to stir up litigation,
c) No, if Ann and Betty restrict their practice to employment discrimination
d) No, if all statements are true
3) Attorney Abner is a member of the bar of State C. While on vacation in State D, Abner was arrested and convicted of misdemeanor theft -- defrauding an innkeeper (he left without paying his hotel bill). Is Abner subject to discipline in State C?
a) No, because his conduct took place beyond the jurisdiction of State C
b) No, because his conduct in State D was unrelated to the practice of law
c) Yes, because his conduct in State D reflects on his honesty and trustworthiness and fitness as a lawyer
d) Yes, because commission of any criminal act is grounds for professional discipline.
4) Ivan asks Attorney Ann to incorporate his small business. Ivan asks Ann to take 10% of the stock as her fee. May Ann agree?
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, Ivan is given a reasonable opportunity to seek the advice of independent counsel, and Ivan consents in writing
d) Yes, because Ivan suggested the arrangement
5) Attorney Ann represents Client Charles on a domestic matter. Douglas asked Ann to represent him against Charles in a contract dispute unrelated to the domestic matter. Charles does not consent to Ann representing Douglas against him.
a) Ann may withdraw from representation of Charles and represent Douglas against Charles
b) Ann may represent Douglas against Charles because the matters are unrelated
c) Ann may not represent Douglas but her partner Betty may represent Douglas if Ann is screened from the litigation and apportioned no part of the fee,
d) Neither Ann nor Betty may represent Douglas
6) Attorney Al, an assistant prosecutor, was assigned to prosecute Carl on a murder charge. During the course of the trial, Al negotiated for employment with his adversary, the criminal defense firm of Bailey & Stump. Carl was tried and acquitted. Bailey & Stump then hired Al. Is Al subject to discipline?
a) Yes, for negotiating for employment with an adversary,
b) Yes, because Carl was acquitted,
c) No, unless it is shown that Al failed to prosecute diligently
d) No, because prosecutors are not subject to disciplinary charges
7) Attorney Alice represented Client Charles in an employment discrimination claim against the XYZ Corporation. XYZ is represented by Attorney Bob. Without Bob's knowledge, Douglas, the CEO of XYZ Corporation, called Ann to ask what Charles would settle for. Ann said Charles would settle for $25,000. Douglas said he would get back to her after talking to Bob. Is Ann subject to discipline?
a) Yes, because she spoke on behalf of a client with the CEO of a company represented by counsel about a matter within the scope of counsel's representation and without counsel's knowledge
b) Yes, because Bob must consent to the settlement
c) No, if Ann had Charles' authority to settle for $25,000
d) No, because Douglas initiated the conversation
8) Assume on the facts of (7) that Douglas' phone call was not about the pending case, but rather to inquire whether Ann would be interested in handling Douglas' divorce. Douglas said he was dissatisfied with Edward, his present lawyer. After some discussion, Ann agreed to handle Douglas' divorce. Is Ann subject to discipline?
a) Yes, for talking to someone who is represented by counsel
b) Yes, for in-person solicitation
c) No, provided Charles gives informed consent to the representation
d) No, provided Bob and Charles give informed consent to the representation
9) Attorney Al believes strongly in property rights. He was hired by the Homebuilders Association to represent its interests in opposing 40 acre minimum lot sizes in the rural parts of Metro county. Al believes that requiring 40 acre lots is an unconstitutional taking of property without compensation. Al appeared before the Metro county planning commission and presented the constitutional argument. He did not tell the planning commission that he was representing the Homebuilders' Association. Al was paid $2000 by the Homebuilders' Association. In spite of Al's argument, the planning commission passed the 40 acre minimum lot size. Is Al subject to discipline?
a) Yes, because he was paid for his testimony
b) Yes, because he did not reveal that he was appearing in a representative capacity
c) No, because he was not appearing before the commission in his capacity as a lawyer
d) No, so long as he did not misrepresent the facts and law to the commission
10) Attorney Andy agreed to represent Client Callie in a personal injury action. The written agreement contains the following provisions:
i) Andy agrees to advance all costs of litigation, to be repaid out of the recovery, if any. If the recovery is not sufficient to pay the costs of litigation, Callie is not obligated to pay said costs.
ii) Andy's fee is one third of the net recovery, after deducting the expenses of litigation
iii) Andy is not liable to Callie for damages caused by Andy's negligence in handling this case
Andy recommended that Callie have an independent lawyer look over the agreement but she declined to do so. For which of the provisions above is Andy subject to discipline?
a) all of them
b) (i) and (iii)
c) (i) only
d) (iii) only
e) none of them
11) Attorney Alice was appointed to represent Client Carl, who was charged with felony assault -- causing serious physical injury to his wife. Carl told Alice he had done the act and would do it again if he were released on bond prior to trial. Alice finds this threat to be credible. Alice does not want Carl to be released but is uncertain what she may reveal to the court. Assuming Carl would not consent, what may she disclose to the court?
i) that he committed the act for which he is charged
ii) that he has threatened to beat his wife again if released
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a) both (i) and (ii)
b) (i)
c) (ii)
d) neither (i) nor (ii)
12) Client Cook was charged with a satanic ritual murder. He asked Attorney Annie, a famous criminal lawyer, to represent him. Annie quoted Cook a fee of $50,000. Cook asked Annie if she would accept as a fee the literary rights to the true story of Cook's crime and his trial. Annie agreed to this arrangement. Cook was acquitted in a jury trial and Annie wrote a book about the case, which was never published. Is Annie subject to discipline?
a) Yes, for entering into a contingent fee arrangement in a criminal case
b) Yes, for entering into an arrangement for literary rights before the conclusion of the representation
c) No, because Cook was acquitted
d) No, because Annie did not profit from the arrangement
13) While in law school, Al worked for the state Office of Surface Mining. Al became familiar with project and reclamation reports filed by companies engaged in surface mining. Assume these reports are confidential and could be used to the detriment of mining companies in private suits for environmental damage. One of the coal companies Al learned about was the Top-Em Coal Company. After graduation and admission to the bar, Al was hired by Bailey & Stump which had filed a landowner's suit against Top-Em for stream degradation. Al has information about Top-Em which could be used to the plaintiff's advantage if Al is permitted to share it with the lawyers handling the litigation. May Al reveal the information about Top-Em to the Bailey & Stump lawyers?
a) Yes, because he acquired this information before he became a lawyer
b) Yes, so long as he does not actively participate in the litigation
c) No, because he was in an attorney-client relationship with Top-Em
d) No, because he acquired this information while he was a public employee
14) Defendant was charged with assaulting a police officer. The defendant claimed he struck the officer in self-defense. The defendant got the worst of the matter -- he was bruised and had a black eye. The officer was not hurt. Other than the defendant and the officer, there were no witnesses. The officer testified that the defendant struck him without provocation, and the defendant testified that he struck the officer in self-defense when the officer began to beat him. In closing argument the defense counsel said the following:
i) Who has reason to lie here? Isn't it fair to infer that the officer made up this story to explain away the defendant's bruises and black eye?
ii) This is the kind of thing that happens all the time -- I once was involved in a similar incident -- got beat up and then the cop claimed I started it -- like I'm going to start a fight with a guy with a nightstick
iii) I can truthfully in all the years I've practiced that I've never seen a police officer less worthy of belief
Which of the above statements are proper?
a) all of the above
b) (i) and (iii)
c) (i) only
d) none of the above
15) Judge Able presided in the case of Xylo v. Philo, a trademark infringement action. Able ruled in favor of Xylo and enjoined Philo's use of the deceptive mark. Two years later Able resigned from the bench and joined the firm of Stump and Bailey. Xylo has asked Judge Able to represent it in another trademark infringement action, this one against Silo.
a) Able may represent Xylo against Silo
b)Able may not personally represent Xylo, but Stump and Bailey may represent Xylo if Able is screened from the litigation and apportioned no part of the fee
c) Neither Able nor Stump & Bailey may represent Xylo against Silo
16) Attorney Ann helped an old client, Carl, to fill out the papers to probate his father's will and have administration of the estate waived (it was a small estate). Ann did not charge Carl and did not appear as counsel of record. In gratitude Carl sent Ann a $50 gift certificate at a local restaurant. Ann is subject to discipline for:
i) assisting Carl in the unauthorized practice of law
ii) accepting a gift from a client
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a) both (i) and (ii)
b) (i) only
c) (ii) only
d) neither (i) nor (ii)
17) Attorney Ann represents Client Claude in a products liability action against the Mega Drug company for injuries allegedly caused by the new wonder drug "Niagra.". After extended discovery Mega offers Ann and Claude $500,000 in settlement, contingent on Ann not representing any other Niagra claimants against Mega. Claude wants to accept the offer and Ann believes the settlement is in Claude's best interests. On the other hand, Ann does not want to give up Niagra litigation.
a) Ann must accept the offer and agree to the condition
b) Ann must withdraw from the litigation since she and Claude are in conflict
c) Ann may agree to the condition if there are other attorneys available who can competently represent Niagra claimants
d) Ann may not agree to the condition, even though it is Claude's best interest to do so
18) Attorney Able and Chiropractor Carl entered into an informal arrangement by which each referred all potential clients to the other. Thus Carl referred patients needing an attorney to Able and Able referred clients needing chiropractic to Carl. Is Able subject to discipline for this arrangement?
a) Yes, because Able is compensating Carl for recommending Able for legal work
b) Yes, because the arrangement consists of the practice of law with a non-lawyer
c) No, because fees in individual cases are not shared
d) No, so long as the total fees are reasonable
19) Able and Baker is a large law firm which represents Xylo in its corporate affairs, including a franchise lawsuit with Xylophone, a franchisee. Able and Baker has just hired Attorney Al, formerly with the firm of Hook & Slice, counsel to Xylophone in the franchise dispute. While with Hook & Slice, Al obtained confidential information about Xylophone that would be of value to Xylo in the franchise dispute. Hook & Slice has moved to disqualify Able & Baker in the franchise action. Should the motion to disqualify be granted?
a) Yes
b) Yes, unless Al is screened from the franchise litigation, and apportioned no part of the fee
c) No, because Al is under no duty to maintain the confidences of Xylophone after leaving Hook & Slice
d) No
20) 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, Montel, 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
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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
21) Jack ran a newspaper advertisement in which he made the following truthful statements:
i) Uncontested divorces $350 plus court costs,
ii) Married to Judge Judy Jones (Judge Jones hears divorce cases, though she probably wouldn't sit on a case brought by her husband)
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)
22) Al and Amy are siblings. Steve is married to Amy. Al and Steve attended the same law school. Al, who was two years ahead of Steve, knows through his sister that Steve cheated on her, cheated on law school examinations and papers, stole money from a store in which he worked as a cashier, and filed false tax returns. Al is now a practicing attorney in State X and Steve has just graduated and is sitting for the bar examination in State X. Which of the following correctly states Al's obligation to the character and fitness committee?
a) Al must report what he knows of Steve
b) Al should report what he knows of Steve
c) Al should not report what he knows of Steve without Steve's consent
d) Al must not report what he knows of Steve without Steve's consent
23) Attorney Al was a passenger in a car driven by his friend Harry. Harry's car was involved in an accident with Defendant. Harry has asked Al to represent him in a personal injury suit against Defendant. Al saw the accident and believes it was Defendant's fault. Al and Harry have agreed in writing on a contingent fee and Al has agreed to advance litigation costs to be repaid only in the event of a recovery or settlement.
i) It is not proper for Al to represent Harry because he is a potential witness to the accident.
ii) Al is subject to discipline for advancing litigation costs which are to be repaid only in the event of recovery.
iii) Al is subject to discipline if the fee agreement fails to state whether litigation costs are to be deducted before or after the contingent fee is calculated.
* * * *
Which of the above are true?
a) all of the above
b) (i) and (ii) but not (iii)
c) (ii) and (iii) but not (i)
d) (i) and (iii) but not (ii)
24) Able and Baker were indicted for armed robbery. Able hired Counselor Carl to represent him and Baker. Carl interviewed them separately and concluded that there was no conflict -- their stories were consistent. The prosecutor moved to disqualify Carl, asserting that there was a potential conflict in the case. Carl resisted disqualification and the judge denied the motion. A week later Baker told Carl he wanted to plea bargain and exchange his testimony against Able for a favorable sentence:
i) it was proper for Carl to have interviewed them separately
ii) Carl was obligated to tell Baker that Able was paying him
iii) The Prosecutor had standing to challenge the joint representation
iv) Unless Able consents, Carl must withdraw from representing both men
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a) (ii) and (iv) are true
b) (i) (ii) and (iv) are true
c) (ii), (iii), and (iv) are true
d) all of the above are true
25) Attorney Al was hired by a CPA firm, situated in State X, for his expertise in British tax law. Al advised international clients of the firm about British tax laws to enable them to structure their operations so as to avoid double taxation. Is Al subject to discipline in State X?
a) Yes, because an attorney may not work for a non-attorney
b) Yes, if his advice constituted legal advice
c) No, because he was advising about British law, not the law of State X
d) No, unless the clients are dissatisfied with his work
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Essay questions (45 points)
A ) 5 part question (25 points)
Alice Attorney, a partner at a large law firm, represents Chemicals, Inc., in a real estate transaction that the company is contemplating. Chemicals owns a fifty-acre site near the center of Lexiville, where the company had formerly operated its major warehouse for its chemical supply business. Use of that warehouse has now been discontinued and Chemicals has offered the property for sale. Developer has been negotiating extensively with Chemicals to purchase the site. Developer wants to develop the property as a shopping mall.
During these negotiations, Attorney sent a letter to counsel for Developer. The letter enclosed the results of tests performed by an independent testing firm. Her cover letter included the following paragraph:
As you will see, the enclosed test results show only a minor amount of soil contamination, presumably as a result of petroleum spills. That contamination is present in six of the ten samples tested by Testing, Inc. As the enclosed map shows, the sites where the test samples were gathered are in locations dispersed through the fifty-acre property and should reveal any significant contamination of the site. The soil samples are being sent to you under separate cover if you wish to re-test. You may, of course, take additional soil samples for testing if you so desire.
Developer re-tested the soil samples with results consistent with those of the independent testing company. Developer elected not to take additional soil samples from the property, but rather relied on the report of the independent testing firm and Attorney's letter, which indicated representative testing of the property. Developer then decided to purchase the site, believing that a voluntary cleanup of the property could be easily accomplished and that the development plan could then be implemented.
Shortly before the closing, Attorney accompanied Developer's counsel on a walk-through of the property. After counsel had left the site, Edward Engineer, an employee of Chemicals, Inc., approached Attorney and asked about the sale of the property and the proposed development. Engineer then asked whether Attorney was aware that hazardous wastes had been dumped into open ditches on the property several years previously and that those ditches had been filled. Engineer insisted that Attorney accompany him to where these disposals had occurred in order to see the stains and the distressed vegetation. After observing this area and the conditions described by Engineer, Attorney asked what type of waste had been dumped there. Engineer said that he had participated in only three or four of these disposals. He believed that he had dumped mixtures of "pretty toxic stuff" but was unsure of exactly what had been dumped and over what period of time. Engineer then asked Attorney to treat this information confidentially, because Engineer feared reprisals by Chemicals, Inc.
1) How should Attorney respond to Engineer's request that the information about disposals of hazardous wastes remain confidential?
2) Attorney has a scheduled meeting with the CEO of Chemicals, Inc., on the next day, which is still prior to the sale. At that meeting, is Attorney either permitted or required to raise the issue of the open dumping of the toxic mixtures? Is Attorney required or permitted to raise the issue with Board of Directors if the CEO does not consent to disclosure of the test results?
3) Assume that Attorney raises the matter with the CEO and that the CEO tells Attorney that the sale should proceed based on the previously disclosed test results and the previously determined price. The CEO reminded Attorney that Developer's representatives had the opportunity to perform their own testing and investigations. Chemical, Inc.'s Board of Directors concurs with its CEO that disclosure of the open dumping is unwarranted. Attorney thereafter attends the closing. Developer's counsel mentions testing of the site and says to Attorney that Developer's retesting of the test results had confirmed the adequacy of the site testing completed by Chemicals, Inc, as reflected in Attorney's letter. Chemical's CEO says, "I'm glad that's not going to hang this up." Developer says to CEO and Attorney, "I'm glad there's nothing wrong - I thought the soil might be contaminated." Chemical's CEO is silent. What, if anything, should (must) Attorney do?
4) Assume that Attorney does nothing and the sale goes through. Attorney then learned that Developer was advertising the property for sale and including Attorney's letter and the test results in its promotional brochure. Attorney had concluded the representation of Chemical Co. What if anything should (must ) Attorney do?
5) Assume Attorney does nothing and one year later, Developer sold the property to Lexiville for use as a park. Lexiville relied on the test results and Attorney's letter. Developer cashed Lexiville's check and is living in Morocco. Lexiville then discovered the soil contamination which rendered the site unfit for a park. Lexiville sued Chemicals Inc. and Attorney for misrepresentation. Is Attorney liable to Lexiville? Why or why not?
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B) 3 part question (15 points)
The applicable criminal statute, which has not been construed by the court, reads:
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.
1) Attorney represents David, who is suspected of killing his wife. Some of the evidence points to David and he had a financial motive (she was a wealthy woman) but the police have not had enough evidence to make an arrest. David denies that he committed the crime and hired Attorney to represent him. Attorney received an envelope in the mail with no return address. Inside was a note and an audio cassette. The note read, "The smoking gun in David's case?"
Should (must) Attorney listen to the tape? Assume he does not listen to the tape. What should he do with it?
2) Assume Attorney listens to the cassette, which contained what appears to be telephone conversation between a man and a woman. Attorney believed that he recognized the man's voice as that of David. The man and woman were discussing "getting rid of her" so that "we can be together," with the man assuring the woman that "don't worry, they'll suspect me but they'll never be able to prove I did it."
Should (must) Attorney inform David about the tape? Let David listen to it? Do something with the tape without telling David about it?
3) Assume Attorney allows David to listen to the tape. David acknowledges that the tape is of a conversation between him and his girl friend, but he denies killing his wife. David asks Attorney to give him the tape and "keep his mouth shut."
What should (must) Attorney do?
C) 5 points
Attorney Jill represents plaintiffs in employment discrimination claims. Her husband Jack, is an African-American who works in a supervisory capacity for the Mega Corporation. Jack is proud of Mega's record in hiring and promoting minorities.
Recently, a supervisory position at Mega opened up and was filled by Mike, a white male. Louis, an African-Amercian, did not receive the position and made an appointment with Jill. Louis said, "It wasn't fair. I'm far more qualified than Mike. I'd like you to represent me."
Assuming there is merit in Louis' claim, should Jill handle his case? What problems do you foresee if she does?