Practice What You Preach
LLP Cooper is retained by Mr. Scarborough. Cooper is a sole practitioner with only a legal assistant to help him. Opposing counsel is a member of a large firm with many resources. Opposing counsel files extensive discovery requests and numerous pleadings and motions, including requests for many experts in the case. The result is that the case has become more costly and time-consuming than anticipated. Mr. Scarborough wants the pretrial process to end and a hearing established sooner rather than later. Cooper advises his client that shortening the time line will significantly decrease the odds of achieving a favorable outcome. Despite Cooper's advice, Mr. Scarborough demands the case be expedited. These differences in opinion are making the case increasingly difficult to manage. Would it be appropriate for LLP Cooper to seek court approval to withdraw from representing Mr. Scarborough?
A) Yes, because Mr. Scarborough's demands are making it unreasonably difficult for LLP Cooper to effectively represent his client.
B) Yes, because an LLP has the right to withdraw from representation at any time before a hearing occurs.
C) No, because an LLP is legally bound to follow the directions of the client in regard to case management.
D) No, because the opposing party did not consent to LLP Cooper from withdrawing from representation.
An attorney represents a client who is under indictment for homicide. In the course of the representation, the client told the attorney that she had previously killed two other people. These murders are completely unrelated to the murder indictment for which the attorney is providing representation. With the client’s consent, the attorney made a tape recording of the client’s confession regarding the unrelated homicides. At the attorney’s request, the client also drew a map of the remote locations of the victims’ graves from the unrelated killings. Those bodies have not been found by the police, and the client is not a suspect in either crime, both of which remain unsolved. Is the attorney subject to discipline if he fails to voluntarily disclose to the authorities his knowledge of the two prior murders and the locations of the victims’ bodies?
A) Yes, because as an officer of the court, the attorney must disclose any knowledge that he has, whether privileged or not, concerning the commission of the prior crimes by his client.
B) Yes, because the attorney is impeding the state’s access to significant evidence.
C) No, because the attorney did not represent or advise his client with respect to the prior crimes.
D) No, because the information was obtained by the attorney in the course of the representation.
An attorney represented the plaintiff in a personal injury matter. The attorney had heard that the defendant in the matter was anxious to settle the case and reasonably believed that the defendant’s lawyer had not informed the defendant about the attorney’s recent offer of settlement. The attorney instructed her nonlawyer investigator to tell the defendant about the settlement offer so that the attorney could be sure that the defendant’s lawyer did not force the case to trial merely to increase the defendant’s lawyer’s fee. Is the attorney subject to discipline?
A) Yes, because the defendant was represented by counsel.
B) Yes, because the attorney was assisting the investigator in the unauthorized practice of law.
C) No, because the investigator is not a lawyer.
D) No, because the attorney reasonably believed that the defendant’s lawyer was not keeping the defendant informed.
An attorney represents a client in commercial litigation that is scheduled to go to trial in two months. Over the past several weeks, the client has disagreed with almost every tactical decision that the attorney has made. Frustrated, the attorney finally said to the client that if she didn’t like the way he was handling the lawsuit, perhaps she should get another lawyer. The client was upset at the suggestion and accused the attorney of trying to get out of the case. Reasonably believing that he could no longer work effectively with the client, the attorney sought the client’s permission to withdraw from the representation, and the client reluctantly agreed. After giving the client sufficient notice to obtain replacement counsel, the attorney requested the court’s permission to withdraw from the litigation, but the court denied the request. May the attorney withdraw from the representation?
A) Yes, because the client agreed, and the attorney gave the client sufficient notice to obtain replacement counsel.
B) Yes, because the client had made it unreasonably difficult for the attorney to carry out the representation effectively.
C) No, because the court denied the attorney’s request to withdraw.
D) No, because the attorney’s withdrawal would cause material prejudice to the client, and the client’s agreement was not voluntary.
An attorney represented a client as a plaintiff in a personal injury matter under a standard contingent fee contract. The client agreed to settle the case for $1,000,000, from which funds the attorney would receive $250,000. The client informed the attorney that she planned to take $25,000 of the settlement funds and spend the money purchasing lottery tickets. The attorney told the client that he disagreed with this plan and encouraged the client to take some classes on investing money. The client agreed to take the classes, but still insisted on playing the lottery. The attorney received the check for $1,000,000 three days before the client was to attend the investing classes. The attorney held the check for one week, giving the client at least a few days of classes. The attorney then informed the client of the receipt of the funds, disbursed the funds according to the agreement, and also furnished the client with an accounting. The attorney told the client that he had delayed notice to allow time for the client to come to her senses. The client laughed and said, “I guess your plan worked, because these classes have convinced me to invest my money in the stock market instead of playing the lottery.” Is the attorney subject to discipline?
A) Yes, because the attorney had a duty to promptly notify the client of the receipt of the $1,000,000.
B) Yes, because the attorney gave unsolicited advice about nonlegal matters.
C) No, because the client did not object to the withholding of the notice and funds.
D) No, because the attorney acted in the client’s best interest.
An attorney who is a sole practitioner limits his practice to personal injury cases. He regularly places advertisements in local newspapers, stating that his practice is limited to personal injury cases, including medical malpractice. After seeing one of the attorney’s ads, a man approached the attorney for representation in a medical malpractice case. After a 30-minute interview, the attorney told the man that he was too busy to take his case because it appeared quite complicated. He further offered to refer the man to another lawyer who regularly practiced in the field. He reminded the man that he should see another lawyer promptly before the statute of limitations expired and he lost his right to sue. Although the attorney did not charge the man for the interview, the man was upset at wasting 30 minutes of his time. The man did not contact another lawyer until eight months later, when he learned that the statute of limitations on his claim had expired six months after his interview with the attorney. In fact, the man had a meritorious medical malpractice claim. Is the attorney subject to civil liability?
A) Yes, because the attorney falsely advertised his availability for medical malpractice cases.
B) Yes, because the attorney did not advise the man as to the date the statute of limitations would expire.
C) No, because the attorney did not violate any duty owed to the man.
D) No, because the attorney offered to refer the man to another medical malpractice lawyer.
An attorney is representing a client in a marital dissolution in which the petition already has been filed. The client runs a local restaurant, and one evening, the attorney meets his friend at the client’s restaurant for dinner. As the attorney and his friend are being seated, the client briefly greets the attorney by name. The attorney has been meaning to ask his client a quick question about repairs needed to her house pursuant to a settlement proposal. How should the attorney act in this situation?
A) Attorney must tell his friend that he does not know the client.
B) In front of the attorney’s friend, the attorney cannot ask his client anything about her marital dissolution, and therefore cannot ask anything relating to repairs needed to sell the house.
C) In front of the attorney’s friend, the attorney can ask his client about anything relating to her marital dissolution because the petition is a public court filing and ownership of the house is a matter of public record.
D) In front of the attorney’s friend, the attorney can ask his client about anything in the petition for marital dissolution because it is a public court filing, and can ask about the house because its ownership is a matter of public record, but cannot ask about any confidential details of the case.
An attorney was approached by a husband and a wife who had decided to dissolve their marriage. They had no children and had worked out a tentative mutual property settlement. They did not want to retain separate lawyers because they hoped to save money and believed that working with one attorney was more likely to result in a reasonably amicable dissolution. Before coming to the attorney, they had drafted and each had signed a written agreement not to run up the costs and increase the adversarial nature of the dissolution by retaining separate lawyers.
The attorney believed that he was able to provide competent and diligent representation to both the husband and the wife. The attorney consulted with both independently concerning the implications of the common representation, including the advantages and risks involved and the effect on their respective attorney-client privileges. The attorney reduced the disclosures to writing in the form of a written retainer agreement and gave them each several days to consult independent legal counsel if they so desired. The husband and the wife each chose not to consult independent counsel.
After six months of reasonably amicable negotiations, the wife announced that she had changed her mind about the representation and had decided to retain her own lawyer. However, after the husband and the attorney insisted that she was obligated to adhere to her prior written agreement, she reluctantly agreed to abide by it. The attorney was then able to draft a property settlement agreement satisfactory to both parties.
Is the attorney subject to discipline for his conduct in the representation?
A) Yes, because the attorney should not have undertaken to represent both the husband and the wife in the first place.
B) Yes, because the attorney insisted that the wife not hire another lawyer.
C) No, because both the husband and the wife initially consented to all aspects of the representation.
D) No, because the husband and the wife independently made the agreement that neither would retain separate counsel.
LLP Mariposa is hired by Mother to file a petition to modiify child support. After Father files a response, Mariposa discovers that Mother's factual assertions in support of the petition are not accurate. Mariposa files a motion to withdraw the petition. Is LU? Mariposa subject to discipline?
A) Yes, because LLP Mariposa should have given her client the opportunity to argue her case to the court.
B) Yes, because LLP Mariposa should have known about the factual discrepancy before filing the petition.
C) No, because LLP Mariposa timely withdrew the petition once she discovered it was no longer supported by the facts of the case.
D) No, because LLP Mariposa did not know about problem when she filed the petition.
An attorney regularly represents a certain client. When the client planned to leave on a world tour, she delivered to the attorney sufficient money to pay her property taxes when they became due. The attorney placed the money in his clients’ trust account. When the tax payment date arrived, the 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 percent while the rate for a personal loan was 6 percent, the attorney withdrew the client’s funds from the clients’ trust account to cover his personal check for the closing. The attorney was confident that the client would not object. Ten days later, after the receipt of a large fee previously earned, the attorney paid the client’s property taxes and the 2 percent penalty, fully satisfying the client’s tax obligation. After the client returned, the attorney told her what he had done, and the client approved the attorney’s conduct. Is the attorney subject to discipline?
A) Yes, because the attorney failed to pay the client the 10 days of interest at the fair market rate.
B) Yes, because the attorney used the client’s funds for a personal purpose.
C) No, because the client was not harmed and the attorney reasonably believed at the time he withdrew the money that the client would not object.
D) No, because when the attorney told the client what he had done, the client approved his conduct.
An attorney hired a recent law school graduate as an associate. For the first six months, the associate was assigned to draft legal documents that the attorney carefully reviewed and revised before filing. However, shortly after the associate was admitted to the bar, the attorney told the associate that he would be going on vacation the following week and was assigning her the representation of the landlord in a housing case that was going to trial while he was away. The associate had never conducted or observed a trial before and, because she had not previously worked on any housing cases, she was unfamiliar with the relevant law and procedure. She did not believe that she would have enough time to learn everything that she needed to know, but she was reluctant to decline the assignment. Before the trial began, she met with the landlord and disclosed that this would be her first trial, but the landlord did not object. Although the associate prepared diligently, the landlord lost the trial. Is the attorney subject to discipline?
A) Yes, because the attorney did not ensure that the associate was competent to conduct the trial on her own.
B) Yes, because the landlord lost the trial.
C) No, because the attorney could reasonably assume that, having been admitted to the bar, the associate was capable of conducting the trial.
D) No, because the landlord did not object to the associate’s representation.
DAILY DOUBLE!
LLP Mensah is retained by Ms. Parker in a family law matter. While Mensah is preparing the case, Ms. Parker tells Mensah in confidence that she was previously involved in a hit-and-run accident in which she struck and killed a pedestrian but left the scene. The hit-and-run accident is completely unrelated to the current family law case. Ms. Parker is not a suspect in the crime, which remains unsolved. Is it proper for LLP Mensah to disclose to the police Ms. Parker's involvement in the hit-and-run accident?
A) No, because the information was obtained in the course of legal representation.
B) No, because he did not represent or provide legal advice to Ms. Parker regarding the hit-and-run accident.
C) Yes, because he is an officer of the court with a legal duty to disclose the information.
D) Yes, because the case remains unsolved.
After both parties had completed the presentation of evidence and arguments, the judge took under advisement a case tried without a jury. The case involved a difficult fact issue of causation and a difficult issue of law. After the case was under advisement for several weeks, the plaintiff’s attorney heard rumors that the judge was having difficulty determining the issue of factual causation and was uncertain about the applicable law. Immediately after hearing these rumors, the attorney telephoned the judge, told her of the rumors he had heard, and asked the judge if she would like to reopen the case for additional evidence and briefing from both parties. Thereafter the judge reopened the case for further testimony and requested supplementary briefs from both parties. Was it proper for the attorney to communicate with the judge?
A) Yes, because both parties were given full opportunity to present their views on the issues in the case.
B) Yes, because the attorney did not make any suggestion as to how the judge should decide the matter.
C) No, because the attorney communicated with the judge on a pending matter without advising opposing counsel.
D) No, because the attorney caused the judge to reopen a case that had been taken under advisement.
An attorney represented a real estate developer who was trying to buy several properties. The attorney arranged a meeting with an owner of two large parcels of land, hoping to arrange a sale to the developer. When the attorney scheduled this meeting, he neither knew nor asked whether the owner was represented by counsel in the matter. Shortly after the meeting began, the owner disclosed that he had retained counsel to assist in the sale of the two parcels of land, but that his lawyer could not be present that day. He further stated that he would be meeting with his lawyer the next day. The attorney asked the owner if they could talk anyway, and stated that he wouldn’t ask the owner to sign anything until his lawyer had a chance to look over anything they discussed. The owner, an experienced businessman and negotiator, agreed to continue as suggested, and a tentative agreement was soon worked out. Was the attorney’s conduct proper?
A) Yes, because the owner knowingly agreed to continue the discussions without his own lawyer being present.
B) Yes, because the attorney did not present the owner with any documents to sign during the meeting.
C) No, because the attorney negotiated with the owner after learning that the owner was represented by a lawyer in the matter.
D) No, because the attorney failed to ascertain whether the owner was represented by a lawyer before beginning the negotiation session.
LLP Heyward represented Wife in a divorce proceeding. Husband's counsel sends a settlement check for $50,000 to Heyward. Heyward deposits the settlement check into a trust account. Heyward notifies Wife of the receipt of the funds and bills her $5,000 for his legal fees. Wife disputes the amount billed by Heyward and says he is only owed $3,000 for his work on the case. What is the proper action for LLP Heyward to take?
A) Keep $45,000 in the trust account and transfer $5,000 to his business account
B) Send $45,000 to Wife and transfer $5,000 to his business account
C) Send $45,000 to Wife, transfer $3,000 to his business account, and keep $2,000 in the trust account until the fee dispute is settled
D) Send $50,000 to Wife and place a lien on her property for $5,000
LLP Hall's practice focuses on simple divorce cases without children involved. When asked to do a pro bono case involving a parentage determination, Hall agreed because she wanted to try something new. Hall invested time in studying and researching the relevant law and procedures so she knows how to proceed. However, Hall still feels nervous doing this for the first time and does not have the same experience as other experienced counsel. Is LLP Hall subject to discipline for her lack of competence?
A) Yes, LLP Hall has never handled a parentage determination before and her client is completely depending on her.
B) Yes, LLP Hall took the case because she wanted to try something new, which is an impermissible personal reason.
C) No, LLP Hall can provide competent representation in a new area with adequate study and preparation.
D) No, LLP Hall does not have to meet the usual standards of competency because the client is pro bono.
LLP Bushnell represents a client who suffers from a partial mental impairment, though the client is legally competent and is able to participate in decisions about representation. Due to the client's forgetfulness, it takes Bushnell longer than usual to obtain information and documents from the client to comply with discovery and production requests. Bushnell repeatedly misses deadlines and opposing counsel moves for sanctions. When the judge demanded an explanation from Bushnell, he panicked and blamed it on the client's deteriorating mental health, even though Bushnell had not discussed this potential disclosure with the client. Surprised, the judge offered to give Bushnell and his client additional time to comply with the discovery requests. Was it proper for LLP Bushnell to disclose his client's mental impairment when facing sanctions for missing discovery deadlines?
A) Yes, because LLP Bushnell's client benefited from the extension of time.
B) Yes, because LLP Bushnell should not have to suffer for something that was his client's fault.
C) No, because LLP Bushnell obtained an unfair advantage by using his client's disability, which could be unduly prejudicial to the opposing party.
D) No, because LLP Bushnell unnecessarily violated the client's confidentiality, had plenty of time to obtain the client's consent, and could have reduced the delays in responding to discovery.
An attorney was retained by a woman to advise her in negotiating a separation agreement with her husband. The husband, who was not a lawyer, had decided to act on his own behalf in the matter. The attorney never met or communicated with the husband during the negotiations. After several months, the woman advised the attorney that the parties had reached agreement and presented him with the terms. The attorney prepared a proposed agreement that contained all of the agreed-upon terms. The attorney mailed the proposed agreement to the husband, with a cover letter stating: “As you know, I represent your wife in this matter and I do not represent your interests. I enclose two copies of the separation agreement that I have drafted in accordance with my client’s directions. Please read the agreement and, if it meets with your approval, sign both copies before a notary and return them to me. I will then have your wife sign them and will furnish you with a fully executed copy.” Is the attorney subject to discipline?
A) Yes, because the attorney did not suggest that the husband seek the advice of independent counsel before signing the agreement.
B) Yes, because the attorney directly communicated with an unrepresented person.
C) No, because the attorney acted only as a scrivener.
D) No, because the attorney’s letter did not imply that the attorney was disinterested and the attorney did not give legal advice to the husband.
A seller was engaged in negotiations to sell his interest in a large tract of land to a buyer who was unrepresented in the transaction. Before the seller went out of town for a few days, he told the buyer to call his attorney if the buyer had any questions about the property. The buyer called the seller’s attorney, asked certain questions about the size of the tract, and expressed hesitations concerning the high asking price for the tract. The attorney responded that, based on his experience handling real estate transactions in the neighborhood, the buyer would be getting a lot of property for the price. At the time the attorney spoke to the buyer, the attorney knew that there was a defect in the title and that the buyer’s attempt to purchase the seller’s interest in the tract would not result in the buyer’s acquisition of any interest in the property. Relying on the attorney's assurance, the buyer agreed to make the purchase. Shortly after the sale closed, the buyer discovered that his acquisition was worthless. Is the attorney subject to civil liability to the buyer?
A) Yes, because the attorney knowingly made false representations of fact to the buyer.
B) Yes, because the attorney implied that his opinion regarding the value of the property was a disinterested opinion.
C) No, because the attorney’s statement that the buyer would be getting a lot of property for the money was a statement of opinion regarding the value of the property.
D) No, because the buyer was not a client of the attorney.
An LLP receives $30,000 in inheritance from a deceased parent. The LLP has a gambling problem and thinks the money will be safe if it is "out of sight, out of mind." Therefore, the LLP puts the money in his trust account. Is the LLP subject to discipline?
A) Yes, because the LLP has an addiction that interferes with his ability to render competent representation.
B) Yes, because the LLP commingled personal funds with client funds in the trust account.
C) No, because gambling is a mental health issue for which he can seek help.
D) No, because $30,000 is an appropriate amount to deposit into a trust account.
DAILY DOUBLE!
Attorney Platte is retained by Mr. Animas in a dissolution proceeding. Once he files the petition, Platte does little to pursue the case, opting instead to work on cases with higher fee potential. Opposing counsel seeks written discovery but Platte does not inform Mr. Animas, does not respond to the discovery requests, and does not file a motion for an extension of time. Opposing counsel then files a motion to compel discovery, which Platte also fails to respond to or to inform Mr. Animas. Is Attorney Platte subject to discipline?
A) No, because the court has not ruled on the motion to compel discovery.
B) No, as long as Attorney Platte reimburses Mr. Animas for any legal fees he has already paid.
C) No, because opposing counsel did not give Attorney Platte notice of the motion to compel or give him an opportunity to remedy the issues.
D) Yes, because Attorney Platte failed to respond to discovery, inform his client, or file a motion for extension of time.
LLP Ortiz sees a friend at a high school reunion. The friend asks Ortiz for advice about a potential family law case he is considering. Ortiz gives the friend general information about family law and about the specific kind of petition he might file for the friend. The friend lives too far away for Ortiz to handle the case, and the friend is planning on hiring other counsel. Ortiz later talks to his own wife about the friend's potential case. Ortiz's wife then talks about it to her own friend. Ortiz's friend discovers that several people know about his potential case and is upset, as he believes Ortiz should not have spoken about it to others. Is LLP Ortiz subject to discipline?
A) Yes, because LLP Ortiz should not disclose information about potential cases they discuss with others unless authorized by that person.
B) Yes, because people who discuss potential cases with LLPs, even in a general manner, are prospective clients and have the protection of an LLP-client relationship.
C) No, because LLP Ortiz owes no duties to the friend who communicate with him without any expectation of forming an LLP-client relationship.
D) No, because LLP Ortiz may discuss potential client cases with others as long as the potential client did not actually retain him.
Loeb worked for the State of Colorado as a staff member of the agency that adjudicated suspension of driver's licenses of parents that failed to pay child support. After passing the LLP exam, Loeb surreptitiously copied a database of individuals facing license suspensions and used the names to solicit clients when he started his LLP firm. Is LLP Loeb subject to discipline for his actions?
A) Yes, because LLP Loeb accessed confidential government information from his time working for the State of Colorado.
B) Yes, because a former government employee cannot represent any clients against the same state entity for whom they once worked.
C) No, because there is no conflict because LLP Loeb did not participate directly in the clients' cases.
D) No, because disqualification of former government employees does not apply to merely administrative matters such as license suspensions.
A client recently hired an attorney to request a modification of child support. The client told the attorney that she lost her well-paying job a year ago, and is now just working odd jobs for cash. The client told her attorney that her annual income is now just $40,000 a year. The attorney plans to file a motion or stipulation to modify using the client’s updated income. The attorney is at a social gathering where a close friend of the client tells the attorney that the client actually is making “good money” in “sales,” but that the client is being secretive about it. When the attorney is back in the office, he asks his client to come in for a meeting. Initially the client was unavailable because she was in Las Vegas “on a business trip.” When the meeting is finally scheduled, the client arrives in a new, expensive car, lending credibility to what the attorney had heard at the social gathering. The attorney asks the client to be honest with him about her income. The client acknowledged her income was more than $40,000 but would not say how much. She tells the attorney: “Your job is to tell the court whatever I say is my income, and it is none of your business how I make my money.” Which of the following is correct?
A) Because she is the paying client, the attorney must complete the sworn financial statement using the $40,000 that the client claimed is her annual income, even though the attorney knows $40,000 is a false statement.
B) The attorney can prepare a motion or stipulation to modify but must not complete the sworn financial statement for the client. However, the attorney can allow the client to complete it using the $40,000 figure and attach it to the filing.
C) The attorney can tell the client that he cannot allow false information to be filed with the court, and that either the client needs to be forthright about her income – which needs to be at a level that would justify filing a motion to modify -- or the attorney will withdraw from the representation.
D) The attorney can compromise with the client, listing $80,000 a year for income on the sworn financial statement, which the attorney thinks is fair given that the client is being uncooperative.
LLP Fritz establishes a trust account in which he deposits money he receives from his client Mr. Lang. Mr. Lang is out of state on a business trip when Fritz finds himself in need of a temporary loan. Fritz tries unsuccessfully to contact Mr. Lang for permission to access money from the trust account, but he reasonably believes that Mr. Lang would approve a loan. Fritz borrows money for the trust account and replaces it before the end of the month. After Mr. Lang returns from his trip, Fritz discloses the loan. Mr. Lang does not object to his conduct. Was it proper for LLP Fritz to take the loan?
A) No, because LLP Fritz used client funds for personal use.
B) No, because LLP Fritz could not reach Mr. Lang before taking the money.
C) Yes, because LLP Fritz was reasonably certain Mr. Lang would not object to the loan.
D) Yes, because upon disclosure, Mr. Lang did not object to LLP Fritz's conduct.