Ethics Potpourri
An attorney represented the plaintiff in an automobile accident case. Two weeks before the date set for trial, the attorney discovered that there was an eyewitness to the accident. The attorney interviewed the witness. Her version of the accident was contrary to that of the plaintiff and, if believed by the trier of fact, would establish that the plaintiff was at fault. The witness told the attorney that she had not been interviewed by defense counsel. The witness also told the attorney that she was uncomfortable with testifying and that she had been thinking about taking a vacation to Europe the following week. The attorney told the witness that, since no one had subpoenaed her yet, she had no obligation to appear. He told her that trials were very difficult for witnesses and suggested that she take the vacation so that she would be unavailable to testify. Is the attorney subject to discipline?
A) Yes, because the attorney asked the witness to leave the jurisdiction.
B) Yes, because the attorney did not subpoena the witness knowing she was an eyewitness.
C) No, because the witness had not been subpoenaed by the defense.
D) No, because the attorney did not offer the witness any inducement not to appear at the trial.
An LLP and client enter into an agreement as follows:
The LLP deposits the retainer into a trust account. The LLP sends monthly statements to the client, outlining her total fees of $2,000. Unfortunately, the case is delayed six months because of the opposing party's unexpected medical emergency. When the case is finally resolved, the LLP writes two checks on the trust account: one to herself for $2,000 and one to the client for $500. Was the LLP's conduct proper?
A) Yes, because the LLP deposited the retainer fee in her client trust account.
B) Yes, because the LLP provided the client with accurate monthly billing statements.
C) No, because the LLP failed to withdraw her fees as they were billed, which resulted in commingling of her funds with the client's funds.
D) No, because the LLP requested an advanced payment of her fees.
LLP Locke has been retained by Mr. Key to represent him in a heavily contested divorce proceeding. Mr. Key's wife is likely to receive a significant amount of marital assets and he is irate about that possible outcome. Early on, he asks Locke a lot of quest1ions about the attorney-client privilege. As the case proceeds, Mr. Key reveals may details about the couple's contentious and violent relationship. Just before trial, Mr. Key threatens Locke that he had better limit his wife's recovery because otherwise he "has a gun and will be forced to take care of her" to keep her from receiving the assets. Knowing Mr. Key's history, Locke considers this a reasonable threat to the well-being of Mr. Key's wife. Is it appropriate for LLP Locke to disclose Mr. Key's comments to law enforcement?
A) No, because the disclosure would be prejudicial to Mr. Key in his divorce proceedings.
B) No, because Mr. Key has never attempted to kill his wife in spite of their contentious history.
C) Yes, because the information concerns a future crime and is not protected by attorney-client privilege.
D) Yes, because the information is necessary to prevent an action reasonably certain to result in death or bodily harm.
LLP Ferrari is a sole practitioner. Ferrari has several billboards throughout town advertising her practice as "specializing in family law, including divorce and separations." Ms. Fiat schedules a consultation with Ferrari to discuss responding to the divorce petition that her husband filed the day before. At the end of the meeting, Ferrari advises Fiat that her current workload willl not allow her to take on a case as complex as hers. Ferrari offers to provide Fiat with the names of several other LLPs and recommends that she meets with one of them immediately to meet the deadline to respond to the petition. Fiat declines the referrals and leaves Ferrari's office. Fiat does not retain counsel and does not respond to the petition before the deadline. Is LLP Ferrari subject to discipline?
A) Yes, because LLP Ferrari failed to advise Ms. Fiat of the response deadline.
B) Yes, because LLP Ferrari's billboard advertising was false and misleading.
C) No, because LLP Ferrari had the right to decline representation if she could not competently represent the client's interests due to workload, regardless of advertising that she specializes in family law.
D) No, because LLP Ferrari complied with the rules of professional conduct and acted reasonably in declining the representation.
LLP Waugh represents Husband in a dissolution proceeding. Waugh knows that opposing counsel has a reputation for refusing to settle cases and to seek sanctions whenever possible to drive up costs for other parties. Cultivating this reputation serves as leverage for settlement in favor of opposing counsel's clients. To avoid a rebuff by opposing counsel, Waugh finds a close friend of Wife and he asks her to communicate an informal settlement offer to Wife. Wife is delighted to hear the offer and readily agrees to settle the case. Opposing counsel is furious and reports Waugh for misconduct. Waugh claims that he did not communicate directly with Wife, and that prohibitions on contact with opposing parties who are represented do not apply. Is LLP Waugh correct?
A) Yes, because the friend's willingness to be an informal intermediary serves as an independent intervening actor that breaks the line of causation to LLP Waugh.
b) Yes, because Wife's eagerness to settle the case shows that LLP Waugh did what both parties wanted in the case.
C) No, because LLP Waugh cannot use the Wife's friend to make a prohibited communication to Wife.
D) No, because LLP Waugh cannot speak directly to Wife under any circumstances, even if she consents.
An attorney represented a man in a case set for a jury trial. After the list of potential jurors was made available, the attorney hired a private investigator to interview the potential jurors and their family members concerning their relevant past experiences related to the subject matter of the action. The investigator did not inform the jurors or their family members that he was working on behalf of the attorney. The interviews were entirely voluntary and were not harassing. The attorney did not provide the report of the interviews to opposing counsel. He used the report to make decisions regarding jury selection. Is the attorney subject to discipline?
A) Yes, because the attorney did not provide the report of the interviews to opposing counsel.
B) Yes, because the investigator, at the attorney’s direction, communicated with potential jurors prior to trial.
C) Yes, because the investigator did not inform the jurors or their family members that he was working on behalf of the attorney.
D) No, because the interviews were entirely voluntary and not harassing.
A client telephoned an attorney who had previously represented him. The client described a problem on which he needed advice and made an appointment for the following week to discuss the matter with the attorney. Prior to the appointment, the attorney performed five hours of preliminary research on the client’s problem. At the end of the appointment the client agreed that the attorney should pursue the matter and agreed to a fee of $100 per hour. The client then gave the attorney a check for $5,000 to cover the five hours already worked and as an advance on additional fees and expenses. The attorney gave the check to the office bookkeeper with directions to deposit the check into the client trust account and immediately transfer $3,000 to the general office account to cover the five hours of research already conducted plus the 25 additional hours she would spend on the matter the following week. At that time, the attorney reasonably believed that she would spend 25 additional hours on the case. The bookkeeper followed these directions. The next week, the attorney worked diligently on the matter for 23 hours. Reasonably believing that no significant work remained to be done on the matter, the attorney directed the bookkeeper to transfer $200 from the general office account to the client trust account. The attorney then called the client and made an appointment to discuss the status of the matter. Is the attorney subject to discipline?
A) Yes, because the attorney accepted legal fees in advance of performing the work.
B) Yes, because the attorney transferred funds for unearned fees to the general office account.
C) No, because the attorney transferred the $200 owed to the client from the general office account to the client trust account.
D) No, because the attorney reasonably believed that she would spend 25 additional hours on the case.
Attorney Wade is retained by Mr. Wilson to represent him in a petition filed by his former wife for a modification of child support. Mr. Wilson tells Wade that he has been promoted at work but the effective date isn't until the new year. Mr. Wilson asks Wade not to reveal the promotion because he does not want it to negatively impact him when calculating child support. Wade submits Mr. Wilson's most current paystub in support of his sworn financial statement, and says nothing about the promotion to the court. Is Wade subject to discipline?
A) Yes, because Wade owes a duty of candor to the court.
B) Yes, because Wade must inform opposing parties of information helpful to their case.
C) No, because silence cannot be construed as a misrepresentation.
D) No, because the promotion is not effective yet and is speculative.
LLP King is a registered nurse and LLP. She is licensed to practice as a nurse in Wyoming, but lives in Ft. Collins where she has a family law practice. The application for her nursing license renewal in Wyoming asks if there are any pending criminal charges against her. King answers "no," which is a false statement because she was recently charged with a DUI in Ft. Collins. Will LLP King be subject to discipline regarding her LLP license in Colorado?
A) No, because the DUI occurred in Colorado, and her nursing license is in Wyoming.
B) No, because the misrepresentation was made on her Wyoming nursing license renewal, and her LLP license is in Colorado.
C) Yes, because the misrepresentation on her nursing license renewal constituted dishonest conduct.
D) Yes, only if she is convicted of the DUI charges.
Attorney Abbas, who practices in a small firm, receives a job offer from a large firm with a larger compensation package. To check for conflicts of interest, Abbas is asked to provide a list of names of his own clients with a description of the matters handled, as well as the same information for clients represented by other attorneys in his firm for which Abbas performed work. Abbas did not ask any of the clients for authorization to disclose the representation or issues involved. Was it proper for Abbas to disclose this confidential information to his new firm?
A) No, because he did not obtain consent or authorization from the clients before disclosing the information.
B) No, because he disclosed not only the names of clients he represented, but also the names of clients represented by other attorneys at his former firm.
C) Yes, because he disclosed the information solely to detect and resolve conflicts of interest arising from his transition between firms.
D) Yes, if he discloses to the attorneys at his former firm that he provided this information.
An attorney is employed by a client who is a fugitive from justice under indictment for armed robbery. The attorney, after thorough legal research and investigation of the facts furnished by the client, reasonably believes the indictment is fatally defective and should be dismissed as a matter of law. The attorney advised the client of his opinion and urged the client to surrender. The client told the attorney that she would not surrender. The attorney informed the district attorney that he represented the client and that he had counseled her to surrender but that she refused to follow his advice. The attorney has not advised his client on how to avoid arrest and prosecution and does not know where she is hiding. Is the attorney subject to discipline if he continues to represent the client?
A) Yes, because the client is engaging in continuing illegal conduct.
B) Yes, because the client refused to accept the attorney’s advice and surrender.
C) No, because the attorney is not counseling the client to avoid arrest and prosecution.
D) No, because the attorney reasonably believes the indictment is defective.
LLP Salvador represents Husband in a divorce proceeding. The division of marital property is settled at mediation. Just before close of business on a Friday afternoon, the court approves the mediated settlement and enters it as a court order. Wife's counsel immediately transfers the required money to LLP Salvador's trust account, which becomes available for withdrawal on Monday morning. Salvador, who is about to leave on vacation, reads the email from opposing counsel and confirms the money is available in the trust account. When Salvador returns from vacation a week later, he contacts Husband and lets him know that he can come pick up the settlement money. Husband picks up the check the following day. Was LLP Salvador's conduct proper?
A) Yes, because Husband did not object to the delayed delivery.
B) Yes, because LLP Salvador promptly distributed the money when he was back from vacation.
C) No, because the funds should have been kept separate from the trust account.
D) No, because LLP Salvador should have notified Husband when he received the settlement transfer.
Ms. Zloy hires LLP Littler to bring a petition to modify child support. Ms. Zloy and her former husband have a long-standing feud over various issues and Ms. Zloy's sole intent in bringing the petition is to get back at her husband. Ms. Zloy misrepresents several facts upon which Littler bases the petition. Littler is unaware of her client's misrepresentations, many of which were included in sworn statements to the court. The court enters an order modifying child support in Ms. Zloy's favor. A few months later, Ms. Zloy sends an email to Littler in which she admits that she made false statements and seeks legal advice about what to do based on the true circumstances. Husband files a complaint with the Office of Attorney Regulation Counsel (OARC) against Littler, claiming she filed a frivolous action based on facts she knew or should have known were false. Is it proper for LLP Littler to produce Ms. Zloy's email to OARC in the disciplinary matter?
A) Yes, because the email was received after the court ruled on the petition and not during LLP Littler's representation of Ms. Zloy.
B) Yes, because disclosure of the email is necessary for her defense in the disciplinary proceeding.
C) No, because the email was confidential.
D) No, because Ms. Zloy could be prosecuted for perjury if the email is disclosed.
Mr. Patel hires Attorney Khan to represent him in filing a petition to modify parenting time. After filing the petition and before the court hearing, the Colorado Supreme Court issues an opinion rejecting the type of arguments Khan raised in the petition as unconstitutional. Khan promptly files a motion to amend the petition. The court grants the motion and Khan amends the petition, making other legal arguments in support of Mr. Patel's claims. Is Khan subject to discipline?
A) Yes, because Khan filed the petition based on unconstitutional arguments.
B) Yes, because Khan should have based the petition on other valid arguments.
C) No, because Khan did not know or have reason to know that the Colorado Supreme Court would issue an adverse ruling.
D) No, because Khan appropriately amended the petition promptly after the Colorado Supreme Court ruling.
DAILY DOUBLE!
A corporation has applied to a bank for a $900,000 loan to be secured by a lien on the corporation’s inventory. The inventory, consisting of small items, constantly turns over. The security documents are complex and if improperly drawn they could result in an invalid lien. The bank has approved the loan on the condition that the corporation and the bank jointly retain an attorney to prepare the necessary security instruments and that the corporation pay the attorney’s fees. Both the corporation and the bank gave informed consent in writing to the attorney’s representation of both parties. This arrangement is customary in the city in which the attorney’s law office and the bank are located. It is obvious to the attorney that he can adequately represent the interests of both the corporation and the bank. Is it proper for the attorney to prepare the security documents under these circumstances?
A) Yes, because both the bank and the corporation have given their informed consent to the arrangement.
B) Yes, because the arrangement is customary in the community.
C) No, because the attorney’s fees are being paid by the corporation, not the bank.
D) No, because the corporation and the bank have differing interests.
Sam is an attorney who, in his personal life, makes monthly payments pursuant to a child support order entered 10 years ago. Recently Sam has incurred a lot of medical debt and has started paying only half his child support while he tries to pay off some of his medical debt. Sam plans to file a motion to modify his child support obligation if he cannot get the medical debt paid off in the next 12 months. Which is correct about Sam’s failure to pay his full court-ordered child support?
A) Sam is in ethical violation because he is knowingly not complying with a court order.
B) During the time Sam is not paying his full court-ordered child support, he cannot represent clients who also are not current with their child support obligations.
C) Sam’s failure to pay the full amount of child support does not violate any Rules of Professional Conduct because the medical debt is not his fault and he intends to come into compliance in the future.
D) Sam’s failure to pay the full amount of child support does not violate any Rules of Professional Conduct because the non-compliance is occurring in his personal life.
Attorney Jane represents several clients in civil litigation matters. She maintains a trust account for holding client funds. One day, she receives a $10,000 settlement check for her client, Mr. Lopez. Jane promptly deposits the check into her trust account. However, she realizes her office rent is overdue and she is short on cash in her operating account. She decides to "borrow" $2,000 from the trust account to cover the rent, intending to repay it within the week when another client pays an outstanding bill. Was Jane's conduct proper?
A) Yes, because Jane intends to repay the trust account within the week.
B) Yes, because Jane received $10,000 and the $2,000 she needs to borrow is well below the amount received.
c) No, because Jane has not earned $2,000 for work on Ms. Lopez's case.
D) No, because Jane has comingled unearned fees with her operating account.
Attorney Patrick is retained by Mr. Starfish in a real estate matter. While reviewing the documents that Mr. Starfish provided him, Patrick discovers correspondence between Mr. Starfish and another attorney. Patrick questions Mr. Starfish to ensure that the attorney-client relationship has ended. Mr. Starfish confirms, explaining that he paid the other attorney $1,000 as a retainer, but despite frequent inquiries, the other attorney did no work on the case for three months. The week prior, Mr. Starfish called the other attorney and advised him that he was looking for new counsel. The other attorney reluctantly returned Mr. Starfish's retainer. Mr. Starfish tells Patrick that he "just wants to forget it," explaining that the other attorney is a family friend. Patrick believes the other attorney was negligent in failing to work on Mr. Starfish's case for three months. Is Attorney Patrick subject to discipline if he does not report the other attorney's conduct?
A) Yes, because Patrick has knowledge that the other attorney is guilty of professional misconduct.
B) Yes, because Mr. Starfish received no legal services from his retainer fee.
C) No, because Mr. Starfish was satisfied with the return of his retainer fee.
D) No, because Mr. Starfish did not consent to Attorney Patrick reporting the information.
An attorney represents a client in a civil matter. A hearing is set for a Monday. On the Wednesday prior to the scheduled hearing, the client calls the attorney and says she no longer wants the attorney to represent her. The client also says that the attorney's representation is over as of the date and time of the call. The client advises that she intends to retain another attorney before the hearing. After receiving the call from the client, the attorney schedules another matter for Monday, does not appear at the hearing, and does nothing further on the case. Is the attorney subject to discipline?
A) Yes, if representation has begun, the attorney must withdraw from the case and take reasonable steps to mitigate consequences to the client if discharged.
B) Yes, the attorney must continue representation of the client until the attorney receives notice of discharge in writing signed by the client.
C) No, if the attorney receives notice of discharge directly from the client, whether oral or in writing, the attorney can cease work entirely on the case if the client is aware of all hearings or other important deadlines.
D) No, if the attorney has a reasonable belief that the client will have representation by other counsel soon, and the client will not have any consequences as a result of the immediate discharge, then the attorney may discontinue all work on the case.
Attorney Jim is approached by a new client, Linda, who is seeking representation in a divorce case. During the initial consultation, Linda mentions that her spouse, Mark, is being represented by a different attorney at the same firm where Jim works. Jim has never personally represented Mark and has no access to his file, but Mark’s attorney is a partner at the firm. Linda is eager to retain Jim and says she doesn’t mind that the firm also represents her husband. Is Jim subject to discipline if he represents Linda?
A) Yes, because Mark is represented by Jim's firm.
B) Yes, because the firm will need to withdraw from representation of Mark if Jim represents Linda.
C) No, because Jim has never represented Mark.
D) No, as long as both Linda and Mark give informed, written consent after full disclosure of the representation.
An attorney represented a client who had an explosive temper. The judge in the case issued a preliminary ruling that the attorney knew would upset his client. Faced with the daunting prospect of delivering this unwelcome news to his client, the attorney sent an email to the client using highly technical terms and archaic legal jargon. Someone without legal training would be unlikely to understand the conclusion of the email, namely, the judge's ruling was unfavorable to the client and he should consider settling the case. Which of the following statements is true about this situation?
A) It was proper for the attorney to email the client because it impacted the client's legal interests and the content of the email was truthful.
B) The attorney has an ethical duty to spare his client's feelings and, therefore, acted properly.
C) The attorney did not have a duty to inform his client about the preliminary ruling.
D) The attorney violated his ethical duty to his client by providing purely technical legal advice that would be unhelpful to someone without legal training.
A client retained an attorney to recover for a personal injury. In the retainer agreement signed by the client and the attorney, the client agreed to cooperate fully and pay the attorney a contingent fee computed as a percentage of the amount of recovery after expenses: 25 percent if settled before trial, 30 percent if settled before verdict, 35 percent after verdict, and 40 percent after appeal. The attorney’s representation of the client in the matter extended over a three-year period during which the attorney advanced a large amount for litigation expenses. After trial, the client obtained a jury verdict for an amount larger than either the attorney or the client had anticipated. However, the defendant filed an appeal based on questions of evidence and the measure of damages. Meanwhile, the defendant made an offer of settlement for approximately the amount the attorney had originally projected as reasonable to expect. The client, who was hard pressed financially, directed the attorney to accept the offer and settle. The attorney refused, because she was confident that there was no reversible error in the trial and that the appeal was without merit. The attorney reasonably believed that the appeal was filed solely to gain negotiating advantage in settlement negotiations. Is the attorney subject to discipline?
A) Yes, because the attorney’s percentage under the fee contract increased after appeal.
B) Yes, because the client directed the attorney to accept the settlement offer.
C) No, because the decision whether to settle or defend an appeal is a tactical matter for the attorney to determine.
D) No, because evaluation of the merits of an appeal requires the exercise of independent professional judgment.
A) Yes, because the information was disclosed in a prior legal proceeding.
B) Yes, because Ouray is revealing the information to defend himself against a civil claim.
C) No, because no criminal charges have been brought against Ouray.
D) No, because communications during settlement negotiations are confidential.
Attorney Kora represents Mr. Moon in a divorce proceeding. Mr. Moon's wife is also represented by counsel. While the case is pending, Kora runs into Ms. Moon at a holiday party. Ms. Moon inquires how Kora is doing, and the two of them discuss their individual holiday travel plans. Was Attorney Kora's conduct appropriate?
A) Yes, because Ms. Moon approached Attorney Kora.
B) Yes, because Ms. Moon and Attorney Kora discussed holiday plans.
C) No, because any discussion between Attorney Kora and Ms. Moon has an appearance of impropriety.
D) No, because Ms. Moon is represented by counsel.
An LLP works at a firm, which the court disqualified from representing a client because of a conflict of interest with a former client that was imputed to the entire firm. The firm failed to engage in timely screening measures. The LLP was not involved in the case and did not learn any confidential information about the client. Eventually, the LLP left the firm to work at a different firm. The new firm represented the client. The new firm also did not engage in conflict screening but the LLP did not participate in the client's case. Will the new firm be subject to disqualification now that the LLP joined their firm?
A) No, assuming the LLP receive no part of the fees from the representation.
B) No, because the imputed conflict does not attach to the new firm.
C) Yes, because the "taint" from the first firm is imputed to the second firm as there were no screening procedures in place.
D) Yes, unless the opposing party gives informed consent in writing.