Conflicts
Husband and Wife wanted to hire Attorney A to prepare their wills. Before the representation was finalized, H spoke with A privately and disclosed that H was having an affair, and that Girlfriend might be pregnant. H forbids A to tell W. A realizes there could be potential conflicts of interest between H and W about the wills, distribution of assets, potential challenges to the will by offspring from outside the marriage, and potential claims for child support against H's estate.
Would it be proper for A to represent H & W in preparing their wills?
No, because A cannot violate the duty of confidentiality to H, which would be necessary to obtain informed consent from W.
Rule 1.7: Conflict of Interest
Attorney A represents Client C who was divorced several years ago in another state, and the divorce resulted in a court order for child support and spousal maintenance. C then moved to A’s state and started a new career in politics. She has kept her previous marriage & divorce a secret, except from her closest friend and A, because she is afraid it will affect her new career and public image. Recently, she hired A to handle various legal matters for her, which included issuing a press release about her withdrawal from a political campaign. When news media outlets posted online about C’s withdrawal from the race, A responded to some of the comments that readers posted, to clear up some misunderstandings. In one of the A’s responses, he mentioned C’s previous marriage & divorce.
Did A violate the duty of confidentiality?
Yes, because even disclosures of information contained in the public record must have client authorization.
Rule 1.6 - Confidentiality
Attorney A represents Client C in a family law matter. A hearing is set for Monday. On the Wednesday prior to the scheduled hearing, C calls A and advises that C no longer wants A to represent her; A’s representation is over as of the date and time of the call. C advises that she intends to retain another attorney prior to the hearing. After receiving the call from C, A schedules another matter for Monday, does not appear at the hearing, and does nothing further on the case.
Is A subject to discipline?
Yes, if representation has begun, the attorney must move to withdraw from the case and take reasonable steps to mitigate consequences to client if discharged by client.
Rule 1.16 - Declining or Terminating Representation
A very winsome, likable attorney was objectively incompetent in providing representation to his client, but he was lucky - the other side had a terrible case on the merits, and opposing counsel was unlikable and abrasive, so the attorney prevailed in his client's case. Could the attorney nevertheless be subject to discipline for lack of competence?
Yes, a lawyer shall provide competent representation to a client, regardless of the outcome.
Rule 1.1 - Competence
Attorney A practiced as in-house counsel within Conglomerate Corp. She learned of serious ethical misconduct there by a fellow employee who was also a licensed lawyer, but who was employed by Conglomerate in a nonlegal position as a technical writer. Conglomerate does not have any liability or legal responsibility for the employee’s misconduct, so A is not approaching it as a liability concern for her corporate client.
Would it be permissible for A to refrain from reporting the employee’s misconduct to the bar?
No, if a lawyer knows of professional misconduct of another licensed lawyer, even a non-practicing lawyer, must report it where it raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer.
Rule 8.3: Reporting Misconduct
Alpha Firm and Beta Firm represent the two parties in a high-stakes commercial transaction. An attorney at Alpha Firm is married to a lawyer at Beta firm, but the spouse at Beta Firm is not involved in the representation.
If a problem arose, would a tribunal that follows the ABA Model Rules impute the marriage-based conflict of interest of Alpha Firm’s attorney to all the other lawyers in the firm, if another lawyer at Alpha Firm handled the representation in this case?
No, because a conflict arising from a lawyer’s marriage to another lawyer at an opposing law firm does not necessarily impute to all other lawyers in the firm.
Rule 1.10 - Imputation of Conflicts
Attorney A had many years of experience in handling personal injury litigation, and in a certain case, A represented a plaintiff in litigation over injuries sustained in a car accident. In preparation for trial, A interviewed each of the eyewitnesses of the accident, and afterward wrote a memorandum summarizing what each witness said. The witnesses themselves agreed to swear and sign the statements, as if they were affidavits. The statements contained no mental impressions of A, only facts communicated by the witnesses. Opposing counsel eventually learned of these interviews and sought discovery of the witness statements that A had drafted. A objected that these documents were covered by the attorney work-product doctrine.
Should the court compel the production of the witness statements?
No, because the attorney prepared the witness statements on behalf of the plaintiff in anticipation of the litigation.
Rule 1.6 - Work Product Doctrine
Attorney A is passionate about helping the less fortunate. Every Saturday morning, he uses a small conference room at the local YMCA to assist pro se litigants in divorce and custody matters – A helps them complete their own court forms (court filings) for a nominal fee, gives some advice about their individual situation, and reviews forms they have completed before the individuals themselves file them. A is concerned about these pro se litigants misunderstanding his role and believing he is their lawyer, so A requires each one to sign a printed disclaimer declaring that no attorney-client relationship exists. It reads, in relevant part, “I understand that A has no legal or ethical obligation to provide legal representation to me in this matter.”
Given that the pro se litigant signed a form acknowledging that no legal representation will follow, is A correct in believing that no lawyer-client relationship exists in these circumstances?
No, the lawyer is reviewing court documents and providing legal advice about pending legal proceedings, which constitutes the practice of law by the lawyer, even if the representation has a limited scope.
Rule 1.2 - Scope of Representation & Allocation of Authority
An experienced litigation attorney represented Small Business as a client in a civil lawsuit. The trial resulted in an unfavorable verdict for the client, who then hoped to reverse the decision on appeal. Nevertheless, the attorney and the client had never agreed that the attorney would handle the appeal, so the attorney simply closed out his file for that client. The deadline for the client to appeal the verdict passed, and only afterward did the client discover that the attorney had not filed a timely appeal. Did the attorney fulfill his ethical duty of diligence to the client in this instance? Why?
No, an attorney must discuss the possibility of an appeal prior to relinquishing responsibility for a client’s case, unless there was a prior agreement about whether the lawyer would handle the appeal process.
Rule 1.3 - Diligence
Attorney A worked at Big Firm and was supervising Attorney B, a new associate there. During a negotiation for the sale of a company, B informed the buyer’s lawyers that certain assets of the company had no liens or other encumbrances on them, and that he had verified this herself. This was a misrepresentation – the properties had significant encumbrances, which the purchase price did not reflect. A was part of the conversation when B made the misrepresentation but did not correct him, because she did not want to humiliate him in front of the opposing party. Instead, A lectured B about the misrepresentation privately the next day and instructed B to watch for a good opportunity to bring up the mistake and clarify the matter for the buyer. B never did so.
Could A be subject to discipline for failing to correct the resulting misapprehension by the buyer?
Yes, the supervising attorney (A) had a duty to take affirmative steps to correct the misapprehension of the other party, sometime before the consummation of the purchase.
Rule 5.1 - Responsibilities of Partners & Supervisors
Attorney A worked at Big Firm, which a court disqualified from representing Client in a case because another Big Firm lawyer had an imputable conflict of interest. Big Firm was not timely in implementing screening measures and was disqualified. A was at Big Firm but was not involved in the matter and did not learn any confidential info about Client. Eventually, A left Big Firm and went to New Firm. Turns out, New Firm is representing Client (Client hired New Firm after Big Firm was disqualified. New Firm has no measures in place to screen A, though A is not participating in the representation.
Will New Firm be subject to disqualification because A joined the firm from another firm that was disqualified?
No, there is no doctrine of double imputation that would impute a purely imputed conflict from A onto the other lawyers in New Firm
Rule 1.9: Duties to Former Clients
The police arrested Professor Stevenson and would not permit him to communicate directly with his attorney. Professor Stevenson asked his longtime friend and confidant, Sisyphus, to convey to his attorney that the attorney should not permit the police to search Professor Stevenson’s home. Later, the prosecution calls the friend to testify about the contents of the message he related from Stevenson to his attorney. The attorney claims this information is privileged.
How should the court rule and why?
The contents of the message transmitted through the friend are privileged and therefore both undiscoverable and inadmissible at trial, because the friend was acting as an agent of the client.
Rule 1.6 – Attorney-Client Privilege
Attorney A represented Defendant D who was facing criminal charges for violating a newly enacted statute, which made certain activities that had previously been minor misdemeanors into felonies. The district attorney handling the case spoke to A, explaining that the D.A.’s office was seeking the maximum penalty. The state did, however, offer a reduced sentence if D would plead guilty, but this would still carry three years of jail time. Outraged, A shouted that this had always been a misdemeanor charge in the past, which carried no jail time at all, and ended the conversation abruptly. Without mentioning the conversation to D, A drafted and filed an impassioned motion to dismiss the charges. A had a reasonable belief that his motion could be successful. The judge granted the motion, dismissing all the charges against D.
Were A’s actions permissible under the Model Rules?
No, a defense lawyer who receives a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously told the lawyer to accept or to reject the offer.
Rule 1.4 - Communications
An attorney graduated from law school in the early 1970’s, and he spent his career in solo practice in a small rural town, mostly drafting wills and simple contracts for sale for farm machinery. He has a landline phone in his office and home, but has never had or needed a cell phone, does not use a computer, and has never used email or the Internet. The attorney has an extensive library of law books and treatises.
Could the attorney be subject to discipline for not keeping abreast of changes in technology that are relevant to the practice of law?
Yes, to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.
Rule 1.1 - Competence
An attorney represented a client in a divorce case and charged the client an hourly fee for the representation. The client won primary custody of the child from the marriage, and the ex-spouse would take the child during school vacations. A year after the case ended, the client wanted to reopen the case to seek additional child support, because in the intervening months, the child had developed a disability that imposed high medical care costs on the client, and the ex-spouse had won the Mega-Millions lottery, and was living a luxurious lifestyle.
Would it be permissible for the attorney to represent the client in this matter on a contingent fee basis, given that the divorce was already final?
No, the attorney may not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.
Rule 1.5 - Fees
Conglomerate Corp. owns more than half the stock of Giant Co. Conglomerate’s stock is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. Conglomerate has asked Attorney A to represent Giant in a deal where Giant would make a proposed transfer of certain real property to Conglomerate. The property has various characteristics that make the property value difficult to assess, making it difficult for anyone to determine the fairness of the transfer price in the proposed deal.
What must Attorney A obtain to properly facilitate this property transfer at the behest Conglomerate but representing Giant? And why?
Attorney A must obtain effective informed consent of both the management of Giant and Conglomerate
Why: because the ownership of Conglomerate and Giant is not identical, and their interests materially differ in the proposed transaction
Rule 1.7: Conflicts of Interest
Wealthy Client C invited his Attorney, A, to visit C’s lavish home to update C’s will and other estate planning instruments. They updated these documents every year. On this occasion, a few others were present during their conversation about C’s estate planning issues. Afterward, A wrote personal notes about the meeting, including who was present and what each person had said. A year later, the client died, and litigation ensued over the client’s estate. Which of the following would apply to the attorney’s notes and mental recollections about the conversation with the client and others that were present?
a. The attorney’s ethical duty of confidentiality to the client.
b. The attorney work product doctrine.
c. Attorney-client privilege.
d. A duty of loyalty to the others present
a. The attorney’s ethical duty of confidentiality to the client.
Rule 1.6 - Confidentiality
Attorney A tells Client C that certain features of the C’s business proposal would constitute money laundering under current federal statutes. A explains the statute in detail and why the course of action would meet the statutory definition of money laundering. In addition, A discusses the various monitoring and reporting mechanisms that federal enforcement agencies use, to convince C that he would not escape arrest and prosecution. C uses the information to structure a more elaborate money-laundering scheme. He exploits some ambiguity in the statute and the reporting requirements to make his enterprise much more difficult to detect, and this complicates enforcement and prosecution efforts against him. Overall, A’s advice turned out to be incredibly useful to C in avoiding detection and expanding his criminal enterprise.
Is A a party to C’s course of action?
No, because the fact that a client uses advice in a course of action that is criminal or fraudulent of itself does not make a lawyer a party to the course of action.
Rule 1.2 - Scope of Representation & Allocation of Authority
Attorney A undertook the representation of client C in C’s capacity as trustee of an express trust for the benefit of a beneficiary. C informed A that he wanted to invest trust funds in a way that would be unlawful, but it would not constitute a crime or fraud under applicable law. C did not use A’s services in finalizing the investment. At the same time, A said nothing to discourage C from making the unlawful (though not criminal) investment. The beneficiary sustained financial losses due to the bad investment by C, and eventually sued A for a breach of fiduciary duty.
A believes he should not be subject to liability to the beneficiary, whom he does not represent. Is A correct?
Yes, a lawyer owes a duty to the nonclient beneficiary to intervene only where the breach is a crime or fraud or the lawyer has assisted or is assisting the breach.
Rule 1.3 - Legal Malpractice
Attorney A agreed to write a recommendation letter for bar admission on behalf of Law Student B who had worked for him part-time throughout law school. B consistently complied with ethics rules during her employment. However, B once confided in A that she had faced academic discipline for plagiarism on a law school paper, and that she was ashamed about it and accepted a failing grade in the class. A didn’t mention this incident in his “character and fitness” recommendation to the bar, because it didn’t represent B’s normal behavior at work. He also assumed B would report it herself or that the bar would inquire about the grade. The bar admissions board eventually learned about it from the law school, which turned over B’s disciplinary records.
Could A be subject to discipline for failing to mention or address the incident?
Yes, because he did not disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter in connection with an admission to the state bar.
Rule 8.1 - Bar Admission & Disciplinary Matters
An attorney, a venture capitalist, and a land developer agreed to form a corporation to develop a new shopping mall. Their agreement allocates ownership shares based on the appraised value of the VC’s land, which he is contributing for this enterprise, the market value of the developer’s design and construction work, and the attorney’s regular fees for the hours contributed to the formation and ongoing representation as corporate counsel. The attorney was already representing both the VC and the developer as his clients in unrelated matters.
To properly enter this agreement, the following must occur: (1) the attorney ensures the transactions and terms are ______; (2) VC and Developer are advised in writing of ______ and given reasonable opportunity to _____; and VC and Developer give, in writing, _____.
fair and reasonable to the client and are fully disclosed in writing
the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction
informed consent to the essential terms of the transaction and the lawyer's role in the transaction
Rule 1.8: Conflicts - Specific Rules
Conglomerate Corp. had an accident occur at one of its chemical manufacturing facilities, which killed several workers and injured many others. At the behest of Conglomerate’s corporate managers, the general counsel obtained statements from employees and other witnesses about what happened, memorializing the statements in written form. Later, the family of an employee killed in the accident sued Conglomerate and demanded for the contents of the written statements. Must Conglomerate disclose the statements taken by its attorney after the accident? [pick the best answer]
a. Yes, because employee and witness statements are not privileged.
b. Yes, because the statements are relevant to material issues in the litigation.
c. No, because the statements are communications protected by the attorney-client privilege.
d. No, because the statements are protected work product.
c. No, because the statements are communications protected by the attorney-client privilege.
Rule 1.6 – Attorney-Client Privilege
An attorney undertook the representation of a client in a breach of contract claim and began working on the matter. A few weeks later, the opposing party in the litigation consulted with another lawyer in the attorney’s firm about the same matter, but during the consultation, disclosed no confidential information except the identity of the other party and the nature of the claim. The other lawyer did a routine conflict check, quickly discovered the conflict with this new potential client, and immediately declined to represent the party. The lawyer and the attorney already representing the first client discussed the situation.
Would it be proper for the attorney to disclose to his client that the opposing party had come in for a consultation with another lawyer in his firm?
No, the attorney may not disclose to the client that the opposing party consulted with another lawyer in the firm but may continue to represent the client if the attorney does not use any information gleaned from the other party’s consultation against the other party.
Rule 1.18 - Duties to Prospective Clients
A potential client called an attorney’s office and told the receptionist that he wanted to hire the attorney to represent him at his drivers-license revocation hearing, which was set for two weeks from that date. The attorney regularly represented clients at license revocation hearings and appeals. The receptionist instructed the potential client to send or drop off all the papers concerning the proceeding but did not tell the caller whether the attorney would take the case. The individual dropped off the papers the next day. The attorney did not communicate with the potential client until the day before the hearing, at which point the attorney declined to take the case.
When the individual subsequently sues the attorney for malpractice, could a court find that a client-lawyer relationship existed in this situation? Why?
Yes, the individual relied on the attorney by not seeking other counsel when that was still practicable, and this reliance was reasonable because the attorney practiced in this area, the receptionists solicited the individual’s papers needed for the proceeding, and the hearing was imminent.
Rule 1.3 - Legal Malpractice
Big Firm engages in aggressive affirmative action in its hiring. It runs ads soliciting applications from minorities and women, and even though they sometimes interview nonminority applicants, they have decided internally to hire only women and minorities for the next five years. Currently, anti-discrimination laws would not require such a practice. Has the firm violated the MRPC?
No, lawyers may implement initiatives aimed at recruiting, hiring, retaining, and advancing diverse employees without violating the Model Rules.
Rule 8.4 - Misconduct