Prof. Alm's Jeopardy Review

7.1

100

Lawyer Lincoln advertises his services in the local phone book, on the local access channel of the cable television company, and on the front of the local newspaper. His ad states “Formerly counsel for the law firm of Dewey and Howe, Lawyer Lincoln is a 1995 graduate of the Harvard Law School. Because of his extensive experience in workers’ compensation cases, he ALWAYS charges fees that are 25% lower than ALL other lawyers in Mecklenburg County. In representing injured workers, he has NEVER lost a workers’ compensation case. Call him today at 1-800 GET EVEN. You’ll be glad that you did." In fact Lincoln Lawyer has only had three cases go to trial. Is Lincoln’s ad proper?

Here, Lincoln’s advertisement is misleading when it states that he charges 25% less than all other lawyers in Mecklenburg County and that he has never lost a workers’ compensation case because these statements have a substantial likelihood of leading a reasonable person to formulate a specific conclusion for which there is no reasonable factual foundation.

200

The Estevez and Ringwald law firm uses the letterhead below for all firm correspondences. The logo used on the letterhead is of Estevez’ brother, Charlie, saying his famous catch phrase “DUH, WINNING!!!” Is this letterhead in violation of M.R.P.C. 7.1?

Here, Estevez and Ringwalk did violate M.R.P.C. 7.1 when it used Charlie saying his “DUH WINNING!!!” catch phrase as a logo for their letterhead because this logo is likely to lead a reasonable person to form unreasonable expectations. The famous catch phrase “DUH WINNING!!!” implies that Estevez and Ringwald can obtain a more favorable result than other firms. Since Charlie is well known for his legal problems, his use as the logo could create the unverifiable and unjustified expectation that Charlie has used Estevez and Ringwald to defend him and has obtained favorable results.

300

Attorney Mitch and Attorney Whitney share office space but do not share clients and are otherwise not affiliated with each other. Attorney Mitch had a death in the family yesterday and had to go home to New York to attend funeral services. Prior to his departure, he telephoned opposing counsel on several cases and informed them he would be out of town for several days. He told opposing counsel that if they needed to contact him they should contact his partner, Attorney Whitney. Is there anything wrong with this?

Here, Attorney Mitch's action were improper and violated 7.1 which mandates that attorneys shall not make false or misleading communications about their services because he and Whitney are not partners and the statement is false.

400

At a recent bar association cocktail party, Margarita Lewis was discussing her practice with Tom Collins, a very prominent businessman. Margarita has long dreamed of landing Tom as a client (even when she was in law school), as she greatly admires his entrepreneurial spirit and bank account. During the conversation, Margarita told Tom that she is a specialist in corporate law and has never lost a case. In fact, Margarita practices corporate law and has never lost a case. However, Margarita has only been practicing for two years and has only taken three cases to trial.

Here, Margarita's statement violates MRPC 7.1 when she states that she has never lost a case because although it is a truthful statement she omitted a necessary fact which will likely lead Tom to conclude that she has taken more than three cases to trial. Furthermore, Margarita's statement that she is a corporate law specialist may violate 7.1 because she has only practiced for two years and stating she is a specialist may lead Tom to believe that she has more experience in corporate law.

500

Steve Jones is a personal injury attorney who advertises in the local telephone book. Steve's ads contain the following statement, "Never lost a case." In fact, Steve has never actually taken a case to trial; he settles most of his cases, and those that he does not he refers to other counsel. Does his ad violate 7.1?

Here, Steve's ad violates MRPC 7.1 when he states that he has never lost a case because although a true statement the ad omits the fact that he has never taken a case to trial and therefore the statement is misleading.

7.2

100

The law firm of Samuel, Shelton & Williams has consulted several marketing strategists to increase the firm’s business. Some have suggested increased advertising; some have suggested putting the firms lawyers’ pictures on the cover of the local telephone book, and some have suggested that each lawyer’s image should be displayed on a prominent billboard that borders the interstate highways in the area. Finally, with less money than it thought was available for a marketing campaign, the law firm settled on a two-part plan for increasing the incentives for its staff and current clients to identify and refer new clients to the law firm. In the first plan, the law firm’s employees would receive a percentage of fees collected from the referred client or a progressively larger lump sum dollar amount for the referral. In the second plan, the firm’s current clients would receive a discount for referring other clients to the firm. Does either of the two plans for non-lawyer firm staff or current clients who refer clients violate the MRPC?

Here, both plans violate MRPC 7.2(c) when they attempt to use non-lawyer staff or current clients to refer new business to the attorneys at Samuel, Shelton & Williams because lawyers may not pay another for channeling professional work. It does not matter whether the reward is a percentage of fees collected or a flat amount.

200

Ruby Wednesday just opened her own practice and wants to place advertisements online and in the local telephone book. She is even considering a television ad. Ruby decides she is going to use a trade name for her practice and wants to use the name Ruby Law Firm, so she contacts the phone book publisher and inquires about the cost of her ad. She is astounded at how much per-word the cost will be, so she decides to cut down the proposed wording. In the end, she decides she will only include a telephone number with the wording "Ruby Law Firm, Personal Injury, Wills, Trusts, Family Law, Tax and Estate Planning." Is there anything wrong with her ad?

Here, Ruby's ad violates 7.2(c) because she fails to include the name of at least one lawyer or law firm responsible for the content, as well as the attorney or firm's business address.

300

Bob Filetti is a new admittee to the bar in North Carolina and wants to open his own practice. Bob knows his practice could use some referrals, so he signs up with Prepaid Legal Services of North Carolina for such referrals. Bob paid Prepaid Legal Services of North Carolina a hefty $5,000 for the privilege of receiving referrals. Prepaid Legal Services of North Carolina is approved by the appropriate NC regulatory authority and $5,000 is the customary fee. Is this permissible under the Model Rules?

Here, Bob's actions are proper under 7.2(b)(2) because a lawyer may pay the usual charges for a qualified lawyer referral service approved by an appropriate regulatory authority.

400

Luke and Owen are siblings who work at separate firms. They often refer cases to each other although they also refer cases to their friend Kate and the attorney up the block Wilson. Furthermore, they always inform clients of the existence and nature of the agreement (which is not an indefinite agreement). Is this type of arrangement acceptable under the Model Rules?

Here, Luke and Owen's arrangement does not violate MRPC 7.2(b)(4) because attorneys are allowed to refer cases to each other as long as the agreement is not exclusive and clients are informed of the existence and nature of the agreement.

500

An attorney received her law degree two years ago from a small local college of law and technical sciences. Last summer she attended a three-day trial practice seminar at the Harvard Law School. During her brief career, she has tried five cases - two jury trials and three bench trials. She won both of the jury trials and two of the three bench trials. The attorney places an ad under the subject heading "Trial Lawyers" in the classified pages of the local phone book. Her ad states in relevant part: Trial Attorney Harvard Trained Never Lost A Jury Trial Is the attorney subject to discipline?

Here, the attorney violated 7.1 when she stated that she is Harvard Trained because reasonable readers could interpret that to mean that she received her law degree from that school which is not true. Furthermore, the attorney violated 7.1 when she states she has never lost a jury trial because although literally true, the statement would be likely to create unjustified expectations and is therefore misleading.

7.3

100

Attorney Bert practices largely in the areas of tax, wills and estates, and trusts. Attorney Bert learned of a new Internal Revenue Service regulation that may affect some provisions in a will she prepared for former Client Ernie two years ago. Attorney Bert has not heard from former Client Ernie since she drew the will. Is Attorney Bert subject to discipline is she advises former Client Ernie of the new IRS ruling?

Here, Bert is not subject to discipline for solicitation when he reached out to his old client Bert to inform him of a new IRS regulation that may have an effect on some of the provisions of his will because attorneys are permitted to solicit former clients under MRPC 7.3.

200

Mary is an attorney with her own practice specializing in helping small businesses with their e-commerce concerns. Mary's practice is struggling lately. Mary's close friend Molly just opened a new children's clothing store and wants to set up a Web site, but she has many concerns about e-commerce. Mary decides she will stroll over to Molly's store and offer to assist Molly with her web site. Is this permissible?

Here, Mary is not violating MRPC 7.3 when she strolls over to Molly's store to help with her e-commerce site because Molly and Mary are close friends and under MRPC 7.3 an attorney may solicit close personal or professional associates, other attorneys, or family members.

300

Johnnie Johnson is seeking to attract new clients. He heard about water contamination caused by one of the power plants in the neighboring town and wants to represent the victims. Although he briefly considered representing the victims pro bono he decided that he would rather cash in on his neighbors misfortune. He worked with his brother Ed, a graphic designer, or create mailings to send to those harmed by the water conditions. The brochure lists J. Johnnie's services with some client references, and a nice big picture of J. Johnnie.The envelope includes his name and his law firm's address. Are these mailings made in accordance with the Model Rules?

Here, J. Johnnie's mailers violate MRPC 7.3 when the envelop and brochure fail to include the words "advertising material" because that language is required on all mail sent to potential clients known to need a legal service.

400

Attorney Gray ran into her former client Mack Steamy at a dinner party. Gray and Mack spoke at length about the various real estate deals that Attorney Gray had put together for Mack. Mack expressed his appreciation, and in passing, mentioned that he was about to open a new business in another state. Attorney Gray also has a license to practice in that state and offered to help Mack. Mack thanked Gray, but declined the offer. Attorney Gray persisted and suggested Mack think about it and offered to follow up in a couple of weeks. Mack again thanked Gray, but said that he was not interested because he had hired counsel in the other state to handle the matter. Attorney Gray then suggested she would call in a couple of weeks anyways so the two could arrange a golf outing. Mack told Gray he would prefer to contact Gray the following month about the golfing because his schedule was pretty full. If Gray does call in two weeks, will she be in violation of the Model Rules?

Here, Gray violated Model Rule 7.3 when she continued to solicit professional employment from Mack (her former client) because although an attorney may solicit a former client the attorney may not continue to solicit employment after the client has made it known to the lawyer that the solicitation is unwanted.

500

Attorney is a sole practitioner whose practice is largely in the areas of tax, wills, estates, and trusts. Attorney learned of a new Internal Revenue Service (IRS) regulation that probably affects the trust provisions in a will she prepared for Testatrix two years ago. Attorney has not represented Testatrix since she drew the will. Is attorney subject to discipline if she calls Testatrix and advises her of the new IRS ruling and the need to revise the will?

Here, attorney is not subject to discipline for violating 7.3 when she contacts her old client about a change in the IRS code because an attorney may solicit business from a prior professional colleague.

7.4 or 7.5

100

For the past fifteen years, Lawyer Kramer has had a general practice along with two other lawyers with whom she shares office space. Because her law practice has evolved toward a fairly narrow specialization in family adoption law, she thinks that she would like to begin advertising that practice specialty. She takes out an ad in the local newspaper and says that she is a specialist in family law and a certified litigation expert. The ad does not state who certified her as a litigation expert. Is she subject to discipline?

Here, Kramer’s advertisement violates MRPC 7.1 and 7.4 when she says that she is a certified litigation expert because nothing in the fact pattern indicates that she is certified by an organization recognized by the ABA or her state bar association as a litigation expert.

200

The law firm of Able Baker and Cohen has over 300 lawyers practicing law at its six offices throughout the eastern United States. All of the firms’ lawyers do not practice in each of the six states where the law firm has offices. Baker is a United States Senator and he intends to return to practice law after he serves his term; in addition, there are no other lawyers with that name in the firm. Able is deceased and there are no other lawyers with his name in the firm. Is the firm name proper?

Here, the law firm name is false and misleading when it uses Baker’s name in the firm name because Baker holds a public office and is not actively and regularly practicing with the firm as rule 7.5(c) requires. However, leaving Able's name in the firm name is proper because deceased partners may be included in the firm name.

300

Ahmed MacGregor practices intellectual property law and his online biography on his firm's website lists the designation "Certified Patent Attorney." The website also states that he has been certified by the USPTO. Ahmed's practice primarily consists of intellectual property licensing, and copyright and trademark matters. Furthermore, Ahmed is admitted to practice before the United States Patent and Trademark Office as a patent attorney. Should his biography be revised?

Here, Ahmed's biography does not violate MRPC 7.4 when he includes that he is a certified patent attorney because he is actually certified in patent law and he includes the name of the certifying organization on his firm's website biography.

400

BenJarvus, Green & Ellis, Ltd. is a law firm practicing estate planning. Three weeks ago, BenJarvus left the firm. The firm continues to use BenJarvus, Green & Ellis, Ltd. on its letterhead. Is there anything wrong with the use of the firm name?

Here, the firm is violating 7.1 when they leave the name of BenJarvus on their letter head because although 7.5 allows for the use of trade names comment 1 to 7.5 indicates that it is misleading to use the name of a lawyer not associated with the firm.

500

Giacomo, Feena, & Hay, LLP is a firm that has been in continuous existence in New Orleans since 1931. All three of the named partners are deceased, yet the firm continues to use their names. Is this a violation of the Model Rules?

Here, the firm is not violating MRPC 7.5 when all the named partners are dead because there has been a continuous succession in the firm's identity. Nothing in the facts indicates that any of the named partners ever became dissociated from the firm. Additionally, comment 1 recognizes that the use of a deceased partner's name makes the firm name a trade name.

Grab Bag

100

Vincent Gambini is representing Daniel LaRusso in a matter where LaRusso has been charged with murder. A witness claims that she saw a metallic mint green vehicle driving away from the scene of the crime. LaRusso told Gambini that he drives a metallic mint green Buick Skylark. Gambini wants to share this information with his automotive expert, Mona Lisa Vito. Is Gambini permitted to make this disclosure under M.R.P.C. 1.6?

Here Gambini is permitted to disclose information to Mona Lisa Vito when LaRusso told Gambini about the type of car he drives because Ms. Vito is the automotive expert in this matter and Gambini is impliedly authorized to share information with professionals and experts assisting with the case.

200

Client Don retains Attorney Jack to help set up a trust account for his child Sue. After working on the trust account for six months Attorney Jack realizes that the account is not a trust account for Sue but rather a front for a major Ponzi scheme. Is Attorney Jack required to disclose the information to the District Attorney?

Here, Attorney Jack is not required to disclose when he learns about the Ponzi scheme because disclosure is never mandatory although he may disclose under MRPC 1.6(b)(3) to mitigate financial harm because his services were used in furtherance of the harm.

300

Through the course of representing his client in an assault case, attorney Bell discovers evidence that ties the client to a murder that sent another client of his to prison. Bell recognizes that this places him in an awkward position and without disclosing enough to reveal his client's identity, talks to two seasoned partners in the law firm down the street, Mr. Biv, and Mr. Devoe, about what, if anything, he should do. Is Bell allowed to make this disclosure to Mr. Biv and Mr. Devoe?

Here, Bell is allowed to make the disclosure to Mr. Biv and Mr. Devoe when he is seeking legal advice about his compliance with the Model Rules of Professional Conduct because this comports with the discretionary exception outlined in MPRC 1.6(b)(4). Remember he must limit the disclosure to the extent necessary.

400

I am an attorney who has been helping a client start up his own business. My client is the sole business owner, but because he has so little business experience, is running his business under the direction of his Mentor until he gets the hang of things. I thought the business was legitimate until one day client asked me to draft a standard investment agreement that he said his mentor helped him come up with. I was a little suspicious so I started asking some questions. Through my research I received information confirming that my client’s mentor was in fact a big scam artist and it looked like he was using my client to defraud a long list of investors. I explained all of this to my client and further explained that drafting that agreement would be fraud. What circumstances must be present for me to disclose this information.

Here, in order for me to disclose the information I would have to seek my client's informed consent because I am not impliedly authorized to make the disclosure and none of the discretionary exceptions under 1.6(b) apply.

500

Larry and Lisa are attorneys working in the same firm. One day, Larry came into Lisa’s office and closed the door to tell her that Perry the Partner was extremely angry because somebody had dented Perry’s car in the parking lot. Larry told Lisa that it was him. It was an accident, and he didn’t know what to do. “Don’t tell anybody I told you,” Larry said as they ended the conversation. Larry opened the door to leave and was surprised to find Perry the Partner standing right outside the door. After Larry left, Perry walked into Lisa’s office and demanded to know what she and Larry were talking about. What can Lisa say to Perry?

Here, Lisa can disclose the information to Perry when Larry confesses to Lisa but does not seek legal representation because there is no attorney client relationship between Larry and Lisa (he is not even a prospective client) so the Duty of Confidentiality does not apply.