Conflicts 2
Concurrent Client Conflicts
Question 1
Spencer, a businessman, calls Kai, an attorney. He says he is looking for a lawyer so that he can sue his former business partner, Max, with whom he has had a falling out. He asserts that he has proof that Max was stealing money from his company and covering it up by keeping two sets of books. Spencer says he has photos of several pages from both sets of books, which he obtained by sneaking into Max’s house, where he found the books in the study and photographed them with his cell phone. Kai makes an appointment to meet with Spencer the following week to discuss possible representation.
The day after the phone call, Max calls Kai to ask for representation because he thinks Spencer is going to sue him. Max offers Kai a generous flat fee for the work. Kai would like to represent Max.
May Kai represent Max without Spencer’s consent?
No, because an attorney may not accept representation of a person where the attorney’s representation has first been requested by a potential adversary of that person.
No, because Spencer has given Kai information that could be used adversely to Spencer if Kai represents Max.
Yes, because there is no conflict of interest, since Kai has not yet agreed to represent Spencer.
Yes, because Spencer’s actions were not lawful.
Question 2
Attorney Charlie works at a law firm of 30 lawyers in a large city. He represents his friend Suma in a wrongful discharge suit against her former employer, an architecture firm. Suma and her husband, Todd, are in the process of divorcing. Suma has retained a family lawyer associated with another firm to represent her in the divorce case. Charlie just learned that one of his law partners, Angus, is representing Todd in the divorce. Charlie and Angus agreed not to communicate with one another about either of the matters. They did not speak to Suma and Todd about the conflict. May Charlie continue to represent Suma in her civil suit against her former employer?
Yes, because Charlie and Angus agreed not to communicate with one another about either of the matters.
Yes, because the conflict involves only Charlie’s personal interests and does not present a significant risk of materially limiting Angus’s representation of Todd.
No, because the firm did not obtain both clients’ informed consent, confirmed in writing.
No, because law firms are not permitted to sue current clients.
Question 3
Attorney Pavel is a criminal defense lawyer representing Denny, who is charged with larceny. Denny, a pro bono client, is alleged to have stolen a piece of jewelry from a jewelry box during a house party. In an unrelated matter, Pavel is defending Betty, for a fee, against a criminal charge of arson. Both cases are assigned to be heard by a single judge. During Denny’s trial, the prosecutor calls Betty to the stand. She testifies that she was at the party in question and saw Denny go in and out of the room where the alleged theft occurred. She further testifies that she never went into that room. Earlier, Denny had told Pavel that he saw Betty go into the room, and he suggested that she may be the thief. Pavel intends to cross-examine Betty on this point. Is there a conflict of interest?
Yes, because Denny’s interests are directly adverse to Betty’s.
Yes, because Betty is a paying client.
No, because the representation does not involve the assertion of a claim by Denny against Betty or vice-versa.
No, because Pavel’s cross-examination of Betty is impliedly authorized to carry out the representation.
Question 4
Attorney Roger is a solo practitioner in a small town. There are only about 70 lawyers in the town, and of those, only 20 (including Roger) handle divorce cases. One day, Roger does an intake interview with Leon, who is seeking a divorce. Leon reveals to Roger that he had several affairs during his marriage and that his wife, Reva, does not know about them. At the end of the interview, Roger tells Leon that he will let Leon know within a week whether he can accept his case.
The next day, Leon calls Roger to say that he has decided to retain another lawyer. A week later, Reva comes to Roger’s office seeking representation in the divorce. Recognizing her name, and before she says anything else, he asks her if Leon is her spouse. She confirms that he is. Roger immediately tells Reva that he may not be able to represent her. Before he can finish his sentence, Reva interrupts, “Is this because he came to see you already? I have already been told by five different lawyers that they cannot represent me because of a conflict of interest! I think Leon is just trying to prevent me from hiring a lawyer in this town.” A few days later, Roger is able to confirm that over the course of three days, Leon did a one-hour intake interview with every divorce lawyer in town.
May Roger represent Reva in the divorce?
Yes, because Leon is only a prospective client; therefore Roger owes no duty to him.
Yes, because Leon met with every divorce lawyer in town.
No, because Roger received information from Leon that could be used against Leon.
No, unless he gets Leon’s informed consent, confirmed in writing.
Question 5
Attorney Meghan represents Walter, a used-car salesman who has been criminally charged with driving while intoxicated. Before Walter’s trial, a friend of Meghan’s, Laurel, asks Meghan to represent her in her breach of contract suit against Walter and his company. If Meghan were to sue Walter on behalf of Laurel, another lawyer would defend Walter in that matter. Meghan has formed a close bond with Walter as a result of her work on his criminal case, and she reasonably believes that she could not represent Laurel very vigorously, because of her friendship with Walter. She explains her concern to Laurel, and Laurel states that she understands the risks and agrees to the representation anyway. She confirms her understanding in writing. Walter also gives informed consent in writing. May Meghan represent Laurel?
Yes, because the representation is not prohibited by law.
Yes, because Walter’s case is criminal and Laurel’s case is civil.
No, because the representation would involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation.
No, because Meghan does not reasonably believe that she can competently and diligently represent Walter and Laurel, even though both clients gave informed consent, confirmed in writing.
Question 6
The state in which Stella practices recently enacted an animal cruelty law. Stella represents Chix, Inc., a poultry company, in a suit brought by a local animal rights group. The suit alleges that the poultry company has violated the new state law by failing to provide adequate ventilation in the chicken coops. The suit seeks punitive damages. Stella files a motion to strike the punitive damages request, urging that the new law does not allow recovery of punitive damages.
In an unrelated matter, Stella represents a group of students at a small Christian college, seeking to recover punitive damages against the school for allowing dissection of live animals in their school’s biology classes in violation of the statute. When Stella agreed to represent the students, she explained to them that she was arguing against the availability of punitive damages in the Chix case. Stella is representing the students pro bono, so even if punitive damages were granted, she would not receive a portion of the award as a legal fee.
Which of the following factors is least relevant to determining the risk that Stella’s actions on behalf of one client would materially limit Stella’s effectiveness in representing the other?
The fact that she will represent both clients in lawsuits at the trial court level.
The fact that the lawsuits will be litigated during the same period of time.
The fact that Stella would not benefit financially if the statute were interpreted to allow punitive damages.
The fact that, when Stella agreed to represent the students, she explained to them that she was arguing against the availability of punitive damages in the Chix case.
Question 7
Chloe and Matilda are partners in a small law firm. Chloe has represented Speisler Motors, an auto manufacturer, for years. She represents Speisler in all litigation in which it is a party. At present she is defending the company in a lawsuit brought by Tom, a driver of a Speisler car who was blinded when an airbag spontaneously exploded while he was driving. When the bag exploded, Tom’s car hit Anton, a pedestrian, who died some days after the accident. The executor of Anton’s estate has asked Matilda to represent the estate in a lawsuit against Tom and Speisler Motors. Matilda believes that she would be able to provide competent and diligent representation to Anton’s estate, and Chloe believes that she would be able to provide competent and diligent representation to Speisler Motors. They have agreed not to talk with each other or to share documents relating to the matter. Speisler, Tom, and Anton’s executor all give verbal consent to the representation after full disclosure of all material risks. Is it proper for Matilda to accept representation of Anton’s estate?
Yes, because Matilda could reasonably believe that she would be able to provide competent and diligent representation to Anton’s estate, and Chloe could reasonably believe that she would be able to provide competent and diligent representation to Speisler Motors.
Yes, because Matilda and Chloe have agreed not to talk with each other or to share documents relating to the matter.
No, because although the conflict is consentable, neither Matilda nor Chloe confirmed her client’s informed consent in writing.
No, because there is a conflict of interest and the conflict is not consentable.
Question 8
Valladia, Inc., is a small, closely held corporation. Valladia and its president, Alan, are defendants in a civil action brought by a state attorney general who accuses both of them of fraud, based on the same facts and the same law. Both of them desire to be represented by Martha, an attorney. Martha will bill each defendant for services provided on behalf of that defendant. Martha reasonably believes that she could provide competent and diligent representation to both of them. Martha advises the board of directors of Valladia of all the foreseeable risks of the corporation being represented by the same attorney who is representing Alan, and she advises Alan of all of the foreseeable risks of being represented by the lawyer who is representing the board. Valladia’s board of directors votes to approve the representation, and Alan approves as well. Martha writes a letter to the corporation and to Alan noting that both have given their informed consent to her representation of both parties. May Martha represent both of them?
Yes, because the corporation gave informed consent to the joint representation.
Yes, because both defendants gave informed consent to the joint representation.
No, because a single lawyer may not represent two co-defendants in civil litigation.
No, because even though conflicts are not foreseeable at present, they could arise in the future.
Former Client Conflicts
Question 1
Carlos, a sole practitioner, represents Sharky Products, Inc., a property owner that disputes an adjoining owner’s right of access to an alleyway between their buildings. Carlos sent a letter to the other property owner, Berry’s Beauty Supply Co., to explain the problem. He received a reply from Berry’s lawyer, Eleanor, requesting that Carlos withdraw from representation of Sharky. Eleanor claimed that Carlos was prohibited from handling this matter because five years ago, Carlos represented Matthew, the president and sole owner of Berry’s, in a claim against the manufacturer of a lawn care product that he used at his home. The matter took three hours of Carlos’ time and Matthew was satisfied with the resulting settlement. Carlos has had no contact with Matthew since then.
May Carlos continue to represent Sharky Products, Inc.?
Yes, because there is no substantial relationship between the two matters.
Yes, because he only worked on Matthew’s case for three hours.
No, because his representation of Sharky is materially adverse to his former client.
No, because Matthew is the president and sole owner of Berry’s.
Question 2
Last year, attorney Mira represented Sally, the owner of a small pizza restaurant, in a suit against Rome’s Own, Inc., a supplier of shredded cheese, based on breach of contract. The parties settled the claim for $15,000. Mira and Sally remained friendly after the matter was settled, and have gone to the movies and to dinner a few times in the last year. Earlier today, Sally’s next door neighbor, Jose, came in to Mira’s office for a consultation and asked Mira to represent him in a civil suit against Sally. Jose alleges that Sally’s pet macaw bit him, causing an infection and permanent scarring. Jose wants to get a court order against Sally requiring that the bird be euthanized pursuant to a state law. Sally already paid for his medical care. Jose does not want further damages. Must Mira obtain Sally’s informed consent before she can agree to represent Jose?
Yes, because Jose’s interests are directly adverse to Sally’s.
Yes, because there is a significant risk that Mira’s representation of Jose will be materially limited by her loyalty to Sally.
No, because Jose’s lawsuit is not substantially related to the breach of contract lawsuit against Rome’s Own, Inc.
No, because Jose’s interests are not materially adverse to Sally’s.
Question 3
Use the facts from the previous question. Must Mira obtain Jose’s informed consent before she can agree to represent Jose?
Yes, because Jose’s interests are directly adverse to Sally’s.
Yes, because there is a significant risk that Mira’s representation of Jose will be materially limited by her loyalty to Sally.
No, because Jose’s lawsuit is not substantially related to the breach of contract lawsuit against Rome’s Own, Inc.
No, because Jose’s interests are not materially adverse to Sally’s.
Question 4
Lawyer Shawn has handled various property and business transactions for Evelyn, her adult daughter Adelaide, and Evelyn’s business partner, Oliver, during the last decade. Those matters are all completed. Five years ago, Shawn wrote a will for Evelyn in which she left all of her property to Adelaide. In that work, Shawn represented and gave advice to both Evelyn and Adelaide. Adelaide, who lives with her mother, suffers from disabling epilepsy and has not been able to support herself. After Shawn finished drafting the will, he drafted a letter to Evelyn and Adelaide informing them that his office was closing their file and confirming the termination of their lawyer-client relationship. However, he failed to mail them the letter.
Last week, Evelyn came to Shawn to tell him that it’s time for Adelaide to stand on her own two feet. She mentioned that Adelaide has become involved with a boyfriend, Felix, and has been staying out nights. She would like Shawn to write a new will for her in which she would leave all of her property to Oliver. She further asks Shawn not to reveal to Adelaide the contents of the new will.
May Shawn write the new will for Evelyn?
Yes, because his prior representation of Adelaide was incidental to his representation of Evelyn.
Yes, because he will not reveal the contents of the new will to Adelaide without authorization by Evelyn.
No, because he failed to inform Adelaide that he no longer represents her.
No, because he did not obtain Adelaide’s informed consent to his representation of Evelyn with respect to the new will.
Question 5
Kieran, five years out of law school, accepted a job with Sato & Perlmutter, LLP. A couple of months after he started work, Miranda Perlmutter was asked to take over representation of Kasho Natural Foods in an ongoing lawsuit against the Roxbury Box Company. Kasho had fired its previous counsel after a dispute over legal fees. Miranda wants to accept Kasho as a client. However, there may be a problem.
Kieran came to Sato & Perlmutter from another firm, Podkrash and Associates, LLP, where he had worked for three years. The Podkrash firm has been representing the Roxbury Box Company in the Kasho litigation for the last two years. Kieran did not work on the Roxbury matter while he worked at Podkrash. While Kieran was working at Podkrash, he dated Lance, the senior paralegal at the firm. Lance oversaw all the staff work on the Roxbury matter and talked at length about the factual and strategic issues in the case with Kieran on many occasions. For example, the two men talked about a decision of the partner in charge of the litigation that a key document that might impact Roxbury’s liability was not covered by the plaintiffs’ discovery request. Lance disagreed with the partner’s decision, but ultimately decided to keep his mouth shut.
After consultation with her firm’s ethics counsel, Miranda decides to undertake representation of Kasho. However, she does not wish to terminate Kieran’s employment as a way to solve any conflicts problem. Instead, she timely screens Kieran from the lawyers working on the matter, sees to it that he receives no part of the fee from the Kasho matter, and provides appropriate written notices to Roxbury about the screening procedures.
Was Sato & Perlmutter permitted to undertake representation of Kasho in this manner?
Yes, because Lance and Kieran’s relationship was personal in nature.
Yes, because Kieran was properly screened from the Kasho representation.
No, because there is a substantial risk that confidential information that Kieran would have learned at the Podkrash firm would materially advance Kasho’s position in the litigation.
No, because this is a situation in which screening is insufficient to avoid the possibility of a conflict of interest so long as Kieran remains at the firm.
Question 6
Five years ago, attorney Barry worked at a large law firm with offices across the country. One of the firm’s partners defended Panko, Inc., an appliance manufacturer, against allegations that its toasters had a defect that would cause many of them to catch fire. Barry was not involved in that litigation and did not learn anything about it during his time at the firm. Barry has since opened up a private practice of his own. Ted comes to Barry’s new office seeking legal help. Ted tells Barry that his Panko toaster recently overheated and caused a house fire. He would like to sue Panko for damages. May Barry represent him a suit against Panko without Panko’s informed consent?
Yes, because there was not a substantial risk that confidential factual information as would normally have been obtained in the prior representation of Panko would materially advance Ted’s position in the subsequent matter.
Yes, because Barry did not actually acquire confidential information that is material to Ted’s lawsuit while he was working at his old law firm.
No, because the matters are the same or substantially related.
No, because Ted’s interests are materially adverse to those of Panko.
Question 7
Armand, a lawyer, represented Walter, a plastic surgeon, during Walter’s contested divorce from his wife five years ago. Armand no longer has any contact with Walter, and he does not remember anything about Walter’s case. Recently, one of Walter’s patients, Celia, developed serious complications and nearly died as the result of the extensive cosmetic surgery that Walter performed on her. She wants to sue him for punitive damages based on gross negligence. She has asked Armand to represent her. May he do so without Walter’s consent?
Yes, because he no longer represents Walter and the medical malpractice matter is unrelated to the divorce.
Yes, because he does not remember anything about Walter’s case.
No, because a lawyer may not sue a former client without the former client’s consent.
No, because Armand would normally have obtained information in the divorce case that could be helpful to Celia.
Question 8
Attorney Ash is a solo practitioner specializing in serving small businesses. Ten years ago, Ash handled a routine health department license application for Sprinkles, a newly founded small family-owned bakery. Sprinkles is now known for its cupcakes. Death by Cupcake (DBC) is a bakery across town from Sprinkles that also specializes in cupcakes. DBC would like to hire Ash to represent them in negotiating a commercial lease to open a new bakery. As it happens, the property it wants to lease is across across the street from Sprinkles. The increased competition would significantly hurt Sprinkles’ business. May Ash accept the representation without obtaining Sprinkles’ informed consent?
Yes, because informed consent is not required when a prospective client and a former client are merely economic competitors.
Yes, because the two matters are not substantially related.
No, because DBC and Sprinkles are economic competitors.
No, because DBC’s interests are materially adverse to Sprinkles’.
Conflicts in Particular Practice Settings
Question 1
Attorney Darla represents the plaintiffs in a class action lawsuit against Nutrisnax, a granola bar company, alleging false advertising. The plaintiffs allege that Nutrisnax falsely advertised its granola bars as a healthy alternative to candy bars when, in fact, the granola bars contained just as much fat, sugar, and sodium as the average candy bar. The class includes anyone who purchased a Nutrisnax granola bar in the last three years. Last week, a potential client named Samuel came into Darla’s office and asked her to represent him in his claim for child support against his former husband, Franklin. Darla learned that Franklin purchased hundreds of Nutrisnax granola bars during the relevant period, making him one of the unnamed members of the class in the granola bar suit. Must Darla obtain Franklin’s informed consent before agreeing to represent Samuel?
Yes, because Samuel’s interests are directly adverse to Franklin’s.
Yes, because Darla cannot reasonably believe that she can competently and diligently represent both Franklin and Samuel.
No, because the child support claim is unrelated to the class action lawsuit.
No, because unnamed members of a class are ordinarily not considered to be clients of the lawyer for conflicts purposes.
Question 2
Chris and Bobby are accused of burglarizing a house. They want Meyer to represent both of them in the criminal matter because they prefer not to have to pay two lawyers. Also, they believe that if they coordinate their stories and refuse to cooperate with the police, the state won’t have enough evidence to convict either of them. No state statute prohibits lawyers from representing criminal co-defendants. Meyer obtains the police reports and charging documents. He also obtains the criminal records of both Chris and Bobby. From his investigation, Meyer learns that Chris may have been the instigator. Chris is 26 years old and Bobby is 19. Chris has three prior felony convictions, while Bobby has a prior conviction for possession of a small amount of marijuana, for which he received a suspended sentence that could be revoked if he is again convicted. Meyer’s law clerk recommends that Meyer obtain a court order permitting the joint representation, but Meyer declines to seek such an order because he believes that he can provide competent and diligent representation to both defendants. May Meyer represent both defendants if each gives informed consent to the joint representation, confirmed in writing?
Yes, because both clients have provided consent confirmed in writing.
Yes, because the charges arise out of a single incident.
No, because Meyer did not seek an order from the judge allowing the joint representation.
No, because the joint representation presents a non-consentable conflict.
Question 3
Larry, the father of Linda, Abby, and Carl, died at age 87. His property was to be divided equally among his children. Louise, Larry’s partner, is executor of the estate. Most of his property is in cash and stocks, but Larry also left his children a lakeside cabin. The three adult children decide that Carl should take the cabin and should pay his sisters one-third of its value each out of his share of the cash and stocks. The appraised value of the cabin is $225,000, but Carl urges that, for the purpose of the transfer, the cabin should be valued at $150,000, because he believes the appraised value is unrealistic and that he will soon have to replace the water and septic systems for the cabin, at considerable cost. After some discussion, Linda and Abby are willing to go along with their brother’s suggestion as to the valuation of the cabin because they care more about their brother than they do about the money. The three siblings need to hire legal assistance to prepare and file the documents relating to the transfer of the cabin. Carl proposes that they hire Morton, a lawyer he has used for other legal matters over the last ten years. Morton reasonably believes that he could competently represent all three siblings. He explains the potential problems and the advantages and risks of joint representation and obtains their consent to the joint representation. None of the siblings has any questions or new proposals, and he does not provide any legal advice to them. Morton then prepares a document valuing the cabin at $150,000 for purposes of the transfer, just as the siblings agreed. Each sibling confirms that all of them still want him to be their attorney. May he represent all three siblings in the transaction?
Yes, because Morton merely prepared documents per their joint instructions, so he did not even need their informed consent.
Yes, because there is no apparent conflict between the interests of the three siblings and he obtained their informed consent.
No, because Carl would benefit by the cabin being assigned a lesser value, while Abby and Linda would be paid more if the assigned value is higher, so the conflict is non-consentable.
No, because Morton’s prior representation of Carl creates a significant risk that his representation of Linda and Abby would be materially limited by his felt loyalty to Carl.
Question 4
In answering this question, use the facts of the previous question and assume that Morton has properly undertaken the representation of the three siblings.
In the course of his research before preparing the property transfer documents for Larry’s summer cabin, Morton discovers that Carl could obtain a reduction in tax liability for the cabin if the transfer of the cabin is postponed until next year. Morton knows that Linda and Abby are eager to conclude the transaction and that they will be able to earn more interest on funds paid to them by Carl if the payment is made this year instead of next year. Carl asks Morton whether he could postpone the transfer of the cabin until next year, slowing things down without revealing any reasons for the delay.
May Morton delay the transaction without disclosing the reasons to Carl’s sisters?
Yes, because the adverse consequence to them from the delay will not be as significant as the resulting benefit to Carl.
Yes, because this will allow him to avoid the clients’ potentially adverse interests and to focus on their common interests.
No, because each client is entitled to be told information relating to the representation that might affect the client’s interests.
No, because Carl’s suggestion would involve Morton in a fraud against Linda and Abby, requiring Morton’s immediate withdrawal from representation of Carl.
Question 5
Jaiden, an assistant general counsel of Plenum, Inc., a pharmaceutical manufacturer, was asked to investigate whether the research division of Plenum was concealing reports of adverse reactions to the company’s best-selling product, Somalox, an anti-depressant. Two users of Somalox had contacted the general counsel’s office, reporting that they had submitted adverse reaction reports to the research division, as directed on the package insert, but that they had received no response from the company. One of these two users alleged that he had suffered hallucinations and suicidal ideation after taking Somalox, and that he had described these reactions in his earlier report. The other user reported that she was hospitalized for depression after having taken Somalox for several weeks. She also had reported this to the research division. The non-response is worrisome. The company policy is to acknowledge receipt of any adverse reaction reports and to assure users that the company will report adverse reactions to the Food and Drug Administration as required by law. The research division would route any adverse reaction reports through the general counsel’s office to the FDA, but none have been received or sent for Somalox.
Jaiden schedules a meeting with Bertha, the chief of the research division. Jaiden shows her the correspondence sent to the general counsel’s office by the two users and asks her to show him these and any other adverse reaction reports that the company has received. Bertha flushes and stammers in response to Jaiden’s query. “I am afraid that I have let a few of these slip through the cracks. Since you are the company’s lawyer, I can speak to you in confidence, right? Am I in trouble here?”
In answering Bertha’s questions, which of the following statements would Jaiden be best advised to make?
“Our conversation is protected by attorney-client privilege, so you can talk with me in confidence.”
“You can speak to me in confidence, because you are an employee of Plenum, and therefore your interests are aligned with those of the company.”
“I represent Plenum, so I cannot give you any legal advice except the advice to get a lawyer.”
“I have to report anything that you tell me to the company’s leadership, because I represent the company, but I can assure you that the information won’t be shared outside of the company—for example, with law enforcement agencies.”
Question 6
Nathan is a partner in the law firm of Pace and Gillespie, which represents Bostwick Corp., which is not publicly traded. The corporation manufactures boots. Nathan is a friend of David Bostwick, the chairman of his client’s board of directors, who owns 12 percent of the stock of the company. Nathan himself owns 3 percent of the stock, which he acquired long before Pace and Gillespie began representing Bostwick. Whenever there is a vacancy on the board, the board selects a replacement director. No directors are elected by the shareholders. On David’s recommendation, the board takes a formal vote and offers Nathan the opportunity to join the board. Nathan would like to accept, and neither he nor anyone on the board knows of any actual or apparent conflict of interest. Nathan is not willing to divest himself of his stock in the company. May Nathan accept the offer to join the board?
Yes, because there is no law or ethical rule barring his joining the board.
Yes, because although Nathan is a friend of David, the board took a formal vote to appoint him.
No, because he is a friend of David and therefore there is at least the appearance of a conflict of interest, regardless of the opinion of Nathan or board members.
No, because Nathan refuses to divest himself of stock in the company.
Conflicts Based on Lawyers’ Interests
Question 1
Lucille, a criminal defense lawyer, receives a frantic call from Sylvia, who states that her sister, Basia, who recently immigrated from Poland, has been arrested by state police for a drug violation, and that the bail hearing will be held in less than two hours. She asks Lucille to represent Basia at the bail hearing and in her criminal case. Lucille hires Magda, a Polish-speaking interpreter, and rushes to the courthouse, where she is able to briefly meet with Basia and represent her at the bail hearing. The judge sets the bail at $2,000. Sylvia is able to pay the bail amount, and Basia is released from prison that night. The next day, Lucille meets with Basia, with Magda interpreting, and informs her that her rate for legal services is $300 per hour. She states that that rate will be used to calculate the bill for the work that Lucille did on the bail hearing, and for future work that she will do on the criminal case. Basia agrees to the rate and Lucille begins work on her case. There is no other discussion of how much Basia will have to pay. At Basia’s hearing five months later, the arresting officer fails to appear, and the charges against Basia are dropped. The next month, Lucille sends Basia a bill for $1,800, including five hours of her work, plus $300 for Magda’s services. Is Lucille subject to discipline?
Yes, because she did not communicate the rate in writing or give Basia an estimate of the total fee.
Yes, because she did not communicate the expenses for which Basia will be responsible within a reasonable time after commencing the representation.
No, because a lawyer’s rate need not be communicated in writing.
No, because Lucille was hired on such short notice that she could not discuss compensation in advance.
Question 2
Spencer desires to represent his golfing partner Craig, who was injured on a ski slope that was apparently negligently maintained. Spencer tells Craig on the phone that he is willing to work on a contingent fee basis, under which Craig will be charged nothing unless Spencer obtains a settlement or wins a judgment. In either case, Spencer would charge 33 percent of any recovery after the deduction of the expenses of litigation. Spencer explains that Craig will not be responsible for any litigation expenses unless there is a recovery that exceeds the amount of the expenses. They discuss these points, and Craig agrees to the fee arrangement. Spencer contacts the ski slope’s insurer, and within three weeks, with Craig’s approval, the case is settled for $21,000. Spencer transmits $14,000 of that settlement to Craig. Spencer spent only four hours on the case. Was Spencer’s conduct proper?
Yes, because he disclosed all the details of the fee arrangement.
Yes, because a lawyer’s rate need not be disclosed in writing.
No, because he did not disclose all the details of the fee arrangement in a writing signed by Craig.
No, because a rate of 33 percent is unreasonable for a matter that required so little of the lawyer’s time and attention.
Question 3
Joseph is an immigrant who was recently denied asylum by the administrative appeals body that handles immigration cases. He hires Cyrus to appeal the decision to the U.S. Court of Appeals. Joseph knows that there is a $500 filing fee that he will have to pay. The appeal and fee are due tomorrow. Cyrus called Joseph and left a message, but Joseph did not call him back. He knows from prior conversations, however, that Joseph wants to appeal the decision. If he misses the filing deadline, Joseph will be barred from appealing. May Cyrus go ahead and file the appeal, paying the filing fee, with the expectation that Joseph would reimburse him?
Yes, because lawyers are permitted to advance court costs.
Yes, because $500 is not excessive.
No, because lawyers are not permitted to provide financial assistance to clients.
No, because Joseph did not exercise reasonable diligence in communicating with Cyrus before advancing the fee.
Question 4
Attorney Cherie represents Patience in a suit against her landlord for failure to do adequate remediation after a flood caused mold growth in the attic. Patience is an anthropologist who is writing a novel about a forensic anthropologist who solves murder mysteries. Patience is low on cash, but her upcoming book is expected to be a bestseller. Cherie proposes a fee arrangement in which Patience will pay Cherie a percentage of the royalties from her book as the fee for the landlord-tenant dispute. She discusses the advantages and disadvantages of this arrangement. Patience agrees to pay the legal fee in this manner. Cherie then sends Patience a letter that includes a clear explanation of the terms of the arrangement, which are fair and reasonable. The letter also advises Patience that it is desirable for her to seek independent legal advice before signing this agreement. A few weeks later, Patience signs the letter to indicate her consent.
May Cherie and Patience agree that the legal fee will consist of a percentage of Patience’s royalties from the book?
Yes, because Cherie complied with the disclosure and other requirements that govern business transactions between lawyers and clients.
Yes, because Patience’s payment of the royalties to Cherie is not contingent upon her winning the case.
No, because a lawyer may not enter into a fee agreement with a client that gives the lawyer media or literary rights.
No, because the litigation is ongoing. Once the litigation has ended, Cherie and Patience may make an agreement to give Patience a share of the royalties.
Question 5
Barbara approaches attorney Morgan to ask for representation in a landlord/ tenant suit. Morgan has not handled this type of case before. She is willing to take it on and will charge a much lower hourly rate than her normal rate, but only if Barbara agrees not to sue her for any mistake she might make. Morgan has accordingly drafted a retainer agreement with Barbara that Barbara waives any potential claims for malpractice against Morgan. Morgan has read Barbara this provision and explained it to her, and she has encouraged her orally to seek the advice of another lawyer about whether to hire Morgan on these terms. Barbara says that she fully understands the provision, that she does not need to consult another lawyer, and that she wants to sign the retainer agreement. May Morgan represent Barbara pursuant to this agreement?
Yes, because Morgan obtained Barbara’s informed consent.
Yes, because Morgan advised Barbara of the desirability to seek the advice of an independent lawyer.
No, because Morgan did not advise Barbara in writing of the desirability to seek the advice of an independent lawyer.
No, because Barbara was not independently represented in making this agreement.
Question 6
Use the facts from the previous question. Suppose Morgan decides not to include the malpractice language in the retainer agreement, and both she and Barbara sign the agreement. Suppose further that Morgan indeed makes a serious mistake in the course of representation. Morgan and Barbara estimate that the mistake cost Barbara $9,500. Morgan would like to settle any malpractice claim that Barbara may have against her for $12,000 without litigation. Morgan does not wish to notify her malpractice insurer of the mistake, because then her rates would go up. She advises Barbara in writing to seek independent counsel, and she tells her she can take her time finding another lawyer. Barbara declines, saying she does not need another lawyer and that she agrees with the $12,000 settlement. May Morgan go forward with the settlement?
Yes, because Morgan’s mistake cost Barbara less than $12,000.
Yes, because Morgan advised Barbara in writing regarding the desirability of seeking independent counsel.
No, because Barbara was not represented by another lawyer in the settlement negotiations.
No, because the ethics code requires lawyers to report professional errors to their malpractice insurers before settling malpractice claims based on those errors.
Question 7
Attorney Eli has represented Jacques, an elderly but lucid man, in his legal matters for the past eight years. He continues to do so from time to time. The legal matters with which Eli has assisted Jacques have been minor; the most Jacques ever paid Eli was $1,500. One day, Jacques tells Eli that as a token of his appreciation for his years of service and friendship, he would like to give Eli his mint condition 1970 Chevrolet Chevelle, a car Eli knows to be worth over $70,000. Eli refers Jacques to another lawyer who can prepare the documents transferring the title to the vehicle to Eli. May Eli accept the gift?
Yes, because there are no restrictions with respect to receiving unsolicited gifts from clients.
Yes, because Eli referred Jacques to another lawyer who will prepare the documentation to effectuate the transfer of the title to the vehicle.
No, because Eli did not first arrange for a guardian ad litem to be appointed for Jacques.
No, because a lawyer may not accept a substantial gift from a current client, and the car would be considered a “substantial” gift.
Question 8
Attorney Maria is a divorce lawyer. Several months ago, Maria represented Jillian in her divorce from her husband, Jack. At that time, Maria charged her an hourly fee of $400 per hour. The judge granted the divorce and ordered Jack to pay her $1,000 per month child support. Recently, Jillian came to Maria seeking help, because Jack has not been paying the child support for the past 6 months. She would like Maria to help her get the $6,000 that Jack owes her. Maria wishes to charge Jillian a contingent fee of 30 percent of the recovery. She discloses the fee and expense terms and receives Jillian’s informed consent in writing.
May Maria charge the contingent fee?
Yes, because Jillian is Maria’s former client.
Yes, because she obtained Jillian’s consent in writing.
No, because contingent fees are not permitted in domestic relations cases.
No, because 30 percent is excessive because it will drain resources needed to support the couple’s children.
Question 9
Ellen wants to hire Donna, an attorney, to handle her divorce case. Ellen works as a saleswoman in a department store, earning $26,000 a year. Donna proposes to charge a fee of $300 per hour, which is not an unusual hourly rate for divorce work in Ellen’s community, although some lawyers charge less. Donna discloses her fee and all expenses for which Ellen will be responsible in writing, and Ellen signs the writing. May Donna charge this fee?
Yes, because Donna informed Ellen, before starting to work, that her fee will be $300 per hour and listed the expenses for which Donna will be responsible.
Yes, because the notice of the fee arrangement was in writing.
No, because Donna did not give Ellen a good faith estimate of the likely total fee.
No, because some other lawyers in the community charge less than $300 per hour for divorce work.
Question 10
Laila was a pedestrian who was hit by a car. Her best friend Joan, who is a nurse, visited her in the hospital. Neither Joan nor Laila knew the driver of the car. Joan later discussed the accident with her friend Craig, who is an attorney. Craig would like to represent Laila, on a contingent fee basis, in a claim against the driver of the car. Craig tells Joan that if she recommends him to Laila, and Laila retains him, Craig will pay Joan 10 percent of his share of any recovery that Laila collects. He does not tell Laila about this part of the arrangement. Is Craig subject to discipline?
Yes, because he did not disclose the arrangement to Laila.
Yes, because Joan is not a lawyer.
No, because Joan has no connection with the driver of the car and there is therefore no conflict of interest.
No, because he offered Joan 10 percent of his own fee, rather than 10 percent of the recovery.
Question 11
Cindy, an indigent single mother of four, sought the help of Rona, an attorney, in filing an application for emergency food stamps. Rona agreed to help Cindy for a very low, fixed fee, which Cindy paid immediately. While the application is pending, Rona realizes that even if the application is approved, Cindy’s family will go hungry, because the state’s welfare benefits are so low. She wants to help Cindy by giving her $100 a month, for six months, out of her own funds. May she do so?
Yes, because Cindy is indigent.
Yes, because the financial assistance is not being offered in connection with litigation.
No, because Cindy did not waive any potential conflict of interest in writing.
No, because she did not terminate the representation before providing the assistance.
Question 12
Geraldine, an attorney in a legal aid program, provides pro bono representation to Amber, who is indigent, disabled, and homeless, in litigation against Mike’s Job Counseling Service. Amber had paid $300 to Mike’s, which did not give her any job leads or help. Mike’s has recently been exposed in the local paper for not actually having helped anyone to get a job. Winter is approaching, and it has become increasingly difficult for Amber to live on the streets. She is in danger of freezing to death. All of the homeless shelters in the area are full. Geraldine cares about Amber and wants to keep her from freezing. Which of the following statements is correct?
Geraldine may loan Amber $500 so that she can rent a modest room.
Geraldine may give Amber $500 so that she can rent a modest room.
Both A and B are correct.
Neither A nor B is correct.
Question 13
Eduardo is a sole practitioner. He wants to handle the following matters and to make agreements with clients under which he would receive 20 percent of any recovery awarded to the client. In which of these cases would Eduardo be subject to discipline if he undertook the representation under those terms?
Eduardo previously represented Atticus in a criminal matter. Atticus pleaded guilty and was incarcerated for a year. During that year, he reports, prison officials deprived him of medication that he needed, resulting in his having a mild stroke. Atticus wants to sue the prison for damages.
Byron and his ex-wife are each half-owners of a mini-golf business. Byron has asked Eduardo to seek a partition (court-ordered division) of the property.
Celeste has asked Eduardo to file an action seeking an order requiring her ex-boyfriend, who is the father of her daughter, to pay child support.
In a fit of rage, Dana’s former husband smashed her new sports car, requiring $12,000 worth of repairs. She wants to sue him for damages.
Question 14
Sol practices tax law, but his expertise is in giving tax advice rather than handling litigation. Recently, Sol provided personal tax advice to businessman Bill. Bill then asked Sol to look at another tax matter involving a deduction denied by the Internal Revenue Service. Bill wants Sol to litigate the matter in the tax court. Sol mentioned to his friend Al, a litigator in a different firm, that one of his clients wants him to take on a litigation matter. Al responded, “Great! Just tell your client that you will do it with co-counsel. I will charge Bill 33 percent of the recovery, and I’ll give you half of what he pays us. We’ll both enter appearances and sign the papers, but you can leave everything to me. It will be as if we were in a law partnership together!” Sol believes that Al is an excellent litigator capable of doing a good job for Bill. Sol and Al agree to accept any liability for mistakes. The overall fee they intend to charge is reasonable. Bill gives his informed consent to Al’s association with Sol and to the proposed fee and to how Sol and Al will split it, and he signs a writing to that effect.
May Sol and Al enter into this split-fee arrangement?
Yes, because the arrangement complies with all of the relevant rules.
Yes, because there are no restrictions on lawyers sharing fees.
No, because Sol is not competent to litigate the matter.
No, because the division is not in proportion to the actual work performed by each lawyer.
Question 15
Johann, a lawyer, is has recently taken Carly’s products liability case. They have agreed to a fee of $250/ hour. Because he has only handled a few such cases, he wants to avoid being sued for malpractice. He would like Carly to sign a retainer agreement that provides that any malpractice claim that she wants to make against him has to be resolved by an arbitration rather than in a court. He drafts the retainer agreement and explains it to her but does not tell her that she may have a different lawyer advise her about the desirability of agreeing to the arbitration. Arbitration agreements between professional persons and their patients or clients are not prohibited by state law. She signs the agreement. Is Johann subject to discipline?
Yes, because Carly was not independently represented in signing the agreement.
Yes, because Johann did not advise Carly of the desirability of seeking independent counsel before she signed the agreement.
No, because the matter is not a contingent fee case.
No, because Johann explained the effect of the arbitration term to Carly.
Question 16
Milan graduated from law school, took the bar exam in state A, passed the exam, and was admitted to the bar in state A) He maintains active membership even though he is neither practicing law, nor living in state A) Milan bought a small computer consulting firm in neighboring state B and ran it successfully for a few years, earning a good living. Then Milan decided to sell the business. He found a buyer who purchased the business. In the course of their discussions about the business, Milan represented that the business had been twice as profitable as it actually was. After a few months of operating the business, the buyer sued Milan for damages for fraud and to rescind the contract. That lawsuit is pending. Is Milan subject to discipline in state A?
Yes, because Milan lied to the buyer about the value of the business, even though his dishonesty took place in state B.
Yes, because the terms of the agreement (including the value of the business) were not fair and fully disclosed to the buyer, as required by Rule 1.8(a), nor did the buyer give informed consent.
No, because Milan was not practicing law and this deal was not related to law practice.
No, because Milan’s acts have not yet been found to be fraudulent by a court.
Question 17
Danielle is a lawyer. Ted, the son of her brother Matthew, is very ill with a life-threatening condition. Ted must get a certain medication that costs $1,400 in the next 24 hours or else he will go into kidney failure. Matthew has no cash, but he will receive a large sum from the sale of his home in one week. Matthew has no other possible source of funds until then unless Danielle gives him a short-term loan. Danielle is flat broke (in fact, she is deeply in debt), but there is $120,000 in Danielle’s trust account. This amount is the proceeds of a personal injury settlement that Danielle will distribute to her client Van. She represented him on a pro bono basis, so she is not owed a fee from the settlement. Van is in prison for the next few years. Danielle has agreed to hold the funds for Van in the interim and to make mortgage payments on his house as they become due. Danielle lends Matthew $1,400 from this account for Ted’s medication. She is unable to ask for Van’s approval because he is in solitary confinement because he talked back to a prison guard and is not allowed to receive phone calls. Danielle, confident that Van would approve, sends him a letter explaining her intention to make the loan to her brother. A week later, Matthew receives the proceeds from the sale of his house. He repays Danielle, who replenishes the client trust account. Van later writes Danielle that he is glad that she was able to make the loan to her brother. There is no resulting delay in the distribution of the settlement funds to Van or in the making of mortgage payments. Is Danielle subject to discipline?
Yes, even though she promptly informed Van that she borrowed the money and he ratified her prior action.
No, because she promptly informed Van that she loaned out a chunk of his money and he ratified her prior action.
No, because there was no delay either in making the payments on Van’s mortgage or in the distribution of the settlement funds to Van.
No, because she did this to prevent reasonably certain death or substantial bodily harm to a child.
Conflicts for Government Lawyers
Question 1
Pablo, a lawyer who used to work at the U.S. Department of Justice, now works at a private law firm. Which of the following rules does NOT apply to potential conflicts between Pablo’s duties to the U.S. government and his duties to any current clients?
1.7
1.9(a)
1.9(c)
1.11
Question 2
Abdul, a lawyer, is employed by the United States Department of Labor and works in its Office of Civil Rights. He is also an experienced litigator. His neighbor, Blaine, has been having a dispute with the Internal Revenue Service, which claims that Blaine’s deduction for home office expenses is not valid and has withheld part of his claimed tax refund. Abdul wants to represent Blaine in a suit against the United States in the federal Tax Court to try to obtain the withheld portion of Blaine’s refund. He would not charge Blaine any fee. Also, Abdul has spoken to his supervisor in the Department of Labor, who has confirmed that the Department would have no objection to Abdul providing legal assistance to Blaine in his dispute with the Internal Revenue Service and will confirm this in writing. As a result, Abdul is confident that there is no conflict of interest, and he does not intend to advise Blaine that he should get a different lawyer, because any other lawyer would charge a substantial fee to Blaine. May Abdul represent Blaine in this litigation?
Yes, because he is not going to charge a fee.
Yes, because he is obtaining written approval from the Department of Labor.
No, because he does not plan to advise Blaine about the possibility of obtaining a different lawyer.
No, because a federal employee may not represent an unrelated client in a claim against the United States.
Question 3
After she graduated from law school, Dania worked for the Securities and Exchange Commission (SEC) for three years. During that time, she worked on securing an indictment in a large securities case involving seven defendants who collaborated on an insider trading scheme. At the end of three years, she moved on to a position at one office of a large private law firm whose practice includes defense of securities fraud cases. A month after she started work at the firm, Dania learned that a partner in the firm was representing one of the defendants in the securities case that Dania had worked on while she was at the SEC) This did not emerge in the preliminary conflicts screening before she was hired because Dania’s work focused on three of the other defendants in the suit. The basic facts were the same, but the targets were different. What should the firm do to enable it to represent the defendant in the securities fraud case?
Instruct Dania not to reveal to anyone in the law firm anything she learned about the case while she was at the SEC.
Screen Dania from any participation in the matter, prevent her from receiving any extra pay related to the matter, and give written notice of the potential conflict to the SEC.
Transfer Dania, while the litigation is pending, to a different office of the firm, in another city.
Discharge Dania, because that is the only way in which the firm could both comply with the ethics rules and continue to represent its client.
Question 4
Paul, an associate justice of the United States Supreme Court owns a substantial amount of stock in a publicly traded corporation called Exrix, LLC) The Court grants certiorari to decide a class action suit brought by shareholders of Exrix. Paul has disclosed his stock ownership but is not planning to sell his stock. No party has made a recusal motion. Must Paul recuse himself pursuant to a code of judicial conduct?
Yes, because he owns some stock in a corporation whose case he must decide.
Yes, because the amount of stock that he owns is substantial.
No, because no party has made a recusal motion.
No, because no ethics rule requires him to recuse himself.
Question 5
In a state in which judges are elected, Damian Garner, the President of Garner Industries, a manufacturer of firearms, has donated $3,000 to the successful campaign of Ambrose Zoltan, who was elected as a judge of the state’s highest court. That contribution represented 2 percent of the campaign contributions that the judge received. All contributions were disclosed pursuant to the state’s campaign finance disclosure law.
A gun control group sued Garner Industries for violating the state’s gun control laws by manufacturing and selling guns with built-in silencers. The court ruled against Garner and it has appealed to the state supreme court, arguing that the gun control law is inconsistent with the Second Amendment. The gun control group filed a motion asking Judge Zoltan to recuse himself, but he denied the motion. Would Judge Zoltan’s participation in the adjudication of this case be unconstitutional?
Yes, because Garner made a substantial contribution to his campaign.
Yes, because not all parties have consented to his participation.
No, because the contribution was only a small part of his campaign treasury.
No, because the contribution was disclosed.
Question 6
Evelyn, a recently admitted attorney, is serving as a law clerk to Judge Leopold Osterman on the state court of appeals. The judge has heard the appeal in a contract dispute in which IGL Corp. has sued Mountain Hardware, Inc., for damages. Mountain Hardware was represented by the law firm of Westerfield & Pilson, which Evelyn worked for during her second summer in law school. She did not work on that dispute while she was at the firm, because the firm accepted it after she left the job, but Judge Osterman has asked her to write the opinion in the case. While she was working on the opinion, Margaret Pilson from Westerfield & Pilson emailed Evelyn, on her private email account, asking whether she would like to discuss joining the firm as an associate after she finished her clerkship. Evelyn wanted to take that job, so she told Judge Osterman about the email, and he said that it was fine to discuss a possible job with the firm. Evelyn and the firm then agreed on a starting salary of $95,000, and that she would begin work two weeks after her clerkship ended. A week later, Evelyn completed the opinion, which the judge adopted. It dismissed the case against Mountain Hardware. Is Evelyn subject to discipline?
Yes, because she entered into negotiations and a future employment agreement with a firm while participating personally and substantially as a judicial law clerk writing an opinion that would affect a present client of that firm.
Yes, because her opinion favored the firm that was offering her a job.
No, because she notified her employer of the overture from the law firm and her intent to pursue it.
No, because she did not submit the opinion to the judge until after she had accepted the firm’s offer, so she could not have been helping a client of the firm in order to procure a job offer.
Question 7
Erin, a lawyer, had a motion that was scheduled to be argued on November 5. Another attorney, Manfred, represented her adversary. On October 31, Erin learned that her son’s surgery had been scheduled for November 5, and she wanted to be with her son on the day of the surgery. She tried to call Manfred to discuss rescheduling, but he was out of town and could not be reached that day. So without first notifying Manfred, she telephoned the judge’s clerk to find out whether the argument on the motion could be heard the following week. To her surprise, the judge picked up the phone and explained that he had answered because his clerk was at lunch. Erin explained the situation and asked the judge whether the argument could be scheduled for November 12. The judge checked his computer and advised that he could fit in the argument on that date, and he advised Erin to notify Manfred of her request and if Manfred had no objection, to telephone his clerk in a few hours. He said that his clerk would also send a notice to her and to Manfred, describing his conversation with Erin and notifying that in the absence of any objection, the hearing would be rescheduled as requested. Is Erin subject to discipline?
Yes, because she didn’t notify Manfred that she was going to telephone the judge’s chambers about rescheduling the hearing.
Yes, because she spoke directly to the judge rather than to his clerk.
No, because it was not her fault that the judge picked up the telephone.
No, because she only discussed a procedural issue with the judge.