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[PMBR 03-3] In Attorney's closing statement to the court in a bench trial, Attorney said, "Your honor, I drive on the street in question every day and I know that a driver cannot see cars backing out of driveways as the one did in this case. I believe that my client was not negligent, and I ask you to so find." Was Attorney's closing argument proper?
1. Yes, because the rules of evidence are very liberal when the trial is before a judge without a jury.
2. Yes, if Attorney was speaking truthfully and not trying to deceive the court.
3. No, because Attorney asserted Attorney's personal knowledge of facts in issue.
4. No, if there is no other evidence in the record about the facts asserted by Attorney.
Plaintiff, who is not a lawyer, is representing himself in small claims court in an action to recover his security deposit from his former landlord. Plaintiff told Attorney, a close friend who lived near him, about this case, but did not ask Attorney for any advice. Attorney said, "I'11 give you some free advice. It would help your case if the new tenants would testify that the apartment was in good shape when they moved in, and, contrary to the allegation of your former landlord, it was not, in fact, repainted for them." Plaintiff followed Attorney's advice and won his case. Is Attorney subject to discipline for assisting Plaintiff in preparing for his court appearance?
1. No, because Attorney was not compensated for his advice.
2. Yes, because Attorney offered unsolicited, in-person legal advice.
3. No, because Plaintiff was representing himself in the proceedings.
4. Yes, because Attorney assisted Plaintiff in the practice of law.
Attorney is defending Client, who has been indicted for burglary. During an interview, Client stated to Attorney that before he had consulted Attorney, Client had committed perjury while testifying before the grand jury that indicted him. Attorney is subject to discipline if she:
1. does not inform the authorities of the perjury.
2. informs the authorities of the perjury.
3. continues to represent Client.
4. continues to represent Client unless Client admits his perjury.
Attorney is employed in the legal department of Electco, a public utility company, and represents that company in litigation. Electco has been sued by a consumer group that alleges Electco is guilty of various acts in violation of its charter. Through its general counsel, Electco has instructed Attorney not to negotiate a settlement but to go to trial under any circumstances since a precedent needs to be established. Attorney believes the case should be settled if possible. Must Attorney withdraw as counsel in the case?
1. Yes, because a lawyer should endeavor to avoid litigation.
2. No, because as an employee, Attorney is bound by the instructions of the general counsel.
3. Yes, if Electco is controlling Attorney's judgment in settling the case.
4. No, if Electco's defense can be supported by a good faith argument.
Four years ago, Alpha was a judge in a state court of general jurisdiction and heard the civil case of Plaintiff against Defendant in which Plaintiff prevailed and secured a judgment for $50,000 that was sustained on appeal. Since then Alpha has resigned from the bench and returned to private practice. Defendant has filed suit to enjoin enforcement of the judgment on the grounds of extrinsic fraud in its procurement. Plaintiff has now asked Alpha to represent Plaintiff in defending the suit to enjoin enforcement. Is it proper for Alpha to accept the representation of Plaintiff in this matter?
1. Yes, if Alpha's conduct of the first trial will not be in issue.
2. No, unless Alpha believes the present suit is brought in bad faith.
3. No, because Alpha had acted in a judicial capacity on the merits of the original case.
4. Yes, because Alpha would be upholding the decision of the court.
Attorney Alpha represents Plaintiff in a personal injury action against Defendant, the defendant, who is represented by Attorney Beta. Alpha had heard that Defendant was anxious to settle the case and believed that Beta had not informed Defendant of a reasonable settlement offer made by Alpha. Alpha instructed Alpha's non-lawyer investigator, Inv, to tell Defendant about the settlement offer so Alpha could be sure that Beta does not force the case to trial merely to increase Beta's fee. Inv talked to Defendant as instructed. Is Alpha subject to discipline?
1. Yes, because Alpha was assisting Inv in the unauthorized practice of law.
2. No, if Alpha reasonably believed Beta was not keeping Defendant informed.
3. Yes, because Defendant was represented by counsel.
4. No, because Inv is not a lawyer.
Attorney served two four-year terms as the governor of State immediately prior to reopening his law office in State. Attorney printed and mailed an announcement of his return to private practice to members of the bar, persons who had previously been his clients, and personal friends whom he had never represented. The printed announcement stated that Attorney had reopened his law office, gave his address and telephone number, and added that he had been governor of State for the past eight years. Is Attorney subject to discipline for the announcement?
1. Yes, because his service as governor is unrelated to his ability as a lawyer.
2. No, because the information in the announcement is true.
3. No, because all of the information was already in the public domain.
4. Yes, because it was mailed to persons who had not been his clients.
Attorney placed Associate, recently admitted to the bar, in complete charge of the work of the paralegals in Attorney's office. That work consisted of searching titles to real property, an area in which Associate had no familiarity. Attorney instructed Associate to review the searches prepared by the paralegals, and thereafter to sign Attorney's name to the required certifications of title if Associate was satisfied that the search accurately reflected the condition of the title. This arrangement enabled Attorney to lower office operating expenses. Attorney told Associate that Associate should resolve any legal questions that might arise and not to bother Attorney because Attorney was too busy handling major litigation. Is it proper for Attorney to assign Associate this responsibility?
1. Yes, if the paralegals are experienced in searching titles.
2. Yes, because Attorney is ultimately liable for the accuracy of the title searches.
3. No, because. Attorney is not adequately supervising the work of Associate.
4. No, unless it enables Attorney to charge lower fees for title certification.
The law firm of Able & Baker agreed to represent Client in various business matters. The written retainer agreement called for Client to pay Able & Baker's hourly rates of $180 per hour for a partner's time and $110 per hour for an associate's time. The representation proceeded. Able & Baker submitted monthly bills, which Client paid promptly. After two years, Able & Baker decided to increase their hourly rates by $10. Able & Baker thereafter billed Client at their new rates, but did not specifically inform Client of the increase. Client continued to pay monthly bills promptly. Are Able & Baker subject to discipline?
1. No, because Client agreed in writing to pay Able & Baker's hourly rate.
2. Yes, because the entire original fee agreement was required to be in writing.
3. No, if the $10 hourly increase is reasonable.
4. Yes, because Client did not consent to the increase.
During the closing argument to the jury in a civil tax fraud case, Attorney, representing the government, quoted a portion of Defendant's testimony and then said: I. "That testimony of Defendant directly contradicts the testimony of two witnesses for the government." II. "I ask you, who has the reason to lie, the two witnesses for the government or Defendant?" III. "I can truthfully say I have never seen a witness less worthy of belief." Which of the above statements by Attorney would be proper?
1. I, II, and III
2. I only
3. I and II, but not III
4. II and III, but not I
Attorney's standard retainer contract in divorce case provides for the payment of a fee of one-third of the amount of alimony or properly settlement secured by Attorney. Attorney declines to represent clients who do not agree to this arrangement. Is Attorney's standard retainer contract proper?
1. Yes, because clients often prefer to pay a lawyer fee based on the outcome of the case.
2. No, because the fee is contingent.
3. No, because a lawyer may not acquire a proprietary interest in a cause of action.
4. Yes, if a fee of one-third is not excessive.
Attorney Alpha was retained by Client to represent Client in defense of an action brought against Client by Plaintiff. In order to obtain ample time for settlement negotiations, Alpha immediately requested and obtained from opposing counsel, Attorney Beta, a stipulation extending Client's time to answer the complaint until ten days after receipt of written demand from Beta. Four months later, no settlement had been reached, and on May 1, Beta wrote Alpha demanding that an answer be filed within ten days. When no answer was filed by May 15, Beta had a default judgment entered in favor of Plaintiff. Alpha was away on a two-month vacation when Beta's letter was received in her office. When Alpha returned on June 15, she promptly moved to have the default set aside and her motion was granted. Is Alpha subject to discipline?
1. No, because the default judgment was set aside.
2. Yes, if she did not make provision for the handling of her pending cases while she was away.
3. No, unless she knew that Beta had demanded that an answer be filed within ten days.
4. Yes, unless she makes restitution to Client for any loss sustained by Client.
Attorney represents Defendant, a prominent businessman, in a civil paternity suit brought by Plaintiff, who was formerly Defendant's employee. Blood tests did not exclude Defendant's paternity, and the case is being tried before a jury. The result turns on questions of fact. Defendant has steadfastly denied that he had sexual relations with Plaintiff, while Plaintiff has testified that they had sexual relations while on business trips and in her home. The trial has generated great public interest and is closely followed by the news media. When Plaintiff completed her testimony, Attorney was interviewed by a newspaper reporter. Which of the following statements, if believed by Attorney to be true, would be proper for Attorney to make? I. "As stated in our pleadings, we expect to prove that other men could be the father of Plaintiff s child." II. "We have scientific medical tests proving that Defendant is sterile." III. "We have been unable to locate several people whose testimony will be helpful to us, and I implore them to contact me immediately."
1. II only
2. I, 11, and III
3. III only
4. I and III, but not II
Attorney Alpha is a lawyer running for election as a state judge. Attorney Beta, who practices law in the same community as Alpha, has frequently observed Alpha's courtroom demeanor in litigated cases. Based on those experiences, Beta believes that Alpha does not have a proper judicial temperament. A local news reporter asked Beta how Beta would rate the candidates~ and Beta responded in good faith, "I think Alpha is unsuited for the bench. Alpha lacks the proper judicial temperament and would make a very poor judge." A local newspaper with a wide circulation quoted Beta's remarks. Were Beta's remarks proper?
1. No, because a lawyer should not publicly comment on candidates for judicial office.
2. Yes, because Beta believed Alpha was unsuited for the bench.
3. No, because the remarks serve to bring the judiciary into disrepute.
4. Yes, because Beta was not seeking judicial office.
Attorney has been representing Client in a matter in litigation. During protracted pretrial proceedings, Client complained bitterly about the time and expense involved and insisted that Attorney take steps to terminate the pretrial proceedings. Attorney believes that to do so would jeopardize Client's interests and has so informed Client. Attorney believes that the case cannot be adequately prepared for trial without further pretrial proceedings that will require an additional six months' delay and involve further expense. Client insists that Attorney forego any further pretrial proceedings and set the case for trial at the earliest available date. There are several other competent lawyers who are willing to undertake the representation. Is it proper for Attorney to ask leave of the court to withdraw.'?
1. No, because Attorney must follow Client's instructions.
2. No, unless Client consents to Attorney's withdrawal.
3. Yes, because Client's conduct makes it unreasonably difficult for Attorney to represent Client effectively and competently.
4. Yes, because a lawyer may discontinue representation in a civil case at any time before trial.
The judicial district in which Judge sits has a rule that allows litigants two postponements as a matter of right. After that, a litigant who moves for a postponement must convince the presiding judge that a postponement is appropriate. Judge routinely grants additional postponements because, in her view, "What harm is done if one of the litigants wants a postponement? The worst that can happen is that the parties have more time to negotiate and thus are more likely to settle." Are Judge's actions proper?
1. Yes, because Judge is exercising her judicial discretion.
2. No, because Judge should expedite the determination of matters before her.
3. No, because judges have no official obligation to encourage private settlements.
4. Yes, because a party objecting to a postponement can seek appellate review.
Two years ago, Attorney was employed by State's Department of Transportation (DOT) to search title to several tracts of land. Attorney has not been employed by DOT during the last year. Recently, DOT instituted proceedings to condemn a tract, owned by Owner, for a new highway route. Owner asked Attorney to represent her in obtaining the highest amount of compensation for the condemnation. Owner's tract is one of the tracts on which Attorney searched title two years ago. Attorney remembers that Engineer, a DOT engineer, once drafted a confidential memorandum advising against running a new highway across Owner's land because of potential adverse environmental impact. Because of this information, Attorney believes it is possible to prevent the condemnation of Owner's land or to increase the settlement amount. It is proper for Attorney to:
1. Represent Owner on the issue of damages only and not disclose the information that might prevent the condemnation.
2. Represent Owner and attempt to prevent the condemnation by using the information about the adverse environmental impact.
3. Refuse to represent Owner and not disclose the information about the adverse environmental impact.
4. Refuse to represent Owner but disclose to Owner the information about the adverse environmental impact.
Attorney, who had represented Testator for many years, prepared Testator's will and acted as one of the two subscribing witnesses to its execution. Testator's sister and brother were his sole heirs. The will left Testator's entire estate to his sister and nothing to his brother. Upon Testator's death two years later, Executor, the executor named in the will, asked Attorney to act as his lawyer in the probate of the will and the administration of the estate. At that time, Executor informed Attorney that Testator's brother would concede that the will was properly executed but intended to contest the will on the ground that he had been excluded because of fraud previously practiced on Testator by Testator's sister. The other subscribing witness to the will predeceased Testator, and Attorney will be called as a witness solely for the purpose of establishing the due execution of the will. Is it proper for Attorney to accept the representation?
1. No, unless Attorney's services are necessary to avoid substantial hardship to Executor.
2. No, because Attorney will be called as a witness in the case.
3. Yes, because Executor has no beneficial interest under the will.
4. Yes, if there is no contested issue of fact with respect to the formal execution of the will.
Attorney has been retained to defend an adult charged with a sex offense involving a minor. Attorney believes that, in order to win the case, she must keep parents of minor children off the jury. Attorney instructed her investigator as follows: "Visit the neighborhood of those prospective jurors on the panel with minor children. Ask the neighbors if they know of any kind of unusual sex activity of the prospective juror or any member of the family. This talk will get back to the prospective jurors, and they will think of excuses not to serve. But don't under any circumstances talk directly with any prospective juror or member of the family." Is Attorney subject to discipline for so instructing her investigator?
1. No, because no prospective juror was directly contacted.
2. Yes, because the investigation is intended to harass prospective jurors and members of their families.
3. Yes, unless the prospective jurors investigated are, in fact, selected to serve on the jury in the case.
4. No, if the matters inquired into might be relevant to a prospective juror's qualifications to serve in the case.
Attorney prepared a will for Client and acted as one of the subscribing witnesses to Client's execution of the will. The will left all of Client's estate to Son, Client's son. Later, at Client's request, Attorney prepared a second will for Client and acted as one of the subscribing witnesses to Client's execution of the second will. The second will left one-half of Client's estate to Son and the other one-half to Housekeeper, Client's housekeeper. Client died and Housekeeper has offered the second will for probate. If Son requests Attorney to represent him in opposing probate of the second will on the grounds of fraud and undue influence, is it proper for Attorney to do so?
1. Yes, because after Client's death Attorney may represent Son.
2. No, because Attorney would be taking a position adverse to a will she prepared and witnessed.
3. Yes, because Son is a beneficiary under both wills.
4. No, because an attorney guarantees the validity of a will that he or she prepares.
Attorney represented Plaintiff in an action against several defendants. The retainer agreement provided that Plaintiff would pay all costs and expenses of litigation and would, on demand, reimburse Attorney for any costs or expenses advanced by Attorney. After serving process on two defendants, Attorney had difficulty locating and serving the remaining defendants. Plaintiff approved the hiring of an investigator to locate and serve the defendants, and Attorney advanced the costs for the investigator. When Attorney asked Plaintiff for reimbursement, Plaintiff refused to pay. Attorney then told Plaintiff that Attorney would do no more work on the case until Attorney was reimbursed for the amount advanced. Thereafter, one of the defendants filed a counterclaim that required a responsive pleading within thirty days. Because Attorney had not been paid, Attorney permitted the time to respond to the counterclaim to expire without filing a responsive pleading, and a default was entered on the counterclaim. Later, Plaintiff reimbursed Attorney for the costs Attorney had advanced, and Attorney was successful in having the default on the counterclaim set aside. The case was tried, and Plaintiff prevailed on Plaintiff's complaint, and the counter claimant recovered nothing. Is Attorney subject to discipline for not initially filing a responsive pleading to the counterclaim?
1. Yes, unless Attorney had asked leave of court to withdraw.
2. Yes, because Attorney neglected Plaintiff's cause.
3. No, because Plaintiff breached the agreement to reimburse Attorney.
4. No, because Plaintiff did not sustain any prejudice as a result of Attorney's action.
Judge, prior to her recent appointment to the federal court, had been an outspoken and effective opponent of the racial segregation policies of Gov, a foreign country. As part of its worldwide tour, Gov's national soccer team scheduled a soccer match with a team in this country. Several civil rights groups have applied to Judge for an order enjoining the playing of the proposed match. The matter is now pending. Only legal issues are presented. Judge, after painstaking consideration, has privately concluded that she cannot decide the legal questions without bias against the representatives of Gov's government. However, no one has made a motion to disqualify Judge. Must Judge recuse herself in the pending matter?
1. No, because the only issues presented for decision are legal questions.
2. No, because none of the interested parties has moved to disqualify Judge.
3. Yes, because Judge believes that she cannot be impartial.
4. Yes, unless Judge believes she has greater expertise than other judges on the court in legal issues involving racial segregation.
Client telephoned Attorney, who had previously represented Client. Client described a problem on which he needed advice and made an appointment for the following week to discuss the matter with Attorney. Prior to the appointment, Attorney performed 5 hours of preliminary research on Client's problem. At the end of the appointment, Client agreed that Attorney should pursue the matter, agreed to a fee of $100 per hour, and gave Attorney a check for $5,000 to cover the 5 hours already worked and as an advance on further fees and expenses. Attorney gave the check to the office bookkeeper with the directions to "Deposit the check in the Clients' Trust Account and immediately transfer $3,000 to our General Office Account to cover the 5 hours of research already conducted plus the 25 additional hours I'll spend on it next week." At that time, Attorney reasonably believed that Attorney would spend 25 additional hours on the case. The bookkeeper followed these directions. The next week, Attorney worked diligently on the matter for 23 hours. Reasonably believing that no significant work remained to be done on the matter, Attorney directed the bookkeeper to transfer $200 from the General Office Account to the Clients' Trust Account. Attorney then called Client and made an appointment to discuss the status of the matter. Is Attorney subject to discipline?
1. Yes, because Attorney accepted legal fees in advance of performing the work.
2. Yes, because Attorney transferred funds for unearned fees to the General Office Account.
3. No, because Attorney reasonably believed that Attorney would spend 25 additional hours on the case.
4. No, because Attorney transferred the $200 owed to Client from the General Office Account to the Clients' Trust Account.
Candidate, a member of the bar, is a candidate for judicial office in an election. Candidate personally asked several of his friends to contribute $1,000 each to kick off his campaign. After Candidate's friends made the contributions, Candidate, who was elated by the support, formed a committee to collect more contributions. Candidate then turned over the contributions to the committee and began campaigning in earnest, Is Candidate subject to discipline?
1. No, unless the committee includes lawyers likely to practice before Candidate.
2. Yes, because Candidate personally solicited funds.
3. Yes, unless none of the original contributors was a lawyer.
4. No, because Candidate turned over the funds to his committee.
Judge Alpha has recently resigned from the state trial court bench. While she was a judge and supervising activity in cases pending before Judge Beta, who was on vacation, Alpha entered an administrative order changing the courtroom in which the case of Able v. Baker was to be tried. After trial and appeal, the case was remanded for a new trial. The plaintiff in Able v. Baker has now decided to change lawyers and has asked Alpha to try the case. Will Alpha be subject to discipline if she tries this case on behalf of the plaintiff?.
1. Yes, because Alpha would try the case before a judge of the court on which Alpha previously sat.
2. No, because Alpha did not act as a judge with respect to a substantial matter or on the merits of the case.
3. Yes, because Alpha acted officially as a judge with respect to an aspect of the case.
4. No, because any information that Alpha learned about the case while acting as a judge was a matter of public record.
Although licensed to practice law in State, Attorney Alpha does not practice law but works as an investment broker. Alpha could have elected inactive status as a member of the bar, but chose not to do so. Recently, in connection with a sale of worthless securities, Alpha made materially false representations to Victim, an investment customer. Victim sued Alpha for civil fraud, and a jury returned a verdict in Victim's favor_ Alpha did not appeal. Is Alpha subject to discipline?
1. Yes, because Alpha was pursuing a non-legal occupation while an active member of the bar.
2. No, because Alpha was not convicted of a crime.
3. Yes, because Alpha's conduct was fraudulent.
4. No, unless the standard of proof in State is the same in lawyer disciplinary cases and civil cases.
Client was an experienced oil and gas developer. Client asked Attorney for representation in a suit to establish Client's ownership of certain oil and gas royalties. Client did not have available the necessary funds to pay Attorney's reasonable hourly rate for undertaking the case. Client proposed instead to pay Attorney an amount in cash equal to 20% of the value of the proceeds received from the first year royalties Client might recover as a result of the suit. Attorney accepted the proposal and took the case. Is Attorney subject to discipline?
1. No, because Client rather than Attorney proposed the fee arrangement.
2. Yes, unless the fee Attorney receives does not exceed that which Attorney would have received by charging a reasonable hourly fate.
3. Yes, because the agreement gave Attorney a proprietary interest in Client's cause of action.
4. No, because Attorney may contract with Client for a reasonable contingent fee.
Attorney has been hired by Client to represent Client in a civil commitment proceeding initiated by the state. Client is now undergoing psychiatric evaluation to determine whether civil commitment should be ordered. Client told Attorney that Client intends to commit suicide as soon as the tests are completed, and Attorney believes that Client will carry out this threat. Suicide and attempted suicide are crimes in the state. Is it proper for Attorney to disclose Client's intentions to the authorities?
1. No, unless Attorney knows that client has attempted suicide in the past.
2. Yes, because the information concerns a future crime that is likely to result in Client's imminent death.
3. Yes, because the information concerns a future crime and is not protected by the attorney-client evidentiary privilege.
4. No, because disclosure would aid the state in its civil commitment case against Client.
Attorney is a long-time member of the state legislature and serves on the legislative budget committee that funds the local trial courts in the state. Attorney also maintains a part-time law practice as is permitted in the state. Able, an influential businessperson who regularly makes significant contributions to Attorney's political campaigns, asked Attorney to help Able's uncle, Baker, who was involved in a bitter divorce. Attorney called the trial judge sitting on Baker's case, a personal friend of Attorney. In discussing some upcoming votes of the budget committee with the judge, Attorney mentioned that Baker was the type of solid citizen and influential person who could help garner support for the budget and thus ensure the economic health of the judicial system. Is Attorney subject to discipline?
1. Yes, if the trial judge ruled in Baker's favor.
2. Yes, because Attorney used her public position to attempt to influence a tribunal in a pending matter.
3. No, if Attorney called the trial judge in her capacity as a legislator and not as Baker's lawyer.
4. No, because members of the state legislature are permitted by law to engage in part-time legal practice.
Attorney agreed to represent Able, a client, in bringing a lawsuit. Attorney and Able executed Attorney's preprinted retainer form that provides, in part: "The client agrees to pay promptly Attorney's fees for services, in addition, the client and Attorney agree to release each other from any and all liability arising from the representation. The client agrees that Attorney need not-return the client's file prior to receiving the client's executed release. Attorney agrees to return the client's file promptly upon receipt of all fees owed and of the client's executed release." During their initial meeting, Attorney recommended that Able consult independent counsel before signing the retainer agreement, but Able chose not to do so. Attorney reasonably believes that his fee is fair and that the quality of his work will be competent. Is Attorney's retainer agreement with Able proper?
1. Yes, because Attorney furnished consideration by agreeing to release Able from liability and to return Able's files.
2. Yes, because Attorney reasonably believes that his fee is fair and that the quality of his work will be competent.
3. No, because Attorney is attempting to limit prospectively his liability for malpractice.
4. No, because Attorney uses a preprinted form for all retainers.
Attorney represents Corp, a defendant in a product liability case. Engineer, a Corp employee nearing retirement, was likely to be a key witness in the case, as she had been in charge of all of Corp's product safety testing during the relevant period. Engineer had been very critical of Corp's safety testing procedures during that period and had repeatedly complained that the product at issue had not been adequately tested. Engineer's views were reduced to writing and were well known to many employees of Corp. Because of the early stage of the case, however, plaintiff's counsel was not yet aware of Engineer's existence or her views. Aware of Engineer's views, Attorney approached Corp's officials and recommended that it offer Engineer a special package of severance benefits if she would retire immediately and move to the Bahamas. Attorney believed that if Engineer accepted this offer, she would be beyond the subpoena power of the court in which the suit against Corp was pending. Corp adopted Attorney's recommendation and made the offer. Engineer accepted it. Attorney did not disclose Engineer's identity to plaintiff's counsel. Is Attorney subject to discipline?
1. No, because Engineer's views were reduced to writing and are well known to many other employees of Corp,
2. No, unless there was a pending request for Engineer's testimony at the time the retirement offer was made to Engineer.
3. Yes, because opposing counsel had not yet had a reasonable opportunity to learn of Engineer's views.
4. Yes, because Attorney caused Engineer to leave the jurisdiction of the court for the purpose of making her unavailable as a witness.
Attorney represented Client in a personal injury action against the driver of the car in which Client was injured while a passenger. The personal injury action was settled, and Attorney received a check in the amount of $10,000 payable to Attorney. Attorney deposited the check in her Clients' Trust Account. One day later, Attorney received a letter from Bank, which had heard of the settlement of the personal injury lawsuit. Bank informed Attorney that Client had failed to make his monthly mortgage payments for the last three months and demanded that Attorney immediately release $900 of the proceeds of the settlement to Bank or Bank would institute mortgage foreclosure proceedings against Client. Attorney informed Client of Bank's letter. Client responded: "I don't care what Bank does. The property is essentially worthless, so let Bank foreclose. If Bank wants to sue me, I'll be easy enough to find. I don't think they'll even bother. You just take your legal fees and turn the rest of the proceeds over to me." Is Attorney subject to discipline if she follows Client's instructions?
1. Yes, if Client does not dispute the $900 debt to Bank.
2. Yes, because Attorney knew that client was planning to force Bank to sue him.
3. No, unless Attorney had reason to believe that Client would not have sufficient funds to pay any subsequent judgment obtained by Bank.
4. No, because Bank has no established fight to the specific proceeds of Client's personal injury judgment.
Three lawyers, Alpha, Beta, and Delta, formed a partnership to practice law with offices in both State First and State Second. Alpha is admitted to practice only in State First. Beta is admitted to practice only in State Second, and Delta is admitted to practice in both States First and Second. The following letterhead is on stationery used by their offices in both states: Alpha, Beta, and Delta Attorneys at Law/100 State Street City, State First (200) 555-5555/200 Bank Building City, State Second (202) 555-5555/Attorney Alpha Admitted to practice only in State First. Attorney Beta Admitted to practice only in State Second/Attorney Delta Admitted to practice in States First and Second. Are the members of the partnership subject to discipline?
1. Yes, unless Delta actively practices law in both States First and Second.
2. Yes, because there is no jurisdiction in which both Alpha and Beta are admitted to practice.
3. No, because the letterhead states the jurisdictions in which each partner is admitted.
4. Yes, because the firm name used by each office contains the name of a lawyer not admitted to practice in that jurisdiction.
Attorney was engaged under a general retainer agreement to represent Corp, a corporation involved in the uranium industry. Under the agreement, Attorney handled all of Corp's legal work, which typically involved regulatory issues and litigation. Corp told Attorney that a congressional committee was holding hearings concerning the extent of regulation in the copper industry. Because Corp was considering buying a copper mine during the next fiscal year, Corp wanted Attorney to testify that the industry was over-regulated. Attorney subsequently testified before the relevant congressional committee. Attorney registered his appearance under his own name and did not disclose that he was appearing on behalf of a client. Afterward, Attorney billed Corp for fees and expenses related to his testimony. Was Attorney's conduct proper?
1. No, because Attorney accepted compensation in return for his testimony.
2. Yes, because the duty of confidentiality prevented Attorney from disclosing the identity of his client.
3. Yes, because the attorney-client evidentiary privilege prevented disclosure of the identity of his client in this context.
4. No, because Attorney failed to disclose that he was appearing and testifying in a representative capacity.
Judge is one of three trustees of a trust for the educational benefit of her grandchildren. The trust owns 5,000 shares of stock in Big Oil Company. The stock has been selling for the past year at $10 per share. Big Oil is suing Oil Refining Company for breach of an oil refining agreement, and the case is assigned to Judge for trial. Judge believes that she can be fair and impartial. Must Judge disqualify herself from the case?
1. Yes, unless the outcome of the lawsuit is unlikely to affect the value of the stock.
2. No, because Judge believes she can remain impartial.
3. No, unless Judge personally owns stock in either party to the litigation.
4. Yes, because the trust has more than a de minimus financial interest in Big Oil Company.
For many years, Attorney has served as outside counsel to Corp, a corporation. Shortly after a change in management, Attorney discovered what she reasonably believed to be a material misstatement in a document she had drafted that Attorney was about to file on Corp's behalf with a government agency. Attorney advised Corp's Board of Directors that filing the document was probably criminal. However, the Board disagreed that there was any material misstatement and directed Attorney to proceed with the filing. When Attorney indicated her intention to resign, Corp argued that a resignation at this time would send a signal that there was a problem with the filing. Corp urged Attorney to continue the representation, but offered to use in house counsel to complete the work on the filing. Although she does not know for certain that filing the document is illegal, Attorney reasonably believes that it is. In any event, Attorney is personally uncomfortable with the representation and wants to withdraw. May Attorney withdraw from her representation of Corp?
1. No, if Attorney's withdrawal as outside counsel might affect Corp's ability to complete the filing in a timely fashion.
2. No, if Corp is correct that withdrawal would breach confidentiality by sending a signal that the filing is problematic.
3. Yes, because withdrawal is required when a client insists on conduct which the lawyer reasonably believes, but does not know, will be criminal.
4. Yes, because withdrawal is permitted but not required when a client insists on conduct which the lawyer reasonably believes, but does not know, will be criminal.
Attorney represented Client on a minor personal injury claim against Driver, an uninsured motorist. Attorney represented Client on a 30% contingent fee basis. Pursuant to a negotiated settlement in the amount of $2,000, Driver agreed to send Attorney a $100 check, made payable to Attorney, in each of the ensuing twenty months. Which of the following dispositions of each monthly check would be proper for Attorney? I. Deposit the check into her office account and immediately write Client a check for $70 from that account. II. Deposit the check into a separate account established for Client and immediately request Client to pay Attorney $30. III. Deposit the check into a trust account in which funds belonging to all Attorney's clients are deposited and immediately write Client a check for $70 and herself a check for $30 from that account.
1. II only
2. III only
3. I and II, but not III
4. II and III, but not I
Attorney Alpha, a partner in the law firm of Alpha & Beta, was retained by Plaint, the plaintiff in a personal injury action against Deft. The jury rendered a verdict in favor of Deft, and Alpha filed an appeal on Plaint's behalf. Alpha reviewed the trial transcript and wrote the brief. The brief stated, "It is uncontroverted that Deft failed to signal before turning left into the intersection." In fact, Wit, a witness called by Deft, testified that Deft did signal before turning. Alpha was aware of this testimony, having read it while reviewing the trial transcript. Three days before the appeal was scheduled to be argued in the state's intermediate appellate court, Alpha suffered a heart attack. Attorney Beta, one of Alpha's partners, agreed to argue the appeal. Beta knew nothing about the case and had no opportunity to confer with Alpha. In preparing for the argument, Beta read Alpha's brief thoroughly and read as much of the trial transcript as was possible in the limited time available, but did not read Wit's testimony. In oral argument, Beta stated to the court, "Your honors, as stated in our brief, it is uncontroverted that Deft failed to signal before turning left into the intersection." Beta assumed that Alpha's statement in the brief to that effect was correct. Is Beta subject to discipline for making this statement during oral argument?
1. Yes, because Beta did not know whether or not the statement was true.
2. No, because all Beta did was to truthfully recount the statement made by Alpha in the brief.
3. No, because Beta did not know that the statement was false.
4. Yes, because the statement was false.
Judge needed to obtain a loan to be secured by a second mortgage on his house. Bank offered him a loan at a very favorable interest rate. The vice-president at Bank told Judge: "Frankly, we normally don't give such a large loan when the security is a second mortgage, and your interest rate will be 2% less than we charge our other customers. But we know that your salary is inadequate, and we are giving you special consideration." Is it proper for Judge to accept the loan?
1. No, unless the same terms are available to all judges in the state.
2. Yes, if Judge does not act in any case involving Bank.
3. No, because the amount of the loan and interest rate were not available to persons who were not judges.
4. Yes, if Bank is not likely to be involved in litigation in the court on which Judge sits.
Law Firm has 300 lawyers in 10 states. It has placed the supervision of all routine administrative and financial matters in the hands of Admin, a nonlawyer. Admin is paid a regular monthly salary and a year-end bonus of 1% of Law Firm's net income from fees. Organizationally, Admin reports to Attorney, who is the managing partner of Law Finn. Attorney deals with all issues related to Law Firm's supervision of the practice of law. Is it proper for Attorney to participate in Law Firm's use of Admin's services in this fashion?
1. No, because Law Finn is assisting a nonlawyer in the unauthorized practice of law.
2. Yes, unless Admin has access to client files.
3. Yes, if Admin does not control the professional judgment of the lawyers in the firm.
4. No, because Law Firm is sharing legal fees with a nonlawyer.
Attorney experienced several instances when clients failed to pay their fees in a timely manner, but it was too late in the representation to withdraw without prejudicing the clients. To avoid a recurrence of this situation, Attorney has drafted a stipulation of consent to withdraw if fees are not paid according to the fee agreement. She proposes to have all clients sign the stipulation at the outset of the representation. Is it proper for Attorney to use the stipulation to withdraw from representation whenever a client fails to pay fees?
1. No, unless clients are provided an opportunity to seek independent legal advice before signing the stipulation.
2. No, because a client's failure to pay fees when due may be insufficient in itself to justify withdrawal.
3. Yes, because a lawyer may withdraw when the financial burden of continuing the representation would be substantially greater than the parties anticipated at the time of the fee agreement.
4. Yes, because the clients consented to the withdrawal in the stipulation.
Attorney was retained by Defendant to represent him in a paternity suit. Aunt, Defendant's aunt, believed the suit was unfounded and motivated by malice. Aunt sent Attorney a check for $1,000 and asked Attorney to apply it to the payment of Defendant's fee. Aunt told Attorney not to tell Defendant of the payment because "Defendant is too proud to accept gifts, but I know he really needs the money." Is it proper for Attorney to accept Aunt's check?
1. Yes, if Aunt does not attempt to influence Attorney's conduct of the case.
2. Yes, if Attorney's charges to Defendant are reduced accordingly.
3. No, unless Attorney first informs Defendant and obtains Defendant's consent to retain the payment.
4. No, because Aunt is attempting to finance litigation to which she is not a party
Attorney has a highly efficient staff of paraprofessional legal assistants, all of whom are graduates of recognized legal assistant educational programs. Recently, the statute of limitations ran against a claim of a client of Attorney's when a legal assistant negligently misplaced Client's file and suit was not filed within the time permitted by law. Which of the following correctly states Attorney's professional responsibility?
1. Attorney is subject to civil liability or is subject to discipline at Client's election.
2. Attorney is subject to civil liability but is NOT subject to discipline unless Attorney failed to supervise the legal assistant adequately.
3. Attorney is NOT subject to civil liability and is NOT subject to discipline if Attorney personally was not negligent.
4. Attorney is subject to civil liability and is also subject to discipline on the theory of respondent superior.
Attorney represented Plaint, who sued Deft for injuries Plaint sustained in a car accident. Prior to trial, Attorney interviewed Wit, who stated that she had observed Deft drinking heavily hours before the accident. Unfortunately, on the eve of trial, Wit informed Attorney that Wit was ill and could not testify at trial. Attorney tried but could not obtain a continuance. As a result, Plaint's direct case rested solely on Plaint's testimony that Deft was speeding and that Deft's car crossed the center line and hit Plaint's car. Deft testified that he was driving safely in compliance with all rules and that the accident was entirely Plaint's fault. On cross examination, Attorney asked Deft, "Isn't it a fact that you were drinking prior to the accident?" Deft answered that he had not consumed alcoholic beverages on the day of the accident. In summation to the jury, Attorney stated: "Ladies and gentlemen of the jury, you and I know that Deft lied when he stated that he had not consumed alcoholic beverages on the day of the accident. We know that he was impaired." On which of the following grounds, if any, is Attorney subject to discipline? I. Attorney's question to Deft implying that Deft had consumed alcoholic beverages when Attorney knew that he could not offer evidence of Deft's drinking. II. Attorney's statement to the jury asserting that Attorney knew that Deft was drank when no evidence in the record supported this allegation. III. Attorney's statement asserting a personal belief that Deft was drunk and lying.
1. I, Il, and III
2. Neither I, II, nor III
3. II and III, but not I
4. I and II, but not III
Pros, a prosecutor, was assigned to try a criminal case against Deft, who was charged with robbery of a convenience store. Deft denied any involvement, contending he was home watching television with his mother on the night in question. At the trial, Wit, a customer at the convenience store, testified that he had identified Deft in a police line-up and provided other testimony connecting Deft to the crime. In addition, Pros entered into evidence a poor-quality videotape of the robbery as recorded by the store surveillance camera. The jury convicted Deft of the crime charged. Unknown to Deft's court appointed lawyer, Wit had first identified another person in the police line-up and selected Deft only after encouragement by the detective. Pros was aware of these facts but did not notify Deft's counsel who made no pretrial discovery request to obtain this information. Is Pros subject to discipline?
1. No, unless it is likely that the jury would have acquitted Deft had it known that Wit first identified someone else.
2. Yes, unless the jury could make its own identification of Deft from the videotape.
3. Yes, because this information tended to negate Deft's guilt.
4. No, because Deft's counsel made no pretrial discovery request to obtain this information.
Attorney and Client entered into a written retainer and hourly fee agreement that required Client to pay $5,000 in advance of any services rendered by Attorney and which required Attorney to return any portion of the $5,000 that was not earned. The agreement further provided that Attorney would render monthly statements and withdraw her fees as billed. The agreement was silent as to whether the $5,000 advance was to be deposited in Attorney's Clients' Trust Account or in a general account. Attorney deposited the entire fund in her Clients' Trust Account, which also contained the funds of other persons which had been entrusted to Attorney. Thereafter, Attorney rendered monthly progress reports and statements for services to Client after services were rendered, showing the balance of Client's fee advance. However, Attorney did not withdraw any of the $5,000 advance until one year later when the matter was concluded to Client's complete satisfaction. At that time, Attorney had billed Client reasonable legal fees of $4,500. Attorney wrote two checks on her Clients' Trust Account: one to herself for $4,500, which she deposited in her general office account, and one for $500 to Client. Was Attorney's conduct proper?
1. Yes, because Attorney rendered periodic and accurate billings.
2. No, because Attorney required all advanced payment against her fee.
3. Yes, because Attorney deposited the funds in her Clients' Trust Account.
4. No, because Attorney's failure to withdraw her fees as billed resulted in an impermissible commingling of her funds and Client's funds.
Attorney Alpha, a member of the bar, placed a printed flyer in the booth of each artist exhibiting works at a county fair. The face of the flyer contained the following information: "I, Alpha, am an attorney, with offices in 800 Bank Building, telephone (555) 555-5555. I have a J.D. degree from State Law School and an M.A. degree in fine arts from State University. My practice includes representing artists in negotiating contracts between artists and dealers and protecting artists' interests. You can find me in the van parked at the fair entrance." All factual information on the face of the flyer was correct. There was a retainer agreement on the back of the flyer. At the entrance to the fair, Alpha parked a van with a sign that read "Alpha-Attorney at Law." For which, if any, of the following is Alpha subject to discipline? I. Placing copies of the flyer in the booth of each artist. Il. Including a retainer agreement on the back of the flyer. III. Parking the van with the sign on it at the fair entrance.
1. III only
2. I and II, but not III
3. I, II, and III
4. Neither I, II, nor III
Attorneys Alpha and Beta had been political opponents. Alpha was elected to the state legislature after a bitter race in which Beta had managed the campaign of Alpha's opponent. Alpha had publicly blamed Beta at that time for what Alpha reasonably believed were illegal and unethical campaign practices and later had publicly objected to Beta's appointment as a judge. Alpha represented Client in a widely publicized case tried in Judge Beta's court. At the conclusion of the trial, Beta ruled against Alpha's client. Alpha then held a press conference and said, "All that you reporters have to do is check your files and you will know what I think about Judge Beta's character and fitness." Is Alpha subject to discipline for making this statement?
1. Yes, because Alpha's past accusations were unrelated to Beta's legal knowledge.
2. No, if Beta had equal access to the press.
3. No, because Alpha reasonably believed that the statements about Beta were true.
4. Yes, if Alpha's statement might lessen confidence in the legal system.
Judge, a judge in a criminal trial court of State, wishes to serve as guardian of her father, who has been declared incompetent. Accepting the responsibilities of the position would not interfere with the performance of Judge's official duties. Although the position in all likelihood would not involve contested litigation, it would be necessary for Judge to prepare and sign various pleadings, motions, and other papers and to appear in civil court on her father's behalf. Would it be proper for Judge to undertake this guardianship?
1. No, because the position will require Judge to prepare and sign pleadings, motions, and other papers.
2. Yes, because the position involves a close family member and will not interfere with Judge's performance of her judicial duties.
3. Yes, unless Judge receives compensation for her services as guardian.
4. No, because the position will require Judge to appear in court.
Client hired Attorney Alpha to file a lawsuit against Client's former employer, Corp. for wrongful discharge. Alpha filed the suit in federal district court based upon three grounds. It turned out that a unanimous U.S. Supreme Court decision had recently eliminated the third ground as a theory available to plaintiffs in wrongful discharge cases. Attorney Beta, who represents Corp. filed a motion alleging that the complaint was based upon a theory (the third ground) that is no longer supported by existing law and cited the new decision. Within ten days after the filing of the complaint, Alpha withdrew the third ground and continued with the litigation. Is Alpha subject to litigation sanction?
1. Yes, because Alpha should have cited the U.S. Supreme Court decision in the complaint.
2. Yes, unless Alpha discussed the adverse legal authority with Client before filing the complaint.
3. No, because Alpha withdrew the third ground within ten days after filing the complaint.
4. No, unless Alpha knew or should have known of the recent decision when the complaint was filed.

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