Material Covered in Assignment 6-1 I. DUTIES TO THE COURT AND OTHER TRIBUNALS (p. 530) A. Meritorious Claims (p. 530), Q. 6-1 to 6-2 Rules 1.2; 1.16;

1

Material Covered in Assignment 6-1

I. DUTIES TO THE COURT AND OTHER TRIBUNALS (p. 530)

A. Meritorious Claims (p. 530), Q. 6-1 to 6-2 Rules 1.2; 1.16; 3.1; 3.3; FRCP 11

B. False Testimony and Evidence (p. 532), Q. 6-3 to 6-6 Rule 3.3 Contrast the lawyer’s obligation re the law and obligations

re facts: 3.3(a)(1)and (2)

C. Argument (p. 544), Q. 6-7 Rules 3.1; 3.3; 3.4

2

Question 6-1 (p. 530)

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 sanctions?

Terry addition: Would this be a violation of Rule 3.3(a)(2)?

3


An attorney is employed in the legal department of a public utility and represents that company in litigation. The company has been sued by a consumer group that has accused the company of various acts in violation of its charter. Through its generalcounsel, the company has instructed the attorney not to negotiate a settlement but to go to trial under any circumstances because a precedent needs to be established. The attorney believes the defense can be supported by a good faith argument, but also believes the case should be settled if possible.

Must the attorney withdraw as counsel in this case?

4

Topic I(C): Duties to the Court - Argument


Deft was on trial for the murder of Victim, who was killed during a barroom brawl. In the course of closing arguments to the jury, Prosecutor said, "Deft's whole defense is based on the testimony of Wit, who said that Victim attacked Deft with a knife before Deft struck him. No other witness testified to such an attack by Victim. I don't believe Wit was telling the truth, and I don't think you believe him either."

Was Prosecutor's statement proper?

What about the Hypos on pages 545-546?

5

Material Covered in Assignment 6-2 I.DUTIES TO THE COURT AND OTHER TRIBUNALS (cont.)(p. 546)

B. False Testimony and Evidence (p. 532), continue Q. 6-3 & 6-4 to 6-6 Rule 3.3

D. Witnesses (p. 546), Q. 6-8 to 6-9 [including payment & “Perry Mason” issues]

Rule 3.4; Restatement § 117

E. Improper Communication with Judges and Jurors (p. 550), Q. 6-9 to 6-11 Rules 3.3(d); 3.5; 8.4(a); DR 7-108 (supp. P. 641)[Terry addition]; Restatement §113

F. Non-Adjudicative Proceeding (p. 552), Q. 6-12, Rule 3.9

G. Stating or Implying Improper Influence (p. 552), Q. 6-13; Rule 8.4

H. Trial Publicity (p. 553), Q. 6-14 Rule 3.6 [See p. 561 box re SCOTUS Gentile case, p. 569 re Nifong, & p.572 re DAs; skip Cutler & Gansler ]

I. Reporting Judicial Misconduct; Criticism of Judges (p. 574) , Q. 6-15 to 6-16

Rules 8.2; 8.3 [skip Holtzman, Yagman & Soares ]

J. Decorum and Obedience to Court Rulings (p. 589) Rule 3.5(d) [skip Kunstler & Jones]

6


An attorney represented a client who was injured when the television antenna he was attempting to erect in his yard came in contact with a power line. As part of its defense, the manufacturer of the antenna claimed that the antenna came with a warning label advising against erecting the antenna near power lines. The client told the attorney that he had not seen a warning label. The client's wife told the attorney that she had kept the antenna and the box it came in and that she saw no warning label anywhere. When called by the attorney as witnesses, both the client and his wife testified that they had never seen a warning label. After their testimony, but while the trial was still in progress, the attorney learned from the wife's sister that there indeed had been a warning label on the box, but that the wife had removed and destroyed it. When the attorney confronted the wife with her sister's statement, the wife admitted destroying the label but insisted that her husband knew nothing about it. The attorney continued the trial, but made no reference to the absence of a warning label in his summation to the jury. Instead, the attorney argued that the warning label, even if seen, was insufficient to advise his client of the serious consequences that would ensure if the warning was not heeded. The jury found in favor of the manufacturer.

Is the attorney subject to discipline?

7

Why is #2 a better answer than #1?

1. Yes, because the attorney called the wife as a witness and she gave perjured testimony.

2. Yes, because the attorney failed to take reasonable remedial action after he realized that the wife had given perjured testimony.

8


Attorney Alpha represents Def in a murder prosecution. Def admits to Alpha that he killed the victim but claims that he acted in self-defense. Based on other conversations with Def, Alpha reasonably believes that Alpha committed the murder but is lying about acting in self-defense. Def wants to testify at trial to explain his claim of self-defense. Under the Rules, Alpha:

1) must permit Def to testify.

2) must refuse to allow Def to testify.

3) has discretion to permit Def to testify.

4) has discretion to permit Def to testify but only if he limits Def's testimony to a narrative statement.

9


Assume the facts of Question 5 above. Attorney Alpha tells Def that if Def testifies that he acted in self-defense Alpha will inform the judge the Def has committed perjury. Def decides not to testify because of Alpha's threat.

Does Def have a claim of ineffective assistance of counsel?

10

Anatomy of a Murder

Has Jimmy Stewart violated Rule 3.4(b)?

11


An attorney represented the plaintiff in an automobile accident case. Two weeks before the date set for trial, the attorney discovered that there was an eyewitness to the accident. The attorney interviewed the witness. Her version of the accident was contrary to that of the plaintiff and, if believed by the trier of fact, would establish that the plaintiff was at fault. The witness told the attorney that she had not been interviewed by defense counsel. The witness also told the attorney that she was uncomfortable with testifying and that she had been thinking about taking a vacation to Europe the following week. The attorney told the witness that, since no one had subpoenaed her yet, she had no obligation to appear. He told her that trials were very difficult for witnesses and suggested that she take the vacation so that she would be unavailable to testify.


12


Attorney represents Client, a plaintiff in a personal injury action. Wit was an eyewitness to the accident. Wit lives about 500 miles distant from the city where the case will be tried. Attorney interviewed Wit and determined that Wit's testimony would be favorable for Client. Wit asked Attorney to pay Wit, in addition to the statutory witness fees while attending the trial, the following:

I. Reimbursement for actual travel expenses while attending the trial.

II. Reimbursement for lost wages while present at the trial. III. An amount equal to 5% of any recovery in the matter.

If Attorney agrees to pay Wit the above, for which, if any, is Attorney subject to discipline?

o III onlyo II and III, but not Io I, II, and IIIo Neither I, II, nor III

13


After both parties had completed the presentation of evidence and arguments, the judge took under advisement a case tried without a jury. The case involved a difficult fact issue of causation and a difficult issue of law. After the case was under advisement for several weeks, the plaintiff's attorney heard rumors that the judge was having difficulty determining the issue of factual causation and was uncertain about the applicable law. Immediately after hearing these rumors, the attorney telephoned the judge, told her of the rumors he had heard, and asked the judge if she would like to reopen the case for additional evidence and briefing from both parties. Thereafter the judge reopened the case for further testimony and requested supplementary briefs from both parties. Was it proper for the attorney to communicate with the judge?

14


An attorney represented a man in a case set for a jury trial. After the list of potential jurors was made available, the attorney hired a private investigator to interview the potential jurors and their family members concerning their relevant past experiences related to the subject matter of the action. The investigator did not inform the jurors or their family members that he was working on behalf of the attorney. The interviews were entirely voluntary and were not harassing. The attorney did not provide the report of the interviews to opposing counsel. He used the report to make decisions regarding jury selection.


15


An attorney is a well-known tax lawyer and author. During congressional hearings on tax reform, the attorney testified to her personal belief and expert opinion on the pending reform package. She failed to disclose in her testimony that she was being compensated by a private client for her appearance. In her testimony, the attorney took the position favored by her client, but the position was also one that the attorney believed was in the public interest.

Was it proper for the attorney to present this testimony without identifying her private client?

16


Attorney is a well-known, highly skilled litigator. Attorney's practice is in an area of law in which the trial proceedings are heard by the court without a jury. In an interview with a prospective client, Attorney said, "I make certain that I give the campaign committee of every candidate for elective judicial office more money than any other lawyer gives, whether it's $500 or $5,000. Judges know who helped them get elected." The prospective client did not retain Attorney.

Is Attorney subject to discipline?

17

Question 6-14 (p. 553) 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 the 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.”

o II onlyo III onlyo I and III, but not IIo I, II, and III

18

Gentile v. State Bar of Nevada [CB p. 561]

• Gentile holds a press conference stating that “the evidence demonstrated his client’s innocence,” that the likely culprit was a police detective, and that “other victims were not credible.”

• Nevada disciplines him for violation of NV Rule 3.6• The U.S. Supreme Court upholds the Nevada rule,

which was substantially similar to Rule 3.6 but limits it to “attorney[] speech that will have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” [test to memorize]

• That was not demonstrated here and, as applied, Nevada rule was void for vagueness.

http://web.law.duke.edu/voices/gentile

19

Question 6-15 (p. 574) An attorney regularly appears before a trial court judge who is running

for reelection in six months. Over the past year, the attorney had noticed that the judge has become increasingly ill tempered on the bench. Not only is the judge abrupt and critical of lawyers appearing before him, he is also rude and abusive to litigants. On more than one occasion, the judge has thrown his gavel across the courtroom in a fit of temper. The judge's conduct on the bench is often the subject of discussion whenever a group of lawyers meets. Some lawyers are automatically filing requests for judicial substitution whenever a case in which they are to appear is assigned to the judge. The attorney discussed the matter with her law partners, who rarely make court appearances. The attorney's law partners suggested that she, too, file a request for judicial substitution whenever one of her cases is assigned to the judge. In addition, the attorney and her law partners discussed the possibility of reporting to the judge to the appropriate disciplinary authority but are concerned that this would alienate the other judges to whom their cases are assigned. The attorney has reluctantly started filing for substitution of the judge in every one of her cases to which the judge is assigned but she has taken no further action.


20


An attorney practices law in the same community as a lawyer who is running for election as a state judge. The attorney has frequently observed the judicial candidate's courtroom demeanor in litigated cases. Based on those experiences, the attorney believes that the judicial candidate does not have a proper judicial temperament. A local news reporter asked the attorney how he would rate the candidate, and the attorney responded in good faith that he believed the candidate was unsuited for the bench and lacked the proper judicial temperament for a judge. A local newspaper with a wide circulation quoted the attorney's remarks.

Were the attorney's remarks proper?

21

Material Covered in Assignment 6-3

I. DUTIES to TRIBUNAL Leftovers: Gentile clip (3.6); 8.2 & 8.3

II. DUTIES TO THIRD PARTIES AND THE LAW (p. 546)

A. Unrepresented Persons (p. 597), continue Q. 6-17 & 6-18

Rules 1.13(f); 4.3

B. Truthfulness (p. 599), Q. 6-19 to 6-20

Rule 4.1; Restatement § 117

C. Obedience to the Law (p. 550), Q. 21 to 6-24 (including prosecution threats)

Rules 1.1; 1.2(d); 1.6(b); 1.13; 1.16; 4.4(a); 5.1; and 5.2

D. Note: We skipped Q. 25 (Sarbanes Oxley [SOX] & Nat’l Sec.)

III(A) Communications w/a Represented Party (p. 636),Q. 6-26 to 6-27

Rule 4.2, 8.4(a)

22

Gentile v. State Bar of Nevada [CB p. 561]

• Gentile holds a press conference stating that “the evidence demonstrated his client’s innocence,” that the likely culprit was a police detective, and that “other victims were not credible.”

• Nevada disciplines him for violation of NV Rule 3.6• The U.S. Supreme Court upholds the Nevada rule,

which was substantially similar to Rule 3.6 but limits it to “attorney[] speech that will have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” [test to memorize]

• That was not demonstrated here and, as applied, Nevada rule was void for vagueness (ABA rule has since been amended). Note 3.6(c) “fix-it” provision.

http://web.law.duke.edu/voices/gentile

23

Question 6-15 (p. 574) An attorney regularly appears before a trial court judge who is running

for reelection in six months. Over the past year, the attorney had noticed that the judge has become increasingly ill tempered on the bench. Not only is the judge abrupt and critical of lawyers appearing before him, he is also rude and abusive to litigants. On more than one occasion, the judge has thrown his gavel across the courtroom in a fit of temper. The judge's conduct on the bench is often the subject of discussion whenever a group of lawyers meets. Some lawyers are automatically filing requests for judicial substitution whenever a case in which they are to appear is assigned to the judge. The attorney discussed the matter with her law partners, who rarely make court appearances. The attorney's law partners suggested that she, too, file a request for judicial substitution whenever one of her cases is assigned to the judge. In addition, the attorney and her law partners discussed the possibility of reporting to the judge to the appropriate disciplinary authority but are concerned that this would alienate the other judges to whom their cases are assigned. The attorney has reluctantly started filing for substitution of the judge in every one of her cases to which the judge is assigned but she has taken no further action.


24


An attorney practices law in the same community as a lawyer who is running for election as a state judge. The attorney has frequently observed the judicial candidate's courtroom demeanor in litigated cases. Based on those experiences, the attorney believes that the judicial candidate does not have a proper judicial temperament. A local news reporter asked the attorney how he would rate the candidate, and the attorney responded in good faith that he believed the candidate was unsuited for the bench and lacked the proper judicial temperament for a judge. A local newspaper with a wide circulation quoted the attorney's remarks.

Were the attorney's remarks proper?

25


An attorney represented a respondent in proceedings instituted by a child protection services agency to establish the paternity of a child and to recover past-due child support. The mother of the child had refused to file a complaint, had refused to retain a lawyer, and in fact had asked that the agency not file any action whatsoever. However, state law permitted the agency to commence paternity and support proceedings in its own name in such circumstances. The attorney contacted the mother without the knowledge or consent of the agency or its lawyers. The attorney identified himself to the mother as "an officer of the court" and told the mother that he was investigating the matter. Based upon what she told him, the attorney prepared and the mother signed an affidavit truthfully stating that the respondent was not the father of the child.


26


John Lawyer represents Larry Landlord in a nonpayment eviction suit against Thomas Tenant. At court, the case is called and Lawyer asks Tenant to step outside to talk. Tenant tells Lawyer he would like to pay his rent to Landlord but that for two months Landlord has refused to repair his broken refrigerator. Lawyer tells Tenant that he has a legal obligation to pay his rent and will be evicted if he doesn't do so. Lawyer does not advise Tenant that Tenant may have potential claims against Landlord under the warranty of habitability. Lawyer suggests that if Tenant signs a stipulation agreeing to pay the back rent, Landlord will look into the repair.

Has John Lawyer committed a disciplinary violation?

27


An attorney represented a real estate developer who was trying to buy several properties. The attorney arranged a meeting with an owner of two large parcels of land, hoping to arrange a sale to the developer. When the attorney scheduled this meeting, he neither knew nor asked whether the owner was represented by counsel in the matter. Shortly after the meeting began, the owner disclosed that he had retained counsel to assist in the sale of the two parcels of land, but that his lawyer could not be present that day. He further stated that he would be meeting with his lawyer the next day. The attorney asked the owner if they could talk anyway, and stated that he wouldn't ask the owner to sign anything until his lawyer had a chance to look over anything they discussed. The owner, an experienced businessman and negotiator, agreed to continue as suggested, and a tentative agreement was soon worked out.

Was the attorney's conduct proper?

28


An attorney represented the plaintiff in a personal injury matter. The attorney had heard that the defendant in the matter was anxious to settle the case and reasonably believed that the defendant's lawyer had not informed the defendant about the attorney's recent offer of settlement. The attorney instructed her nonlawyer investigator to tell the defendant about the settlement offer so that the attorney could be sure that the defendant's lawyer did not force the case to trial merely to increase the defendant's lawyer's fee.


29


A seller was engaged in negotiations to sell his interest in a large tract of land to a buyer who was unrepresented in the transaction. Before the seller went out of town for a few days, he told the buyer to call his attorney if the buyer had any questions about the property. The buyer called the seller's attorney, [who] responded that, based on his experience handling real estate transactions in the neighborhood, the buyer would be getting a lot of property for the price. At the time the attorney spoke to the buyer, the attorney knew that there was a defect in the title and that the buyer's attempt to purchase the seller's interest in the tract would not result in the buyer's acquisition of any interest in the property. Relying on the attorney's assurance, the buyer agreed to make the purchase. Shortly after the sale closed, the buyer discovered that his acquisition was worthless.

Is the attorney subject to civil liability to the buyer?

30


An attorney represented a seller in negotiating the sale of his ice cream parlor. The seller told the attorney in confidence that, although the business had once been very profitable, recent profits had been stable but modest. As the negotiations proceeded, the buyer appeared to be losing interest in the deal. Hoping to restore the buyer's interest, the attorney stated, "The ice cream business is every American's dream: happy kids, steady profits, and a clear conscience." The buyer bought the ice cream parlor but was disappointed when his own profits proved to be modest.


31


An attorney represented a plaintiff in a civil lawsuit against a defendant who was represented by other counsel. In the course of developing the plaintiff's case, the attorney discovered evidence that she reasonably believed showed that the defendant had committed a crime. The attorney felt that the defendant's crime should be reported to local prosecutorial authorities. After full disclosure, the plaintiff consented to the attorney's doing so. Without advising the defendant's counsel, the attorney informed the local prosecutor of her findings, but she sought no advantage in the civil suit from her actions. The defendant was subsequently indicted, tried, and acquitted of the offense.

Was the attorney's disclosure to prosecutorial authorities proper?

32


An attorney is employed by a client who is a fugitive from justice under indictment for armed robbery. The attorney, after thorough legal research and investigation of the facts furnished by the client, reasonably believes the indictment is fatally defective and should be dismissed as a matter of law. The attorney advised the client of his opinion and urged the client to surrender. The client told the attorney that she would not surrender. The attorney informed the district attorney that he represented the client and that he had counseled her to surrender but that she refused to follow his advice. The attorney has not advised his client on how to avoid arrest and prosecution and does not know where she is hiding.

Is the attorney subject to discipline if he continues to represent the client?

33


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. Attorney did so. It later becomes known that the document did indeed include a material misstatement. Attorney faces:

o No liabilityo Disciplineo Potential civil and criminal liabilityo Discipline, as well as potential civil and criminal liability

34


L&C represents S&L, a savings and loan, in defending against Government Regulator's investigation. Associate brings to Partner's attention that a board resolution previously filed with Government Regulator had been back-dated to give the appearance of contemporaneous board approval of a particular transaction. Associate urges disclosure. Based upon review of the relevant law and rules, which are not clear, Partner decides against disclosure and instructs Associate not to disclose. Partner and Associate make arguments to Government Regulator predicated on the veracity of the particular board resolution. It is later determined that both the law and rules required disclosure of the back-dating to the government. Which of the following is true:

o Partner and Associate face discipline but not liability.o Partner and Associate face liability but not discipline.o Partner and Associate face both discipline and liability.o Partner faces discipline and liability; Associate faces liability only.o Partner faces liability only; Associate faces discipline and liability.

35

Enron

I recommend the movie “The Smartest Guys in the Room”

http://www.nytimes.com/video/2006/05/25/business/1194817108502/enron-anatomy-of-a-scandal.html

36

SKIP Question 6-25 (p. 616)

Lincoln & Center ("L&C") wrote an opinion letter for a transaction between Ronen Corp & Serenity, a partnership. A key issue was whether Serenity was independent of Ronen, which required that at least 3% of its equity was independent of Ronen. L&C did not investigate the independent investors, but if it had it would have discovered that they were paper entities lacking in capital. The deal is later found to be unlawful. L&C potentially faces:o Sanctions under the Sarbanes-Oxley regulationso Sanctions under Sarbanes Oxley regulations and discipline under

the Ruleso Discipline under the Rules [Correct answer. Based on Enron.

SOX would not have prevented this. L&C had no “evidence of a material violation” and thus no obligation to report. ]

o None of the above

37

Material Covered in Assignment 6-4II. Duties to Third Parties and to the Law Leftovers

C. Obedience to the Law [Rules 4.4, 1.13, 1.16, 5.1, 5.2; 6-21 to 6-24] (including threats (6-21); hidden client (6-22), supervisors/subordinates (6-24); and corp. misstatement (6-23), which we will save until the end of class)

III. DUTIES TO LAWYERS & TO THE BAR (p. 636)

B. Inadvertent Disclosures (p. 638), Q. 6-28

Rule 4.4(b) Restatement § 117

C. Restrictions on Practice (p. 640), Q. 6-29

Rule 5.6

D. Reporting Lawyer Misconduct (p. 641), Q. 6-30; 9-26 to 9-28

Rule 8.3; Himmel

C. Pro-Bono and Anti-bias Obligations (p. 640), Q. 9-33 to 9-35 & extra ?s

Rules 6.1; 8.4[3];

WE’LL DISCUSS IN LATER CLASSES IN MORE DEPTH Rules 5.1, 5.2, 6.1 and 8.4[3]. One rule you haven’t read about is Rule 1.17 Sale of a Practice.

38


An attorney represented a plaintiff in a civil lawsuit against a defendant who was represented by other counsel. In the course of developing the plaintiff's case, the attorney discovered evidence that she reasonably believed showed that the defendant had committed a crime. The attorney felt that the defendant's crime should be reported to local prosecutorial authorities. After full disclosure, the plaintiff consented to the attorney's doing so. Without advising the defendant's counsel, the attorney informed the local prosecutor of her findings, but she sought no advantage in the civil suit from her actions. The defendant was subsequently indicted, tried, and acquitted of the offense.

Was the attorney's disclosure to prosecutorial authorities proper?

39

ABA Formal Op. 92-363 (Use Of Threats Of Prosecution In Connection With A Civil Matter (1992) at pp. 603-04

The Committee concludes, for reasons to be explained, that the Model Rules do not prohibit a lawyer from using the possibility of presenting criminal charges [disciplinary charges? See p. 606] against the opposing party in a civil matter to gain relief for her client, provided [1] that the criminal matter is related to the civil claim, [2] the lawyer has a well founded belief that both the civil claim and the possible criminal charges are warranted by the law and the facts, and [3] the lawyer does not attempt to exert or suggest improper influence over the criminal process. It follows also that the Model Rules do not prohibit a lawyer from agreeing, or having the lawyer’s client agree, in return for satisfaction of the client’s civil claim for relief, to refrain from pursuing criminal charges against the opposing party as part of a settlement agreement, so long as such agreement is not itself in violation of law.

40


An attorney is employed by a client who is a fugitive from justice under indictment for armed robbery. The attorney, after thorough legal research and investigation of the facts furnished by the client, reasonably believes the indictment is fatally defective and should be dismissed as a matter of law. The attorney advised the client of his opinion and urged the client to surrender. The client told the attorney that she would not surrender. The attorney informed the district attorney that he represented the client and that he had counseled her to surrender but that she refused to follow his advice. The attorney has not advised his client on how to avoid arrest and prosecution and does not know where she is hiding.

Is the attorney subject to discipline if he continues to represent the client?

41


L&C represents S&L, a savings and loan, in defending against Government Regulator's investigation. Associate brings to Partner's attention that a board resolution previously filed with Government Regulator had been back-dated to give the appearance of contemporaneous board approval of a particular transaction. Associate urges disclosure. Based upon review of the relevant law and rules, which are not clear, Partner decides against disclosure and instructs Associate not to disclose. Partner and Associate make arguments to Government Regulator predicated on the veracity of the particular board resolution. It is later determined that both the law and rules required disclosure of the back-dating to the government. Which of the following is true:

o Partner and Associate face discipline but not liability.o Partner and Associate face liability but not discipline.o Partner and Associate face both discipline and liability.o Partner faces discipline and liability; Associate faces liability only.o Partner faces liability only; Associate faces discipline and liability.

42


Lawrence Lawyer receives a fax from Anne Adversary Attorney. Lawrence quickly realizes that Anne has mistakenly sent him a document containing confidential client information. Under the Rules, Lawrence must:

o notify Anneo notify Anne and return the document without keeping a copyo notify Anne and refuse to read the documento read the document without notifying Anne

43


Attorney Alpha represents Wife in a marriage dissolution proceeding that involves bitterly contested issues of property division and child custody. Husband is represented by Attorney Beta. After one day of trial, Husband, through Beta, made a settlement offer. Because of Husband's intense dislike for Alpha, the proposed settlement requires that Alpha agree not to represent Wife in any subsequent proceeding, brought by either party, to modify or enforce the provisions of the decree. Wife wants to accept the offer, and Alpha believes that the settlement offer made by Husband is better than any award Wife would get if the case went to judgment.

Is it proper for Alpha to agree that Alpha will not represent Wife in any subsequent proceeding?

44


Anne Attorney and Lawrence Lawyer have been friends since their days at law school classmates. Recently, when she hasmet with him during the work day, she has smelled alcohol on his breath. She has noticed him being nasty and abusive to colleagues, adversary lawyers, and even, on occasion, to clients. She recently litigated a case against him where hisperformance failed to meet even minimum standards as a matter of competence. Anne then recommended to Larry that he seek help from the bar's lawyer assistance program for his alcohol problem. Larry angrily refused. Worried that any furtheraction might jeopardize her longstanding friendship with Larry, Anne does nothing.

Is Anne subject to discipline?

45

Question 9-33(p. 1004)

Is Pro Bono service mandatory for law students?– Yes– No

Should Pro Bono service be mandatory for law students?– Yes– No

46

http://www.nycourts.gov/attorneys/probono/baradmissionreqs.shtml



47

Question 9-34 (p. 1004)

Is Pro Bono service mandatory for lawyers?

•Yes•No•Neither

Should Pro Bono service be mandatory for lawyers?

•Yes•No

48

A Variation on Question 9-35 (p. 1021)

Can a lawyer be subject to discipline for engaging in discriminatory behavior?

•Yes •No

49

Rule 8.4It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice;

[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

50

Extra Question #2

Can a lawyer be subject to discipline if one of the lawyer’s partners engages in discriminatory behavior?

•Yes •No

51

RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

52

Enron

I recommend the movie “The Smartest Guys in the Room”

http://www.nytimes.com/video/2006/05/25/business/1194817108502/enron-anatomy-of-a-scandal.html

53


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. Attorney did so. It later becomes known that the document did indeed include a material misstatement. Attorney faces:

o No liability o Discipline [Consider the interplay of Rules 1.6 and 4.1]o Potential civil and criminal liability [Consider the Hazard test,

p. 602]o Discipline, as well as potential civil and criminal liability

54

The “[Geoff] Hazard” Test (p. 602)

This analysis indicates the dimensions of the lawyer’s duty under criminal and civil law to refrain from “assisting” a client in conduct that is “illegal.” A lawyer violates that duty if:

(1) The client is engaged in a course of conduct that violates the criminal law or is an intentional violation of a civil obligation, other than failure to perform a contract or failure to sustain a good faith claim to property;

(2) The lawyer has knowledge of the facts sufficient to reasonably discern that the client’s course of conduct is such a violation; and

(3) The lawyer facilitates the client’s course of conduct either by giving advice that encourages the client to pursue the conduct or indicates how to reduce the risks of detection, or by performing an act that substantially furthers the course of conduct.

55

I told you to SKIP Question 6-25 (p. 616)

Lincoln & Center ("L&C") wrote an opinion letter for a transaction between Ronen Corp & Serenity, a partnership. A key issue was whether Serenity was independent of Ronen, which required that at least 3% of its equity was independent of Ronen. L&C did not investigate the independent investors, but if it had it would have discovered that they were paper entities lacking in capital. The deal is later found to be unlawful. L&C potentially faces:o Sanctions under the Sarbanes-Oxley regulationso Sanctions under Sarbanes Oxley regulations and discipline under

the Ruleso Discipline under the Rules [Correct answer. Based on Enron.

SOX would not have prevented this. L&C had no “evidence of a material violation” and thus no obligation to report. ]

o None of the above

56

Not using

57

Question 9-26.

According to professionalism, lawyer discipline functions adequately only if lawyers snitch on each other.• True• False

58

Question 9-27.

The snitch rule works at law school because almost all students inform the law school administration when they believe that another student has cheated

• True• False• Neither

59

Question 9-28.

Lawyers reliably report disciplinary violations by other lawyers.

•True•False•Neither

Documents

Material Covered in Assignment 6-1 I. DUTIES TO THE COURT AND OTHER TRIBUNALS (p. 530) A. Meritorious Claims (p. 530), Q. 6-1 to 6-2 Rules 1.2; 1.16;