Chapter 7 - Questions
Special Ethics Rules:
Prosecutors and Judges
Question 7-1
A county prosecutor believes that Bill is a criminal mastermind
who is responsible for most of the illegal drugs that are
coming into the county and who is also responsible for at least
ten murders. The prosecutor does not have enough evidence
to obtain an indictment on those charges. But in his
investigation, the prosecutor discovers that Bill lied on a form
he filed with the government to obtain a zoning variance for
his mansion. Lying to the government on a form is a felony,
but it is a common activity and very rarely prosecuted. In fact,
Bill would be the first person ever charged for this crime in the
county.
Can the prosecutor ethically bring charges against Bill for lying
on a government form?
Question 7-2
Walker was arrested for violently robbing a man on the street,
but the victim was unwilling to testify at trial. The prosecutor
entered into plea bargaining discussions with Walker and his
counsel. Walker was unwilling to accept a plea with jail time.
He was previously convicted of rape, and so pleading guilty to
theft would demand incarceration under applicable law. The
prosecutor then offered a deal: if Walker would plead guilty to
illegally recording music, the robbery charges would be
dropped. Walker would receive a fine and would be credited
with time served since his arrest.
May the prosecutor ethically offer this plea arrangement
when all agree that Walker would be pleading guilty to a
crime he did not commit?
Question 7-3
A defendant has been charged with murder. The
government's case is based mainly on the testimony of an
eyewitness. The prosecutor and defense enter into plea
negotiations. At that time, the prosecutor knows --- but
the defendant does not --- that the eyewitness has died.
If the prosecutor keeps this information secret, it is
probable that the defendant will plead guilty to a crime
with significant jail time. If the defendant is told about
the death of the eyewitness, the prosecutor will be
unlikely to get a plea to a crime with jail time.
Is the prosecutor constitutionally or ethically required to
disclose the death of the eyewitness?
Question 7-4
A trial court judge had instructed his court clerk and his secretary that
one of them should be present in the office during working hours to
answer the telephone. One day, however, the secretary was out sick.
The judge was in his office when his court clerk was at lunch, and
when the telephone rang, the judge answered it. The call was from a
lawyer in a case presently pending before the judge. The lawyer was
calling to attempt to reschedule a pretrial conference set for the next
day because of a sudden family emergency. The lawyer had tried to
call opposing counsel on the case, but she was not answering his calls.
The judge agreed to reschedule the pretrial conference for the
following week. When the judge's court clerk returned from lunch, the
judge instructed the clerk to contact opposing counsel to inform her of
the telephone call and the fact that the pretrial conference had been
rescheduled.
Did the judge act properly?
Question 7-5
A judge has served on a trial court of general jurisdiction for almost three
years. During that time, he was assigned criminal cases almost exclusively.
Several months ago, however, the judge was assigned an interesting case
involving a constitutional challenge to a statute recently passed by the state
legislature. The statute permitted any local public school district with an
overcrowding problem to purchase educational services for its students in any
other public or private school within fifteen miles.
Although the briefs submitted by the parties were excellent, the judge was
not confident that he had a good grasp of the issues in the case. Accordingly,
he took one of his more experienced colleagues on the trial court out to lunch
and discussed the case with her in great detail. The colleague was far more
conservative than the judge, but he agreed with her and eventually ruled in
accord with her views. The case is now on appeal.
Is the judge subject to discipline?
Question 7-6
Judge, a state court judge, has presided over the pretrial
proceedings in a case involving a novel contract question
under the Uniform Commercial Code. During the pretrial
proceedings, Judge has acquired considerable background
knowledge of the facts and law of the matter and, therefore,
is particularly well qualified to preside at the trial.
Shortly before the trial date, Judge discovered that his brother
owns a substantial block of stock in the defendant
corporation. He determined that his brother’s financial
interests would be substantially affected by the outcome of
the case. Although Judge believed he would be impartial, he
disclosed to the parties, on the record, his brother's interest.
Is it proper for Judge to hear the case?
Question 7-7
Judge is a judge of the trial court in City. Judge has served for
many years as a director of a charitable organization that
maintains a camp for disadvantaged children. The
organization has never been involved in litigation. Judge has
not received any compensation for her services. The charity
has decided to sponsor a public testimonial dinner in Judge's
honor. As part of the occasion, the local bar association
intends to commission and present to Judge her portrait at a
cost of $4,000. The money to pay for the portrait will come
from a "public testimonial fund" that will be raised by the City
Bar Association from contributions of lawyers who are
members of the association and who practice in the courts of
City.
Is it proper for Judge to accept the gift of the portrait?
Question 7-8
The state bar association has offered Judge and
her spouse free transportation and lodging to
attend its institute on judicial reform. Judge is
expected to deliver a banquet speech. Is it
proper for Judge to accept this offer?
Question 7-9
An attorney's law firm regularly represented a large company in its
international business transactions. The company became involved in a
contractual dispute with a foreign government. The company invoked
a mandatory arbitration procedure contained in the contract. Under
the arbitration clause, each party was allowed to choose a partisan
arbitrator and the partisan arbitrators were to choose an additional
arbitrator to sit on the panel. The company selected the attorney to be
on the arbitration panel. Neither the attorney nor his law firm had
represented the company in connection with the contract with the
foreign government. The arbitration was completed, and the company
was awarded the sum of $100,000. The company then hired the
attorney to enforce the award. The attorney obtained the consent of
the other arbitrators before accepting the representation. He was
successful in enforcing the award.
Is the attorney subject to discipline?