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
1
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)? 2
Question 6-2 (p. 531)
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 general
counsel, 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?
3
Topic I(C): Duties to the Court - Argument
Question 6-7 (p. 544)
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?
4
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]
5
Question 6-4 (p. 536)
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?
6
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.
7
Question 6-5 (p. 537)
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.
8
Question 6-6 (p. 537)
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?
9
Anatomy of a Murder
Has Jimmy Stewart violated Rule 3.4(b)?
10
Question 6-8 (p. 546)
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.
Is the attorney subject to discipline?
11
Question 6-9 (p. 548)
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 only
o II and III, but not I
o I, II, and III
12
o Neither I, II, nor III
Question 6-10 (p. 550)
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?
13
Question 6-11 (p. 551)
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.
Is the attorney subject to discipline?
14
Question 6-12 (p. 552)
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?
15
Question 6-13 (p. 552)
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?
16
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."
o
o
o
o
III. "We have been unable to locate several people whose testimony
will be helpful to us, and I implore them to contact me immediately.”
II only
III only
I and III, but not II
17
I, II, and III
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.
18
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.
19
Is the attorney subject to discipline?
Question 6-16 (p. 575)
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?
20
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)
21
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.
22
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.
23
Is the attorney subject to discipline?
Question 6-16 (p. 575)
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?
24
Question 6-17 (p. 597)
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.
Is the attorney subject to discipline?
25
Question 6-18 (p. 599)
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?
26
Question 6-26 (p. 636)
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?
27
Question 6-27 (p. 637)
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.
Is the attorney subject to discipline?
28
Question 6-19 (p. 599)
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?
29
Question 6-20 (p. 601)
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.
Is the attorney subject to discipline?
30
Question 6-21 (p. 602)
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?
31
Question 6-22 (p. 606)
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?
32
Question 6-23 (p. 608)
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
o
o
o
No liability
Discipline
Potential civil and criminal liability
Discipline, as well as potential civil and criminal liability
33
Question 6-24 (p. 615)
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
o
o
o
o
Partner and Associate face discipline but not liability.
Partner and Associate face liability but not discipline.
Partner and Associate face both discipline and liability.
Partner faces discipline and liability; Associate faces liability only.
Partner faces liability only; Associate faces discipline and liability.
34
Enron
I recommend the movie “The Smartest Guys in
the Room”
35
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 regulations
o Sanctions under Sarbanes Oxley regulations and discipline under
the Rules
o 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
36
Material Covered in Assignment 6-4
II. 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 (624); 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].
37
One rule you haven’t read about is Rule 1.17 Sale of a Practice.
Question 6-21 (p. 602)
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?
38
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.
39
Question 6-22 (p. 606)
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?
40
Question 6-24 (p. 615)
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
o
o
o
o
Partner and Associate face discipline but not liability.
Partner and Associate face liability but not discipline.
Partner and Associate face both discipline and liability.
Partner faces discipline and liability; Associate faces liability only.
Partner faces liability only; Associate faces discipline and liability.
41
Question 6-28 (p. 638)
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
o
o
o
notify Anne
notify Anne and return the document without keeping a copy
notify Anne and refuse to read the document
read the document without notifying Anne
42
Question 6-29 (p. 640)
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?
43
Question 6-30 (p. 641)
Anne Attorney and Lawrence Lawyer have been friends since
their days at law school classmates. Recently, when she has
met 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 his
performance 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 further
action might jeopardize her longstanding friendship with Larry,
Anne does nothing.
Is Anne subject to discipline?
44
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
45
http://www.nycourts.gov/attorneys/probono/baradmissionreqs.shtml
46
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
47
A Variation on Question 9-35 (p. 1021)
Can a lawyer be subject to discipline for engaging
in discriminatory behavior?
• Yes
• No
48
Rule 8.4
It 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.
49
Extra Question #2
Can a lawyer be subject to discipline if one of the
lawyer’s partners engages in discriminatory
behavior?
• Yes
• No
50
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.
51
Enron
I recommend the movie “The Smartest Guys in
the Room”
52
Question 6-23 (p. 608)
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
53
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.
54
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 regulations
o Sanctions under Sarbanes Oxley regulations and discipline under
the Rules
o 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
55
Not using
56
Question 9-26.
According to professionalism, lawyer discipline
functions adequately only if lawyers snitch on
each other.
• True
• False
57
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
58
Question 9-28.
Lawyers reliably report disciplinary violations
by other lawyers.
• True
• False
• Neither
59