Final Part 2 Flashcards
if you’re representing someone and they tel you something that they want to testify but you are concerned that your client may have made up the whole story to provide a more credible alibi for him, will you violate any applicable ethical rules if you allow him to testify?
NO (Circumstances do not rise to the level of ACTUAL knowledge that the client is prepared to commit perjury)
if you’re a prosecuting attorney in a second degree murder case. The defendant is charged with killing someone at a late night bar fight. The defendant testified that he only him in self-defense. Two days into the trial, you get a folder in your mailbox and it’s a police report from the bar fight. It had been sent to the wrong attorney who was prosecuting an indictment against a different guy with the same name. The file included a report from a police officer including a statement from a witness who said he saw the guy that the defendant got into a fight with break a bottle against the side of the bar right before the fight began but not what he did with it after. Should you turn over the witness statement to the defendant’s attorney?
Yes. (BRADY requires disclosure of exculpatory evidence)
You represent a man in a divorce case from his wife. The couple have a valuable art and wine collection. The couple decided how to divide their property, and they and their lawyers have engaged in negotiations. Your client’s wife’s attorney proposed a rather complex formula for making this evaluation. You spoke with your client about it and asked the wife’s attorney to send a written proposal that descries and applies the formula. You received materials and realized that the wife’s attorney had made an arithmetic mistake in applying the formula. As a result, the wife’s attorney underestimated the amount that your client should pay her client for these pieces. When the error is factored into the final number, you client will have to pay his wife $515,000 instead of $721,000. Your client and you have never expressly agreed to the wife’s attorney’s formula and would have likely never agreed to pay that much in any event. But the lower figure was within a possible range that you and your client had discussed. What should you do?
contact your client and let him know exactly what happened and get his instruction before taking any other action. (absent exceptional circumstances always check with the client first)
After a CEO and you as general counsel do an investigation on employees at the company after suspecting illegal activity, it becomes clear that there are problems and several illegal bribes had already been paid. You interview an employee and he asks you if you are his lawyer, and you reply that you are not, and that you are the company’s lawyer and only it can decide whether to assert or waive those privileges. You also say that assuming he hasn’t done anything wrong, he shouldn’t worry about talking to you. The employee proceeds to discuss several questionable payments made by himself and some other employees that he always assumed might be problematic if anyone found out about them, but he believed they were technically legal. 6 months later, the IRS edicts the company on charges including tax evasion resulting from undisclosed payment in foreign countries. The IRS issue a subpoena requesting the transcript of the interview between you and the employee. You and the employee waive any A/C privilege and agree to turn over the transcript. If the employee challenges this action arguing that only he had the authority to waive the privilege, how is the court likely to respond?
reject the employee’s argument because he did not have a reasonable belief that you were serving as his lawyer at the time of the interview (belief in the A/C relationship must be objectively reasonable not just subjectively believed)
You’re a firm that is outside counsel for a company, a parent corporation with 15 wholly owned subsidiaries. Last year, the company sold one of its subsidiaries to another company which then became a subsidiary of that company and was renamed. your firm represented the subsidiary for 5 years that the the original company owned it, including the negotiation of the sale. The original company made certain warranties and the new company now says that these warranties were false and the new company sued the original company for breach of warranty. When a partner from your firm appeared for the original company, the new company argued that the firm was disqualified because the subsidiary was your former client. They noted directly that your firm represented the subsidiary when it acquired the two vineyards from its former British owners 3 years ago. What wold be most helpful in determining whether your firm should be disqualified from representing the original company?
whether the original company and your firm had an representation agreement indicating that your firm represents the original co. and all of its subsidiaries. (ABA opinion says this is the most relevant factor)
The NFL commissioned a study on the impact of repeated concussions on the long term health of former professional football players. The study indicated that multiple concussions over a short period of time could result in permanent severe brain damages. The league found the results of the study disturbing, but they were not convinced of its efficacy and decided to seek another study in the future. It decided not to disclose the information in hopes of a more favorable conclusion in the future. 4 years later, stories in the press began to surface about the harmful effects of concussions and interviews with former players. The NFL contacted their lawyers and asked whether it could destroy the study that they had received 4 years before if they commissioned a new study. The league officials assured the lawyers that they would abide by whatever findings came out in the new study. Can they destroy the prior study?
NO (violates spoliation limitations)
You’re an attorney representing a doctor in a medical malpractice action. The plaintiff alleges the the doctor was negligent in her failure to properly inform him of the risks of the surgery - a knee replacement procedure. The doctor and the plaintiff agree that the doctor spoke to her about the risks of the surgery but did not provide him with any information in writing. In research, you find a recent case binding in the jurisdiction where the case was filed that held that failure to provide a patient with a written statement regarding risks of any elective surgical procedure consisted negligence per se. Concerned about the potential impact of this precedent on your case and that the case didn’t involve a hip replacement but rather plastic nose surgery. the judge in this case noted your failure to cite the case referenced above and held a hearing to determine whether you had committed an ethics violation? What is the likely result?
hold that Bond violated applicable ethical requirements by failing to cit relevant legal precedent (MC 3.3 prohibits lawyers from misrepresenting the law to a court)
you receive a call from your client who is in police custody on drug possession and distribution. Your client tells you that there is a large stash of drugs at his house and that he overheard the police officers saying that they are about to get a warrant to search the house. You call your investigator and tell him to go over to your client’s house immediately and look for any drugs and if he finds any bring them to you at your office. The investigator shows up at your office an hour later with a large stash of drugs found at your client’s house. what should you do?
you MUST immediately turn over the drugs to the police and, if asked tell them where and how he got them (requirement to disclose where he got the drugs arises because the attorney’s agent moved the evidence)
You receive a call from your client who is in police custody for being arrested on drug possession and distribution charges. You represented him in several prior cases and know that he usually had a large stash of drugs in his home and that the police will likely in the process of getting a warrant search his home. You also know that your client has several young children and that they might come across the stash at anytime, perhaps even before the police. You rush over to your client’s house, find a significant amount of drugs and remove it from his house and put it in your trunk. You tell no-one about the drugs in your trunk (not even your client) and conceal them through your client’s arraignment when he pleads not guilty. Acting on a tip from a neighbor who saw and recognized you on the day you went to the house, the police search your trunk and find the drugs. In a subsequent hearing, you argue that you were not required to turn over the drugs based on A/C privilege. what action is the court likely to take in the hearing?
Reject the A/C privilege argument and hold that you violated applicable lawyers’ ethics requirements and that your action constituted obstruction of justice (similar to RYDER case)
a family suffered serious damage to their home in a flood. The family had homeowner’s insurance and they filed a claim seeking compensation for their damages. They received an email from a lawyer for the insurance company, stating that there was a $100,000 cap on their recovery for flood damage in their homeowner’s insurance. The lawyer knew that statement was false when he made it in the email and the actual cap was $500,000. If the lawyer is later brought before the state’s bar ethics committee based on his statement to the family, how is the committee likely to respond?
The committee will issue a sanction against the lawyer because he knew his statement to the family was false (violation of 8.4)
After a CEO and you as general counsel do an investigation on employees at the company after suspecting illegal activity, it becomes clear that there are problems and several illegal bribes had already been paid. You review the relevant law and determine that the best course of action to limit criminal exposure for the co. is to fully disclose the payments to the US Gov’t, and assert that the upper level management of the company was unaware of this prior to the investigation. You advise the CEO of this. The CEO asks what will happen to the project that the company has already commenced that were initiated as bribes. You tell her that the company would almost certainly be required to cancel those projects and be replaced by other companies. The CEO says she is not willing to give up these projects and instructs you to not discuss your findings with anyone outside the co., to order the employees to stop paying bribes and to to hope that the past bribes are never discovered. What can you do?
You MAY disclose what you know about the bribes to relevant authorities (lawyer is allowed but not required to make these disclosures)
President Nixon authorized secret recordings of meetings in the Oval Office during his presidency. The tapes became an issue during the 1973-4 investigations of potential involvement of the President and other officails in the burglary of the Democratic National Headquarters prior to the 1972 Presidential election. In July 1973, White House aide revealed the existence of the tapes in response to a question from the Senate Watergate Committee. In the next few days, before the committee subpoenaed the tapes, Nixon and his advisors discussed whether Nixon could lawfully destroy them. Would destroying the tapes be unlawful and if so when would it become unlawful?
Yes. It would be unlawful at anytime after their existence was disclosed on the Senate hearing (doing so would violate 18 USC 1512)
a law firm is representing a sporting goods company and its sole owner of 15 years until the owner sold the business to another sporting goods chain. The new owner took full ownership of the original corporation and all of its assets and property, but continued to run under the same name. The same lawyers represented the original owner in the negotiations and final sales of business. The negotiations contained several warranties from the original owner to the new owner, including his assurances that the heating and air conditioning units in the store had been recently replaced and periodically serviced. 3 months after the sale, the air conditioner broke requiring costly repairs. The technician said it was an old system and hadn’t been serviced in years. If the new owner files an action against the old owner alleging breach of warranted and the lawyer files an answer on the new owner’s behalf and the new owner filed a motion with the court seeking disqualification of the lawyer from the case, how would the court likely rule on the lawyer’s motion?
grant the motion (the lawyer is the new owner’s former lawyer and this action is substantially related to prior representation)
You’re representing a man that is accused of leaving the scene of an accident. The car belongs to your client’s aunt, whom you call as a witness to explain, truthfully, how other may have gained access to it. In the middle of her highly credible testimony, and to your surprise, the aunt testifies that she and your client were at the beach when the accident occurred. You know (as a result of prior discussion with your client and verifying information) that the alibi is false and witness is lying at the request of her nephew. What should you do?
immediately inform the judge that false testimony has been given by one of his witnesses (lawyer required to immediately inform the court of false testimony)
if you’re a criminal defense attorney and your client comes in and tells you “I just shot my brother-in-law! I didn’t really mean to do it, but the gun just went off.” He then pulls the gun out of his pocket and places it on your desk and says “I’ve got to get rid of this thing, this is the only place I could think of” and then rushes out leaving the gun on the desk. What should you do?
immediately take the gun to the closest police station and turn it over to the police but he should not respond to any questions about where and how he got the gun (lawyer required both to turn over real evidence to authorities but also protect A/C privilege)
