PR Glannon Flashcards
Directly adverse parties. Mrs. Kramer met with a lawyer to discuss a physical assault by her estranged husband, who had broken into the house of Mrs. Kramer’s, friend, where Mrs. Kramer was now living to avoid contact with her husband, and had assaulted her, leaving minor injuries and damaging some of her personal property. The lawyer agreed to represent her in seeking a restraining order against her estranged husband. The next day, upon hearing about this meeting, the estranged husband appeared in the lawyer’s office, also seeking representation in the same matter. Mr. Kramer expressed his desire for reconciliation and asked the lawyer to represent him in mediation with his estranged wife, and to defend him at the restraining order hearing. The lawyer accepted a retainer fee from Mr. Kramer and agreed to represent him, just as he had done with Mrs. Kramer. Both the husband and wife were aware that the same lawyer represented them and proceeded with scheduling a hearing and mediation meetings, but neither signed paperwork actually consenting to the joint representation. Mrs. Kramer is unhappy that the husband hired her lawyer, but she feels she cannot do anything about it. What sanction could the lawyer face because of this dual representation?
A.The lawyer is not subject to any sanction because both parties verbally consented to the representation.
B.The lawyer is subject to disqualification by the court from representing one or the other client, but can then proceed with representing the other, whichever one the court allows.
C.The lawyer is subject to discipline, but only because he did not obtain written consent from both parties to the dual representation.
D. The lawyer is subject both to discipline and to disqualification for violating the Model Rules, as the parties are directly adverse in the same proceeding.
D. The lawyer is subject both to discipline and to disqualification for violating the Model Rules, as the parties are directly adverse in the same proceeding.
On the same day, an attorney agrees to represent an undocumented immigrant in a visa-revocation matter, as well the victim in a tort action (product defect) against an automobile manufacturer. The two matters are unrelated. In the second case, the attorney anticipates that the defendant automobile manufacturer will argue that extensive federal safety regulations of automobiles, which require certain safety features and specifications, should preempt state tort law and therefore prevent a state court from adjudicating the case. On the other hand, many undocumented immigrants have relied upon federal preemption of state law in challenging onerous state penal statutes targeted at illegal immigrants. If the attorney prevails in his preemption argument in the vehicle manufacturing defect case, and on appeal creates precedent against federal preemption of state law, the precedent would probably be unfavorable to the attorney’s other client, the undocumented immigrant.
The state legislature has several bills pending that would impose criminal sanctions on landlords who lease apartments to undocumented aliens, drivers who transport undocumented aliens to work sites, and contractors who hire subcontractors who employ undocumented aliens. Does the fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of the other client create a conflict of interest, for which the lawyer must obtain consent from each client?
A.Yes, it creates a conflict of interest, but this type of conflict is nonconsentable because it involves questions of law, so the clients cannot consent to it and the attorney cannot represent both.
B.Yes, but given that the matters are unrelated and that it is uncertain that the lawyer will succeed in creating new precedent, the parties can give informed consent in writing.
C.No, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.
D.No, because preemption precedent from one area of law like torts could not possibly affect an unrelated area of law like immigration.
C.No, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.
Miranda and her two sisters, Lisa and Nancy, all sustained injuries in a car accident last year. Because they did not have enough money to get separate attorneys, they decided to consent to using the same lawyer, Joseph. After months of trial preparation, the defense counsel approached Joseph with a settlement offer. Miranda sustained severe injuries, but fortunately Lisa and Nancy only received a few bumps and bruises. Joseph believed that the settlement offer was a reasonable offer and that it would be in the clients’ best interest to accept it because of how all-consuming and costly trial can be. Even so, Joseph also knew that Miranda would be a hard sell on accepting a settlement offer because she believed she could get a larger judgment if she presented her case in front of a jury. If Joseph obtains consent from both Nancy and Lisa to accept the defendant’s settlement offer, will he be subject to discipline for accepting the offer without first discussing it with Miranda?
A. No, because when a client retains a lawyer, he or she authorizes the lawyer to accept or reject settlement offers on his or her behalf.
B. Yes, because an attorney must inform each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients.
C. Yes, because an attorney must inform and obtain written consent from each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients.
D. No, because the three sisters consented to being represented by the attorney and he believed it was in their best interest as a whole.
C. Yes, because an attorney must inform and obtain written consent from each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients.
Two successful business partners hired an attorney to help with the dissolution of the partnership, as the two partners no longer want to work together. The attorney was very concerned about the obvious conflict of interest, but the partners insisted that they did not want to complicate matters unnecessarily by hiring separate counsel, and that they were already in complete agreement about how to divide the business. They even signed informed consent statements acknowledging and waiving the conflict. Each partner believed it would be in both of their best interests to use only one lawyer to dissolve the business. The matter was purely transactional at this point, and it did not involve any anticipated litigation before a tribunal. One partner had already mentioned to the attorney that he might need his legal services in setting up a new business, as well as handling some estate planning issues for him. The attorney still believed that dual representation was not a good idea, given the complexity of the business and the debatable future value of some of the patents, goodwill, and other intellectual property involved, and because one partner contributed a much larger share of the start-up funds years before. The partner who mentioned hiring the attorney to do estate-planning work wanted the dissolution to include assigning his proceeds from the business to his heirs. The attorney proceeded with the dual representation and the dissolution appeared to proceed smoothly. Is the attorney subject to discipline for representing both partners?
A.Yes, because the attorney did not reasonably believe that he would be able to provide competent and diligent representation to each affected client.
B.Yes, because the facts do not mention whether they split the legal fees evenly, and one of them has mentioned giving the attorney some business in the future.
C.No, because the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
D.No, because it appears on these facts that there will be no assets in dispute at all, so the theoretical conflict of interest would have no bearing on their case.
A. Yes, because the attorney did not reasonably believe that he would be able to provide competent and diligent representation to each affected client.
Attorney Adams is in-house counsel for a large international corporation and has daily contact with higher-level executives and managers. One day, a senior executive mentions casually to Attorney Adams that he has offered lucrative stock options, worth millions of dollars, to a foreign government official who has agreed to give the firm an exclusive contract to provide certain goods and services to the foreign state. The executive seems to think this is normal and good for the company, but Adams believes it constitutes bribery of foreign officials, which would violate the Foreign Corrupt Practices Act, and could subject the company to enormous fines and penalties. Attorney Adams explains her concerns to the executive, including her concern that he could face personal criminal charges in addition to bringing liability on the corporation, and she reminds him that she represents the corporation, not him personally. The executive is dismissive of her concerns, even though she approaches him several times about the matter. How must Attorney Adams proceed?
A. She should report the matter immediately, in writing, to the Department of Justice, and tell no one in the company that she has done so.
B. She should keep her conversations with the executive confidential but try to document everything that she knows about the situation in case the Department of Justice brings an enforcement action.
C. She should approach the executive’s immediate corporate superior, advising those next up the chain of authority to stop the transaction and take appropriate actions against the executive involved. D.She should immediately notify the company’s Board of Directors, advising them about the potential liability and threatening to report the activities to the Department of Justice if they take no action.
D. She should immediately notify the company’s Board of Directors, advising them about the potential liability and threatening to report the activities to the Department of Justice if they take no action.
C. She should approach the executive’s immediate corporate superior, advising those next up the chain of authority to stop the transaction and take appropriate actions against the executive involved. D.She should immediately notify the company’s Board of Directors, advising them about the potential liability and threatening to report the activities to the Department of Justice if they take no action.
Lawyer Laura worked at the Abel & Bentley firm for five years, and she specialized in real estate. During the last three years, Lawyer Laura has worked extensively on Client Cain’s properties and disputes that arose related to them. Before leaving the Abel & Bentley firm, Lawyer Laura handled a new real estate deal for Client Cain that facilitated the erection of a new apartment complex. Lawyer Laura now works at the Davis & Eldridge firm. One of her first assignments is a case in which a Client Seth, a new client of the first, is suing Cain over a disputed right of way through the very property that now holds the new apartment complex — Seth and Cain are neighbors. Can Laura represent Client Seth against her former client, Cain?
A.Lawyer Laura may represent Client Seth if Client Cain consents in writing to her doing so.
B.Lawyer Laura may not represent Client Seth in the same or substantially the same matter unless Client Cain consents in writing.
C.Lawyer Laura may not represent Client Seth in the same or substantially the same matter unless Client Seth consents in writing.
D.Lawyer Laura may represent Client Seth because Lawyer Laura left Abe & Bentley and no one in Davis & Eldridge has confidential information about Client Cain.
A. Lawyer Laura may represent Client Seth if Client Cain consents in writing to her doing so.
Attorney Albert worked at Ricks, Sawyer & Thompson for five years and specialized in real estate. During the last three years, Albert has worked intensively on Client Callahan’s properties and disputes that arose. Before leaving Ricks, Sawyer & Thompson, Albert handled a new real estate deal for Callahan that resulted in the erection of a new apartment complex. Albert now works at Friedman & Grisley and receives a new case assignment. Albert discovers that the new client, Raymond Bradley, is a small business owner located next to Callahan’s apartment complex and is suing Callahan for a disputed right of way.
A. Albert may represent Bradley if Callahan consents in writing to him doing so.
B. Albert may not represent Bradley in the same or substantially the same matter unless Callahan consents in writing.
C. Albert may not represent Bradley in the same or substantially the same matter unless Bradley consents in writing.
D. Albert’s firm may represent Bradley because Albert has left Ricks, Sawyer & Thompson and no one in Friedman & Grisley has confidential information about Callahan.
A. Albert may represent Bradley if Callahan consents in writing to him doing so.
Aaron, a college sophomore, is facing criminal charges related to a drunk driving accident the previous night. To his great relief, Aaron’s parents visit the firm of Lawyer Lucas, and retain him as defense counsel for their son, agreeing to cover all fees and expenses. The criminal charges in this case allow for jail time or hefty fines as potential punishments. The prosecution offers a plea bargain — a $2,000 fine, a few hours of community service, and six months’ probation, but no jail time. Aaron, the defendant, is thrilled, but his parents insist that Lawyer Lucas decline the plea bargain and go to trial, which Lucas is certain will result in a conviction and a short jail sentence. The parents believe a short jail term will be good for their son and teach him a lesson, and paying the $2,000 fine on top of the lawyer’s fees will force them to forego their vacation plans that year. A loud argument ensues in the conference room between the parents and Aaron over the best course of action. How should Lawyer Lucas proceed?
A. The lawyer should represent the wishes of the parents, as they retained him for his services, and they are paying his fees.
B. The lawyer should follow his own judgment about what would be the best result in this case, given that there is a disagreement between the party he represents and the party paying his fees.
C. The lawyer must follow the decision of Aaron, who is his real client, and accept the plea; he should have explained to the parents in advance that they could not control the case even if they paid his fees.
D. The lawyer has a duty to both Aaron and his parents as joint clients, and must wait until they reach an agreement about how to proceed.
C. The lawyer must follow the decision of Aaron, who is his real client, and accept the plea; he should have explained to the parents in advance that they could not control the case even if they paid his fees.
Lindsey is a single mother working as a cashier in a liquor store. She is behind on her rent, and her landlord has provided written notice of his intent to evict her from her apartment; a complicating factor in the eviction is that the landlord did not fully honor the terms of the lease regarding conditions in the apartment parking lot. She meets with a lawyer for a free initial consultation, but realizes she cannot possibly afford the lawyer’s fees, so she leaves and starts planning to move home with her parents. Lindsey also discusses her problems with one or two of her friendly customers. To her surprise, the lawyer calls her the next day and offers to represent her free of charge, and she returns to the office and signs a retainer to this effect. Unbeknownst to Lindsey, a regular customer at the liquor store, Richard, is infatuated with her, and having learned of her plight, Richard contacted the lawyer and offered to pay all the fees for the lawyer’s representation of Lindsey, on the condition that Lindsey never know about it. Richard wants to keep Lindsey in the neighborhood so that he might someday win her affections. Under the Model Rules, how should the lawyer handle this situation?
A. The lawyer can represent Lindsey under this arrangement as long as he explains to Richard that Lindsey will have ultimate control over the case decisions, not Richard.
B. The lawyer absolutely cannot represent Lindsey without obtaining her written consent, even though she would receive free legal help and the lawyer would represent her diligently.
C. The lawyer can represent Lindsey as long as he discloses to her that someone else is paying his fee, but he should keep Richard’s identity confidential.
D.The lawyer should decline the representation because Lindsey clearly has no case here, given that she is behind on rent, and the eviction is a legal certainty.
B. The lawyer absolutely cannot represent Lindsey without obtaining her written consent, even though she would receive free legal help and the lawyer would represent her diligently.
Lucille Bluth hires attorney Wayne Jarvis to represent her and her family in a complex federal case involving the family business and charges of securities fraud and racketeering. Early in the representation, Lucille and the lawyer, Wayne, start dating and become sexually involved, to the consternation of the rest of the family. Lucille and Wayne rationalize the relationship by saying that they each have “needs” that their new romantic partner meets, and they have even discussed marriage as an eventuality. Is the lawyer subject to discipline for this relationship?
A.N o, the Constitution does not allow a state bar or the judiciary to interfere in private matters such as a lawyer’s consensual sexual relationships.
B. Yes, the lawyer is representing the other family members as well, and they disapprove of the relationship at this time; if they approved of the relationship, it would be fine.
C. No, because it appears this will be a long-term or permanent relationship, perhaps leading to marriage, so there is very little risk of the lawyer exploiting his client or the lawyer having clouded judgment.
D. Yes, unless the sexual relationship predates the beginning of legal representation, the lawyer absolutely cannot represent a client with whom he has such a relationship.
D. Yes, unless the sexual relationship predates the beginning of legal representation, the lawyer absolutely cannot represent a client with whom he has such a relationship.
Attorney began her career as a prosecutor at the District Attorney’s Office. During her tenure as a prosecutor, she brought charges against an individual suspected of sending ricin, a deadly toxin, in an envelope to a prominent politician, apparently in an unsuccessful attempt to assassinate the public official. The jury found the evidence too attenuated, and it acquitted the defendant. Shortly thereafter, another person, who was a member of a terrorist organization, confessed to sending the ricin and provided extensive evidence of his plot to kill the politician to make a political statement. Attorney resigned from the District Attorney’s Office, partly out of humiliation over this case, and went into private practice. Eighteen months later, the accused individual decides to sue the government over wrongful arrest, slander, libel, and wrongful prosecution over the case in which he obtained an acquittal. Attorney feels that her superiors at the D.A.’s Office had pressured her to press charges in order to satisfy the public uproar over the ricin letters, despite having scanty evidence that the accused individual was actually guilty. Attorney offers to represent the accused individual in his lawsuit against the government, partly to make amends or atone for her role in what she now views as an abuse of government power and a great injustice. Would it be proper for Attorney to handle this case, given her good intentions?
A. Yes, because the test for determining if an improper conflict of interest exists between former clients and a new client is the lawyer’s subjective motivations in undertaking the new representation, and in this instance, Attorney is merely trying to make amends for her past mistakes.
B. Yes, because Attorney has a duty to repudiate her previous wrongful actions, and her representation of the individual will send a strong message to other prosecutors, which in turn serves the public interest.
C. No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.
D.No, because a prosecutor cannot ethically “switch sides”and start representing criminal defendants in public practice, regardless of whether the same individuals are involved as clients.
C. No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.
Client consults with Attorney regarding a criminal case in which Client is the defendant. Attorney previously represented Client’s friend, who is a co-defendant in the current case, in another matter. Attorney does not believe that the previous representation of Client’s friend will disable him from providing competent and diligent services to Client, and the parties are not making any claims against each other. May Attorney represent Client in this case?
A. Yes, attorneys may represent conflicting parties as long as both clients give informed consent and have had the opportunity to consult with independent counsel regarding the matter.
B. Yes, attorneys may represent conflicting parties as long as both clients give informed consent and both parties confirm their consent in writing.
C. No, attorneys shall not ever represent conflicting parties, as it is impossible for attorneys to provide competent and diligent services when representing conflicting parties.
D.No, attorneys cannot represent conflicting parties when the parties are co-defendants in criminal matters.
B. Yes, attorneys may represent conflicting parties as long as both clients give informed consent and both parties confirm their consent in writing.
Attorney worked for Big Firm in their intellectual property department, specializing in patent applications and patent enforcement, as well as some trademark disputes for clients. Unbeknownst to Attorney, the regular litigation department at Big Firm undertook representation of a Trucking company in defending against a personal injury lawsuit over a roadway accident involving one of the trucks. Attorney worked in the Washington, D.C. office of Big Firm, near the United States Patent and Trademark Office, and the litigators handling the truck accident are in the firm’s Dallas office. Each office of Big Firm has its own local computer network for sharing documents and files between lawyers there. It is possible for lawyers at Big Firm to access the networks of other satellite offices, however, with a special login that most lawyers never use. Attorney has never accessed the files of the Dallas office except for one trademark case four years ago. Attorney did not make partner at Big Firm, so he left and went to work for a small plaintiff’s firm in Kansas. One of Attorney’s first case assignments was the same truck accident case in which Big Firm was defending Trucking Company; Attorney’s new firm represents Plaintiff in the case. Attorney was not aware of the case or that Big Firm represented Trucking Company until the new firm assigned him to the case as second chair on the litigation. Is Attorney subject to disqualification in this matter?
A. Yes, because even though Attorney did not have actual knowledge of confidential information about the trucking company, he had the ability to access the files if he had used a special login while he was at Big Firm, and this creates the appearance of impropriety.
B. Yes, because Attorney’s work in the patent enforcement division of Big Firm gave him some exposure to Big Firm’s behind-the-scenes approach to litigation generally, as well as familiarity with Big Firm’s litigators, thus providing Attorney with an unfair advantage, therefore both Attorney and the other lawyers in the new firm would be subject to disqualification.
C. No, because Attorney now works for a firm in Kansas, and both offices of Big Firm mentioned were in other states, where many of the lawyers would not have licenses licenses to practice law in Kansas, so Attorney would be subject to disqualification, but not the other lawyers in the new firm.
D. No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm are disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.
D. No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm are disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.
Attorney represented Husband twenty years ago in a divorce with Husband’s first wife. Husband is a well-known local celebrity, a retired professional athlete who became a semi-successful actor and an outspoken advocate of a radical political cause. Recently, Husband’s third wife approached Attorney asking him to represent her in obtaining a divorce from Husband. There are no children from the marriage — their children from previous marriages are now adults — and the distribution of assets will follow the terms of a carefully drafted prenuptial agreement between Husband and his third wife, which Husband’s new lawyer drafted for them. Husband long ago provided written informed consent for future conflicts of interest if Attorney represented another party with adverse interests to Husband. Attorney does not believe that any confidential information learned from representing Husband twenty years ago in his first divorce will be relevant to the pending third divorce. On the other hand, there is regular media coverage of Husband’s trysts and on-and-off sexual relationships with various actresses and female socialites in the area, and marital infidelity could trigger certain exception clauses in the prenuptial agreement. Can Attorney use the information about Husband’s recent indiscretions in representing the third wife?
A. Yes, as long as the Husband’s new lawyer provides written informed consent to the use of the information in the divorce proceeding.
B. Yes, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
C. No, not if Attorney learned confidential information about Husband having a pattern of marital infidelity during his prior representation of Husband.
D. No, the fact that there is a prenuptial agreement with exceptions triggered by marital infidelity should preclude Attorney from using such information.
B. Yes, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
Attorney works for a firm. She also describes herself as an outspoken advocate for the rights of unborn children, that is, she passionately favors legal restrictions on abortion. A local abortion clinic asks the firm to represent it in litigation over recent zoning measures that would significantly limit its hours of operation and therefore the number of clients the clinic could accept. The firm agrees to the representation. Attorney firmly refuses to have any part in the representation, and though no formal screening measures are in place, everyone else in the firm avoids discussing the case with her or around her because they are afraid of receiving another lecture about the wrongfulness of abortion. Early in the litigation, the judge considers disqualifying the firm because it employs Attorney, who has a reputation in the community for her advocacy against legalized abortion. Neither the clinic nor the opposing party (the municipal zoning authority) provided written consent to a conflict of interest. Should the firm be subject to disqualification in this case?
A. Yes, because the firm did not implement formal screening measures to ensure that Attorney receives no confidential information about the case and cannot influence the other lawyers working on the case.
B. Yes, because the firm did not obtain informed written consent from both parties to the potential conflict of interest.
C. No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm.
D. No, because preserving women’s access to legalized abortion is such an important fundamental right that it would be improper to limit the abortion clinic’s options for representation in the matter, and other firms may also have conflicts of interest that would preclude representation.
C. No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm.
An attorney worked for a small plaintiffs’ firm in Dallas, Texas. The firm undertook the representation of the victim, who suffered severe injuries in a traffic accident with a large truck, allegedly due to the truck driver’s negligence. The attorney was not involved in the case at all; another associate at the firm represented the victim in the lawsuit. Big Firm, which has offices in several states, is defending the trucking company in the personal injury lawsuit brought by the victim. The attorney’s small firm has a single office and a computer network that allows the five lawyers there to share documents and files from all their cases with each other. Any lawyer in the firm could access all of the other lawyers’ documents, which saved time as lawyers could copy and paste from various motions and pleadings that other lawyers had drafted previously on unrelated matters. Every Thursday afternoon, there was a mandatory meeting of the lawyers in the firm, in which they discussed whether to accept the cases of new potential clients, and they discussed how the pending litigation of each lawyer was proceeding. The lawyers exchanged advice and suggestions for one another’s cases. The attorney did not make partner at the small firm, so he left and went to the Kansas satellite office of Big Firm instead. Big Firm assigned the attorney to work on the trucking company case, the same case in which his pervious firm represented the opposing party. The attorney had not worked previously on the case and had heard about it only in passing during the weekly litigation meetings at his previous firm, and now remembers almost nothing from the conversations. Should the attorney be subject to disqualification from defending the trucking company?
A.Yes, if a lawyer has general access to files of all clients of a law firm and regularly participates in discussions of their affairs, it creates an inference that such a lawyer in fact is privy to all information about all the firm’s clients, and the burden of proof should rest upon the firm whose disqualification is sought.
B. Yes, because the attorney is familiar with all the litigators at the firm of opposing counsel and knows each of their strengths and weaknesses as litigators and what strategies they like to use, which would give the attorney an unfair advantage in any case in which they serve as opposing counsel.
C. No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.
D.No, because the attorney now works for a firm in Kansas and the opposing counsel has its office only in Texas, so the attorney would not be subject to disqualification.
A. Yes, if a lawyer has general access to files of all clients of a law firm and regularly participates in discussions of their affairs, it creates an inference that such a lawyer in fact is privy to all information about all the firm’s clients, and the burden of proof should rest upon the firm whose disqualification is sought.
