Quiz 3 PR - Wh Flashcards
Attorney represents seller who has been sued for breach of an oral agreement to sell a
breeding llama (I assume this is a thing – just go with it ). As it turned out, the llama was already pregnant at the time the parties made their agreement. Seller agreed to sell the llama to purchaser, and received payment, but before delivery of the llama to the
purchaser, seller discovered that the llama was pregnant. Seller then reneged on the
agreement because delivering a pregnant llama to the purchaser would be like giving the
purchaser one animal (the expected baby llama) for free.
Seller suggested to his attorney that they assert a mistake of fact defense to the oral
contract, claiming that neither he nor the purchaser knew or could have known that the llama was pregnant at the time of sale or would somehow become pregnant in the short time between payment and delivery. Seller’s attorney researched past court decisions and concluded that mistake of fact claims usually lose in scenarios like this. Moreover, in her various discussions with seller, the story has changed a little each time.
Attorney now suspects that seller is either lying or is so confused that he will not be a credible witness at trial. Attorney would like to withdraw before filing an answer to the lawsuit asserting a defense of mistake of fact, because she knows they will probably not
win, and she is not even sure if seller is telling the truth. Nevertheless, seller insists that attorney should file the answer before withdrawing from the case, so that the seller does not miss the deadline and face a default judgment but does not mind if he must find another lawyer to handle the discovery and trial phase.
Would it be proper for attorney to file the answer to the pleadings, asserting a mistake of
fact defense?
A. No, because the attorney’s research has led her to the conclusion that courts usually disfavor such defenses as a rule.
B. Yes, because the client’s defense has some basis in fact and law, even if it seems improbable in both regards.
C. Yes, because a lawyer should follow the client’s wishes about what to file or include in
the pleadings.
D. No, because the attorney suspects her client is either lying or is confused
about the facts.
B. Yes, because the client’s defense has some basis in fact and law, even if it seems improbable in both regards.
Evil Everly committed a spectacular crime that garnered media coverage, and her arrest
and prosecution led to even more media attention. Everly’s criminal defense attorney in the
matter was asked by a reporter for a comment on the case. The attorney told the reporter,
“I’m sure the only one guilty of anything here is the media. Everyone knows my client is
innocent, and that the police framed her.”
Were the attorney’s comments proper under the Model Rules?
A. Yes, because a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.
B. No, because a lawyer should not publicly express any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration.
C. No, because a lawyer participating in a criminal proceeding shall not make any extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication.
D. Yes, because it was unlikely to have a materially prejudicial effect on an adjudicative
matter.
B. No, because a lawyer should not publicly express any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration.
While conducting research on a litigation matter, plaintiff’s attorney finds a very new case from the highest court in a neighboring jurisdiction that is directly adverse to his client’s legal position in the case. The issue presents a case of first impression in the jurisdiction where the case is taking place. The opposing party did not mention the case in its briefs,
and plaintiff’s attorney realizes that the opposing party’s lawyer has been recycling his firm’s briefs for this type of case for several years without updating his research. Does the plaintiff’s attorney have an ethical duty to disclose the unfavorable authority to
the court?
A. No, because it would be a breach of the attorney’s duty of loyalty to his own client to disclose a case that undermines their position.
B. Yes, because it is common for litigators to recycle their briefs for years at a time, and lawyers should help each other with updating relevant legal research.
C. No, because the case is not controlling authority in that jurisdiction.
D. Yes, because a lawyer must disclose to the tribunal legal authority known to the lawyer
to be directly adverse to the position of the client and not disclosed by opposing
counsel.
C. No, because the case is not controlling authority in that jurisdiction.
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?
A. Yes, because both parties were given a full opportunity to present their views on the issues in the case.
B. Yes, because the attorney did not make any suggestion as to how the judge should decide the matter.
C. No, because the attorney caused the judge to reopen a case that had been taken under
advisement.
D. No, because the attorney communicated with the judge on a pending matter without advising opposing counsel.
D. No, because the attorney communicated with the judge on a pending matter without advising opposing counsel.
A criminal defendant was convicted of homicide five years ago in a county court and sentenced to life in prison. The chief county prosecutor, who had previously secured the defendant’s conviction, recently learned of new forensic tests that provided clear and convincing evidence of the defendant’s innocence. The prosecutor disclosed this new
evidence to the court, which appointed a lawyer to represent the defendant. The prosecutor also disclosed the new evidence to the defendant’s lawyer.
The defendant’s lawyer moved to set aside the conviction under a state law that requires
the court to vacate a criminal conviction when newly discovered evidence or information establishes that a convicted defendant did not commit the crime of which he was convicted. However, the prosecutor opposed the motion. Although the prosecutor knew
that there was clear and convincing evidence of the defendant’s innocence, the prosecutor believed that he had a professional obligation to advocate in favor of upholding the defendant’s conviction. Although the court eventually ruled in the defendant’s favor and ordered the state to release him from prison, the defendant remained in prison for a
substantial period of time while the motion was litigated.
Was the prosecutor’s conduct proper?
A. No, because the prosecutor opposed the motion to vacate the defendant’s
conviction instead of seeking to remedy the conviction.
B. No, because the prosecutor secured the conviction of an innocent person.
C. Yes, because the prosecutor disclosed the new evidence to the defendant’s lawyer.
D. Yes, because the prosecutor disclosed the new evidence to the court.
A. No, because the prosecutor opposed the motion to vacate the defendant’s conviction instead of seeking to remedy the conviction.
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.
Attorney contacted the mother without the knowledge or consent of the agency or its lawyers. 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, attorney prepared and the mother signed an affidavit truthfully stating that the respondent was not the father of the child.
Is attorney subject to discipline?
A. Yes, because the attorney acted without the knowledge or consent of the agency or its lawyers.
B. No, because all of the attorney’s statements to the mother were true.
C. Yes, because the attorney implied that he was disinterested in the matter.
D. No, because the attorney did not give the mother legal advice.
C. Yes, because the attorney implied that he was disinterested in the matter.
Five years after a defendant was convicted for murder in State A, another individual (the
victim’s ex-boyfriend) has come to the police station in State B and confessed to committing the very murder for which the defendant is already serving a life sentence. The detective from State B called the prosecutor in State A, who came to the police station in State B to hear the ex-boyfriend’s confession. Once the prosecutor arrived, the ex- boyfriend explained he just “lost his mind” when the victim broke up with him, and he has carried around regret and guilt all these years. The defendant always maintained his innocence and the basis of his conviction was an identification in a lineup by a single eyewitness. The ex-boyfriend bears a striking resemblance to the defendant.
Does the prosecutor in State A have a duty to report this to the defendant?
A. Yes, and the prosecutor has fulfilled his duty.
B. Yes, because the prosecutor knows of new credible evidence creating a reasonable likelihood that a convicted defendant in his jurisdiction did not
commit the offense of which the defendant was convicted.
C. No, the prosecutor should report it to the defendant himself and urge him to file a
habeas corpus petition in federal court.
D. No, assuming the defendant received a fair trial and had representation by counsel, a judgment of the court is final, and the new evidence is irrelevant.
B. Yes, because the prosecutor knows of new credible evidence creating a reasonable likelihood that a convicted defendant in his jurisdiction did not
commit the offense of which the defendant was convicted.
Attorney represents a police officer in a labor arbitration based on a grievance for failing to
receive a promotion commiserate with his seniority and rank in the department. During the opening statement, attorney for the police officer characterized her client as a seventeen- year veteran of the force. During preparations for the following day’s testimony, she realized that she misspoke and that her client has been on the police department for fifteen years.
Does the attorney have an obligation to correct her misstatement?
A. No, because an arbitration is not a “tribunal.”
B. Yes, because it is false and material.
C. Yes, because it was false.
D. No, because the lawyer did not affirmatively know it was false when made.
B. Yes, because it is false and material.
Following an acrimonious divorce, Betsy hired an attorney to represent her in litigation over the custody of her children. Betsy was concerned about her former best friend, in whom she had confided about her struggles with substance abuse and mental illness. The friendship had ended because of an intense argument before Betsy married and had
children. In fact, Betsy had been free from substance abuse since she married and was now managing her mental health issues very well. Betsy’s attorney located the former friend, explained that the client was fighting for custody of her children, and that he expected the ex-husband’s lawyer would call her to testify about the client’s former troubles at the
hearing. Betsy’s attorney pleaded with her to show consideration for the years of good friendship with Betsy and to refuse to betray her former friend’s confidence. The former friend felt deeply moved by this entreaty and agreed to stay out of the litigation.
Were the attorney’s actions proper?
A. No, because a lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party, except in
circumstances that do not apply here.
B. Yes, because a lawyer may request that someone refrain from voluntarily giving
relevant information to another party.
C. Yes, as long as the lawyer reasonably believes that the friend’s interests will not be
adversely affected by refraining from giving such information.
D. No, because the lawyer has a duty to think about the best interests of the children in
this case, rather than his client’s convenience or feelings.
A. No, because a lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party, except in
circumstances that do not apply here.
Bill Hill hired attorney to represent him in an employment discrimination matter. The
plaintiff, a school teacher, alleges that her former employer, Bill Hill, discriminated against her in her terms and conditions of employment by requiring more work of her than other similarly situated employees. When Bill Hill took the witness stand at trial, he asserted that all teachers that he employed were required to do the same amount of testing including requiring essays for all exams. As it turns out, Bill Hill committed perjury, but his attorney
did not know it at the time. Bill Hill won his case and there was no appeal of the verdict. A year later, Bill Hill boasted to attorney that he successfully lied to the court and won the case as a result.
Does attorney have an ethical duty to disclose to the tribunal that the perjury occurred?
A. No, unless the judge at some later time specifically asks the lawyer if his client committed perjury.
B. Yes, because when a lawyer represents a client in an adjudicative proceeding and knows that a person has engaged in fraudulent conduct related to the proceeding, the lawyer shall take reasonable remedial measures.
C. Yes, because if a witness called by the lawyer has offered material evidence and the
lawyer comes to know of its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
D. No, because a lawyer’s duty to take remedial measures after perjury occurs
continues only to the conclusion of the proceeding, including time for appeals.
D. No, because a lawyer’s duty to take remedial measures after perjury occurs
continues only to the conclusion of the proceeding, including time for appeals.
