Question 1.1

Partner, a partner in Firm, represents A in employment discrimination suit against B Corp.

• May another lawyer at Firm represent B Corp. in that case?
• What if Firm has 1000 lawyers in offices throughout the US and abroad. Partner works in the NY office. May Associate in London office – who has never met nor communicated with Partner – represent B Corp?

Question 1.2

Lawyer represents A in personal injury suit against B.

• May Lawyer represent C in purchase of A’s house?
• May Lawyer represent D in formation of partnership with A?
• May Lawyer represent E in unrelated contract suit against A?
• May Lawyer represent B in case of A v. B?
• Which, if any, of these conflicts are waivable?

Question 1.3

A, B, & C are charged with armed robbery of a liquor store. A & B met together with Attorney and asked Attorney to represent them both. Attorney interviewed A & B separately. Each told Attorney that C had committed the robbery while A & B sat outside the store, that C told them he was going in to buy a bottle of whisky, and that they had no idea C was going to rob the store.

• May Attorney represent both A & B?
• One week before trial, A tells Attorney he wanted a plea bargain, and that he was willing to testify that B loaned C the gun used in the robbery. What must Attorney do?

Question 1.4

A & B decide to form a limited partnership. A will contribute 100% of the cash, and B will devote 100% of his time to the partnership. They ask Attorney to represent them both in drafting the partnership agreement and filing the necessary paperwork with the state.

May Attorney do so?

Question 1.5

Attorney represents A, who was fired as in-house counsel for 123 Corp., in an appeal of A’s lawsuit against his former employer. The issue on appeal is whether an in-house lawyer may assert a claim for wrongful discharge against her employer-client. Meanwhile, XYZ Corp. has asked Attorney to represent it in a pending appeal of a suit brought against XYZ by B; that suit involves the same legal issue, but in this case Attorney would be arguing the opposite legal position.

• May Attorney represent both A and XYZ in their respective appeals, if both cases are before the NC Court of Appeals?
• What if A’s case is before the NC Court of Appeals, and XYZ’s case is before the Virginia Supreme Court?
• Assuming Attorney is disqualified from representing XYZ, may another lawyer in Attorney’s firm represent XYZ in its appeal?

Question 1.6

Attorney A currently represents Builder, a building contractor who is the plaintiff in a suit to recover for breach of contract to build a house. Builder also has pending before the zoning commission a petition to rezone property Builder owns. Builder is represented by Attorney B in the zoning matter. Neighbor, who owns property adjoining that of Builder, has asked Attorney A to represent Neighbor in opposing Builder’s petition for rezoning.

• May Attorney A represent Neighbor?
• If Attorney A is disqualified from representing Neighbor, may Attorney A refer the matter to one of her partners or associates?

Question 1.7

The Smith family (mother, father, three adult children, and son-in-law) visit Lawyer for estate planning advice. Each family member needs a new will. All family members are in accord with regard to the distribution of the family’s assets.

May Lawyer write wills for all of them?

Question 1.8

Lawyer, a partner with the Jones Law Firm, is retained by Allstate Insurance Company to represent one of its policyholders (B), who was involved in an auto accident with C. Lawyer will be paid by Allstate.

• Who does Lawyer represent?
• During the representation, B admits that he was drinking just before the accident. B asks Lawyer not to disclose this information to Allstate. What are Lawyer’s ethical obligations?
• May Allstate use its in-house lawyers to represent its policyholders?

Question 1.9

Alice, plaintiff, is suing Bert and Charlie, defendants, for slip and fall. Bert is represented by Lawyer A. Bert intends to argue that the fall resulted from Alice’s own negligence and, in any event, the staircase on which Alice fell is owned by Charlie. Recently, Charlie has asked Lawyer A to represent him as well.

May Lawyer A do so?

Question 1.10

Wanda, a partner in the Smith Law Firm, represents A in the case of A v. B. B asks Howard, who is a partner in the Jones Law Firm and Wanda’s spouse, to represent B in the litigation.

• Absent informed consent of both clients, may Howard represent B?
• If not, may Howard refer B to one of his partners/associates?

Question 18

Law Firm has offices in cities around the US, including Raleigh and Atlanta. Law Firm’s Raleigh office represents XYZ Company in a case in NC state court against ABC Company. Law Firm’s Atlanta office has been asked by ABC Company to represent it in a wholly unrelated case in Georgia state court.

May Law Firm do so?

Question 19

Law Firm’s Greensboro office is defending XYZ Company through its liability insurer, Vesuvius Insurance Company (which is neither a party to the suit nor Law Firm’s client). Law Firm’s Atlanta office has been asked to sue ABC Corp., which is also insured of Vesuvius Insurance Company, in a wholly unrelated case.

May Law Firm do so?

Question 2.1

Ten years ago, Lawyer represented A in negotiation of employment contract with ABC Corp. During that representation, Lawyer became familiar with A’s financial assets. The representation concluded nine years ago and lawyer has not represented A since then.

• May Lawyer now represent C in a personal injury case against A?
• May Lawyer now represent H in a divorce against A?
• May Lawyer now represent ABC Corp. in an employment discrimination suit filed by A?
• Which, if any, of these conflicts are waivable by A?

Question 2.2

Five years ago, Attorney represented Seller in the sale of Seller’s home. Attorney has not represented Seller since that time. Seller’s business partner has asked Attorney to represent him in a dispute over the dissolution of the business partnership.

May Attorney represent Partner against Seller?

1. No, because the representation is directly adverse to Attorney’s former client

2. No, unless at the time of the sale of Seller’s home, Seller agreed that Attorney would not subsequently be precluded from representing other clients against Seller

3. Yes, because the partnership dissolution is unrelated to the sale of Seller’s home

4. Yes, unless Seller sold the home while in the partnership with Partner.

Question 2.3

Attorney prepared a will for Client and acted as one of the subscribing witnesses to the will. The will left everything to Client’s son. Later, at Client’s request, Attorney prepared a new will for Client, this time leaving half of Client’s estate to Son and half for Client’s butler. Client died, and the Butler sought to collect half the estate under the second will. Son, who believes the second will is the product of fraud and undue influence, asks Attorney to represent him in an action challenging its validity.

May Attorney do so?

Question 2.4

Ten years ago, Attorney represented Husband and Wife on three simple real estate transactions. During these matters, Wife disclosed no confidential information to Attorney. Attorney has not represented Husband or Wife since. Husband and Wife are now getting divorced.

• May Attorney represent Husband in the divorce?
• Would your answer change if the divorce happened just a few weeks after the completion of the last real estate transaction?

Question 2.5

Lawyer is a partner at the Smith Law Firm, which represents A in the case of A v. B. Lawyer has played no role in the case and had no information about it. While the case is still pending, Lawyer leaves the Smith Firm and joins the Jones Firm, which represents B in the suit between A and B.

• May Lawyer represent B in A v. B?
• May other attorneys in the Jones Firm continue to represent B?

Question 2.6

Same facts as the previous question, except that, before he left the Smith Firm, Lawyer was lead trial attorney for A in the case against B.

How (if at all) does this change your answers?

Question 2.7

L is a partner in the Smith Law Firm. While at the Smith Law Firm, L represents P in a contract action against D. L leaves the Smith Law Firm and joins the Jones Law Firm. L takes P (and P’s case against D) with him to the Jones Law Firm. The Smith Law Firm no longer represents P in any matter.

• May the Smith Law Firm now represent D in her action against P?
• May the Smith Law Firm represent X in an unrelated case against P?

Question 3.1

An attorney regularly represents clients in divorce cases. The attorney has fallen in love with a client in the midst of a case, and the two of them are discussing whether it would be appropriate to begin a sexual relationship. Which of the following most accurately describes the lawyer’s options under the Model Rules of Professional Conduct?

1. The lawyer may commence a consensual sexual relationship with the client.
2. The lawyer may not commence a sexual relationship with the client until the representation is concluded.
3. The lawyer may commence a sexual relationship with the client as long as by doing so the lawyer is not unfairly exploiting the lawyer’s fiduciary role and taking advantage of the client’s trust.
4. The lawyer may commence a sexual relationship with the client if the client gives informed consent, confirmed in writing.

Question 3.6

Alexander Abrams is an associate at a multinational law firm. He has interviewed for a job with the small, boutique firm of Levarge & Monahan (L & M). His possible employment by L & M has hit a snag, however, because L & M has realized that Alexander has done work for clients of his current firm on several cases (the “Common Cases”) in which L & M represents the opposing party. L & M wants to hire Alexander but will not risk creating a conflict of interest in its representations of its clients in the Common Cases. Which of the following statements most accurately describes L & M’s options under the Model Rules of Professional Conduct?

1. L & M may hire Alexander if it screens him from any involvement in the Common Cases.
2. L & M may not hire Alexander because he would create a conflict of interest within L & M.
3. L & M may hire Alexander.
4. L&M may hire Alexander only if all parties to the Common Cases consent and that consent is confirmed in writing.

Question 3.7

George Valiant is a new associate in Peabody and Falmouth (PF), a large urban law firm. He works in the corporate department. PF has just been asked to represent a defendant in a large products liability case. A routine conflicts check alerted PF to the fact that George’s wife, Nancy Valiant, is the lead counsel for the opposing party in that case. Which of the following statements most accurately reflects PF’s options with respect to undertaking the new representation?

1. The firm may not undertake the new representation without consent of its client because George has a conflict of interest that will be imputed to all the lawyers in the firm.
2. The firm may undertake the new representation because George will not be working on the case and therefore the firm does not have a conflict of interest.
3. The firm may undertake the case as long as the firm formally screens George from any involvement in the case, notifies the opposing party of the screens, and certifies to its client that George has been screened.
4. The firm may undertake the new representation because George’s conflict will not be imputed to other lawyers in the firm.

Question 3.8

An attorney represents a class of thousands plaintiffs in a consumer credit case. He has just been diagnosed with cancer. Which of the following statements most accurately describes the attorney’s responsibilities under the Model Rules of Professional Conduct?

1. The lawyer must immediately cease his activities on behalf of the class and inform the members of the class that he has withdrawn.
2. The lawyer may withdraw from the representation if his physical condition materially impairs his ability to represent the class.
3. The lawyer must disclose his physical condition to the named representative of the class and may continue to represent the class only with the representative’s informed consent, confirmed in writing.
4. The lawyer must seek to withdraw from the representation if his physical condition materially impairs his ability to represent the class.

Question 3.9

Butch Bauman is an elderly widower who lives at the Autumn Leaves Nursing Home. Mike Steel has been Butch’s attorney for many years. Butch recently had a stroke that has impaired his thinking. Mike knows that for years Butch’s step-daughter has been pestering him to sign Butch’s house over to her, and on his last visit to Autumn Leaves Mike interrupted a visit by the step-daughter. As Mike walked in, he could see the step-daughter had some kind of papers in her hand and was holding Butch’s hand, with a pen in it, up to the papers as if helping him to sign his name. When Mike arrived, the step-daughter abruptly left and refused to speak to Mike or tell him what she was doing. Which of the following statements most accurately reflects Mike’s options under the Model Rules of Professional Conduct?

1. Mike may take reasonably necessary action to protect his client if he obtains consent from the client to reveal the confidential information that makes the action appropriate.
2. Mike must, as far as reasonably possible, maintain a normal lawyer-client relationship with his client.
3. Mike must seek to have a guardian appointed for his client.
4. Mike may take reasonably necessary action to protect his client if his client cannot act adequately in his own interest.

Question 3.10

Steve Katz is a lawyer and a partner in Katz & Morgan (KM), and he meets with Dana Rogers, a prospective new client. Dana is there to discuss a dispute that she is having with her business partner, Roger Wilson, As is his custom, Steve opens the conversation with an open-ended ### Question, “What brings you here to see me today?” In response, Dana pours forth all the issues that have arisen between her and Roger, including several facts that will be significantly harmful to any attempt by Dana to obtain any legal remedy against Roger. At the end of the meeting, Steve tells Dana about his fee structure, and she tells him that he is too expensive. The next week, Roger comes to Steve and asks Steve to represent him in his dispute with Dana. Which of the following statements most accurately describes the options that Steve and KM have under the Model Rules of Professional Conduct?

1. Steve and KM may represent Roger against Dana.
2. Steve may not represent Dana but KM may do so as long as Steve is screened from any participation in the case, receives no income from the case, and Dana is given written notice.
3. Steve and KM may represent Roger as long as Steve does not use or reveal any of the information he gained from his interview with Dana.
4. Neither Steve nor KM may represent Roger in this dispute against Dana.

Question 3.11

Jewel Jackson is a lawyer who routinely requires her clients pay a “retainer” of $2500 at the beginning of any new matter. Jewel places the “retainer” in her firm’s trust account. The retainer is really just a deposit, and Jewel bills $250 per hour against the deposit until it is depleted, and then Jewel routinely asks for an additional deposit. Jewel represented Greg Fox in a matter and followed her usual procedures. Jewel spent 10 hours on the matter, but before she could withdraw the retainer from the trust account, Greg notified Jewel that he thought the $2500 should be returned to him. Which of the follov statements most accurately describes Jewel’s obligations under the Model Rules of Professional Conduct?

1. Jewel must keep the funds separate until the dispute is resolved.
2. Jewel may withdraw the funds because the fees have been earned.
3. Jewel must remit the funds to the client who claims them.
4. Jewel must interplead the funds so that a court can resolve the dispute over them.

Question 3.12

Clayton Ford is a lawyer who has been asked to represent Jimmy Bonner, a college student who has been accused of conspiracy to distribute illegal drugs. Clayton immediately discovers, however, that his law partner has undertaken representation Jimmy’s room mate, who has been charged with being part of the same conspiracy and who has offered to testify against all the other alleged co-conspirators, including Jimmy, in exchange for leniency. Which of the following statements most accurately describes Clayton’s options under the Model Rules of Professional Conduct?

1. Clayton may represent Jimmy because Clayton does not personally represent Jimmy’s roommate.
2. Clayton may not represent Jimmy.
3. Clayton may represent Jimmy as long as Clayton and his law partner are each screened from any involvement in the other’s case.
4. Clayton may represent Jimmy as long as Jimmy and his roommate each give informed consent to the representation.

Question 3.13

Edward is a lawyer who routinely defends pharmaceutical companies in product liability actions. Edward is currently representing the co-defendants ABEX, Inc. (AI) and EMU Laboratories Corp. (ELC) in a case involving an alleged defect in a medicine to treat ringworm. Al has now instructed Edward to file a cross-claim agains The cross-claim would allege that ELC bears all responsibility for the loss because of a failure to properly test and/or analyze the test results for the medicine. Which of the following statements most accurately describes Edward’s options under the Model Rules of Professional Conduct?

1. Edward may file the cross-claim as long as both clients give informed consent.
2. Edward may file the cross-claim.
3. Edward may not file the cross-claim for one client against another client.
4. Edward may have the cross-claim filed by one of his partners.

Question 3.14

Elsie Todsen is a lawyer who at one time represented the Bobbitt Air Conditioning Company (BACC) in connection with negotiations arising out of an accident involving John DeGarmo. Before the negotiations were complete, BACC discharged Elsie. John has now asked Elsie to file suit on his behalf against BACC for the same accident. Which of the following statements most accurately describes Elsie’s options under the Model Rules of Professional Conduct?

1. Elsie may not under any circumstances sue her former client in the same matter in which she formerly represented that client.
2. Elsie may not personally represent John but her firm may do so as long as Elsie is screened from any participation in the matter and receives no part of the fee.
3. Elsie may not represent John without BACC’s informed consent, confirmed in writing.
4. Elsie may represent John as long as she reasonably believes that in doing so she can protect BACC’s confidential information.

Question 3.15

Michelle DuPont is an attorney who until recently was a partner in the law firm of Dwight & Richards (D & R). Because of a dispute over her share of D & R’s profits, Michelle recently left the firm and started her own firm. Michelle took her biggest client, Tom’s Technology Services, Inc. (TTS), with her, including all the matters on which D & R was working for TTS at the time of Michelle’s departure. One of those matters was a suit against TTS for installation of a defective set of computer servers at Goliad Enterprises (GE). When Michelle left the firm, she took with her as employees of her new firm all of the lawyers who had confidential information about any of TTS’s matters except Joey Oberlin, a young associate who had helped with the GE v. TTS litigation. Now, GE has asked D & R to represent GE in its litigation against TTS. It is clear that TTS will not consent to this. Which of the following statements most accurately states D & R’s options under the Model Rules of Professional Conduct?

1. D & R may undertake the representation of GE as long as Oberlin is screened from any participation in the case and receives no part of the fee from it.
2. D&R may not undertake the new representation because it would be switching sides in the GE v. TTS litigation.
3. D & R may not undertake the new representation because Oberlin is still with the firm.
4. D&R may undertake the new representation because TTS is no longer a client of the firm.

Question 3.16

Lawyer Carleton McAllister represents criminal defendants. As a favor to an old friend, Carleton agrees to represent the friend’s indigent nephew on murder charges in a notorious case. Carleton agrees to waive his usual fee but needs to expend considerable sums to conduct investigations regarding both the guilt and the sentencing phases. The client does not have the money to pay these expenses. Which of the following best states Carleton’s options under the Model Rules of Professional Conduct?

1. Carleton may pay the expenses himself.
2. Carleton may acquire the literary rights to the nephew’s story and pay the expenses from the royalties earned later on the use of those rights.
3. Carleton may advance the costs of the expenses himself but must obtain the client’s agreement to repay the sums advanced.
4. Carleton may not pay or advance the expenses because that is prohibited financial assistance to a client.

Question 3.17

Jenna Weatherby was an attorney with the State Department of Transportation (SDOT). As a junior lawyer for SDOT, she helped her superiors to brief various issues that came before the courts related to the controversial expansion of Arbor Road in Capitol City. Her work supported the expansion. Now that she is in private practice, Jenna has been asked by the Chamber of Commerce of Capitol City to represent it as an intervenor in litigation brought against SDOT by Citizen Opposed to Arbor Road Expansion (COARE) to stop the expansion. The Chamber would be intervening to argue in favor of the expansion of Arbor Road. Which of the following most accurately states Jenna’s options under the Model Rules of Professional Conduct?

1. Jenna may represent the Chamber because her new client is on the same side of this controversy as her former client.
2. Jenna may represent the Chamber because she was not lead counsel for SDOT.
3. Jenna may not represent the Chamber without the informed consent of SDOT.
4. Jenna may not represent the Chamber.

Question 3.18

Pamela Harper is an attorney who recently had the misfortune to be a defendant in a legal malpractice case. Because that experience was so terrible, she would like to obtain routinely from her clients advance waivers of claims against her for malpractice. Which of the following statements most accurately describes Pamela’s options under the Model Rules of Professional Conduct?

1. Pamela may obtain an enforceable advance waiver of claims against her for malpractice if she provides sufficient information to enable the client to give informed consent.
2. Pamela may obtain an enforceable advance waiver of claims against her for malpractice only if her client is independently represented in making the agreement.
3. Pamela may obtain an enforceable advance waiver of claims against her for malpractice as long as the client is informed in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel.
4. Pamela cannot obtain an enforceable advance waiver of claims against her for malpractice.

Question 3.19

Kara Brown is a new attorney at the Law Offices of Nagy & Nagy (NN). The firm specializes in criminal defense but typically does not represent those accused of violence en. To her surprise, one day Kara comes to work and discovers that the firm has assigned her to work on the defense of Grover Wellington III, a young man who has been accused in a brutal sexual assault at the local college. Because of personal experiences, Kara is unable to render competent and diligent representation to anyone accused of such a crime. Which of the following statements most accurately describes the firm’s options with respect to its representation of Wellington?

1. The firm may represent Wellington as long as Kara does not participate in the case.
2. The firm may not represent Wellington because Kara has a conflict of interest that will be imputed to all the lawyers in the firm.
3. The firm may represent Wellington as long as Kara is screened from participation in the case and receives no part of the fee therefrom.
4. Kara and the firm may represent Wellington as long as the client gives informed consent to Kara’s conflict.

Question 3.20

Leah Peterson is an attorney who specializes in estate planning. Her long-time client, Jacob Daniels, who is not related to Leah, has come to her and asked her to revise his will, now that Jacob’s wife and children have all predeceased him. Jacob tells Leah that he would like to make a substantial bequest to Leah’s daughter for purposes of her education. Which of the following most accurately describes Leah’s obligations under the Model Rules of Professional Conduct?

1. Leah may prepare Jacob’s revised will to provide the bequest as long as Jacob gives his informed consent to the gift to Leah’s daughter and as long as Leah reasonably believes that Jacob has the mental capacity to give that consent.
2. Leah may not prepare the new will if it contains a substantial bequest to her daughter.
3. Leah may prepare the new will as long as it does not contain a substantial bequest to Leah.
4. Leah must not permit Jacob to make a substantial bequest to her daughter.

Question 3.21

Nancy Hall is an attorney who formerly represented Lisa Logan in connection with Logan’s plans to develop a shopping center. Logan terminated Hall’s representation when Logan decided to delay, but not cancel, the plans for the shopping center. The plans for the shopping center are still secret. Hall now has the opportunity to purchase land next to the proposed site of the center at an advantageous price, and she is tempted to do so because she knows that Logan will need the land for parking when she develops the shopping center. Which of the following statements most accurately describes Hall’s options under the Model Rules of Professional Conduct?

1. Hall may not purchase the land unless she obtains the informed consent of her former client.
2. Hall may purchase the land because Logan terminated her services and forfeited any right to confidentiality of her plans.
3. Hall may purchase the land as long as she first informs the seller of her former client’s plans to develop the shopping center.
4. Hall may purchase the land because Logan is a former client.

Question 3.22

Randall Young is an attorney who specializes in commercial real estate transactions. One of Young’s regular clients is about to close a sale of a property to an out-of-state buyer. Young is assisting his client with the transaction. The client now tells Young that, unbeknownst to the buyer, the property has been “flipped” several times in order to bring a higher sale price. Under the applicable law, the practice of “flipping” property without disclosing that it has occurred is fraud. Which of the following statements most accurately describes Young’s options?

1. The lawyer must not assist with the transaction but must not reveal the fraud to the buyer.
2. The lawyer may assist with the transaction but has the option to tell the buyer about the fraud.
3. The lawyer may assist with the transaction and may not tell the buyer about the fraud.
4. The lawyer must not assist with the transaction.

Question 3.23

A lawyer regularly represents plaintiffs in automobile accident cases. She represents Jeremiah McFarland and obtains a sizeable judgment for him, despite the assertion of a comparative negligence defense based upon allegations that Jeremiah habitually sends text messages while he drives. A year later, the lawyer is asked to represent a new plaintiff, this time for a car accident allegedly caused by Jeremiah, who will be the defendant. May the lawyer undertake the new representation?

Question 3.24

A lawyer agrees to represent an elderly husband (who has three children from an earlier marriage) and his new young wife in the creation of their wills and other documents related to their estate plans. The lawyer perceives that there is a significant risk of a material limitation in his representation of the wife because of the lawyer’s duties to the husband, and vice versa (for example, the husband and wife may differ over disposition of any of his assets to his children). The lawyer reasonably believes that he can nevertheless provide competent and diligent representation to both clients. What must the lawyer do in order to proceed for both of them?

Question 3.25

Matt Hollis is an attorney who works as in-house counsel for a company that provides technical support for on-line video gaming. In the ordinary course of its business, the company acquires the credit card numbers of the players who use the company’s services. Matt has just learned that one division of the company has been inflating its profitability figures by illegally selling the credit card numbers. When Matt confronted the manager of this division, the manager told Matt that she was not going to stop the practice and that Matt was instructed to keep it quiet. What is Matt’s obligation under the Model Rules of Professional Conduct? Nina Majors is an attorney who has been representing five families who own lots on the same “resort lake.” Nina has filed suit on behalf of each homeowner against the seller of the lots because, as it turns out, the lots flood on a regular basis. The seller has made a settlement offer to settle all five claims for a total of $250,000, with the amounts allocated to each plaintiff to be proportional to the size of the lot owned by that plaintiff. Under the Model Rules of Professional Conduct, what steps must Nina take with respect to the settlement?

Question 3.26

Sylvia Greco is an attorney who has been representing Millbank Food Stores, Inc. on a variety of matters, off and on, for many years. Sylvia has just completed her only pending matter for Millbank, and Sylvia has decided that she will not represent Millbank on any future matters. Is it necessary or advisable for Sylvia to affirmatively terminate her relationship with Millbank even though she no longer has any open files for the company? Why or why not?

Question 3.27

Donder, English, and Fredrickson (D E & F) is a large law firm that regularly seeks and obtains advance waivers of conflicts of interest from new clients. The firm recently obtained such an advance waiver from Stardust, Inc., when the firm agreed to represent Stardust in a multi-party lawsuit. Stardust is a sophisticated consumer of legal services and was independently represented entered into the advance waiver. Now a distant branch office of D E & F has been retained by a different client to assert a claim against Stardust in the same case for which Stardust initially hired D E & F. Is the advance waiver effective such that this representation by the branch office will be permitted?

Question 3.28

A lawyer specializes in defending cases in which the defendant is charged with driving under the influence. The lawyer receives a call from Osgood Slater, who asks the lawyer to represent Osgood’s son, who has just been charged with that crime. Osgood tells the lawyer that Osgood will pay for the representation. Under what circumstances, if any, may the lawyer undertake the representation of Osgood’s son?

Question 3.29

Rene Hotchkiss is an attorney who currently represents the Allgood Insurance Company (AIC). She has been asked to represent a plaintiff in a lawsuit involving an automobile accident. The defendant’s insurer is AIC, and this is not a “direct action” state. Rene’s partner has told her that she absolutely cannot take this new case because she “cannot sue his own client.” Rene thinks that maybe she can undertake this new representation. Who is right, Rene or her partner?

Question 3.30

Abby Peters is an attorney who regularly represents Herman Maris. Abby has now been asked by Herman’s mother Nancy to re-draft Nancy’s will to disinherit Herman. Such a step would be legal in their state, and Nancy does not want advice about whether to disinherit Herman — she just wants Abby to “draw it up.” Does Abby have a conflict of interest?

Question 3.31

Lawyer represented Client in a criminal matter. The case went to trial, and Client decided he wanted to testify. Client also wanted to call his girlfriend as an alibi witness. Lawyer did not want to call either Client or the girlfriend as witnesses, believing that the testimony would hurt Client’s case more than help it. Which response most accurately describes Lawyer’s professional responsibility in deciding whether to call Client and his girlfriend as trial witnesses?

1. Lawyer may decide, after consultation with Client, whether to call Client and his girlfriend as witnesses.
2. Lawyer may decide, after consultation with Client, whether to call Client’s girlfriend, but Lawyer must call Client as a trial witness.
3. Client must decide whether he and his girlfriend will testify, because both decisions qualify as objectives of representation.
   
4. Lawyer must defer to Client’s wishes, because Lawyer worked as an agent to Client, who was the principal in this relationship.

Question 3.32

Lawyer represented Client in a criminal drug case. The prosecutor telephoned Lawyer and communicated a “now or never” two-year plea offer for Client. Lawyer did not tell Client about the offer, because Lawyer thought the offer was a lousy deal and Client should go to trial. Several months later as trial was about to begin, the prosecutor mentioned the previous plea offer in court. Client turned to Lawyer and said, “Why didn’t you tell me? I might take that offer.” The prosecutor indicated that the offer actually remained available if Client accepted it before the trial began. Lawyer consulted with Client, and advised Client, “I have investigated this case thoroughly. We have a strong defense. You face only three years if convicted after trial. I think you should go to trial and reject this offer.” Client followed Lawyer’s advice and went to trial. Is Lawyer subject to discipline for not telling Client about the plea offer for several months?

1. No, because Client learned of the plea offer ultimately at a time when he still could accept it, so Client was not prejudiced.
   
2. No, if Lawyer reasonably believed the plea offer was a bad deal.
3. Yes, because Lawyer had a duty timely to notify Client of a plea offer in his case.
4. Yes, but only if Client requested this information. E. No, because Client ultimately rejected the plea offer.

Question 3.33

Client was injured when a physician’s assistant improperly treated Client when he was in the hospital for a heart condition. Client consulted with Lawyer about suing the hospital. Lawyer never had handled a medical malpractice case previously, but was confident in her abilities because she had experience in plaintiff’s work and in trying civil cases, and planned to educate herself about medical malpractice claims. Accordingly, Lawyer accepted the representation. The case ultimately went to trial, and Lawyer lost the case. Client sued Lawyer for malpractice. Which of the following circumstances likely would demonstrate Lawyer’s breach of her duty of competence to Client? Select all that apply:

1. Lawyer accepting a medical malpractice for the first time.
2. Lawyer decided to call only one of expert medical witnesses with whom she had consulted as trial witnesses, when Client believed that the jury would be more impressed if Lawyer called multiple experts.
3. Lawyer did not investigate whether any other staff at the hospital witnessed the alleged improper treatment of Client.
4. Lawyer did not discover a published regulation governing required staff-to-patient ratios at the hospital.
5. Lawyer did not consult with an available expert about staff-patient ratios necessary to ensure reasonably safe medical treatment.

Question 3.34

Lawyer represented Client in a divorce matter. Client told Lawyer, “I plan to hide some of my assets so I don’t have to pay my ex-spouse as much money. You work for me, so just do what I say. I’ll take care of the books, you just argue the assets I report to you.” Lawyer responded by explaining why Client’s proposed course of action was improper and the consequences of this course of action. After giving this advice, Lawyer said, “You sleep on this decision. Call me tomorrow and let me know whether you have changed your mind.” Is Lawyer subject to discipline?

1. Yes, because Lawyer advised Client regarding a crime or fraud proposed by Client.
   
2. Yes, because Lawyer was required to withdraw from the representation once Client requested that Lawyer assist Client in a crime or fraud.
3. No, because Client controlled the objectives of representation and Lawyer acted merely as an agent to Client’s wishes.
4. No, because Client did not propose that Lawyer directly engage in a crime of fraud.
5. No, because Lawyer properly advised Client and awaited a final decision from Client before deciding whether to withdraw.

Question 3.35Based on Javier Cercas, The Motive.

Álvaro is a lawyer and writer. He is working on a new novel about a young couple who decide to kill their elderly neighbor and steal the money he keeps in a safe in his apartment. The characters are based on Álvaro’s neighbors, the young couple Enrique & Irene Cesares and the elderly Señor Montero. For inspiration, Álvaro has been listening in on his neighbors’ conversations, which he can overhear from the bathroom of his apartment.

Meanwhile, Enrique Cesares is laid off from his job, and he asks Álvaro whether he has any legal grounds to contest the layoff. Seeing an opportunity to get more insight into his characters, Álvaro agrees to help. The following excerpt from The Motive discusses Álvaro’s work on the case and his subsequent discussion with Enrique Cesares:

For some time, the writing of the novel was put on hold. Álvaro spared no effort in studying Enrique Cesares’ case. He obtained all the relevant information, examined it carefully, studied it, revised it several times, checked the case against other analogous ones. He arrived at the conclusion that, in effect, it would be possible to appeal against the [layoff], with a virtual guarantee of success. In the worst case, the severance pay the company should be obliged to provide if the dismissal was carried out was almost double the paltry sum his neighbor had been offered.

Once the situation was clarified, he reflected cautiously. He considered two options:

1. If he appealed the dismissal it was very likely Cesares would manage to keep his job or, at least, that the damage would be far less—on the hypothesis that the company might choose to resort to a paragraph of the law which stated that they had no obligation to readmit a dismissed employee to his post. In this case—Álvaro continues—I will have won Cesares’ gratitude, but I will also have lost time and money, since I have no intention of sinking so low as to charge him a fee.

2. If he allowed events to take their natural course, without intervening in them, he would still gain his neighbor’s friendship and appreciation, given that he would understand and respect all the disinterested attention Álvaro had devoted to his problem. Besides, Álvaro wouldn’t charge him a cent for all the time generously spent on it. On the other hand, it was certain that the loss of his job—their only source of sustenance—would have repercussions on the couple’s relationship, which might deteriorate in such a way as to make possible that he, Álvaro, might be able to expect to hear, from his surveillance post by the ventilation window, the vicissitudes of that process of deterioration, which he’d undoubtedly be able to use in his novel. This would facilitate his work enormously as he would enjoy the possibility, so long nurtured, of obtaining from the couple the material he needed to proceed with and conclude his work.

He arranged to see Cesares. He explained the steps he’d taken, his investigations at the ministry and the union, illustrated the situation with analogous examples, clarified the various juridical details, added data the factory had supplied. Finally, he invented interviews and lied coldly.

He concluded, “I don’t think there’s the slightest chance they’ll accept the appeal.”

Was Álvaro’s conduct proper under Rules 1.7 & 1.8?

Does Álvaro’s conduct breach any other obligations under the Model Rules?