This is the second of six posts in which I will analyze the essay questions from the February 2013 California bar exam and will provide sample answers. Below is the essay question from the California Bar website (here). As you can see, it was a professional responsibility question. I’ve bolded the facts that I thought were especially relevant. My general thoughts and sample answer are after the jump.
Essay Question
Carol, a woman with young children, applied to rent an apartment owned and managed by Landlords, Inc. Landlords, Inc. rejected her application.
Believing that Landlords, Inc. had rejected her application because she had young children, Carol retained Abel to represent her to sue Landlords, Inc. for violation of state anti-discrimination laws, which prohibit refusal to rent to individuals with children.
Landlords, Inc. retained Barbara to represent it in the lawsuit. Barbara notified Abel that she represented Landlords, Inc.
Abel invited Ford, the former manager of rental properties for Landlords, Inc., to lunch. Ford had participated in the decision on Carol’s application, but left his employment shortly afterwards. Abel questioned Ford about Landlords, Inc.’s rental practices and about certain conversations Ford had had with Barbara regarding the rental practices and Carol’s application.
During a deposition by Barbara, Carol testified falsely about her sources of income. Abel, who attended the deposition, suspected that Carol was not being truthful, but did nothing.
After the deposition ended and Carol had left, Barbara told Abel that Landlords, Inc. would settle the dispute for $5,000. Abel accepted the offer, signed the settlement papers that day, and told Carol about the settlement that night. Carol was unhappy with the amount of the settlement.
What, if any, ethical violations has Abel committed? Discuss. Answer according to California and ABA authorities.
General Thoughts
This is your standard professional responsibility question. No surprises here. There were a few solid violations and other non-issues that you could discuss if you had extra time.
Sample Answer
Note: I tried to cover all of the issues that I saw in detail. I did not write this under testing conditions, so I do not mean to imply that this is a "passing" answer. This is just meant to help you see some of the issues and potential analysis. Anything that you think I missed? Reach any different conclusions? Was it worth addressing the exceptions to the duty of confidentiality? Do you think you could get a few extra points by noting that the claim was not frivolous based on the facts? Please chime in with a comment.
Abel's Lunch with Ford
An attorney has a duty of fairness to adversaries.
Communicating with Represented Party
Unless otherwise authorized by law, you must not communicate with a party you know is represented by counsel on the matter absent consent of his or her counsel. The ABA extends this rule to anyone represented by counsel - not just a party.
Here, Ford is a former employee of Landlords, Inc. It does not appear from the facts that he is a party to the lawsuit (i.e., that he was also personally sued) or that Barbara represents him. Thus, Ford is not represented by counsel.
Therefore, Ford was not violate the ethical rule against communicating with a represented party. However, as discussed below, California has a special rule regarding communications with former employees – not just represented parties.
Communicating with Former Employee
In California, consent of counsel is required for interviews of an officer, director, managing agent, or any current employee whose communications might bind or be imputed to the organization or constitute an admission under the rules of evidence. Former/unrepresented employees can be interviewed without consent. However, care should be taken to respect the opponent's attorney-client privilege.
Here, Ford is the former manager of rental properties for Landlords, Inc. He is not a current employee of Landlords, Inc. Ford had participated in the decision on Carol’s application. Abel invited Ford to lunch and questioned him about Landlords, Inc.’s rental practices and about certain conversations Ford had had with Barbara regarding the rental practices and Carol’s application. Abel interviewed Ford without Barbara’s consent, which is ethical. However, he did not exercise the necessary care to respect the opponent’s attorney-client privilege. Abel asked Ford about certain conversations Ford had had with Barbara regarding the rental practices and Carol’s application.
Therefore, while Abel was permitted to communicate with Ford without consent, he committed an ethical violation when he failed to respect the opponent’s attorney-client privilege and asked Ford about privileged communications.
Duty of Fairness to Third Parties
An attorney has a duty of fairness to third parties.
Here, Abel interviewed Ford without notice to Barbara and without private counsel present for Ford. It is not clear from the facts what Ford may have done, but he could have exposed himself to liability by discussing his actions with Abel. In light of this risk, Abel should have advised Ford that he ought to have the benefit of counsel in his communications with him.
Therefore, Abel may have committed an ethical violation by failing to advise Ford that he may wish to retain counsel before communicating with Abel.
Misleading Ford
When communicating with an adversary or third party, an attorney must not lie to people or mislead them as to his or her interests.
Here, it is not clear from the facts whether Abel was clear that he represented Carol in a lawsuit against Landlords, Inc. Therefore, although the facts are not clear, Abel may have lied to or mislead a third party in violation of his ethical duty. Abel should have been clear with Ford regarding his interests prior to speaking with him.
Therefore, Abel may have committed an ethical violation if he lied to or mislead Ford as to his interests in the matter with Landlords, Inc.
Carol's Falsification of Financial Information
An attorney has a duty of candor/truthfulness to adversaries, but an attorney also has a duty of confidentiality to his client.
Carol’s Perjury
An attorney must not knowingly facilitate client perjury. In a civil matter, this means that the attorney must refuse to call a client as a witness if he or she knows that the client intends to perjure himself or herself. Under the Model Rules, if a client admits that he/she has committed perjury, then the attorney must advise the client to inform the court. If the client refuses, the attorney must attempt to withdraw from representation and, if withdrawal is not possible, then the attorney must disclose the perjury to the court. However, under the California rules, once an attorney has advised the client to disclose the perjury to the court and the client refuses, the attorney cannot disclose the perjury.
Here, during Carol’s deposition, she testified falsely about her sources of income. Abel was present during Carol’s deposition. He suspected that Carol was not being truthful, but did nothing. Although a deposition does not take place in court, it is taken under oath. Thus, one can commit perjury during a deposition. Carol committed perjury when she testified falsely while under oath regarding her sources of income. However, Abel did not knowingly facilitate client perjury. He did not advise Carol to lie or to conceal the truth. He did not call her as a witness at trial knowing that she would commit perjury. While Abel failed to stop Carol from committing perjury, he did not actually facilitate Carol in committing perjury. Abel should confront Carol about the apparent perjury. If she admits that she committed perjury, then he must advise the client to inform the court.
Therefore, because Abel did not facilitate it, he did not commit an ethic violation when Carol committed perjury.
Duty of Confidentiality
While Abel did not commit an ethical violation by allowing Carol to commit perjury, he also did not commit an ethical violation by failing to correct the misinformation.
Under the Model Rules, an attorney has a duty not to disclose confidential information related to the representation of a client – it does not matter from whom or how the information was acquired. There are four key exceptions to the duty of confidentiality (i.e., allowing confidential information to be disclosed without breach of the duty): (1) client consents; (2) reasonably necessary to prevent harm; (3) when necessary to establish a claim or defense (e.g., malpractice suit, fee dispute); and (4) when compelled by law.
The second exception is quite complicated and varies between the different sets of ethical rules. The general rule is that disclosure is allowed when reasonably necessary to prevent criminal activity likely to result in reasonably certain death or substantial bodily harm. The ABA recognizes an exception to confidentiality when a client is using your services to commit a crime or fraud and disclosure would prevent or mitigate the substantial financial losses of the victim. California does not recognize a financial harm exception to the duty of confidentiality.
Here, Abel would need to disclose confidential information in order to correct Carol’s false information given during her deposition. The facts do not state that the client consented to disclosure of the confidential information, the client has brought a malpractice claim against the attorney or failed to pay fee, or that the court has compelled disclosure of confidential information . Thus, the first, third, and fourth exceptions do not apply. The issue then is whether the disclosure of confidential information would be reasonably necessary to prevent harm. Under the Model Rules, Abel could disclose the information if Carol were using his services to commit fraud and disclosure prevent or mitigate the substantial financial losses of the victim. The litigation between Carol and Landlord, Inc., involves discriminatory housing practices. It does not seem likely that Carol’s false financial information would somehow cause financial harm to Landlord, Inc. Because California does not even recognize the financial harm exception, no exception would apply as Carol’s conduct was not causing physical harm to anyone.
Therefore, because no exceptions would even allow Abel to disclose the confidential information, he did not commit an ethical violation by failing to correct the misinformation when he believed that Carol had not been truthful.
Therefore, under the Model Rules, Abel could be compelled to
Offer to Settle
Acceptance of Settlement
While an attorney may make decisions regarding procedure and legal strategy, the client is to make all decisions regarding her substantive rights. An attorney cannot accept a settlement offer without his client's authorization to do so. Settlement relates to the client's substantive rights - it involves her closing out her case and giving up her right to a trial/hearing.
Here, Abel accepted Barbara’s settlement offer without Carol’s authorization to do so. Carol had already left the deposition and was no longer present. The facts do not state that Abel had previously obtained Carol’s authorization to settle for a specific amount of money. Not only did Abel accept the settlement offer without Carol’s authorization, but he also signed the settlement papers. He did not tell Carol about the settlement until everything was signed. In fact, Carol was unhappy with the amount of the settlement and may not have provided her authorization.
Therefore, Abel committed an ethical violation by accepting a settlement offer and signing the settlement paperwork without his client’s authorization.
Duty to Communicate
An attorney has a duty to communicate with his client all material developments in a case and to keep them informed of the status of their case.
Here, Abel timely communicated the offer to settle with his client - he communicated it to her on the same day that the offer was made. However, it was communicated after the fact - he had already signed the settlement agreement.
Therefore, timely communication was not the basis of Abel's ethical violation.
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