11 MC Flashcards
(13 cards)
. An attorney is a partner in a newer law firm that has no effective measures in place to ensure that lawyers in the firm conform to the Rules of Professional Conduct. An associate at the firm violates the rules, and the state bar investigates the policies and procedures in place at the firm. The state disciplinary authority has determined that the first attorney is subject to discipline for his failure to take reasonable measures to ensure conformity with the rules. Because of this determination and the subsequent sanction, which of the following is true?
Whether a lawyer may be liable civilly or criminally for another lawyer’s conduct is a question of law beyond the scope of the rules; the determination of a violation does not automatically mean that the partner attorney would be civilly or criminally liable.
An attorney is a second-year associate at a law firm with no supervisory responsibilities. He learns that another second-year associate is working on a case in which the client is suing a company that the other associate used to represent at his previous firm, and the attorney suspects it is a substantially related matter. The firm has done nothing to screen the other associate from the matter. No one ever discusses it with the attorney, and the attorney does not know all the facts of the situation. Later, the client sues the firm for malpractice due to the conflict of interest and reports the matter to the state disciplinary authority. Which of the following is true regarding the attorney’s involvement in the situation?
The attorney does not have disciplinary liability for the conduct of the other associate, because he is neither a partner nor in a supervisory position and did not participate in the violations directly.
An attorney is a fifth-year associate at a large firm and is responsible for supervising the work of a first-year associate. The attorney, however, now spends most of his time in Singapore, trying to open a satellite office for the firm there to service one of its major corporate clients. He has not inquired into the associate’s compliance with the Rules of Professional Conduct in over eighteen months, as they mostly communicate by e-mail regarding pending cases and assignments. To the best of his knowledge, though, the attorney believes the associate is following the rules, and he knows that the associate has attended two Legal Ethics CLE courses in the last year. Unbeknownst to the attorney, the new associate has been overbilling hours and has been neglecting certain client matters. Which of the following is true regarding the attorney’s situation?
The attorney is subject to discipline as a lawyer having direct supervisory authority over another lawyer who failed to make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct, even though there was no direction, ratification, or knowledge of the violation.
An attorney is a partner in a medium-size firm. Another partner at the firm, the managing partner, is responsible for implementing policies and procedures to detect and resolve conflicts of interest, to account for client funds and property, to identify dates by which actions must occur in pending matters, and to ensure that inexperienced lawyers receive proper supervision. The managing partner, however, now spends most of his time in Singapore, trying to open a satellite office for the firm there to service one of its major corporate clients. The managing partner is rarely at the home office and has completely neglected the implementation of ethical policies in the firm, so that minimal safeguards or procedures are in place. One of the new associates has committed several serious violations of professional responsibilities in the last few months, including an egregious conflict-of-interest problem and several missed deadlines for filing responsive pleadings. The attorney knew nothing about the violations and was not directly supervising the associate, and she tries not to meddle in any of the managing partner’s responsibilities, including the implementation of ethical policies and procedures. Which of the following is correct?
he attorney is subject to discipline as a partner in the firm for failing to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
An attorney is a fifth-year associate at a large firm, hoping to make partner in the next two or three years. She supervises the first-year associates at the firm. She learns that the most recently hired associate recently shredded some evidence that would have undermined a client’s case, and then told the judge and opposing party that the missing documents had been in a briefcase that went missing when a burglar broke into the associate’s car. The attorney knows this is not true and discusses it with the senior litigation partner, who finds the story amusing. Neither reports the associate’s deception to the judge or opposing party. Which of the following statements is true regarding this situation?
Both the attorney and the litigation partner are subject to discipline for not taking action to correct the associate’s false statements and misconduct.
The attorney is an associate at a small firm, and her supervising partner instructs her to draft pleadings in a case for a client. The supervising partner knows that the statute of limitations has already run on the claim, and that the client had little or no factual evidence to support the claim in any case. The partner believes the opposing party will want to settle the claim quickly for a modest sum and will not bother to investigate issues such as the statute of limitations or the factual support for either side. The attorney follows the partner’s instructions and drafts the pleadings, without checking the statute of limitations for this specific claim or conducting her own investigation into the facts of the case. Opposing counsel, however, is upset over the frivolous claim and reports the attorney to the state bar. Which of the following is correct regarding the attorney’s situation?
The attorney should not be responsible for asserting a frivolous claim, and the fact that she was just following orders could support her defense that she was unaware that the claim was frivolous.
An attorney is a new associate at a law firm, and the managing partner assigns her a new case, in which the firm will represent two co-plaintiffs in a personal injury case. The attorney is concerned that a conflict of interest could arise between the two plaintiffs and suggests that the firm should represent only one of them. When she discusses this with the managing partner, the managing partner disagrees, because the interests of the two plaintiffs seem perfectly aligned, and they can have each sign an informed consent form waiving the conflict up front. Both admit the question is a close one in terms of the ethical rules for conflicts of interest, but the managing partner insists that they proceed. Which of the following is true regarding this situation?
The supervisor’s reasonable resolution of the question should protect the subordinate professionally if the resolution subsequently faces a challenge.
. An attorney is an associate in a litigation firm representing plaintiffs. In her current case, her supervising partner instructs her to assert that the defendant had an affirmative statutory duty to protect the plaintiff’s interests, even though the attorney can find no statute to support this assertion. The attorney has brought this to the attention of her supervising partner, who rebuked her for questioning his authority and insisted that she do as he said. He assures her that the defendants will settle before trial anyway, so the bogus claim merely gives some psychological leverage during settlement negotiations, and it cannot do any harm. Moreover, the partner says that the attorney may not last long at the firm if she cannot follow instructions, which could have been a threat of termination. At a preliminary hearing, however, the judge confronts the attorney about the unsupportable claim, and she concedes that no statutory duty exists. The judge is irate and considers reporting the attorney to the state bar disciplinary authority. Which of the following is correct regarding the attorney’s situation?
The attorney is responsible for asserting a frivolous claim, even though her supervising partner insisted that she do it and threatened her with termination.
A partner gives an associate the typed notes from a previous client interview conducted by the partner, and the associate has the task of drafting a complaint for a personal injury lawsuit based on the allegations in the notes. The associate has no direct contact with the client, and does not really have any way to verify whether the notes represent everything discussed in the interview (the notes are not a transcript) or whether the allegations are factually accurate, truthful, or tell the complete story. The associate completes the task as assigned, drafting the pleadings based on the notes. The associate then submits the drafted complaint to the partner for review. Later, the pleadings turn out to be frivolous, based on complete falsehoods. Which of the following is true regarding the associate attorney’s role in drafting the complaint?
The lack of opportunity for the associate to investigate or verify facts on her own will be a relevant factor for the state disciplinary authority in deciding whether to discipline the associate.
An attorney practices personal injury law, representing plaintiffs on a contingent fee basis. The attorney employs a paralegal to assist with preparing documents for litigation. The paralegal’s salary arrangement is 10 percent of the firm’s total net revenue each year. In years when the attorney wins several large cases, the paralegal receives higher wages, and in years when the attorney has no big wins, the paralegal receives almost nothing. The paralegal does not bring clients to the firm and does not participate in judgments about which clients to represent, or about how to handle the cases. Is the attorney subject to discipline for this arrangement?
No, because non-lawyers may participate in a firm compensation plan based on overall profit sharing.
. An attorney practices personal injury law, representing plaintiffs on a contingent fee basis. The attorney employs a paralegal to assist with preparing documents for litigation. The paralegal’s salary arrangement is 10 percent of the firm’s total net revenue each year. In years when the attorney wins several large cases, the paralegal receives higher wages, and in years when the attorney has no big wins, the paralegal receives almost nothing. The paralegal does not bring clients to the firm, but she does participate in judgments about which clients to represent, how to structure contingent fee arrangements, and how much to seek in damages after a verdict, as these matters directly affect the paralegal’s income as well as the attorney’s. Could the attorney be subject to discipline for this arrangement?
Yes, because this paralegal is sharing profits with the attorney, and could influence the professional judgment of the lawyer under this arrangement.
. An attorney in a state that has adopted the Model Rules in their current form enters into a fee-sharing agreement with a lawyer admitted in Washington, D.C., which permits fee sharing with non-lawyers and multidisciplinary practices. They collaborate on a case and divide the fees as agreed. The attorney from the Model Rules state is aware that the other attorney will share his part of the fees with non-lawyers in the D.C. office; in fact, the D.C. lawyer’s firm has accountants who hold an ownership share in that firm. Is the non-D.C. attorney subject to discipline for indirectly sharing legal fees with non-lawyers, given that he practices in a state that forbids fee sharing with non-lawyers?
No, so long as the first attorney shares fees only with another attorney, it does not matter if the other attorney shares fees with non-lawyers as permitted by his home jurisdiction.
The attorney hires a nationally known Internet-marketing specialist, a tech guru, to help develop the firm’s reputation and attract new clients. The Internet specialist has made millions on previous tech startups, while the attorney is not well known and has been practicing for only two years. The tech guru demands certain terms in the contract that require the attorney to confer with the tech guru about accepting clients that were former clients of the tech guru, to avoid conflicts of interest. The attorney must also clear any litigation positions, approaches, or strategies that pertain to intellectual property or Internet marketing liability with the tech guru, to avoid positions that would jeopardize the guru’s other business. Is the attorney subject to discipline for this arrangement?
Yes, because in this case, a non-lawyer has a contractual right to direct or control the professional judgment of the lawyer.
