MCQs Quiz 2 Flashcards
(28 cards)
Criminal defense lawyer Lenox agreed to represent defendant Denmon at Denmon’s trial for arson. Lenox and Denmonorally agreed on the following attorney fee arrangement. If Denmon were acquitted,’the fee would be $25,000. If Demon were convicted of any lesser included offense, the fee would be $5,000. If Denmon were convicted of arson, the fee would be $500. Lenox further agreed to advance all litigation expenses, subject to Denmon’s promise to repay Lenox whatever the outcome of the case. Which of the following statements are correct?
I. Lenox is subject to discipline for not putting the fee agreement in writing.
II. It was proper for Lenox to agree to advance the litigation expenses
III.Lenox is subject to discipline for charging a contingent fee in a criminal case.
IV. It was proper for Lenox to require Denmon to repay the advanced litigation expenses whatever the outcome of the case
A. Only, I, II, and IV are correct
B. Only I, and III, are correct
C. Only II and IV are correct
D. All of the above statements are correct
D.
Attorney Kimberly represented client Marsha in a divorce proceeding in a non-community property jurisdiction that has a no-fault divorce law. Marsha was married for 25 years, and during the marriage her husband became a very wealthy business executive. The two children of the marriage grew up and left home. Marsha had a savings account of her own, but she was not wealthy, and she had no marketable job skills. Kimberly convinced Marsha to sign a contingent fee agreement, in which Kimberly’s fee would be 25% of whatever property settlement Marsha would get in the divorce decree. The divorce court awarded Marsha a $10 million dollar property settlement. Marsha refused to pay Kimberly the $2.5 million fee due under the fee agreement, saying that it was unreasonably high. After trying without success to settle the fee dispute amicably, Kimberly sued Marsha to collect the fee. May the court award Kimberly less than $2.5 million?
A. No, because Kimberly took the risk of not being paid anything when she took the case on contingency, and she is entitled to be compensated for that risk.
B. Yes, because Kimberly acted improperly in cursing a contingent fee agreement in a divorce case where the amount of the fee was controlled by the amount of the property settlement.
C. No, because a contingent fee agreement is permissible in a domestic relations case, except where the contingency is the granting of a divorce.
D. Yes, because it is unethical for a lawyer to sue her own client to collect a fee.
B.
Lawyer Leland is admitted to practice only in Kentucky. He regularly represents Holiday Hotels, Inc., a Kentucky corporation with its principal offices in Lexington. Holiday was sued for trademark infringement in Oregon, and Holiday asked Leland to oversee the case and to select appropriate Oregon counsel to do the trial work. With Holiday’s approval, Leland selected Oregon attorney Alvarez, and Alvarez paid Leland $1,000 for the referral. Leland oversaw all of the work in the case, and he conducted all of the discovery that took place in Kentucky. Alvarez conducted all of the discovery that took place in Oregon, and he prepared the case for trial and served as trial counsel. At the conclusion of the case, Leland and Alvarez submitted separate bills to Holiday for their respective services. Which of the following statements is correct?
A. It was proper for Leland and Alvarez to bill Holiday separately, assuming that each bill was reasonable in amount.
B. It was proper for Alvarez to pay Leland $1,000 for the referral, since the two lawyers shared the work and responsibilities for the case.
C. Leland and Alvarez are subject to discipline for failing to submit a single bill to holiday because the two lawyers shared the work and responsibility for the case.
D. The arrangement was proper, unless the total fee Holiday paid was higher than it would have been absent the $1,000 referral fee
A.
After Carlson was injured in a car wreck, he was treated in the hospital for twelve days by physician Patino; she billed him $7,500 for her medical services. The wreck put Carlson out of work, and he had no way to pay Patino’s bill. He hired attorney Aragon to sue the person who caused the wreck; in a written fee agreement, Aragon promised to do the work for a contingent fee. Aragon decided that Patino would make a good expert witness in the case. Aragon and Carlson agreed that Aragon would lend Carlson $7,500 to pay Patino’s medical bill and that Aragon would advance the money needed to pay Patino at $100 per hour for the time she spent preparing to testify and testifying as an expert witness. Carlson agreed to pay back Aragon at the conclusion of the case. Which one of the following statements is correct?
A. Aragon is subject to discipline for taking the case on a contingent fee.
B. Aragon is subject to discipline for agreeing to lend Carlson $7,500.
C. Aragon is subject to discipline for participating in an agreement to pay a witness for giving testimony.
D. Aragon is subject to discipline for agreeing to advance the money needed to pay Patino’s expert witness fee.
B.
Attorney Arnstein agreed to represent client Clemens in a products liability suit against Draxco, Inc. Clemens refused to discuss Arnstein’s fee at the outset of the case; rather, Clemens insisted on a provision in the retainer agreement that Arnstein would do the work “for a reasonable fee, to be deducted from the proceeds” of the case. After a long period of discovery, Arnstein arranged a very favorable settlement between Clemens and Draxco. Draco paid the $175,000 settlement by a check made payable to Arnstein. Arnstein immediately deposited the check in his client trust account and invited Clemens to come by the office to settle their affairs. When Clemens arrived, Arnstein gave him a bill for $25,000. He computed that amount by multiplying the number of hours he spent on the case (350) times his normal hourly rate ($65), and adding an extra $2,250 because of the generousness of the settlement he had achieved for Clemens. When Clemens looked at the bill, he turned scarlet and began to shout that the fee was outrageously high. Arnstein explained the basis of his charge, and he offered to arbitrate the matter through the local bar association, but Clemens refused. When Clemens demanded immediate payment of the entire $175,000, Arnstein gave him a check, drawn on his client trust account, in the amount of $150,000. Arnstein kept the other $25,000 in his client trust account, pending ultimate resolution of the fee dispute. Which one of the following statements is correct?
A. Arstein’s handling of the matter was proper.
B. Arnestin is subject to discipline for charging Clemens more than his normal hourly rate.
C. Arnstein is subject to discipline for depositing the entire proceeds of Draxco’s check in his client’s trust account.
D. Arnstein is subject to discipline for keeping the $25,000 in his client trust account pending resolution of the fee dispute.
A.
Client Fujitomi entrusted lawyer Lee with $10,000, to be used six weeks later to close a business transaction. Lee immediately deposited it in her client trust account; at the time, it was the only money in that account. Later that same day, the local bar association called Lee and asked her to rush out to the Municipal Court to take over the defense of an indigent drunkard, Watkins, who was being tried for violating an obscure municipal statute. Because of chaos in the Public Defender’s Office, Watkins was being tried without benefit of counsel. By the time Lee arrived, the judge had already found Watkins guilty and sentenced him to pay a fine of $350 or spend 30 days in jail. Under a peculiar local rule of court, the only way to keep Watkins from going to jail was to pay the fine immediately and to request a trial de novo in the Superior Court. Therefore, Lee paid the fine with a check drawn on her client trust account, and Watkins promised to repay her within one week. Which one of the following statements is correct?
A. Lee’s handling of the Watkins matter was proper.
B. Lee would have been subject to litigation sanctions if she had allowed Waktins to go to jail.
C. If Lee had paid Watkins’ fee fine out of her personal bank account, that would have been proper.
D. Lee would be subject to discipline for handling the matter in any manner other than she did.
c.
Attorney Ayers represents client Canfield as plaintiff in a suit to compel specific performance of a contract. Canfield contracted to purchase Thunderbolt, a thoroughbred race horse, from defendant Dennis in exchange for $1,500,000 worth of corporate bonds owned by Canfield. Canfield transferred the bonds to Dennis, but Dennis refused to deliver Thunderbolt. Two months before the scheduled trial date, Canfield gave Ayers the following instructions: “I am leaving tomorrow on a six-week sailing trip through the South Pacific, and you will not be able to reach me by any means. If Dennis makes any reasonable settlement offer before I return, please accept it, but try to get the horse if you can.” A week later, Dennis’s lawyer called Avers and said: “Dennis wants to capitulate. He will either return the bonds, or he will turn over Thunderbolt. He insists on an immediate response, so call me back this afternoon.” Ayers believes in good faith that Thunderbolt is a tired nag, worth far less than $1,500,000. Further, Ayers discovers that it will cost nearly $1,000 to keep Thunderbolt in a safe, bonded stable until Canfield’s return. What is the proper course of action?
A. Get the bonds and put them in a safe deposit box until Canfield returns.
B. Tell Dennis’s lawyer that he cannot respond until Canfield returns.
C. Get Thunderbolt and house him in the safe, bonded stable at Canfield’s expense until Canfield returns.
D. Get Thunderbolt and turn him out to pasture on Ayers’ farm until Cansfield returns.
C.
On June 1st, client Catlin hired attorney Acevedo to sue defendant Degan for securities fraud. Catlin and Acevedo realized that the complaint would have to be filed by September 15th to be within the statute of limitations. Acevedo was very busy with other matters. Starting in mid-August, Catlin telephoned Acevedo every few days to see what progress Acevedo was making. Acevedo repeatedly assured Catlin that he was assembling the facts and preparing preliminary drafts of the complaint, but in truth Acevedo was doing nothing on the case. On September 10th, Catlin learned from Acevedo’s secretary that Acevedo had still not started to work on the case. At that point, Catlin fired Acevedo and hired a different lawyer who was able to get the complaint on file by September 15th. Although Acevedo did not charge Catlin any fee, Catlin reported the matter to the state bar. Which of the following is most nearly correct?
A. If Acevedo would have been able to complete the necessary work by September, his conduct was proper.
B. Since Caitlin suffered no damage due to Acevedo’s delay, Acevedo’s conduct was proper.
C. Even though Caitlin suffered no damage due to Acevedo’s delay, Acevedo is subject to civil liability for malpractice.
D. Acevedo is subject to discipline for neglecting Caitlin’s case and for lying to Caitlin about the status of the matter.
D.
Lawyer Lloyd was an associate attorney employed by the law firm of Ames & Baker. The firm is an ordinary partnership, not a limited liability entity. Client Cress hired Ames to sue one of his competitors for false advertising. Ames assigned Lloyd to do the necessary research and draft the complaint. Lloyd confined her research to state law. Any reasonably competent general practitioner would have discovered a more favorable body of parallel federal law under Section 43(a) of the Lanham Act. Ames eventually brought the case to trial on state law theories only, and Cress lost. Had the case been tried under the Lanham Act, Cress would have won a large judgment. Which of the following propositions are correct?
I. Lloyd is subject to civil liability for malpractice.
II. If Lloyd is subject to civil liability for malpractice, then so is Ames.
III. If Lloyd and Ames are subject to civil liability for malpractice, then so is Baker.
IV. None of the three lawyers is subject to civil liability for malpractice.
A. Only IV is correct.
B. Only I is correct.
C. Only I, II, and III are correct.
D. Only I and II are correct.
C.
The Community Association for the Homeless (CAH) is a non-profit charitable corporation that provides food and temporary shelter for homeless persons. CAH subsists on charitable donations and volunteer labor provided by members of the community. CAH owns a large old home in the downtown area, but it has virtually no other assets. Seeking to assist CAH in a time of financial need, Corliss Cheng decided to lend CAH $500,000, interest-free, for two years. Lawyer Landsman offered his services without a fee to represent CAH in the transaction and to prepare the necessary loan papers. Cheng was not represented by a lawyer in the transaction, Landsman prepared a suitable promissory note. The officers of CAH duly executed the note and presented it to Cheng in return for the $500,000. A year later, CAH was overcome by financial disaster, the corporation was dissolved, and its creditors took over its few remaining assets. Cheng received only $2,000. Any reasonably competent general practitioner would have advised Cheng to secure the interest-free loan by obtaining a deed of trust on CAH’s large old home, Cheng sued Landsman for legal malpractice. Which of the following is most nearly correct?
A. Landsman is subject to civil liability for malpractice in the suit brought by Cheng.
B. Landsman is not subject to civil liability for malpractice because he did the legal work as a volunteer, not for a fee.
C. Landsman is not subject to civil liability for malpractice because he did not purport to represent Cheng in the transaction.
D. Landsman is not subject to civil liability for malpractice because the injury to Cheng was not foreseeable.
C.
Attorney Applegate represented client Cortez as plaintiff in an employment discrimination action against Delta Corporation. After considerable pretrial discovery, Applegate and Cortez concluded that Delta had indeed unlawfully discriminated against Cortez but that they probably would be unable to convince a jury of that fact. They decided not to pour any more money into pretrial discovery and to trust to good luck when the case came to trial. Before the case was set for trial, Delta moved for summary judgment. Delta’s motion was granted, and the case was dismissed. Then Delta sued Applegate for legal malpractice, alleging that he was negligent in advising Cortez to maintain the suit against Delta and that Delta had been injured to the extent of its litigation costs and attorney fees. In Delta’s action against Applegate, which of the following is most nearly correct?
A. Applegate is not subject to civil liability for malpractice, even if he lacked a good faith belief that Cortez would win at trial.
B. Applegate is subject to civil liability for malpractice if he lacked a good faith belief that Cortez would win at trial.
C. Applegate is not subject to civil liability for malpractice because his conduct was not the actual cause of Delta’s injury.
D. Applegate is subject to civil liability for malpractice if he was negligent in advising Cortez to oppose Delta’s motion for summary judgment.
A.
For many years attorney Abrams has done all of the routine business law work for Carmondy Corporation. Now Carmondy has asked him to represent it in negotiating a contract to supply electronic components to the US Navy. Abrams knows nothing about government contract law except that it is a highly specialized field governed by a mass of technical regulations. Which of the following would be proper for Abrams to do?
I. To decline to represent Carmondy, and to charge Carmondy a nominal fee for finding Carmondy a lawyer who specializes in government contract law.
II. To agree to represent Carmondy, provided that Carmondy will consent to the association of a lawyer who specializes in government contract law.
III. To agree to represent Carmondy, and then to subcontract the substantive legal work to a lawyer who specializes in government contract law
IV. To agree to represent Carmondy, intending to master the field of government contract law with reasonable speed and efficiency.
A. All of the above.
B. None of the above.
C. II or III only.
D. I, II, or IV only.
D.
Attorney Aoki and client Cramer entered into a written agreement in which Aoki agreed to represent Cramer in a real estate venture in return for a specified hourly fee. The agreement provided that any malpractice or fee dispute would be arbitrated by a neutral arbitrator selected by mutual agreement. Eventually Aoki and Cramer did get into a dispute. Cramer refused to pay Aoki’s quarterly bill, and Aoki refused to do any more work until Cramer paid. Cramer also threatened to sue Aoki for malpractice, claiming that he had lost money because of her negligent advice. Which of the following propositions are correct?
I. Aoki is subject to discipline for trying to avoid a lawsuit for malpractice by including the arbitration provision in her contract with Cramer.
II. Aoki is subject to discipline for refusing to do further work until Cramer paid her bill.
III. It would be proper for Aoki to insist that Cramer abide by the arbitration provision in their contract.
IV. If Aoki wants to settle her dispute with Cramer outside of the arbitration agreement, she must advise Cramer to obtain independent representation for that purpose.
A. I, II, and IV only.
B. III and IV only.
C. II and III only.
D. I and IV only.
B.
Solo practitioner Pearce hired non-lawyer Nelson to serve as her secretary and all-purpose assistant. Pearce put Nelson in charge of her client trust account and her office account and instructed her about how the accounts were to be handled. Several months later, Pearce learned that Nelson had a criminal record, including two prior convictions for embezzlement from a former employer. Since Nelson appeared to be handling the accounts properly. Pearce decided to leave well enough alone. After several more months, Pearce noticed that $1,500 was missing from the office account. Nelson explained that she had borrowed the money to pay her mother’s funeral expenses and that she would repay it out of her next paycheck. Nelson did repay the money, and Pearce decided to let Nelson continue to manage the accounts. Then, a year later, Nelson disappeared along with $30,000 from Pearce’s client trust account. The clients whose money was taken sued Pearce for negligence and breach of fiduciary duties. Which of the following propositions are correct?
I. Pearce is subject to discipline for allowing a non-lawyer to handle her client trust account.
II. If Pearce did not adequately supervise Nelson’s handling of the client trust account, then Pearce is subject to discipline.
III. Pearce is subject to civil liability for malpractice to the injured clients if she was negligent in allowing Nelson to handle the client trust account.
IV. If Pearce had a subjective, good faith belief that Nelson was trustworthy, then Pearce is not subject to civil liability for malpractice to the injured clients.
A. II and III only.
B. I, II, and III only.
C. IV only.
D. II and IV only.
A.
Supervising lawyer Liggett assigned paralegal Prentice to search through the massive business files of Liggett’s client to find documents responsive to a federal court order for production of documents. After several months’ work, Prentice ended up with 170 large cartons full of documents that were responsive to the court order. Most of the documents were harmless, but a few were quite damaging to the legal position taken by Liggett’s client. Instead of arranging the documents in the same logical order in which she found them in the client’s files, Prentice intentionally jumbled the order of the documents. Her purpose was to make it exceedingly difficult, if not impossible. for the adversary to find the damaging documents and to understand their significance. Before the documents were produced for the adversary, Prentice told Liggett what she had done. Liggett responded: “Good-that ought to slow the bastards down. In the future, however, don’t do anything like that without checking with me first; we might get in trouble otherwise.” Which of the following statements are correct?
I. Since document production requires the skill and judgment of a lawyer, Laggett is subject to discipline for delegating the task to Prentice, even if he had adequately supervised her work.
II. Liggett’s conduct was proper since he admonished Prentice and instructed her not to engage in similar conduct in the future.
III. Assuming that all responsive documents were produced, Liggett’s conduct was proper, since the adversary has no right to insist that the documents be arranged in any particular order.
IV. Even if all responsive documents were produced, Liggett is subject to discipline because he failed to take steps to mitigate the consequences of Prentice’s misconduct.
A. II Only
B. I and IV only
C. IV Only
D. II and III Only
C.
In which of the following situations would the information received by the attorney be covered by both the attorney-client privilege and the ethical duty to preserve the client’s confidential information?
I. Lawyer L is defending client C in a tax fraud case. With C’s consent, L hires a tax accountant to examine C’s records, to talk with C, and to prepare some worksheets for L to use in defending the case. The accountant turns the worksheets over to L.
II. L is representing C in a boundary line dispute with C’s neighbor. When combing through the county land records, L discovers that C’s grantor apparently had no legal title to the land he purported to grant to C.
III. L is defending C in a first degree murder case. In the course of her investigation, L talks to a taxi driver who tells L that he remembers that on the night in question C rode in his taxi to an address near the scene of murder.
IV. L represents C in an action for breach of an oral contract. When preparing the case for trial, L stumbles across an old newspaper clipping, reporting C’s conviction of a felony in a distant state 15 years ago
A. All of the above.
B. I, III, and IV only.
C. I only.
D. III only.
C.
Client Christenson asked Attorney Alder to prepare some legal papers in connection with Christenon’s dissolution of marriage proceeding. In the course of conversation, Alder learned that Christenson intended to develop some beachfront property into condominiums. State law requires the filing of certain environmental impact statements with the State Commissioner of Real Estate and Development as a prerequisite to any development efforts, including advertising and zoning variances. Later Alder learned that Christenson was proceeding with the project and had not yet filed the required statements. Which of the following items are correct?
I. Alder must contact the State Commissioner of Real Estate and Development and reveal Christenson’s intentions.
II. Alder may contact the State Commissioner of Real Estate and Development and reveal Christenson’s intentions.
III. Alder may contact Christenson and urge him to take appropriate steps to rectify his wrong
IV. It would be proper for Alder not to tell any outsider about his communications with Christenson
A. I, III, and IV only.
B. II, III, and IV only.
C. III and IV only.
D. IV only.
C.
Lawyer Lorenz represents client Cramer in a complex business case. The defendant has demanded production of a mass Cramer’s records that contain vital, confidential business information. The defendant has agreed to a protective order that prohibits it from missing the information, and it has agreed to accept xerographic copies in lieu of the original records. Lorenz’s office does not have a copying machine big enough to do the job efficiently In these circumstances:
A. Lorenz must do the copying job herself on her small, slow office machine.
B. Lorenz must tell Cramer to make the copies himself, using his own facilities.
C. Lorenz may select a trustworthy copying firm to do the work, provided that she makes sure the firm’s employees preserve the confidentiality of the records.
D. Lorenz may select a trustworthy copying firm to do the work, provided that she is personally present to supervise the work.
C.
Attorney Aquino defended Dempsy in a criminal assault case. Before trial, Dempsey told Aquino in confidence that he beat up the victim without provocation. Due to Aquino’s hard work, coupled with a stroke of luck, the jury found Dempsey not guilty. Then Dempsey refused to pay Aquino’s fee. Aquino wrote to Dempsey as follows: “the jury found you not guilty, but your victim can still sue you for civil damages. If you do not pay my fee, and if I have to sue you to collect it, I will have to reveal the whole truth in open court, to explain why the amount of my fee is reasonable. Think this over carefully. I hope to receive your check by return mail.” Which of the following is most nearly correct?
A. Even though heavy-handed, Aquino’s letter was proper because he was simply explaining to Dempsey the consequences of refusing to pay the fee.
B. If Aquino sues Dempsey to collect the fee, Aquino will be subject to discipline because a lawyer is prohibited from using a civil suit to collect a fee
C. Aquino’s letter was proper because a lawyer is required to settle free disputes amicably if possible.
D. If Aquino sues Dempsey to collect the fee, Aquino may reveal Dempsey’s confidential communications, but only to the extent necessary to establish his claim against Dempsey
D.
Client Colbert has retained lawyer Lamb to represent her in divorce proceedings instituted by Colbert’s husband. Colbert has moved out of the family home and is living in a distant town; she no longer sees her husband or their children. Colbert tells Lamb in confidence that, before the separation, she had been physically abusing the children. A state statute requires physicians and psychotherapists to report to the police all suspected cases of child abuse. The statute makes no mention of attorneys. Which of the following is most nearly correct?
A. If Lamb reports the child abuse to the police, he will be subject to discipline
B. Lamb may report the child abuse to the police if he believes that the interest of justice will be served by doing so
C. Lamb must report the child abuse to the police, because the state favors the protection of childrent
D. Lamb must report the child abuse to the police, because child abuse is a crime that may result in death or serious bodily injury.
A.
Eight years ago, attorney Arnott represented client Coleman in connection with a murder investigation. Coleman repeatedly assured Arnott that he was innocent. The investigation proved futile, and Coleman was never formally charged with any crime. At present Arnott is representing client Curtis in a child custody dispute between Curtis and her ex-husband. In that connection, Curtis tells Arnott in confidence about a murder committed eight years earlier by one Coleman, a friend of her ex-husband. The details revealed by Curtis make it clear that Arnott’s former client, Coleman, did commit the murder. Curtis insists that Arnott not tell anyone about the murder for fear that Coleman or some of her ex-husband’s other friends may retaliate against her or her children. This jurisdiction has no statute of limitations on murder.
Which of the following is most nearly correct?
A. Arnott may reveal the information to the prosecutor without Curtis’s consent, because this jurisdiction has no statute of limitations on murder.
B. Arnott must reveal the information to the prosecutor because Coleman’s evasion of the law is a continuing crime.
C. Arnott must keep the information in confidence unless Curtis changes her mind and consents to have it revealed.
D. Arott may reveal the information to the prosecutor without the consent of either Curtis or Coleman, provided that he asks the prosecutor not to disclose the source of the information.
C.
Lawyer Ling represented clients Clark and Craddock who were the sole partners in a business joint venture. In that connection, Clark and Craddock met frequently with Ling to discuss confidential matters relating to the business. One day Clark came alone to Ling’s office. Before Ling could stop him, Clark disclosed that he had usurped a business opportunity that properly belonged to the joint venture. Ling informed Clark that she could not advise him on that topic. Further, Ling promptly withdrew as counsel to Clark and Craddock. Ultimately Craddock sued Clark for the usurpation. Craddock’s lawyer subpoenaed Ling to testify at a deposition about the statements Clark made to Ling. At the deposition, Clark’s lawyer asserted the attorney-client privilege on Clark’s behalf. Ultimately the court ordered Ling to disclose what Clark said. Which of the following is most nearly correct?
A. It was proper for Ling to withdraw as counsel to Clark and Craddock. Further, Ling must disclose what Clark said.
B. It was proper for Ling to withdraw as counsel to Clark and Craddock. However, Ling will be subject to discipline if she discloses what Clark said.
C. Ling is subject to discipline for withdrawing as counsel to Clark and Craddock. Further, Ling will be subject to discipline if she discloses what Clark said.
D. Even if Ling believes that the court order is correct, she must refuse to disclose what Clark said.
A.
State X and State Y each have state trademark registration statutes that are substantially similar in purpose and wording to the Lanham Act (federal trademark registration statute). For many years, Daisy Dairy has used the mark “Daisy” on dairy products it seems in State X, and it has registered the mark under State X statute. Recently Noxatox Chemical began using the “Daisy” mark on cockroach poison it sells in State X. Daisy Dairy sues Noxatox under State X law in a State X court for intentional infringement of the “Daisy” mark. The complaint asks for an injunction, for an award of the profits made by Noxatox, and for money damages. N moved for SJ on grounds dairy products & cockroach poison don’t compete with each other, that no sensible consumer could be deceived by the use of the same mark on such widely different goods, and that Daisy couldn’t possibly have suffered monetary injury. Trial judge who will hear motion is not well versed in TM law, and the lawyer for Daisy failed to discover several pertinent court decisions. Which of the following decisions must the lawyer for Noxatox call to the judge’s attention?
I. A US Supreme Court decision which holds that Lanham Act authorizes injunction to stop intentional infringement, even where defendant’s goods do not compete with plaintiff’s.
II. Decision of US Court of Appeals for circuit that includes X & Y, holding an injunction can be issued under the Lanham Act where nature of defendant’s goods could cast distasteful/odious image on plaintiff’s.
III. Decision of Supreme Court of State Y which holds that the State Y registration statute authorizes an accounting of the defendant’s profits in a case of intentional infringement, even where the plaintiff cannot prove monetary injury.
IV. Decision of Supreme Court of State X which holds that in actions for intentional trespass to real property, State X trial judges have power of courts of equity to fashion equitable remedies, even where the plaintiff cannot prove monetary damages.
A. All
B. None
C. I, II, IV
D. I, II
B.
Lawyer Penny represents client Paul in a family matter. When Paul and Donna were divorced, court gave P custody of their infant and gave D reasonable visitation rights. P is a busy accountant and often stays late at his office. While P is working, the baby stays at the baby sitter’s house. D has started making unannounced visits to the baby sitter’s house on evenings when P works late. P believes D may try to kidnap the baby. P asks Penny to apply immediately for a temporary restraining order that forbids D from going near the sitter’s house. The cost of this jurisdiction provides that a temporary order can be granted in an ex parte proceeding, without giving the adversary any notice or chance to be heard. Penny plans to use this ex parte rule. Penny has an affidavit from the sitter stating that when D makes her surprise visits, the baby cries and refuses to eat or sleep for hours thereafter. Just as Penny is leaving her office, her investigator arrives with three additional pieces of info. First, when P works late, the sitter sometimes leaves a 10 year old neighbor in charge of the baby while she runs errands. Second, D’s unannounced visits are motivated by her concern for the baby’s safety. Third, when P works late, D could conveniently keep baby at her house until P is through at the office. Which of following is most nearly correct?
A. Penny must present judge with only those facts that favor Paul’s position.
B. Penny must present judge with only those facts that favor Paul’s position, but she must respond candidly if the judge specifically asks her for info that is adverse to Paul’s position.
C. Penny must present the judge with all the relevant facts, even those that are adverse to Paul’s position.
D. Penny must call Paul and tell him that she is withdrawing the application for temp restraining order.
C.
