MCQs Quiz 3 Flashcards
(20 cards)
At the trial of a routine civil case in a United States District Court, defense lawyer Westerman presented the testimony of an insurance company investigator. On cross examination, plaintiff’s lawyer established that on the day before the trial began, the investigator spent three hours in Westerman’s office going over his testimony. On that occasion, Westerman showed the investigator some handwritten notes from the insurance company files, in an effort to refresh the investigator’s recollection of some important dates. Plaintiff’s counsel asked to have the notes brought to court the next morning;after hearing oral argument on the point, the judge ordered Westerman to bring them the next morning. Westerman responded: “I’ll bring them, judge, on the next cold day in Hell.” The judge looked startled but chose to overlook the remark. Westerman intentionally failed to bring the notes to court the following day. Which of the following are correct?
I. Westerman is subject to litigation sanctions for discussing the investigator’s testimony with him before the trial.
II. Westerman is subject to litigation sanctions for using the notes to refresh the investigator’s memory of dates.
III. Westerman is subject to litigation sanctions for his rude remark to the judge.
IV. Westerman is subject to litigation sanctions for intentionally violating the Federal Rules of Evidence.
V. Westerman is subject to litigation sanctions for intentionally violating the judge’s order.
A. All of the above.
B. II and V only.
C. I, II, III, and IV only.
D. III, IV, and V only.
D.
Lawyer Lexington represents the plaintiffs in a civil action. His clients are three members of the congregation of All Souls’ Divine Missionary Church, suing on behalf of themselves and others similarly situated. The defendants are All Souls’ Divine Missionary Church, Inc., (a corporation) andPastor Dorset, the spiritual leader of the church and president of the church corporation. Pastor Dorset and the church corporation are represented by separate defense lawyers. The complaint alleges that Pastor Dorset misappropriated large amounts of church money, and that the Board of Elders, acting as corporate directors, knew about it and failed to stop him. In the early discovery phase of the case, lawyer Lexington conducted a lengthy, private interview with the church bookkeeper, an employee of the church corporation; she brought the church books with her to the interview, and she and Lexington went over them in great detail. Lexington did this without the knowledge or consent of either defense lawyer. Which of the following is mostnearly correct?
A. Lexington’s conduct was proper, since the bookkeeper was not a party to the lawsuit.
B. Lexington’s conduct was proper, since the bookkeeper was neither an officer nor a high-ranking employee of the church corporation.
C. Lexington is subject to discipline; he should have obtained the consent of both defense lawyers.
D. Lexington is subject to discipline; he should have obtained the consent of the church corporation’s defense lawyer.
D.
Crebs had an automobile accident in his sports car, injuring his girlfriend, Victoria, who was riding in the front seat without her seatbelt fastened. Crebs consulted lawyer Limpett about his possible legal liability to Victoria. After making sure that Victoria had not already retained counsel, Limpett went to visit her, to find out how badly she was injured and to obtain her description of what happened the night of the accident. Victoria askedLimpett whether he thought she should make a claim against Crebs. Limpett gave her his honest opinion: litigation can be costly and time-consuming, and Crebs’ liability was debatable. Further, he told her, since her medical expenses were fully covered by her own health insurance, she had little to gain by suing Crebs.
A. Limpett’s conduct was proper, since Victoria was not represented by counsel when Limpett spoke with her.
B. Limpett’s conduct was proper, because he gave Victoria his honest opinion about the matter.
C. Limpett’s conduct was proper, provided that his Visit with Victoria was an overture to a good faith settlement of the matter.
D. Limpett is subject to discipline, even if his ultimate objective was to reach a fair settlement of the matter.
D.
Attorney Paxton represents plaintiff Parker on a contingent fee basis in an action against Dougal Corp. for breach of an alleged employment contract between Dougal Corp. and Parker. Attorney Daniels represents Dougal Corp. in the matter. Dougal Corp. instructs Daniels to offer the plaintiff $35,000 to settle the case, and Daniels duly telephones Paxton and makes the offer of settlement. Paxton says he will take it up with Parker and get back to Daniels in due course. When Daniels hears nothing for two weeks, he calls Paxton back, but Paxton refuses to take Daniels’ telephone call. Then Daniels writes Paxton a formal letter, re-making the settlement offer, requesting that Paxton consult Parker about it, and requesting a prompt response. Again, Daniels hears nothing from Paxton. Finally Daniels develops a strong suspicion that Paxton has not communicated the settlement offer to Parker. May Daniels send Parker a copy of his letter to Paxton?
A. No, because Daniels is not allowed to communicate directly with Parker.
B. Yes, if Daniels reasonably believes that Paxton has failed to communicate the settlement offer to Parker.
C. No, since Daniels cannot be sure that Paxton failed to communicate the settlement offer to Parker.
D. Yes, because the copy would simply advise Parker of Daniels’ prior communication with Paxton.
A.
Deputy District Attorney Sanford has been assigned to prosecute defendant Rossi for arson. Shortly after the fire was extinguished, a three- person team of arson experts was sent by the City fire department to determine the cause of the fire. The team concluded that the fire was set by a professional arsonist, and the team’s report so states. Shortly before trial, Sanford learned that Beaumont, the youngest and least experienced member of the team, had originally concluded that the fire resulted from an explosion in the furnace. Beaumont had tried to convince the other two team members that his original conclusion was correct, but they ultimately prevailed, and Beaumont signed the report without dissent. Sanford does not plan to offer the report in evidence at trial, and he does not plan to call any of the three team members as witnesses. Rather, he plans to use the testimony of two independent experts to establish that arson caused the fire. Which of the following is the proper thing for Sanford to do concerning the information about Beaumont?
A. Disclose it to Rossi’s counsel, since it could be useful in Rossi’s defense.
B. Instruct Beaumont not to mention his original conclusion to anyone.
C. Wait to see whether Rossi’s counsel asks for the information in the regular course of criminal discovery.
D. Do nothing about it since he does not plan to offer the report or the testimony of the team members at the trial.
A.
The boutique law firm of Harrison & Malloy held its holiday party at a local restaurant. During the course of the dinner, two members of the group confided that they were quite put off by the behavior of a male colleague, which they characterized as indicative of homosexuality.
A. The First Amendment protects the associates’ comments.
B. Although the associates’ comments reflect bias, under these circumstances the Model Rules contain no prohibition.
C. The associates’ comments reflect bias and therefore the associates are subject to discipline.
D. The associates’ comments do not reflect bias because they are entitled to their personal opinions.
C.
Matthew Fontaine is confined to a wheelchair as the result of anautomobile accident ten years ago. He practices law as a sole practitioner. Although Matthew generally handles non-litigation matters, he was persuaded to accept a litigation case to help “a friend of a friend.” In the course of trial, Matthew asked to approach the bench in order to discuss a matter of some confidence. Due to the height of the bench, and Matthew’s inability to stand, Matthew asked the judge to come around to the front of the bench in order to maintain the confidentiality of the discussion. The judge refused and stated, “This is my court. If you people insist on practicing law, you have to deal with life’s realities instead of asking for special favors.”
A. The judge’s response was appropriate.
B. The judge’s response was inappropriate because he was required to accommodate Matthew’s request.
C. The judge’s response reflects bias and he is potentially subject to discipline.
D. The judge’s response does not reflect bias but he should have sought some means of preserving confidentiality.
C.
Charles Howard is a partner with a large international law firm. Charles finds one of his new clients, Tiffany Green, very attractive. Charles has been flirting with Tiffany and has asked her out to lunch and dinner on several occasions.
A. Charles’s personal life is his business; a lawyer’s personal life is not regulated by the Model Rules.
B. Charles has not violated the Model Rules, but he must refrain from having sex with her.
C. The Model Rules prohibit lawyers from dating clients and therefore Charles is subject to discipline.
D. The Model Rules permit relationships between lawyers and clients so long as the relationship is consensual and no prejudice could result to the client.
B.
Aaron Campbell is representing Bradley Whitehouse in a civil lawsuit in which Whitehouse allegedly wrongfully terminated the employment of Brenda Gale, who had been Whitehouse’s housekeeper. Gale alleges she was fired after rebuffing Whitehouse’s sexual advances. Whitehouse is a prominent, wealthy businessman. At trial, Campbell questioned Gale repeatedly about her sexual orientation, suggesting that Gale was a lesbian who filed the lawsuit as an opportunistic attempt to extort damages from Whitehouse. Campbell’s line of questioning stemmed from his Observation that Gale was 31 and unmarried.
A. Campbell was required to provide a defense for his client, so he cannot be subject to discipline.
B. Although offensive, nothing in the ABA Model Rules prohibits such tactics.
C. Only the judge presiding over the trial has any obligation to address bias occurring in the courtroom.
D. Campbell is subject to discipline.
D.
Richard and Thomas asked Judge Young to officiate at their marriage. Judge Young believes that homosexuality is a sin, and has declined to officiate.
A. If Judge Young’s decision to decline was based on sincerely held religious beliefs, he is not subject to discipline.
B. If performing marriages is a discretionary judicial function for Judge Young, he may choose to perform opposite-sex marriages and may choose to decline to perform same-sex marriages.
C. If performing marriages is a discretionary judicial function for Judge Young, if he chooses to perform opposite-sex marriages, he must also perform same-sex marriages.
D. If performing marriages is a discretionary judicial function for Judge Young, he cannot be subject to discipline for how he chooses to exercise his discretion.
C.
Lawyer Lattimer is on the in-house legal staff of Centennial Corporation, a major manufacturer of steel shipping containers. She regularly provides legal advice to Vice-President Markler, the executive in charge of sales and marketing. In the course of a routine preventive law project, Lattimer discovered that Markler had participated in a series of telephone conferences with his counterparts at the company’s two main competitors. Further, she discovered that each such conference was promptly followed by an increase in the prices charged by the three companies. When Lattimer took this up with Markler, she first reminded him that she was not his personal lawyer, but rather the corporation’s lawyer. Then she said: “If you have been discussing prices with our competitors, we may be in deeptrouble. Your telephone conferences may violate the Sherman Antitrust Act, and that could mean civil and criminal liability, both for you and for the corporation. And, as you know, the corporation has a rule against rescuing executives who get in antitrust trouble.” Markler responded as follows: “Ms. Lattimer, I know you’re a good lawyer, but you don’t know much about the real world. You can’t run a business these days if you try to trample on yourcompetition. Now don’t worry yourself about my telephone conferences, because I’m sure you have better things to do with your time.” If Markler remains uncooperative, which of the following expresses the proper course for Lattimer to take?
A. Draft a careful, complete memorandum about the matter for her own files, and maintain her conversation with Markler in strict confidence.
B. Describe the relevant facts in a carefully drafted letter to theAntitrust Division of the United States Department of Justice, request an advisory opinion on the legality of the described conduct.
C. Describe the entire matter to Markler’s immediate corporate superior, the Executive Vice President, and advise him to put a stop to Markler’s telephone conferences.
D. Describe the relevant facts in a memorandum to the corporate Board .of Directors and advise the Board that she will resign unless something is done to stop Markler.
C.
Lawyer Lenschell has recently opened his new law office. Timothy came to Lenschell’s office and introduced himself as the “boyfriend” of Tina, a young woman who was just arrested on a prostitution charge. Timothy retained Lenschell to represent Tina and paid him an appropriate’fee in advance. Timothy, who seemed to know a great deal about the law pertaining to prostitution despite being a layperson, explained to Lenschell that in prostitution cases in this district, a guilty plea usually results in a $500 fine, but no jail sentence. But if the defendant pleads not guilty, goes to trial, and is found guilty, the judge usually imposes a jail sentence. Timothy further explained that Tina did not want to go to jail, that he would pay her fine for her, and that Lenschell should therefore advise her to plead guilty. Lenschell met Tina for the first time at the courthouse, shortly before her case was to be called on the criminal calendar for entry of her plea. In their hurried conference, Tina told Lenschell that Timothy was her pimp, not her “boyfriend.” Further, she said that she wanted to escape from Timothy and from her life as a prostitute, and that she wanted to plead not guilty, thus risking a jail sentence, rather than become further indebted to Timothy. What is the proper course of conduct for Lenschell to follow in this situation?
A. To adhere to the instructions given by Timothy, and to advise Tina to plead guilty.
B. To give Tina whatever legal assistance she needs in entering her plea of not guilty.
C. To withdraw from the matter promptly, without advising Tina one way or the other on what plea to enter.
D. To telephone Timothy and ask for further instructions in light of Tina’s unwillingness to plead guilty.
B.
Inventor Ivan and marketing genius Gene want to form a newcorporation to market Ivan’s amazing new design for motion picture projectors. They want to hire attorney Arnold to help them to do the necessary legal work and to help them find venture capital. Because they have almost no hard cash at present, they have asked Arnold to do this work for them in exchange for 4% of the capital stock of the new corporation. The remaining 96% will be divided equally between Ivan and Gene and their respective families. May Arnold agree to their proposal?
A. No, because a lawyer must not acquire a personal interest in the subject of the representation.
B. No, because a lawyer must not enter into a business transaction with clients.
C. Yes, but only if the 4% would not make the fee unreasonably high, and the transaction would be fair to the clients, and the terms are fully disclosed to the clients in an understandable writing, and the clients are advised in writing of the desirability of seeking outside counsel and given a chance to consult such outside counsel, and the clients consent in writing.
D. Yes, but only if Ivan and Gene give their informed consent and Arnold promises that he will never vote his stock or otherwise attempt toinfluence the governance of the corporation.
C.
In a private treble damage case arising under the federal price discrimination law (the Robinson-Patman Act), the defendant wants to prove that it had a good faith belief that its pricing system was lawful. As evidence of its good faith, the defendant wants to prove that, five years ago, the Federal Trade Commission carefully reviewed the defendant’s pricing system and decided not to institute proceedings against the defendant. The proof of this is a letter from the FTC to defendant’s lawyer, Smithers. At the treble damage trial, the defendant will need Smithers’ testimony to authenticate the letter. Smithers will simply testify that he received the letter from the PFC. The defendant wants Smithers and his law partner, Hillner, to serve as its trial counsel in the treble damage case. Which of the following is correct?
A. Neither Smithers nor Hillner may serve.
B. Both Smithers and Hillner may serve.
C. Only Hillner may serve.
D. Smithers and Hillner may serve, but only if the plaintiff consents.
B.
Attorney Tillis is a partner in the 138 person firm of Dahlberg & Sneed. The Citizens’ Alliance for Coastal Preservation has asked Tillis to represent the Alliance in a public interest law suit against Vista del Oro, Inc., a real estate developer. Vista del Oro owns several thousand acres of beautiful coastline, about an hour’s drive from the largest city in the state. It is building vacation homes to sell to the public. When the project is complete, the entire area will be fenced off to prevent access by non-owners. The Alliance seeks to force Vista del Oro to provide access paths across the property, so that members of the public can get from the state highway to the public beaches. Attorney Prentice is also a partner in Dahlberg & Sneed. He is a member of the Board of Directors of Vista del Oro, and he owns seven of the vacation home sites as a personal investment. No Dahlberg & Sneed lawyer has ever represented Vista del Oro, and none will do so in the present case. After careful consideration, Tillis has concluded that his representation of the Alliance would not be adversely affected by Prentice’s interest. Which of the following conditions must be met if Tillis is to avoid being subject to discipline for representing the Alliance?
I. The Alliance consents after full disclosure.
II. Vista del Oro consents after full disclosure.
III. Prentice resigns as a director of Vista del Oro.
IV. Prentice sells his seven home sites.
A. All of the above.
B. III only.
C. I and II only.
D. I only.
D.
Client Parsons has asked lawyer Ekimoto to represent her, and nine other representatives of a plaintiff class, in an employment discrimination class action against Consolidated Telephone and Telegraph Corporation. Thesize of the plaintiff class and the size of the potential recovery are hard to estimate, but the case would conceivably produce a total recovery of nearly 15 million dollars. Lawyer Ekimoto and her two brothers are the beneficiaries of a trust fund established by their late parents. Among the trust assets are 1,000 shares of Consolidated common stock. Consolidated has 30 million shares of common stock outstanding. If Ekimoto reasonably believes that her interest in Consolidated will not affect her representation of the plaintiffs, may she serve as plaintiffs’ counsel?
A. Yes, since the interest of a trust beneficiary is not regarded as disqualifying.
B. Yes, if she obtains the consent of the class representatives after full disclosure of her interest.
C. No, since even a small adverse financial interest creates an appearance of impropriety.
D. No, since there are other counsel available who could serve the plaintiff class without any potential conflict.
B.
Biochemist Belloni invented a gene splicing process for making snake antitoxins. The invention was a major breakthrough because Belloni’s antitoxins were far cheaper and more reliable than the natural varietyproduced from the venom of live snakes. She obtained a US Patent on her process. Shortly thereafter, she was sued in a declaratory judgment action brought by United Laboratories, Inc. United sought a declaration that her US. Patent was invalid. Belloni asked lawyer Lothrup to represent her in the case. Lothrup agreed to do so on the following terms: (1) Belloni would pay Lothrup for the necessary legal work at Lothrup’s regular hourly rate; (2) Lothrup would advance the litigation expenses, subject to repayment by Belloni no matter what the outcome of the case; and (3) at the outset, Belloniwould assign to Lothrup a 10% ownership interest in the US. Patent.
A. The arrangement is proper, assuming that the total Lothrup earns from it is reasonable.
B. Lothrup is subject to discipline because the arrangement requires Belloni to pay back the advanced litigation expenses even if she loses the declaratory judgment case.
C. Lothrup is subject to discipline because the arrangement prov1des for an advance of litigation expenses by the lawyer in a civil case.
D. Lothrup is subject to discipline because the arrangement gives her a personal financial interest in the US. Patent which is the subject of the declaratory judgment case.
D.
A statute of State X requires prison inmates to be provided “sanitary living conditions, suitable education and recreation facilities, and competent medical treatment.” The statute authorizes inmates who are deprived of these benefits to sue the State Commissioner of Prisons for equitable relief. The statute also permits (but does not require) the courts to order State X to pay the attorney fees of successful inmate plaintiffs. At the request of the local bar association, private attorney Andrate agreed to represent a group of indigent inmates who were allegedly being deprived of proper medical attention at a State X prison. After extensive discovery proceedings, the State Commissioner of Prisons offered to settle the case by entering into a consent decree that would give the inmates all the equitable relief they could ever hope to receive, provided that An’drate would not request an award of attorney fees. Which of the following would be the proper thing for Andrate to do with respect to the settlement offer?
A. Explain it to his clients and let them decide whether to accept it or reject it.
B. Reject it on behalf of his clients because it does not provide for an award of attorney fees.
C. Accept it on behalf of his clients, even though it does not provide for an award of attorney fees.
D. Reject it on behalf of his clients because to do otherwise would discourage private attorneys from representing indigent inmates infuture cases.
A.
Client Curt hired Attorney Annette to advise him during some difficult business negotiations extended over many months; during that time, Annette developed a good working relationship with Curt and a thorough understanding of the factual and legal problems at hand. Only four people were present during negotiation sessions: Curt, Annette, Danforth’s VP, and Danforth’s house counsel. Ultimately the negotiations failed and Danforth sued Curt. A key contested issue at trial will be whether Curt made a certain statement during one of the negotiating sessions. Curt wants Annette to represent him at trial, but Danforth moved to disqualify her on the grounds that she may have to testify about Curt’s alleged statement.
- Should the court grant the motion to disqualify?
- Can Annette’s partner, Elmwood, serve as Curt’s trial lawyer?
- Does your answer to either question depend on whether Annette’s testimony would be for Curt or against Curt?
- If on Curt’s behalf, no. If on Danforth’s behalf, yes.
- No, due to vicarious disqualification under 1.7.
- It would depend on whether she was testifying on behalf of Curt or being called as Danforth’s witness. If she were called as Danforth’s witness and served as Curt’s attorney, there would be an impermissible conflict of interest under 1.7. If she were testifying on behalf of Curt, if Curt consented, she would likely be able to testify.
