WILLIAM MITCHELL COLLEGE OF LAW

QUESTION I - 50%

The following is a transcription of an initial interview of William

and Mary Boyd by Fred Harrington, a sole practitioner in a small mid-western community. The Boyds have three children: Amy (12), Roger (9), and Beth (4). Amy has, since birth, suffered from a disease of the nervous system, which has made her unable to walk.

SECRETARY’S VOICE: Please have a seat in the office. I expect Mr. Harrington any minute now.

BILL: Thank you very much.

BILL: Mary, you sit there.

SECRETARY’S VOICE: Good afternoon, Mr. Harrington. How did things go in court this morning?

MR. HARRINGTON: Very well, Susan, very well. Thank you. Are the Boyds here yet?

SECRETARY’S VOICE: Yes, in your office.

MR. HARRINGTON: Fine. Hold my calls.

HARRINGTON: Bill, good to see you again. Hello, Mary. Say, I haven’t seen you since out PTA committee last September. How are the kids?

BILL: Well, Amy’s better but none of those tests seem to show much. Roger’s starting little league next week.

MARY: And Beth is finally old enough to go to nursery school. At last I’ll have some time to myself.

HARRINGTON: Well, what’s up?

BILL: Mary and I are here because we want . . . We’ve decided to get a divorce and we want you to handle it for us.

MARY: You know us. That’s why we’ve come. Bill and I . . . we need your help Fred. You’re someone we trust.

BILL: We’ve been thinking about this for a long time. It isn’t easy after 13 years but it’s gotta be this way.

MARY: We kept trying for the kids but it just doesn’t work.

HARRINGTON: Okay, I really didn’t expect this. It’s a very hard decision but you see in my experience sometimes this really is the best thing even for the kids. I will try to do what I can to help; are you asking that I represent both of you?

BILL: Yes, Fred. That’s definitely what we want. Now it won’t be messy. Mary and I have it all worked out. We’ve come to an agreement . . . here, I’ll show you. Now here you can see we’ve listed everything, all our property, our debts and at the bottom here, you can see how we’ve decided to split things up. It’s pretty cut and dried and it just didn’t seem to us that we needed two lawyers. We don’t want this to turn into a battle. We’ve had enough of that. We thought it would hold down the cost this way. We really can’t afford to do it any other way.

MARY: Will you help us, Fred?

HARRINGTON: We’ll have to talk some things over first before I can answer that, Mary. For one thing, I am not sure it is wise for me to represent both of you.

BILL: But since we are in agreement . . . we already have the . . . we’ve got it worked out. What’s the problem?

HARRINGTON: The problem concerns you, Bill. As you know, I do some collection work for your boss, Joe Peters.

BILL: So?

HARRINGTON: And your name has come up in my recent conversations with him.

BILL: In what sense?

HARRINGTON: Too many used car customers are defaulting on their payments. Peters thinks that the salesmen are to blame, that they are too aggressive, too sloppy with their credit checks. Since you’re the sales manager, well . . . Look, we’re friends, Bill, and I’ll be frank with you. Peters thinks you’re one of the main causes of the problem. Now suppose he asks me to get involved in that area. You see what I mean?

BILL: Peters? Don’t worry about him. He’s been saying the same thing to my face and he’s been saying it once a month ever since I started working for him two years ago. But every time the crunch comes, he’s back in my office apologizing, begging me to stay on. Look, don’t you think he wants to keep a high volume business? Well, of course he does, except the day after he meets with his accountant. It’s always been back and forth like that. And don’t forget that practically every attorney in town works for Peters. I mean he really passes those collection cases around. And you know you’re not the only one he’s complained to about his salesmen. . . . Anyhow, where are Mary and I going to find a lawyer who isn’t tied up with my bosses’ business?

HARRINGTON: I see your point. I guess we really don’t have a problem there but I had to raise it with you. Let’s move on. let’s talk about your legal grounds for divorce.

BILL: What grounds are there?

HARRINGTON: I think we can forget about desertion, failure to support, imprisonment, chronic alcoholism. Impotency?

BILL: Scratch that.

HARRINGTON: Adultery?

MARY: No.

HARRINGTON: So that leaves a catch-all category called cruel and abusive treatment. Most people use that one--it’s vague enough to fit a lot of problems.

MARY: That doesn’t happen. Cruel and abusive? That’s not like Bill and me. I couldn’t say that.

HARRINGTON: You have to remember. It’s a technical legal term, not a moral one.

MARY: But why does it have to be someone’s fault? There’s something else now, isn’t there? I mean . . . I thought there was a no-fault divorce now.

HARRINGTON: I’m afraid our state hasn’t adopted irreconcilable differences, which is what you’re talking about.

MARY: But you can still do it, can’t you? Jill, she’s a friend of mine. Jill moved to another state to live with her parents for a while. She said she got a no-fault divorce. It sounded so easy. My parents wouldn’t mind . . . I could visit them. I was thinking, maybe we should . . .

HARRINGTON: It means getting an out-of-state lawyer. It means saying things that aren’t true. There’s more uncertainty because you get involved with technical questions of intent and domicile. I don’t think its worth it and besides, it will be more expensive. But, if that’s the way you want to go, I can refer you to some attorneys in town who do get involved with that kind of “set-up” divorce.

MARY: Well, I see what you mean.

BILL: Okay, Fred. Suppose we stay here. What do we have to do to show cruel and abusive treatment?

HARRINGTON: It’s pretty routine these days. Everybody realizes that divorce is here to stay. You’ll find some judges that are applying standards for what is cruel and abusive that really aren’t very tight. It usually goes this way . . . the wife makes allegations, the husband admits them without making a court appearance. The parties submit a property settlement and a custody arrangement worked out beforehand, and the judge makes it final . . . after he’s looked it over.

MARY: That’s all? It sounded worse than that.

BILL: What does she have to say? What kind of allegations?

HARRINGTON: Well, there are two ways you can show cruel and abusive treatment. First, you can show some active, physical abuse.

MARY: We’re not like that.

BILL: Aw, come on, Fred!

HARRINGTON: Well, something like that would be very clear. You’re sure there was never a time there was some physical contact in the heat of anger?

BILL: No.

MARY: Never.

HARRINGTON: Okay, well, can you show some physical effects resulting from mental cruelty?

MARY: I don’t know. That doesn’t sound like us.

BILL: Well . . .

HARRINGTON: What’s important here is to show some physical effects which can be independently verified. For example, do you have frequent arguments?

MARY: Yes.

BILL: Yes.

HARRINGTON: Mary, we’ll assume that you are going to be making the allegations so we’ll concentrate on your answers for the moment. Now these arguments, they make you anxious and nervous, don’t they?

MARY: Oh yes, they do.

HARRINGTON: Well then, we need to show some clear physical effect produced by your anxiety, okay? For instance, are your hands shaking or have you lost some weight recently? Have you had trouble sleeping at night or something like that?

BILL: I’m the one who doesn’t get any sleep. She sleeps all the time.

MARY: I am losing weight now but then . . . well I don’t think . . . you see I’m on this new diet and . . .

BILL: She’s got a case of nerves, that’s for sure. I mean that’s been one of our problems. She’s always getting too worked up about everything. Bumping into corners, dropping things, crying.

MARY: Bill’s right. I guess I am too nervous. And I’ve been upset a lot . . . especially this last year when things got worse with us. Maybe . . . I get these rashes on my arms. Maybe that’s why . . .

HARRINGTON: Have you seen a doctor?

MARY: No, I didn’t . . . if it wasn’t something obvious . . . I was embarrassed. I could have used something to steady myself, I guess.

HARRINGTON: maybe you should see Dr. Williams. Just talk to him about your problems with Bill.

MARY: Well, I could . . .

HARRINGTON: Because if you were to seek medical advice, it would help clarify how the problems with Bill affect you physically. We could even use a letter from him.

MARY: I see. I’ll try to arrange something next week.

HARRINGTON: Also, keep a diary. Maybe you could even reconstruct some past events that fit in. Break down how you’re feeling and the marital problems that come up. and when you come back, we’ll go over the grounds again. I don’t think we’ll have any problems but we’re going to need a lot of material to support the petition and I find a diary often helps.

BILL: Well, I can help her with that.

HARRINGTON: Okay, lets get to the property settlement. Earnings of $35,000; equity in house and furniture; two cars. Now the settlement you’re proposing: Mary gets the house, the station wagon and two-thirds of your earnings! Is that right?

MARY: That’s right.

HARRINGTON: Well, I don’t know. That’s very generous of you, Bill, but do you think you can manage this?

BILL: Well, we want to get it over with. This is the only way we can make it work. Now that’s what Mary said she wanted.

MARY: That’s right, Fred. We both had to compromise a bit.

HARRINGTON: I’m also concerned about this heavy debt load.

BILL: Yeah, it just seems to get worse. Amy’s disability is the biggest problem. Now that new series of tests she had last year really set us back, and its rough enough these days for any family of five to make ends meet.

HARRINGTON: I can imagine. Is there anything I ought to know that isn’t included here?

BILL: Well, I don’t think . . . on second thought, there may be something.

HARRINGTON: What is it?

BILL: Well, my taxes. I mean my tax deductions. Well, being a salesman I’ve got a lot of business expenses and there’s always the medical bills . . . I may have gone out on a limb on some of my deductions. I would have to bring you in a couple of returns to show you what I mean.

HARRINGTON: Have you been audited by the IRS?

BILL: No.

HARRINGTON: Well, we probably don’t have to worry about tax returns anyway, not in case like this. All I have to do is present a fair and reasonable property settlement to the court. We don’t want to confuse things. You’re being awfully generous under the circumstances, Bill.

BILL: Well, that’s what we’ve worked out.

HARRINGTON: So there’s only one more problem then and that’s the children. How do they seem to be taking this?

MARY: We haven’t told them, not in so many words. I think Amy knows.

HARRINGTON: How old are they now?

MARY: I keep forgetting you haven’t seen them in a while. Amy is 12, Roger is almost 9 and Beth is 4.

BILL: Mary will keep Roger and Beth. Amy will live with me.

HARRINGTON: Oh? I expected that Mary would have custody of all the kids. That’s what usually happens.

BILL: Amy needs me.

MARY: You’re not home enough, Bill. You don’t realize the amount of time I’ve spent . . .

BILL: She and Amy never got along.

MARY: That’s not true . . .

BILL: Now don’t you know the way you lose your temper. You can’t handle Amy and you know it so why don’t you just face up to it. Amy and I have a very special, very close relationship.

MARY: That girl’s a teenager, Bill. There’s always fighting with mothers at that age. Amy is my daughter as much as she is yours. I love her too.

HARRINGTON: Is it really practical for you to take over full-time care of Amy, Bill? I’m not sure I can see how you’d be able to handle it.

BILL: I’ll get a housekeeper. I’ve already checked it out. Now Amy’s in school until shortly before five and that’s when I get off anyway.

MARY: You’ve never gotten home by five since we were married.

BILL: I can do it, Fred. I’m certain of it.

HARRINGTON: Even if Mary had custody, it would be your right, and, if I may say so, your duty to visit them regularly.

BILL: There’s something special between Amy and I. She needs me and I know it. Now Mary can’t handle her. I feel very strongly about this, Fred.

HARRINGTON: Look Bill, you know I want to help you. I’ve seen a lot of families go through this and I feel very strongly myself about what happens to the kids. I don’t want to see them get hurt any more than they have to. Now I have to feel comfortable about the financial and custody arrangements or I can’t take the case. I know how you feel about this, but you work pretty long hours and its going to be even tougher with two households to support. I’m not sure Amy will get what she needs in the time that’s left over. And what about Mary, won’t she miss Amy? If that’s the way it’s going to be, I’m not sure I can go forward here.

BILL: Now wait a minute, Fred. Wait. Don’t get me wrong. I want what’s best for the kids, too. I’m certainly not opposed to working out something here.

MARY: We can work it out, Fred, but we do need your help.

HARRINGTON: If that’s the case . . . I mean if you can assure me that you’ll both cooperate to work out a custody arrangement that I can feel comfortable with, then I’m prepared to take the case.

MARY: Oh, I’m so relieved.

BILL: Thanks, Fred. That’s great.

MARY: We’ll be able to work out the rough points.

BILL: Oh, we haven’t discussed your fee. Whatever is fair, Fred. You know more about that.

MARY: It will be cheaper though, won’t it? I mean since both of us are coming here?

HARRINGTON: The problem is we don’t know whether the judge will accept the property settlement, nor do we know the valuation

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QUESTION II - 50%

You are a member of a Hearing Board Panel of the Minnesota Lawyers Professional Responsibility Board and have been designated to write the panel opinion in a series of disciplinary actions brought against Paul Whitehead, Esq., who has been charged with acting unethically in the following circumstances. Note: Please state in your opinion the differences, if any, in the results in each case, if the ABA Model Rules of Professional Conduct instead of the Minnesota Rules of Professional Conduct were applicable.

Count Number 1: In 1993 Whitehead represented the defendant in a negligence action brought on behalf of a mental incompetent who was injured on Whitehead’s client’s property while properly there. During the trial, on its own motion, the court ruled that since the plaintiff was incompetent he could not testify. The plaintiff’s attorney produced no eyewitnesses to the accident ,and White head moved for a directed verdict on the ground that the circumstantial evidence was insufficient to take the case to the jury. The judge granted the motion. At the time that Whitehead made the motion, he knew of the existence of an eyewitness to the accident whose whereabouts were readily discoverable, and those testimony would support the plaintiff’s case. He also knew of a case decided by the Wisconsin Supreme Court, almost one hundred years old and seldom cited (but never overruled), which held that in circumstances like those in this particular case, an incompetent plaintiff may take the stand in his own behalf and the weight of his testimony would be left to the jury. In a motion for a new trial, which was denied, the plaintiff’s lawyer alleged that he had since the trail found the witness and learned from him that the defense lawyer had previously interviewed him. The plaintiff’s lawyer stated that he had not sought out eyewitnesses because he never expected the attempt to keep the plaintiff off the stand. White head admits that he knew of the eyewitness and of the prior precedent. He also admitted that he did not disclose either of these items to the trial court.

Count Number 2: In 1994 Whitehead was retained to represent John Jones, a Vice President of a local bank in a criminal case. Jones had been accused of killing his ex-wife’s lover. Jones’ defense was that he had been at Julia Smith’s house having dinner and watching a movie on her VCR at the time of the alleged murder. Both John Jones and Julia Smith testified to this effect at the trial and they jury acquired Jones. During the victory celebration following the trial, Jones, who was somewhat inebriated, told Whitehead that he had not been at Julia Smith’s the night of the murder and that the $10,000 he had paid her to testify the way she did was the “best investment I ever made.” White head’s secretary, who was also his mistress, overheard this conversation. The next day she asked White head what he intended to do with the information and White head replied that he didn’t think he could do anything. Several months after this, White head fired the secretary and ended their relationship. In anger, she reported the conversation between Whitehead and John Jones to the Minnesota Lawyers Professional Responsibility Board.

Count Number 3: In 1995 Whitehead represented Robert and Linda Wolff who wanted to get out of a contract they had entered into to buy a house because they had found another house they liked better. The contract contained a clause stating that the contract would not be enforceable if the Wolffs were unable to obtain an FHA mortgage, which they had applied for prior to consulting Whitehead. Whitehead told the Wolffs that the FHA would not approve a loan for any couple that had filed for divorce, and upon being assured by Whitehead that the divorce proceeding could be withdrawn once FHA had disapproved the loan, the Wolffs told Whitehead to go ahead with the divorce suit, which he prepared and filed. Although a copy of the suit papers was sent to FHA, the loan was nevertheless approved. By this time the Wolffs had already entered into a contract to buy another house. Upon learning this fact, Whitehead told the Wolffs that he had a friend Charles Osberg who owned a real estate company that might be interested in purchasing the first house, thereby relieving the Wolffs of their obligation to purchase two houses. Osberg agreed to buy the first house for $1500 less than the contract price the Wolffs had, but they were so glad to get rid of this particular house contract they readily agreed to Osberg’s offer. The closing of this transaction was handled by Whitehead. The Wolffs subsequently discovered that Whitehead was a 50% partner in Osberg’s real estate company.

Count Number 4: Earlier this year Whitehead represented Tim Smith in a dissolution of a real estate partnership. Tim’s former partner was represented by the law firm of Todd & Moore. The partnership agreement specified that after paying off all creditors claims each partner would receive property having an equal value. As might be expected they disagreed on the value of the properties. During the negotiations Todd & Moore submitted a settlement offer tat contained a mathematical error. The net value of one piece of property having a projected market value of $350,000 and a mortgage with a payoff balance of $205,000 was shown as $45,000 rather than $145,000. This particular property had previously been selected by Tim as one that he particularly wanted. The total difference between the parties on the values of the respective properties had been approximately $125,000. After reviewing the offer from Todd & Moore with Tim, Whitehead prepared a written counteroffer showing property allocated to Tim having a value of $100,000 less than in the previous settlement offer made by Tim. The piece of property in question was shown in this counteroffer as having a value (exclusive of the mortgage) of $45,000. This last counteroffer was accepted and became the basis of the settlement agreement between the former partners. After the settlement was consummated, Todd & Moore discovered the error and, in addition to filing a lawsuit to have the settlement agreement rescinded, filed a complaint against Whitehead with the Minnesota Professional Responsibility Board.