This exam contained many issues. Nearly everyone missed at least a couple. The most common problem, however, was the failure to explain what the person involved should have done in the situation, irrespective of whether a rule had been broken. Too often, the discussion was tied to specific rules without the appropriate additional commentary.

First Question

Millard has done a lot of reprehensible things, many of which violate the letter or spirit of at least one of the Rules of Professional Conduct. In roughly chronological order, these are:

Engaging in inappropriate litigation conduct. [The false evidence issue is discussed below.] It looks as if he has used delaying tactics and attempted to obfuscate the issues in order to obtain a strategic advantage and to drive the other side into a settlement based on its inability to keep up with the costs. Besides being generally sleazy, this conduct violates Rule 3.1, 3.2 and related rules governing good faith and fairness and an obligation to expedite the litigation process.

Having contact with a represented person. Millard has tried to undermine the relationship between the plaintiff and his lawyer by talking to the plaintiff about the lawsuit without the plaintiff's lawyer's permission. Under other circumstances, it might be understandable that a lawyer would be tempted to do this is he thought that the other lawyer were serving the plaintiff poorly; that is, a lawyer might be tempted to say, "Get a better lawyer; this guy is doing a lousy job." Furthermore, if the other lawyer is failing to transmit settlement offers or otherwise frustrating good-faith settlement attempts, the temptation would be great. Millard's motivation here, however, is to gain an advantage.

In fact, he is lying to the plaintiff and giving him what purports to be good advice. He is pretending that he has made a good settlement offer when, in fact, he has made one admittedly "low-ball" offer. Thus, he is violating at least Rules 4.2; 4.1; 8.4(c)&(d).

Instructing another lawyer to commit inappropriate acts. Millard is telling Fiona to attempt to conceal from the court matter--the two cases that Fiona found--that the court should have before it, and to keep it from the other side as well. It is possible to argue, as did some students, that the rules allow for this kind of chicanery. The temptation, of course, is great. By instructing Fiona to violate the spirit, if not the letter of the rule, Millard is committing a wrongful act himself and instructing another lawyer who looks to him for guidance in the wrong path. The strict letter of the applicable rule, 3.3(a)(3), may or may not have been violated. If it has been violated, Millard also has violated Rule 8.4(a) and Rule 5.1.

Attempting to influence the judge's clerk. Millard's comments to Fiona suggest that he has talked to the judge's clerk about the case in a way that is designed to encourage the clerk to favor Millard's client. If this is so, this looks like an indirect attempt to influence the judge and perhaps is a violation of Rule 3.5(g). In any case, it appears to violate the ever-popular Rule 8.4(d).

Engaging in inappropriate sexual conduct and in conflicts of interest. Millard's comments to Fiona sound a great deal like sexual harassment; if so, this conduct, aside from its generally distasteful quality, would specifically violate Minnesota Rule 8.4(g). His relationship with Fiona and apparent sexual relationship with Candice, both of whom are clients, clearly are wrong even in the absence of Minnesota Rule 1.8(k), as in both cases Millard is involved in a conflict of interest under Rule 1.7(b). In the case of Fiona, the conflict is further exacerbated by the fact that she is an employee as well as a client and a sex partner. Some students pointed out that the Minnesota rule would not be violated if the sexual relationship with either had begun before the attorney-client relationship had come into being. This is true, and the facts are not clear on what happened when. In any case, however, Rule 1.7(b) is probably being violated.

Presenting false evidence. The note that Fiona has found strongly suggests that Millard knows that the "miracle document" is a phony. Of course, the lawyer's sophistry about what one "knows" would be Millard's refuge if he were challenged on the subject. Still, it sounds as if Millard, besides behaving in an unsavory manner, is violating Rule 3.3(a)(4).

Appropriate Discipline: Some of this conduct standing alone merits suspension if not disbarment. The combination of all of these things strongly suggests that Millard should be disbarred. If the purpose of the rules is to protect the public, it seems that the longer Millard is at large, the greater the danger to the public.

Second Question

Fiona has, pursuant to instructions, attempted to mislead (or to help Millard mislead) the court. She has violated the rules governing the disclosure of adverse authority unless, as some students suggested, she has acted in accordance with Millard's instructions about an "arguable question of professional duty." Rule 5.2 makes her responsible for her own actions except in this limited situation.

Her most significant problem is what to do about the note from Millard about the "miracle document." She is as responsible as he for the submission of the evidence (She is in the second chair, and thus an attorney of record.) and she has the same duties as Millard to disclose to the court this information. From a technical standpoint, she has to "take remedial action" under the Model Rule unless the proceeding has ended, which probably has not happened, at least until the time for appeal or post-trial motions has expired, and she must act under the Minnesota version of the rule even if the proceeding has ended. This duty prevails over the confidentiality obligation.

Perhaps her best immediate course of action is to confront Millard and Candice and satisfy herself about the genuineness of the document. If she comes honestly to believe that it is genuine, of course she should do nothing. If she comes to a firm conviction that it is fraudulent, she must act, probably by approaching the judge. If, however, she remains suspicious but uncertain, she should . . . .

In any case, she should get out of the relationship with Millard, fire him as her lawyer and quit the job.

She also has an obligation under Rule 8.3 to report Millard, and probably Cecil as well, for conduct that calls into question their fitness as lawyers.

Appropriate Discipline: She probably should be admonished for her work on the brief, but otherwise not disciplined unless she blows the matter of the "miracle document."

Third Question

Cecil appears to have violated normal standards of professional competence. He has not been zealous in his representation, and he seems to have been less than scrupulous in his research. He has not been diligent and he has apparently failed to communicate with his client. He has violated at least Rules 1.1, 1.3 and 1.4. All of this is pretty disturbing. Cecil's apparent alcoholism seems to have contributed to the problem.

Appropriate Discipline: It looks as if probation, an admonition plus a required alcohol counselling program or some similar regime are the appropriate discipline for him.

PROFESSIONAL RESPONSIBILITY

Professor Heidenreich

FINAL EXAMINATION

SPRING, 1997

TWO HOUR EXAM

General Instructions

This is a completely open-book exam. You may use any material, prepared by anybody. Your analysis and discussion should, however, reflect your personal views about how you might respond to the situation presented in addition to your explanation of the meaning and application of the Rules of Professional Conduct. Assume that the Model Rules of Professional Conduct are the applicable rules, but if there are differences between the Minnesota version of the Rule and the Model Rule, explain what those differences are and how an application of one or the other would make a difference.

If you believe that you need additional facts to answer the questions, you may assume any additional facts consistent with the given facts, but you must then announce your assumptions as such and explain why they are needed.

This exam will be graded as a whole. Although there are three questions, they are not necessarily of equal weight. You must decide how much time and effort to devote to each.

This is a Two-Hour Exam

General Facts

"Well, when are we going to start this thing?" Alph D'Range was obviously tense and angry as he confronted Millard Gros in the waiting room of Millard's St. Paul law office. "I thought that this deposition was to start at 2:00 P.M. What is going on anyway? It's already two-thirty." Millard was the attorney for Candice Freeman, the defendant in a lawsuit in which D'Range was the plaintiff--a lawsuit that had dragged on through several months of fruitless negotiations and petty procedural maneuvering, thanks in large part to Millard's raising every minor point and fighting over every issue, even when he knew that eventually he would lose his argument. Seeing that this war of attrition was having its desired effect, Millard smiled to himself as he said soothingly, "Alph, your lawyer is late. Mr. Spaeth called to say that he had been held up at a hearing, but he assured us that he would be here within a half an hour."

This was not the first time that Cecil Spaeth, D'Range's lawyer, had been late for a deposition or a meeting. Indeed, Alph had become increasingly disenchanted with Spaeth's apparent haphazard handling of the case. Millard, on the other hand, was delighted. It appeared that Cecil either did not have his heart in the case, or that his notorious drinking habits were finally getting the better of him. Indeed, Millard had confidently predicted to Candice that he would be able to settle the lawsuit, a business dispute involving a failed enterprise in which Alph and Candice had been partners, on favorable terms because of Cecil's lack of preparation.

As Alph grew increasingly impatient, Millard suggested that he and Alph retire to the conference room where the deposition would be held. "You know that I can't really talk to you alone, but that stubborn lawyer of yours seems to turn down every proposal that I make, even though the last one was pretty attractive. If I had been your lawyer, I would have jumped at it."

"Listen," Alph stared intently into Millard's eyes, "Give it to me straight. Cecil hasn't told me about any offers at all. Have you really made a good settlement proposal?"

Millard stood looking out of the window. "I suppose that Cecil didn't even bother to transmit that one ridiculous low-ball offer that I made," he thought, a faint smile playing on his thin lips. "I have probably said too much already," he said briskly, turning to look at Alph. "You had better just talk to Cecil." At this point, Cecil, smelling of alcohol and full of excuses, blustered in and the deposition began.

Late that evening Fiona Scott, a young associate in Millard's office, knocked on Millard's open door and timidly asked to speak to him. "Always glad to help out a beautiful young associate," Millard flashed an oily smile. "Why aren't you out with your boyfriend tonight? Or is the field clear?" Fiona blushed and responded, "Well, as long as you ask, I am married--at least for now--but things are falling apart at home and I have decided to leave Karl." Fiona took a deep breath and shook her head slightly. "But that's not why I am here. I have been working on the Freeman-D'Range file as you asked. I have a draft of our memo in support of our motion for summary judgment, and I think that you should consider what's on page three."

Taking the document, Millard frowned as he studied page three. "We can't do this," he muttered. "This Schwartz case would kill us. How did you dig this up?" Fiona acknowledged that she had accidently stumbled across the case in question, a decision from the Minnesota Supreme Court of the 1930's, which didn't speak in terms that would be used in today's courts, but appeared to announce a rule of law directly contrary to the rule that Millard was urging on behalf of Candice. She also pointed out the Morgan case, a recent West Virginia decision that, while somewhat obscure in its reasoning, also came down directly on what, from Millard's perspective, was the wrong side of the argument.

"Here's what we do," Millard announced briskly. "Toss the West Virginia case; there's no point in confusing the court with it. Mention the Schwartz case in a string-cite on page twelve. If we're lucky, Cecil won't find it, and Judge Gordon's clerk is looking for a job with us; he isn't likely to bother to read all the cases. As a matter of fact, I have already talked to him a little about the case, and I think that he knows what's best."

Dutifully, Fiona made the proposed changes; Millard signed the memo and submitted it. Millard's guess was accurate: Cecil failed to mention the Schwartz case in his memo or in his oral argument; Judge Gordon made no mention of the case in her decision in which she denied the summary judgment motion.

The case, contrary to expectations, went to trial. Cecil managed to pull himself together and tried the case in a reasonably effective fashion. Nevertheless, Millard and his client prevailed, due largely to the effect of a document that Alph vigorously claimed was fraudulent, but that the jury apparently accepted as genuine. Following the jury verdict, as the parties were preparing to leave the courtroom, Fiona, who had been sitting in the second chair during the trial, heard Millard whisper to Candice, "Well, baby, we did it. Let's celebrate this weekend--at my place." In response to Candice's question about the likelihood of an appeal, Millard said, "Hell, Candy, they are out of money; we outspent them. There won't be an appeal."

Fiona, feeling betrayed by Millard, who had taken on the representation of Fiona in her acrimonious divorce proceedings and had also become her sexual partner, sadly returned to the office to begin to clean out the voluminous files in preparation for closing the D'Range-Freeman matter. As she worked late into the night, she discovered in one of the files a note that Millard had made to himself. The note read: "Candice has come up with the miracle document that no one knew existed. This thing just can't be genuine, but she claims that it is the real thing--that it had been forgotten and lost for a couple of years. I haven't pressed her on it; maybe the jury will believe her. Anyway, it's worth a shot."

Questions

1. Discuss Millard's conduct, commenting on the appropriateness of all of his actions mentioned in the facts, and explaining which Rules, if any, he has breached. If you feel that he has breached any rules, discuss the discipline, if any, that you feel should be imposed upon him. If you feel that his conduct has been improper, whether or not he has violated a Rule, explain what he should or should not have done.

2. Discuss in a similar manner Fiona's conduct throughout this matter. Explain which Rules, if any, she has breached and what discipline, if any, should follow. Explain what she should or should not have done, irrespective of whether you feel that she violated any Rule. Explain what steps, if any, she should take at this point.

3. What about Cecil? Comment in a similar manner on his actions as mentioned in the facts. Explain what Rules, if any, he has breached, and what discipline, if any, should follow.