Exam #_______

PROFESSIONAL RESPONSIBILITY FINAL EXAM

                             ANN JUERGENS--December 9. 1999

                WILLIAM MITCHELL COLLEGE OF LAW

INSTRUCTIONS:

1.         This is an open book examination.  You may use any written materials you like so long as your answers are your own work.

2.         Write your answers in blue books and turn in this copy of the exam with your answers.

3.         You have 2 hours to complete this exam.  Each question is worth the number of points (or some multiple thereof) as the time suggested to spend on it.  There are 4 questions worth 15 minutes each and 2 questions worth 30 minutes each.  (Some of the questions have subparts.)  Pace yourself; that is, do not spend an hour on a question worth 15 minutes!

4.         Assume that the Model Rules of Professional Conduct are the applicable rules, unless the exam specifically asks that you apply the Minnesota Rules of Professional Conduct, in which case you should apply those.  [The last two questions ask you to apply Minnesota Rules.]  Assume that the Opinions of the Minn. Lawyers Professional Responsibility Board are applicable in all jurisdictions.

5.         Be careful to focus your answer on the questions asked.  Explain the part that specific rules will play in your decision and explain what you believe the rules and other law require or allow, but also explain your decision in light of your own moral standards or other factors that you believe should influence your decision.  As I have stated in class, do not assume that there are Rule provision(s) on point for each question.

6.         If you feel you must assume additional facts for your answer, please tell me what those are.  But be careful not to wander

off the topic that I have asked you to answer.

1.                   Suggested time:  15 minutes.

Attorney Agatha is an experienced criminal defense attorney.  For the past few months she has been defending client Fred against charges that he engaged in criminal price fixing.  Fred is paying Agatha by the hour at a reasonable hourly rate.  After several weeks of discussions and counseling by Agatha, Fred refuses to take Agatha's well founded advice that he plead guilty in order to obtain a much more lenient sentence than he would get if found guilty after a long jury trial. 

Consistent with her ethical obligations, may Agatha withdraw from representing Fred in this case on account of his refusal to accept her counsel?  Why or why not?  Does it make a difference in your answer if she believes him to be guilty of the charges?  Explain.  You should assume that there is enough time for Fred to find another competent attorney before trial. 

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2.                   Suggested time:  15 minutes.

Lawyer Lee represented client Faisal in a court hearing to obtain unemployment insurance benefits after being fired from his job.  Lee won the case for Faisal.  The employer's attorney did not seem to be very familiar with the case and failed to get certain important facts into the record at the hearing.  Specifically, you know that Faisal had at least 3 unexcused absences from work that were part of the basis for his firing.  While Lee is confident of the merits of Faisal's claim for benefits, he knows that the outcome may well have been different had the hearing judge known of those unexcused absences.  Still, the employer had the burden to establish that Faisal was not entitled to unemployment benefits; it failed to meet that burden.  Assume that Lee and Faisal were able to present Faisal's side of the case without telling any affirmative lies about the facts:  Lee simply avoided the issue of absences from work and focused instead on Faisal's outstanding job performance reviews. 

The employer has appealled the adverse decision.  The appellate court will rely on the factual record of the hearing and decide the case based on that and on the law.  In order to comply with a lawyer's ethical obligations, must Lee find a way to inform the appellate court of Faisal's unexcused absences?   Did Lee err ethically by refraining from mentioning Faisal's work absences at the hearing?  Why or why not?

3.                   Suggested time:  15 minutes.

The law firm of Able, Baker and Charlie specializes in family law matters.  The firm has three partners and four associate lawyers.  Partner Able has been asked to represent client Dang in a child custody dispute with Dang's ex-husband.  The ex-husband is represented by attorney Yelson, a partner in a different law firm.  Yelson and Able are engaged to be married in the near future.  Able believes that Dang's matter could be handled competently by the senior associate in Able's firm. 

If you were a lawyer called for a consultation on Able's ethical obligations, what advice would you give Able in this situation?

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4.                 Suggested time:  15 minutes.

For the past eight years, your law firm has represented client Jones in a variety of venture capital projects.  Now Jones has a new project.  He, Smith and Doe want to form a business entity to manufacture and sell a revolutionary new digital sonar surgical device.  Doe has received an apparently valid United States Patent on the device, and she has the know-how that is needed to manufacture it efficiently.  Smith is an expert in marketing surgical equipment.  Jones has neither technical nor marketing skills, but has the capital that the new venture will need.  Jones, Smith and Doe have asked you to represent all three of them in organizing the new venture.

Under what, if any, conditions may you ethically represent all three of them?  What, if anything, will you tell Jones, Smith and Doe with respect to the confidential information they will disclose to you?

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5.                 Suggested time:  30 minutes

Attorney Anson specializes in representing doctors, other health care workers and health maintenance organizations in malpractice cases.  Early next year a national convention of medical providers will be held in Minneapolis at the Convention Center.  Anson will be attending the convention to keep current about changes in health care delivery standards in the United States.  About 5000 medical professionals are expected to attend the convention. 

Anson has arranged to make a presentation at the conference in seminar format, offering general legal information--not private consultations--about how to avoid medical malpractice lawsuits.  Anson will pay a fee of $2500 to the conference organizers (a health care providers trade association) for the privilege of offering such a presentation to attendees at the convention.   

Anson also has rented a small booth space in the convention display hall.  During the 4 day convention, Anson plans to staff the booth with a secretary and paralegal from the law firm.  Anson's purpose is for the employees to answer general questions about the firm's services and to hand out brochures to potential clients--whether health care workers or managers--who stop by the booth.  The one-page brochure is reproduced at the top of the next page:

Are there any ethical problems with Anson's planned activities at the convention?  Why or why not?  Apply the Minnesota Rules of Professional Conduct. 

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6.  Suggested time:  30 minutes

Felicity bought a sailboat and a motorboat from Lakeland Marine Supply Co. on credit and failed to make timely payments on either boat.  Lakeland hired lawyer Lloyd to collect the two debts.  Lloyd sent a series of appropriate demand letters to Felicity.  

When Lloyd received no response to them, he called Felicity on the telephone at home.  Lloyd identified himself as Lakeland’s attorney and basically reiterated what he had written in the letters.  Their conversation concluded with the following exchange: 

“Felicity, you will ruin your credit rating if you leave these debts to Lakeland unresolved any longer.  I don’t know whether you have any defenses to a lawsuit for the balance owing to Lakeland, I just know you’ve still got those boats.  The best thing for you to do is pay my client or turn over the keys to those boats immediately!” 

Felicity replied:  “I don’t know what to do—whether to pay the money,

declare bankruptcy, or go further into debt?  Do you think I need an

attorney?”   

Lloyd answered:  “I can’t advise you on that or on which course is best for you.  All I know is that you can quickly put this matter behind you and salvage your credit rating if you pay up or return the boats.”

Two days after this conversation, Felicity left a check (made out to lawyer Lloyd for Lakeland as instructed), a message, and a set of keys at Lloyd's office.  The message said:  "Here is a check for the $10,000 I owe Lakeland on the sailboat.  I have no way to pay for the motorboat, so here are the keys to it; you will find it tied to the dock at the River City Marina."  At the time, Lloyd was in trial and working 16 hours a day, so he put the message, the check, and the keys in an envelope, labeled it "Lakeland," and put the envelope in his office safe.  His trial ended two weeks later.  That very day he deposited the check in his client trust account and notified Lakeland about the keys and location of the motorboat. 

Did Lloyd handle things properly?  Why or why not?  Apply the Minnesota Rules of Professional Conduct.  You may assume that Lloyd's trust account was in an institution that complied with the requirements of the Minnesota Rules.