Exam Memo, Professional Responsibility Professor Griffin, Summer 2011

I awarded grades according to the law school’s grading curve, which requires a class average between 2.9 and 3.1. The average for this class was 3.10. The curve was as follows, based on a total possible 100 points. The number in parentheses indicates the number of students who received that letter grade.

93 A (2) 86-88 A- (4) 80-85 B+ (19) 70-79 B (36) 65-68 B- (6) 60-63 C+ (3)

You are welcome to pick up your exams and answers at the front desk of the Health Law & Policy Institute. You will need to know your exam number in order to get the exam. You must sign out your exam and you do not need to return it. Please read over this memo and your exam before asking me any questions about your grade.

For Question I, it was important to read the question and both 1) identify what Norris should do now and 2) assess Keany and Peppers. If you just skipped Norris you missed a lot of points. A key part of your analysis of Norris should have involved the Bevill test, CB 517, 522, applied in the Grand Jury Subpoena case (Roe and Moe), CB 513. This was Norris’ chance to try to get back the documents that had been turned over to the S.E.C. Whenever you learn a multi-factor test, however, you must apply it to the facts in the question. The immigration and F.T.C. representations were included in the question so you could include them in the Bevill factors.

For Keany, it was important to address whether Keany should have known that illegal conduct was going on about him and even to ask if Keany was appropriately responding to the original subpoena. What should Keany have done once he realized something illegal was happening? Gone up the ladder, at least!

A simpler way to think about Question I was that I was testing whether you had learned the practical lessons of Professor Hill and Mr. Ponder as well as the materials in your casebook. In other words, did you know how to be savvy about complying with a request for information and in dealing with clients who might be committing securities ?

The facts of Question I were based on U.S. v. Norris, 2011 WL 1035723 (3rd Cir. 2011), where the district court applied the Bevill factors to conclude that Keany did not represent Norris personally.

In Question II you got most of the points if you discussed 1) possible malpractice suits by G.K. and Nism; 2) the ineffective assistance of counsel claim by Nism, and 3) disciplinary violations, especially violations of Rule 1.9, the former client conflict of interest rule. Too many of you forgot that an underlying conflict of interest is important to prong one of Strickland because of Sullivan and Mickens. And you should have remembered Togstad by facts if not by name.

An attorney was disciplined for unprofessional conduct on similar facts in In re Kostich, 793 N.W.2d 494 (Wisc. 2010).

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For Question III, the multiple choice answers are as follows.

1. D 7. D 13. B 2. A 8. D 14. D 3. C 9. D 15. B 4. D 10. B 5. B 11. D 6. C 12. B

For Question IV, you received five points for your decision to charge (based on what standard?) and five points for applying Brady.

The best student answers to Questions I, II, and IV are included below. They do not include everything but they will give you a good idea of how the curve was set. Please read through them before asking me questions about your own exam.

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Model Answer 1, Question I

1. What should Norris do now?

1.1 5th Am: In response to a subpoena from the SEC, Norris should cite Hubbel against an SEC subpoena in asserting his 5th Amendment right not to produce the corporate documents, transcripts (although they should find their lawyer's paralegal to claim it was all her idea to potentially assert work product as a Dallas firm did in the asbestos cases), or "notes" because the act of production would be incriminating and testimonial. Essentially, he is not required to do the government's job for them unless they ask for the document with reasonable particularity. Although the SEC brings civil charges against people, here, there is the potential that criminal charges could be brought against Norris for or even obstruction of justice or some sort of evidence tampering for having people destroy documents if it is found that these were not regular business practices (as was found in Arthur Anderson case) and the requisite level of intent was met. Moreover, he was potentially suborning perjury in a way by advising people essentially in the internal investigations. Here he should assert that the documents are like a "password" and he should not do the SEC's job for them.

The SEC will assert the documents, as in Fisher, are merely a "key," moreover, these documents are reasonably particularized in the communication Keany provided the SEC. Here, the government knows about the documents. Moreover, like in Fisher, the SEC could argue these documents were preexisting and voluntarily drafted. Here, Norris will likely lose because they will be found to be preexisting documents particularized in requests by his attorney. Moreover, these were documents probably produced by accountants, as in Fisher, pertaining to an IPO that were voluntarily produced.

1.2 Norris should try to assert Attorney-Client privilege over any documents clearly suggesting he was asking his company to openly lie to the SEC. ACP is created when communication between privileged peoples concerning confidential information occurs as a part of giving legal advice. He should assert that under the Bevill test, he approached Keany to discuss legal advice about his individual capacity, the counsel saw there was a conflict but allowed him to speak anyway (also did not give him Upjohn warning), the conversation/communication was confidential and that the substance of the conversations did not concern the company's general affairs. As Ms. Worley pointed out, there must be evidence that the communication's substance was not about the general affairs of the company even if the lawyer never gave her an "Upjohn warning" to pass the fifth prong. He probably will not meet the fifth prong of Bevill.

He will argue he thought Keany was representing him individually because Keany represented him against the FTC and there was an implied relationship between them because the law firm never gave him an Upjohn warning and he reasonably believed he was receiving advice about his documents. He was given no Upjohn warning and Keany purports to represent the corporation and himself. If Morgan turns around and sues him like EW Hutton did to Brown, he can assert this as well, that there was an ACP based on implied actions.

3 Assuming, arguendo, that he could prove some sort of joint representation existed based on implied actions of Keany and Keany's letters to the SEC and representations to Norris, he probably cannot overcome the "imputed knowledge doctrine" that corporation constituent's knowledge given to attorney as a part of the attorney representing the company as a whole. As found in EW Hutton and In re Jury, the "imputed knowledge doctrine" overcomes any joint representation (as he could assert based on Keany's response to SEC). The corporation, through Keany, waived its attorney-client privilege through its June letter to SEC. The corporation's waiver overrides anything Norris can assert.

Moreover, disputes between organizational client and its constituents, under the Garner doctrine, is an exception to attorney-client privilege.

If the Court finds that the securities fraud crime was "ongoing," then the crime fraud exception to ACP may apply. Here, under Zolin, a judge might view the documents obtained from Keany in camera to determine whether the privilege should evaporate. If the SEC asks for documents from Keany, however, they may determine that the crime was a past crime being investigated much like the case in Upjohn for advice on what to do about past securities fraud and how to comply. Again, here Keany was retained to conduct an internal investigation to see how the company should proceed.

If anyone asserted the work product doctrine, claiming these scripts or other documents were produced in anticipation of litigation, that probably would not fly as a lot of the shredded documents might meet the exception under FRCP 26(b)(3) that the SEC had a substantial need and undue hardship in discovering facts of case because a lot of them had been shredded. In Upjohn, the interviews with the corporate execs were found to be work product because they contained mental impressions, opinions and legal theories. Moreover, in the asbestos case, any scripts were also WP.

2. Ethical behavior of Keany (associate)

Conflict of Interest

Under MR 1.13 comment 10, Keany should have given an Upjohn warning to the corporation's constituents and advised them to get separate counsel and informed constituents like Coker and Norris that the ACP belonged corporation and existed between attorney and the corporation, not Norris and corporation. Moreover, under Upjohn, the principal may not be liable for the actions of its subsidiaries so Keany should know a potential conflict of interest exists there.

Here, under MR 1.7, a concurrent conflict of interest existed because Keany was representing a third party such as Norris (assumed from Keany's response to SEC he will represent Norris in the future) while representing the corporation is clearly a conflict of interest because Norris behavior potentially creates a divergent interests between Norris and the company. If in Texas, Norris would not be able to represent Norris and corporation at all under COI rules. But here, he could reasonably foresee a potential falling out between Norris and his client, the corporation. As in Yablonski, he should be disqualified in representing anyone here because of the mass potential for future conflict

4 of interest between Norris, corporation, and constituents. Under MR 1.7, there is substantial potential for conflict of interest in representing Norris or other employees AND the corporation. Here, Keany might have to discharge himself from the matter because even with some sort of consent from the corporation constituents, he cannot meet the demands of MR 1.7(b)'s consent-plus standard. Here, he might have to throw corporation constituents under the bus if the SEC sues the corporation. Here, his representation of the corporation's constituents and the corporation cannot meet MR 1.7(b) because their interests are directly adverse as blame-shifting arises to securities fraud violations and there is a significant risk that his representation of the corporation or the represented constituent may be materially limited by his responsibilities to other clients (each other, essentially). Here, he cannot reasonably believe he can competently and diligently represent both parties in future litigation.

By representing Norris before a tribunal in a seemingly unrelated matter before a sworn interview over immigration, in a future dispute between Norris and the company, Norris could be viewed as a former client under MR 1.9. Here he gained confidential information in an individual capacity.

Diligence and Competence

Here, e-mailing sensitive information and not putting any notes in the privilege log was not diligent. If the corporation waives the ACP privilege to comply with the SEC, then these emails will be found. Because the privilege belongs to the company, only THE COMPANY can waive it.

MR 4.1, 1.2, perjury under 3.4

Here, Keany might be liable for assisting in fraud or perjury (the scripts/documents) under 4.1. Here, if he reasonably suspects that the company is going to lie to SEC or other federal investigators he has a duty to inform them. Here, if he submits documents defending the company relying on testimony from employees based on the perjured testimony he may be liable for suborning perjury as Shaffer was in submitting summary judgment information. He would have a duty to inform the court of this in civil matters with the SEC if he KNEW this was false testimony. Moreover in any future criminal or civil matters, he would have a duty to disclose the client's perjury if he could not get them to recant.

Because the documents being submitted to the SEC are fraudulent, he may be in trouble for assisting in fraud.

Here, he cannot violate confidentiality over the past crimes but can report for perjured evidence submitted if they are relying on the testimony (like the lawyers in Shaffer did)

A duty to securities problems "report up"?

If investors are still relying on the information from the IPO and could be harmed by this, under MR 1.6 he arguably has a permissible duty to report. Moreover, the actions of the constituents can be imputed to the corporation under MR 1.13.

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Here, he was retained to conduct an internal investigation of the company so he did not have a duty to report up or out, really. Under MR 1.13, he was hired to investigate past wrongdoings by the company. Here, the company actually took proactive action to prevent or remedy the effects of the wrongdoing by hiring the firm to advise them. Moreover, he is potentially defending an officer against securities fraud.

Because Keany was retained to conduct an internal investigation of the company to advise the company what to do about potential securities violations. As Rehnquist wrote in Upjohn, internal investigations are protected by attorney-client privilege to encourage the free flow of dialogue between the company and the lawyers retained to advise them. As a result, he may not have to disclose the investigation information.

Under confidentiality in MR 1.6, he did not have the permissible duty to prevent fraud or rectify client's fraud that was furthered by his services. Here, they did not use his services to commit securities fraud. Moreover, they were past crimes he was trying to help the company with. He must comply with "other law," but cannot disclose past crimes he did not assist in. such as At the same time, under MR 1.13, he must serve the best interests of the corporation.

Because the securities crime was already committed (during the IPO), he does not have an active duty to report this because of the "time of commitment" has passed.

Should Keany have withdrawn?

Under MR 1.16, he must withdraw if representing the company forces him to violate ethical duties. Here, the perjured documents to the SEC are fraud but he is INVESTIGATING the securities actions so he probably cannot withdraw without harming the company.

Under Sarbanes-Oxley, if he is aware of a material violation, he must report up unless he thinks it is futile. But here, there might be a colorable defense against securities fraud or they may not be liable for securities fraud. He is here to help past actions that are no longer ongoing.

Under MR 1.16, he is violating "other law" and ethical rules if the perjury and misinforming the public is ongoing. He maybe withdraw in that sense also under MR 1.12. Again, he is investigating. But if he is submitting perjured evidence to the SEC, then he is liable.

Under 102(e), he may be liable because he is a practicing securities lawyer, Keany might be liable. But here, he is investigating for the company. Perhaps the violation of securities fraud by the constituent is imputed to the corporation and in that sense he has possibly violated a securities fraud under 102(e).

Also duty of candor possibly violated to court

6 3. Ethical behavior of Peppers (partner of Winthrop)

Here, Peppers under MR 5.1(b), is a supervisory attorney responsible for ensuring his subordinates conform to the model rules. As in Qualcomm, he has a duty to competently and diligently represent his company and ensure that they are not committing perjury and may be liable for the actions of his subordinates or even in-house counsel as he has a duty to diligently and competently represent Morgan Co. Moreover if he KNOWS Keany is violating law by allowing perjured documents he must report him under MR 5.8.

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Model Answer 2, Question I

Norris N should get his own counsel, independent from K, P & WLF. He should likely tried to plead out his securities violations and somehow try to have that deal include his witness tampering (telling employees to lie to feds), obstruction of justice (destroying incriminating docs), & other potential crimes that resulted from telling MC employees to use the false statement when talking to fed investigators about the IPO.

Furthermore, if it seems like MC & N might become embroiled in either a civil or criminal suit together, N should move to have K, P, & WLF dismissed from rep'ing MC. Like the case where the corp attnys rep'd the exec in front of the SEC w/o making it clear to him that they were not his personal attnys in his individual capacity, K, P, & WLF did nothing to make N believe that he was anything but their client. Furthermore, K made affirmative statements claiming all MC employees were their clients.

Thus, if MC & N are ever in an adversarial situation, N should move to have them dismissed due to CoI. N might still be a current client in this situation as he could have separate counsel for the criminal matters & still use WLF & its attnys in immigration matters, as he had in the past. Therefore, WLF would be rep'ing MC in direct adversity to N & w/o full disclosure & written consent, could not continue its rep of MC if they were trying to pin the fault totally on N (which is likely as he created & distributed the false doc).

N should also bring ethical violations by K, P, & WLF to the attention of appropriate disciplinary body (will be discussed below). This, however, is not necessarily advisable in that it would allow WLF to disclose confidential info & material protected by ACP that would normally protect N in its defense against his claims.

N could try to move to quash the SEC's subpoena, like in In re Grand Jury Subpoena, but this is likely to fail. First of all, the note N made has already been turned over to the SEC by K, thus negating any benefit from squashing the subpoena. Secondly, it is MC's ACP to waive. Like in In re GJS, K did not communicate w/N in his individual capacity, but as an exec of MC authorized to work w/counsel. Furthermore, there’s no indication N ever sought out legal advice from K on a personal issue or that any such communications were done in confidence. Thus it is likely that N would fail the Bevel test as he could not successful distinguish his individual comms w/K & his MC related ones, much like Moe & Roe.

Keany Ks first ethical problem arose when he told N that they didn’t have to turn over the fraudulent notes used to mislead investigators as they were not located in the US. This is hard to believe as MC is a US company & N sent those notes to company official’s w/knowledge of the IPO, some of whom were bound to be in the US. Furthermore, even though N told people to destroy the notes after using them, clearly some survived as K saw an exec reading from them during an interview. As it would seem that WLF is a US firm &

8 that K is in the US, it’s hard to figure out how the notes he saw being used were not w/in the j/d of the subpoena, i.e. w/in the US.

Thus, this could be a discovery violation, although not as serious as Qualcomm, it would be in the same vein. K knows of the existence of material sought but advises against turning it over. In Qualcomm, the company lied to their outside attnys about the existence of docs that were sought in discovery thus inducing the outside counsel to lie about their non-existence. While the outside counsel was eventually cleared of wrong doing, Qualcomm's in-house counsel was still found to have violated ethical rules in withholding info sought by a valid court order. While one is a discovery order & the other a subpoena, they function in much the same way.

It is also not N or MC employees trying to withhold the info in the notes but K, however he does express a belief that MC should turn over the notes as they would show MC acted lawfully throughout the IPO. This situation might be similar to the CERCLA case as it is unclear if at this point K knows of the docs fraudulent character, just as it wasnt entirely clear when the EPA attnys knew of the false credentials or other issues with their witness.

K does know that they were drafted after the IPO, during an internal meeting about the alleged securities violations. They are not notes or minutes from meetings when the IPO was being developed & executed, but from possibly truthful recollections years later. If K were to offer the notes to the SEC & the ct as proof of no wrongdoing, he would owe a duty of candor towards the ct, like in the CERCLA case, & should tell them the nature of the notes. I.e., that they were developed later on while MC was planning its defense. The disclosure wouldn’t be covered by work product as N (not an attny) created the notes, not an attny for MC.

K also failed to investigate or zealously rep MC when he advised N to make a partial waiver of privilege & confidentiality by turning over corporate docs w/o waiving right not to produce other docs. The SCOTUS has rejected such a partial waiver, where a client made a deal w/the IRS to disclose some docs provided that privilege would apply in other situations. The SCOTUS said that once the privilege is waived, its gone for good.

Thus, K failed to investigate the legal ramifications of his advice (which would be easily discoverable) & suggested course of conduct as well as failing to zealously rep MC by advising them to pursue a course of conduct that would potentially expose them to great liability in the future (securities violations, etc.).

Unlike Upjohn, it does not seem that anything MC or WLF would turn over to the SEC was created during WLF's internal investigation into the IPO problem. Therefore K did not err in failing to assert ACP or WP to protect MC docs from being turned over. If there were such WP or ACP docs from the internal investigation that WLF turned over w/o consulting MC to get their informed consent to such waiver of privilege, then K violated his ethical duties to MC to protect their privilege, keep their confidences, & zealously advocate for them.

While K had some discretion, he essentially turned over company docs of his own volition w/o approval from an MC exec authorized to make such decisions. While he informed N &

9 others of his plan of action, there’s no indication that they approved. K should’ve called them on the phone or had them come to the office to tell them of the ramifications of his proposed conduct & gotten their informed written consent b/f turning over the docs to the SEC. He should have also ensured they knew exactly what was to be turned over, so as there would be no surprises down the line.

K also made errors in judgment by communicating to N & C & other MC employees through email on sensitive matters, such as what would be turned over to the SEC & who K & WLF represent. While these emails would likely be covered under ACP as they were communications by an attny to a client on a matter of legal representation, the risk is too high of the docs getting out & providing damaging evidence against MC. Instead, K should’ve arranged to meet w/the clients or to call them on the phone so that he ensured confidential info was not susceptible to exposure.

K, in stating that WLF rep'd MC, its affiliates, & its current employees more than likely expanded WLF's client list. There is no indication of what the fee arrangement b/w MC & WLF was when WLF was retained, but it was likely not this broad. K is creating potential CoIs b/w MC, its affiliates, & MC's employees if they are ever directly adverse to one another in a ct proceeding. This would potentially deny MC their counsel of choice (WLF).

Also, there is no indication of WLF setting up cones of silence or chinese walls or any other screen to deal w/potential CoIs if MC & its employees or subsidiaries engage each other in legal action. This would mean, unlike the firm in Pierce where the firm prevented its new associate from claiming any part of its fee & set up a cone of silence around him, thus preventing his conflict from being imputed to the whole firm, that WLF would be forced to abandon its rep of MC or any of the employees or subsidiaries if any combination of the parties have adverse interests.

There’s also no indication that WLF, K, or P ever discussed a fee arrangement w/MC b/f coming on as their counsel. this sort of agreement would’ve likely cleared up any confusion about who WLF represents (in this case it would most likely be MC). The fee arrangement would also be essential to ensure that MC knew ahead of time what its legal bills would potentially be. Such an arrangement should’ve laid out who was being rep'd by WLF

If WLF only rep'd MC, WLF attnys should’ve made clear from the outset when they communicated w/MC employees that they rep'd MC and not the employees as individuals. Furthermore, they should’ve advised the employees to seek outside counsel for their own possible representation, should they need it.

As K made sweeping statements as to who was a WLF client to the SEC, while well intentioned, might have been beyond the scope of reality. While it is true that WLF would be the attnys for Smith & Jones who appeared b/f the SEC w/WLF attnys as their counsel, WLF likely doesnt rep other MC employees as individuals. Therefore, if the SEC were to call them in, they would likely need their own independent counsel to protect their interests as WLF would have torn loyalties b/w protecting its corporate client & zealously defending an individual who might be subject to SEC violations.

10 While Ks intent to receive notice of further grand jury subpoenas, there is likely a way to go about achieving the same result w/o expanding the firms list of purported clients. He could’ve requested that N or another MC exec send out a letter asking employees to notify the company if they were subpoenaed. However, this might be seen as tampering w/witnesses & intimidating employees into not testifying or altering their testimony if they feel the company is looking over their shoulder to protect itself.

Peppers P failed to establish a clear & precise fee arrangement b/f working for MC, as outlined above. It also seems that he had little oversight over Ks conduct, which could expose him to personal liability for Ks ethical violations (none seem to rise to malpractice as of yet since there have been no adverse judgments against any of the parties) since he was the senior partner & appointed K, a junior partner, to handle MC. While a junior partner is not as low as an associate, P still should’ve exercised oversight over Ks conduct to ensure that it met w/the ethical guidelines as well as what MC expected out of its representation.

Thus, P should’ve heeled in K when he received emails stating K planned to turn over docs. He should’ve ensured that such disclosure was what MC wanted & that it was in their best interests. There is no indication that P ever received the emails where K expressed his belief in who WLF represented, and therefore it is unclear whether he knew of these statements. It’s also unclear if the statements were true or not (given that K made them to ensure he was made aware of future subpoenas, it’s likely they were not, but he might’ve just been reminding the SEC that WLF represented all MC employees & subsidiaries as well as the parent company).

Ps main ethical violation is a failure in oversight of his subordinate. Based on these facts, he received a single email from K about the rep of MC after assigning him as the main contact. This tends to indicate that the senior partner was not taking an active role in rep'ing MC, and this could be viewed as a failure to exercise due diligence & zealously rep MC on Ps behalf. If P was unable to be more engaged b/c his time was consumed working for other clients, that too would be an ethical violation as he is sacrificing the rep of one client for the benefit of another. But again, b/c there is a lack of facts regarding Ps involvement beyond the initial engagement & the single email from K, it is hard to determine what other ethical violations he might have committed beyond a failure to establish a definite fee arrangement & understanding of who WLF represented & a failure to oversee the conduct of K.

11 Model Answer, Question II

Charges Against Sue

Attorney Client Relationship G.K. and Sue likely have an attorney-client relationship despite the fact that G.K. never paid Sue any fees and never signed a formal contract. An attorney-client relationship can be formed when a prospective client seeks out legal advice from an attorney and that attorney provides legal advice. In this case, G.K. spoke to Sue about the possibility of entering into a relationship to pursue a claim against Nism. After listening to G.K.'s confidential information, Sue then stated that she "believed the statute of limitations precluded a civil suit." This statement likely constituted the giving of legal advice. In this way, the case is similar to a medical malpractice case in which a man went to the doctor with a headache and had a surgery to clamp an artery. The doctor performed the procedure incorrectly and paralyzed the man. The man's wife then went to a lawyer and told her story. The lawyer then responded that she did not have a claim, and by the time the wife contacted another lawyer about the issue, the statute of limitations had run. Similarly, in this case, G.K. will want to point out that there is a big difference between saying "You don't have a case" and "I don't want to take your case." By telling G.K. that the statute of limitations precluded his claim, Sue was offering legal advice, thereby forming and attorney client relationship. In the medical malpractice case, the Court was unpersuaded by the lawyer's claims that no relationship existed because there was no formal contract or fee agreement. A court would be similarly unpersuaded in this case.

Sue's Defenses: Sue will assert that she was not offering legal advice, there was no fee contract, and there was no formal contract, so there could be no attorney-client relationship. For the reasons described above, Sue will be unsuccessful with each of these defenses.

Legal Malpractice G.K. likely has a claim against Sue for legal malpractice based on Sue's failure to investigate his claim. Sue made an affirmative representation to G.K. that the statute of limitations precluded his claim, but she did not look into the legislature's considerations. A lawyer is presumed to provide only truthful legal information to a client and is under a duty to investigate the law if she does not know the answer. To prove legal malpractice, G.K. will have to prove four elements: (1) duty; (2) breach; (3) causation; and (4) damages. Duty was proved above by the establishment of a lawyer-client relationship.

Breach Breach can be proved by establishing that Sue failed to conduct investigation necessary to the competent giving of advice. This case is a far cry from Padilla, in which the attorney advised his Honduran client to plead guilty to drug charges and told him that he would not be deported from the US because he had been living there for 40 years. The lawyer did not do any research on the subject and so was unaware that Padilla could be deported. The lawyer asserted that he could not be expected to know immigration law on a drug case because it was a collateral injury, but the Court disagreed.

12 Unlike Padilla, this case involves a central tenet of the case rather than collateral information. Sue should have made a reasonable effort to research the emerging law in her jurisdiction. Similarly, Sue should have been placed on alert by the recent changes in law in three other states that perhaps a modification was being considered. Additionally, G.K. will assert that Sue should have discovered the fact that Nism's leaving the state could have tolled the statute of limitations. G.K. will likely bring in lawyers as expert witnesses who will testify that any reasonable attorney would have examined the potential defendant for potential tolling when the statute of limitations was such an important issue.

Sue's Defenses: Sue will assert that she did not breach a duty to investigate because she cannot be expected to look up every possibility of emerging law in her jurisdiction. The state legislature had not passed a new law increasing the statute of limitations or even proposed an amendment to the state law. The facts state that the legislature was merely considering changing the statute of limitations. Therefore, Sue advice was correct that the statute of limitations preclude her claim. Sue will additionally assert that she had no duty to investigate Nism's departure from the state following the initial meeting she had with G.K. However, this is likely a bad argument because the investigation was so crucial to the relevant statute of limitations.

Causation and Damages To establish causation for legal malpractice, G.K. will have to prove that but for Sue's breach of duty, he would have won his case against Nism, meaning that he has to prove a case within a case. G.K. will assert that if Sue had investigated the law in their jurisdiction she would have discovered an upcoming change in the statute of limitations or the face that Nism's departure from the State tolled the statute of limitations, G.K. could have brought a claim against Nism. This is where G.K.'s malpractice claim falls apart. G.K. did get to bring suit against Nism, so there is no causation or damages in this case. Therefore, Sue is likely not guilty of legal malpractice.

Successive Conflict of Interest State prosecutors should have moved to have Sue disqualified from the case based on a conflict of interest. As established above, Sue had a previous attorney-client relationship with G.K. MR 1.9 precludes a lawyer from representing a client in the same or a similar matter where the representation would be materially adverse to the former client. In this case, Sue is representing Nism in the same case for which G.K. contacted Sue originally. The information Sue learned from G.K. in that initial meeting and the fact that Sue has seen G.K.'s medical records make this representation materially adverse to G.K. The state likely will not have a problem disqualifying Sue. In this case, it is irrelevant that Sue is cross-examining A.B. and Fend is cross-examining G.K. Sue should still be disqualified from representing Nism in this case. Since it appears from the record that the trial has already taken place, Sue should be precluded from representing Nism on appeal.

Sue's Defenses: Sue doesn't have many defenses here. She could assert that she is only cross-examining G.K. and that she feels she can represent Nism without revealing any of G.K.'s confidences, but these are unlikely to persuade a court.

13 Ineffective Assistance of Counsel Nism can assert an ineffective assistance of counsel claim against Sue under the 6th Amendment. The 6th Amendment provides that every defendant in a criminal case shall be appointed counsel. To succeed on this claim, Nism will need to prove Sue's ineffectiveness under the Strickland test by proving that (1) Sue failed to act in a reasonable manner such that she was not the "counsel" guaranteed by the 6th Amendment, meaning that her conduct fell below a reasonable standard; and (2) this conduct materially adversely affected Sue's performance such that Nism was denied a fair trial. In other words, Nism will have to prove that Sue had an actual conflict of interest that adversely affected Nism's trial result. Mere allegations of a conflict are not sufficient. For reasons explained above, Nism likely can prove that Sue had an actual conflict of interest based on her prior relationship with G.K. Nism will next have to prove that Sue's performance adversely affected the outcome of her trial. Nism will assert that Sue's prior representation of G.K. made her sensitive toward him such that she would not want to reveal all pertinent information in the trial. Nism will assert that if she had had a zealous advocate who had no conflicts, she would not have been convicted of this crime.

Sue's Defenses: Sue will assert that the overwhelming evidence against Nism in this case would have garnered a conviction against her regardless of the representation. Furthermore, Sue will argue that she disagrees that an attorney-client relationship ever existed and thus was not swayed by G.K.'s emotional story. Sue will point out the case in which an attorney did not move to strike a confession garnered illegally (which the state conceded) and still was not convicted of ineffective assistance. The court held that in that case because the defendant had confessed the murder to two other people, the lawyer's failure to strike the confession did not materially adversely affect the outcome of the trial. Similarly, here, Sue's conflict of interest did not change the fact that G.K. and A.B. testified that Nism sexually molested them. Therefore, Nism will not recover on her claim.

Charges Against Fend Imputed Conflict of Interest The state will also likely move to disqualify Fend through MR 1.10 by imputing Sue's successive conflict of interest to Fend. Confidential information is presumed to pass between colleagues in a firm, and a conflict of interest under MR 1.9 can be imputed to all of Sue's colleagues. Because this conflict is not one that occurred at a prior firm, Fend is not imputed through Sue's migration and therefore cannot be saved by any screening mechanism. Sue could assert that she did not know any of G.K.'s confidences and therefore has no conflict, but it is Sue's conflict that is imputed to Fend. Therefore, Fend's knowledge of G.K.'s confidences is immaterial.

14 Model 2-- Question II

Luckily poor GK has a few claims he can make against Sue that might be able to make him feel better about his situation in life.

Malpractice in the Civil Case

GK might be able to sue Sue for malpractice for his civil claim, based on a case that would look a lot like Togstad. To prove a malpractice claim, one must assert: duty, breach, causation and damages.

Duty: Similar to the court's holding in Togstad where the court held that a lawyer owed a duty to a woman who had merely conversed with the lawyer for an intial consultation regarding the possibility of a claim, the court should also find that GK's meeting with Sue should be considered the beginning of a lawyer/client relationship. GK had every intent to retain a lawyer for litigation, so he cannot be accused of merely taint shopping, and he exposed some very highly sensitive information. They even discussed fees (signing an agreement is not necessary unless it is a contingency fee arrangement), indicating their intent to enter a relationship. Their interactions indicate that a court should most likely find that Sue owed a duty to GK.

Breach: One could argue that Sue breached her duty to GK when she did not bother to find out that the state legislature was thinking about changing the statute of limitations in sex abuse cases. In the Stenbach case, the court brought up several cases from other jurisdictions that supported its holding. This suggests that a lawyer has a duty to her client to look into rules and regulations in other jurisdictions. Had Sue done this, she easily could have argued a case of first impression in her jurisdiction for extending the statute of limitations, considering the public interest factor, the seriousness of the offense, and the number of other states that were extending the statute of limitations. Sue did not do any of this, creating a breach

Causation: Sue's failure to argue that the statute of limitations should be extended, as it has been in other states, led GK to drop his civil suit against the people who molested him. Under causation, you also need to prove "a case within a case." Because Nism was convicted of all criminal charges, she most likely would have been convicted under civil standards as well, which carry a lower burden of proof. GK would have to bring in expert lawyers to help prove that he could win his case within a case.

Damages: GK therefore missed out on the ability to sue his molesters for monetary compensation that might be able to support him in paying for the years of therapy that he most likely needs after going through something that traumatic.

15 He could bring in expert therapists to testify about the probable bill total to help him recover from something so traumatic.

Sue's argument: Sue could defend these charges by saying that she did not breach her duty to GK - the state had yet to adopt the statute of limitations policy, and she might have been sanctioned for bringing a frivolous lawsuit in front of the court when statute of limitation rules were obviously contradictory to her stance. She could say that she did, in fact, look into GK's medical records, to prove that she took a diligent interest in the case, but ultimately she could say that she did not have a duty to know what the legislature was thinking in regards to changing the statute. Therefore she did not breach a duty, and the elements of malpractice cannot be met.

Court's decision: Based on the seriousness of the offense - sexual abuse charges - and the necessity to give the victim financial compensation for his injuries, the court should conclude that Sue breached her duty by failing to take other state's statutes into consideration. It would have been easy to make a public policy argument that the statute should be extended, in light of the fact that other states have made similar conclusions. A lawyer has a fiduciary duty to represent his or her client zealously - that includes looking up cases from other states as persuasive authority.

Professional violation of Rule 1.9

Sue breached her duty to former client GK under Rule 1.9 by representing a party that was substantially related and materially advrse to her representation of GK. Sue knew the intimate details of GK's molestation, and still chose to defend Nism in the suit brought by the State on behalf of GK's accusations. Sue could easily use the confidential information she learned from GK to alter what questions she chooses to ask Nism on the stand and how she chooses to present her case. Even though Sue didn't cross-examine GK, the appearance of impropriety is tremendous. There are no facts to suggest that a screen was put in place so that Sue's conflict would not be imputed to Fend. Sue breached this duty severely, and the Board should consider suspending her license.

The rules reinforce the idea that a lawyer has a fiduciary duty to her client, a duty to act zealously on behalf of her client, a duty of loyalty to former and current clients - she breached all of these duties as well.

Sue could argue that she did not relate any of GK's confidential information to her partner, and she did not violate her duty of loyalty or confidentiality to GK because Sue never in fact cross-examined her - Sue's partner did.

16 This argument should be rejected based on the absense of screen between Sue and Fend, and the signficant, sensitive adversarial relationship between Nism and GK.

Ineffective assistance of counsel

Nism may have an ineffective assistance of counsel claim against Sue by saying that Sue's performance did not meet Nism's 6th Amendment right to counsel. The test for ineffective assistance of counsel was outlined in Strickland v. Washington as two-pronged: (1) the counsel's performance must have been so defective that it fell below reasonable standards of competency; and (2) the attorney's conduct prejudiced the defendant, or the outcome would have been different but for the attorney's conduct.

Nism would say that Sue and Fend perfomed so poorly that it was as if Nism didn't have an attorney at all. As to the second prong, prejudice is presumed in certains circumstances, one of which is when the attorney has a conflict of interest (Cuyler v. Sullivan). Nism could argue that Sue only chose to defend Nism so she could intentionally do a poor job, on behalf of her sympathies towards GK. Thus, Sue's performance would have been so deficient that Nism might have had no attorney at all, and Nism was clearly prejudiced based on the presumption that arose from Sue's conflict of interest.

This presumption of prejudice will probably be rejected though because Nism had two lawyers - while Sue should have been disqualified from representing Nism, her conflict should not extend to Fend, so long as Sue did not disclose any confidential information to her.

I.D. Fend

Violation of Rule 8.3 If ID Fend knew about Sue's prior relationship with GK, she should have reported such a blatant abuse of conflict of interest to someone who could have prevented Sue from undertaking representation of Nism.

Violation of Rule 1.9 If ID Fend learned any of GK's confidential information from Sue, then she would also have a conflict of interest and should have withdrawn her counsel.

17 Model Answer 1, Question IV

The ethical prosecutor here, under the model rules (possibly 3.8) has a duty not to bring an action the prosecutor knows is not supported by probable cause. Because there really is no objective standard about probable cause, this is largely discretionary for the prosecutor. Maybe probable cause is enough to bring a jury charge or enough that a judge would accept. Maybe probable cause is the subjective belief that the defendant reasonably committed the crime. Here, the prosecutor is not a "zealous advocate" for the victim, she is an advocate for the sovereign, for the public. Moreover, there is no requirement that the prosecutor actively investigate everything before bringing the charge. The Prosecutor most definitely should not engage in detrimental pre-trial publicity.

Under Brady, a prosecutor has a duty to divulge exculpatory evidence to the tribunal even if the evidence, at minimum, will call into question the credibility of a witness against the defendant. Unlike DA Nifong who tried to hide exculpatory DNA evidence in the Duke Lacrosse case (and did not timely disclose it to try and hide it before elections) and cover up the inconsistent statements made by witnesses to the alleged because Nifong wanted to win a large black voting bloc for his own personal political gain for DA re- election, this prosecutor should disclose Victima's inconsistent testimony and history of untruthfulness. Here, the maid has credibility issues and seems to be the only witness/accuser. At the same time, Victima was badly bruised and semen was found on her body. Victima may essentially be a trainwreck with a history of untruthfullness, but at the same time, the prosecutor owes a duty to the public to protect the public from rapists.

Under Berger, there is a duty to not try and convict the innocent using improper means. Overall, the prosecutor's duty is to "seek justice." Although a prosecutor is largely immune from civil or criminal suits based on sovereign immunity unless her actions are egregious, she should not bring the harshest sentence in an attempt to get the defendant to agree to a plea bargain. If the defendant is innocent and represented by a zealous attorney and a jury somehow buys into a theory he committed the crime when he did not, he could go to jail for a long time for something he did not do. The public's interest not served by jailing an innocent person.

The prosecutor arguably has probable cause to charge him with lewdness. Here, there is physical evidence of the semen and the injury. Granted, the man had a weapon (shaving utensil), his semen was on the Victim's body, and Victima was bruised. However, the only witness appears to be Victima and she can be easily impeached with conflicting testimony. She has lied about rape in the past. Her sexual history could potentially come into play because of her history of lying. Moreover, we do not know about the element of consent here so maximum charge could not be brought.

18 Model Answer 2, Question IV

Legal Standard

The duty of a prosecutor is not to win cases but to see that justice is done. One of the most important cases concerning the ethical duties of prosecutors is Brady. In Brady, the court held that a prosecutor has a duty to turn over exculpatory evidence to the defense. Since the prosecutor's most important duty is seeking justice, turning over exculpatory evidence to the defense only supports that duty.

Analysis

The facts of this case are similar to the Duke Lacrosse case. That case provides the perfect example of what an ethical prosecutor should not do when handling a case. In Duke, a woman claimed that she had been raped by several members of the Duke Lacrosse Team. However, this information was later discredited because the victim lied about the rape and many other facts relating to the Duke Lacrosse players. The prosecutor was presented with exculpatory evidence on several occasions, but disregarded the evidence every time new information was presented. The prosecutor had received evidence that would have exonerated the players but never turned over the evidence. The prosecutor was disbarred for not adhering to the Brady rule among many other ethical issues. The prosecutor forgot that his first duty was justice. In this case, the prosecutor must remember that she represents the people of New Yawk and that justice is her most important duty. She must disclose to the defense that Victima has previously lied about being raped. It seems that this would be matereial information that might take away from Victima's credibility and exonerate Mr. Ator of any wrongdoing.

Conclusion

At most, an ethical prosecutor would charge only Criminal Sexual Contact because Ator's semen was found on Victima's body. Finding semen on Victima's body is enough to establish the probable cause necessary for Criminal Sexual Contact and/or Lewdness. Criminal Sexual Contact only requires contact unlike and Aggravated Sexual Assault which require force. Lewdness would likely not be charge because it is a lesser offense and will be covered in the Criminal Sexual Contact charge. There is not enough evidence to charge Sexual Assault or Aggravated Sexual Assault because there is no evidence that the sexual contact between Victima and Ator was done by force. Essentially, this case turns into he said-she said argument, but one party has already proven untrustworthy. With no other evidence or witnesses to verify Victima's facts, her previous (especially the one about being raped in her homeland), and no link between her physical injuries and Ator, the prosecutor does not have probable cause to file charges of Sexual Assault or Aggravated Sexual Assault.

19 Model 3--Question IV

Initial Pursuit Under these circumstances, the prosecutor was correct in having the police to detain Fred Ator before he left for Belgium. Initially, this began as a case where it was a poor immigrant's word against a wealthy, international businessman's. There aren't very many scenarios in this world where the woman would have been taken seriously or where her account would have been acted upon. After finding his semen on her clothes and noting the cuts and bruises on her eye, an ethical prosecutor would have understood that justice, not politics, is her client, and that there was enough probably cause to properly keep Ator from leaving the country. If no other evidence had come forward, the scenario described by the woman perfectly meets New Yawk's statutory definition of aggravated sexual assault, and an ethical prosecutor should have felt fine pursuing these charges.

The Brady Rule However, then comes the exculpatory evidence. Under Brady v. Maryland, a prosecutor has a duty to disclose to the defense any material information that would change the course of the proceedings. Our visiting prosecutor summarized this for us in real world terms as the "Oh Sh**!" rule. A lot of evidence came to light about Victima, but not all of it should be considered exculpatory under this standard.

First, the overheard phone call to her boyfriend, announcing that "he" had a lot of money is suspicious, but probably not exculpatory. It's obvious that Ator has lots of money, but it's not obvious that Ator is the "he" she is referring to. It would be easy for the defense to use money as a motive to discredit Victima, without an ethical prosecutor having to turn it over.

Second, the admission that she lied about the gang rape is not exculpatory. It cuts slightly to Victima's credibility, but it doesn't have any relevance to the case at hand (it might have an effect on a penalty hearing when the emotional state of the victim might come into play) - the case is about Ator's alleged assault on Victima, not prior abuse.

Third, the discovery that Victima deposited thousands of dollars in other states is definitely exculpatory. Not only does it discredit her as someone whose words should be trusted, but it also invokes suspicions of illegal activities. The defense should have access to this information, as Victima's ongoing criminal background would have an effect on the current litigation.

This third piece of evidence changes the importance of the first piece of evidence, and her phone call about money and knowing what she's doing all of a sudden may

20 actually become exculpatory. This hotel maid is currently reaping the benfits of some sort of arrangement as she discredits a major international business player. This information dramatically undercuts the prosecution's case, and now the first piece of evidence about the phone call should also be revealed to the defense.

Conclusion While this information is certainly damning, it does not undercut the fact that Victima had Ator's semen on her body, bruises on her neck and a bloody eye. She did not do this to herself, and her boyfriend did not do it to her either (as he is in a Mexican prison). This suggests that either Victima had an accomplice or that Ator is still guilty of something.

Under these circumstances, an ethical prosecutor should seek additional evidence to that would support charges of sexual assault. As soon as the prosecutor finds any evidence that could explain Victima's injuries (an accomplice or a cat fight at her favorite bar), the charges should be dropped. A prosecutor has a duty to look at all evidence in the pursuit of justice and, unlike the prosecutor in the Duke Lacrosse Case, immediately drop charges if she knows that they are unfounded or do not support her cause.

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