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 fraud? 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). 1 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. 2 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 perjury 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 lie 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.