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Ken Troccoli & Ellen Shultz
(Alex.)
ETHICS
Apr. 12, 2019
2WEST
Loser Score = East 1 (2014)
West 4 (2015-18)
2018
Juval Scott
Julie Linnen
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Q. 1 CLIENT WITH IMPAIRMENT
Q. 1 (100 PTS.)
You have been retained to represent a client who is charged with distribution of heroin resulting in death, which carries a mandatory minimum sentence of 20 years if convicted. Upon hearing this news, your client informs you that she cannot do that amount of time, that her life is “over” and that she is thinking about killing herself. She also tells you that in her current job as a nurse practitioner, she has access to pills that will “make sure I won’t wake up.” You are aware that RPC 1.14 deals with taking “reasonably necessary protective action” for a client with an impairment.
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Q. 1-W (100 POINTS)
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A. Under no circumstances may the atty disclose the client’s suicidal intentions since doing so would violate the Duty of Confidentiality.
B. The attorney may take reasonably necessary protective action, so long as the client consents.
C. The attorney may take reasonably necessary protective action, but only if the attorney “reasonably believes” that the threat of suicide is credible.
D. The atty may take reasonably necessary protective action, but only if the attorney “knows” that the suicide threat is “clearly established.”
In re R. 1.14, which of the following is correct?
Q. 1-E (100 POINTS)6
A. R. 1.14 & the Comments following it specifically address a client’s threat of suicide.
B. “Reasonably necessary protective action” includes contacting the client’s family.
C. “Reasonably necessary protective action” includes contacting appropriate medical authorities.
D. When taking reasonably necessary protective action, the atty is impliedly authorized to reveal information about the client.
E. All of the above are correct.
In re R. 1.14, which of the following is incorrect?
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Q. 1 - APPLICABLE RULE ● R. 1.14 (Client with Impairment) provides guidance when a client’s physical well-being is at risk of substantial harm due to the client’s diminished capacity.
● When the atty “reasonably believes” that a threat of suicide is credible, the atty may take “reasonably necessary protective action.”
● While neither R. 1.14 nor the Comments specifically address a client’s threat of suicide, the VSB interprets the rule to allow the atty “to contact the client’s family, close friends, mental health care providers, or emergency medical services personnel so that an intervention can be made to save the client from harm.” See also LEO 560 (1984).
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Q. 1 - APPLICABLE RULE
● Taking “reasonably necessary protective action” does not violate R. 1.6 (“Confidentiality of Information”) because that rule permits disclosures that are “impliedly authorized in order to carry out the representation.”
● However, the atty must reveal confidential info “only to the extent reasonably necessary to protect the client’s interests.”
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Qs. 2A - C
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Olivia Outlaw is in trouble again. After barely completing her term of supervised release for her prior case, she decided to take a temporary job as an assistant to “entrepreneur” Billy McFarland, who was promoting a luxury music festival in the Bahamas. Olivia, along with Billy’s business partner Ja Rule, was tasked with producing a “teaser video” to drive ticket sales. The video promised elite music performers, luxury villas, and gourmet food, none of which were delivered.
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Qs. 2A-C
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After the catastrophic failure of the festival, Billy, Olivia and others were indicted for wire fraud. Olivia eventually entered a guilty plea, but immediately thereafter she informed the Court (via a Financial Affidavit) that she needed a court-appointed atty because she had expended all of her assets and could no longer pay her retained (aka “real”) lawyer. The DCT granted her request and appointed an atty to represent her for sentencing, which will include a $40,000 forfeiture order (representing the amount she earned in salary) and a $60,000 restitution order.
I hope the food inIn prison is as yummyas the Fyre food!
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Judges’ Scoring 300 Points Each Q
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Qs. 2A-C
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Olivia is coming to meet her new atty to discuss her upcoming PSR interview.
Don’t you public pretenders work for the persecutors?
A. “I don’t want to tell the PO about my Bahamian bank account.”
B. Can’t I just transfer the Bahamian account money to my boyfriend?
C. “I didn’t tell the Court about my $350,000 lottery winnings sitting in a savings account.”
300 Pts Each
Qs. 2A-C
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Olivia is coming to meet her new atty to discuss her upcoming PSR interview.
Don’t you public pretenders work for the persecutors?
A. “I don’t want to tell the PO about my Bahamian bank account.”
B. Can’t I just transfer the Bahamian account money to my boyfriend?
C. “I didn’t tell the Court about my $350,000 lottery winnings sitting in a savings account.”
300 Pts Each
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Judges’ Scoring 300 Points Each Q
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Relevant Rules:
• R. 4.1 (Truthfulness in Statements to Others): lawyer shall not “fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.”
– Includes a knowing failure to correct false statements.
• R. 3.4(c) (Fairness to Opposing Party): prohibits an atty from assisting a witness to testify falsely.
• R. 3.3(a)(4) (Candor Toward the Tribunal): “A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false.”
Do Nothing
Or
Acquiesce
BAD DECISION
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2.A. “I DON’T WANT TO TELL THE PO ABOUT BY BAHAMIAN BANK ACCOUNT.”
Relevant Rules:
• 1.2(c) (Scope of Representation): representation does not include assisting a client “in conduct that the lawyer knows is criminal or fraudulent.”
• 1.2(d) (Scope of Representation): when lawyer knows client expects assistance not permitted by Rules, the “lawyer shall consult with the client.”
• R. 1.6(c) (Confidentiality): atty must take appropriate remedial measures if client commits perjury.
Tell Client That Cannot Lie!
GOOD DECISION
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2.A. “I DON’T WANT TO TELL THE PO ABOUT MY BAHAMIAN BANK ACCOUNT.”
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Client’s Lies – What to Do:1. Persuade client not to do it.
-- Doubts about veracity should be resolved in favor of client, ”but the lawyer cannot ignore an obvious falsehood.” R. 3.3 cmt 8.
2. If that fails, end the interview and potentially move to withdraw under 1.16 (Termination of Representation).
-- 1.16(a)(1): atty shall w/d if “the representation will result in violation of the RPC.”
3. As between duties of Confidentiality (1.6) and Truthfulness (4.1), the latter controls bc otherwise the atty becomes “a knowing instrument of perjury.” 19Rule 1: NEVER BECOME A CLIENT!
Relevant Rules:• R. 3.4 (Fairness to Opposing Party): “A
lawyer shall not . . . obstruct another party’s access to evidence or alter, destroy or conceal a document or other material having potential evidentiary value” or “counsel or assist another person to do any such act.”
– “Opposing Party” includes the Govt. Cmt. 1.
• 1.2(c) (Scope of Representation): does not include assisting a client “in conduct that the lawyer knows is criminal or fraudulent.”
• 8.4 (Misconduct): prohibits atty from engaging in dishonesty, fraud or deceit or assist another person in violating the Rules).
“No Problemo!”
BAD DECISION
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2.B. “CAN’T I JUST TRANSFER THE BAHAMIAN ACCOUNT MONEY TO MY BOYFRIEND?
GOOD DECISION
Don’t do it.
Rule 2: See Rule 1
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Relevant Rules: Fraud Upon the Court• R. 3.3(a)(2) (Candor Toward Tribunal):
lawyer shall not “knowingly fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.”
• R. 4.1 (Truthfulness): lawyer shall not knowingly “fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.”
• R. 1.6(c)(1) (Confidentiality of Info): stating that for perjury by client, the atty shall take appropriate remedial measures as required by R. 3.3.
Do Nothing
BAD DECISION
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2.C. “I DIDN’T TELL THE COURT ABOUT MY LOTTERY WINNINGS .”
GOOD DECISION
Take Remedial Measures
2.C. I didn’t tell the Court about my lottery winnings.Fraud Upon the Court
• LEO 390 (1980) “A court-appointed attorney has an ethical duty to report to the appropriate authorities the true financial status of his client regardless of the source of his information that the client can afford private counsel. However, the attorney must first call upon his client to reveal the truth to the authorities.”
• Other Options? Terminate the fraud.– client withdraws request for appointed counsel
– client retains the court-appointed atty• LEO 306 (1978) permits this option
– lawyer moves to withdraw 22
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CLIENT FILESQUESTION 3
Q. 3 (100 pts.)You represented a retained client in a complex white-collar fraud case. Your client entered a guilty plea and is now serving a lengthy prison term and your representation of her has ended. You have already returned to her all original, client-furnished materials, but now she has written to you requesting a complete copy of the remainder of her “file.”
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Q. 3-W (100 POINTS)
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May you condition the release of the client’s file upon payment of copying fees?
A. Yes.B. No, but you may bill and seek to collect
from the client the costs associated with making a copy of the materials.
C. No, and you may not bill and seek to collect from the client the costs associated with making a copy of the materials.
D. None of the above.
Q. 3-E (100 POINTS)
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Are you required to provide attorney work product?
A. No.B. Yes, but you may bill and seek to collect
from the client the costs associated with making a copy of the materials.
C. Yes, and you may not bill and seek to collect from the client the costs associated with making a copy of the materials.
D. None of the above.
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Q. 3 - APPLICABLE RULES● RPC 1.16(e) (Terminating Representation): requires that client is entitled to return of her file upon termination of representation.
- All original, client-furnished documents and any originals of legal instruments shall be returned upon request and atty must bear cost of duplication if attywants to keep a duplicate.
- The client can be charged a reasonable copying fee for duplicating other material in the file.
- Under no circumstances however can an atty refuse to deliver the material until the copying fee has been paid. Nor may atty w/hold the file if the client is unwilling or unable to pay the costs. 27
Q. 3 - APPLICABLE RULES● RPC 1.16 defines the client’s file as:
- All original, client-furnished documents and any originals of legal instruments/official docs;
- Atty/client & atty/3rd party communications;
- Transcripts, pleadings & discovery responses;
- Working/final drafts of legal instruments;
- Investigative reports, legal memos, & other attorney work product;
- Research materials;
- Bills submitted to client.
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Q. 3 - APPLICABLE RULES● What constitutes “Attorney Work Product”?- “Everything prepared by the attorney for the client in
the course of the representation, other than those items originally provided by the client, whether in tangible documentary form or through the intangible provision of the attorney’s expertise, to include working copies, preliminary drafts, notes, final documents, and anything else placed in the file by the attorney.” (From VA Bar Professionalism Course); see also LEO 1366 (1990).
- Duty to provide the file does not include disclosure of materials (e.g. PSR) where the disclosure is prohibited by law. R. 1.16 cmt. 11; LEO 1790 (2004).
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PLEA BARGAINING - Q. 4.
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Q. 4 (100 pts.)Pernicious Prosecutor and Diligent Defense Counsel (that would be you) are discussing the terms of plea agreement. PP provides to DDC the plea agreement which contains the following language:
“I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter and agree that I will not file any document that seeks to disturb any such order.”
PP says this language is now standard language for all plea agreements.
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Q. 4-W Is it ethical for Pernicious Prosecutor to require this waiver as a term of the plea agreement?
A. Yes
B. No
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“I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter and agree that I will not file any document that seeks to disturb any such order.”
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Q. 4-E Is it ethical for Diligent Defense Counsel to advise his client regarding whether to agree to this provision?
A. Yes
B. No
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“I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter and agree that I will not file any document that seeks to disturb any such order.”
Q. 4 - APPLICABLE RULES● Federal Courts have consistently held that such a provision is legally enforceable against the defendant. See U.S. v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) (provision is valid as long as the waiver of rights was knowing and voluntary).
● However, from an ethical standpoint, it is a violation of the RPC for defense counsel to counsel his client re whether to accept that provision.
- LEO 1857 (2011) states both Rs. 1.7(a)(2) (Conflict of Interest) & R. 1.3(c) (Diligence) are violated bc there is a concurrent conflict of interest btwn the atty’s personal interests and the client’s right to diligent representation.
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Q. 4 - APPLICABLE RULES● LEO 1857 also found that, it is a violation of R. 8.4(a) (Misconduct) for the Prosecutor to insist on this language bc he is implicitly requesting that DDC counsel his client to accept this provision, which is an inducement to DDC to violate Rs. 1.3(c) and 1.7.
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8.4(a) It is professional misconduct for a lawyer
to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so
through the acts of another.
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BONUS QUESTIONIdentify these ethically-challenged persons:(700 possible points)
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