ETHICS Ken Troccoli & Ellen Shultz (Alex.) Apr. 12, 2019 WEST 2018 Loser Score = East 1 (2014) West 4 (2015-18) Julie Linnen Juval Scott 2 1
Q. 1 CLIENT WITH IMPAIRMENT 3 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 4 wake up.” You are aware that RPC 1.14 deals with taking “reasonably necessary protective action” for a client with an impairment. 2
Q. 1-W (100 POINTS) In re R. 1.14, which of the following is correct? 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 5 “knows” that the suicide threat is “clearly established.” Q. 1-E (100 POINTS) In re R. 1.14, which of the following is incorrect ? 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. 6 E. All of the above are correct. 3
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 7 made to save the client from harm.” See also LEO 560 (1984). 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.” 8 4
9 Qs. 2A - C 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. 10 5
Qs. 2A-C I hope the food in In prison is as yummy as the Fyre food! 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. 11 Judges’ Scoring 300 Points Each Q 12 6
Qs. 2A-C Don’t you public pretenders work for 300 Pts Each the persecutors? Olivia is coming to meet her new atty to discuss her upcoming PSR interview. 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.” 13 Qs. 2A-C Don’t you public pretenders work for 300 Pts Each the persecutors? Olivia is coming to meet her new atty to discuss her upcoming PSR interview. 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.” 14 7
Judges’ Scoring 300 Points Each Q 15 16 8
2.A. “I DON’T WANT TO TELL THE PO ABOUT BY BAHAMIAN BANK ACCOUNT.” Relevant Rules: BAD • R. 4.1 (Truthfulness in Statements to Others): DECISION lawyer shall not “fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.” Do Nothing – Includes a knowing failure to correct false statements. Or • R. 3.4(c) (Fairness to Opposing Party): Acquiesce 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.” 17 2.A. “I DON’T WANT TO TELL THE PO ABOUT MY BAHAMIAN BANK ACCOUNT.” Relevant Rules: GOOD • 1.2(c) (Scope of Representation): DECISION representation does not include assisting a client “in conduct that the lawyer knows is criminal or fraudulent.” Tell Client That • 1.2(d) (Scope of Representation): Cannot Lie! 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. 18 9
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.” Rule 1: NEVER BECOME A CLIENT! 19 2.B. “CAN’T I JUST TRANSFER THE BAHAMIAN ACCOUNT MONEY TO MY BOYFRIEND? Relevant Rules: BAD • R. 3.4 (Fairness to Opposing Party): “A DECISION lawyer shall not . . . obstruct another party’s access to evidence or alter, destroy or conceal a document or other material having “No potential evidentiary value” or “counsel or assist another person to do any such act.” Problemo!” – “Opposing Party” includes the Govt. Cmt. 1. GOOD DECISION • 1.2(c) (Scope of Representation): does not include assisting a client “in conduct that the lawyer knows is criminal or fraudulent.” Don’t do it. • 8.4 (Misconduct): prohibits atty from engaging in dishonesty, fraud or deceit or assist another person in violating the Rules). 20 Rule 2: See Rule 1 10
2.C. “I DIDN’T TELL THE COURT ABOUT MY LOTTERY WINNINGS .” Relevant Rules: Fraud Upon the Court BAD DECISION • 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 Do Nothing fraudulent act by the client.” • R. 4.1 (Truthfulness): lawyer shall not GOOD knowingly “fail to disclose a fact when DECISION disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.” • R. 1.6(c)(1) (Confidentiality of Info): stating Take that for perjury by client, the atty shall take Remedial appropriate remedial measures as required Measures 21 by R. 3.3. 2.C. I didn’t tell the Court about my lottery w innings. 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 11
CLIENT FILES QUESTION 3 23 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.” 24 12
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