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June’s Ethical Violations In Disclosing In Disclosing Acme’s Memorandum

MODEL BAR ANSWERS

Paul Pfau has supplied model answers to the Daily Journal Corporation for over 30 years. Here is a sampling of model answers for past bar questions, in order to give bar applicants a sense of the fundamental writing skills necessary to succeed. Although the Daily Journal may have edited the articles for space purposes, there are specific writing style methodologies that are incorporated into each of the examples. These are methods that bar applicants will learn in order to develop skills sufficient to produce passing standards under exacting timed conditions.

JUNE’S ETHICAL VIOLATIONS IN DISCLOSING ACME’S MEMORANDUM

Concurrent Conflict of Interest

Both California and the ABA establish that a lawyer must not represent a client if the representation creates a concurrent conflict of interest. This occurs when the representation of a client will be directly adverse to the interest of another client or where there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the interests of another client or third person.

Having been “retained to represent Acme” in the lawsuit involving the accident of one of Acme’s trucks, with a car, at issue is whether June’s disclosure of the Acme President’s memorandum created a concurrent conflict of interest given June’s affiliation with the consumer advocacy group, No Lead.

Although it is not clear that No Lead would qualify as June’s client given her apparent voluntary service in merely undertaking “to perform legal research and advice concerning No Lead’s tax-exempt status,” it seems certain that her representation of Acme was materially limited to her personal interest in protecting the public from even the potential of lead poisoning. While it could be argued that the memorandum’s disclosure of Acme’s acknowledgment of lead use in its paint was only remotely connected to its lawsuit involving the truck and car accident, the memo’s admission through Acme’s President that it was committing a misdemeanor by transporting lead-based paint “over roads abutting public reservoirs” is another matter. This part of the memorandum at the very least exposes Acme to credibility issues that could impair a successful outcome on the lawsuit Acme hired June to defend. Further, June’s “outrage” over the content of the memorandum underscores the depth of her personal interest materially limiting her ability to concurrently represent Acme.

Improper Use of Information Adverse to Client

Again, both California and the ABA provide that a lawyer must not use information relating to the representation of a client and that will disadvantage the client unless the client gives informed consent.

June’s “anonymous disclosure of the memorandum to No Lead and the media” clearly reflects her failure to obtain Acme’s consent to do so. As noted above, the memo’s admission of Acme’s commission of a misdemeanor and exposure of the public to potential lead poisoning safety issues could certainly disadvantage Acme in its lawsuit if the memo is admissible to impeach Acme’s credibility.

Trial Counsel as Witness

California establishes that a lawyer may not serve as trial counsel in litigation when the lawyer is likely to be a necessary witness. If the lawyer has already been retained he should then withdraw from the case.

Given June’s anonymous disclosure of the memorandum to No Lead and the media, it is possible she could be called as a witness in the Acme lawsuit she was hired to defend relative to establishing a foundation as to the source of the memo in the Acme records. Although the admissibility of her testimony may be subject to attorney-client privilege, her position as Acme’s counsel seems nonetheless compromised in view of the adverse nature of the information she has revealed as discussed above.

Lawyer Must Act in Best Interest of Organization

When a person associated with the organization advocates an action that may cause it substantial injury, a lawyer must protect the interests of the organization. Ordinarily, the lawyer must report the action to a higher authority in the organization. If the highest authority fails to take timely and appropriate action, the lawyer may report the relevant information to persons outside the organization – and only to the extent reasonably necessary to prevent substantial injury to the organization. Although California’s rule prohibits the disclosure of confidential information, it is permitted if it will prevent a criminal act causing death or substantial bodily harm.

As Acme’s retained lawyer, it could be contended June should have initially consulted with Acme’s President regarding her own intention to disclose the content of his memorandum. Her purpose in doing so would be to advise the President to refrain from advocating the continued transport of Acme’s lead paint on roads abutting reservoirs as illegal conduct subjecting Acme to criminal prosecution. If a higher authority were available – June similarly would be obligated to report the memo’s content before disclosing it.

June could also reasonably argue that her disclosure of the memo’s content would be permitted in California given the fact it would prevent a criminal misdemeanor act that could potentially result in death or substantial bodily harm to reservoir water users in the event of an accidental spill into one of the public reservoirs frequented by Acme’s trucks.

Duty of Confidentiality

A lawyer generally must not reveal information relating to the representation of a client, although California allows – but does not require – an attorney to reveal a client’s confidential information when necessary to prevent a criminal act causing death or substantial bodily injury. June’s disclosure of the memo’s content would seem to fall within the California exception in reasonably contending the public safety issue to reservoir water users as described above.

Attorney-Client Privilege

Generally, the attorney-client privilege allows a client to refuse to testify and prevent the attorney from testifying in court about confidential communications – and where the client is a corporation – the privilege covers communications between the attorney and a high-ranking corporate official. The privilege does not apply where the client seeks the attorney’s services to commit a future crime or fraud.

Although June could argue that her disclosure of the memo’s contents was exempted from the attorney-client privilege because it potentially promoted the continued commission of a misdemeanor crime, Acme would attempt to prevent June from disclosing and even testifying to the content of the memorandum given its confidential nature as an Acme record discovered by June during her defense preparation.

Duty to Communicate Conflict to Client

Both California and the ABA would require June to communicate her concurrent conflict of interest to Acme given her potential representation of No Lead in revealing the content of the Acme President’s memorandum.

Duty to Maintain Integrity of Profession

Further, any of June’s possible ethical violations as discussed above would pose a violation of her duty to maintain the integrity of her profession under either the California or ABA rules.

JUNE’S ARGUMENTS FOR WITHDRAWAL FROM REPRESENTATION

Mandatory Withdrawal

California establishes that withdrawal is mandatory if the representation will result in violation of the Rules of Professional Conduct or other law, the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client or if the lawyer is discharged.

As discussed, any of the possible ethical violations committed by June could result in her mandatory withdrawal from her representation on behalf of Acme. It could also be reasonably argued that June’s mental and emotional condition has been materially altered given her “outrage” over the Acme memo’s content in addition to her three-year-old niece’s lead poisoning.

Permissive Withdrawal

A lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, the client persists in a course of conduct involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent, or the client insists upon taking action that the lawyer considers repugnant or with which he has a fundamental disagreement.

Although having done “substantial work” on Acme’s case “which is about to go to trial,” June would contend that she should be permitted to withdraw following either the California or ABA rules given the evident intent on the part of Acme through the President’s comment in the memo to continue to commit misdemeanor conduct. Alternatively, June would argue that her client Acme’s continued action in transporting the lead paint in violation of the law is both repugnant and obviously in fundamental disagreement with her position regarding lead poisoning safety concerns.

On balance, despite the likely ethical violations committed by June, a court would rule that her petition to withdraw from her representation of Acme be granted on either a mandatory or permissive basis.

______________________________________________________________________________

This answer was provided by Cal Bar Tutorial Review. For nearly 33 years providing customized and personalized bar review programs, Cal Bar & Tutorial Review may be reached through 800-783-6168. Log on to www.cbtronline.com


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