Professional Responsibility

Professor Flamm

Spring 2002


Final Examination


Instructions


1. This is a closed book exam.
 2. Total time is two hours.
 3. The multiple choice and essay sections of the exam will be weighted equally.
 4. Answer Part I on the separate scantron sheet; answer the essay questions in blue

 books.

 5. Be sure to put your exam number on each blue book, on the exam question, and on

 the scantron sheet.

 6. Turn in all questions, scratch paper and blue books after the conclusion of the exam.
 ESSAY QUESTION (50 points)

 Tina Hernandez is the managing partner of the San Francisco office of a large Dallasbased law firm, Enks & Wikster ("E&W' or "the firm"). She calls you - in your capacity as the firm's long-time legal ethics consultant - to inform you of a few concerns she has about certain issues that have arisen, both in cases she is personally handling and in cases being handled by other lawyers at the firm.

 Tina tells you that her office has recently undertaken to represent the plaintiffs in a massive (and potentially quite lucrative) libel action against the Dubai Publishing Company. After the action was filed in San Francisco County Superior Court, Tina learned that her firm's London office has long been acting as general counsel to Dubai's parent corporation - Emirates International - on unrelated matters. The managing partner of the London office told Tina that Emirates is unlikely to complain about E&W's participation in the lawsuit against Dubai, as long as Emirates is not sued itself He added, however, that he was reluctant to ask Emirates for consent, because he thinks it would be more prudent to "lay low for awhile." Tina also mentions that one of the secretaries in the firm's San Francisco office used to work for the law firm that has been hired to represent Dubai in the libel action, but she does not think this fact will pose any problem because Tina "placed her in a zone of privacy."

 Tina seems more concerned about one of her own cases - an employment discrimination action she filed on Sandy Sugarman's behalf against Sandy's former employer, Baytex Corporation. Tina herself worked for Baytex many years ago - that is where she and Sandy met but Tina says that she never received any confidential information from Baytex that would be remotely relevant to Sandy's suit. Still, she is afraid that Baytex's notoriously underhanded attorney, Vidal Pontoon, will seek to call her as a witness in an effort to have her and E&W disqualified.

 Tina says that Sandy - who has become Tina's closest friend - would willingly consent to allow Tina to both testify and continue to act as Sandy's advocate, but that a jury trial has been demanded and Tina is worried that her dual role as advocate and witness might "confuse the jury." Tina also says that she is "pissed oft' because one of Pontoon's investigators - a Nevada attorney who is not licensed to practice law in California - approached Sandy on the golf course and began asking her a lot of questions about the lawsuit and "what she was hoping to accomplish."

 Tina confides to you that she really does not want to have to withdraw from this representation because Sandy orally promised Tina that, in the event Tina's firm was able to secure a favorable verdict or settlement from Baytex, Sandy would give Tina a ten percent "bonus." The bonus - which the firm does not know about - would be in addition to the 40% contingency Sandy agreed to pay the firm itself Tina also mentioned that she does not want anything to interfere with her relationship with Sandy because, shortly after filing the employment discrimination suit, Tina and Sandy - who is, herself, a former government attorney - entered into

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an agreement to jointly purchase a drive-thru expresso stand in Redwood City.

 Tina wants to know whether the facts she has told you about "raise any red flags;" and, if so, what you think should be done. She says that she might want you to reduce your ethics opinion to writing - so that she will have something to "cover her behind" in the event that her decisions are later questioned by firm management; but that, of course, there are certain things she told you about that she would expect you to maintain "in the strictest confidence."

 Please advise Tina (and/or her firm) whether the facts she has told you raise any ethical issues; and, if so, what they are and what you believe should be done