FINAL EXAMINATION
PROFESSIONAL RESPONSIBILITY
INSTRUCTOR - Robert A. Hawley
SUMMER 2004
_____________________________________________________________________

1. You have two (2) hours to complete this exam.

2. This is a closed book exam.

3. This exam consists of two (2) essay questions. Suggested time for each question is one (1) hour. Each question is worth 50% of the total value of the exam.

4. Please write your responses in the blue books provided. Please write clearly. Write on every other line and every other page to permit instructor comments.

5. Apply the California Rules of Professional Conduct, applicable provisions of the California Business & Professions Code and the American Bar Association (ABA) Model Rules of Professional Conduct to the examination’s factual situations. In each, identify the issues, apply the applicable authorities and identify the differences, if any, between the analysis or result obtained under the California and ABA authorities.

6. Write your exam number on your exam envelope. Put your student exam # at the top of this page, each page of questions, and each blue book. Do not use your name, student ID number or Social Security Number on any exam materials.

7. At the conclusion of the exam, return all exam materials to the exam envelope and submit it to the proctor. Do not seal the envelope. Students who do not return all exam materials at the end of the exam may not be graded.

GOOD LUCK!

I
Sixty Minutes
(Value: 50%)

Partner Paul is an attorney in a law firm that specializes in plaintiff’s medical malpractice cases. Paul prepares a brochure that states as follows:

Partner Paul, Esq.
Certified Specialist
Plaintiff’s Medical Malpractice
Sue the doctors and Win!!!!
No win No cost
Satisfaction Guaranteed

Paul employs Patty as a paralegal. Patty is a former lawyer who was disbarred years ago. Paul asks Paralegal Patty to distribute these brochures at local hospitals, doctors’ offices, and other public locations. At a local hospital, Patty hands one of these brochures to Client Carol. Carol takes the brochure and later calls Patty. Carol tells Patty that Dr. Dawn has mistreated her terribly and that she needs help. Patty obtains from Carol the facts of Carol’s case and tells Carol that Patty will research the law and get back to her regarding whether or not Patty will agree to represent her.

Patty then discusses the case with Paul. Paul says that he does not represent female clients, but if Patty wants to take the case on he will not object.

Patty then calls Carol and agrees to represent her. Patty also calls on Associate Alan, a junior lawyer in the office, to research the issues further as Patty identified them from her conversations with Carol. Alan does so. From his research, Alan determines that Carol’s case is weak and that it would likely be subject to demurrer. Alan reports this to Patty. Patty in turn reports this to Partner Paul. Paul says this is Patty’s case and instructs Alan to go ahead and draft and file a malpractice complaint saying whatever is necessary to state a claim against Dr. Dawn. Alan does so.

Paul then tells Patty to call Carol and tell her that Carol has an airtight case, that they are preparing the complaint and that it is only a matter of time before they “see the money.” Patty does exactly this.

During Patty’s conversation with Carol, Carol asks how much this will cost her. Patty responds that, like their brochure says, “unless we win, there’s no cost to you at all.” “If we do win,” Patty says, “we will take 45% of the recovery for fees and an additional 15% of the recovery to cover costs. Plus, any dissatisfactions regarding the case will be resolved by binding arbitration.” Carol says that this all seems fine.

Patty then reports to Paul that the deal with Carol is confirmed. Patty also reminds Paul that he was the one that brought Carol into the office and that under Patty’s long-standing agreement with Paul, Patty is to receive 10% of any recovery received in the matter. Thus, Patty asserts, the division of the 45% between Patty and Paul will be 10% to Patty, 35% to Paul and 15% to reimburse their outlay of costs. Paul agrees.

Discuss the conduct of the above individuals under the American Bar Association (ABA) Model Rules of Professional Conduct, the California Rules of Professional Conduct, the California Business and Professions Code and other applicable authorities, identifying any differences in the analysis or result obtained under the ABA and California authorities.

II
Sixty Minutes
(Value: 50%)

Alan files the malpractice complaint making up the facts in the complaint where he determines it necessary. He then personally serves it on Dr. Dawn. Upon being served, Dr. Dawn retains defense attorney Alexis who promptly demurs to the complaint. At hearing, the demurrer is sustained with leave to amend. Alan reports this to Paul. Paul has Patty call Carol and tell her that the case has materially changed. Patty demands that Carol pay an immediate retainer of $5,000 and an hourly fee of $250/hour. Patty reports to Carol that Paul refuses to proceed with the case unless Carol agrees to this. Carol becomes quite upset because she does not have the cash to pay either the retainer or the $250/hourly rate. Patty tells Carol that she should consider her options and if she wants to proceed with the case to let him know. Alan is present during his conversation with Carol.

Alan thereafter calls Carol and tells her, confidentially, that Paul has mishandled her case badly. Alan recommends that Carol see an attorney malpractice specialist who Alan is currently dating, Lawyer Ligi. Carol consults with Ligi and retains her to sue Partner Paul and his firm for legal malpractice.

Upon being retained, Ligi calls Paul and demands that he turn over to her all materials gathered by him and his firm in their representation of Carol. Paul refuses to provide anything to Ligi, says he is retaining counsel and hangs up on her. Ligi then writes Paul the following letter:

“Client Carol has retained me to represent her in a legal malpractice action against you. Demand is made for Carols’s file. Failure to promptly deliver the file to me will result in a complaint to the State Bar of California seeking your disbarment.”

Paul refers the matter to his attorney, Alice, who writes to Ligi the following:

“How dare you communicate with and threaten my client. By copy of this letter to the State Bar of California, I am seeking your disbarment.”

Alice sends the letter to the State Bar, Ligi, Paul and Carol. Ligi then contacts Associate Alan and asks him to meet with her regarding what he knows of Carol’s case. Alan meets with her. During their discussions, Ligi proposes that, in return for Alan providing to her any information he has about Paul’s malpractice, she will agree not to report him to the State Bar or sue him as a defendant in the case. Alan agrees. Alan then secretly gathers all the information within Paul’s firm on Carol’s case. He then resigns from Paul’s firm, taking Carol’s information with him.

Alan then tells Ligi that if she wants this information on Paul she must employ him as an associate in Ligi’s firm. Ligi agrees and employs Alan as an associate and assigns him to Carol’s case.

Discuss the conduct of the above individuals under the American Bar Association (ABA) Model Rules of Professional Conduct, the California Rules of Professional Conduct, the California Business and Professions Code and other applicable authorities, identifying any differences in the analysis or result obtained under the ABA and California authorities.

END OF EXAM