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Student Exam Number _________

Final Examination Professional Responsibility, Professor Leslie Griffin

University of Houston Law Center May 11, 2004 1-4:30 P.M.

THESE EXAMINATION QUESTIONS MUST BE RETURNED AT THE END OF THE EXAM.

This examination is CLOSED BOOK, NO NOTES. You may not consult any other materials or communicate with any other person. You are bound by the Law Center’s Honor Code. Don’t forget that it is a violation of the Honor Code to discuss the exam’s contents with any student in this class who has not yet taken it.

Write your examination number in the blank on the top of this page. If you are handwriting your examination, write your examination number on the cover of each of your bluebooks. If you are using the computer, write your examination number on each diskette and at the beginning of your response to each question. At the end of the exam, you MUST turn in the examination along with your answers. Please do not write your name, social security number or any other information that provides me with your identity. At the end of the exam, place everything, including the exam and all scratch paper, into your plastic bag and return the exam to the proctor.

This exam is six pages long, with THREE questions. Question I is worth 35 points.

Question II is worth 35 points. Question III is worth 30 points. Question III has four separate parts. Questions IIIA and IIIB are worth ten points each. Questions IIIC and IIID are worth five points each. You have three and a half hours. I recommend that you spend 60 minutes on each question. You have an extra 30 minutes to use at your discretion.

Read carefully. Think before you write. Accurate reading of the question is essential.

Good organization, clear statement and avoidance of irrelevancies all count in your favor. In your answers, you should cite to any applicable provision of the Model Rules, the Texas Rules and to the governing case law that is relevant to the question. You do not need to cite rule numbers, but you must spot the ethical issues that are covered in the rules.

If you write your exam, use ONE SIDE of a page only, and SKIP LINES. If you type, DOUBLE SPACE, and leave wide margins.

Honor Code. It is a violation to use ANY aid in connection with this examination; to fail to report any such conduct on the part of any other student that you observe; to retain, copy, or otherwise memorialize any portion of the examination; or to discuss its contents with any student in this class who has not yet taken it. By placing your exam number in the PLEDGE blank below, you are representing that you have or will comply with these requirements. If for any reason you cannot truthfully make that pledge, notify me as soon as possible. Sign your number and not your name. PLEDGE: _____________________________________

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Question I

(35 points, 60 minutes)

Harry and Wanda decided to get married. Harry is a billionaire businessman. Harry hired his corporate Lawyer Larry Lead to draft a pre-nuptial agreement for the couple. The agreement provided that, in the event of the divorce of Harry and Wanda, Wanda could collect child support for any children of the marriage, and child support only. Harry and Wanda never had any children, and Harry asked Wanda for a divorce 15 years after their marriage.

Wanda was distraught over the divorce. She called Larry, who agreed that he and his law partner, Attorney Arthur Able, would represent Wanda in the divorce. Larry told Wanda that they would charge her the “usual hourly rate.” Larry decided to use a very aggressive strategy against Harry. He threatened to reveal the names of the women Harry had “dated” while married to Wanda. Then he began an investigation of Harry’s personal and corporate bank accounts to make sure he didn’t underestimate Harry’s net wealth.

Harry’s lawyers fought back, and the divorce dragged on and on. Wanda started drinking heavily and using drugs. She began to eat regular dinners with Larry. She bought him a $3,000 computer. She also told him that, instead of getting a check from her for his legal bills every month, he could use her charge account at Tiffany to buy whatever he wanted. (He bought his other girlfriend a nice pair of earrings!) Wanda kissed Larry once or twice but they never had sex.

Arthur Able became concerned about losing money as the case dragged on and on. After he told Wanda about his worries, she paid him the $1 million that the firm had billed her hourly to that point. Arthur then asked Wanda to agree to a new, contingent-fee arrangement. She signed a contract that allowed the firm to collect “one third of any recovery,” and that committed her to continue to pay an hourly rate for Larry Lead’s time, but not for Arthur or the firm’s associates, who continued to work on the case.

Good news! Wanda won $9 million from Harry, as well as their fancy house in River Oaks and several pieces of artwork. The lawyers claimed $5 million in contingent fees and another $250,000 in hourly fees. Wanda is surprised that the representation cost so much. Is there anything she can do about it?

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Question II

(35 points, 60 minutes)

Appellate Lawyer Anne Adams was deeply affected by an automobile accident that injured her brother, and generously decided to develop a personal injury practice to help accident victims. She established a website to help represent her clients more effectively. She named the website www.makewhole.com. When you visit the website, you see the following information:

Anne Adams, Attorney-at-Law

2000 Smith Street, Houston, Texas 77000

(713) MAK-HOLE

Personal Injury Lawyer: Helping Accident Victims Find Their Way

$2 million settlement in recent case

Please click on these links to get answers to your questions:

Do I need a personal injury lawyer?

What happens if the driver of the other car didn’t have enough insurance?

This site is designed to provide those people wishing further information about car accidents and personal injury in Texas a place to find answers to common questions. If you have any questions not answered here, give us a call or e-mail us for a free no obligation consultation with one of our lawyers.

For a FREE consultation contact us at help@makewhole.com.

Driver Dan Devine was in a car accident. He sent an e-mail to help@makewhole.com that had the following content:

Dear Attorney Adams: I was recently the driver in a bad car accident. I broke my arm and leg. My passenger, Polly Prince, was also badly injured. I am worried that she will try to collect a lot of money from me and my insurance company. What should I do? Dan Devine

Attorney Adams replied:

Dear Dan Devine: The specific answer depends on what your insurance policy says. Anne Adams

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Dan Devine replied:

Thank you for your help. I attach in PDF file a copy of my insurance policy. Dan Devine

Adams never answered Dan’s second e-mail. Dan missed the deadline to file a claim with his insurance company, so he was never able to collect a penny for his own injuries. Then Polly Prince sued Dan in tort. Dan told his Trial Lawyer Tom, Polly and Polly’s lawyer that he did not have any insurance. But Polly remembered that Dan had spoken about insurance and another lawyer. So Polly and her lawyer found Anne Adams, and subpoenaed her to testify at trial about the policy that was included in the PDF. Anne sent a copy of the PDF file to Polly’s lawyer and gave a deposition, but Anne never testified at the trial.

The jury awarded Polly one million dollars in damages against Dan. Now Dan is furious and wants to figure out how he can make all the legal claims and ethical complaints possible against Anne Adams. What should he do? Will he be successful?

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Question III (3 parts, 30 points total, 60 minutes)

A. (10 points)

Attorney, an expert in energy and environmental law, is admitted to practice in Idaho. He worked for three years in Washington, D.C. at the Environmental Protection Agency, which is responsible for overseeing the bulk of federal environmental laws. He then moved to Texas to become a law professor. Several local electric companies offer him a monthly stipend to give them advice about compliance with EPA regulations regarding air pollution. He agrees to be a consultant for them.

Has Attorney committed any ethical violations? Why or why not?

B. (10 points)

Boss gave his employee Rick a blank check to purchase office supplies. Rick made the check payable to cash, wrote in $1,000 as the amount, and cashed the check at a bank. Rick told the police two different stories: first, that he had Boss’s permission to cash the check, and second, that he did not have permission but cashed the check anyway because Boss owed him the money.

Before the trial, the prosecutor told Rick’s lawyer that Boss was guilty of misdemeanor theft seven years ago. Boss testified at Rick’s trial that Rick was supposed to use the check for office supplies. Boss’ misdemeanor was never raised at trial. The jury found Rick guilty of forgery. Does he have any grounds for appeal? Why or why not?

C. (5 points)

What are the differences between disqualification and recusal for Texas judges? 4. (5 points)

Stockbroker and Stockbroker’s Client are on trial for securities fraud. Prosecutor is set to call as a witness Stockbroker’s Assistant. Assistant will testify that he told Client that she should sell her stock because the Company Founder and Chief Executive Officer [CEO] was desperately unloading his shares. And she should do the same! Assistant is going to testify that he gave Client the tip to sell stocks after getting specific instructions to do so from the Stockbroker. For the purpose of this question, assume that it is illegal for Stockbroker to give this information to Client.

Then, the night before Assistant is due to testify, Prosecutor learns that Assistant’s Lawyer gave the FBI and other investigators an interview. Assistant’s Lawyer, who no

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longer represents Assistant, said Assistant told him he provided the tip to Client “at the request of either Stockbroker or CEO. I can’t really remember which.” What should Prosecutor do now? Why?

Have a good summer and bring your Rules to work!

Professional Responsibility Final Exam, Spring 2004 Your exams are available to pick up at my office. At the end of each exam is your point total. Letter grades are not written on the exams. I assigned the following letter grades based on your total points:

Over 85 A 1 82-85 A- 5 76-81 B+ 13 66-75 B 24 60-65 B- 11 55-59 C+ 1 50-54 C 2 40s C- 1 30s D+ 1

Model Answers will be available next week. Following are some comments

about the answers you should have drafted. Most of you identified the numerous conflicts of interest and problems with fees

in Question I. The best responses recognized that breach of fiduciary duty was the best option to avoid payment of the legal fees. If you didn’t write about the breach of fiduciary duty, you lost a lot of points.

For Question II, important issues that you needed to discuss included the attorney-

client relationship, privilege and confidentiality, malpractice, advertising and solicitation. Most students identified these issues. Therefore the points were awarded based on the quality of your analysis. Students who cited cases received the most points.

In Question IIIA, you should have discussed both the unauthorized practice of law

as well as conflicts of interest for government lawyers. Many of you got one but not the other. Question IIIB focused on ineffective assistance of counsel. You got all 5 points in IIIC if you identified the specific grounds for disqualification as well as the general differences between disqualification and recusal. Finally, Question IIID was the bonus question I mentioned on the last day of class: the prosecutor’s duty under Brady to turn over exculpatory information to the defense.

I will be out of town for most of the summer but am happy to communicate by e-

mail or telephone about your results.