1. PR Class 10 10/20/16 Last Class/Pizza night Finish Conflicts
Go Over Take Home Exam #3

2. Take Home Exam #3

3. Q.1
The use of the “free narrative” when the attorney knows of a client’s anticipated perjury has been expressly approved in California cases. T/F

4. A.1
True.
P v. Johnson (1998) 62 Cal App 4th 608
Textbook: pp

5. Q.2
California is one of only two jurisdictions in the U.S. that allow attorneys to utilize the “free narrative” in cases where perjured testimony by a client is anticipated. T/F

6. A.2
True. Only California and District of Columbia.
Textbook: p. 252

7. Q.3
The ABA Model Rules allow the use of “free narrative” in cases involving a client’s anticipated perjury. T/F

8. A.3 False. ABA Rule 3.3 Candor Toward The Tribunal
3.3(a)(3). A lawyer shall not knowingly…Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. …

9. Q.4
If an attorney anticipates client perjury, filing a motion to withdraw with the court is a foolproof solution to the problem. T/F

10. A.4
False. “The Court may deny the Motion to Withdraw…Even if the Motion is granted, the problem remains…defense counsel’s withdrawal from the case would not really solve the problem created by the anticipated perjury but in fact could create even more problems.”
P v. Johnson. (textbook p. 257)

11. Q.5
Whenever a client communicates an intention to commit perjury, the attorney must strongly advise the client against committing perjury. T/F

12. A.5
True.
“All the legal commentators agree that when faced with a client who indicates he will commit perjury, an attorney should first attempt to persuade the client to testify truthfully.” P.v.Johnson (textbook p. 257)

13. Q.6
The “free narrative” form of questioning is not allowed in civil cases. It is only allowed in criminal cases. T/F

14. A.6
False. The CRPC and B&P Code do not distinguish between Civil and Criminal cases in defining the ethical duties of attorneys in California.
 CRPC states that, “In presenting a matter to a tribunal, a member (A) [s]hall employ, for the purposes of maintaining the causes confided to the member such means only as are consistent with truth [and] (B) [s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law….”

15. Q.7
The ABA Model Rules authorize the attorney to disclose a client’s anticipated perjured testimony but does not require such disclosure to the court. T/F

16. A.7
False. If the attorneys efforts to dissuade the client from committing perjury are not successful, cannot be accomplished, or otherwise the effect of the false evidence is not corrected, both Model Rule 3.3(a) and 3.3(b) require disclosure to the tribunal even if the disclosure of such information violates the duty of confidentiality. MRPC 3.3 states that the duty of candor applies to all proceedings of the “tribunal” (MRPC 3.3(a)(1)).

17. Q.8
An attorney may accept employment adverse to a current client or former client if the client gives informed written consent. T/F

18. A.8 True Rule 3-310 Avoiding the Representation of Adverse Interests
(C) A member shall not, without the informed written consent of each client:
(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or
(3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter.

19. Q.9
An attorney in a law firm is presumed to have knowledge of confidential information known to any other attorney in the same law firm. T/F

20. A.9
True.
The law imputes confidential knowledge to all lawyers of the same firm, no matter how large or how many offices that firm may have.
Flatt v. Superior Cpurt (1994) 9 Cal 4th 275, 283.

21. Q.10
An attorney is presumed to have knowledge of confidential information known to co-counsel. T/F

22. A.10
True. The law imputes confidential knowledge to co-counsel on the same case, as well attorneys who are “of counsel” to the same firm.
Flatt v. Superior Court
P. v. SpeeDee Oil (1999) 20 Cal 4th 1135,

23. Q.11
An attorney may serve as a witness in a case before a jury in which the lawyer represents one of the parties, if the client gives informed written consent. T/F

24. A.11 True. Rule 5-210 Member as Witness –
A member shall not act as an advocate before a jury which will hear testimony from the member unless:
…(C) The member has the informed, written consent of the client. If the member represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the member is employed…

25. Q.12
The court may disqualify an attorney from testifying in a case in which the lawyer represents one of the parties regardless of the clients informed written consent. T/F

26. A.12
True.
For example, when one attorney represents both parties in a dissolution case.

27. Q.13
A lawyer may not represent a client in a matter in which the lawyer has a financial interest. T/F

28. A.13 False. CRPC 3-300 & ABA Rule 1.8 Conflict Of Interest
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: .

29. (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction

30. Q.14
A lawyer in a law firm may not represent a client if a partner in the same law firm will be a witness in the case. T/F

31. A.14
False.
ABA Model Rule 3.7(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.(conflict of interest with current or former client)
CRPC Rule is not intended to apply to circumstances in which a lawyer in an advocate's firm will be a witness. 

32. Q.15
A lawyer may withdraw from representing a client in a case if the client refuses to accept a reasonable settlement offer. T/F

33. A.15
False.
A client’s refusal to settle is not an appropriate ground for withdrawal. A client's right to reject settlement is absolute. The exercise of the right to reject settlement is implicit in the contract between a client and an attorney, and cannot constitute a breach of contract. 
Model Rules of Professional Conduct, 1.2(a): "A Lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter."

34. Q.16
An attorney who represents one corporate entity is not precluded from representing adverse interests of a parent, subsidiary, or another affiliated entity. T/F

35. A.16
True. Only direct adverse consequences to an existing client are barred by the conflict rules of either 3-310(C) of the Rules of Professional Conduct or rule 1.7 (a) of the Model Rules of Professional Conduct. 
Only in those limited circumstances where one corporation is the alter ego of the other should parent and subsidiary corporations be treated as the same entity for conflict purposes.

36. Q.17
In the Brooklyn Navy Yard case, the court held that any legal representation that raises even indirect adverse consequences to an existing client is suspect under California ethical rules. T/F

37. A.17

38. Q.18
The duty of confidentiality may preclude an attorney‘s involvement on behalf of a party who is adverse to a current or former client in a matter “substantially related” to the representation of the adverse party. T/F

39. A.18
True.
where a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client, the governing test requires that the client demonstrate a "substantial relationship" between the subjects of the antecedent and current representations.

40. Q.19
The Brooklyn Navy Yard decision adopted the “unity of interest” standard in deciding whether affiliated entities could be deemed to have directly related interests giving rise to disqualification of an attorney. T/F

41. A.19
False
“Rather than a unity of interests exception, we conclude the alter ego exception is the test the court should have applied for the conflict alleged here.”

42. Q.20
The Court in the Flatt decision held that ethical rules impute confidential knowledge to all lawyers of the same firm, no matter how large or where the offices are located. T/F.

43. A.20
True.
"[W]here an attorney is disqualified because he formerly represented and therefore possesses confidential information regarding the adverse party in the current litigation, vicarious disqualification of the entire firm is compelled as a matter of law."

44. Brooklyn Navy Yard
I. Does the attorney's duty of loyalty to the subsidiary preclude a representation that is adverse to the parent?

45. A corporation's status as the parent of an attorney's existing client does not make it a client too.
Only direct adverse consequences to an existing client are barred by either rule 3-310(C) of the Rules of Professional Conduct or rule 1.7 (a) of the American Bar Association, Model Rules of Professional Conduct. (State Bar Formal Opn. No , supra, p. 3.)
Holding: An attorney's duty of loyalty to a corporate client does not bar the attorney from representing an interest adverse to the client's parent.

46. Unless…
It is an alter ego. "[W]hen a corporation is the alter ego of another entity or has a sufficient unity of interests, they should be treated as the same entity for conflict purposes.”

47. Flatt
I. What is the rule where a former client seeks to have a previous attorney disqualified from serving as counsel to a successive client in litigation adverse to the interests of the first client?

48. The governing test requires that the client demonstrate a "substantial relationship" between the subjects of the antecedent and current representations

49. …Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney's representation of the second client is mandatory; indeed, the disqualification extends vicariously to the entire firm. 

50.  Even though the simultaneous representations may have nothing in common, and there is no risk that confidences to which counsel is a party in the one case have any relation to the other matter, disqualification may nevertheless be required. Indeed, in all but a few instances, the rule of disqualification in simultaneous representation cases is a per se or "automatic" one.

51. Courts and ethical codes alike prohibit an attorney from simultaneously representing two client adversaries, even where the substance of the representations are unrelated.
The mandatory rule of disqualification in cases of dual representations involving unrelated matter is analogous to the biblical injunction against "serving two masters"

52. Kirk
P. 356
I. Will “screening” prevent a law firm from being disqualified?

53. Cho
P. 366
I. Will a law firm be disqualified for hiring a former judge?

54. Goldberg
P. 371
I. Whether a law firms presumed possession of confidential information will be automatically prevented from representing a client with adverse interests.

55. Corporate Counsel
Q. Who is the client?

56. A. The corporation
"In representing an organization, a member shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body or constituent overseeing the particular engagement." (Rules Prof. Conduct, rule 3-600(A).) Nonclients are identified as the "organization's directors, officers, employees, members, shareholders, or other constituents." (Rules Prof. Conduct, rule 3-600(D).)

57. “Up and Out” Rule Model Rule 1.13 - Organization As Client
…(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. 

58. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

59. c) …, if
(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization,
then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

60. Rule 3-600 Organization as Client
B) If a member acting on behalf of an organization knows that an actual or apparent agent of the organization acts or intends or refuses to act in a manner that is or may be a violation of law reasonably imputable to the organization, or in a manner which is likely to result in substantial injury to the organization, the member shall not violate his or her duty of protecting all confidential information as provided in Business and Professions Code section 6068, subdivision (e). Subject to Business and Professions Code section 6068, subdivision (e), the member may take such actions as appear to the member to be in the best lawful interest of the organization. Such actions may include among others:

61. (1) Urging reconsideration of the matter while explaining its likely consequences to the organization; or
(2) Referring the matter to the next higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest internal authority that can act on behalf of the organization.
(C) If, despite the member's actions in accordance with paragraph (B), the highest authority that can act on behalf of the organization insists upon action or a refusal to act that is a violation of law and is likely to result in substantial injury to the organization, the member's response is limited to the member's right, and, where appropriate, duty to resign in accordance with rule