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FEBRUARY 2013 BAR EXAM
Cal Bar has been invited – longer than any other bar review – to write bar exam answers for the DAILY JOURNAL, one of the oldest legal periodicals in California. Below, is a model answer for Questions 2 from the February 2013 California Bar Exam.
POSSIBLE ETHICAL VIOLATIONS OF ABEL
This answer will be governed by California and ABA authorities.
Attorney-Client Privilege
According to both California and ABA authorities, this privilege generally allows a client to refuse to testify about confidential communications with his attorney. If the client is a corporation, this privilege covers confidential communications between the attorney and a high-ranking corporate official or other corporate employees if the communication concerns a subject within the scope of the employee’s duties. The privilege protects only communications pertaining to legal services, but it continues indefinitely — even if the attorney-client relationship has terminated.
When Abel questioned Ford — the former manager of rental properties for Landlords Inc. (LL) — about LL’s rental practices and about “certain conversations Ford had with Barbara regarding the rental practices and Carol’s application,” there was the potential breach of LL’s attorney-client privilege given Ford’s status as a high-ranking corporate official and because the questions involved a subject within his specific duties.
The fact that Ford was the “former manager” of LL’s would not act to terminate the privilege.
Abel could assert that his questions were outside the scope of the attorney-client privilege if LL’s rental policies were connected to LL’s intent to commit a future crime or fraud — such as violation of anti-discrimination laws by refusing to rent to individuals with children, the basis for Carol’s lawsuit against LL.
Duty of Confidentiality
ABA authority establishes that a lawyer or his client must not reveal information relating to the representation of the client. This confidentiality requirement applies even if the relationship has terminated — unless disclosure is necessary to prevent the client from committing a crime or fraud that is likely to cause substantial financial loss to a person.
Again, an argument may be made that Abel breached LL’s duty of confidentiality through his questioning of Ford as described above. In effect, Abel’s solicitation of Ford to reveal potential evidence favorable to Abel’s client Carol — given Ford’s status with LL as their rental manager — was an ethical violation because it interfered with the confidential communications LL enjoyed with its employees.
The fact that Ford’s employment relationship with LL has terminated would not protect Abel. However, he might contend that there was no breach of LL’s duty of confidentiality because LL was committing a crime or fraud, violation of anti-discrimination laws, causing substantial financial loss to Carol in her effort to find a rental for herself and her young children.
In contrast, California has no ethics rule on confidentiality. But LL still could argue Abel breached the confidence the company enjoyed with its attorney because a state statute explicitly protects such confidence and the California Attorneys Oath implicitly protects it. Abel would contend there was no ethical violation because his questioning was intended to prevent legal wrongdoing, specifically LL’s subversion of the state anti-discrimination laws.
Communication with Represented Person
Both California and ABA authority establishes that an attorney must not communicate with a person he knows to be represented by counsel unless the person’s counsel has granted permission — irrespective of whether the represented person consented to the communication.
Thus, Abel’s invitation of Ford to lunch to discuss both LL’s rental practices and conversations Ford had with Carol about her rental application was probably an ethical violation. Abel was aware that Ford was a former LL employee, and there are no facts to suggest Abel procured permission from LL’s counsel Barbara to question Ford.
Truthfulness in Statements to Others
In representing a client, a lawyer must not knowingly fail to disclose a material fact to a third person or adverse party when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
Although this rule is subject to the duty of client confidentiality under both California and ABA authority, as described above, Abel would appear to be in violation of this ethical standard given his knowledge that Carol testified falsely at her deposition. LL, as an adverse party, would argue that Abel’s failure promoted criminal or fraudulent conduct by his client. Abel might rebut this by asserting he did not know for sure, only that he “suspected wrongdoing.”
Candor Toward the Court
Both California and ABA authority establish that an attorney must not offer evidence that he knows is false. If a client insists on offering evidence that the attorney knows to be false, the attorney must first try to convince the client that the evidence should not be offered. Ultimately, if the client’s insistence on using the evidence so strains the attorney-client relationship that the attorney cannot competently represent the client, the attorney may withdraw.
Again, Abel may urge that his suspicion of wrongdoing by his client did not amount to knowledge of wrongdoing. LL could argue that the appearance of impropriety by Carol nonetheless supports requiring Abel to reveal the potential false evidence to the court. There do not appear to be sufficient facts to suggest Abel’s relationship with Carol is so strained as to render his further assistance incompetent.
Fairness to Counsel
According to both California and ABA authority, a breach of this ethical duty to LL also may have occurred if Abel’s failure to reveal Carol’s known false deposition testimony is proven. This is subject, however, to the same considerations discussed above regarding Abel’s mere suspicion of false evidence.
Case Settlement
It is the client under both California and ABA authority who decides what the objectives of the representation will be — including in civil cases when to settle the case.
Given Carol’s “unhappiness with the amount of the settlement,” Abel’s unilateral acceptance of the $5,000 offer from LL was an explicit violation of this ethical duty.
Duty of Professional Integrity
Under both California and ABA authority, should any of the aforementioned issues constitute an ethical violation, Abel would additionally be in breach of his duty to uphold the integrity of his profession by failing to avoid ethical violations.
This answer was provided by Cal Bar Tutorial Review. For over 33 years, Cal Bar has provided comprehensive bar review programs for both first-time and repeat candidates. They may be contacted through 800-783-6168. Their website is: www.cbtronline.com.