Questions & Answers Series

Professional Responsibility Topics: Competence, Communication, and Scope of Authority; Confidentiality; Conflicts of Interest; Information About Legal Services

Information About Legal Services

Question: 
Tommy Rahall is an attorney in a small town. He wants to attract more business, and he is contemplating a billboard on the edge of town with a picture of a former client holding an oversized check, with the following quotation, attributed to the former client, underneath the picture: "Tommy Rahall got me BIG money for my injury. He can do the same for you! Call 555-HURT."

Which of the following statements most accurately describes Tommy's duties under the Model Rules of Professional Conduct?

(A) Tommy may not use this billboard to advertise his legal services because it contains a testimonial from a former client.

(B) Tommy can use the billboard as long as it makes clear that the results he can obtain for other clients may be different because of different factual or legal circumstances.

(C) Tommy may use the billboard as long as the statements made on it are true.

(D) Tommy may use the billboard because lawyers have a constitutional right to advertise.

Answer:
The correct answer is Answer (B). Although lawyers have a constitutional right to advertise, Rule 7.1(a) requires that advertisements be neither false nor misleading. It is not enough to say, as Answer (D) states, that lawyers have a constitutional right to advertise. Thus, Answer (D) is incorrect. This particular type of advertising, the testimonial from a former client, is not banned outright (so Answer (A) is incorrect), but is particularly likely to be misleading. Even true statements can mislead. Answer (C) is incorrect because true but misleading statements can be regulated. The risk is that prospective clients will see the advertisement and assume that the lawyer can do the same for them. Comment 3 to Rule 7.1 describes that risk but also states that the "inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client." If Tommy's disclaimer removes the risk of misleading those who see it, the report of the results he obtained for the other client may be truthfully reported.

Confidentiality

Question: 
Lee Anne Pulis is an attorney who is representing a man in a divorce action. Her client has just called her and said (referring to his wife's lawyer) "I ought to just go over there and shoot that lousy low-life." She does not believe her client is likely to do any such thing but is concerned about her professional responsibilities.

Which of the following most accurately describes Lee Anne's obligations under the Model Rules of Professional Conduct?

(A) She must disclose what her client said to her opposing counsel because her client has threatened to cause death or serious bodily harm, even though she does not believe harm is likely. 

(B) She may not disclose the client's statement because she does not believe that the client is likely to carry out the threat.

(C) She may disclose the client's threat anonymously to the police.

(D) She has discretion to disclose her client's threat to her opposing counsel to prevent death or serious bodily harm, even though she does not believe harm is likely.

Answer:
The correct answer is Answer (B). Lee Ann has discretion in some circumstances to reveal what her client has told her about shooting his wife's lawyer. However, before she has that discretion, she must reasonably believe that revelation of the threat is necessary to prevent death or substantial bodily harm. Rule 1.6(b)(1). In this case, she does not believe that death or serious bodily harm is likely to result. Her experience with this client and others may be that it is common for clients in domestic cases to "blow off steam" in this way without being a real threat to anyone. She does not have discretion to reveal the client's statements, even anonymously, because she cannot satisfy the condition of Rule 1.6(b) that she reasonably believes an exception to the general rule of confidentiality is required. Answers (C) and (D) are incorrect because she does not have the option to disclose her client's statement, while Answer (A) is incorrect because she is under no obligation to do so. She must keep her client's "threat" to herself.

Conflicts of Interest

Question: 
Ed Sharp is an attorney who, until recently, was employed by McMillen & Elkin. Ed now is interviewing for a job with Johnston & Barone, another local law firm. Johnston & Barone would like to hire Ed, but they are concerned because Johnston & Barone's biggest case is against a client represented by McMillen & Elkin, and Ed worked for McMillen & Elkin while that case was ongoing (although Ed had nothing to do with the case and knows nothing about it or the client). 

Which of the following best describes Johnston & Barone's options under the Model Rules of Professional Conduct? 

(A) The firm may hire Ed as long as McMillen & Elkin's client gives informed consent, confirmed in writing. 

(B) The firm may hire Ed as long as the firm is prepared to withdraw from the case against McMillen & Elkin's client.

(C) The firm may hire Ed as long as it screens him from any participation in the case involving McMillen & Elkin's client and as long as he receives no income from the case.

(D) The firm may hire Ed and continue in the case because Ed did not acquire confidential information about McMillen & Elkin's client.

Answer:
The correct answer is Answer (D). The usual rule on imputation of disqualification is that, if any lawyer in a firm has a conflict, then all lawyers in the firm have a conflict. This question, however, presents a special case. If the lawyer in Ed's situation could not move to a new firm without causing the disqualification of his new employer, and if that contamination extended to every case in Ed's former firm, then Ed would have a very tough time moving from one firm to another. The lawyer who is moving of course should not be able to “switch sides” in a case and use a former client's confidential information against that client. That risk is not present here because Ed had no involvement in the case and acquired no confidential information. Under Rule 1.9(b), therefore, his ability to move between firms is protected. Answer (A) is incorrect because Rule 1.9(b) does not require consent in these circumstances, and Answer (B) is incorrect because Rule 1.9(b) does not require withdrawal. Answer (C) is incorrect because Rule 1.9(b) does not require screening when the “incoming” lawyer has no confidential information belonging to the client of his former firm. There is no need for consent, withdrawal, or screening. Ed is not in a position to do harm to the first firm's client.

Competence, Communication, and Scope of Authority

Question: 
Roger Rookhauser is a new attorney who has opened his own law office. A competent but aging client has asked Roger to draft an irrevocable trust that will provide for her during her lifetime but will place her financial affairs in the control of her son, as trustee. Roger has never done any such thing. 

Which of the following most accurately describes Roger's obligations under the Model Rules of Professional Conduct?

(A) Roger must decline the representation because he is not competent to perform the services that the client needs.

(B) Roger may only accept the representation if he associates an experienced lawyer to assist him.

(C) Roger can accept the representation only if the client needs his services on an emergency basis until a competent lawyer can be consulted.

(D) Roger may accept the representation if the requisite level of competence can be achieved by reasonable preparation.

Answer:
The correct answer is Answer (D). Rule 1.1 requires that lawyers provide competent representation to their clients. Roger is not presently competent to draft the documents necessary to create the irrevocable trust that the client desires. He could comply with Rule 1.1 by declining the representation or by associating with an experienced lawyer. Comment 2 to Rule 1.1. If the situation was an emergency, then Roger could render limited service, but this does not appear to be an emergency. See Comment 3 to Rule 1.1. Answers (A), (B), and (C), however, are wrong because these are not Roger's only options. Roger has the option to undertake the representation as long as he can attain the level of competence needed by reasonable preparation. Comment 4 to Rule 1.1. Every lawyer has to start somewhere, and as long as the client receives competent representation it does not matter that the lawyer is inexperienced in such matters.