Glannon Guide 151-200

An attorney has been practicing for five years, but on her application to the bar five years earlier, she had stated that she had attended a particular private high school, when in fact she had attended a public high school. An unhappy client recently filed a grievance against the attorney, which was frivolous, but the state disciplinary authority had to conduct a routine, preliminary inquiry into the matter in order to make a determination that the complaint merited dismissal. The disciplinary board member assigned to the case had attended the elite private high school from which the attorney claimed to have graduated, and made a mental note of the attorney’s high school when he did a cursory review of her bar admission files. He thought it was strange that he had never seen or heard her name at any alumni or reunion functions, as they had supposedly graduated the same year and the classes were small. On a hunch, the board member checked the alumni lists for the school and discovered that the attorney had lied on her application to the bar five years earlier. When asked about this issue, the attorney said she could not be subject to discipline now for the misstatement she made several years ago, and that the board lacked jurisdiction because it was unrelated to the current grievance complaint. Is she correct?

An attorney obtained admission to the bar in New York and practiced there for two years. She worked for Big Firm, which has offices in five states and a few locations overseas. After her two years in the New York office, the firm transferred her to its office in San Diego, California. The attorney then applied for admission to the California bar under a reciprocity arrangement, and the state bar admitted her without making her re-take the bar exam. After practicing in California for three years, somehow the New York state bar learned that the attorney had made false statements on her original bar application about misdemeanor arrests during college. The New York bar informed the California state disciplinary authority about this problem, and the California state bar commenced disciplinary proceedings against the attorney in California. Can the attorney be subject to discipline in California for false statements made on a bar application in another state?

A district attorney in a small city was on a losing streak, and she decided it must be the local judges who were at fault. She used her social media accounts to attack some of judges before whom she would regularly appear, for refusing to order reimbursement of the district attorney’s costs of investigating cases and bringing them to trial. She also criticized the local judiciary for the longstanding backlog of criminal cases awaiting trial. At one point she even alleged that some local judges had connections with a drug cartel. These were all unsubstantiated claims, and the accusations were false. The named judges did not in fact have backlogs on their own dockets, and no one from the district attorney’s office had submitted any formal requests for reimbursement of investigatory costs. The district attorney eventually faced disciplinary proceedings over this social media campaign against the judges, and her defense was that such statements had First Amendment protection and reflected her personal beliefs. Should the district attorney be subject to discipline for her public statements?

An attorney knew about another lawyer’s involvement in an illegal money laundering enterprise, although the money laundering was unrelated to the other lawyer’s law practice or representation of clients. Eventually, when federal law enforcement officials bring criminal charges against the other lawyer, who is part of another firm, the first attorney’s awareness of the situation becomes evident. Could the attorney who knew of the wrongdoing and ignored it be subject to discipline?

An attorney suspects that another lawyer in his firm has violated the Rules of Professional Conduct in a rather serious matter, but has no first-hand knowledge of the situation—his suspicion rests on the fact that the other lawyer seems to be acting paranoid and evasive, and a number of strange coincidences have occurred in his cases. Does the attorney who suspects something seriously wrong is afoot have a duty to report the other lawyer to the state bar disciplinary authority?

An attorney works at a large firm and sees almost daily violations or potential violations of the Rules of Professional Conduct, though nearly all of them are minor and cause no harm or injury to the clients, third parties, or anyone else. For example, some lawyers represent co-defendants in cases where conflicts could arise at some point in the litigation, though the cases always seem to settle before any such scenarios develop. In other instances, certain lawyers seem to do minimal research on their cases or sometimes neglect client matters for weeks at a time, but again there has not been a case that was particularly serious. Does the attorney have a duty to report these violations to the state disciplinary authority?

A criminal court found that an attorney had engaged in domestic violence against his partner, and convicted the attorney of misdemeanor-level battery, for which he served a six-month term of probation. Could the attorney be subject to professional discipline as well?

An attorney faced criminal sanctions for having over two thousand unpaid traffic and parking tickets, and several instances of failure to appear for jury duty. Could the attorney be subject to professional discipline for these minor offenses?

An attorney had a license to practice law in two jurisdictions—his home state where he lived and had his main office, and a neighboring state where he represented several clients each year. The attorney committed serious professional misconduct in his home state and received a public reprimand from the state disciplinary authorities. All the conduct took place in his home state, the client resided in the state, and the representation took place entirely within his home state. The lawyer’s conduct would have violated the rules in either of the jurisdictions where he had a license to practice law, because it involved commingling client funds with his own money, and the states had nearly identical rules concerning this activity. After the attorney received a public reprimand in his home state, where the misconduct occurred, the state bar disciplinary authority in the neighboring state (where he also practiced) then commenced disciplinary proceedings against him as well. In the end, the neighboring state bar suspended his license for six months in that state, a much more severe sanction than the public reprimand he received in his home state, where the misconduct actually occurred. The attorney claims that the neighboring state bar has no jurisdiction over conduct that occurred entirely outside of the state. He also objects that the second punishment raises double jeopardy concerns. Is the attorney correct?

A state legislature enacted a statute governing the licensing of attorneys and discipline for practitioners. The preamble to the statute asserted “field preemption” over the regulation of lawyers in that jurisdiction, thereby abolishing all prior rules and codes of the state bar. An attorney came under discipline under the new law and contested the legal validity of the enactment itself. What should be the result?

A small firm employs several associates who work under the supervision of the partners, as well as three clerical staff. The most recently hired associate has a complicated situation with his license to practice law. The associate graduated from an accredited law school, successfully passed the state bar exam, and applied for admission to the bar, believing he had met all the eligibility requirements. He had no criminal record or history of academic misconduct, or any other problems meeting the traditional character and fitness requirements. The state bar approved his application and he attended his swearing-in ceremony. The state legislature, however, had recently passed a statute creating the option of a legislative veto for lawyers seeking admission to practice law in the state. The sponsors of the enactment had stated that its purpose was to prevent the grown children of illegal immigrants from becoming lawyers, even though the bar applicant might be a United States citizen “just because they happened to be born here.” The associate was born in Arizona one month after his parents had moved there illegally from a country in Central America. A staff member of the relevant legislative committee flagged the associate’s name from a list of recent bar licensees, along with three others in his situation. During a special session of the legislature, the state legislature exercised the equivalent of a legislative veto, narrowly passing a special act that permanently disbarred the associate and the others for the sole reason that their parents were illegal aliens. The associate received official notice of his disbarment from the Office of Legislative Counsel, not from the state bar. This occurred one week after the associate’s swearing-in ceremony by the state bar, and two days after he started working at the firm. A notice of the disbarments appeared in the next issue of the state bar journal, but most of the firm was unaware of the situation, except for one managing partner in whom the associate had confided. Could the partners at the firm be subject to discipline for employing the associate as an attorney, despite challenging any such discipline in court?

An attorney is dating a woman whose sister works as a nurse in a hospital emergency room. The attorney gives the nurse, his girlfriend’s sister, a stack of his business cards and law firm brochures, and offers to pay her $200 for any clients who hire him because of her referrals, with the understanding that she will not refer patients to any other lawyers. The nurse recommends several patients per month to the attorney for representation in personal injury claims, and one or two per month actually hire the attorney to represent them. Is such an arrangement proper?

An attorney made an informal agreement with a physician that they would refer clients to each other when the situation seemed appropriate. They did not pay each other any money for referrals, but the relationship was explicitly reciprocal—the attorney referred patients who needed medical examinations to the physician, and when the physician had patients needing legal representation, he referred them to the attorney. The relationship was not explicitly exclusive—each was free to refer clients to others—but it happened that neither had similar reciprocal relationships with anyone else. They always informed their clients when making such referrals that they had a reciprocal relationship. Is such an arrangement proper?

An attorney advertised in a local newspaper. His advertisement reads, “I never charge more than $200 per hour for any type of legal work, and for simple legal problems such as uncontested divorces or name changes, I charge even less.” The attorney once had a particularly complicated, tedious case in another jurisdiction for which he charged $250 per hour, but he does not expect such a case to arise in the future, though his fee would be higher if it did. The attorney’s advertisement fails to state that some other lawyers in the community charge much lower fees. The advertisement includes a pencil drawing of an unrealistically handsome, but generic-looking judge sitting behind the bench in a courtroom with a gavel in his hand. Could the attorney be subject to discipline for this advertisement?

An attorney pays $1,000 per month for a billboard advertisement for his firm, $2,000 per month for a few radio commercials, $3,000 per month for Internet advertising, and $4,000 per month for newspaper and magazine advertisements. The total amount for advertising is $10,000. At the same time, the attorney’s average total income from legal fees is $15,000 per month. Is it permissible for the attorney to spend such sums on advertising?

An attorney calls his friend, a close personal acquaintance, who was recently arrested for driving while intoxicated. The attorney advises that he saw the friend’s arrest on the local police news and offers to represent his friend for the attorney’s usual fee for handling such cases. The friend hires the attorney to represent him on the case. Are the attorney’s actions proper?

An attorney is active within a new political movement and she has represented several members of the movement, who faced arrest or criminal charges for protesting and picketing. The attorney learns that police have arrested one of the prominent leaders of the movement for trespassing on private property during a protest, but that the movement leader is already out on bail. In response, the attorney calls the leader and offers to represent him in his case free of charge, explaining that she has experience representing other members of the movement in similar cases. The leader agrees to have the attorney represent him on a pro bono basis. The attorney wants to represent the leader because she admires him, but also because she believes it will generate terrific publicity for the firm’s practice. Was it proper for the attorney to make this telephone solicitation?

After a hurricane damaged hundreds of homes in a southeastern state, an attorney, who practices in that state, sent letters to a dozen homeowners in the affected area offering to represent them in their insurance claims arising out of the storm damage. Each letter was handwritten and personalized, and the attorney addressed each envelope by hand so that recipients would perceive it as a personal letter and would be more likely to open it and read it. Nothing in the letters was coercive or threatening. Were the attorney’s actions improper?

An attorney specializes in employment law, especially employer-provided benefits, as well as healthcare law. After Congress passes sweeping legislative reforms for the regulation of employer-sponsored healthcare plans, the attorney called her former business clients offering to help them sort through the changes in employee benefit plans that the new laws would require. These individuals had not initiated the contact, nor had they indicated that they did not wanted to be contacted by the attorney. Could the attorney be subject to discipline for calling these former business clients?

On his website, an attorney explains that he handles most areas of personal injury law, and then displays in large, bold letters: “I DO NOT REPRESENT CLIENTS IN CRIMINAL MATTERS OR DIVORCE MATTERS—PLEASE FIND ANOTHER LAWYER IF YOU ARE FACING CRIMINAL CHARGES OR NEED TO LEAVE YOUR SPOUSE.” Is it improper for a lawyer to make such a statement in his website or advertising materials?

An attorney is properly certified as an immigration law specialist by a state bar organization that provides official certifications. In her advertisements, the attorney describes herself as a “Certified Specialist in Immigration Law” without identifying the certifying organization. The attorney also mentions that she speaks Spanish and Portuguese (besides English), and that her fees are very affordable. Could the attorney be subject to discipline for making such statements in her advertisements?

An attorney volunteered for a judge’s reelection campaign because he hoped to receive court appointments. He drives the judge from campaign stop to campaign stop without receiving any compensation for his time or effort. The judge wins re-election, and then shows his gratitude to the attorney by frequently appointing him to represent indigent defendants at the state’s expense. The appointments turn out to be lucrative and to generate substantial fees for the attorney. Could the attorney be subject to discipline for soliciting funds for a judge with such self-interested motives?

An attorney entered into an exclusive reciprocal arrangement with a local advertiser, in which the lawyer agreed to advertise her firm solely through that advertising agency, for normal market rates, and the advertising agency agreed not to take any other law firms in the region as clients. The agency ran newspaper and billboard ads based on information supplied by the lawyer, which included a claim that the lawyer was a certified specialist in immigration law, as certified by the state bar association itself. While the certification was legally valid, the lawyer had not handled a single immigration case since obtaining the certification some time ago, and has not kept abreast of major changes in immigration law in the meantime. Given the extensiveness and complexity of recent changes in the law, the attorney would no longer be able to provide competent representation in immigration matters without extensive research and study. Last week, the lawyer happened to drive by two cars on the shoulder of the road that had been in a minor collision. The attorney pulled over, got out of her car, and approached one of the drivers who were waiting for a tow truck. Handing the driver her business card, the attorney offered to represent her in any litigation over the accident, and assured her that she would charge a fair rate, and the driver gladly took it and said she might have seen one of the lawyer’s advertisements. The attorney was not aware at the time that the driver was an immigrant from Europe who was in the country on a temporary work visa. The driver visited the attorney a few days later for an initial consultation, but decided not to retain the lawyer for representation because the driver’s insurer had already settled the matter. Was it proper for the lawyer to offer to represent the driver in this way?

Halfway through a trial, an attorney can tell that his client is going to lose. The opposing party successfully impeached the attorney’s only favorable witness, and the judge has already told the parties that he plans to follow the state’s model jury instructions for this type of case, which effectively preclude the legal theory that the attorney had made the centerpiece of his case. During a lunchtime break, the client turns to the attorney and tearfully asks if they still have any chance of winning. The attorney does not want to make her cry and feels very awkward about the situation, so to spare her feelings, he assures the client that they still have a good chance of prevailing. The attorney is representing the client on a contingent fee basis, so he knows it will not cost the client any more in legal fees to finish the trial. At the same time, there is still an open settlement offer on the table from the other party, albeit a very small, unsatisfying settlement, which the client could accept at any time if she wants to terminate the litigation. Is it proper for the attorney to feign confidence to protect his client’s feelings?

A client repeatedly calls an attorney to discuss her pending divorce case. The client wants above-guideline child support, alimony, and a large percentage of the estate, even though the parties have only been married two years. The attorney has continuously given his honest opinion about what he believes the client is eligible to receive, and what he believes she may receive in the divorce based on his experience. The client has recently become angry with the attorney because she is unhappy with his opinion. She has even asked, “Are you working for me or my husband?” In an effort to keep the client happy, the attorney begins to tell the client what he believes she is eligible to receive when she asks, but simply states “the court will decide” when the client asks the attorney what he believes she will receive. Are the attorney’s actions proper?

An attorney represents a client, who lost his criminal appeals and is now serving a life sentence in a federal penitentiary. The client confesses to the attorney that he (the client) committed a murder for which a jury incorrectly convicted another (innocent) man. The client says he is happy that someone else took the fall for that crime and that he will never tell anyone. The attorney lectures the client about the morality of this situation, allowing an innocent man to face life imprisonment or even capital punishment for a crime that the client committed, and pleads with the client to reveal the truth. Was it proper for the attorney to bring morality into his consultation with the client, and to sermonize on this point for a few moments?

A client hired an attorney to represent him in a simple real estate matter. When the attorney asked some standard questions about the financial arrangements for the sale and purchase of the property, the client was somewhat evasive on a few points, but provided the information necessary to complete the legal work for the transaction. The attorney also heard from a friend that the client frequently cavorted with prostitutes. The attorney finds the client suspicious and has many unanswered questions, but none surrounding the transaction that occasioned the representation. Does the attorney have an ethical duty to inquire into the affairs of a suspicious client?

A client hires an attorney to help with the legal documents necessary to liquidate most of his investments so that he can use the cash to fund a new business venture. The client explains that he plans to quit his regular job and start a new career working from home as a “day trader,” buying and selling stocks online every day in hopes of making large profits. The client has no experience or training in finance or investments, but he attended a seminar that featured testimonials from others who claimed to have made millions as day traders. The attorney thinks this is a foolish idea, but the client does not ask the attorney for his advice. Does the attorney have an ethical duty to caution the client against his seemingly reckless decision?

An attorney agreed to prepare a will for a client, a wealthy widow with three grown children. An earlier will divided her estate equally between her children, but the client now wants to modify the will to disinherit her only daughter, who disobeyed the client’s wishes by marrying outside their nationality. The daughter is also a lawyer and is married to a lawyer, and the estate is substantial. The client’s two sons are both working as manual laborers and they struggle financially. In the past, there had been some tension between the brothers and their sister, although the relationships seem to be cordial now. The attorney believes that disinheriting the daughter will ensure that the daughter and her husband will contest the will after the client’s death and will rupture the tenuous relationship between the siblings. The client did not ask for the attorney’s advice about disinheriting the daughter, she just insisted on it. The attorney initiated a debate about it, explaining that he believed it could be against the client’s best interests and would cause unnecessary acrimony between her children. Was it proper for the attorney to initiate such advice when the client did not ask for it?

An attorney represented a client in tort litigation against a pharmaceutical company over injuries allegedly resulting from one of the company’s drugs. During a pretrial hearing about the admissibility of certain evidence, the court ruled against the attorney and ordered that the evidence was inadmissible at trial. The attorney then contacted a reporter from a prominent newspaper and gave him a lengthy interview explaining the case, discussing the upcoming trial, and giving the reporter the very evidence that the court had held should be inadmissible at the trial. The newspaper ran the story on the same day that jury selection began for the trial. Opposing counsel moved to disqualify the attorney due to misconduct in the matter, that is, the public disclosure of the inadmissible material in an attempt to taint the jury pool. The court agreed to disqualify the attorney on the eve of the trial. Another firm was already representing the client as co-counsel, so that firm agreed to continue with the trial work alone. The attorney filed an interlocutory appeal, which he lost at the appellate court and appealed to the Supreme Court. Delaying the trial with this interlocutory appeal was clearly against the client’s interest, but it was necessary for the attorney to continue to handle this big case. Is it proper for the attorney to recommend to the client that they appeal his disqualification, if it is not clearly in the client’s interest to do so?

A client wants to sell a parcel of commercial real estate, and he hired an attorney to represent him in the matter. As part of the representation, the client asked his attorney to prepare a thoroughly researched opinion memorandum concerning the title of the property, for the information of a prospective purchaser and the purchaser’s prospective lender. The attorney gave the title opinion to the client, who gave it to the prospective purchaser, who in turn submitted it to the prospective lender. The prospective lender received and reviewed the attorney’s title opinion but was not aware that the lawyer who prepared the title opinion represented the seller of the property rather than the buyer. Could the attorney be subject to discipline for failing to disclose explicitly in the memorandum what party he represents and that he has a duty of loyalty and confidentiality to the seller?

An attorney represents a client before a government agency that enforces securities regulations. As part of the representation, the attorney must prepare an opinion concerning the legality of the securities registered for sale under the securities laws, for submission to the government agency, which requires such reporting. The client authorizes the attorney to prepare the written opinion but insists that the attorney exclude any mention of a particular business loss the client’s company incurred recently, in order to avoid upsetting the shareholders. To preserve the client’s confidential information, the attorney prepares the written opinion without the information the client asked him to withhold. The report does not mention that it excludes some unfavorable information. The attorney prepares the written opinion and gives it to the client, who submits it to the agency. Is it proper for the attorney to follow the client’s instructions in preparing this report?

A government agency contacts an attorney, who works as in-house counsel for Corporation, and requests a report about some of Corporation’s activities that come under the agency’s regulatory jurisdiction. As the attorney begins to investigate the matter to prepare the report, he learns that the information requested by the agency will subject Corporation to significant regulatory enforcement sanctions, and if the information became public, would adversely affect Corporation’s share price. At this point, the agency has not issued a subpoena and compliance with the request is voluntary, although the agency could compel the disclosure eventually. The managers and directors of Corporation instruct the attorney not to submit the report until the agency issues a subpoena, to buy some time to mitigate their regulatory violations. May the attorney prepare the report and submit it to the agency at this time?

A client intends to purchase a parcel of real estate and retained an attorney to analyze the seller’s title to the property. The attorney requests information from the seller regarding the seller’s original acquisition of the property and obtains additional information from the local tax assessors and title registry. The attorney concludes that the seller does not have clear title to the property and informs the seller of this opinion when the seller asks him about it. The seller forbids the attorney to disclose the information to the prospective purchaser of the property and insists that he showed the attorney his documents about the original acquisition of the parcel with the understanding that the attorney would not say anything unfavorable. May the attorney inform the prospective purchaser of his opinion about the title?

An attorney represents a client, who wants to sell his business. A prospective purchaser has required from the client an evaluation of the business’ solvency, detailing its current liabilities, potential liabilities, revenue, and assets. The client provides the attorney with documents pertaining to each of these issues, and explains to the attorney in confidence that he has often understated the earnings of the business to avoid paying taxes on the business profits. Now he is concerned that the prospective purchaser will undervalue the profitability of the business and refuse to pay an appropriate price to purchase it. He asks the attorney to adjust the earnings figures upward by 25 percent, the same amount by which the client falsely lowered them in the corporate records, to portray the business accurately to the potential purchaser. The attorney finds this objectionable and prepares a report based on what the records say regarding the earnings and gives the evaluation directly to the purchaser. When the client learns about this, he explains to the prospective purchaser over the phone what happened. Despite the low reported earnings, the purchaser pays the client’s asking price for the business, because of the client’s truthful representations over the phone. Could the attorney be subject to discipline for his conduct in this matter?

An attorney, who often serves as a court-appointed mediator, received an appointment to mediate the divorce case between a husband and wife. The case settled in mediation and the divorce became final soon after. A year later, the husband sought to retain the attorney to represent him in a modification suit against his ex-wife. The attorney accepted the case and sent a letter to the ex-wife advising her that her ex-husband had retained him to represent him in a modification suit. Are the attorney’s actions proper?

A husband and wife are attending court-ordered mediation with an attorney, who is serving as the neutral mediator. The husband has retained counsel, but the wife has not. During mediation, the wife asks the mediator for his advice, and asks whether he believes that the husband’s offer is a “good deal” for her. The attorney explains that his position as mediator only allows him to facilitate the negotiating process. The wife continues to seek the attorney’s advice about the settlement proposals the husband makes. The attorney finally tells the wife what she is getting is a decent percentage of the estate and that he believes it to be a “good deal” for her. The attorney also informs the wife again that he does not represent her and that anything he says is merely general information, not legal advice. Are the attorney’s actions proper?

A law school suffers from deep divisions among its faculty. One group of the faculty dislikes the Dean and wants to force his resignation with a vote of no confidence and pressure on the Board of Trustees. The other group is loyal to the Dean and resents their disloyal colleagues, whom they consider unprofessional. The controversy surrounding the law school’s Dean overlaps with faculty divisions over hiring practices, tenure, and whether the school should try to emulate top-tier law schools in order to boost their national rankings, or if they should focus instead exclusively on pedagogy and preparing the students for the practice of law after graduation. The divisions are so great that each faction has threatened to quit or take other drastic action that would imperil the school’s existence, if their side does not prevail. The Board of Trustees obtains an agreement from both factions on the faculty that they will hire an attorney to function as a third-party neutral to attempt to broker a compromise between the factions on the faculty. The attorney is an alumnus of the law school and offers to serve in this capacity without charging legal fees. He claims that he is not representing the Board, the Dean, or either side of the balkanized faculty. He begins to schedule private conferences with each faculty group, the Dean, and the Board, as well as meetings attended by representatives from each faction of the faculty to have deliberations and consider possible compromises. The attorney also insists that he is not an arbitrator or mediator because no litigation over the dispute is pending or even contemplated at this point. Is it proper for the attorney to serve in this capacity?

An attorney worked for a corporation as its in-house counsel. Hostility breaks out between the Chief Executive Officer (CEO) and the Chief Financial Officer (CFO), with each threatening to sue the other over allegations of slander, libel, trespass to chattel, and so on. Does this personal clash between top managers present the attorney with a conflict of interest?

An attorney worked for a corporation as in-house counsel. The attorney discovered that the Chief Financial Officer falsified the corporation’s quarterly earnings report to prop up the firm’s share price, as the CFO’s compensation is partly in stock options. The attorney knows that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission and will eventually result in severe regulatory fines or civil liability for the corporation. The attorney thus reasonably believes that the violation is likely to result in substantial injury to the organization. The attorney confronted the CFO, but this proved unfruitful, and then he proceeded up the corporate chain of command, eventually going to the Chief Executive Officer and the Board of Directors. The officers and directors refused to address the problem because they thought it would send their stock prices into a freefall and make the corporation vulnerable to a hostile takeover from corporate raiders. Would it now be proper for the attorney to become a whistleblower and reveal the problem to the relevant government authorities?

A large corporation was under investigation by a government regulatory agency over possible violations of securities law. The corporation hired an attorney to represent it in the matter and authorized the attorney to make a full internal investigation to discover the merits of the accusations. The attorney discovered that a high-level manager had falsified quarterly earnings reports, a clear violation of the law that could expose the corporation to devastating sanctions and civil liability. The attorney confronted the officer involved, but this proved unfruitful, and then he proceeded up the corporate chain of command, eventually going to the Chief Executive Officer and the Board of Directors. The officers and directors refused to address the problem because they thought it would send their stock prices into a freefall and make the corporation vulnerable to a hostile takeover from corporate raiders. Would it now be proper for the attorney to become a whistleblower and reveal the problem to the relevant government authorities?

An attorney represents a corporation. One of the corporation’s delivery trucks, driven by a corporation employee, had a tragic accident with a school bus full of children, and many children died. The delivery truck driver suffered severe injuries, but survived, and spent three weeks recovering in the hospital. In preparation for the wrongful death lawsuits by the deceased children’s families, the corporation’s attorney visited the truck driver in the hospital and interviewed him about the accident. The attorney did not explain that he was not representing the driver, or that the driver should retain his own lawyer. The unsophisticated driver may have assumed that his employer’s lawyer was also looking out for his (the driver’s) interests. The driver made some incriminating admissions to the lawyer about being slightly intoxicated at the time of the accident and having been careless while driving. He also admitted that at the time of the accident, he had taken the corporate delivery truck off its assigned route to attend to some personal business for about twenty minutes. Could the attorney be subject to discipline in this case?

An attorney represented a large corporation as a defendant in a toxic tort action. The matter had received little media attention and the corporate officers who retained the attorney emphasized the need to be discreet as long as possible, so that the pending litigation would have a minimal effect on stock prices. The representation necessitated that the attorney interview some of the employees involved in the incident that gave rise to the litigation, including some of the lowest-level unskilled laborers. A few of these individuals, as well as their co-workers whom the lawyer did not interview, asked the lawyer for details about what was happening with the case. The lawyer felt that they had a right to know about the case as it could affect the company, and their jobs, so he explained who the plaintiffs were, how strong the evidence appeared to be on each side, and the potential liability the company was facing. Could the attorney be subject to discipline for sharing this information with the company employees?

An attorney is in-house counsel for a large international corporation and has daily contact with higher-level executives and managers. One day, a senior executive mentions casually to the attorney that he has offered lucrative stock options, worth millions of dollars, to a foreign government official who has agreed to give the firm an exclusive contract to provide certain goods and services to the foreign state. The executive seems to think this is normal and good for the company, but the attorney believes it constitutes bribery of foreign officials, which would violate the Foreign Corrupt Practices Act, and could subject the company to enormous fines and penalties. The attorney explains her concerns to the executive, including her concern that he could face personal criminal charges in addition to bringing liability on the corporation, and she reminds him that she represents the corporation, not him personally. The executive is dismissive of her concerns, even though she approaches him several times about the matter. How must the attorney proceed?

An attorney served as in-house counsel for a corporation, and uncovered illegal actions taken by a particular senior manager (not the Chief Executive Officer or any comparable officer or director, but an individual with decision-making authority and several direct subordinates in the organization). The senior manager had a reputation for being arrogant and unreasonable, and he and the attorney had clashed on several occasions and were barely on speaking terms. At the same time, the senior manager was exceptional in his area of expertise and was an asset to the company despite his unpleasant demeanor. The attorney summoned the nerve to confront the senior manager about the problem as graciously as possible, and the senior manager’s initial response was to be dismissive, saying that he was unaware of any laws or regulations that he might have violated. The attorney walked away from the conversation discouraged and planned to take the matter up with the corporate officers, and potentially the Board of Directors. Before doing so, he reconsidered and returned to the manager, and patiently explained to him the relevant laws and regulations that the manager had violated. The senior manager begrudgingly accepted the attorney’s advice and took all necessary measures to rectify the wrongdoing and prevent any long-term repercussions. The senior manager also insulted the attorney, called him incompetent for not bringing up the matter earlier, and suggested that the attorney’s incompetence was due to the attorney’s ethnic background. Could the attorney be subject to discipline for not referring the matter of the illegal actions to a higher authority in the corporation?

In anticipation of trial, a plaintiff’s attorney contacts several former employees of the defendant corporation and interviews them about the day-to-day operations of the company and the chain of command for addressing complaints. The attorney does this without permission from the defendant’s lawyer. Was this proper?

An attorney represents the defendant in litigation over a car accident. The plaintiff, who was driving the other car, was a childhood friend and neighbor of the attorney—they keep in touch. As the defendant’s attorney has known the plaintiff since childhood, he calls the plaintiff, who has retained counsel as well, to see if they can resolve the case without going to trial. Is the attorney subject to discipline for calling his lifelong friend?

While preparing for a trial over workplace discrimination, the plaintiff’s attorney contacts the owner and chief executive officer (CEO) of the defendant corporation and interviews her about the day-to-day operations of the company and the chain of command for addressing personnel complaints. The owner/CEO is not personally involved in the matter of the pending litigation—she actually never met the plaintiff warehouse worker who claims to be the victim of workplace discrimination, she is not on the witness list to testify at trial, and nobody has suggested that she was responsible for the wrongdoing. Even so, she has the power to settle the case or stipulate to a judgment amount, so the plaintiff’s attorney talks to her directly. The attorney does this without permission from the corporation’s lawyer, whom the company’s general counsel hired; general counsel is an employee three steps below the CEO in the organizational chart. Was this communication by the plaintiff’s attorney proper?

The plaintiff and the defendant in a lawsuit run into each other in the supermarket and start discussing their case without their lawyers being present. Both have been shocked at the mounting litigation costs, and at how long the case has gone on. The plaintiff volunteers to withdraw his case if the defendant will withdraw his counterclaims and pay whatever filing fees are involved in such a voluntary dismissal. Later, when each party reports this to their respective lawyers, the plaintiff’s lawyer is very upset. The plaintiff mentioned that the defendant said his own attorney (defense counsel) had helped give him the idea by asking at their first consultation, “Why haven’t you and the plaintiff simply resolved this on your own, without resorting to litigation?” The plaintiff’s lawyer reports the defendant’s attorney for misconduct, claiming that opposing counsel merely used his client as an agent to communicate with the plaintiff without the latter’s lawyer present. Is the defendant’s attorney subject to discipline, based on these facts?