PROFESSIONAL RESPONSIBILITY
EXAM QUESTIONS AND ANSWERS
Ibanez v. Fl. Dep't of Bus. & Prof'l Regulation, Bd. of Accountancy (1994) -
ANSWER--letterhead. Objective truthful advertising so ban rejected
In re James H. Himmel - ANSWER--motor cycle accident injury. 35000 settlement.
Foresburg reported caseys misconduct. himmel hired by foresburg to collect money
owed. Himmel drafted settlement. Casey breached contract. casey disbarred.
Himmel never told commission about the misconduct though. commission issued
private reprimand and findings reviewed by review board who recommended
dismissing complaint
-illinois supreme court:
-no, a lawyer can't circumvent rule of ethics by saying client asked him not to. Client
cannot tell you to abandon the rule that you are bound to. IPJ!!! A client cannot
override your IPJ
-yes, himmel violated the rule which says duty of lawyer to report to proper tribunal
of misconduct of other lawyers. Himmel said it was privileged but court said
unprivileged because it was discussed with a ton of other people. (side note: under
1.6, himmel maybe didn't have to disclose it, because 1.6 is broader than attorney
client privilege)
-one year suspension necessary to maintain integrity of legal profession. Himmels
actions interfered with justice. Interfered with investigation of casey. Particularly
upset that a settlement agreement was drafted with casey instead of reporting
casey's misconduct
-huge punishment for failing to disclose another lawyer's misconduct
Maritrans v. Pepper Hamilton & Scheetz (Pa. 1992) - ANSWER-• Messina
represented Merritran in labor law for over ten years
• Messina takes on four competitor companies of Merritran
• What was wrong with this
o Messina wasn't candid with his clients
o Now Merritran allows Messina to continue to represent these four competitors and
they say they will keep them on as long as they don't represent any more competitor
companies and specifically not to represent Buchard
• What happens is that Pepper recruits another outside attorney that actually
represents Buchard
• The lower court is reversed on the principle that the Rules of Professional Conduct
are simply a codification of common law
Mylan, N.V. v. Kirkland & Ellis, LLP - ANSWER--kirkland ellis helped represent
subsidiaries of mylan (parent company)
-kirland ellis helped teva in hostile takeover of mylan
-mylan brought suit for an injunction to stop Kirkland ellis
, -kirkland ellis tried to say that mylan was different
-ultimately decided that injunction should be given because inherent conflict of
interest because the parties were adverse to each other
-kirkland ellis was enjoined from being able to represent teva even though
technically mylan is not a former client (it never represented it) but can be a third
party
anyalisis:
1. Are the parties the same? no
2. Is there some relationship between the parties you represent and the parties at
issue? Yes.
-prospective waiver: a waiver in the future
-reference to Maritrans: they also mention stockdon v ford (confidentiality. Attorney
client privilege). Duty of loyalty. Maritrans remains cited repeatedly in many contexts.
-takeaways:
1. a law firm can be disqualified from representing a party even before there is
pending litigation
2. hiding behind the entity theory is a trap for the unweary. 8 x 8 = 64. Even though
they might not be a client, they are a 3rd party. They are not a stranger. They have a
financial relationship. Don't take a narrow view of clients. Note their relationship
3. the fact that the word "substantially" was deleted in the engagement letter and
leaving the word related made it much more restricted for the law firm
4. the fact that the law firm set up a screen even though it believed there was no
conflict provided some indication that the law firm though there was a conflict
5. critical to have a full conversation about the advance waiver before it's
implemented
North Carolina State Bar v. Michael B. Nifong ("The Duke Lacrosse Rape Case") -
ANSWER-
Ohralik v. Ohio State Bar Association (1978) - ANSWER-ohio attorney approached 2
18 year olds involved in a car crash. Lawyer offered to represent her while in hospital
bed and other he found in person as well and got her to orally agree. Hospital girl
had her sign a contingent fee arrangement. Recorded on a hidden tape recorder.
supreme court found that en personum (in person) solicitation is a bad thing because
it is suspect—you can talk them into doing anything. He was a classic ambulance
chaser. Not entitled to first amendment protection.
Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) -
ANSWER--lawyer's letter head stated that he had a certain certificate and licensed in
3 states.
-supreme court held he had the right to do this under commercial speech doctrine.
Was not untruthful or misleading because he did have these certifications and
licenses. State did not have a strong enough justification for a ban. Truthful objective
data that could be useful to consumers, the state needs a stronger justification for
ban
EXAM QUESTIONS AND ANSWERS
Ibanez v. Fl. Dep't of Bus. & Prof'l Regulation, Bd. of Accountancy (1994) -
ANSWER--letterhead. Objective truthful advertising so ban rejected
In re James H. Himmel - ANSWER--motor cycle accident injury. 35000 settlement.
Foresburg reported caseys misconduct. himmel hired by foresburg to collect money
owed. Himmel drafted settlement. Casey breached contract. casey disbarred.
Himmel never told commission about the misconduct though. commission issued
private reprimand and findings reviewed by review board who recommended
dismissing complaint
-illinois supreme court:
-no, a lawyer can't circumvent rule of ethics by saying client asked him not to. Client
cannot tell you to abandon the rule that you are bound to. IPJ!!! A client cannot
override your IPJ
-yes, himmel violated the rule which says duty of lawyer to report to proper tribunal
of misconduct of other lawyers. Himmel said it was privileged but court said
unprivileged because it was discussed with a ton of other people. (side note: under
1.6, himmel maybe didn't have to disclose it, because 1.6 is broader than attorney
client privilege)
-one year suspension necessary to maintain integrity of legal profession. Himmels
actions interfered with justice. Interfered with investigation of casey. Particularly
upset that a settlement agreement was drafted with casey instead of reporting
casey's misconduct
-huge punishment for failing to disclose another lawyer's misconduct
Maritrans v. Pepper Hamilton & Scheetz (Pa. 1992) - ANSWER-• Messina
represented Merritran in labor law for over ten years
• Messina takes on four competitor companies of Merritran
• What was wrong with this
o Messina wasn't candid with his clients
o Now Merritran allows Messina to continue to represent these four competitors and
they say they will keep them on as long as they don't represent any more competitor
companies and specifically not to represent Buchard
• What happens is that Pepper recruits another outside attorney that actually
represents Buchard
• The lower court is reversed on the principle that the Rules of Professional Conduct
are simply a codification of common law
Mylan, N.V. v. Kirkland & Ellis, LLP - ANSWER--kirkland ellis helped represent
subsidiaries of mylan (parent company)
-kirland ellis helped teva in hostile takeover of mylan
-mylan brought suit for an injunction to stop Kirkland ellis
, -kirkland ellis tried to say that mylan was different
-ultimately decided that injunction should be given because inherent conflict of
interest because the parties were adverse to each other
-kirkland ellis was enjoined from being able to represent teva even though
technically mylan is not a former client (it never represented it) but can be a third
party
anyalisis:
1. Are the parties the same? no
2. Is there some relationship between the parties you represent and the parties at
issue? Yes.
-prospective waiver: a waiver in the future
-reference to Maritrans: they also mention stockdon v ford (confidentiality. Attorney
client privilege). Duty of loyalty. Maritrans remains cited repeatedly in many contexts.
-takeaways:
1. a law firm can be disqualified from representing a party even before there is
pending litigation
2. hiding behind the entity theory is a trap for the unweary. 8 x 8 = 64. Even though
they might not be a client, they are a 3rd party. They are not a stranger. They have a
financial relationship. Don't take a narrow view of clients. Note their relationship
3. the fact that the word "substantially" was deleted in the engagement letter and
leaving the word related made it much more restricted for the law firm
4. the fact that the law firm set up a screen even though it believed there was no
conflict provided some indication that the law firm though there was a conflict
5. critical to have a full conversation about the advance waiver before it's
implemented
North Carolina State Bar v. Michael B. Nifong ("The Duke Lacrosse Rape Case") -
ANSWER-
Ohralik v. Ohio State Bar Association (1978) - ANSWER-ohio attorney approached 2
18 year olds involved in a car crash. Lawyer offered to represent her while in hospital
bed and other he found in person as well and got her to orally agree. Hospital girl
had her sign a contingent fee arrangement. Recorded on a hidden tape recorder.
supreme court found that en personum (in person) solicitation is a bad thing because
it is suspect—you can talk them into doing anything. He was a classic ambulance
chaser. Not entitled to first amendment protection.
Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) -
ANSWER--lawyer's letter head stated that he had a certain certificate and licensed in
3 states.
-supreme court held he had the right to do this under commercial speech doctrine.
Was not untruthful or misleading because he did have these certifications and
licenses. State did not have a strong enough justification for a ban. Truthful objective
data that could be useful to consumers, the state needs a stronger justification for
ban
