UNIVERSITY OF MISSOURI - KANSAS CITY SCHOOL OF LAW

Professional Responsibility Fall 2009

Law 731 Professor Glesner Fines

TESTING OUR ASSUMPTIONS ABOUT PROFESSIONAL REGULATION

True or False?

1. Attorney is licensed to practice only in Missouri but he regularly advises his clients regarding the laws of both Missouri and Kansas. Attorney is subject to discipline for the unauthorized practice of Kansas law.

2. A Missouri statute purporting to overrule a Missouri Supreme Court decision defining the practice of law, so as to allow paralegals to practice in certain areas of law independent of attorney supervision, would be a valid exercise of the legislature's police powers and the Missouri Supreme Court would have no basis for declaring the statute void.

3. In order to protect his investment of time and effort in representing individual plaintiffs in personal injury cases, attorney’s written representation agreements require clients to give Attorney at least 30 day’s notice of discharge. Because the thirty-day notice provision is reasonable, the court will enforce this agreement.

4. Defendant telephones Attorney’s office and tells Attorney’s Secretary that Defendant would like Attorney to represent Defendant in an automobile-violation proceeding set for hearing in 10 days, this being a type of proceeding that Defendant knows Attorney regularly handles. Secretary tells Defendant to send in the papers concerning the proceeding, not telling Defendant that Attorney would then decide whether to take the case. Defendant delivers the papers the next day. Attorney does not communicate with Defendant and does not appear for the hearing. Attorney is not subject to malpractice because, without Attorney’s agreement to represent Defendant, no attorney-client relationship exists.

5. Senior Partner regularly bills in no less than 15 minute increments, so that even if his time records indicate that a matter takes only one or two minutes, Senior charges 15 minutes. Senior is subject to discipline for charging an unreasonable fee.

6. Associate attorney is aware of Senior Partner’s charging one client for time spent on another client’s matters. Associate questions the practice and Senior tells Associate that “this is the way everyone does it – no one has ever questioned it.” Associate keeps quiet. Association will not be subject to discipline because Associates are not responsible for the actions of their supervising attorneys.

7. Attorney agrees to represent defendant in a criminal action. Client pays $500 as an advance on fees and agrees to pay an additional $500 for Attorney’s court appearance. Client neglects to bring the $500 for the court hearing so Attorney refuses to appear on Client’s behalf. Client obtains a continuance, finds the money and pays the Attorney, who then appears for Client at a later hearing. Attorney is not subject to discipline because Client was not harmed and Attorneys must be able to enforce their fee agreements.

8. An attorney has no duty of confidentiality regarding client information that is a matter of public record.
9. Attorney representing a plaintiff in a products liability action spoke to the president of the defendant company about the suit without the permission of the company’s attorney in the matter. The attorney is subject to discipline for contacting a represented party.

10. If a court holds that a client has waived the attorney-client privilege, the attorney has no further duties of confidentiality regarding that communication.

11. An attorney is never required to withdraw from a case if the client has consented to the attorney’s continuing representation.

12. If an attorney’s representation of a client in a case violated the rules of professional conduct regarding conflicts of interest, the trial court in which that action has been brought must grant a motion to disqualify that attorney from the case.

13. You were present when Attorney came to court drunk. You believe this is a violation of the rules of professional conduct that raises a substantial question as to that attorney’s fitness to practice law. However, you need not report that violation if the judge sanctioned the attorney for the misconduct and referred him to the lawyer’s assistance program.

14. An attorney who settles a case without his client’s permission is subject to discipline and the settlement will not bind the client.

15. An attorney may not represent a client in preparing a will that would disinherit one of the client’s children if, at the same time, the attorney is also representing the child to be disinherited, even if that representation is totally unrelated to the will, because the two clients would be directly adverse.

16. Attorney moves to a new firm. He may not represent a new client if that representation is materially adverse to any of the clients represented by his prior firm during the time he was at the firm.

17. If an attorney has a conflict of interest with a new client, his partners may still represent the new client so long as attorney is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

18. Attorney may pay another attorney for referring a case to him or her so long as the fee is not charged to the client being referred.

19. An attorney has a duty to disclose adverse controlling authority to a court when the other side has not disclosed that authority but an attorney never has an affirmative duty to disclose evidence adverse to his client’s case absent a properly framed discovery request or court order.

20. Attorney was appointed to represent juvenile in a delinquency case. Attorney became aware that, because tuition is unpaid, the juvenile would be required to withdraw from his current private school at which the juvenile is doing well. Attorney believed that juvenile’s expulsion from the school would hurt his delinquency case and undermine juvenile’s efforts to reform his behavior. Therefore, attorney paid the client’s tuition, but did not inform the client. Attorney is subject to discipline.