Prof. Brant
Legal Profession
December 12 or 18, 1992
Final Examination
GRADE POSTING: if you do not wish to have your grade posted (by exam number) in this course, please place an X by your number on the exam and blue books.
DIRECTIONS
1. What you may bring into the examination:
2. Canned briefs, Gilberts, Emmanuals, Nutshells & the like may not be brought into the final examination room.
3. Three hours will be allotted for the examination. Blue books will not be passed out for the first 30 minutes. This time should be spent reading and thinking about the question before you begin writing your response. You may use scratch paper to begin outlining your answer during this initial 30 minute period.
4. There will be one essay question on the final examination.
5. In answering the essay question, you should rely upon case law from the textbook and handouts, our class discussions, and EITHER the ABA's Model Rules OR the Model Code of Professional Responsibility. You will not be expected to use both the Code and the Rules in your answer.
6. Students who wish to compare and contrast the Model Rules and the Model Code in their answers may do so, and will receive additional points for accurate & thoughtful analysis. However, you should try to fully discuss all the issues raised by the question before attempting to gain extra points by comparing the Model Code and the Model Rules.
7. DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION! There is no presumption that use of a case name results from knowledge of its contents. Discuss and analyze any case law you plan to use in your answer.
8. Write on only one side of each page in the blue books.
DO YOUR BEST TO WRITE LEGIBLY. FAILURE TO WRITE LEGIBLY WILL RESULT IN AN IRATE GRADER READING YOUR EXAMINATION.
GOOD LUCK!
Julius Applethorpe III ("Junior") graduated from law school in 1989 and went into private practice with a medium-sized, defense-oriented firm called Hatfield & McCoy. The firm was located in Charleston, West Virginia and boasted a considerable number of public utilities on its permanent client roster. One of the projects Junior worked on for Hatfield involved a client called Defense Research Inc. ("DRI") , an association composed of public utilities from West Virginia, Pennsylvania and Kentucky. The association was supported by membership fees, and devoted most of its considerable budget to public advocacy and lobbying on issues likely to affect the well being of public utilities.
In July of 1990, Junior researched and wrote a memorandum for DRI that was presented, in modified form, to the West Virginia legislature. The purpose of Junior's memo was to recommend against a pending bill that would increase the regulatory burden on utilities to justify their cost increases. Junior argued, in part, that the utility business was extremely competitive and that the regulation was unnecessary because industry competition was sufficient to discourage unwarranted price increases in the cost of utility services.
In January of 1991, Junior became dissatisfied with his employment and moved on to Doright and Donovan ("D & D") a large Pittsburgh firm. Junior went into the firm's litigation division, and was fortunate enough to attract the interest of a prominent firm partner named Duncan. Duncan assigned Junior several high profile projects, introduced him to prominent clients and did everything possible to further Junior's legal career.
The most significant project Junior worked on for Duncan was the Peterson litigation. Peterson, a career consumer rights champion, had compiled significant evidence that 25 public utilities had been secretly meeting to fix prices and otherwise restrain trade for the past five years. Peterson had retained the D & D firm to file a huge antitrust action against the utilities. The suit sought an exorbitant sum in treble damages and was Duncan's personal pet project. The utilities were vigorously contesting discovery proceedings when Junior was brought into the case.
On August 13, 1991, Junior accompanied Duncan to a deposition of the president of Lexington Power. The president's attorney was Frank Hatfield, of Hatfield & McCoy. Upon recognizing Junior, Hatfield stormed out of the deposition with his client yelling: "The judge is going to hear about this!" Junior turned to Duncan and asked: "What's the problem?" Duncan responded: "Don't worry about Hatfield. He signed an answer to our complaint that raises at least five frivolous defenses. If he tries anything with us we'll start playing hardball."
The next day, Hatfield & McCoy filed a motion to disqualify D & D from any further representation of Peterson, based on Junior's conflict of interest. D & D responded with a motion in opposition and, for good measure, a motion for Rule 11 sanctions, based upon the theory that Hatfield's disqualification arguments were meritless and that their answer to the antitrust complaint contained defenses that were not warranted by existing law.
The trial judge denied Hatfield's disqualification motion, and granted D & D's motion for Rule 11 sanctions. The judge stated that the disqualification motion was "frivolous" and that Hatfield's answer to the complaint clearly demonstrated bad faith, in that it raised defenses not warranted by existing precedent.
Hatfield appealed this order to the court of appeals, which reversed the trial court and disqualified D & D from any further representation of Peterson. However, the court of appeals upheld the imposition of Rule 11 sanctions against the Hatfield firm, based on its answer to Peterson's complaint.
Duncan read the court of appeals' decision with a mounting sense of rage and humiliation. This disqualification order was going to hurt D & D. There was no telling what Peterson might do, since he felt abandoned and betrayed by his attorneys, and couldn't understand why the firm hadn't "done something" about the conflict. Even worse, Duncan had personally convinced the management committee to undertake Peterson's representation on a contingency basis, because Duncan had been sure that the suit would be a huge moneymaker. Now some other attorneys would be sure to cash in on the lucrative case. D & D might not even be compensated for the work it had already done on the case, which amounted to more than $100,000 in attorneys fees.
The more that Duncan brooded about the injustice of his firm's disqualification, the more unbalanced he became. Finally, he decided that if D & D wasn't going to benefit from the Peterson case, he would knock the Hatfield firm out of the picture as well. Late one night, Duncan broke in to the Hatfield firm's office and set a fire in Hatfield's office. The local fire station was slow to answer the alarm, and the entire building burned to the ground. No attorneys were injured and the night watchman escaped with only minor injuries from smoke inhalation.
After starting the fire (and watching the building burn), Duncan was filled with remorse. He telephoned Junior and told Junior to meet him immediately at the D & D offices. When the sleepy-eyed Junior arrived, Duncan led him into a deserted conference room and locked the door. He then confessed to the arson and asked Junior to act as his attorney. He also gave Junior a gas can and gasoline soaked rags "for safekeeping."
The Charleston police did some first-rate detective work (with the help of an arson task force unit) and brought charges against Duncan one month later for first degree arson, reckless endangerment and criminal mischief. Duncan, whose remorse was long past, pleaded not guilty. Junior, albeit reluctantly, kept his promise and represented Duncan at trial.
Junior tried to persuade Duncan not to testify, but his efforts were unavailing. One week before the trial, Junior buried Duncan's gas can and rags deep in his rose garden. Junior also called a press conference the morning of the trial and made a statement to the effect that the charges were a "frame job" and that the fire had probably been set by members of the Hatfield firm to collect their insurance and enable them to upgrade a "moth-ridden, flea-bitten building." Junior also told the press that his client was "completely and entirely innocent."
During his trial, Duncan took the stand and testified that he had been working late at his office on the night of the fire, and that he had never gone near the Hatfield & McCoy office building. One of Duncan's senior partners, Mapplethorpe Doright took the stand in support of Duncan's alibi, testifying that they had been working together all night on the evening of the fire.
Duncan was acquitted by the jury, and returned to the firm with honor. Junior was made a full partner at D & D in the spring of that year.
Please discuss and resolve all ethical issues.