Copyright Lawsuit - Professional Responsibility - Solved Exam, Exams of Law

Download Copyright Lawsuit - Professional Responsibility - Solved Exam and more Exams Law in PDF only on Docsity! ID: ID: Exam Name: Instructor: Grade: PR_LS1_Gallagher_Final_2011SL PR_LS1_Gallagher_Final_2011SL Gallagher (Exam Number) Gallagher Page 4 of ¢ ID: PR_LS1_Gallagher_Final_2011sL Gallagher 1) §. Copyright Case Jill and Big oil made an oral agreement for her work on a copyright lawsuit. The facts don't state that Jill has an ongoing relationship with Big Oil (although we know she's working on another case discussed in section II below). But it does state that she will be paid her usual hourly rate for professional services, which is $450/hr with a minimum of $50,000. There are two potential problems with this agreement (1) whether it should have been in writing and (2) whether the fee was ethical under the rules. Model Rule 1.5 (b) states that the scope of representation and the basis or rate of the fee/expenses for which client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Here, Jill's agreement w/Big Oil was oral. As any good lawyer knows, getting this type of contract in writing would really be the smart thing to do (what if Big Oit doesn't pay? then it's harder to enforce and prove an oral contract). However, under model rule 1.5 it is not a requirement that the fee agreement be in writing. Instead, the rule says that it is preferable for it to be in writing. Additionally, although it doesn't say that Jill has had an ongoing relationship w/Big Oil, the facts indicate that they agreed she'd be paid her "usual hourly rate” which could be construed as the usual tate that Big Oil pays Jill, especially given that we know she is also working on a tort case. In conclusion, it does not appear that Jill has breached an ethical duty by making Page 1 of 13 (Question 1 continued) ID: PR_LS1_Gallagher_Final_2011SL Gallagher in the amount of $50,000 for 15 hours worth of work on this case! Ul. Toxic Tort case This case posses several potential issues, they are discussed in turn below. toxic sludge at issue in the case actually causes cancer. Although there is a study out there that says otherwise, Dr. Bob believes the study was flawed and thus the findings are invalid. For this reason, he wouldn't be lying on the witness stand. If Jill believed that Dr. Bob was lying about his belief, then it would be wrong for her to put him on the stand and have him testify to that fact. Model Rule 1.2 (d) states that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, But here, Dr. Bob has his expert opinion. Big Oil is free to use him as their expert witness and he can testify to that fact. A good lawyer would bring up the issue of the study that contradict's Dr. Bob's opinion. They would let Dr. Bob explain why he found that study to be flawed. The Plaintiffs are free to put their own expert witness on the stand that contradict's Dr. Bob (often this happens in litigation; duly experts!). It's up to the jury (or judge if a bench trial) who they believe. Under CA rules, the outcome would likely be the same. CA B&P sec. 6128 states that an attorney is guilty of a misdemeanor if he or she is (a) guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive any party. Again, here Dr. Bob is entitled to his expert opinion. Although there is a scientific study that Page 4 of 13 (Question 1 continued) ID: PR_LS1_Gallagher_Final_2011SL Gallagher contradicts his opinion, he has a reasonable belief that the study used flawed scientific methodology and that therefore the findings are invalid. For this reason it does not appear that Dr. Bob would be lying when he says on the stand that in his opinion the sludge does not cause cancer. And thus Jill would not be in violation of an ethical duty for putting him on the stand and having him say that. 2) Disedvery matters Thelocal rules state that Big Oil must produce to plaintiffs all docs that Dr. Bob reviewed in the course of his work as an expert. Although he knew about the study before hand, he did look through it after being retained as an expert in order to confirm his recollection that the study methodology was flawed. Since he reviewed it in the course of his work as an expert, the local rules would require that Jill, as the lawyer for Big Oil, produce that study for plaintiffs. Moreover, her decision to not turn over the documents is possibly a violation of Médel Rule 3.4 Fairness to Opposing Party and Counsel. That rule states that a lawyer shall not (a) unlawfully obstruct another party's access to evidence; (c) knowingly disobey an obligation under the rules of a tribunal; and (d) in pretrial procedure. ...fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party. It appears that Jill might violate all three of these subsections under rule 3.4. First, by not producing the study she is obstructing the plaintiff's access to the evidence. Perhaps they don't know about the study and wouldn't gain access to it in any other way. Second, the rules of the tribunal state that Big Oil must produce to plaintiffs all docs that Dr. Bob reviewed in his course of his work as an expert. He reviewed it after being hired as an expert, and thus the local rule would require its production to Page 5 of 13 (Question 1 continued) ID: PR_LS1_Gallagher_Final_2011SL Gallagher plaintiffs. By not allowing this to happen, Jill has violated this rule. Third, although the facts don't state what the plaintiff's discovery request was, it can be presumed that a diligent lawyer for the plaintiffs would request all documents that are related to the expert witness's opinion. Again, since he reviewed this study, the document would be part of that request. Jill could try to rebut these arguments and state that because Dr. Bob was familiar with the study prior to commencing his work as an expert witness, that the study wasn't required to be produced in discovery. Most likely a judge wouldn't be thrilled with this response. It really kind of smacks ether trying to hide evidence that could potentially be bad for her client. An upstanding, ethical lawyer wouldn't try to hide evidence or play these types of games. Instead, they would produce the document containing the study, and they would do a good job preparing to argue why that study isn't credible and thus shouldn't have bearing on the case. {3) cfo email __Talk about a smoking gun. Jill really is in a pickle here. Jill was hired as a lawyer to represent Big Oil. The compény therefore, is her client and her duties of loyalty, diligence, confidentiality, communication, etc. are all to the company. Rule 1.13 spells out the rules for how to deal with an organization as a client, and they would apply here. Rule 1.13(b) makes it clear that a lawyer in Jill's position (a lawyer for an organization) shall proceed as is reasonably necessary in the best interest of the organization when they learn that an officer or employee is engaged in action, intends to act or refused to act in a matter that is violation of a Jegal obligation, or a violation of law that reasonably might be imputed to the organization, and is likely to result in substantial injury to the Page 6 of 13 (Question 1 continued) ID: PR_LS1_Gallagher_Final_2011SL Gallagher After learning that one of her witnesses plans to lie on the stand and learning that in fact the company knew it was dumping toxic sludge into a creek for 20 years, it is understandable why Jill would want to withdraw from the case. However, this might not be so simple. First of all, she's been working on the case for two years. In that time she likely completed a lot of discovery and planned her case strategy. She would be intimately familiar with the case. When she wishes to withdraw on the eve of the trial, this poses a real problem. Model rule 1.16 covers declining or terminating representation. Rule 1.16(a) states that a lawyer shall withdraw from the representation if (1) rep will result in a violation of the rules of professional conduct or other law; (2) lawyer's physical or mental condition materially impairs their ability to represent client, or (3) the lawyer is discharged. Here, Jill is mentally and physically in a condition to represent the client and Big Oil hasn't discharged her. In regards to whether the representation will violate the rules of professional conduct or other law, it can be argued that continuing representation wouldn't necessarily have to violate a rule or law. Jill knows that the company knowingly dumped toxic material. She has a duty not to lie to a tribunal, or assist her client in lying, or to mislead a third party (e.g. Rule 1.2 (d) lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent; Rule 4.1 Truthfulness in Statements to Others; Rule 3.4 Fairness to Opposing Party and Counsel). However, since she accepted the case, she has created several duties to her client, including the duty of diligence/zeal under Rule 1.3, the duty of loyalty, the duty to act competently under rule 1.2. Jill would have to tread carefully, but arguably she could still represent her client without violating the tules of professional conduct. She could do this by not putting the CEO on the stand (since she knows he'll lie). She can also do this by not ever claiming that the company Page 9 of 13 (Question 1 continued) ID: PR_LS1_Gallagher_Final_2011SL Gallagher did not dump toxics into the creek. Here, she is defending the company. Without knowing exactly what the causes of action are in this case, one can still assume that the plaintiff likely has the burden of proof. Technically a defendant doesn't have to put on any witnesses to defend a case. Instead, they can just cross-examine the plaintiffs witnesses and try to impeach their credibility and try to establish some sort of doubt (reasonable doubt, etc. depending on standard needed). Essentially, to defend Big Oil, all Jill has to do is show that the plaintiff's didn't meet whatever burden they have. She can do this without violating a law or an ethical rule, and thus, it is likely that Jill won't have the out of Model rule 1.6(a)(1). In regards to 1.16(b), Jill etay Withdraw if: (1) withdrawal can be accomplished without material adverse to the client; (2) the client persists in a course of action involving lawyer's services that lawyer reasonably believes is criminal or fraudulent; (4) client uses lawyer's services to perpetuate fraud; client insists on taking action that lawyer considers repugnant; (5) client fails substantively to fulfill obligation (6) representation will be an unreasonable financial burden on lawyer; (7) other good cause. Here, Jill might to be successful at withdrawing because Big Oil has a very strong case that her withdrawing would materially adversely impact them. Given that the case is two years old and she wants to withdraw at the last minute, any new lawyer coming on to represent Big Oil would really be at a disadvantage. They wouldn't know anything about the case and would need time to get up to speed, which would cause delay, and would incur extra-cost for that lawyer's time. But if Big Oil insists on taking the action of putting the CEO on the stand and having him lie, then Jill has a good case under (b)(2)(3) and (4). It's‘hard to say how the court would come out on this, but likely the court would way all of the issues at play and if Big Oil agreed not to put the CEO on Page 10 of 13 (Question 1 continued) ID: PR_LS1_Gallagher_Final_2011SL Gallagher the stand, then likely Jill would not be excused. If she is ordered to continue representation b y the court, then under 1.16(c) she would have to continue to do so. (5) Disclosing Qonfidential Information/Breach of Confidentiality Jill is understandably frustrated with Big Oil. However, anonymously posting a copy of the CEO's email message to the manager on a website that exposes corporate wrong doing is most likely a violation of her duty of confidentiality (in addition to being a breach of the attny-client privilege). Mode/Rule 1.6(a) covers confidentiality and makes it clear that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. Here, Big Oil did not give consent. The email was a confidential communication and Jill breached her duty to her client by making it public. Jill might argue that she had the ethical option to release this information under rule 1.6(b) which states that a lawyer may reveal info relating to the rep of a client to the extent that he reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent client from committing a crime or fraud that is reasonably certain to result in substantial Injury to financial interest/property of another; (3) to prevent, mitigate or rectify substantial injury to financial interest/property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud....etc. Here, Jill could argue that releasing this information prevented substantial bodily harm or even death of the people in the area who could be impacted by the toxic substance. She could argue that this email shows that the company new the substance was toxic, and therefore the public could be warned of the toxicity and could take steps to avoid being exposed, thereby protecting them from bodily harm or death. However, Page 11 of 13