Essay Questions and Selected Answers July 2004

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Question 5After working for ten years as a deputy district attorney, Lawyer decided to open her ownlaw practice and represent plaintiffs in personal injury actions. In order to attract clients,Lawyer asked her friends and family to “pass the word around that I have opened a solopractice specializing in personal injury law.”Lawyer’s brother, Bert, works as an emergency room admitting clerk at a local hospital.Whenever he admits patients who appear to be victims of another’s wrongdoing, Bert givesthem Lawyer’s business card and suggests that they talk to her about filing a lawsuit. Eachtime Lawyer is retained by someone referred by Bert, Lawyer takes Bert out to lunch andgives him $500.One such referral is Paul, who suffered head injuries when struck by a piece of heavyequipment on a construction site at Dinoworld, a local amusement park. Recently Lawyerfiled a personal injury action on Paul’s behalf against Dinoworld. Dinoworld’s attorneyimmediately filed an answer to the complaint. Lawyer and Dinoworld’s attorney agreed toset the deposition of the Chief Financial Officer (CFO) of Dinoworld within the next ninetydays.Lawyer’s brother-in-law holds an annual pass to Dinoworld. Two weeks ago, he invitedLawyer to a special “passholders-only” event at Dinoworld, at which Dinoworld’s CFO leda tour and made a presentation. At the event, Lawyer declined to wear a name tag andavoided introducing herself. She asked CFO several questions about Dinoworld’s finances,and made some notes about his responses.What ethical duties, if any, has Lawyer breached? Discuss.44
Answer A to Question 55)Duty of loyalty: special concerns for prior government lawyersA lawyer has a duty of loyalty to her client. This includes a duty to avoid conflicts ofinterest. Under the ABA rules, a lawyer who was a previous government lawyer, mustavoid working on the same matter in private practice as she worked on as a governmentlawyer unless there is informed consent from the client and agency. In California, thereis no such general rule; however, the rule does apply to former prosecutors representingdefendants. There does not appear to be any conflict here, regarding Lawyer’s new work.First, she is going into personal injury law. Therefore, she is unlikely to work on the samematters as she worked on as a prosecutor. Second, there are no facts in this problem thatshow any conflict of interest has arisen. Therefore, Lawyer has violated no rules, but shemust be careful to avoid conflicts of interest.Duty to profession: Lawyer’s request of family and friendsPreviously, lawyers were not permitted to advertise their services because it wasconsidered unprofessional. However, the United States Supreme Court has since held thatlawyers have a constitutional right to engage in truthful, non-misleading advertising. Alawyer may not, however, solicit clients in person or hire others to do so as her agents ifshe has no prior relationship with the person she is soliciting.Here, Lawyer asks her friends and family to pass on the word that she has opened a solopractice. This does not appear to be direct, in person solicitation or requesting her friendsto solicit. Rather, it appears to more [sic] just “getting the word out,” which is really thesame as advertising. She is simply letting her friends and family know, so that they canlet others know, about her practice. There does not appear to be anything misleadingabout what she is asking them to do. They are not expected to make any representationsabout her practice, only to let people know that the practice exists. Therefore, this appearsto be proper.Duty to profession: getting clients from hospitalsIn California at least, it is presumed to be misleading advertising to advertise at a hospital.Here, the facts show that Bert works as an emergency room clerk at a hospital, and thatthere, when he admits patients, he advertises Lawyer’s business by giving people herbusiness card. This is presumptively misleading because people are in an especialvulnerable state when they are very sick or injured. Therefore, Lawyer would have tosomehow overcome the presumption that she has mislead [sic] people by advertising herservices at a hospital.45
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Essay Questions and Selected Answers July 2004

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