There is one question. In answering it, remember that I do not want, and will not give credit for, a general discussion of the law. Rather, your exam should reflect a discussion of the relevant rules and principles in the context of the given facts. Restrict yourself, to the extent possible, to the facts given. If additional facts are needed to resolve the existing issues, state what they are and why, but do not change the facts.
Please write or type legibly. You do not need to use a blue-book. Make sure that only your final exam number (and not your name) appears on your exam and answer.
Turn in your question sheet along with your answer. Number the pages of your answer, and if available, include a printout from your computer of the number of words in your answer. Turn in your declaration of compliance along with your exam. Items should be submitted in the following order: Exam answer on top, declaration of compliance next, exam question sheet last.
Allison Atturnee is a solo practitioner with a busy practice. Most of her clients are of low to moderate means. Allison takes on some indigent clients who have contingent fee cases and others at a reduced fee (or occasionally at no fee where she feels they deserve representation and will not get it otherwise). Her practice involves a variety of matters, including all kinds of domestic cases, personal injury, small criminal matters, workers comp, employment, government benefits and the like. She has a large number of elderly clients.
Allison’s practice had really expanded, largely due to word of mouth based on her successful representation of clients. The workload had gotten to the point that she could no longer handle all of the work herself, but there was not enough consistent additional work to justify hiring a full-time attorney. As a result, Allison decided to hire a law clerk. It was late Spring and Allison figured, correctly, that she could hire a second-year law student to work in the summer and during the following school year. Allison had no trouble finding interested students, and after several interviews, she decided to hire Carla Clerque to assist her.
Carla was a good hire, and immediately Allison felt a great deal of relief. Carla was responsible and a good worker. As a result, Allison, who had gotten even busier, began to give more work and responsibility to Carla. She gave Carla several assignments that required legal research. Many of these were cases she had put on the back burner because she didn’t have time to do the research, and Carla was able
to get them moving again due to her quick and accurate research skills. Allison gave Carla complete access to all client files so she could work on cases as needed. In addition to having her perform research, Allison had Carla handle many of the client phone calls so that Allison could spend her time on more pressing matters. Allison explained to Carla that she should assist clients to the extent she felt capable, including explaining new action in their cases and what they could expect to happen in the future. Carla had very good communication skills and this helped Allison a lot. She no longer had to spend so much of her time explaining the meaning of documents, assisting clients in preparing for depositions and drafting pleadings and other documents. In fact, Carla was so good at drafting that, by the end of the summer, Allison allowed her to prepare and file documents in simple, routine cases on her own.
Carla stayed with Allison throughout the summer and continued working part-time when school started in the Fall. She enjoyed the work and planned to continue during the summer after she graduated while studying for the Bar. Allison and Carla talked about Carla joining the practice after she was admitted to the Bar and it seemed likely that there would be enough work to justify hiring her at that time. Although they had not reached an agreement, it was somewhat understood between the women that it was likely Carla would work full-time for Allison once she passed the Bar. During that second summer, after Carla had graduated from law school and was preparing to take the Bar exam, she continued to work for Allison. Allison’s confidence in Carla’s work continued to grow, and she gave her more and more work and responsibility.
During the second summer, Allison was very busy with a number of cases. One of those cases was a worker’s compensation matter for Harry Hurtt, who had been injured in an accident while driving his personal vehicle to a work-related meeting. Harry suffered fairly serious injuries and Allison was retained to assist him in recovering damages. She correctly determined that the matter, at least initially, had to be handled as a workers comp claim. The employer denied liability, claiming the accident and injuries were not work-related, but Allison believed otherwise. She had Carla do research on the applicability of workers comp in similar situations and Carla prepared an impressive brief that they submitted at the administrative hearing to determine whether benefits were appropriate and, if so, how much.
The employer had also challenged Allison’s claims regarding the degree of damages that were attributable to the accident. Allison presented considerable evidence regarding Harry’s injuries, which included reports and medical records detailing his physical and emotional condition, his current and future employability and anticipated future wages. Harry prevailed on the coverage issue and received a fairly substantial settlement, although not as much as Allison had hoped based on the detailed information she had accumulated. He also qualified for continuing monthly benefits. He was very satisfied with the representation that he received.
Allison was also busy with a case involving an elderly woman, Elaine Elder. Elaine was an older woman whose husband had died and who lived on a very small pension. She could barely make ends meet and got very little help from her daughter, who lived nearby. Elaine had been injured in an accident and Allison was representing her in her personal injury suit. Elaine had suffered fairly serious injuries and they were not healing well. Allison had Carla working on Elaine’s case and the two women hit it off very well. Carla spent a lot of time on Elaine’s case and wanted to make sure she got good medical treatment and that she would get a good recovery. Elaine had difficulty getting around as a result of her injuries. She and Carla discussed the problems she was having getting to the firm’s office for consultations and getting to doctors and physical therapists for treatments and exams. After Carla explained the problems to Allison, Allison instructed Carla to pay for cabs so that Elaine could get back and forth to the office, doctors and therapy, and Carla gladly did so. Elaine was very appreciative of their efforts.
In light of Elaine’s age and physical condition, Allison wanted to get her case filed as quickly as possible. Once she had enough information about the accident and her injuries, Allison worked with Carla to get a complaint drafted. The complaint was served on the defendants and filed in court. It alleged in detail significant injuries that Elaine had sustained that would require continued treatment, especially in light of the slow healing that was occurring. Allison and Carla hoped that the case could be settled quickly since Elaine needed the money and was not getting any younger, but the defendants were taking their time with discovery and did not appear very receptive to settlement, at least not at an early stage.
In October, Carla received notice that she had passed the Bar and she was sworn in as an attorney. Allison was excited by the prospect of having someone who could help her in court as well as in the office, and Carla was as well. Allison changed Carla’s status from law clerk to associate (with a commensurate increase in pay) and Carla continued to work at the firm. Except for covering in court, her work did not change much since she already had a lot of client contact and responsibility.
Carla continued to work on Elaine’s case, but something was beginning to trouble her. It seemed that Elaine’s injuries were healing even more slowly than expected, and in fact, it appeared to Carla that there might be new injuries rather than healing. Based on conversations between herself and Elaine, Carla began to suspect that Elaine was being abused by her daughter, who came to visit her periodically and did some shopping for her. Carla, who had become quite fond of Elaine, was very troubled by this and decided to raise the issue with her. At first, Elaine denied any abuse, but after a while, she reluctantly admitted that her daughter was physically abusing her. Carla told Elaine she needed to do something about it, but Elaine insisted she did not want to do so. She was embarrassed and still somewhat in denial, and she told Carla to keep out of it. Carla began to realize that a lot of Elaine’s physical problems were probably attributable to the abuse rather than the accident and was very disturbed by this turn of events.
Carla approached Allison and told her what was going on. She asked Allison what she thought they should do. Allison told Carla to check into the law on elder abuse, and she did so. She discovered (correctly) that there is no reporting requirement in the jurisdiction for adult abuse, and she reported this to Allison. Allison told Carla that the best thing she could do was to keep the case moving so that Elaine could get enough money so that she would not have to rely on her daughter. Allison thought that that might protect her. Carla was not fully satisfied with that answer, but she realized that, if they reported the abuse, it might negatively affect their case. She agreed that they needed to move the case along more quickly, and she began to push the defendants for settlement. Things continued to move slowly. Carla became increasingly concerned as Elaine’s condition appeared to deteriorate, and she pursued settlement more aggressively. Eventually, she was able to convince defendants that their claimed defense to liability was unlikely to succeed, and they agreed to a fairly sizeable settlement, which Carla accepted on behalf of Elaine. She then voluntarily dismissed the complaint. Even after the matter was completed, Carla continued to stay in touch with Elaine. Unfortunately, receipt of the settlement did not stop the abuse, and Elaine was not improving physically. Concerned for Elaine’s continued safety, Carla placed a call to the local abuse hotline and anonymously reported the abuse.
While Carla was busy with Elaine’s case, Allison was very involved with another indigent client, Paula Pohr. Paula also had been injured in an accident, but unfortunately, she had been partly at fault and, although her injuries were serious, her recovery was going to be decreased due to comparative fault. When Allison first met with Paula to discuss her case, Allison correctly explained the problems with the case to Paula and she appeared to understand. Paula agreed to retain Allison and they agreed on a 30% contingency fee, with expenses to come from Paula’s share. Allison explained that she anticipated, due to the problems with comparative fault, that they could probably get a settlement in the range of $35,000 to $50,000 and that expenses would likely run $5,000 to 8,000 depending on how much work had to be done before settlement. She was careful to explain this was an estimate only. Paula seemed satisfied with this projection and retained Allison.
Allison worked on the case and found that it was progressing better than expected. The defendants were anxious to get the case over with and Allison was able to negotiate a settlement of $40,000 fairly quickly. She expected that Paula would be happy with this result, since her litigation-related expenses were under $5,000. Allison set up a meeting with Paula to present the proposed settlement to her. In going over the information prior to the meeting, Allison realized that, because Paula had very limited resources, her medical bills had been paid by Medik-Aid, the state version of Medicaid. After checking the law, she discovered that it was likely the state would seek to recover the medical costs they had paid from the settlement. She also discovered that state law required both the attorney and the client to report receipt of the proceeds of any recovery or settlement involving medical payments made by Medik-Aid to the state (ostensibly to facilitate their recovery of the funds).
When Allison met with Paula, she went over the terms of the settlement. Paula was happy with the amount offered and with the litigation expenses, which ended up being only $4,000. When Allison told her about the likely Medik-Aid payback and about the requirement that they report the settlement, she became upset. When she did the calculations and realized that she would net $12,000 rather than the $20-25,000 she anticipated, she became incensed. She thought for a few moments, told Allison she was refusing the settlement offer and fired her. She told Allison that she would handle the matter on her own and that Allison had better keep her mouth shut about the Medik-Aid funds. Allison was very troubled by this turn of events and wondered what, if any, action she needed to take.
Her day got worse when Carla came in to see her. It seems that Carla has a friend at Xavier Young and Zeke, a medium-sized firm in town. Her friend heard about an opening at the firm and encouraged her to apply. Carla talked to several partners at the firm two weeks ago and had an excellent interview. They were impressed with the extensive work Carla had done while working for Allison and with the degree of experience Carla already had as a young associate. When Carla explained how she had helped to prevail on certain matters while working for Allison, the firm became excited at the prospect of what she could do for them. They therefore made her an offer that, frankly, she could not afford to refuse. When Allison heard the offer, she knew she couldn’t match it, and she knew she would be losing Carla. This added to her unhappiness, and she realized she would have to start from scratch in hiring.
Two weeks later, Carla left and Allison began looking for a new law clerk. Her workload was still high, and new clients and matters still kept coming. In fact, about two weeks later, Harry Hurtt came in with papers in hand. It seems he had just been served with his wife’s petition for divorce, property settlement, alimony (maintenance), child custody and support and he wanted Allison to represent him. She liked domestic work and it was one of the things she could do well without a lot of help. She looked at the petition and agreed to take the case. When she did so, she noticed that the firm representing Harry’s wife was Xavier Young and Zeke.
Discuss all professional responsibility issues arising from these facts. Where issues have been raised but left unresolved, be sure to address the possible resolution(s). Feel free to discuss both proper as well as potentially inappropriate or improper lawyering behavior.