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.
Larry Lawya is a partner in Able, Baker and Carr (ABC), a small general practice firm. The firm handles all kinds of legal work representing individuals and small businesses. Larry handles a lot of the business work but occasionally does estate work and minor criminal representation, especially for his existing business clients. When more complex estate or criminal work is required, it is handled by one of the other attorneys at the firm who specialize in those areas. Three of the attorneys in the firm concentrate primarily on plaintiffís cases, particularly medical malpractice and products liability. This is a very lucrative part of the firmís business.
One day several weeks ago, Larry received a call from Dr. Mark Medik. Larry had previously represented Dr. Medik when the doctor left a large practice to set up his own office about eight years ago. Larry assisted in working out a buyout from Medikís prior practice and in negotiating the contract for Medikís new offices and for his insurance needs. Medik was very satisfied with Larryís services and promptly paid his fee. Medik contacted Larry a few years later when he was affiliating with the local hospital and needed to work out rights and responsibilities regarding liability as well as other matters, and again a year later when his mother died and he needed some advice on how her estate was being handled. In both cases, Medik was happy with Larryís services and promptly paid his bill upon completion of the work.
This time, Medik got right to the point. He told Larry he vaguely remembered that Larry handled criminal matters and asked if that were true. Larry replied that he did, at times, handle minor criminal cases but that, if the matter were more complex, he normally had the case handled by one of his partners. Medik seemed relieved and told Larry that Sonny, his only son, had been arrested the day before for DWI (driving while intoxicated). Since this was his fourth offense, it was being treated as a felony, and Medik was worried that Sonny might go to jail. He told Larry he didnít want that to happen. He also told Larry that he was concerned that his son had a drinking problem and thought that this arrest might be a good thing if it forced him to get treatment. Medik told Larry that Sonny couldnít afford a lawyer himself. He asked Larry if he would represent Sonny and told him he would pay the fee. Medik told him he wanted Larry to make sure that Sonny ended up in treatment and not in jail.
Larry told Medik that he couldnít guarantee that outcome, and added that it was really up to Sonny to determine what he wanted to do. Medik responded, "Look, I understand all that, but as a concerned parent, I want you to understand whatís going on. Sonnyís not going to admit to you that he has a drinking problem. Hell, he can hardly admit it to himself. But he does, and it needs to be addressed before something worse happens." Larry responded, "OK, Iíll talk to him. And itís OK if you pay, if thatís the way you want to do it. But remember, Iím representing Sonny." Medik responded, "I understand, as long as you understand where Iím coming from. Now, what kind of fee are we talking about?" Larry responded, "Frankly, for a fourth offense DWI, itís going to take a lot of maneuvering to avoid jail. That adds to the cost. Itíll cost $5,000 up front, assuming we can get the case resolved without going to trial. If thereís a trial, it will cost you an additional $10,000." (This was a typical fee for an experienced attorney like Larry). Medik responded, "Thatís fine. Iíll put a check in the mail today. My son will be in tomorrow. What timeís available." They agreed that Sonny would come to see Larry the next day at 2:00 p.m.
The next day, at the agreed upon time, Sonny arrived at Larryís office. Medikís check for $5,000 had arrived earlier in the day and Larry endorsed the check and had it deposited in the firmís office account. When Sonny arrived, Larry met with him immediately. He told Sonny that his father was concerned about him and that Larry wanted to do the best he could for Sonny. Larry told Sonny he understood he had a drinking problem, to which Sonny replied, "I guess my Dadís been talking to you. Heís just needlessly worried. I used to drink too much when I was in college, and the prior DWIís were all when I was young and stupid. But Iím 22 now, and Iíve settled down. Iím just a social drinker. This was just a freak thing - I had arranged to have a designated driver, so I wasnít worried about having a few drinks. Then my friend who was supposed to drive home leaves with some girl, and Iím stuck. So, since Iíd had only two drinks and felt fine, I left on my own. I was shocked when all this happened. I know I technically shouldnít have been driving, but I think I might have a good case anyway. The officer pulled me over for a seatbelt violation. I didnít think they could do that. Wonít that help get me off?"
Larry replied, "Really? I looked at the police report and the officer didnít indicate that was the basis for the stop. How do you know thatís what it was for?" Sonny responded, "Well, when he stopped me, I was shocked since I knew I hadnít done anything wrong, so I asked why I was being pulled over. He said it looked to him like I wasnít wearing my seatbelt so he pulled me over for that. I didnít think they could do that, but I didnít say anything. The next thing I know, heís making me take sobriety tests and breathe into the machine. Then Iím arrested and taken in. So will that help me?" Larry responded that it might, since there was a new law that made stops for seatbelt violations illegal and required suppression of any evidence seized after a seat belt stop. He continued to be surprised, though, since there had been a big push to train police not to make seatbelt stops in light of the new law, which had been pretty highly publicized. He turned to Sonny and said, "Are you sure thatís what he said?" Sonny replied, "Yes, Iím positive, because I knew I hadnít done anything and then I was surprised when he said that. But it was true - I wasnít wearing my seatbelt."
Although Larry remained surprised, he told Sonny that the seatbelt stop would be a basis for filing a motion to suppress, and if it held up in court, it could lead to having the case thrown out. Sonny did not seem at all surprised about this possibility. Larry told Sonny heíd need a signed, notarized affidavit detailing the facts of the stop which would have to be filed with the suppression motion. Before he left, Sonny met with Larryís paralegal and they prepared an affidavit containing the information Sonny had already provided to Larry.
After Sonny left, Larry drafted a motion to suppress based on the law, which was pretty clear, and Sonnyís affidavit. He filed the motion in court the next day. He sent a copy to Sonny with a note saying theyíd have to wait and see how the prosecutor responded. Later that day, Larry received a call from Medik asking if he had met with Sonny. Larry indicated that he had. Medik asked if Larry thought he could do something for him. Larry responded that they were working on it. He told Medik not to worry, that they were doing the best they could and things looked relatively promising. Medik asked Larry if Sonny had admitted his drinking problem, and Larry told him he hadnít. He told Medik he didnít really have time to talk about it, but he thought he had it under control and that things were likely to work out OK.
A few days later, the prosecutor called Larry and said that she had read Larryís motion and Sonnyís affidavit and was skeptical. The officer involved was a good cop who was a "straight arrow" and she couldnít imagine he would have done a seat belt pullover or would lie to her about it. But she said they would find out because there was a video recorder in the police car and they could view the tape of the stop. She was going to do so that afternoon and she asked Larry if he wanted to view it with her. She told Larry that if the tape supported Sonnyís version of the facts, she would dismiss the case. Larry agreed to come over and watch it with her, since the outcome of the case would likely turn on the video. They agreed to meet at 3:00 p.m. to watch the tape. When he got off the phone, Larry called Sonny to appraise him of this new development. He told Sonny about his plan to watch the tape with the prosecutor. Sonny appeared very surprised that there was a tape and appeared somewhat concerned, although he didnít say much. Sonny seemed hesitant to continue the conversation so Larry told him heíd get back to him later. The call then ended.
Two hours later, Larry received a call from the prosecutor. She told him that, when she went to get the tape, it was not available. It is unclear whether the machine wasnít working and the incident didnít get taped or whether there was a tape but it was missing. She indicated that she still believed the officer, who adamantly denied that he stopped Sonny on a seat belt stop, but that the absence of the tape would look bad and made it not worth proceeding. She told Larry that she was preparing the papers necessary to dismiss the case and they would be filed in court as soon as she had them finished.
Larry was both skeptical and pleased. He thought to himself that it was pretty convenient that the tape was missing and that it probably meant Sonny was telling the truth. He looked forward to telling Sonny the good news. He did have mixed feelings about telling Medik, though, since he would be happy that there was no jail time but he would not be pleased that Sonny got off without any alcohol treatment. As he thought about that, he dialed Sonnyís number. When he got Sonny on the phone and told him who it was, Sonny said, "I was just going to call you. I have something important to tell you before you go to see the prosecutor." Larry said, "Oh, whatís that?" About the same time, Sonny said, "Yíknow, you called me. Did you have something to talk about?" Larry said it could wait and Sonny should go first, but Sonny told Larry to go first. Larry agreed and said he had some good news. He told Sonny about the missing tape and the prosecutorís agreement to dismiss the charges. Sonny was elated. "Whoa, thatís great news. Thanks so much. Well, I guess thatís it then." It appeared Sonny was ready to hang up when Larry said, "So, what did you have to tell me?" Sonny hesitated and said, "Oh, nothing. Never mind." Larry asked if he was sure there was nothing he needed to say, and Sonny insisted everything was fine. "Really, never mind. It doesnít really matter. Gotta go. And thanks again." With that, Sonny hung up.
Larry was somewhat disturbed after he got off the phone. As he thought more about the days events, it began to bother him. Sonnyís hesitance, his concern about the fact the conversation had been taped, and his need to talk to Larry before he went to see the prosecutor - a need that evaporated once he found out the tape didnít exist - all led Larry to believe that Sonny had been lying about the seat belt stop. Larry remembered there had been a report in the paper about the new law, and he checked to see what it said. Sure enough, it appeared the day before Larry met with Sonny and it indicated that, if there were a seat belt stop, any evidence seized as a result would be suppressed. The report even mentioned the possibility that DWI cases might have to be dismissed. This reaffirmed Larryís belief that Sonny had lied to him and in his affidavit, but he wasnít sure just what to do about it.
Meanwhile, the day after Larry talked to Medik, one of the other lawyers at his firm (ABC) was also getting involved in a matter related to Medik. It seems that one of Dr. Medikís patients suffered serious complications after what was to have been fairly routine surgery. The patient decided to sue him after an expert blamed Medik for her condition. Medik denied responsibility for the injuries. He claimed he was not negligent, and if anyone was responsible it was other personnel at the hospital, not him.
The patient had been represented by Olivia Overwerkt, a young lawyer who had taken on too many cases and was having a hard time keeping up with them. Olivia realized that the case against Medik had a lot of potential for a large recovery in light of the serious damages suffered by the plaintiff, but she also realized that it would take a lot of time and up-front expense money, neither of which she could afford. She had already advanced money for medical exams, expert fees and rehabilitation expenses, and it looked like much more would be needed. As a result, she contacted Carla Carr, a partner at ABC, about taking over the case. Carla looked over the witness statements, medical records and expertís report and concluded that the case was worth pursuing, even if she had to pay a referral fee. She agreed with Olivia that she would take the case and also agreed to pay Olivia a referral fee (25% of the fee ABC received) if the case was successful. She then entered her appearance in the case and took over the matter.
A deposition of Dr. Medik was scheduled for a few days after Carla took over and she had to work furiously to get up to speed, but she worked hard and got prepared. The day before the deposition, Dr. Medikís lawyer advised him that it had been moved to a new location due to a change in the plaintiffís lawyers. When his lawyer gave him the new address, it looked familiar but he wasnít sure why. It wasnít until he arrived at the offices of ABC that he realized that it was Larryís firm. As soon as his lawyer arrived, Medik, by now incensed, told her he couldnít believe that the firm was suing him. "This is Larry Lawyaís firm. Heís my family lawyer, has been for years. Hell, heís working for us as we speak. How can he sue me?" His lawyer said she would look into it.
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.