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. If you type, please double space and use an 11 or 12 point font. 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.
Carla Counselor has been out of law school for about 10 years, and she’s known as someone who knows the rules and plays by them. She’s also thought of as having good instincts and good judgment. As a result, she often gets consulted by other lawyers with problems. Sometimes, when she gets confronted with a particularly sticky ethical problem, she’s tempted to suggest that the inquirer call Ethics Counsel for an opinion, but her empathetic side generally wins out and she feels compelled to help out. That’s the situation today, when she received a phone call from a former classmate who was somewhat frantic. Carla perceived that he had a real problem, and she agreed to meet with him. What follows is the story she heard.
Alex Allen is a small-firm attorney who represents businesspeople, mostly successful entrepreneurs. They need legal assistance in their business ventures, and Alex helps with start up companies, real estate investments and the like. He also occasionally handles litigation when necessary for his business clients. Alex enjoys the fast pace of his practice. It takes a lot of skill and finesse to adequately represent these people and keep them happy, and Alex is quite good at it. As a result, he has several very successful, yet very loyal clients who very much rely on his judgment and advice. And his practice is very lucrative, since these clients are willing to pay for good service. Not only does Alex command an impressive hourly rate for this part of the country, but his fee arrangement for representation frequently includes receiving a piece of the deal he’s working on on top of an hourly rate. Alex has made some serious money this way; much more than he could earn just on the basis of time billed. And, if he is to continue with this degree of financial success, he must maintain good relations with these clients.
One of the handful of regular clients Alex advises is Ed Entrep, an entrepreneur who is wildly successful in business and real estate. Unfortunately, Ed is not nearly as successful as a parent. Whether due to lack of his being home or just a general failure to supervise the kids, there have been problems with his two boys. And, although Ed is very down-to-earth and perceptive in his business matters, he has a blind spot and can’t (or won’t) see the reality as far as his kids are concerned. Although almost everyone who knew Ed’s sons was aware of their difficulty with authority, their dad simply didn’t see it. And while he was aware of their earlier problems with missing school, underage drinking and curfew violations, which he had Alex “fix” for them, he had the attitude that “boys will be boys” and didn’t take these incidents seriously. But these “boys” are now 19 and 22 and, as they get older, their troubles are appearing to get bigger.
Some time ago, Alex received a very disturbed call from Ed. He told Alex that the boys had been charged with a string of burglaries. Ed was livid. He said it was obviously a serious mistake – clearly the boys were innocent and he wanted Alex to “take care of it.” Given the boys’ legal backgrounds, Alex was not as sure that it was all a mistake, but he hoped that Ed was right. But, not wanting to get involved in a mess and not wanting to get in over his head, Alex tried to convince Ed to hire a criminal defense lawyer who had experience with serious criminal charges. Ed’s response was, “How can you desert me just when I need you most? You’ve done trials and you’re good at it. Plus I trust you. I want you to handle this.” Alex felt boxed in by Ed’s insistence that Alex help. And, he was working on a large and potentially very lucrative deal with Ed. He didn’t want to take a chance and jeopardize that relationship.
Alex agreed to see what he could do to help the boys, so he set up a meeting with Ed and his two sons. At the meeting, Ed told the boys that Alex was going to represent them and would “take care of the charges.” He told the boys to cooperate with Alex and to do what he said. Ed appeared somewhat overbearing at that meeting and the boys did not say much. Near the conclusion of the meeting, Alex indicated that he would need to meet with the boys by themselves once he’d read the police reports. Ed said he understood but added, “You know the kind of defense I want – your kind. Smart, aggressive and quick. This is a not guilty, and I want everyone to know it.” Alex responded that he understood. Ed then wrote a check on the spot for $10,000. “This should cover it.” Alex responded that it should if they didn’t have to go to trial. Ed said that he didn’t see why a trial should be necessary – that Alex should have the clout or connections or both to get this resolved well before that, and that he expected nothing less. But he understood that it could cost more if the case got more complicated. He said he hoped that wouldn’t happen, and Alex agreed. The fee was a pretty good one if Alex could get the charges dismissed quickly, and that would certainly make Ed happy.
Alex got the police reports and discovered that the boys had been charged with a string of nighttime burglaries of “high end” homes in which jewelry, electronics and money had been taken. The police had witnesses at two of the burglaries who described two individuals that generally fit the description of the boys. One was described as tall, thin and having blond hair. The younger of Ed’s sons, Doug, fit that description. The second burglar was described as shorter, somewhat heavier and with brown hair. Ed’s older son, Dave, was a little shorter and heavier than his brother, but his hair was closer to blonde, although it was a little darker than his brother’s. Dave also had a slight limp from a foot injury, and neither of the witnesses mentioned that, although Alex was not sure the full context in which the witnesses had seen the burglars, so he didn’t know how important that was.
Alex met together with both boys a few days later. At first, they were hesitant to talk much. Then they began to complain, much like their dad, of how ridiculous the charges were. They commented several times that they didn’t need money, so there was no reason for them to get involved in burglaries. And they presented Alex with their alibis. Dave had an excellent alibi, and it looked like Alex could find pretty strong proof to support it. Doug’s alibi was not going to be as easy to prove, since it relied solely on testimony of friends. The boys talked at length with Alex, and the more he listened to them, the more their story bothered him. He wasn’t exactly sure why, but it appeared to be rehearsed, or at least not spontaneous. Maybe it was just the sense he had that they were not seeing what they were telling him as they talked about it. Alex always thought he had a good sense of that, but he also knew he’d been wrong about that kind of thing before. But he knew he needed to do more investigation, and he decided not to worry about it at that point.
Alex continued with his investigation and, other than finding more support for Dave’s alibi, he really didn’t have much to work with. He had an investigator interview the government witnesses and they were pretty solid. His investigator was unable to come up with much information to impeach them. The prosecutor requested the opportunity to have police interview the boys and Alex declined. He could see no advantage in doing that. Alex talked to the prosecutor about dismissing the charges in light of Dave’s strong alibi, but the prosecutor was unimpressed. She indicated that she had a strategy to get around it, although Alex had his doubts about that. He thought maybe they would play up the weakness of Doug’s alibi and try to convince the jury that the two worked together, so Dave must have been there, or that it was Doug and someone else in any event.
As the investigation wore on and it became clear the case would go to trial, Ed became more agitated. When they would meet to discuss Ed’s developing business venture, he would ask Alex about the criminal case. Alex tried to tell him that a trial could not be avoided, and Ed was obviously unhappy about that. Ed paid Alex another $20,000 and indicated that he was willing to pay whatever it took to get this case resolved successfully. Alex explained that he couldn’t guarantee a result but that he would do the best he could. He again suggested bringing in a criminal lawyer to help out, but Ed felt strongly that Alex was capable of handling the case himself, and Alex reluctantly agreed. He did have strong trial skills and a good investigator, and he had handled criminal cases for other clients in the past. And he really didn’t want to upset Ed.
Alex had a meeting scheduled with the boys for the next day to go over their story as they began preparing in earnest for trial. His investigator had come up with some minor impeachment information about a few of the government witnesses, but mostly he was going to rely on the alibi defenses. He was planning to put both boys on the stand to testify as to their alibis and to their lack of need for the items taken. He was also planning to put on evidence to support both alibis, but that evidence was much stronger for Dave than for Doug.
The next day, the boys arrived for their meeting. Alex was tied up on a conference call, and the waiting room was under construction (Alex’s office suite was being renovated). Alex’s secretary had the boys wait in the conference room adjacent to his paralegal’s office. Unbeknownst to either the boys or the paralegal, because of duct work that was part of the renovation, conversations in the conference room could be heard by the paralegal in her office. While she was working at her desk, she began to hear voices. She had worked some on the case, so she recognized the voices. It was Dave and Doug talking in somewhat agitated but hushed tones. She overheard Doug say to Dave, “You better not say anything. You need to stick with our story. We’re in this together. I helped you out the last time, and you owe me. Your alibi is going to carry me. If they find out about all that other stuff, I’m dead, so you need to keep your mouth shut and stick to the story. If you don’t, I’ll make sure Dad finds out about your little indiscretion. I bet he’d disown you if he knew about that.”
At that point, Alex had gotten off his call and his secretary had come to the room to get the boys. That was the end of their conversation. The paralegal intercepted Alex on his way to the meeting with the boys and told him what she had heard. Alex had no idea what to do about that, and he conducted his meeting with them as if nothing had happened. Their stories continued to appear believable, yet remained somewhat “rehearsed.” Alex believed he could help make their stories sound more spontaneous and had planned to do that in preparing for trial. Now he was unsure what he should do.
That is the situation presented to Carla. Alex wants and needs good advice. After commenting that he wished he’d paid more attention in PR class, Alex asked Carla what he should do. He also wanted to know if he had already done anything wrong and whether he’d violated any rules. Address these issues from the perspective of Carla’s advice to Alex. What can and should she tell him? What advice should she give? Your answer should address all practical and legal professional responsibility issues raised by these facts. Make sure to discuss relevant rules and standards in your analysis, but provide advice as well.