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 and instructions. 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.
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Alvarez Brown Chisholm & Davis (ABCD) is a medium-sized firm. It was started by four friends from law school, each with his own niche. The firm developed quickly, based largely on a strong reputation for successfully handling its cases. The firm does plaintiffs’-side litigation, but handles a broad range of cases. It has departments that handle personal injury work (including medical malpractice and products liability in addition to accident cases), labor and employment cases (mostly discrimination and wrongful discharge), business and commercial litigation and collections.
Because of the firm’s mix of business and the different needs and expectations of the firm’s different types of clientele, it has several offices in town. Most of the business and commercial work is done out of an office in midtown. The labor and employment work is largely concentrated in an office near the heavy manufacturing and tech corridor on the east side of town. Personal injury and collections are handled from an office downtown near the courthouses. The downtown office has a library, several “visitor” offices and conference rooms for use by lawyers from other offices of the firm who need to meet with clients, have meetings or prepare for court.
The firm has ten lawyers in personal injury, 5 in collections, 6 in labor and employment and 8 in business and commercial. Each office has a large number of paralegals, law students and other non-lawyer staff. The firm is quite profitable and lawyer compensation is based largely on department profitability, with each department deciding how individual lawyers will share in the profits. All departments do provide for at least part of lawyer compensation to be based on business brought to the firm. Except for quarterly firm meetings and interactions when other lawyers use the downtown facilities, outside of individual departments, lawyers in the firm rarely get together, although the original partners, who are still close friends, see each other more often. The firm gets most of its business through referrals, much of it from other lawyers and past clients.
Laura Lawya is one of the attorneys in the personal injury department. Most of her cases involve products liability or vehicle accidents. About a year ago, she was handling a case and needed a physical therapist to do a client evaluation. A friend referred her to Terry Therpist, a licensed physical therapist. Laura was very happy with the evaluation Terry did in the case. Laura mentioned to Terry that she frequently had clients who needed physical therapy, and Terry noted that she frequently has patients who need lawyers. Laura suggested that they work together to increase their client bases. After discussing the possibility of coming up with some percentage that could be paid per referral, they agreed that instead, they would just refer to each other with the expectation that it would all work out in the end. In fact, Laura refers all of her clients who need physical therapy to Terry unless they have insurance that Terry doesn’t handle, and Terry refers all of her patients who need personal injury lawyers to Laura.
One day, Terry was in her office when a new patient arrived. The patient, Helen Hurtt, had been injured in a somewhat freak auto accident. In the course of discussing her injuries and physical therapy needs, Terry asked Helen whether she had a lawyer and whether she was going to sue. Helen replied that she didn’t know if she really had a case, and, in any event, she didn’t want to have to go to court, so probably not, since she didn’t really like that kind of thing. Terry responded, “Well, with your injuries, I think you have a good case. The lawyer I work with has gotten significant recoveries for clients with injuries just like yours. And, she has lots of friends at the courthouse and is really well thought of, so almost all of her cases settle. You don’t have to worry about actually going to court.” Helen responded, “Oh, that’s different than I thought. Maybe I should consider it.” Terry then gave Helen Laura’s card and said, “Make sure you tell her I referred you. She’ll take good care of you” Helen said she would.
Helen called Laura’s office and set up an initial consultation. After Laura met with Helen, it appeared that Terry was right about the possibility of a large recovery based on her injuries, but Helen was right about liability. It was an odd accident, and it was unclear who legally was at fault. It was very possible that Helen might not ultimately prevail, but it was an interesting case and winning was clearly not out of the realm of possibility. In fact, Laura thought that, in light of the large potential recovery due to the nature and scope of Helen’s injuries, the insurance company might not want to take the risk of going to trial and might settle.
After discussing the case with Laura, Helen agreed that they should proceed. Laura had explained that there was a reasonable chance of settlement, and further agreed that, if it appeared settlement was not possible, they might have to reconsider whether to proceed in light of Helen’s desire to avoid trial. They agreed on a contingency fee percentage that was slightly higher than Laura usually took in light of the greater risk involved in the case and Helen’s limited desire to proceed. All the details of the representation, including all necessary details regarding the fee, were put in writing and signed by both Laura and Helen.
With the assistance of an associate and several paralegal investigators, Laura began work on the case. They did both factual investigation and legal research and the case was looking stronger as they progressed, although there were still some sticky legal issues. Laura had her associate and his legal assistants prepare a legal memorandum outlining these difficult legal hurdles in light of the facts they currently had and setting out a strategy for further investigation and research. In addition, they obtained some preliminary information that indicated that the other driver may have had a previous DUI and might have a drinking problem, but that too needed further investigation.
As discovery continued, it came time to take the deposition of Dan Dryva, the defendant (who was driving the other car). That went fairly well, with Dryva admitting to one alcohol-related driving offense. He also made some statements that appeared inconsistent with previous statements he had made, and Laura thought the case, although still difficult, was looking up.
A few days after the deposition, Laura wanted to do some work on the case and went through the file looking for the research memo that outlined the law, the results of their investigation and their litigation strategy, including their need for further investigation. She couldn’t find it and assumed that her associate must have it. She left a note on the associate’s desk asking for the file, but the associate had just left for out of town depositions. When he returned a week later, he told Laura that he did not have the memo, and that the last he’d seen it was at the deposition. That concerned Laura, because at the deposition, there was one large table shared by both parties and there had been a lot of paper on the table. She decided she needed to look into that right away.
Before she could do so, she received an amended answer in the case from the defendant’s attorney. On reading the pleading, it was clear to her that it was based on the facts and law included in the missing memo. Laura immediately called defense counsel and asked if he had gotten access to her memo. He refused to answer, claiming that he was not required to do so. Laura demanded the document back, and the lawyer responded that he was not admitting he had anything, but, if he did, he had no responsibility to return it. Laura was very upset by these events.
While she was thinking about how she should proceed, Alan, a managing attorney in the Labor and Employment department of ABCD, came to her office to see her. He indicated that he needed to talk to her about a new hire at the firm who was starting in his department next week. Alan had been finishing up the conflict check on Nate Newsome, the new attorney, and a name came up in the firm computer system involving one of her cases. It appears that Nate, the new Labor and Employment attorney, was working at the labor department of Younts and Zalkind (Y&Z), where he had been employed for several years. At Y&Z, he represented a plaintiff in a wrongful discharge case. The case was still on-going. It had the potential to be lucrative, because there were substantial allegations of misconduct and retaliation, but there were also lurking issues of good cause that could hurt the possibility of recovery. It turns out that the plaintiff Nate represents is Dan Dryva. Alan indicated that Nate was planning on bringing a fairly substantial book of business to ABCD, including the Dryva case. Alan asked Laura if she thought it would be better if Nate left the case at the old firm. Alan suggested that, because of their firm structure, he thought it wasn’t necessary for Nate to leave the case at Y&Z, especially since Nate could be screened, but he conceded that not bringing the case to ABCD might be the safer (although less lucrative) course.
Discuss all professional responsibility issues raised by these facts. In doing so, make sure to advise Laura on what she must, can and should do about the issues that have arisen at the end of the problem.