V. Duty Of Competence
Quiz for Section V: Duty of Competence
- 1.Client, a new client of Attorney, has asked Attorney to write a letter recommending Client's nephew for admission to the bar. Client has told Attorney that he has no direct contact with the nephew, but that Client's sister (the nephew's mother) has assured Client that the nephew is industrious and honest. Which of the following would be proper for Attorney? I. Write the letter on the basis of Client's assurance. II. Write the letter on the basis of Client's assurance if Attorney has no unfavorable information about the nephew. III. Make an independent investigation and write the letter only if Attorney is thereafter satisfied that the nephew is qualified.
- A.
Yes, unless the state offers free continuing legal education courses.
- B.
Yes, if Gamma independently undertakes continuing study and education in the law.
- C.
No, because Gamma cannot maintain competence without attending continuing legal education courses.
- D.
No, unless Gamma obtains malpractice insurance.
- 2.State does not require lawyers to participate in continuing legal education courses. Attorneys Alpha, Beta, and Gamma, all lawyers recently admitted to practice, formed a law partnership in State. As they considered what expenses the partnership would pay on behalf of each lawyer, a majority decided that the firm would not pay for continuing legal education courses since they were not required by State. Gamma, who wanted reimbursement for continuing legal education courses, angrily said, \Fine. I won't attend any continuing legal education courses.\" Is it proper for Gamma to refuse to attend any continuing legal education courses?"
- A.
III only
- B.
I and II, but not III
- C.
I and III, but not II
- D.
I, II, and III
- 3.Alpha is a member of the bar in State First and is also licensed as a stockbroker in State Second. In his application for renewal of his stockbroker's license in State Second, Alpha knowingly filed a false financial statement. Is Alpha subject to discipline in State First for so doing?
- A.
Yes, because his actions involve dishonesty or misrepresentation.
- B.
Yes, but only if he is first convicted of a criminal offense in State Second.
- C.
No, because his action was not in his capacity as an attorney.
- D.
No, because his action was not in State First.
- 4.Attorney is a sole practitioner whose practice is largely in the areas of tax, wills, estates, and trusts. Attorney learned of a new Internal Revenue Service (IRS) regulation that probably affects the trust provisions in a will she prepared for Testatrix two years ago. Attorney has not represented Testatrix since she drew the will. Is Attorney subject to discipline if she calls Testatrix and advises her of the new IRS ruling and the need to revise the will?
- A.
Yes, if Attorney has any reason to believe that Testatrix has another lawyer.
- B.
Yes, because Attorney would be soliciting legal business from a person who is not a current client.
- C.
No, provided Attorney does not thereafter prepare a new will for Testatrix.
- D.
No, because Testatrix is a former client of Attorney.
- 5.Deft retained Attorney to appeal Deft's criminal conviction and to seek bail pending appeal. The agreed fee for the appearance on the bail hearing was $50 per hour. Attorney received $800 from Deft of which $300 was a deposit to secure Attorney's fee and $500 was for bail costs in the event that bail was obtained. Attorney maintained two office bank accounts: a "Fee Account," in which all fees were deposited and from which all office expenses were paid, and a "Clients' Fund Account." Attorney deposited the $800 in the "Clients' Fund Account" the week before the bail hearing. Attorney expended six hours of time on the bail hearing. The effort to obtain bail was unsuccessful. Dissatisfied, Deft immediately demanded return of the $800. It is now proper for Attorney to:
- A.
Transfer the $800 to the "Fee Account."
- B.
Transfer $300 to the "Fee Account" and leave $500 in the "Clients' Fund Account" until Attorney's fee for the final appeal is determined.
- C.
Transfer $300 to the "Fee Account" and send Deft a $500 check on the "Clients' Fund Account."
- D.
Send Deft a $500 check and leave $300 in the "Clients' Fund Account" until the matter is resolved with Deft.
- 6.Judge Alpha has been assigned to try a criminal prosecution by State against Deft. Ten years previously, Alpha, while serving as a deputy attorney general in State, initiated an investigation of Deft for suspected criminal conduct. The investigation did not establish any basis for prosecution. None of the matters previously investigated is involved in or affects the present prosecution. Is it proper for Judge Alpha to try the case?
- A.
Yes, because none of the matters previously investigated is involved in or affects the present case.
- B.
Yes, unless Alpha might be prejudiced against Deft because of the prior investigation.
- C.
No, if Alpha had substantial responsibility in initiating the previous investigation of Deft.
- D.
No, if Alpha had substantial responsibility in determining that the previous investigation did not establish any basis for prosecution.
- 7.Attorney represented Landlord in a variety of matters over several years. Plaint, an elderly widow living on public assistance, filed suit against Landlord alleging that Landlord withheld without justification the security deposit on a rental unit that Plaint vacated three years ago. She brought the action for herself, without counsel, in small claims court. Attorney investigated the claim and learned that it was legally barred by the applicable statute of limitations, although Plaint's underlying claim was meritorious. Attorney told Landlord of the legal defense, but emphasized that Plaint's claim was just and that, in all fairness, the security deposit should be returned to Plaint. Attorney told Landlord: "I strongly recommend that you pay Plaint the full amount with interest. It is against your long-term business interests to be known in the community as a landlord who routinely withholds security deposits even though the tenant leaves the apartment in good condition. Paying the claim now will prevent future headaches for you." Was Attorney's conduct proper?
- A.
Yes, if Landlord did not object to Attorney's advice and paid Plaint's claim.
- B.
Yes, because Attorney may refer to both legal and nonlegal considerations in advising a client.
- C.
No, unless Attorney's engagement letter informed Landlord that Attorney's advice on the matter would include both legal and nonlegal considerations.
- D.
No, because in advising Landlord to pay the full claim, Attorney failed to represent zealously Landlord's legal interests.
- 8.Attorney is a member of the bar and a salaried employee of the trust department of Bank. As part of his duties, he prepares a monthly newsletter concerning wills, trusts, estates, and taxes which Bank sends to all of its customers. The newsletter contains a recommendation to the customer to review his or her will in light of the information contained and, if the customer has any questions, to bring the will to Bank's trust department where the trust officer will answer any questions without charge. The trust officer is not a lawyer. If the trust officer is unable to answer the customer's questions, the trust officer refers the customer to Attorney. Is Attorney subject to discipline for the foregoing?
- A.
Yes, because Attorney is giving legal advice to persons who are not his clients.
- B.
Yes, because Attorney is aiding Bank in the unauthorized practice of law.
- C.
No, because no charge is made for Attorney's advice.
- D.
No, because Attorney is a member of the bar.
- 9.Alpha & Beta is a large firm that employs over 100 lawyers. Attorney Gamma was recently admitted to practice and was hired as a new associate of Alpha & Beta. Gamma was working late one night when he received a telephone call from his cousin Able. Able said that he was calling from the police station where he had just been arrested for possession of cocaine with intent to distribute. He was permitted to make only one phone call, and Gamma was the only lawyer he knew. Gamma responded that he had no criminal law experience and that Alpha & Beta did not handle criminal cases. Nevertheless, Able pleaded with Gamma to come to the police station and see what he could do to get Able out on bail. Gamma replied that he would do what he could. Gamma went to the police station and using what information he recalled from his criminal law and procedure courses attempted to get Able released on bail. However, as a result of his inexperience, Gamma was unable to secure Able's release that night. The next morning, Gamma found an experienced criminal lawyer for Able, who obtained Able's release within one hour. Was Gamma's conduct proper?
- A.
Yes, because neither referral nor consultation was practical under the circumstances.
- B.
Yes, because Gamma was a close relative of Able.
- C.
No, because Gamma had no special training or experience in criminal cases.
- D.
No, because Gamma did not have the requisite level of competence to accept representation in the case.
- 10.Attorney wants to make it easier for her clients to pay their bills for her fees. Which of the following would be proper for Attorney? I. Accept bank credit cards in payment of Attorney's fees. II. Arrange for clients to obtain bank loans for the purpose of paying Attorney's fees. III. If a case is interesting, suggest that the client give Attorney publication rights concerning the case as partial payment of the fee.
- A.
II only
- B.
I and II, but not III
- C.
I, II, and III
- D.
Neither I, II, nor III
- 11.Attorney practices law in a state that has experienced a business recession and where several banks have failed and others are severely pressed to preserve their solvency. Attorney maintains a Clients' Trust Account in Bank and that account is insured by the Federal Deposit Insurance Corporation against losses up to $100,000. Attorney also maintains his regular office account in the same bank and that account is insured to $100,000. During a particularly busy time, Attorney's bookkeeper told Attorney that the balance in the Clients' Trust Account had increased to $150,000. The bookkeeper noted that the office account had a balance of $30,000. Which of the following courses of action by Attorney would be proper? I. Leave the Clients' Trust Account as is if the balance is likely to decrease to less than $100,000 within the next ten days. II. Open another Clients' Trust Account in another bank and transfer some funds to the second Clients' Trust Account to maintain a fully insured balance in both accounts. III. Temporarily transfer $50,000 from the Clients' Trust Account to the office account so the balance in both accounts is fully within insured limits.
- A.
I only
- B.
II only
- C.
I and II, but not III
- D.
II and III, but not I
- 12.Law Firm, a professional corporation with five lawyer shareholders, employs twenty-five additional lawyers. Which of the following is(are) proper? I. Employees who are members of the bar are not made shareholders until they have been with Law Firm ten years. II. Manager, who is the office manager but not a member of the bar, is executive vice president of Law Firm. III. Widow, whose husband was a lawyer shareholder in Law Firm until his death two years ago, continues to hold husband's shares in Law Firm, distributed in his estate, until their child completes a law school education.
- A.
I only
- B.
I and II, but not III
- C.
I and III, but not II
- D.
I, II, and III
- 13.Attorney, who was recently admitted to the bar, has been appointed by the court as counsel for Deft, an indigent defendant charged with a felony. After consulting with Deft and attempting for two days to prepare the case for trial, Attorney became convinced that he lacked the knowledge and experience to represent Deft effectively. Which of the following would be proper for Attorney? I. Request permission of the court to withdraw from representing Deft because Attorney knows that he is not competent to handle the case. II. Request the court to appoint experienced co-counsel and grant a continuance to enable co-counsel to prepare the case. III. Explain the circumstances to Deft and, if Deft consents, proceed to represent Deft alone to the best of Attorney's ability.
- A.
I only
- B.
I and II, but not III
- C.
II and III, but not I
- D.
I, II, and III
- 14.While an assistant district attorney, Attorney Alpha was in charge of the presentation before a grand jury of evidence that led to an indictment charging thirty-two defendants with conspiracy to sell controlled drugs. Shortly after the grand jury returned the indictments, Alpha resigned as assistant district attorney and became an associate in the law office of Attorney Beta, a sole practitioner. At the time of such association, Beta was the attorney for Deft, one of the indicted co-defendants. Is it proper for Attorney Beta to continue to represent Deft?
- A.
Yes, if Alpha does not reveal to Beta any confidence or secret learned while an assistant district attorney.
- B.
Yes, because a public prosecutor must make timely disclosure to the defense attorney of any exculpatory evidence.
- C.
No, unless Alpha agrees not to participate in the representation of Deft.
- D.
No, because Alpha had substantial responsibility for the indictment of Deft.
- 15.Judge is presently serving on a state intermediate appellate court. This court, in opinions written by her, has decided several controversial cases in which the court has held that the Fourteenth Amendment to the United States Constitution does not guarantee due process protection to state prison inmates who are disciplined by prison authorities for violating the prison's rules of conduct. Judge is now a candidate for election to a vacancy on the state supreme court. She is vigorously opposed by several organizations concerned with the conditions under which prisoners are incarcerated in the state's prison. Judge is scheduled to be interviewed on television and has been informed that questions will be asked of her concerning those decisions and her attitude on the subject of prisoners' rights. Which of the following is it proper for Judge to say during the interview? I. "I believe that the issues raised by the organizations opposing me are appropriate matters for legislative consideration." II. "In my opinion, incarceration for the commission of a crime carries with it a loss of civil liberties in prison discipline proceedings." III. "I am convinced I was right in those cases and will make the same decision in similar cases in the future."
- A.
I only
- B.
II only
- C.
I and II, but not III
- D.
I, II, and III
- 16.Attorney was formerly employed by Insurance Company as a lawyer solely to handle fire insurance claims. While so employed she investigated a fire loss claim of Claimant against Insurance Company. Attorney is now in private practice. Assume the claim has not been settled and Claimant consults Attorney and asks Attorney either to represent him or refer him to another lawyer for suit on the claim. Which of the following would be proper for Attorney to do? I. Refuse to discuss the matter with Claimant. II. Represent Claimant. III. Refer Claimant to an associate in her law firm, provided Attorney does not share in any fee. IV. Give Claimant a list of lawyers who Attorney knows are competent and specialize in such claims.
- A.
I only
- B.
I and II, but not III or IV
- C.
I and III, but not II or IV
- D.
I and IV, but not II or III
- 17.Attorney was formerly employed by Insurance Company as a lawyer solely to handle fire insurance claims. While so employed she investigated a fire loss claim of Claimant against Insurance Company. Attorney is now in private practice. Assume that the original claim was settled. One year after Attorney left the employ of Insurance Company, Claimant slipped and fell in Insurance Company's office. Claimant now asks Attorney to represent him or refer him to another lawyer for suit on the \slip and fall\" claim. Which of the following would be proper for Attorney to do? I. Refuse to discuss the matter with Claimant. II. Represent Claimant. III. Give Claimant a list of lawyers who Attorney knows are competent and specialize in such claims."
- A.
I only
- B.
I and II, but not III
- C.
I and III, but not II
- D.
I, II, and III
- 18.Client has retained Attorney to represent Client in a contract suit. Attorney's retainer agreement provided that Attorney's fees would be based on a fixed hourly rate, payable at the end of each calendar month. Two months before trial, Client fell behind in the payment of Attorney's monthly billing for fees. Attorney included the following statement on Attorney's last billing to Client: "Your account is more than thirty days past due. If amounts due are not paid promptly in accordance with our agreement, I will terminate the representation. If you cannot pay the amount due, I will accept an assignment of your cause of action as security for your fee to me." Two weeks after the last billing, Attorney telephoned Client and told Client that Attorney would withdraw from representing Client if the bill was not paid within forty-eight hours or adequate security given for its payment. If the bill remains unpaid or unsecured after forty-eight hours, it would be proper for Attorney to: I. upon notice to Client, move the court for permission to withdraw. II. turn Client's file over to another experienced lawyer in town and notify Client that Attorney no longer represents Client. III. accept an assignment of Client's cause of action as security for Attorney's fee.
- A.
I only
- B.
II only
- C.
I and II, but not III
- D.
I, II, and III
- 19.Attorney's advertisement in the local newspaper includes the following information, all of which is true: I. Attorney, B.A., magna cum laude, Eastern College; J.D., summa cum laude, State Law School; LL.M., Eastern Law School. II. My offices are open Monday through Friday from 9:00 a.m. to 5:00 p.m., but you may call my answering service twenty-four hours a day, seven days a week. III. I speak modern Greek fluently. For which, if any, of these statements is Attorney subject to discipline?
- A.
III only
- B.
I and II, but not III
- C.
I, II, and III
- D.
Neither I, II, nor III
- 20.The law firm of Alpha and Beta has a radio commercial which states: \Do you have a legal problem? Are you being sued? Consult Alpha and Beta licensed attorneys at law. Initial conference charge is $25 for one hour. Act now and protect your interests. Call at 1234 Main Street; telephone area code (101) 123-4567.\" Are Alpha and Beta subject to discipline for the commercial?"
- A.
Yes, because the qualifications of the lawyers are not stated.
- B.
Yes, because the radio broadcast may encourage litigation.
- C.
No, if all the statements in the radio broadcast are true.
- D.
No, unless the radio broadcast is heard outside the state in which they are licensed.
- 21.Attorney Alpha represents Client, the plaintiff in a medical malpractice case. Alpha's contract with Client provides for a contingent fee of 20% of the recovery by settlement and 30% if the case is tried, with a total fee not to exceed $50,000. Alpha associated Attorney Beta, a sole practitioner, in the case, with Client's written consent and after full disclosure of the fee agreement between Alpha and Beta. Beta is both a medical doctor and a lawyer and is well qualified by experience and training to try medical malpractice cases. The fee agreement between Alpha and Beta reads as follows: The total fee in this case is 20% of recovery by settlement and 30%, if tried, with a maximum fee of $50,000. Alpha will help with discovery and will be the liaison person with Client. Beta will prepare the case and try it if it is not settled. Alpha and Beta will divide the fee, 40% to Alpha and 60% to Beta. Are Alpha and Beta subject to discipline for their agreement for division of the fee?
- A.
Yes, unless Client's consent is in writing.
- B.
Yes, because Alpha will not try the case.
- C.
No, if the division of the fee between Alpha and Beta is in proportion to actual work done by each.
- D.
No, because the total fee does not differ from that contracted for by Alpha with Client.
- 22.Attorney Alpha was retained by Client to incorporate Client's business, which previously had been operated as a sole proprietorship. Alpha noticed in Client's file copies of some correspondence from Client to Attorney Beta concerning the possibility of Beta's incorporating Client's business. Alpha questioned Client to make certain that any attorney-client relationship between Beta and Client had been terminated. Client told Alpha, "It certainly has been terminated. When I discussed the matter with Beta six months ago, he asked for a retainer of $1,000, which I paid him. He did absolutely nothing after he got the money, even though I called him weekly, and finally, last week when I again complained, he returned the retainer. But don't say anything about it because Beta is an old friend of my family." Is Alpha subject to discipline if she does not report her knowledge of Beta's conduct to the appropriate authority?
- A.
Yes, if Alpha believes Beta clearly was guilty of professional misconduct.
- B.
Yes, unless Alpha believes Beta does not usually neglect matters entrusted to him.
- C.
No, if Client was satisfied by Beta's return of the retainer.
- D.
No, unless Client agrees that Alpha may report the information.
- 23.Alpha & Beta, a general partnership, is a litigation firm practicing in State. It hires new law school graduates as associates. These new lawyers are largely left to their own resources to practice law. Alpha & Beta accepts many small litigation matters and assigns them to the associates for training purposes. No senior partners are assigned to supervise this work. It is assumed that if an associate needs help on a case, he or she will seek the guidance of a more senior attorney. Client retained Alpha & Beta to pursue a claim for breach of contract against City. Associate, a first year associate, was assigned Client's case. Associate failed to comply with the applicable 30-day notice requirement for filing a complaint against City, and Client lost the chance to recover $5,000 owed to Client by City. When the complaint was dismissed for failure to comply with the notice requirement, Associate instead told Client that the case was dismissed on the merits. Which of the following statements are correct? I. The law firm of Alpha & Beta is subject to discipline for failure to supervise Associate. II. The individual partners of Alpha & Beta are subject to discipline for failure to make reasonable efforts to establish a system providing reasonable assurance that all lawyers in the firm comply with the rules of professional conduct. III. Associate, an unsupervised subordinate lawyer, is subject to discipline for making misrepresentations to Client. IV. Both the law firm of Alpha & Beta and Associate are subject to civil liability for Client's loss.
- A.
II and IV, but not I or III
- B.
I, III, and IV, but not II
- C.
II, III, and IV, but not I
- D.
I, II, III, and IV
- 24.Attorney, who represented Plaintiff, received a check from Deft payable to Attorney's order in the sum of $10,000 in settlement of Plaintiff's claim against Deft. Plaintiff had previously paid Attorney a fee so no part of the $10,000 was owed to Attorney. Which of the following would be proper? I. Endorse the check and send it to Plaintiff II. Deposit the check in Attorney's personal bank account and send Attorney's personal check for $10,000 to Plaintiff III. Deposit the check in a Clients' Trust Account, advise Plaintiff, and forward a check drawn on that account to Plaintiff
- A.
I only
- B.
III only
- C.
I and III, but not II
- D.
I, II, and III
- 25.Attorney Alpha has tried many contested cases before Judge Gamma. Alpha believes the judge is lacking both in knowledge of the law and in good judgment and that Attorney Beta would make an excellent judge. Alpha wishes to defeat Judge Gamma and assist Beta in getting elected. Alpha intends to contribute $5,000 to Beta's campaign. Is it proper for Alpha to do so?
- A.
Yes, Alpha may give $5,000 to Beta personally for his campaign.
- B.
Yes, if Alpha's contribution to Beta is made anonymously.
- C.
No, because Alpha is practicing before the court to which Beta seeks election.
- D.
No, unless Alpha gives the $5,000 to a committee formed to further Beta's election.
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