Answers to Winter 2008
California Bar Exam Questions

Winter 2008 Bar Question 2

Professional Responsibility

Acme Paint Company (Acme) was sued when one of Acme’s trucks was involved in an accident with a car. June, an attorney, was retained to represent Acme. She has done substantial work on the case, which is about to go to trial.

Recently, June’s three-year-old niece suffered lead poisoning after being in contact with lead-based paint. June became so upset that she joined a local consumer advocacy group, No Lead, which lobbies government agencies to adopt strict regulations restricting the use of lead-based paint. June also undertook to perform legal research and advise No Lead concerning its tax-exempt status.

In the course of reviewing Acme’s records in preparation for trial, June found a memorandum from Acme’s President to the company’s drivers. The memorandum states:

We know our paint contains lead and that it is a misdemeanor to transport it over roads abutting public reservoirs. The road our trucks have been using for many years runs alongside the City water reservoir, but it’s the shortest route to the interstate, so you should, for the time being, continue to use that road.

June became outraged by the content of the memorandum. She believed that if an Acme truck were to have a mishap and paint spilled into the reservoir, lead could enter the public drinking water and injure the local population.

Because of her strong feelings, June anonymously disclosed the memorandum to No Lead and to the media. She also sent Acme a letter stating that she wished to withdraw from the representation of Acme. Acme objected to June’s withdrawal. June filed with the court a petition for withdrawal.

1. What ethical violations, if any, did June commit by disclosing Acme’s memorandum? Discuss.

2. What arguments for withdrawal from representation could June assert in support of her petition to the court, and how would the court be likely to rule? Discuss.

Answer according to California and ABA authorities.

All questions © 2008 California State Bar Exam. All rights reserved

Professional Responsibility
Question 2, Winter 2008

1. Duty of Loyalty—Maintain Client’s Confidences and Secrets
An attorney’s paramount duty is to maintain the communications she receives from the client as well as any information obtained as a result of her representation. Here, J represented A in defense of a personal injury auto accident, therefore, A was J’s client.
J received documents from A, including a memo in which A admitted its paint contained lead, that it knew transporting such paint over roads next to water reservoirs was a misdemeanor. The memo also stated that A intended to continue transporting lead paint on roads next to the reservoir. This is information J obtained as a result of her representing A. She is under a duty to maintain this secret.

Here, J released the contents of the memo to the press. She violated her duty of loyalty to her client. The fact that J did this anonymously in no way mitigates her breach of duty because the focus is on the harm to the client, not on the source of the information.

Therefore J violated her duty of loyalty to her client.

Duty of Loyalty – Multiple Client Representation
An attorney has a duty not to undertake representation of a client whose interests currently or potentially are adverse to an existing client. Here, J represented A in an auto accident defense. J undertook to represent a consumer group, No Lead, a group that seeks to restrict use of paint containing lead.
            Actual conflict? When the interests of the two clients are adverse to each other at present, an attorney violates her duty by representing the second client. Here, A’s interests are in defending an auto accident. The auto accident does not involve A’s production or transportation of lead paint. The group No Lead seeks to have laws enacted to regulate and limit lead paint products. The interests of A and No Lead are not presently adverse.
            Potential conflict? When the interests of two clients are not presently adverse to one another, but could become so in the future, the attorney may represent the second client after fully informing the clients as to the potential conflict and obtaining written waivers. Here, J did not inform A of her taking on No Lead.

The fact that J is representing No Lead without fee is not relevant in analyzing the conflict. No lead is just as much J’s client as a paying client would be, and both A and No Lead are just as entitled to rely on J’s meeting her ethical duties to avoid conflicts.

Therefore, J violated her duty of loyalty to A by taking on a second client whose interests may diverge without informing and seeking waiver from A.

Duty of Loyalty – Conflict of Interest, Attorney’s Independence of Judgment
An attorney has a duty not to obtain a personal interests that are adverse to a client when such interests create a danger of clouding the attorney’s independence of judgment in favor of the client. Here, J became personally interested in No Lead when her niece developed lead poisoning. She volunteered to do legal work for No Lead and became enraged when she read the memo about driving on roads near public water reservoirs.
Her personal interest in the lead-paint issue caused J to leak the memo to the press to harm or embarrass A. If J had not been personally involved in the no-lead political action, she would have placed A’s interests first and would not have released the memo to the press. Therefore, J violated her duty of loyalty because her judgment was clouded. Therefore, J violated her duty of Loyalty, Independence of Judgment.

2. Withdrawal.
An attorney has an absolute right to dismiss an attorney, but not so the reverse.
An attorney may withdraw from representing a client only in certain circumstances. Generally, those involve some degree of wrongdoing by the client that the representation causes to implicate the attorney.
An attorney may withdraw where
            The client’s claim is not supportable in good faith or is repugnant to the lawyer. Here, A’s defense in the personal injury case has nothing to do with lead-based paint or with A’s transportation of it near reservoirs. A’s position in this lawsuit is valid, so far as we are told. Therefore, this is not a valid basis for withdrawal.
            The client pursues illegal conduct. On the one hand, A’s memo makes clear it is consciously violating the law by transporting its paint on roads abutting reservoirs. On the other hand, that conduct has nothing to do with J’s representation of A in this lawsuit. Therefore, I do not believe that gives valid grounds for permissible withdrawal.
            Representation is likely to cause the attorney to violate the law or disciplinary rules. As above, the current suit is not related to any illegal conduct by A, and so should not be a valid justification for withdrawal at this time.
           
Mandatory—Conflict of interest
Acme and No-Lead
An attorney must withdraw when he has a conflict of interest. Here, J represents No Lead as well as Acme. As discussed above, these clients have a potential conflict of interest, not an actual, present conflict. Since an attorney may ethically continue to represent clients with a potential conflict, mandatory withdrawal would not be required in this circumstance.

Acme and J’s own interests.
J also has personal interests in opposing leaded paint due to her niece’s illness. This conflict of interest affects her independence of judgment in representing Acme zealously.
The test for whether such a conflict exists is whether an independent attorney would conclude that he or she could not put the client’s interests above the attorney’s own interests. Here, J leaked a memo that harmed A’s interest. That shows that J is placing her own interests above that of her client’s. However, J has done nothing to harm A’s interest in the current lawsuit and the lawsuit has nothing to do with exposure to lead paint. J has done nothing to show that she could not represent A in this suit.

Even if mandatory withdrawal is proper here, the attorney must meet certain procedural safeguards to mitigate the harm to the client.

Notice.
Mitigation.
Where an attorney withdraws, she must take reasonable steps to mitigate the adverse consequences of withdrawal. She must give reasonable notice to the Client; deliver the Client’s papers and property; protect the client’s confidences and avoid conflicts of interest in the future.

Reasonable notice. J developed her own position adverse to Acme when she learned that Acme knew of the dangers transportation of its lead-based paint posed and it violated the law by continuing to drive near public water supplies. An independent attorney would probably have determined her independence of judgment was affected at that time. An attorney has a duty to give as much notice as she can to a client to minimize the adverse consequences of withdrawal. J did not withdraw immediately, but waited until the eve of trial. That delay caused further harm to Acme.

Delivery of client’s papers and property. J sent a letter to Acme stating she wished to withdraw. There is no indication J delivered to Acme files in her possession.

Preserve client’s confidences. Preserving the client’s confidences applies both during representation and after it. While she still  represented Acme, J learned secrets, such as the contents of the memo, and leaked it to the press. She has already failed to preserve her client’s confidences.

Avoid future conflicts. J must avoid representing clients whose interests may be adverse to Acme’s in the future. J is currently representing No-Lead in seeking legislation that would harm strictly regulate use of lead-based paint. Such legislation would directly harm Acme’s interests. She must withdraw from representing that group.

Court approval. When litigation is pending, an attorney must seek permission of court to withdraw. Here, Acme opposes J’s withdrawal, even after J’s letter disclosing her conflict. Given the potential prejudice to the client of withdrawal on the eve of trial and client’s own opposition, the court would probably order J to continue representing Acme through trial.

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