Good Excuse

So I know, I know I have not blogged once again a long long time. But I have a really good reason. I am studying for another bar, Ok Maybe studying is the wrong word. But I am trying, and I should be.
I am taking the CT bar this Thursday. Thats less than 48 hrs away and I am freaking!
Here is a sample of what I have been doing:

Question #4: (From the July 2005 Bar exam)
For ten years Paul and David have been next door neighbors in an older subdivision, with their yards separated by a fence. Several of David's large trees overhang the fence. Each fall, David's tress deposit most of their dead leaves on Paul's yard. Despite repeated requests by Paul, David has refused to cut down his trees.

Determined to get even with David for years of raking leaves, Paul's ecided to hire a lawyer to sue David for an injunction to cut down the trees. Paul visited Arnold, an attorney. Paul agreed to retain Arnold on the condition that Arnold drag out the tree dispute as long as possible in order to drive up David's attorney fees. Arnold agreed, adding that the local judge would allow him to drag the case out because the judge owed him a favor.

Soon after the suit was filed, Paul learned from another neighbor that David had boasted about the fact that the leaves from his trees fell into Paul's yard, and not his. After Paul told Arnold about this information, Arnold telephoned David and told him he'd have this neighbor testify agaisnt David if he continued to fight Paul in the tree suit. Arnold told David to have his attorney draft a settlement agreement that required David to remove the trees. After much discussion, David agreed to settle the suit.

Just before signing off on the settlement agreement, Arnold informed David that Paul had sued David specifically to make him pay large attorney fees. David became incensed, and asked Arnold if he would represent him in suing Paul for malicious prosecution. Arnold agreed and said he would gladly testify against Paul at that trial. At the trial for malicious prosecution, Arnold represented David and testified agaisnt Paul.

Applying the ABA Model Rules of professional Conduct, analyze fully Arnold's conduct.

My Answer:
Arnold acted unethically throughout the Paul-David issue.
The first issue is that of malicious prosecution. According to the ABA Model Rules of Professional Conduct and lawyer may not engaged in malicious prosecution. Namely, any suits or filings that they believe to be worthless and solely for the sake of dragging the other side into court.
The next issue is that of improper behavior with a member of the judiciary. The ABA Model Rules of Professional Conduct state that a member of the Judiciary may not take or accept bribers, or give preferential treatment to any party in a suite which comes before them.
The next issue is that of improper contact of adversary parties. The ABA Model Rules of Professional Conduct states that the attorney may not contact the other side personally, if they know that they are represented by counsel. All communication must go through the lawyers.
The next issue is that of coercion. An attorney may not coerce or black mail the other party with threats, to enter into a settlement agreement or suit.
The next issue is that of Attorney-Client privilege. The ABA Model Rules state that any information or communication between an Attorney and Client is confidential and privileged and the attorney may not divulge it to any other party for any reason.
The next issue is that of conflicts. The ABA Rules state that an attorney may not represent two clients whose interests are adverse or conflict with one another. This includes present and past clients. Since the attorney may gained certain knowledge or information in the representation of one and use it improperly in the presentation of the other and violate privilege.
The last issue is that of an Attorney testifying in court against his client. There are only limited circumstances when a lawyer may testify against his client in court. The rule states that a lawyer may testify against his client, where he is seeking his fee or compensation.

Here, Paul hired Arnold to sue David for an injunction to cut down the trees which hung over the fence between their property and dropped its leaves on his side. Paul agreed to retain Arnold as his attorney on the condition that Arnold drag out the tree dispute for as long as possible in order to drive up David’s attorney fees. Since, the main purpose of the suit was to cause harm to David and just drag him into court, Arnold had a duty not to engage in this type of malicious prosecution. Therefore Arnold violated the ABA rule against frivolous lawsuits and malicious prosecution.
Next Arnold tells Paul that the local judge owed him a favor and would allow them to drag the case out. The fact that Arnold knew and was friendly with the local judge is not the main problem. The problem arises when Arnold says that because of this close relationship the Judge will give them special privileges and allow them to drag out the case. Here, the judge would clearly be giving them preferential treatment and would be in violation of the ABA rules. It would be Arnolds duty to either, not allow the judge to give them special favors, or move the case to another judge.
Next, Arnold telephoned David. Arnold did not call David’s attorney even thought he knew he was represented by a lawyer. Arnold specifically asked David to have his attorney draw up settlement papers. We can infer from this that Arnold knew David was represented by counsel. Therefore Arnold improperly contacted the adverse party. He should have called David’s lawyer. Arnold violated the ABA rule against adverse party contact.
During this conversation Arnold told David that he would have a neighbor testify against him saying that David boasted about the fact that he leaves from his property fell into Paul’s yard. It was basically a blackmail threat, that if it ever went to trial, he had an ace in the hole witness. This was improper coercion, and blackmail. Arnold violated the ABA rule against forcing a party into settlement.
Next Arnold violated the attorney-client privilege. Arnold informed David, that Paul had sued David specifically to make him more attorney fees. This was a communication between Paul and Arnold during the course of their Attorney-client relationship. Any matters discussed are privileged and may not be waived unless the client agrees. Here, Paul did not agree. Arnold just told David the confidential communication. Arnold violated the attorney client privilege.
Next is the issue of representing conflicting clients. Arnold may never take on the presentation of any other person who wishes to sue Paul or was adverse to Paul in a prior suit in which Arnold represented Paul. Here, Arnold agrees to sue Paul on behalf of David. This is a conflict of interest and Arnold may not take on this action. Paul was a former client and he may have confidential and privileged information that may come out during the course of working with David. Also David was the party to which Arnold represented Paul against, another conflict. Unless both sides knowingly sign a waiver of conflict. Arnold may not represent David in the suit against Paul.
Lastly is the issue of Arnold testifying against Paul in court. Here, Arnold would only be testifying that Paul had intended the suit to maliciously prosecute David. Although that is wrong, an Attorney may not testify against his client as to such matters. Only to hose matters relating to his fee or withdrawal. Since we don’t have either of those issues here, Arnold may not testify against Paul.

Sheila's Comments on my Answer (She took it last July)

• you should say Arnold is in violation of many ABA MOdel Rules...
• THen : the issues are whether Arnold is in violation of the following ABA model rules, then list the names.
• List the rules with the explanation of it.
• YOu are going issue, rule, issue, rule...
• You need a final conclusion i.e. because of his unethical behavior, Arnold is in violation of many ABA MOdel rules of...
• Your analysis is good.

How did I do?

Do some of you still want to go to law school?