PROFESSIONAL RESPONSIBILITY ESSAY SERIES ESSAY QUESTION #3 MODEL ANSWER May has represented the International Bakers Union (IBU) as its attorney for several years. Last year, while IBU was on strike against Bakery, a car belonging to the owner of Bakery was firebombed outside his home. Walter, the vice president of IBU, and Frank, an apprentice member of the union, were charged with arson to property, a felony carrying a penalty of up to three years in prison. IBU retained May to represent Walter and Frank in the criminal case. Shortly after entering her appearance, May was approached by Pete, the prosecutor, who told her that an unidentified member of IBU's Executive Board would testify that Walter and other members of IBU leadership planned the firebombing and got Frank to go along only after they threatened to revoke his apprentice union card. Pete said that if Frank would testify for the prosecution against Walter, Pete would allow Frank to plead guilty to a misdemeanor and would recommend that he be placed on probation. May immediately refused, telling Pete that she knows he is just a "union buster," and that IBU's interests would suffer if she agreed to his proposal. The case proceeded to trial, and the Secretary of IBU testified for the prosecution as Pete had indicated. Both Walter and Frank were convicted. The judge denied May's pleas that her clients be placed on probation and sentenced each defendant to three years in prison. What standards of professional responsibility, if any, has May violated? Discuss.

MODEL ANSWER PREAMBLE STATEMENT. As a member of the California State Bar, May must abide by the American Bar Association and California Rules of Professional Responsibility, or she will be subject to discipline by the Bar. May owes duties to her clients, the profession, other attorneys, the community at large and to the court. DUTY OF LOYALTY TO CLIENT. An attorney may not have conflicts of interest with their client, and must act in the best interest of their client, without personally benefiting at their client’s expense. A lawyer must exercise independent judgment and not permit others to materially alter, direct or regulate the lawyer’s independent professional judgment through payments, recommendations, or other benefits. CONFLICTS OF INTEREST. May agreed to be retained by the International Bakers Union, IBU. However, even though IBU retained May's services, May was hired to represent Walter and Frank in a criminal prosecution. THIRD PARTY PAYMENT OF FEES by IBU. An inherent conflict of interest arises whenever a third party pays attorney's fees for another. May cannot receive payment for her services from IBU in representation of Walter and Frank, unless she receives informed, written, signed consent from Walter and Frank, no confidential information arising out of the representation is divulged to the paying party, and the paying party does not interfere with the attorney's representation of her client's best interest. Therefore, Before May agreed to be retained by IBU in representation of Walter and Frank, May had a duty to secure informed consent from Walter and Frank. Informed consent is a process, and not a vapid decision. First, all Walter and Frank should have been given full disclosure of all of the problems and permutations of third-party payment. Second, all they should have been encouraged to secure a second professional opinion. Third, they should have been given sufficient time to secure a second professional opinion. Finally, May should have secured written, signed consent from both Walter and Frank. May did not receive informed consent from Walter or Frank. Further, May represented IBU for a number of years, and since IBU secured her services again, their former relationship was apparently fruitful for both parties. May could be swayed, to some degree, to try and forward the interests of IBU, to the detriment of the needs of her true clients, Walter and Frank. Through information relayed to May by Pete the prosecutor, May was made aware that other members of the IBU leadership may have been involved in the criminal firebombing. Did May decide to side with representation of IBU, and protect their interests, by rejecting a plea bargain for Frank? If the plea bargain were to have been accepted, Frank would have been charged only with a misdemeanor, instead of three years of jail time.

Additionally, even if the original informed consent was valid, a reasonable attorney standard is attached to the consent. In other words, if a reasonable attorney would advise a client not to give informed consent, then any consent subsequently given by a client cannot validate the questionable action that the attorney undertakes. There was a serious conflict of interest involved in this situation, exacerbated by the fact that criminal charges were levied against Walter and Frank. It is worth noting, that May was approached by IBU, and could have refused representation. In the current situation, once a plea bargain was on the table, May was under an ethical duty to seek resolution of the aforementioned conflict of interest through withdrawal of representation from Walter and / or Frank, along with a new personal payment arrangement with the remaining client. Since she did not take remedial action, she will be subject to discipline. CONFLICT OF INTEREST WITH FORMER CLIENT. As stated above, May formerly represented IBU. In the current situation, ostensibly, she is representing Walter and Frank. May could be privy to confidential inside information regarding IBU, that May could seek to protect. There is a strong possibility that her strong representation of Walter and Frank could be materially limited due to her prior, and continuing interest with IBU. Walter and Frank's interests, thus, may be adverse to the interests of IBU, and May's representation of Walter and Frank may be materially altered by May's former representation of IBU. Further, confidences on both sides would be at risk of exposure. Again, Walter and Frank were charged as individuals, but the crimes as a whole could be imputed to the union. Criminal representation of IBU is not directly at issue, but it could arise as an issue in the future. May should have declined representation of Walter and Frank in this potentially incendiary situation. Absent rejection of representation, May should have approached the court and sought withdrawal, which she did not do, and for which she will be subject to discipline. CONFLICT OF INTEREST BETWEEN FRANK AND WALTER. The rules strongly discourage representation of two clients in a criminal case, as the possible conflicts of interest are tremendous. As stated above, May was under an ethical duty to secure informed consent from Walter and Frank, which she did not ask for, or obtain. Further, as the criminal proceedings were forwarded, May was approached by Pete, the prosecutor, and told that a member of IBU's executive board would testify that Walter planned the firebombing and Frank was coerced into going along with the criminal plan. If May zealously represented Frank, and Frank were to testify against Walter, then both of the clients would have severely adverse representational needs. In other words, May could not adequately assist Frank in securing a plea bargain, without reneging on her duty to zealously represent Walter. The conflict of interest in representing both Walter and Frank reached a critical point when Pete approached May with a plea bargain, and May had a duty to withdraw from representation of both clients, in order to protect the confidences of both clients. This conflict progressed past the point where informed, written, client consent would be appropriate. Further, May should also reject any possible representation of IBU as related to the fire-bombing, as she would risk divulging confidential information regarding Walter or Frank.

DUTY OF CONFIDENTIALITY. An attorney may not use confidential information for lawyer’s benefit or to client’s detriment. The scope of the duty of confidentiality is broader than attorney-client privilege, and includes communications from any source, and applies regardless of testimony. It includes the sum of material protected by the evidentiary attorney-client privilege, also called confidences, and material that may be embarrassing or detrimental to a client if revealed, along with material that a client expressly requested to be held in confidence, called secrets. FORMER CLIENT. May had represented IBU for three years, before she took on representation of Walter and Frank. However, the criminal charges against Walter and Frank, were indirectly related to the inner workings and communications of IBU. It is likely that May knew about a number of surreptitious communications related to IBU, and she would have a duty to keep those communications confidential. It is likely that some of the information May was privy to in her prior representation of IBU, would be helpful to her current representation of Walter and Frank, however May will need to keep any of those prior communications with IBU in confidence. DUTY OF COMPETENCE. The duty of competence requires that an attorney possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation of their client. Competence in legal research, drafting, writing and knowledge are always required. DUTY OF CARE. An attorney must use the ordinary skill, judgment and preparation of a reasonable lawyer. Here, May represented IBU for three years, and therefore probably had extensive understanding of union and labor relations. However, it is unclear that she had the requisite knowledge of criminal law and procedure, to enable her to competently represent Walter and Frank. If May, in fact, proceeded to represent Walter and Frank without a reasonable amount of competence in criminal law, she would be subject to discipline. DUTY OF COMMUNICATION. FAILURE TO PRESENT OFFER TO FRANK. An attorney must keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Here, May had information from Pete about how the prosecution viewed the criminal proceeding. May also had specific information regarding a possible plea bargain for Frank. Therefore, May had a duty to communicate the parameters of the plea bargain with Frank. Frank was clearly prejudiced in the trial by May's lack of communication, because he would have probably received only probation instead of jail time, if May had informed him of Pete's offer. May's failure to communicate the plea bargain to Frank is a breach of competence, and May will be subject to discipline.

CONCLUSION DISCIPLINE. INEFFECTIVE ASSISTANCE OF COUNSEL. A criminal defendant may assert ineffective assistance of counsel, which would justify reversal of the court determination, if an attorney's actions were unreasonable for a prudent attorney in the same circumstance, and the client would not have been convicted but for the ineffective assistance of counsel. Here, it is likely that Frank would have received probation, instead of jail time, had May adequately represented his interests. Further, Walter received the full amount of jail time possible in the charge against him. However, it is less likely that Walter would not have been convicted, because Pete the prosecutor has information directly related to Walter, which was harmful to Walter's chances of prevailing against the charge. Therefore, as regards Frank, May presented an ineffective counsel, and a reversal of the decision is appropriate. OTHER DISCIPLINE. Other disciplinary measures which may be levied against May include censure, reprimand, suspension, disbarment, malpractice and breach of contract.