Friday, November 7, 2008

Ethics Test for Lawyers


Here is an ethics presentation for Alaska lawyers that I prepared in the form of a test. Regular readers of this blog will recognize that the facts in the questions strongly resemble the facts that came out in connection with a well-publicized trial that concluded last month.

You are free to submit answers if you want, but there will be no prizes awarded.

Ethics Test for Lawyers—Questions Ripped (Mostly) from the Headlines

1. You are a prosecutor on a high-profile case in which the trial is scheduled to last a month. You have brought an important witness more than 3,000 miles from his home to the site of the trial seven days before the trial is to begin. You know that the witness is under subpoena by both the prosecution and the defense. You have interviewed the witness repeatedly. You observe that the witness is in poor health, and he tells you that he is under a doctor’s care back at home.

Which of the following is your best course of action under the Alaska Rules of Professional Conduct?

a. Advise defense counsel of the situation.
b. Ask the court for guidance on an ex parte basis.
c. On the fourth day of trial—the day the prosecution begins presenting evidence—tell the witness to contact defense counsel and arrange for the witness to return home that day without ascertaining whether the witness reached defense counsel.

2. (Note: This question contains at least one hypothetical premise.) You are a criminal defense attorney heading a team representing a client who is one of the nation’s most powerful men, was recently third in line for the presidency, used to be a federal prosecutor, and is old enough to be your father. Your firm is perhaps the pre-eminent criminal defense law in the country. You bill $1,000 per hour, befitting a record in which you went about 30 years with none of your clients ever going to jail. (One magazine has even said that your counterattacks against the government have put more prosecutors in jail than their indictments have put away your clients.) With a half-dozen or more lawyers assisting you, the cost of the defense is running at least $200,000 per week.

You have lined up a number of character witnesses for your client, including the most admired man in the land. Based on your expertise and your evaluation of the case, you have recommended that your client exercise his constitutional right not to testify. You have no reason to believe that your client will commit perjury, but it is your opinion that his testimony will harm his chances of acquittal. Despite your vigorous objection, he insists upon taking the witness stand.

Which of the following is your best course of action under the Alaska Rules of Professional Conduct?

a. File a motion to withdraw as counsel.
b. Ask the court for guidance on an ex parte basis.
c. Work with the client to help him present his testimony in the most effective way you can muster, and particularly urge to refrain from criticizing the questions from an African-American female prosecutor in front of a jury that is composed mostly of African-American females.

3. You are a judge presiding over a criminal trial on a seven-count indictment. One incident identified in the indictment involves a swap of vehicles, and the relative value of the vehicles is an important issue in the trial. The defense has invested substantial effort on cross-examination in trying to impeach a key witness’s testimony on the amount he paid for one vehicle. The prosecution waits until redirect examination to produce a check for the vehicle that supports the witness’s version, thereby making the defense look silly and disingenuous in front of the jury. It comes out the next day that the prosecution did not give the defense a copy of the check until after the witness left the stand, and the defense claims that it has been “sandbagged” by the prosecution.

What step should you take to remedy this discovery violation?

a. Dismiss the indictment.
b. Declare a mistrial.
c. Fine the prosecutors.
d. Instruct the jury that all evidence regarding the vehicle transaction has been stricken from the record.

4. Discuss the following:

“Prosecutors in Alaska basically follow an ‘open file’ policy in which the government gives the defense essentially everything in the prosecutor’s files with very slight exceptions such as strategy memoranda. The U.S. Department of Justice, on the other hand, does not follow this ‘open file’ practice in satisfying its constitutional obligation to turn over evidence to the defense. Citing factors such as the risks to national security and witness security, the U.S. Attorney’s Manual speaks of ‘the reasoned and guided exercise of prosecutorial judgment and discretion’ in describing how government lawyers disclose exculpatory material to the defense. The federal approach to discovery increases risks of discovery violations, particularly when a case with thousands of pages of evidence is tried less than two months after the indictment is announced.”

5. Based on everything you know about the law and about human nature, which policy should the governing law express regarding the receipt of gifts by government officials from government contractors and persons regularly seeking considerations from the government?

a. Mandatory disclosure of all gifts is the best approach.
b. Mandatory disclosure of any gift above a stated de minimis level is the best approach.
c. Prohibition of all gifts is the best approach.
d. Receipt of any gift is acceptable as long as no discovery occurs.

6. You are counsel to an Alaska-based corporation with more than $500 million in annual revenues and operations in more than half a dozen countries. The long-time CEO asks you to draft an agreement between him and a relative that provides in part that he shall pay his relative $30,000. The agreement that he requests you draft also provides that neither party shall ever discuss certain matters with any federal, state or local government authorities, including the Internal Revenue Service, the Alaska Public Offices Commission, and the Federal Election Commission.

Which of the following is your best course of action under the Alaska Rules of Professional Conduct?

a. Immediately draft the agreement as requested.
b. Immediately draft the agreement as requested and simultaneously quadruple your hourly rate for this client.
c. Use your best efforts to talk the CEO out of the provision regarding non-discussion of any matter with any agency responsible for law enforcement.
d. Use your best efforts to talk the CEO out of the provision regarding non-discussion of any matter with any agency responsible for law enforcement and withdraw from the representation if such efforts fail.

Bonus Trial Advocacy Question

7. The prosecution’s star witness in a recent well-publicized trial is a former close friend of the defendant. This star witness carries some baggage that might permit successful cross-examination. He has pleaded guilty to multiple felonies and has admitted bribing state legislators, and has suffered a brain injury.

This star witness is also a 71-year-old man who has been investigated for multiple instances of alleged sexual abuse of a minor. Press accounts have identified two females who have allegedly stated that the star witness had sexual relations with them while they were under-aged, and one of those identified states that she was a prostitute at the time. One witness as to one of these alleged offenses is an adult woman who told the police that she believed the star witness conducted a sexual relationship with a 15-year-old girl while contemporaneously conducting a sexual relationship with her. The adult woman also told the police that after her relationship ended with the star witness, an attorney for the star witness contacted her and offered her $5,000 to sign a nondisclosure agreement that included a statement that she had never had a sexual relationship with the star witness.

Given these facts, what is the biggest risk that the attorneys face concerning the exotic social life of the star witness?

a. The prosecution faces the risk because that the jury will conclude that the government had given the star witness a pass on sex with under-aged girls so that he would testify against the defendant in this trial.
b. The defense faces the risk that the jury will conclude that the defendant had allowed the star witness to use the defendant’s property as a love nest for trysts with under-aged girls.
c. The prosecution and the defense face equal risks. The star witness is walking dynamite for both sides, so each side will avoid any discussion of under-aged sex.
d. The attorney who formerly advised the star witness and the corporation led by the star witness faces the risk of investigations that could lead to loss of his law license and/or criminal prosecution.

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