Question What, if any, ethical violations has Austin committed as an attorney? Discuss.

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1 Question 4 Austin had been a practicing physician before he became a lawyer. Although he no longer practices medicine, he serves on a local medical association committee that works to further the rights of physicians to be compensated fairly by health insurance providers. The committee develops recommendations, but its members do not personally engage in public advocacy. Austin is a close friend of several of the other physicians on the committee, though as a lawyer he has never represented any of them. In his law practice, Austin represents BHC Company, a health insurance provider. BHC has been sued in a class action by hundreds of physicians, including some of Austin s friends, for unreasonable delay, and denial and reduction of reimbursements for medical services. Austin initially advised BHC that he was not confident it had a defense to the lawsuit. After further research, however, Austin discovered that a stated policy of the health care law is the containment of health care costs. He advised BHC that he could plausibly argue that reimbursements to physicians may legally be limited to avoid a dramatic increase in the health insurance premiums of patients. He explained that he would argue for a modification of existing decisional law to allow such a result based on public policy. When Bertha, counsel for the class of physicians, heard the defense Austin planned to assert in the lawsuit, she wrote him a letter stating that if he presented that defense she would report him to the state bar for engaging in a conflict of interest. 1. What, if any, ethical violations has Austin committed as an attorney? Discuss. 2. What, if any, ethical violations has Bertha committed? Discuss. Answer according to California law and ABA authorities. July 2011 Professional Responsibility Page 1 of 6 One-Timers

2 July 2011 Critical Breakdown One-Timers Bar Review Course Question 4 Professional Responsibility Austin had been a practicing physician before he became a lawyer. Although he no longer practices medicine, he serves on a local medical association committee that works to further the rights of physicians to be compensated fairly by health insurance providers. The committee develops recommendations, but its members do not personally engage in public advocacy. Austin is a close friend of several of the other physicians on the committee, though as a lawyer he has never represented any of them. (Austin has no duty to any former clients) In his law practice, Austin represents BHC Company, a health insurance provider. BHC has been sued in a class action by hundreds of physicians, including some of Austin s friends, for unreasonable delay, and denial and reduction of reimbursements for medical services. (Austin has a professional and personal relationship with the committee and this may substantially affect his decision making) Austin initially advised BHC that he was not confident it had a defense to the lawsuit. After further research, however, Austin discovered that a stated policy of the health care law is the containment of health care costs. (Austin is employing the requisite knowledge and skill in this matter) He advised BHC that he could plausibly argue that reimbursements to physicians may legally be limited to avoid a dramatic increase in the health insurance premiums of patients. (There doesn t seem to be any conflict of interest because there doesn t appear to be any risk that Austin s representation of BHC will be materially limited by his personal interests and friendship with the other physicians) He explained that he would argue for a modification of existing decisional law to allow such a result based on public policy. (This is a good faith argument for a modification or reversal of existing law) When Bertha, counsel for the class of physicians, heard the defense Austin planned to assert in the lawsuit, she wrote him a letter stating that if he presented that defense she would report him to the state bar (It seems that Bertha is threatening to bring administrative or disciplinary charges to obtain an advantage in this civil dispute) for engaging in a conflict of interest. (Bertha may have a duty to report Austin s professional misconduct, if any, if it is a serious offense) 1. What, if any, ethical violations has Austin committed as an attorney? Discuss. 2. What, if any, ethical violations has Bertha committed? Discuss. Answer according to California law and ABA authorities. July 2011 Professional Responsibility Page 2 of 6 One-Timers

3 A Glance into the Realm of this Question This professional responsibility essay was not as easy as it may have first appeared. The odd thing about the facts was that Austin has not likely committed any ethical violations. Customarily in a professional responsibility essay, the lawyer has committed several violations. But this essay was unique in the sense that it was quite the opposite. A close reading of the facts and strong analysis was required. While conclusions rarely matter, it is tough to find any violations in call 1. Model Answer by One-Timers 1. What, if any, ethical violations has Austin committed as an attorney? It is likely that Austin has not committed any ethical violations as an attorney. While this is close call, the better analysis seems to be that Austin has lived up to his ethical obligations to the profession. Conflict of Interest - Avoiding the Representation of Adverse Interests Under Rule 1.7 of the Model Rules of Professional Conduct, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if there is a significant risk that the representation will be materially limited by the lawyer s responsibilities to a third person or by a personal interest of the lawyer. Notwithstanding the existence of a concurrent conflict of interest, a lawyer may represent a client if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and each affected client gives informed consent, confirmed in writing. Loyalty and independent judgment are essential elements in the lawyer s relationship to a client. Concurrent conflicts of interest can arise from the lawyer s own interests. Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer s other responsibilities or interests. Official Comments 1 and 8. At first glance the facts give the impression that Austin s own interests will have an adverse effect on his representation of BHC Company. However, Austin has been able to give the client detached and competent legal advice. At no time has Austin s representation of BHC been materially limited by his responsibilities to the committee or by the personal interests of him and his close physician friends. Any potential conflict has not materially interfered with Austin s independent professional judgment in considering all possible courses of action that reasonably should be pursued on behalf of BHC. In fact, Austin s research revealed a public policy argument that could change existing law in support of a plausible defense. This indicates that Austin is zealously and intelligently representing his client. Austin s loyalty and independent judgment to BHC has not been compromised by his service to the local medical association committee. Consequently, there is no concurrent conflict based on Austin s own responsibilities or interests and he need not seek informed written consent from any party. Thus, no violation of the rules has occurred. July 2011 Professional Responsibility Page 3 of 6 One-Timers

4 Meritorious Claims and Contentions Under Rule 3.1 of the Model Rules of Professional Conduct, a lawyer shall not bring or defend a proceeding, or assert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. An advocate has a duty to use legal procedure for the fullest benefit of the client s cause. The law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law s ambiguities and potential for change. What is required of lawyers is that they inform themselves about the applicable law and determine that they can make good faith arguments in support of their clients positions. Official Comments 1 and 2. Similarly, Rule 1.2(d) provides that a lawyer may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Here, Austin discovered that a stated policy of the health care law is the containment of health care costs. He advised BHC that he could plausibly argue that reimbursements to physicians may legally be limited to avoid a dramatic increase in the health insurance premiums of patients. He explained that he would argue for a modification of existing decisional law to allow such a result based on public policy. An argument based on public policy certainly meets the standard of bringing a good faith argument for an extension or modification of existing law. The defense is not frivolous. Austin is doing all he can to fully benefit his client s cause. He is striving for a change in the law and can make a good faith argument in support of his client s position. For that reason, Austin did not commit an ethical violation in pursuing this course of conduct. Candor Toward the Tribunal Under Rule 3.3(a)(2) of the Model Rules of Professional Conduct, a lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. A lawyer is not required to make a disinterested description of the law, but must recognize the existence of pertinent legal authorities. As to the good faith public policy argument above, Austin is required to disclose to the court any directly adverse law in California that has not been disclosed by the opposing party. Absent any evidence of misconduct, Austin has not yet violated this provision. Duty of Competence Model Rule 1.1 provides that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Some important legal skills, such as the analysis of precedent is required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. Official Comments 2 and 4. July 2011 Professional Responsibility Page 4 of 6 One-Timers

5 Here, Austin has acted with the required competence the rules require. His inquiry into and analysis of the factual and legal elements of this case met the standards of a competent practitioner. Austin is providing adequate representation through necessary study in that he did some research and discovered that he could argue for a modification of existing decisional law based on public policy. As a result, it looks as if Austin will be adequately prepared to handle the matter. Austin has met and exceeded his duty of competence. 2. What ethical violations has Bertha committed? It is debatable whether Bertha has committed any ethical violations. The concern being whether she threatened administrative or disciplinary charges in violation of the rules. Threatening Criminal, Administrative, or Disciplinary Charges Under Rule of the California Rules of Professional Conduct, a member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. On these facts, Bertha wrote Austin and stated that if he planned to assert a certain defense she would report him to the state bar for engaging in a conflict of interest. While it is not certain, it does appear that Bertha is attempting to threaten to bring disciplinary charges against Austin in hopes of gaining an advantage in this civil dispute by eliminating a viable defense. If that is the case then Bertha could be subject to discipline. Maintaining the Integrity of the Profession - Reporting Professional Misconduct Under Rule 8.3(a) of the Model Rules of Professional Conduct, a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term substantial refers to the seriousness of the possible offense. Official Comments 1 and 3. California on the other hand requires the lawyer to report himself to the State Bar. California Business and Professions Code 6068 provides that it is the duty of an attorney to report to the agency charged with attorney discipline, in writing, within 30 days of the time the attorney has knowledge of any number of possible situations not relevant here. In this case, Bertha wrote Austin a letter stating that if he presented the defense that he planned to assert, she would report him to the state bar for engaging in a conflict of interest. However, it is questionable whether Austin has even violated any rules with respect to such a conflict. More importantly, Austin s conduct is not so egregious that members of the profession would find it to be reprehensible. Austin s committee membership and representation of a health insurance provider does not raise a substantial question about his honesty, truthworthiness, or fitness to practice law. Therefore, Bertha should exercise discretion and judgment and should not be subject to discipline for failing to report Austin s conflict, if any. Topics Tested: I.A., I.G., III.A., III.D., VIII.C. July 2011 Professional Responsibility Page 5 of 6 One-Timers

6 SCORING by One-Timers Organization and structure: Following the order of the calls of the question and numbering according to how the examiners furnish it. Answering each call specifically and addressing each issue within it by IRAC ing. Making logical coherent arguments supported by the law and facts. 9% 1. What, if any, ethical violations has Austin committed as an attorney? 62% It is likely that Austin has not committed any ethical violations as an attorney. Avoiding the Representation of Adverse Interests - Conflict of Interest of Current Clients Meritorious Claims and Contentions Candor Toward the Tribunal Duty of Competence 2. What ethical violations has Bertha committed? 29% It is debatable whether Bertha has committed any ethical violations. The issue being whether she threatened administrative or disciplinary charges in violation of the rules. Threatening Criminal, Administrative, or Disciplinary Charges Maintaining the Integrity of the Profession - Reporting Professional Misconduct This essay was written for exclusive use only by Jason Tolerico (One-Timers Personal Bar Review Course ) and may not be transmitted, edited, or used for any commercial or any other purpose without the express written signed consent of Jason Tolerico. You may also find this or similar essays at To submit any comments, questions, corrections, or suggestions - Please direct them to Any critique, feedback or additions to this essay are welcome. Your opinion is valued and respected. Thank you for your interest and best of luck on the California bar exam. All rights reserved 2011 July 2011 Professional Responsibility Page 6 of 6 One-Timers

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