Question 5. After the trial, Attorney sent a $500 gift certificate to Doctor, with a note thanking her for recommending that Peter call him.

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1 Question 5 Attorney mailed a professional announcement to several local physicians, listing his name and address and his area of law practice as personal injury. Doctor received Attorney s announcement and recommended that her patient, Peter, call Attorney. Peter had become very ill; he thought the cause was breathing fumes from a chemical company near his home. Attorney agreed to represent Peter in a lawsuit against the chemical company. At Attorney s request, Doctor agreed to testify as an expert witness on Peter s behalf at the trial. Attorney advanced Doctor expert witness fees of $200 an hour for her time attending depositions, preparing for trial, and testifying. Attorney learned in discovery that numerous scientific studies had failed to find any medical risks from the chemical company s fumes. Doctor was nevertheless willing to testify, on the basis of her clinical experience, that the fumes had harmed Peter. Attorney did not know whether Doctor s testimony was true or false. He offered Doctor s testimony at trial, and Peter won a judgment. After the trial, Attorney sent a $500 gift certificate to Doctor, with a note thanking her for recommending that Peter call him. What, if any, ethical violations has Attorney committed? Discuss. Answer according to California and ABA authorities. February 2012 Professional Responsibility Page 1 of 6 One-Timers

2 February 2012 Critical Breakdown One-Timers Bar Review Course Question 5 Professional Responsibility Attorney mailed a professional announcement to several local physicians, (Every advertisement must include the name and address of the lawyer responsible for its content, and must state that it is an advertisement or include the words Advertising Material on the outside envelope and on the first page of the letter) listing his name and address and his area of law practice as personal injury. (A lawyer may communicate the fact that he practices in a particular area of law) Doctor received Attorney s announcement and recommended that her patient, Peter, call Attorney. Peter had become very ill; he thought the cause was breathing fumes from a chemical company near his home. Attorney agreed to represent Peter in a lawsuit against the chemical company. At Attorney s request, Doctor agreed to testify as an expert witness on Peter s behalf at the trial. Attorney advanced Doctor expert witness fees of $200 an hour for her time attending depositions, preparing for trial, and testifying. (A lawyer may advance the reasonable expenses for the services of an expert witness so long as payment is not contingent upon the outcome of the case) Attorney learned in discovery that numerous scientific studies had failed to find any medical risks from the chemical company s fumes. Doctor was nevertheless willing to testify, on the basis of her clinical experience, that the fumes had harmed Peter. (A lawyer must not knowingly offer false evidence) Attorney did not know whether Doctor s testimony was true or false. (A lawyer should resolve all doubts about the veracity of testimony in favor of the client) He offered Doctor s testimony at trial, and Peter won a judgment. (Attorney s conduct was proper) After the trial, Attorney sent a $500 gift certificate to Doctor, (A lawyer may not share legal fees with a non-lawyer) with a note thanking her for recommending that Peter call him. (A lawyer must not give anything of value to a person for recommending the lawyer s services) What, if any, ethical violations has Attorney committed? Discuss. Answer according to California and ABA authorities. February 2012 Professional Responsibility Page 2 of 6 One-Timers

3 A Discussion Worthy of Attention This interesting P.R. essay tested on some very common issues including advertising and solicitation, and sharing fees with a non-lawyer. Also, it includes some not so common issues such as paying the fees of an expert witness and giving something of value for recommending the lawyer s services. It was an essay of average difficulty. Model Answer by One-Timers What ethical violations has Attorney committed? Attorney may have committed an ethical violation when he: (1) mailed professional announcements to local physicians; (2) paid Doctor for testifying as an expert; (3) allowed Doctor to testify despite what Attorney learned in discovery; and (4) sent Doctor a $500 gift certificate for recommending his services. Each occurrence will be discussed in turn. Advertising The Supreme Court has found that under the First Amendment, lawyer advertisement is protected commercial speech. Therefore, a lawyer may advertise his services provided the communication is not false or misleading. An advertisement may be misleading if it contains an unverified claim or comparison or if it omits a fact necessary to make the statement considered as a whole not materially misleading. Moreover, every advertisement must include the name and address of the lawyer responsible for its content, and must state that it is an advertisement or include the words Advertising Material on the outside envelope and on the first page of the letter. The rules are pretty much the same in California, but California prohibits advertisements that (i) contain a guarantee or prediction; (ii) suggest a quick cash settlement; or (iii) state no fee without recovery unless it also expressly discloses whether or not the client will be liable for costs. Also, in California, a communication is presumed to be false or misleading if it is delivered to a potential client who is in the hospital or who is suffering from physical or mental stress. A copy of the advertisement must be kept for two years. In this case, Attorney mailed a professional announcement to several local physicians. This type of advertisement is protected commercial speech and does not appear to be false or misleading. Furthermore, the announcement included Attorney s name and address and that he practices personal injury law. This is proper as a lawyer may communicate the fact that he practices in a particular area of law. The only questionable aspect of the communication is whether it was properly labeled as Advertising Material which needed to appear on both the envelope and the first page of the announcement. If Attorney included these words on the advertisement, then his conduct was proper. If not, he committed an ethical violation. February 2012 Professional Responsibility Page 3 of 6 One-Timers

4 Solicitation States may ban in-person solicitation for profit unless the person contacted is a former client, a close friend, or a family member. Furthermore, a lawyer is prohibited from using a runner or capper to solicit business. A runner or capper is any person acting for consideration as an agent for the attorney. Hence, a lawyer cannot use another person to do something the lawyer himself cannot do. Here, Attorney is not soliciting clients but is advertising his services by mailing announcements to local physicians. Upon receiving Attorney s announcement, Doctor recommended that her patient call Attorney. It is unlikely that Doctor will be viewed as Attorney s agent. The facts state Doctor simply recommended that Peter call Attorney without any prior arrangement. Therefore, Attorney has not committed an ethical violation in this instance. Paying the Fees of an Expert Witness A lawyer may advance the reasonable expenses for the services of an expert witness so long as payment is not contingent upon the outcome of the case. Additionally, a lawyer may advance the costs and expenses of litigation, the repayment of which may be contingent on the outcome. On these facts, Doctor agreed to testify as an expert witness. Attorney advanced Doctor expert witness fees of $200 an hour for her time attending depositions, preparing for trial, and testifying. These are all legitimate reasons for Attorney to advance such expenses. Moreover, Attorney is not making payment contingent upon the outcome of the case. As a result, Attorney has not committed an ethical violation for this arrangement. Offering False Evidence A lawyer must not knowingly offer false evidence. This includes false testimony as well as falsified documents. The rationale for the rule is that such conduct undermines the integrity of the judicial process. Moreover, a lawyer may refuse to offer evidence that the lawyer reasonably believes is false. However, a lawyer should resolve all doubts about the veracity of testimony in favor of the client. In other words, even if the lawyer believes the testimony is false, the lawyer may still present it to the court. The ban against offering false evidence only applies if the lawyer knows that the evidence is false. Furthermore, if a lawyer knows that a client intends to testify falsely, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective, the lawyer must refuse to offer the false testimony. The rationale is that no person has the right to commit perjury. As a last resort, the lawyer may also seek withdrawal. In California, a lawyer may not refuse to offer the false testimony of a criminal defendant. If the defendant insists on testifying, the lawyer may allow the defendant to testify in a narrative fashion. In this case, Attorney learned in discovery that numerous scientific studies had failed to find any medical risks from the chemical company s fumes. Doctor was nevertheless willing to testify, on the basis of her clinical experience, that the fumes had harmed Peter. Attorney did not know whether Doctor s testimony was true or false. The question is whether Attorney s conduct was proper in offering Doctor s testimony at trial. The short answer is that Attorney did not commit an ethical violation. February 2012 Professional Responsibility Page 4 of 6 One-Timers

5 First, Attorney did not know whether Doctor s testimony was false. In fact, Attorney only had doubts as to the veracity of Doctor s findings. Thus, it was proper for Attorney to resolve this doubt in favor of Peter s claim given that an attorney has a duty to zealously represent his client and should take whatever lawful and ethical measures are required to support the client s position. Second, it is not uncommon for experts to have a difference of opinion. Opposing counsel may challenge Doctor s findings on cross-examination against the other studies that had failed to find any connection from the chemical company s fumes. It will then be up to the jury to decide what to believe. This is the basis of our adversarial system. Therefore, Attorney acted properly in allowing Doctor to testify because Attorney did not know for sure whether the testimony was true or false. Fee Splitting with a Non-Lawyer As a general rule, a lawyer may not share legal fees with a person who is not a lawyer. The rationale for the rule is to protect the lawyer s professional independence of judgment. However, a lawyer may share legal fees with another attorney if: (1) the fee is in proportion to the services performed by each lawyer; (2) after full disclosure, the client consents in writing; and (3) the total fee is reasonable. California has no proportionality rule when two lawyers share a fee. In addition, the total fee charged must not increase because of the sharing of fees, and the total fee must not be unconscionable. Here, an argument can be made that Attorney shared Peter s legal fees with Doctor. The facts state that after the trial, Attorney sent a $500 gift certificate to Doctor. Under both ABA and California authorities, this is improper since a lawyer may not share legal fees with a non-lawyer. However, if the money came out of Attorney s own pocket, then he did not violate this rule. Recommending a Lawyer s Services A lawyer must not give anything of value to a person for recommending the lawyer s services except that a lawyer may enter into a reciprocal referral agreement with another professional if (i) the agreement is not exclusive, and (ii) the client is informed of the referral agreement. In short, lawyers are not permitted to pay others for recommending the lawyer s services. In this instance, Attorney sent Doctor a $500 gift certificate, with a note thanking her for recommending that Peter call him. This conduct appears to be improper because a lawyer who receives a referral must not pay anything solely for the referral. There is nothing in the facts to suggest that Doctor was owed any money for when she testified as an expert witness. As such, Attorney violated this ethical rule by giving Doctor $500 for recommending his services. February 2012 Professional Responsibility Page 5 of 6 One-Timers

6 SCORING by One-Timers Addressing each ethical violation in chronological order and giving a strong rule statement followed by a fluid discussion. 5% What ethical violations has Attorney committed? Advertising 25% Solicitation 10% Paying the Fees of an Expert Witness 10% Offering False Evidence 20% Fee Splitting with a Non-Lawyer 15% Recommending a Lawyer s Services 15% February 2012 Professional Responsibility Page 6 of 6 One-Timers

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