STATE BAR OF MICHIGAN PROFESSIONALISM IN ACTION PROGRAM ... He
gets exasperated a few times during his ... you that he just doesn't have any more
time he can “waste” on this case. ... Now, you want to sit here and talk to me, fine.
STATE BAR OF MICHIGAN PROFESSIONALISM IN ACTION PROGRAM UNIVERSITY OF MICHIGAN LAW SCHOOL Problems for Discussion
Problem 1 (Duties to the Public and Profession) You are a new staff lawyer at a local legal services organization in Ann Arbor, Michigan. On your assigned day for intake, Rudy, a young African-American man, comes to your office seeking help and possible representation. He explains that he was fired from his job as a computer programmer for a small start-up company that specializes in educational software. He claims that he was let go without notice because of a dispute between himself and his boss’ girlfriend. He hands you a copy of the employment contract and says that the termination was in violation of the agreement. Rudy is a bit high strung. He gets exasperated a few times during his story, but he seems very credible and well educated. In fact, Rudy is not like most of your clients. He had a decent paying job and what seemed to be a relatively stable life before he was fired three months ago. Rudy explains that he is homeless because he was unable to pay his rent for two months. He has exhausted his savings and has no relatives that can help him. He is now staying in a shelter. Unfortunately, your caseload is full and you cannot take on any new matters. Anyway, this is outside of your expertise. You specialize in landlord/tenant litigation and public benefits. After giving the contract a closer read, you learn that Rudy’s salary is based on a rather complicated compensation structure, partially dependant on company sales and his productivity. He tells you that on average he earns about $3,000 per month after taxes, or an annual income of about $42,000. It appears that Rudy was entitled to notice before termination and if he’s fired, it must be for cause. It seems to you that Rudy may be entitled to compensation. Since you cannot take this case, you decide to contact one of the lawyers at Hardaway, Robinson & Burke, a large downtown firm that sometimes takes pro bono cases from your organization. You ask Rudy to come back the next day. Mark, a junior associate from Hardaway, Robinson & Burke agrees to take the case. When Rudy returns you give him Mark’s contact information and let him know that you have arranged a meeting and that he should follow up. Two weeks later you receive a call from Mark. He says that he’s having a difficult time with “managing” Rudy. Apparently, Rudy’s employer offered to settle the case for $15,000 but Rudy refused the offer. To make matters worse, he tells you that Rudy often shows up at his office unannounced and without an appointment. If Mark is busy, Rudy just waits in the lobby 1
with all of his “stuff” piled in a shopping cart. He sometimes smells like he hasn’t bathed in days. Mark tells you that, “the offer is good enough and Rudy should just take it.” He admits to you that he just doesn’t have any more time he can “waste” on this case. The managing partner in his firm has assigned him another case. More time with Rudy means that he would further neglect the pressing matter that needs tending to with the other paying client. Frankly, he confides that he needs the additional billables. Making a counter-offer and then waiting for a response will take at least another two weeks, especially if Rudy continues to turn them down. He wants you to speak to Rudy and persuade him that he should take the money. He thinks you can be more persuasive since you are accustomed to dealing with “you know, people like him.” Besides, Mark says that Rudy is probably headed your way because they just got into a really big argument. Finally, he tells you that if Rudy doesn’t take the offer, he’s going to find a way to terminate representation. You hang up the phone and think for a second. The $15,000 does sound a bit low and it’s just an initial offer. Rudy might be able to get more money if they hold out. On the other hand, you know that Hardaway, Robinson & Burke’s standard engagement agreement with its pro bono clients limits representation to pre-trial matters. They will not represent Rudy in arbitration, should the negotiations break down. But you’re worried. Judging from the way Mark sounds, Rudy may soon get fired as a client before things ever get to arbitration. Just then, your secretary calls you and says that Rudy is waiting in the lobby. Questions: a. b. c. d. e.
Should you persuade Rudy to take the offer? Can Mark “fire” Rudy as a client? Are there different standards for representing pro bono clients? What are Mark’s obligations to Rudy? What are your obligations to Rudy?
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Problem 2 (Duty of Civility) QVC, Network, Inc. is interested in acquiring Paramount Communications, Inc., and has made a tender offer to Paramount’s shareholders. Viacom, Inc. is also interested in acquiring Paramount, and has also made a tender offer. But QVC believes that Viacom has done more than that. In fact, QVC claims that its efforts to acquire Paramount are being frustrated by illegal defensive measures undertaken by Paramount and Viacom, and QVC has sued both companies to prevent a Paramount-Viacom merger. During the course of the litigation, Wilma Johnston, an attorney for QVC, scheduled the deposition of Hugh Liedtke, one of Paramount’s directors. Liedtke was personally represented in the deposition by attorney Joseph Jamail. Paramount was represented in the matter by attorney Peter Thomas. Johnston began to ask Liedtke some questions about a document, and the following occurred: MS. JOHNSTON: Do you have any idea why Mr. Oresman was calling that material to your attention? MR. JAMAIL: Don’t answer that. How would he know what was going on in Mr. Oresman’s mind? Don’t answer it. Go on to your next question. MS. JOHNSTON: No, Joe— MR. JAMAIL: He’s not going to answer that. Certify it. I’m going to shut it down if you don’t go to your next question. MS. JOHNSTON: No. Joe, Joe— MR. JAMAIL: Don’t “Joe” me, missy. You can ask some questions, but get off of that. I’m tired of you. You could gag a maggot off a meat wagon. Now, we’ve helped you every way we can. MS. JOHNSTON: Let’s just take it easy. MR. JAMAIL: No, we’re not going to take it easy. Get done with this. MS. JOHNSTON: We will go on to the next question. MR. JAMAIL: Do it now. MS. JOHNSTON: We will go on to the next question. We’re not trying to excite anyone. MR. JAMAIL: Come on. Quit talking. Ask the question. Nobody wants to socialize with you. MS. JOHNSTON: I’m not trying to socialize. We’ll go on to another question. We’re continuing the deposition. MR. JAMAIL: Well, go on and shut up. MS. JOHNSTON: Are you finished? MR. JAMAIL: Yeah, youMS. JOHNSTON: Are you finished? MR. JAMAIL: I may be and you may be. Now, you want to sit here and talk to me, fine. This deposition is going to be over with. You don’t know what you’re doing. Obviously someone wrote out a long outline of stuff for you to ask. You have no concept of what you’re doing. Now, I’ve tolerated you for three hours. If you’ve got another question, get on with it. This is going to stop one hour from now, period. Go. MS. JOHNSTON: Are you finished? MR. THOMAS: Come on, Ms. Johnston, move it. 3
MS. JOHNSTON: I don’t need this kind of abuse. MR. THOMAS: Then just ask the next question. MS. JOHNSTON: All right. To try to move forward, Mr. Liedtke, ... I’ll show you what’s been marked as Liedtke 14 and it is a cover letter dated October 29 from Steven Cohen of Wachtell, Lipton, Rosen & Katz including QVC’s Amendment Number 1 to its Schedule 14D-l, and my question— A. No. MS. JOHNSTON: --to you, sir, is whether you’ve seen that? A. No. Look, I don’t know what your intent in asking all these questions is, but, my God, I am not going to play boy lawyer. MS. JOHNSTON: Mr. Liedtke— A. Okay. Go ahead and ask your question. MS. JOHNSTON: --I’m trying to move forward in this deposition that we are entitled to take. I’m trying to streamline it. MR. JAMAIL: Come on with your next question. Don’t even talk with this witness. MS. JOHNSTON: I’m trying to move forward with it. MR. JAMAIL: You understand me? Don’t talk to this witness except by question. Did you hear me? MS. JOHNSTON: I heard you fine. MR. JAMAIL: You fee makers think you can come here and sit in somebody’s office, get your meter running, get your full day’s fee by asking stupid questions. Let’s go with it.
Questions: a. What does it seem to you that Mr. Jamail was trying to do? Was he successful? b. What do you think about how Ms. Johnston attempted to deal with the situation? Did she succeed? c. Does success in litigation require attorneys to be obnoxious? d. Do obnoxious lawyers make the professional and personal lives of other lawyers less pleasant? If so, does that matter? e. Does an obnoxious lawyer lose anything as a consequence of his or her obnoxiousness?
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Problem Three (Fair Billing) You have agreed to draft a will and a complicated estate plan for a client. You quote your client a flat $1,500 fee for the whole “package” instead of an hourly rate. In arriving at your fee you took into account several factors, but your primary consideration was that it would probably take you ten hours to do the work. The client pays you in full in advance. Just as you are about to get started, you strike up a conversation with another lawyer in your office who has just finished putting together a will and estate plan for one of her clients who, coincidentally, is in nearly the same position as your client. This discovery means that you will be able to use the other client’s documents as a form. Consequently, your work on this case will now only take a couple of hours at most to complete. Questions: a. Do you tell your client about this development? b. Do you owe the client any kind of refund? If so, how much should you give back? c. Discuss the use of engagement/retention letters and what should be put in a flat fee retention letter.
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