CRIMINAL TRIAL PROFESSIONAL
RESPONSIBILITY EXAM QUESTIONS
AND ANSWERS
Maritrans v. Pepper Hamilton & Scheetz (Pa. 1992) - ANSWER-• Messina
represented Merritran in labor law for over ten years
• Messina takes on four competitor companies of Merritran
• What was wrong with this
o Messina wasn't candid with his clients
o Now Merritran allows Messina to continue to represent these four competitors and
they say they will keep them on as long as they don't represent any more competitor
companies and specifically not to represent Buchard
• What happens is that Pepper recruits another outside attorney that actually
represents Buchard
• The lower court is reversed on the principle that the Rules of Professional Conduct
are simply a codification of common law
Mylan, N.V. v. Kirkland & Ellis, LLP - ANSWER--kirkland ellis helped represent
subsidiaries of mylan (parent company)
-kirland ellis helped teva in hostile takeover of mylan
-mylan brought suit for an injunction to stop Kirkland ellis
-kirkland ellis tried to say that mylan was different
-ultimately decided that injunction should be given because inherent conflict of
interest because the parties were adverse to each other
-kirkland ellis was enjoined from being able to represent teva even though
technically mylan is not a former client (it never represented it) but can be a third
party
anyalisis:
1. Are the parties the same? no
2. Is there some relationship between the parties you represent and the parties at
issue? Yes.
-prospective waiver: a waiver in the future
-reference to Maritrans: they also mention stockdon v ford (confidentiality. Attorney
client privilege). Duty of loyalty. Maritrans remains cited repeatedly in many contexts.
-takeaways:
1. a law firm can be disqualified from representing a party even before there is
pending litigation
2. hiding behind the entity theory is a trap for the unweary. 8 x 8 = 64. Even though
they might not be a client, they are a 3rd party. They are not a stranger. They have a
financial relationship. Don't take a narrow view of clients. Note their relationship
3. the fact that the word "substantially" was deleted in the engagement letter and
leaving the word related made it much more restricted for the law firm
4. the fact that the law firm set up a screen even though it believed there was no
conflict provided some indication that the law firm though there was a conflict
5. critical to have a full conversation about the advance waiver before it's
implemented
, North Carolina State Bar v. Michael B. Nifong ("The Duke Lacrosse Rape Case") -
ANSWER-
Ohralik v. Ohio State Bar Association (1978) - ANSWER-ohio attorney approached 2
18 year olds involved in a car crash. Lawyer offered to represent her while in hospital
bed and other he found in person as well and got her to orally agree. Hospital girl
had her sign a contingent fee arrangement. Recorded on a hidden tape recorder.
supreme court found that en personum (in person) solicitation is a bad thing because
it is suspect—you can talk them into doing anything. He was a classic ambulance
chaser. Not entitled to first amendment protection.
Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) -
ANSWER--lawyer's letter head stated that he had a certain certificate and licensed in
3 states.
-supreme court held he had the right to do this under commercial speech doctrine.
Was not untruthful or misleading because he did have these certifications and
licenses. State did not have a strong enough justification for a ban. Truthful objective
data that could be useful to consumers, the state needs a stronger justification for
ban
Penda Corp. v. STK, LLC (E.D. Pa. 2004) - ANSWER-• The plaintiff in these
consolidated patent infringement cases, Penda Corporation ("Penda"), brings suit
against STK, L.L.C. ("STK"), in civil action No. 03-5578, and against Rick's Auto
Repair ("Rick's") and CAR-MIC Enterprises, Inc. ("CAR- MIC"), in civil action No. 03-
6240. STK and CAR- MIC have filed three motions for sanctions against Penda. In
two motions, STK and CAR-MIC seek sanctions for alleged violations of Rule 11 of
the Federal Rules of Civil Procedure. In the third motion, STK has moved for
sanctions for violations of Rules 4.2 and 8.4 of the Pennsylvania Rules of
Professional Conduct for alleged ex parte communications with a person known to
be represented by counsel. For the reasons set forth below, the Court will grant
STK's Rule 11 motion, grant in part and deny in part STK's motion for sanctions for
violations of the Rules of Professional Conduct, and deny CAR-MIC's motion.
• In its sanction motion based on violations of the Rules of Professional Conduct,
STK argues that the communication to Dan Kuritz violates: (1) Rule 4.2 because it
was ex parte and concerned matters in which Penda knew STK to be represented;
and (2) Rule 8.4(c), because neither Kuritz nor Ray were told that they were
speaking to an agent of an attorney for litigation purposes. In its Rule 11 motion,
STK argues that there was no basis in fact to support Penda's claim, made in its
opposition to transfer, that Rick's and Stylecraft had sold the product in Philadelphia.
STK also argues that Penda, relying on its baseless claim that the retailers sold the
product, filed Penda II merely to defeat transfer. In its Rule 11 motion, CAR-MIC
argues that the amended complaint in Penda II is frivolous because it contains false
factual allegations regarding the co-defendant, Rick's.
• Rule 4.2 provides in full: In representing a client,
In Re: Primus (1978) - ANSWER-lawyer for a for profit organization but also an
officer at ACLU. Businessman requested meeting with the lawyer and also a woman
RESPONSIBILITY EXAM QUESTIONS
AND ANSWERS
Maritrans v. Pepper Hamilton & Scheetz (Pa. 1992) - ANSWER-• Messina
represented Merritran in labor law for over ten years
• Messina takes on four competitor companies of Merritran
• What was wrong with this
o Messina wasn't candid with his clients
o Now Merritran allows Messina to continue to represent these four competitors and
they say they will keep them on as long as they don't represent any more competitor
companies and specifically not to represent Buchard
• What happens is that Pepper recruits another outside attorney that actually
represents Buchard
• The lower court is reversed on the principle that the Rules of Professional Conduct
are simply a codification of common law
Mylan, N.V. v. Kirkland & Ellis, LLP - ANSWER--kirkland ellis helped represent
subsidiaries of mylan (parent company)
-kirland ellis helped teva in hostile takeover of mylan
-mylan brought suit for an injunction to stop Kirkland ellis
-kirkland ellis tried to say that mylan was different
-ultimately decided that injunction should be given because inherent conflict of
interest because the parties were adverse to each other
-kirkland ellis was enjoined from being able to represent teva even though
technically mylan is not a former client (it never represented it) but can be a third
party
anyalisis:
1. Are the parties the same? no
2. Is there some relationship between the parties you represent and the parties at
issue? Yes.
-prospective waiver: a waiver in the future
-reference to Maritrans: they also mention stockdon v ford (confidentiality. Attorney
client privilege). Duty of loyalty. Maritrans remains cited repeatedly in many contexts.
-takeaways:
1. a law firm can be disqualified from representing a party even before there is
pending litigation
2. hiding behind the entity theory is a trap for the unweary. 8 x 8 = 64. Even though
they might not be a client, they are a 3rd party. They are not a stranger. They have a
financial relationship. Don't take a narrow view of clients. Note their relationship
3. the fact that the word "substantially" was deleted in the engagement letter and
leaving the word related made it much more restricted for the law firm
4. the fact that the law firm set up a screen even though it believed there was no
conflict provided some indication that the law firm though there was a conflict
5. critical to have a full conversation about the advance waiver before it's
implemented
, North Carolina State Bar v. Michael B. Nifong ("The Duke Lacrosse Rape Case") -
ANSWER-
Ohralik v. Ohio State Bar Association (1978) - ANSWER-ohio attorney approached 2
18 year olds involved in a car crash. Lawyer offered to represent her while in hospital
bed and other he found in person as well and got her to orally agree. Hospital girl
had her sign a contingent fee arrangement. Recorded on a hidden tape recorder.
supreme court found that en personum (in person) solicitation is a bad thing because
it is suspect—you can talk them into doing anything. He was a classic ambulance
chaser. Not entitled to first amendment protection.
Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) -
ANSWER--lawyer's letter head stated that he had a certain certificate and licensed in
3 states.
-supreme court held he had the right to do this under commercial speech doctrine.
Was not untruthful or misleading because he did have these certifications and
licenses. State did not have a strong enough justification for a ban. Truthful objective
data that could be useful to consumers, the state needs a stronger justification for
ban
Penda Corp. v. STK, LLC (E.D. Pa. 2004) - ANSWER-• The plaintiff in these
consolidated patent infringement cases, Penda Corporation ("Penda"), brings suit
against STK, L.L.C. ("STK"), in civil action No. 03-5578, and against Rick's Auto
Repair ("Rick's") and CAR-MIC Enterprises, Inc. ("CAR- MIC"), in civil action No. 03-
6240. STK and CAR- MIC have filed three motions for sanctions against Penda. In
two motions, STK and CAR-MIC seek sanctions for alleged violations of Rule 11 of
the Federal Rules of Civil Procedure. In the third motion, STK has moved for
sanctions for violations of Rules 4.2 and 8.4 of the Pennsylvania Rules of
Professional Conduct for alleged ex parte communications with a person known to
be represented by counsel. For the reasons set forth below, the Court will grant
STK's Rule 11 motion, grant in part and deny in part STK's motion for sanctions for
violations of the Rules of Professional Conduct, and deny CAR-MIC's motion.
• In its sanction motion based on violations of the Rules of Professional Conduct,
STK argues that the communication to Dan Kuritz violates: (1) Rule 4.2 because it
was ex parte and concerned matters in which Penda knew STK to be represented;
and (2) Rule 8.4(c), because neither Kuritz nor Ray were told that they were
speaking to an agent of an attorney for litigation purposes. In its Rule 11 motion,
STK argues that there was no basis in fact to support Penda's claim, made in its
opposition to transfer, that Rick's and Stylecraft had sold the product in Philadelphia.
STK also argues that Penda, relying on its baseless claim that the retailers sold the
product, filed Penda II merely to defeat transfer. In its Rule 11 motion, CAR-MIC
argues that the amended complaint in Penda II is frivolous because it contains false
factual allegations regarding the co-defendant, Rick's.
• Rule 4.2 provides in full: In representing a client,
In Re: Primus (1978) - ANSWER-lawyer for a for profit organization but also an
officer at ACLU. Businessman requested meeting with the lawyer and also a woman
