CRIMINAL TRIAL PR CASES EXAM
QUESTIONS WITH COMPLETE
ANSWERS
McCoy v. Louisiana Oral Argument - ANSWER-Facts: Death penalty case. Client
wants to give an alibi defense. Lawyer does not think alibi defense is good. Thinks
will lose all credibility with jury if use it. Under Jones v. Barnes, lawyer gets to decide
strategy/arguments. Lawyer followed Jones v. Barnes (did not follow client's advice).
Client sentenced to death.
Lawyer's position:
I did not concede first degree murder. I conceded he killed someone, which was an
element of the defense. I did not concede the entire crime. This was a means to
meet client's objective (i.e., not be killed). But I get to choose means to achieve
objective. Thus, I followed Jones.
This argument was kind of like robbery --> can say committed robbery, but did not
intend force (just one element)?
McCoy:
Was the objective "I don't want to admit that I killed someone"? Or was the objective
I don't want to be executed? Have to follow client's objective.
Holding: Defendant gets a new trial
Found this was different than Jones v. Barnes. Client has a right to talk with attorney
and get to decide these things. This case has pushed the limits, and now
questionable where Jones v. Barnes stands in light of McCoy
State v. Branham - ANSWER-Facts: Friend getting divorce. Friend went to his friend
lawyer and said he was going to kill his wife during a social visit. Prior to making this
statement, friend asked if he was his attorney, and attorney responded yes. He had
represented him previously in a negligence case and other matters. But as friend
recounted plan to kill his wife, attorney continually made remarks like "you're crazy."
In pretrial motion, client raised A/C privilege.
Takeaway: Just because you are already an attorney for a client does not mean
everything they say is privileged. He wasn't looking for legal advice and he wasn't
acting as attorney at the time
Met prongs 1, 2, and 3
Met prong 2 (made between privileged persons) because friend said he was his
lawyer, which formed A/C relationship; he was also attorney on other cases
Issue = prong 4 = for the purpose of obtaining or providing legal assistance to the
client
Holding: Information not protected under A/C privilege
,Upjohn v. United States - ANSWER-Facts: Company thinks foreign subsidiaries
making illegal payments to foreign governments. General Counsel consults with
outside counsel. Outside counsel and General Counsel sent out
letters/questionnaires to all foreign general and area managers, asking whether they
were aware of illegal payments. Mangers could consult with lower ranked employees
but were to keep information confidential. Eventually disclose on 8-k that there were
questionable payments. IRS wants questionnaires.
Question: Who falls under the attorney-client privilege for corporation?
Control group test? Court rejects this test!!!
Person who is in the position to make a decision for the corporation, you are in the
control group and the attorney-client privilege applies. It defeats the purpose of the
privilege by discouraging the communication of relevant information by employees of
the client to attorneys seeking to render legal advice to the client corporation
Court: They are going to use a case by case test rather than a bright line rule
Can only use the kind of communications in this case as a guideline
No clear rule to pull from the case
Facts here:
Communications made by company attorney to employees
Attorney acting as attorney
At direction of corporate superiors
In order to secure legal advice
Employees information needed for legal advice
Within scope of employees' duties
Employees are told they are being asked questions so the lawyers could give legal
advice
Key points:
Doesn't protect disclosure of underlying facts, rejected control group test, importance
of clarity
"Upjohn Warning"-->you have to tell the employees that the company will decide if
this conversation is going to be privileged because the attorney represents the
corporation, not the employees and employees can seek their own counsel
Work Product issue
Lynch v. Hamrick - ANSWER-Mom and daughter talk to attorney in the same room
about a deed. Mom was the client, not both her and the daughter. Later, son argued
that his sister influenced mom in writing the deed. Filed suit. Attorney called as
witness at trial.
Held: Prong 3 (in confidence) violated because daughter was in the room, so
communications were not privileged
Never privileged: info when daughter was present
Privileged but lost by of waiver: chronology of events
, Allison v. State - ANSWER-Attorney entered his appearance and then proceeded to
do nothing. He perfected his client's appeal but then told his client he needs to hire
someone else. Never filed a motion for leave to withdraw
Court said he wholly discharged his duties to his client, but defaulted in his
obligations to this court
Court does NOT want the lesson to be that you shouldn't perfect the appeal (Garza
v. Idaho when attorney refused to perfect appeal)
Court just wants him to ask for permission
Held: You cannot unilaterally withdraw
Conway v. Brooklyn Union Gas - ANSWER-Facts: Employment discrimination case.
Employee filed suit. Lawyer settled suit. Later, client says this is not the settlement
that she wanted. Client said she didn't want to settle a matter
Under Rule 1.2 you have to follow client's decision whether to settle. So, why did the
court say she had to settle?
Attorney was acting as her agent. As her agent, he could bind her. She never told
the court that the lawyer didn't have power to represent/bind her
She was writing separate letters on her pro se actions, but never denied her lawyer's
power
Attorney has implied power to bind clients to settlement deals, plea deals, etc.
Client decided objective, attorney carried out means
Problem: oral agreement. Get it in writing
Jones v. Barnes - ANSWER-Facts: Defendant wants lots of issues raised in briefs,
but attorney does not want all of these issues in brief based on past lawyer
experience.
Question: Does defense counsel have a constitutional duty to raise every non-
frivolous issue requested by the defendant?
Held: attorneys know which arguments are better to make, you can't make every
argument because it takes away from the best arguments. Defense does not have to
raise every non-frivolous issue
Dissent: they have ASSISTANCE of counsel and should be able to make the
decisions, indigent clients have a distrust of attorneys, right to client autonomy in 5th
and 6th amendments
U.S. v. Kaczynski - ANSWER-When you are dealing with someone with a disability,
you assume a normal attorney client relationship
Talk to them normally first and see if they are able to participate in their
representation
QUESTIONS WITH COMPLETE
ANSWERS
McCoy v. Louisiana Oral Argument - ANSWER-Facts: Death penalty case. Client
wants to give an alibi defense. Lawyer does not think alibi defense is good. Thinks
will lose all credibility with jury if use it. Under Jones v. Barnes, lawyer gets to decide
strategy/arguments. Lawyer followed Jones v. Barnes (did not follow client's advice).
Client sentenced to death.
Lawyer's position:
I did not concede first degree murder. I conceded he killed someone, which was an
element of the defense. I did not concede the entire crime. This was a means to
meet client's objective (i.e., not be killed). But I get to choose means to achieve
objective. Thus, I followed Jones.
This argument was kind of like robbery --> can say committed robbery, but did not
intend force (just one element)?
McCoy:
Was the objective "I don't want to admit that I killed someone"? Or was the objective
I don't want to be executed? Have to follow client's objective.
Holding: Defendant gets a new trial
Found this was different than Jones v. Barnes. Client has a right to talk with attorney
and get to decide these things. This case has pushed the limits, and now
questionable where Jones v. Barnes stands in light of McCoy
State v. Branham - ANSWER-Facts: Friend getting divorce. Friend went to his friend
lawyer and said he was going to kill his wife during a social visit. Prior to making this
statement, friend asked if he was his attorney, and attorney responded yes. He had
represented him previously in a negligence case and other matters. But as friend
recounted plan to kill his wife, attorney continually made remarks like "you're crazy."
In pretrial motion, client raised A/C privilege.
Takeaway: Just because you are already an attorney for a client does not mean
everything they say is privileged. He wasn't looking for legal advice and he wasn't
acting as attorney at the time
Met prongs 1, 2, and 3
Met prong 2 (made between privileged persons) because friend said he was his
lawyer, which formed A/C relationship; he was also attorney on other cases
Issue = prong 4 = for the purpose of obtaining or providing legal assistance to the
client
Holding: Information not protected under A/C privilege
,Upjohn v. United States - ANSWER-Facts: Company thinks foreign subsidiaries
making illegal payments to foreign governments. General Counsel consults with
outside counsel. Outside counsel and General Counsel sent out
letters/questionnaires to all foreign general and area managers, asking whether they
were aware of illegal payments. Mangers could consult with lower ranked employees
but were to keep information confidential. Eventually disclose on 8-k that there were
questionable payments. IRS wants questionnaires.
Question: Who falls under the attorney-client privilege for corporation?
Control group test? Court rejects this test!!!
Person who is in the position to make a decision for the corporation, you are in the
control group and the attorney-client privilege applies. It defeats the purpose of the
privilege by discouraging the communication of relevant information by employees of
the client to attorneys seeking to render legal advice to the client corporation
Court: They are going to use a case by case test rather than a bright line rule
Can only use the kind of communications in this case as a guideline
No clear rule to pull from the case
Facts here:
Communications made by company attorney to employees
Attorney acting as attorney
At direction of corporate superiors
In order to secure legal advice
Employees information needed for legal advice
Within scope of employees' duties
Employees are told they are being asked questions so the lawyers could give legal
advice
Key points:
Doesn't protect disclosure of underlying facts, rejected control group test, importance
of clarity
"Upjohn Warning"-->you have to tell the employees that the company will decide if
this conversation is going to be privileged because the attorney represents the
corporation, not the employees and employees can seek their own counsel
Work Product issue
Lynch v. Hamrick - ANSWER-Mom and daughter talk to attorney in the same room
about a deed. Mom was the client, not both her and the daughter. Later, son argued
that his sister influenced mom in writing the deed. Filed suit. Attorney called as
witness at trial.
Held: Prong 3 (in confidence) violated because daughter was in the room, so
communications were not privileged
Never privileged: info when daughter was present
Privileged but lost by of waiver: chronology of events
, Allison v. State - ANSWER-Attorney entered his appearance and then proceeded to
do nothing. He perfected his client's appeal but then told his client he needs to hire
someone else. Never filed a motion for leave to withdraw
Court said he wholly discharged his duties to his client, but defaulted in his
obligations to this court
Court does NOT want the lesson to be that you shouldn't perfect the appeal (Garza
v. Idaho when attorney refused to perfect appeal)
Court just wants him to ask for permission
Held: You cannot unilaterally withdraw
Conway v. Brooklyn Union Gas - ANSWER-Facts: Employment discrimination case.
Employee filed suit. Lawyer settled suit. Later, client says this is not the settlement
that she wanted. Client said she didn't want to settle a matter
Under Rule 1.2 you have to follow client's decision whether to settle. So, why did the
court say she had to settle?
Attorney was acting as her agent. As her agent, he could bind her. She never told
the court that the lawyer didn't have power to represent/bind her
She was writing separate letters on her pro se actions, but never denied her lawyer's
power
Attorney has implied power to bind clients to settlement deals, plea deals, etc.
Client decided objective, attorney carried out means
Problem: oral agreement. Get it in writing
Jones v. Barnes - ANSWER-Facts: Defendant wants lots of issues raised in briefs,
but attorney does not want all of these issues in brief based on past lawyer
experience.
Question: Does defense counsel have a constitutional duty to raise every non-
frivolous issue requested by the defendant?
Held: attorneys know which arguments are better to make, you can't make every
argument because it takes away from the best arguments. Defense does not have to
raise every non-frivolous issue
Dissent: they have ASSISTANCE of counsel and should be able to make the
decisions, indigent clients have a distrust of attorneys, right to client autonomy in 5th
and 6th amendments
U.S. v. Kaczynski - ANSWER-When you are dealing with someone with a disability,
you assume a normal attorney client relationship
Talk to them normally first and see if they are able to participate in their
representation
