Monday Morning Answers #193

Welcome to Town Meeting Day week!

Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

In legal ethics, the words “current,” “former,” and “prospective” are most closely associated with the rule or rules on _______________:

  • A.  trust accounting
  • B.  advertising
  • C.  candor
  • D.  conflicts of interest.

Rules 1.7, 1.9, and 1.18 address, respectively, conflicts involving current, former and prospective clients.

Question 2

Attorney called with an inquiry. I listened, then responded:

  • “the rule says that you may do so to respond to allegations in any proceeding that concern your representation of the client.”

Do what?

  • A.   contact a represented person without the consent of the person’s lawyer.
  • B.   file an ex parte pleading with the tribunal before which the proceeding is pending.
  • C.  present criminal charges even if it provides an advantage in the proceeding.
  • D.  Disclose otherwise confidential information related to the representation of the client.

This is the so-called “self-defense” exception to Rule 1.6’s prohibition on disclosing information relating to the representation of a client.  Per Rule 1.6(c)(3), a lawyer may disclose otherwise confidential information (a) “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;” (b) “to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;” or, (c) “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

Question 3

Competence.  Communication.  Conflicts.  Candor.

There’s another word that begins with “C” that is a serious violation of the rules. The word, however, doesn’t appear in any of the rules.  It is notably absent from both the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Commingling.  My post on commingling is here.

Question 4

Lawyer and Firm represent Client in Client v. Other.

Last week, Firm hired Paralegal.  Paralegal used to work at the law office that represents Other.  Paralegal was personally and substantially involved in the law office’s representation of Other.

True or false:  paralegal’s conflict is imputed to Lawyer and Firm and they must withdraw from representing Client.

False.  Rule 1.10 is the rule that addresses imputed conflicts.  Per Comment [4], the rule on imputed conflicts “does not prohibit representation by others in the law firm when the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary.”  It goes on to say, and kudos to so many who alluded to it, that “such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communications to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.”

Question 5

Here’s your hint:  had I not decided to write about my Uncle and honor him with a Question 5 about the American Revolution, I would’ve used this question on February 14.

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed, “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

Al Capone. I blogged about it here.

To: the prosecution. With love, the Defendant’s lawyer.

89 years ago today, almost to the minute, seven men were murdered in Chicago’s Lincoln Park neighborhood.  The incident became known as the Saint Valentine’s Day Massacre. Al Capone is widely regarded as the criminal mastermind behind the killings.

As bar counsel, I’m intrigued by one aspect of the events that led to Capone’s conviction and incarceration.  My intrigue lies in the so-called Mattingly Letter.  It’s a letter that Capone’s tax lawyer provided to treasury agents and that was eventually used against Capone at trial.

Douglas Linder is a professor at the University of Missouri-Kansas City School of Law. He has a website dedicated to Famous Trials.  Among others, Professor Linder has written on the trial of Al Capone.

Per Professor Linder, as of 1929, Capone had never filed a federal income tax return.  So, the Department of Treasury launched an investigation into whether Capone had committed income tax evasion.

Lawrence Mattingly was Capone’s tax lawyer. In April 1930, Mattingly agreed to let “revenue agents” interview Capone.  The transcript of the interview is here.  Here’s an excerpt of what would become a key segment:

  • Revenue Agent RALPH HERRICK: I think it is only fair to say that any statements which are made here, which could be used against you, probably would be used.
  • LAWRENCE MATTINGLY, Capone’s tax lawyer: Insofar as Mr. Capone can answer any questions without admitting his liability to criminal action, he is here to cooperate with you and work with you.
  • HERRICK: What records have you of your income, Mr. Capone-do you keep any records?
  • CAPONE: No, I never did,
  • HERRICK: Any checking accounts?
  • CAPONE: No, sir.
  • HERRICK: How long, Mr. Capone, have you enjoyed a large income?
  • CAPONE: I never had much of an income.
  • HERRICK: I will state it a little differently-an income that might be taxable?
  • CAPONE: I would rather let my lawyer answer that question.
  • MATTINGLY: Well, I’ll tell you. Prior to 1926, John Torrio, who happens to be a client of mine, was the employer of Mr. Capone, and up to that point it is my impression that Mr. Capone’s income wasn’t there. He was in the position of an employee, pure and simple. That is the information I get from Mr. Torrio and Mr. Capone.

A few months later, Mattingly met again with federal agents.  As the meeting ended, he provided the agents with this letter.  Mattingly opened the letter by stating:

  • “The following statement is made without prejudice to the rights of the above-mentioned taxpayer in any proceedings that may be instituted against him. The facts stated are upon information and belief only.”

He closed by conceding:

  • “I am of the opinion that his taxable income for the years 1925 and 1926 might fairly be fixed at not to exceed $26,000 and $40,000 respectively and for the years 1928 and 1929 not to exceed $100,000 per year.”

Several months later, a grand jury indicted Capone.

Eventually, Capone and the government reached a plea agreement under which Capone would’ve served 2.5 years.  A judge rejected the plea, stating:

  • “The parties to a criminal case may not stipulate as to the judgment to be entered. It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a Federal Court.”

As trial neared, the government obtained information establishing that Capone had likely bribed a significant portion of the jury pool.  The prosecution team notified the judge. Per Professor Linder, here’s what happened next:

  • “Judge Wilkerson took his seat at the bench and looked out over the packed courtroom. He called the bailiff to the bench. ‘Judge Edwards has another trial commencing today,’ he told the bailiff. ‘Go to his courtroom and bring me his entire panel of jurors; take my entire panel to Judge Edwards.'”

At trial, the government sought to introduce the Mattingly Letter through the agent to whom Attorney Mattingly had delivered it.  The defense objected.  The court admitted the letter as proof that Capone had made certain statements, albeit not as proof of those statements.  (yeah, right.)  A transcript of the testimony surrounding the letter’s admission is here.

The prosecution referred to the letter during its closing argument.  That portion of the summation, which I found enthralling, is here.  Here’s my favorite part:

Referring to Attorney Mattingly, the prosecutor argued:

  • “He had tried to get the revenue agents to say that the admission would not be used against his client; now, in the letter, Mattingly is saying it himself. The letter says, “‘his statement is made without prejudice to the taxpayer in any criminal action that may be instituted against him.'”

The prosecutor continued:

  •  “Suppose a speeder, when stopped by an officer, should say; ‘I am telling you this without prejudice, officer; I don’t want it used against me; but I was going 50 miles an hour.’ Suppose a gambler could tack a little sign on a roulette, ‘This device is not to be used as evidence against me.’ Suppose a murderer could put a sign on his gun, “This weapon is not to be used as evidence against me.’ What a refuge for criminals that would be! And yet, that is what we have here, ‘I am telling you this, but it is not to be used against me.’ “

In the end, Capone was convicted and sentenced to 11 years in prison.  Admissions from his own tax attorney appear to have played a significant role in the conviction.

Competence.  Client confidences.  You be the judge.

Valentine

An intriguing aside: one of the government’s key informants in the Capone investigation was Eddie O’Hare.  O’Hare held the patent for the mechanical rabbit that lures greyhounds around a race track. He also ran dog tracks for Capone.  Eddie was murdered shortly before Capone was released from prison.

The intriguing aside?  Eddie’s son, Edward, was a naval pilot. He was the Navy’s first “flying ace” and the first member of the Navy to receive the Medal of Honor in World War II. He was shot down in combat in 1943 and never found.  Chicago’s O’Hare Airport is named for him.

 

Monday Morning Answers #105

I’m not positive, but methinks this week’s is the largest Honor Roll ever!

Friday’s questions are HERE.  Thanks to all who sent in responses.   I especially enjoyed hearing & reading so many wonderful stories of grandmothers & grandfathers who sound so similar to mine.  Today’s answers follow the honor roll.

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Honor Roll

Answers

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Rule 3.1 governs meritorious claims.  Prospective, Current, and Former are types of clients for the purposes of the conflicts rules.

Question 2

Attorney called me with an inquiry.  She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.”  Most likely, what issue did Attorney call to discuss?

  • A.  The duty to report a client’s fraud
  • B.  The duty to act competently to safeguard client data stored in the cloud
  • C.   Duties to a client who suffers from a diminished capacity
  • D   File delivery & the question of “what is the file?”

I might have phrased this one poorly.  Option “A” certainly could happen, as a lawyer’s mental impressions and notes might include information that must be revealed pursuant to Rule 1.6(b).   However, here, I was getting at whether an attorney’s notes and mental impressions are part of “the file.”  For more on this topic, including a link to an ABA Formal Advisory Opinion, see this post.

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry.  Lawyer said “client said she’s fine with it, so do you think that I have ________  ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________   _________.  Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of conduct.”

Informed Consent, Rule 1.0(e).

Question 4

Attorney called me with an inquiry.  Attorney was concerned that her she and her firm had been “pwned.”  What did we discuss?

Whether Attorney & Firm had:

  • A.   suffered a breach of electronically stored client data.
  • B.   fallen for a trust account scam.
  • C.   violated the rules while responding to a negative online review.
  • D.  been duped by an adversary who intentionally posted “fake evidence” on a social media platform.

Hello gamers! I wasn’t familiar with the term “pwned” until I read the ABA Journal’s cybersecurity tips.

Question 5

 

Monday Morning Answers

Happy Presidents’ Day!  Interesting tidbit (or maybe not):  the first President to have a law degree?  Rutherford B. Hayes.  Several of his presidential predecessors were lawyers, but none went to law school.

Ok, if you want to take Friday’s quiz, go HERE.  Spoiler alert: the answers immediately follow the list of those who received honors this week.

Oh, and if you missed my post on the perils of using “cc” and “bcc” in emails, it’s HERE.

PERFECT SCORES

  • Andrew Delaney, Martin & Associates
  • Matthew Little, Law Offices of Matthew Little
  • Hal Miller, First American
  • Josh Stern, Law Office Study Candidate, Massucco Law

HONORS

ANSWERS

Question 1

You represent co-plaintiffs in a civil suit.  The defense proposes an aggregate settlement of your clients’ claims. By rule, you shall not participate in the settlement unless each client:

  • a. Gives informed consent
  • b. Gives informed consent, confirmed in writing.  Rule 1.8(g).
  • c. Is given a reasonable opportunity to seek independent legal advice
  • d.  A&C

Question 2

True or False? The rule on aggregate settlements applies only in civil cases.  In criminal cases, a lawyer may not participate in an aggregate agreement as to guilty or nolo pleas.

FALSE – Rule 1.8(g)

Question 3

By rule, what is it that a lawyer may not do with an unrepresented former client, unless the former client is given written notice of the desirability of seeking independent legal advice, and a reasonable opportunity to do so?

Settle a claim or potential claim for malpractice.  Rule 1.8(h)

Question 4

Lawyer called me to ask if I thought he had a conflict of interest that prohibited Lawyer from representing Wife in a post-judgment child support dispute with Husband. Lawyer explained why he was asking.  I responded by telling Lawyer that it turned on whether his prior particapation in the matter was “personal and substantial.”  If so, I added, he’d need both Wife AND Husband’s informed consent, confirmed in writing.

Under these facts, Lawyer’s prior participation in the matter was most likely as:

  • A.  a fact witness in the couple’s contested divorce hearing
  • B.  the mediator when the couple attempted to mediate the divorce.  Rule 1.12(a)
  • C.  Husband’s attorney in a criminal case that Wife argues warrants a modification of the child support order
  •  D.  a GAL for the couple’s son in the divorce

Question 5