Recently, a colleague asked me for an example of a bar exam question that tests the candidate’s judgment between being an effective lawyer and being an ethical one. It has been long since I’ve prepared such a question, so here is a rusty stab at it:
Astrid is a first-year lawyer hired recently by R. U. Hurt LLP, an injury law firm with a reputation for obtaining high settlements through zealous trial advocacy. She is excited because her senior partner Jay Z. has introduced her to his client Brian, who had suffered a bad whiplash injury in a car accident with a garbage truck operated by the City of Blue Bay. Jay has asked her to assume carriage of the action against the municipality. In the course of reviewing the City’s productions, sent to Jay by the City’s lawyer, Astrid finds a copy of an email to the lawyer from the City’s claims manager admitting that four out of five garbage trucks on that route, including the one that struck Brian, were overdue for brake repairs. What should Astrid do?
- Remain quiet about her possession of the email until cross-examination of the City’s witness at trial, to maximize the chances of victory for Brian and expose the City witness’ false testimony.
- Notify the City’s lawyer that Astrid has a copy of the email, but keep it for cross-examination of the City’s witness at trial.
- Shred the email, but use it to inform Astrid’s preparation of Brian’s evidence at trial, in order to minimize the impact of the City’s witness.
- Notify the City’s lawyer that Astrid has a copy of the email, return it without making a copy, and do not rely on knowledge of its existence.
Answer available here.
Clues: The code of conduct source is the Ontario version of the FLSC model code. The question intentionally omits situations such as implied undertaking relating touse outside the proceeding, and discovery of documents under searches under Anton Piller orders.