07102

QUESTION ANALYSIS

There was recently a major release of hazardous substances from a waste disposal site in County. Owen is the current owner of the site. Fred is a former owner of the site. Hap is the producer of the hazardous substances disposed of at the site.

As a result of the hazardous substance release, County has identified the site as a priority cleanup target, and has notified Owen, Fred, and Hap that they are the responsible parties who must either clean up or pay to clean up the site. County advised each responsible party of his degree of culpability. In the event each responsible party does not pay his share of the cleanup costs, County is entitled to impose joint and several liability on each of them. (Potential conflict of interest)

In an effort to facilitate the resolution of County’s demand, Owen, the wealthiest responsible party, arranged for Fred, Hap, and himself to meet with Anne, his tax lawyer. (Duty of loyalty, Potential and actual conflicts, duty of competence:tax law v. toxic tort law) At the meeting, Owen offered to pay the attorney fees of all three of them (Receiving payment from third party) in exchange for their agreement to be represented by Anne. Fred and Hap accepted Owen’s offer and Anne distributed identical retainer agreements (fee agreement: not unreasonable and unconcionable) to each of them, which they signed.

INTERROGATORY

What ethical violations, if any, has Anne committed? Discuss.

QUESTION COMMENT

This Professional Responsibility question is unusual because it does not require you to discuss under ABA and California authorities.

ANSWER OUTLINE

SAMPLE ANSWER

Duty of Competence

A lawyer has a duty to the clients to provide competent representation requiring the skill, thoroughness and preparation reasonably necessary to provide adequate representation of the client.

Here, A may have violated this duty of competence. The case involves complex environmental law which requires significant technical training and experience in environmental law cases. A's area of expertise is tax law and there is no evidence that A has practiced environmental law in the past. Therefore, he probably violated the duty by taking this case.

Conflict of Interests

Accepting Fees from Third Party

Duty of Confidentiality

Fee Agreement