F13-Class3-PracticeQuiz

1. Lee was a member of the GSU team that won the 2010 National Trial Practice competition. After graduating in 2011, she set up a solo practice. She now wants to create a firm website and asks you if she could be disciplined if her website states: "Lee has been nationally recognized for her trial practice skills." The correct answer to give her would be:

A. No, if you make sure, if you take the web page with that statement off the internet in the future, that you keep for at least two years thereafter a printed copy of the web page along with information about where and when it was posted on the internet.

B. Yes, because by failing to disclose that the recognition preceded your admission to the bar, the statement is materially misleading. CORRECT

Rule 7.1(a)(1): (a) A lawyer may advertise through all forms of public media and through written communication not involving personal contact so long as the communication is not false, fraudulent, deceptive or misleading. By way of illustration, but not limitation, a communication is false, fraudulent, deceptive or misleading if it...contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading...” (i.e. that Lee was nationally recognized for her skills in student mock trial competitions while in law school) GLE pp. 99-100

C. No, because the statement can be factually substantiated.

D. No, because the internet is not considered a form of public media or written communication.

2. In 2009, Randy received a Formal Admonition for opening up his solo practice under the name, "Decatur Family Law Center," without including his own name. In 2010, he received a confidential Investigative Panel Reprimand for failing to keep proper records of when and where he had placed advertisements. In 2011, the Investigative Panel issued a Notice of Discipline for advertising that he is an estate planning specialist without in fact having experience, specialized training or certification in that field in violation of GRPC 7.4 and the case is now before the Review Panel. The maximum penalty the Review Panel can recommend to the Georgia Supreme Court is:

A. Disbarment- CORRECT

Multiple violations Rule 4-103:
“A finding of a third or subsequent disciplinary infraction under these rules shall, in and of itself, constitute discretionary grounds for suspension or disbarment.” GLE p. 117

and

Rule 4-208. Confidential Discipline; Effect in Event of Subsequent Discipline
"An accepted letter of formal admonition or an Investigative Panel Reprimand shall be considered as a disciplinary infraction for the purpose of invoking the provisions of Bar Rule 4-103. In the event of a subsequent disciplinary proceeding, the confidentiality of the imposition of confidential discipline shall be waived and the Office of the General Counsel may use such information as aggravation of discipline." GLE 132

B. Suspension

C. Public Reprimand

D. Confidential Review Panel Reprimand

E. None of the above

3. Susan, a solo practitioner in Marietta, Georgia, has just hired Dana to join the firm as an associate. Susan has told the receptionist to refer to Dana all callers responding to the firm's TV ad: "About to be foreclosed?" Dana has now taken 5 such calls and Susan has told her to refer each caller to another law firm. When the same thing happens with the 6th call, Dana shows Susan FAO 05-6 but Susan tells her to refer that caller also. If Dana follow's Susan's instruction, is she subject to discipline?

A. No, because the FAO is only an advisory opinion.

FAO 05-6 was reviewed and approved by the Georgia Supreme Court and therefore binding on all members of the State Bar of Georgia.

B. No, because Dana would be acting at the direction of her supervising attorney, Susan.

Rule 5.2(a): “A lawyer is bound by the Georgia Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” GLE p. 83

C. No, if Susan tells her FAO 05-6 is inapplicable because the firm intends to offer representation for mortgage relief but only if the mortgage amount is greater than these first six callers.- CORRECT

Rule 5.2(b): “A subordinate lawyer does not violate the Georgia Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” Susan reasonably distinguished FAO 05-6 from her firm's conduct because the TV spot was not advertising " with the intention of referring a majority of business out to other lawyers.". GLE p. 83

D. All of the above.

4. The next call to Susan's firm is from Sam in Alabama who saw the ad on an Alabama TV station and liked the part that said "no fee unless we save your house." The ad did not disclose that clients would have to pay court costs. Alabama's version of Rule 7.1 is identical to ABA 7.1. Sam's mortgage is held by a bank in Atlanta. Susan meets with Sam in Marietta and signs a contingent fee agreement to file a lawsuit in Atlanta against the bank. Can Susan lose her license to practice law in Georgia for this conduct?

A. No, because Georgia has no jurisdiction to discipline a lawyer for conduct outside Georgia.

Rule 8.5(a): “Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs.” GLE p. 111

B. No, because Alabama's version of Rule 7.1 does not contain the language about contingent fees found in GRPC 7.1.

Rule 8.5(b)(2): “Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: for any other conduct, the rules of the jurisdiction in which the ... predominant effect of the conduct” occurred. GLE pp. 111-112 Georgia's version of 7.1 thus applies. See annotation to D.

C. Yes, because Georgia prohibits advertising the basis on which the lawyer's fees are determined.

Rule 7.2 Comment [2]: “This Rule permits public dissemination of information concerning ... the basis on which the lawyer’s fees are determined...” GLE pp. 101-102 The basis of fees can be advertised as long as the statement is not false, fraudulent, deceptive or misleading. See annotation to D.

D. Yes, because the effect of the ad seen by Sam was to create a lawyer-client relationship in Georgia. CORRECT

GRPC 7.1 rather than Alabama 7.1 applies because the predominant effect of the advertising in Alabama was the formation of a lawyer-client relationship in Georgia in order to file litigation in Georgia.

The use of the "no fee" phrase was misleading under GRPC 7.1 because the ad did not also contain the disclaimer required by 7.1: " refers only to fees charged by the attorney. Court costs and other additional expenses of legal action usually must be paid by the client. Contingent fees are not permitted in all types of cases."

GLE pp. 99-100

5. Under the ABA Standards for Imposing Lawyer Sanctions, which of the following factors are mitigating circumstances that may justify a reduction in the degree of discipline to be imposed?

A. Timely good faith effort to make restitution CORRECT

ABA Standard 9.32(d). GLE p. 244

B. Substantial experience in the practice of law

Inexperience could be a mitigating factor, Experience would be an AGGRAVATING factor, ABA Standard 9.22(i). GLE p. 243

C. The injured client's recommendation for a reduced sanction

Is not relevant as either an aggravating or mitigating factor. ABA Standard 9.4(e). GLE p. 245

D. All of the above

E. None of the above