Legal Ethics

Fact pattern

Two years ago, two masked men hijacked a bank’s armored truck, which carried $500,000 in cash. One hijacker shot the driver, took the keys to the truck, and left the driver injured on the roadway. Both hijackers then drove away in the truck, which the police recovered, empty and abandoned, a short while later.

One hijacker, Accomplice, recently confessed to the hijacking. Accomplice identified Client as the other hijacker, claiming Client was the one who shot the truck driver. On this information, the police arrested Client and charged him with aggravated robbery and attempted murder.

Client hired Attorney to represent him. At their first consultation, Client admitted his involvement in the hijacking, and that he shot the truck driver. However, Client also told Attorney this: Mom, Client’s mother, was willing to testify that Client was at home with her during the hijacking. Client insisted that Attorney mount this alibi defense and offer Client’s and Mom’s testimony in support.

In addition, Client indicated that Accomplice was stupid and easily flustered. So, by aggressive cross-examination, Attorney could discredit Accomplice’s testimony implicating Client in the robbery. Attorney agreed to follow these instructions.

Attorney told Client that he would charge an hourly rate and require a $50,000 “retainer” to be paid in advance for the representation. Client told Attorney to visit Mom, who would pay the $50,000 in cash. The next day, Attorney went to see Mom, who handed him $50,000 in cash. While there, Attorney confirmed Mom’s intent to testify that Client was home with her during the hijacking.

Just as Attorney turned to leave, Mom took a handgun out of a nearby drawer. She told Attorney that this was the gun Client used in the hijacking. She wanted Attorney to take the gun for safekeeping, because she worried that the police might search the house and find it. Attorney said, “I can’t take that gun, but you had better get rid of it immediately. You cannot allow the police to find it.” That evening, Mom tossed the gun into a river. Attorney locked the $50,000 in his safe the moment he got back to his office.

Client’s trial took place a short while later. The truck driver could not identify the robbers, and the police never found the gun. So, the only evidence linking Client to the hijacking was Accomplice’s testimony, which Attorney knew to be true. Even so, Attorney cross-examined Accomplice mercilessly, making him look like a liar and destroying his credibility. By contrast, Client and Mom were excellent witnesses. The prosecutor could not shake their insistence that Client was home with Mom when the hijacking occurred. When the jury finally returned its verdict, Client was acquitted.

Based on Attorney’s normal hourly rate (which is reasonable for a lawyer of his experience), his fee for representing Client should have been $45,000. However, Attorney felt that because he had achieved such a wonderful result, he was entitled to a bit more. He therefore added $5,000 of time to the bill, time he never spent. He then sent Client an invoice reflecting a fee of exactly $50,000, which the statement showed to have been settled in full by the retainer.

Questions

1. Did attorney violate any American Bar Association Model Rules of Professional Conduct (Rules) in relation to the trial, and if so, what should he have done differently? Explain.
2. Did Attorney violate any Rules in relation to his fee, and if so, what should he have done differently? Explain.