Question III – 75 minutes (50 points total)
A lawyer in mid-career receives the following email.
1. Identify the major professional ethics issue surrounding the product offered in the email. (10 points)
SAMPLE ANSWER: Under Model Rule 1.1, an attorney has a duty to be competent in the practice of law. No competent attorney would buy or display such a plaque; accordingly the use of the product declares the lawyer to be sub-competent and therefore unfit for any actual practice. In addition, the product tends to mislead a client into believing that merely avoiding disbarment or death is a professional achievement, and is accordingly prohibited as misleading advertising and, conceivably, deceitful conduct under Rule 8.4.
2. Identify the UCC implications of the offer. (15 points)
SAMPLE ANSWER: The offer purports to allow acceptance by the merest reply email with a subject line header “YES I want my Plaque”. Under the statute of frauds provisions of Article II of the UCC, some writing is required for goods sold in excess of $500.00. The sale price of this article, before its generous discount, is $109.00 plus shipping. Accordingly, the contract is likely enforceable against the incompetent bastard who orders this by reply email.
However, an email casting condemning the ethics, taste and ancestral consanguinity of the merchant might in fact not constitute acceptance either by the terms of the offer or under Article II broadly. A wish upon the merchant that the enslaved dragon in A Game of Thrones be liberated and hired at a robust consulting fee to crispy-critter the merchant would not constitute an acceptance by the explicit terms of the offer, under Article II or, for that matter, section 201 of the Restatement of Contracts.
3. Is the customer protected under the warranty of merchantability? Discuss. (10 points)
SAMPLE ANSWER: Goods protected under the warranty of merchantability (Md. Code Ann., CL (UCC) § 2-314) must be, when sold, fit for their ordinary purpose. This item has no ordinary purpose, for to proclaim one’s merit for having avoided death, disbarment or lapse of license due to non-payment of dues since admission is actually purposeless per se.
If the item on offer had a minimal, rather than non-existent, purpose, a Maryland buyer might enjoy protection as a consumer under the warranty of merchantability even if the merchant attempted to waive that warranty. Consumer goods are those purchased for personal and not commercial purposes. If this item were sold to an attorney, it would be for personal narcissistic purposes only and not for commercial or professional value, of which it has none. Because Maryland voids “as is” disclaimers of merchantability warranties in sales to consumers, the poor bastard attorney buyer might be able to return the item if it somehow failed to fulfill its ordinary narcissistic purpose even if the merchant were to attempt to disclaim the warranty.
4. What duties does an attorney have upon seeing the item offered in the advertisement mounted in another attorney’s office? (15 points)
SAMPLE ANSWER: Under Maryland Lawyers Rules of Professional Conduct, an attorney has a duty to report another attorney when the attorney knows that another attorney has committed professional misconduct and that that misconduct raises a substantial question as to that lawyer’s fitness to practice. Certainly this item raises such a question when seen in an attorney’s office.
However, the mere presence of this object doesn’t prove that the attorney is actually practicing law. Indeed, its presence is circumstantial evidence that the attorney is in fact NOT representing actual clients; an attorney who actually works for a living would much more likely view this object with scorn, disgust, etc.
Ethical duties include but go beyond mere technical ethics rules such as under the Maryland Lawyers’ Rules of Professional Conduct. Since this question asked for “duties” and not merely “duties under black-letter rules bearing technical disciplinary force,” there is a moral duty to warn a fellow attorney against the narcissistic belief that merely avoiding death, disbarment or suspension is a professional achievement, and that wisdom, taste and the standards of the Bar urge the removal and ecologically-friendly recycling of this objet de merde. In counseling clients, we are permitted to go beyond technical legal analyses and also discuss the economic, political, social and moral implications of actual and proposed courses of conduct; what’s good for the clients is good for ourselves as well.
