Instructions Specific to This Exam

1. This examination contains five questions of unequal value, worth a total of 100 marks.

2. Suggested time allocations are provided for guidance only. Candidates remain responsible for managing their examination time.

3. You will be assessed primarily on your knowledge and application of the Federation of Law Societies of Canada’s Model Code of Professional Conduct, the relevant assigned cases and the other required course materials.

4. Merely identifying a Model Code provision or reproducing its wording will not attract significant credit. You must explain:

   • why the rule is engaged;

   • whose interests it protects;

   • how it applies to the particular facts;

   • what competing duties or considerations arise; and

   • what the lawyer should actually do.

5. No marks are awarded for merely summarizing the facts. Use the material facts as part of your legal analysis.

6. Each question is independent. Do not import facts from another question.

7. In dealing with confidentiality, distinguish the lawyer’s broad ethical duty of confidentiality from solicitor-client privilege. Do not assume that information is freely disclosable merely because it may not be privileged.

8. Where a lawyer acts for an organization, identify the organization itself as the client and distinguish its interests from those of its directors, officers, employees and shareholders.

9. Where organizational wrongdoing is involved, consider separately:

   • the prohibition against assisting dishonesty, fraud, crime or illegal conduct;

   • the lawyer’s obligations within the organization;

   • escalation to persons with greater authority;

   • confidentiality; and

   • withdrawal.

10. Where advocacy is involved, balance resolute representation of the client with the lawyer’s obligations of candour, fairness and integrity toward the tribunal and the administration of justice.

11. A lawyer may test the opposing party’s case and advance every lawful argument available to the client. This does not authorize:

• presenting evidence the lawyer knows to be false;

• misleading a tribunal;

• assisting client dishonesty;

• improperly influencing witnesses; or

• abusing legal process.

12. In negotiation and dispute-resolution problems, distinguish:

• legitimate bargaining;

• confidentiality;

• conflicts;

• misleading statements;

• impermissible threats;

• and the distinct role of a lawyer acting as mediator rather than advocate.

13. In criminal practice questions, distinguish the lawyer’s obligation to defend the client resolutely from any suggestion that defence counsel may knowingly facilitate false evidence or improperly interfere with the criminal process.

14. Where competence, fees or access to justice is raised, consider the interests of the client and the public together with the lawyer’s professional independence and responsibility.

15. Full citations are unnecessary. Where relevant, identify the Model Code rule, case or assigned authority with sufficient precision.

16. Answers must be written in clear, organized, complete sentences.

QUESTION ONE

25 marks — suggested time: 45 minutes

FACTS

Northmere Respiratory Technologies Inc. (“Northmere”) manufactures portable respiratory devices used in hospitals and long-term care facilities.

Sabine Elward has been Northmere’s in-house lawyer for six years.

Her title is:

Vice-President, Legal and Corporate Affairs.

Northmere’s chief executive officer, Bastian Crowell, is not a lawyer.

Northmere has recently launched a new portable oxygen concentrator known as the AeroVive 4.

Three months after launch, Northmere’s engineering department discovered that a particular battery defect could cause the device to shut down unexpectedly.

The problem occurs only in unusual operating conditions.

No death has been reported.

Northmere has, however, received reports of:

• seven unexpected shutdowns;

• two patients requiring emergency transfer to another oxygen source; and

• one patient suffering temporary loss of consciousness.

Federal legislation requires manufacturers to report certain serious device incidents to the regulator within prescribed periods.

Northmere’s head of regulatory affairs, Darian Moss, sends Sabine an email stating:

“I think these incidents meet the statutory reporting threshold. Bastian wants a legal opinion before we report anything.”

Sabine reviews the statute and internal reports.

She concludes that at least several incidents are legally reportable.

At a meeting with Bastian and Darian, Sabine says:

“We have a reporting obligation. We can explain that causation remains under investigation, but I do not think we can lawfully sit on this.”

Bastian responds:

“Reporting now will destroy the launch. Engineering expects a software fix in six weeks. There is no reason to trigger a regulatory panic before we know whether the battery actually caused every incident.”

He instructs Darian to categorize future incidents internally as:

“user-environment anomalies”

unless a patient dies.

Sabine objects.

Bastian says:

“You have given your legal advice. I have heard it. I run the company.”

The following week, Sabine discovers that Darian has drafted a regulatory filing concerning an unrelated AeroVive issue.

The filing states:

“Northmere is not presently aware of any recurring power-loss pattern affecting the AeroVive 4.”

Darian tells Sabine:

“Bastian approved the wording. Technically, we have not proven that the incidents have the same cause.”

Sabine tells Darian that the statement is misleading and should not be filed.

Darian replies:

“Then take it up with Bastian. I am not losing my job over this.”

Around the same time, Ilan Mercer, Northmere’s senior battery engineer, asks to speak privately with Sabine.

Ilan says:

“I need legal advice. I think they are going to blame this on engineering.”

Sabine responds:

“I am Northmere’s lawyer, but we are all trying to deal with the same problem. Tell me what happened.”

Ilan tells her that:

• he warned Bastian two months before launch that battery testing was incomplete;

• Bastian ordered the launch to continue;

• Ilan deleted an early draft engineering memorandum after Bastian told him it was “unhelpful speculation”; and

• a backup copy still exists on Ilan’s personal computer.

Ilan then asks:

“You are my lawyer too, right? This is confidential?”

Sabine replies:

“I will keep this as confidential as I professionally can.”

She does not expressly tell him to obtain independent counsel.

Sabine later tells Bastian that Northmere must correct its course and make the required regulatory disclosures.

She does not reveal Ilan’s personal-computer disclosure.

Bastian responds:

“This discussion is finished. If you go to the board, you are undermining management. If you contact the regulator without authorization, you are fired.”

Northmere’s board has an audit and compliance committee.

Sabine has direct access to its chair.

Bastian nevertheless instructs her to continue preparing commercial agreements concerning the AeroVive 4 launch.

He also asks her to revise the regulatory filing so that:

“it says nothing false but does not invite questions about batteries.”

Sabine believes Northmere is continuing to violate its reporting obligations.

She is considering:

1. following Bastian’s instructions;

2. going directly to the audit committee;

3. disclosing the matter herself to the regulator; or

4. resigning.

QUESTION

Advise Sabine concerning her professional obligations to Northmere and Ilan, including the identity of her client, the proposed regulatory filing, the continuing corporate conduct, confidentiality, internal escalation and withdrawal.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION ONE

1. Sabine Acts for Northmere, Not Automatically for Everyone Who Works There

The starting point is Model Code rule 3.2-3.

Where a lawyer is retained or employed by an organization, the organization itself is the client.

Sabine may receive instructions from:

• Bastian;

• Darian;

• other executives; or

• employees,

but their authority to communicate instructions does not make each of them personally Sabine’s client.

Her professional loyalty is owed to Northmere as an organization.

This distinction becomes critical once Bastian’s personal interests and the organization’s legal interests begin to diverge.

2. The CEO Does Not Own the Lawyer’s Professional Judgment

Bastian is entitled to make business decisions for Northmere within the scope of his corporate authority.

He is not entitled to require Sabine to:

• assist illegal conduct;

• make misleading regulatory statements; or

• treat his personal preference as identical to the legal interests of the corporate client.

The fact that he says:

“I run the company”

does not displace Sabine’s professional duties.

3. Rule 3.2-7 Prohibits Assistance With Dishonesty or Illegal Conduct

A lawyer must not knowingly assist or encourage:

• dishonesty;

• fraud;

• crime; or

• illegal conduct.

The obligation also extends to conduct that the lawyer ought to know assists such wrongdoing.

Sabine has already concluded that Northmere has statutory reporting obligations.

If she is correct, she cannot help management structure communications for the purpose of continuing non-compliance.

4. Legal Advice About Compliance Is Permissible

There is an important distinction between:

advising a client how the law applies

and

advising a client how to violate the law without being caught.

Sabine may properly advise Northmere on:

• what must be reported;

• the timing of disclosure;

• what remains scientifically uncertain;

• how to communicate legitimate uncertainty accurately; and

• how to minimize unnecessary regulatory consequences within the law.

She cannot draft language calculated to conceal reportable events while technically avoiding an express lie.

5. The Proposed Filing Is Especially Problematic

The draft says:

“Northmere is not presently aware of any recurring power-loss pattern…”

Sabine knows Northmere has received seven shutdown reports.

Management may honestly dispute whether all incidents share one technical cause.

But describing Northmere as unaware of a recurring power-loss pattern risks being materially misleading even if each individual word can be defended literally.

Professional responsibility is not satisfied by constructing technically true language designed to create a false impression.

Sabine should refuse to prepare or approve misleading language.

6. Rule 3.2-8 Is Directly Engaged

The Model Code contains a specific rule where a lawyer acting for an organization knows that the organization:

• has acted;

• is acting; or

• intends to act

dishonestly, fraudulently, criminally or illegally.

That is the present situation if Northmere continues deliberate non-reporting.

The rule requires more than telling Bastian once that she disagrees.

7. Sabine Must First Advise Those Responsible That the Conduct Must Stop

She has substantially done this.

She told:

• Bastian; and

• Darian

that reporting was legally required.

She also told Darian that the proposed filing was misleading.

The first stage of the organizational-lawyer obligation has therefore been engaged.

8. The Obligation May Require Sabine to Go “Up the Ladder”

Where the persons from whom the lawyer receives instructions refuse to stop the wrongful conduct, rule 3.2-8 requires escalation progressively to higher authority within the organization, ultimately including the board or an appropriate board committee where necessary.

Northmere has an audit and compliance committee.

Sabine has direct access to its chair.

Bastian’s instruction:

“Do not go to the board”

cannot override the lawyer’s professional obligation where the conditions of rule 3.2-8 are satisfied.

Going to the compliance committee is not disloyal to Northmere.

It may be precisely what loyalty to the actual client requires.

9. The Organization Must Be Given a Genuine Opportunity to Correct the Conduct

Escalation exists because corporate wrongdoing may be caused by particular officers rather than by the organization acting through its highest legitimate authority.

The board may:

• direct immediate reporting;

• correct the regulatory filing;

• investigate the launch;

• discipline management; or

• take other lawful corrective measures.

Sabine therefore should not treat Bastian’s position as the final position of Northmere until the appropriate organizational authority has been engaged.

Ilan

10. Sabine Created Serious Ambiguity About Whom She Represented

Ilan expressly said:

“I need legal advice.”

He then asked:

“You are my lawyer too, right?”

Sabine knew he was concerned about personal exposure.

Her response was inadequate.

She should have made clear that:

• she represents Northmere;

• she does not automatically represent Ilan;

• Northmere’s interests may differ from his;

• information he gives her in her role as corporate counsel may have to be used for the corporation; and

• he may wish to obtain independent legal advice.

11. A Lawyer-Client Relationship Can Arise Without Formal Documentation

Professional relationships are not created only by signed retainers.

The circumstances and reasonable expectations matter.

Sabine’s statement:

“Tell me what happened”

following Ilan’s request for legal advice, combined with her later assurance that she would keep the information confidential as professionally possible, creates an argument that Ilan reasonably believed she was advising him personally.

That ambiguity was professionally dangerous.

12. At Minimum, Sabine Owes Duties Concerning Information Received From Ilan

The Model Code recognizes that confidentiality issues may arise even during preliminary consultations where a full retainer never develops.

Sabine should therefore not casually assume that she can disclose Ilan’s statements simply because she later decides:

“I never formally agreed to act.”

The exact status of the communication must be assessed carefully.

13. Ilan’s Interests May Be Adverse to Northmere’s

Ilan admits that:

• he deleted a draft memorandum;

• Bastian instructed him to do so;

• a backup exists; and

• he fears management will blame engineering.

Northmere may eventually have interests in:

• investigating Ilan;

• preserving evidence;

• attributing responsibility; or

• defending regulatory proceedings.

Ilan may have personal exposure.

A serious conflict could therefore arise if Sabine purports to advise both.

14. Sabine Should Clarify the Relationship Immediately

She should tell Ilan, subject to any constraints arising from what has already occurred, that:

• Northmere is her client;

• she cannot give him personal advice where the interests may conflict;

• he should obtain independent legal representation.

She must then deal carefully with information already received.

Confidentiality and External Disclosure

15. Confidentiality Is Broad

Rule 3.3-1 requires a lawyer to hold in strict confidence information concerning the business and affairs of a client acquired in the professional relationship except where:

• the client authorizes disclosure;

• disclosure is required by law;

• disclosure to the law society is required; or

• another Model Code exception applies.

The ethical obligation is broader than the evidentiary doctrine of solicitor-client privilege.

16. Internal Escalation Is Different From Public Whistleblowing

Sabine may be required to communicate within Northmere to those entitled to act for the organizational client.

That does not mean she is automatically free to disclose confidential corporate information externally.

The “up-the-ladder” obligation and external whistleblowing are different questions.

17. Rule 3.2-8 Does Not Create a General Power to Report the Client to the Regulator

If Northmere persists, Sabine must withdraw from the matter.

But she should not assume that:

“The client is acting illegally, therefore I may disclose everything.”

Whether external disclosure is permitted or required depends on:

• applicable law;

• the Model Code confidentiality provisions;

• and any recognized exception.

Nothing in the supplied facts establishes a general ethical authorization to volunteer Northmere’s confidential information to the regulator.

18. A Legal Reporting Obligation Imposed on Sabine Personally Would Change the Analysis

If legislation independently requires Sabine herself to report particular information, confidentiality would have to be analyzed in light of that legal obligation.

But the facts establish a reporting obligation on the manufacturer.

They do not establish an independent statutory whistleblowing duty on corporate counsel.

The safer professional course is therefore internal escalation followed, if necessary, by withdrawal rather than unauthorized external disclosure.

Withdrawal

19. Continuing to Draft AeroVive Agreements Is Not Necessarily Prohibited Merely Because Another Corporate Matter Is Wrongful

Sabine must distinguish between:

• participating in the wrongful regulatory conduct; and

• performing unrelated lawful work.

Rule 3.2-8 specifically requires withdrawal from the matter if the organization persists in wrongful conduct despite the lawyer’s advice.

Whether the circumstances require complete resignation from Northmere depends on how intertwined the unlawful course has become with her role.

20. The Facts May Make Limited Withdrawal Unrealistic

Bastian wants Sabine to:

• keep supporting the AeroVive launch;

• avoid disclosure;

• rewrite the regulatory filing; and

• stay away from the board.

The wrongful conduct therefore reaches the centre of the matter on which she is being asked to act.

If the board does not correct it, simply refusing to draft one document while continuing to facilitate the launch may not be enough.

21. Withdrawal Must Be Carried Out Without Improper Disclosure

If Sabine withdraws, she ordinarily cannot publicly explain:

“I resigned because my client is violating federal law.”

Withdrawal does not erase confidentiality.

She must protect Northmere’s interests to the extent consistent with her professional duties while avoiding continued participation in the wrongdoing.

22. Overall Advice

Sabine should:

1. refuse to draft or approve misleading regulatory language;

2. advise management clearly that the conduct must stop;

3. escalate the issue to the appropriate higher authority, including the audit/compliance committee if management refuses;

4. clarify immediately that she does not represent Ilan personally and advise him to seek independent counsel;

5. carefully preserve applicable confidentiality obligations concerning both Northmere and Ilan;

6. avoid unauthorized external disclosure merely because management is acting unlawfully; and

7. withdraw from the matter—and potentially from the organization—if Northmere persists after proper escalation.

Brickam’s Suggested Marking Approach — Question One

Issue	Marks
Identifies Northmere as organizational client under Model Code rule 3.2-3 and distinguishes officers/employees	4
Rule 3.2-7: lawyer must not assist dishonesty, fraud, crime or illegal conduct; application to reporting and regulatory filing	4
Rule 3.2-8 organizational wrongdoing: advice to management and required escalation	5
Analysis of proposed technically accurate but misleading regulatory language	2
Ilan: ambiguity of lawyer-client relationship, preliminary consultation, adverse personal interests and need for independent counsel	4
Confidentiality and distinction between internal escalation and external disclosure	3
Withdrawal if organization persists; scope and continuing confidentiality	2
Overall practical advice	1
TOTAL	25

QUESTION TWO

25 marks — suggested time: 45 minutes

FACTS

Vela Hart is litigation counsel for Dovetail Foods Ltd. (“Dovetail”) in a civil action arising from a warehouse fire.

The plaintiff alleges that Dovetail ignored repeated warnings that its industrial refrigeration system was unsafe.

Dovetail denies receiving any warning before the fire.

The action is scheduled for trial in three weeks.

During discovery, Dovetail produced thousands of emails.

One important email from six months before the fire appears to show that Dovetail’s operations director received a contractor’s warning that:

“continued operation without replacement of the pressure valve creates a substantial fire risk.”

The copy produced by Dovetail contains a later response from the operations director:

“Replace it immediately.”

Dovetail relies heavily on that response.

Three weeks before trial, Vela is preparing Dovetail’s operations director, Kellen Firth, to testify.

Kellen says:

“There is something I should probably tell you.”

He explains that the response:

“Replace it immediately”

was actually written after the fire.

Kellen says that, during the investigation, he opened an archived copy of the old email and typed the response because:

“I wanted the file to show what I would have done if I had actually seen the contractor’s warning.”

He then forwarded the altered chain to Dovetail’s document-management team.

Vela asks whether anyone else knows.

Kellen says:

“Probably not. The plaintiff already has the document. We are too close to trial to blow the case up over metadata.”

Vela immediately checks the original server backup.

It confirms Kellen’s account.

The next morning, Vela tells Dovetail’s CEO that the document must be corrected.

The CEO replies:

“Kellen made a foolish edit, but the plaintiff has its own experts. We hired you to win the case, not prosecute our employees.”

He instructs Vela not to disclose the alteration.

Vela says she cannot knowingly rely on the document.

The CEO responds:

“Then do not mention it. Nobody is asking you to put Kellen on the stand about when he typed the response.”

Kellen is nevertheless Dovetail’s principal trial witness.

While preparing him, Vela asks:

“What will you say if opposing counsel asks whether the response was written before the fire?”

Kellen replies:

“I will say I do not remember exactly. That is technically true—I do not remember the exact date I typed it.”

Vela tells him:

“Answer the question you are asked. Do not volunteer more than necessary.”

She later becomes uncomfortable with that advice.

A second problem arises.

Another employee, Paloma Crewe, tells Vela:

“I did not personally hear Kellen order the valve replaced, but if it helps, I can say I heard him telling maintenance to deal with it. Everyone knows he would have.”

Vela tells Paloma:

“We need witnesses who are certain. Think carefully about whether you might actually remember the conversation.”

Paloma later emails:

“I’ve thought about it. I’m comfortable saying I heard him.”

Vela does not believe Paloma actually remembers such a conversation.

A third issue arises five days later.

Opposing counsel accidentally emails Vela a document titled:

PLAINTIFF TRIAL STRATEGY — PRIVILEGED

The first page states that the plaintiff’s lawyers plan to abandon one significant damages theory because their expert is vulnerable on cross-examination.

Vela notices the title immediately but continues reading all six pages.

She forwards the document to Dovetail’s CEO with the message:

“Do not circulate. This materially improves our trial position.”

Finally, one week before trial, the judge’s assistant emails both counsel asking for a short joint update on trial readiness.

Opposing counsel is away.

Vela replies only to the judge’s assistant:

“Dovetail is fully ready. The plaintiff has serious unresolved expert-evidence problems that may shorten the trial.”

She does not copy opposing counsel.

The assistant responds:

“Thank you. I will advise the judge.”

Vela is now concerned that several professional issues have arisen.

QUESTION

Advise Vela concerning her professional obligations in relation to the altered document, Kellen and Paloma’s proposed evidence, the mistakenly transmitted strategy memorandum and her communication with the judge’s assistant.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION TWO

1. Resolute Advocacy Does Not Permit Deception

Model Code rule 5.1-1 requires a lawyer acting as advocate to represent the client resolutely and honourably within the limits of the law.

The same rule requires candour, fairness, courtesy and respect toward the tribunal.

Professional responsibility does not require Vela to weaken Dovetail’s legitimate case.

It does require her to distinguish legitimate advocacy from participation in falsehood.

The Altered Email

2. Vela Can No Longer Treat the Produced Email as Authentic

Once Vela confirms that:

“Replace it immediately”

was added after the fire, she knows the produced document creates a false impression concerning the pre-fire record.

She cannot:

• rely on it as genuine;

• use it to suggest Kellen responded before the fire;

• permit the tribunal to be knowingly misled by it; or

• assist Dovetail in maintaining the deception.

3. The Client’s Instruction Not to Mention the Alteration Does Not Control

A lawyer is not entitled to follow instructions that require professional misconduct.

Rule 5.1 and the broader prohibition against assisting client dishonesty constrain Vela’s conduct even where the client wants silence.

The CEO’s instruction:

“We hired you to win”

misunderstands the advocate’s role.

4. Vela Must Take Reasonable Steps to Correct Her Prior Unknowing Participation

The Model Code specifically addresses a lawyer who discovers that something previously done unknowingly would have breached the advocacy rules if done knowingly.

The lawyer must, subject to confidentiality, disclose and take reasonable steps to rectify the error or omission.

Here the false document has already been produced in litigation.

Allowing the opposing party and tribunal to proceed on a false evidentiary record creates a direct administration-of-justice concern.

5. Rectification Does Not Necessarily Require Uncontrolled Disclosure of Every Client Communication

Vela should disclose and correct what is necessary to prevent reliance on the false document.

She need not gratuitously reveal every privileged discussion with Kellen or the CEO.

The task is to correct the false evidentiary position while preserving confidentiality to the extent the rules permit.

Kellen’s Testimony

6. Vela Cannot Facilitate Evasive Testimony Designed to Preserve a False Impression

Kellen proposes to say:

“I do not remember exactly”

in response to a question whose substance he understands perfectly.

He knows the response was written after the fire.

An intentionally evasive answer designed to cause the court to believe the response may have been contemporaneous would be misleading.

Vela cannot coach him to exploit wording so as to convey a false impression.

7. “Answer Only What Is Asked” Is Not Inherently Improper

Lawyers frequently advise witnesses:

• to listen carefully;

• answer the question actually asked;

• avoid speculation; and

• not volunteer irrelevant information.

That is legitimate witness preparation.

The difficulty here is context.

Vela knows Kellen plans to use literal incompleteness as a device to hide the truth.

Her advice risks becoming assistance in misleading testimony.

8. Vela Must Correct the Instruction

She should tell Kellen that:

• he must answer truthfully;

• he cannot deliberately create a false impression;

• she cannot present testimony she knows to be false or misleading.

If Dovetail insists on the contrary, withdrawal may become necessary.

Paloma

9. Witness Preparation May Improve Recollection but Cannot Manufacture It

A lawyer may:

• review documents with a witness;

• ask the witness to think carefully;

• test memory;

• explain the trial process; and

• prepare the witness for questioning.

The lawyer must not influence a witness to give false, misleading or evasive evidence.

10. Paloma’s Initial Statement Is Important

Paloma originally said:

“I did not personally hear Kellen…”

and then volunteered that she could say she did if that would help.

That is a glaring warning.

Her later claim to have remembered the event should therefore be treated very cautiously.

11. Vela Cannot Call Paloma to Give Evidence She Believes Is Fabricated

A lawyer does not need absolute metaphysical certainty that every witness is truthful.

But Vela cannot knowingly present evidence she believes is false.

She should probe whether any genuine memory has emerged.

If the supposed recollection is merely Paloma adopting a useful story, Vela must not present it.

The Accidentally Sent Strategy Memorandum

12. The Obvious Nature of the Mistake Matters

The document was titled:

PLAINTIFF TRIAL STRATEGY — PRIVILEGED

Vela recognized immediately that it had been sent accidentally.

Continuing to read all six pages after appreciating the mistake was professionally problematic.

13. Professional Conduct Does Not Treat an Obvious Mistake as a Tactical Gift

The relationship among lawyers is governed by duties that extend beyond whatever advantage procedural law might technically permit.

The Model Code discourages sharp practice and taking improper advantage of mistakes not going to the merits.

Vela should have stopped reading once the nature of the document became apparent and promptly notified opposing counsel.

14. Forwarding the Document to the Client Aggravated the Problem

Instead, she:

• continued reading;

• extracted strategic information; and

• forwarded it to Dovetail.

That increased the risk that confidential or privileged information would be used improperly.

She should now obtain advice concerning the appropriate remedial steps and should not continue exploiting the information.

The ultimate evidentiary or privilege consequences are matters of substantive law, but her professional conduct is independently problematic.

Communication With the Judge’s Assistant

15. Administrative Communication Is Permissible

Lawyers may communicate with a tribunal concerning genuine administrative matters such as:

• scheduling;

• filing arrangements; or

• other routine logistics,

subject to governing procedures.

The original request for a readiness update was administrative.

16. Vela’s Response Became Substantive

Vela did more than say:

“We are ready.”

She told the judge’s office that the plaintiff had:

“serious unresolved expert-evidence problems.”

That is a substantive comment on the opponent’s case.

17. Single-Party Substantive Communications Are Generally Improper

Model Code rule 5.1-2C restricts substantive communications with a tribunal in the absence of the opposing party or counsel unless authorized by law and appropriate notice requirements are satisfied.

The danger is obvious.

A lawyer should not privately influence the judge concerning:

• the merits;

• credibility;

• evidentiary weaknesses; or

• strategic matters

without the opponent knowing and having an opportunity to respond.

18. Copying Opposing Counsel Would Have Materially Changed the Situation

Had Vela sent an appropriate joint or copied communication responding to the judge’s request, the secrecy concern would be greatly reduced.

Instead, she deliberately omitted opposing counsel and injected an adverse substantive observation.

She should promptly correct the situation.

19. Withdrawal May Become Necessary if the Client Persists

Vela should first attempt to:

• correct the document issue;

• prevent false testimony; and

• explain her professional constraints.

If Dovetail insists that she continue conduct contrary to professional ethics, obligatory withdrawal principles may apply.

Timing matters because trial is imminent.

Vela cannot use withdrawal casually in a way that unnecessarily prejudices the client or disrupts the court.

20. Overall Advice

Vela’s principal obligations are to:

• correct the false documentary record;

• prevent Kellen from giving deliberately misleading testimony;

• refuse to present fabricated evidence from Paloma;

• cease exploiting the accidentally transmitted strategy document and take appropriate corrective steps; and

• correct the improper substantive ex parte communication.

Resolute advocacy permits aggressive lawful representation.

It does not permit a lawyer to convert client loyalty into participation in deception.

Brickam’s Suggested Marking Approach — Question Two

Issue	Marks
Advocate’s dual duties under Model Code rule 5.1-1; resolute representation within limits of law	3
Altered document: knowledge of falsity, prohibition on reliance and obligation to rectify prior unknowing conduct	6
Kellen: distinction between proper preparation and facilitation of evasive/misleading testimony	4
Paloma: prohibition against influencing or presenting false evidence; significance of initial admission	4
Mistakenly transmitted strategy memorandum; sharp practice, continued reading and forwarding to client	4
Improper substantive single-party communication with tribunal under rule 5.1-2C	3
Overall remedial/withdrawal advice	1
TOTAL	25

QUESTION THREE

20 marks — suggested time: 36 minutes

FACTS

Aster Blythe, a lawyer with 17 years of commercial experience, has recently begun offering mediation services.

Two shareholders, Corwin Rusk and Marlowe Stenn, retain Aster to mediate a dispute concerning their software company.

At the beginning of the first session, Aster says:

“I am neutral. My role is to help you reach an agreement.”

She provides a standard mediation agreement stating that:

• she does not act as counsel for either party;

• each party may obtain independent legal advice; and

• mediation communications are confidential subject to applicable law.

During private caucus, Corwin tells Aster:

“The company may run out of cash in 30 days. Marlowe does not know. If she knew, she would never accept the buyout price I am proposing.”

Aster asks whether Corwin authorizes her to disclose the information.

Corwin says:

“Absolutely not.”

During a later joint session, Marlowe asks Aster:

“Is there anything you know that makes this offer much worse for me than it looks?”

Aster responds:

“I cannot disclose what either party tells me privately.”

Marlowe then asks:

“As a lawyer, do you think the share-purchase clause Corwin drafted actually protects me?”

Aster replies:

“I think the clause is probably enforceable, and commercially I would be comfortable signing it.”

Marlowe signs a tentative term sheet.

The mediation then collapses over another issue.

Two days later, Corwin asks Aster to represent him in litigation against Marlowe arising from the shareholder dispute.

He says:

“You already understand the file better than anyone, and Marlowe signed an agreement acknowledging that you were not her lawyer.”

Aster is tempted to accept.

She knows from mediation that Marlowe:

• has serious personal financial difficulties;

• told Aster privately that she cannot fund prolonged litigation; and

• would probably accept substantially less than her stated minimum settlement position.

A separate lawyer, Tobias Kern, takes over negotiations for Corwin.

Tobias sends Marlowe’s counsel the following letter:

“Unless your client accepts $425,000 by Friday, we will report her conduct to the securities regulator and ask that a formal investigation be commenced.”

Corwin has a plausible regulatory complaint.

However, Tobias privately tells Corwin:

“The regulator is leverage. Once she signs the release, there is no reason for us to bother.”

During settlement discussions, Tobias also says:

“Corwin will not pay a cent above $425,000.”

In fact, Corwin authorized settlement up to $550,000.

Marlowe ultimately accepts $430,000.

QUESTION

Advise Aster and Tobias concerning the professional-responsibility issues arising from the mediation and subsequent settlement negotiations.

20 MARKS

THE BRICKAM EXPLANATION — QUESTION THREE

1. Aster’s Role as Mediator Is Fundamentally Different From Acting as Counsel

Model Code rule 5.7-1 requires a lawyer acting as mediator to make clear at the outset that:

• the lawyer does not act as counsel for either party; and

• the lawyer is assisting the parties as a neutral dispute resolver.

Aster initially did this appropriately.

The written mediation agreement reinforces the point.

2. Neutrality Does Not Mean Aster May Become One Party’s Strategic Ally

The mediator receives information from both sides in a role premised upon neutrality.

Aster therefore cannot simply change hats once the mediation fails and use what she learned against Marlowe.

The signed acknowledgement that she was not Marlowe’s lawyer does not eliminate:

• mediator confidentiality;

• conflict concerns; or

• the integrity of the mediation process.

3. Corwin’s Cash-Flow Disclosure Creates a Classic Mediation Confidentiality Problem

Corwin expressly refused consent to disclosure.

Aster was therefore correct not to reveal the information to Marlowe merely because it was commercially important.

A mediator must be able to receive confidential caucus information without automatically communicating it to the other side.

4. But Aster Must Consider Whether Continuing the Mediation Remains Fair and Viable

Confidentiality can create difficult practical problems.

A mediator who knows that one party is negotiating under a materially mistaken understanding may need to consider:

• whether the mediation can continue fairly;

• whether the disclosing party should be encouraged to disclose the information;

• whether the mediator should withdraw if the process becomes untenable.

The answer is not simply:

“Reveal the secret because fairness requires it.”

The mediator’s own confidentiality obligations remain significant.

5. Aster Crossed Toward Individual Legal Advice

Marlowe asked whether the clause protected her.

Aster did not merely explain neutrally:

“This clause raises these competing interpretations.”

She said:

“I think the clause is probably enforceable, and commercially I would be comfortable signing it.”

That sounds much more like individualized advice.

It risks confusing Marlowe about Aster’s role.

6. The Better Course Was to Maintain Neutrality and Encourage Independent Advice

Aster could:

• explain the issues neutrally;

• identify that the clause has legal consequences;

• recommend that both parties obtain independent legal advice before signing.

The Model Code commentary expressly contemplates encouraging independent counsel where a lawyer-mediator prepares or assists with settlement documents.

7. Aster Should Not Now Act for Corwin in the Same Dispute

The proposed litigation arises directly from the mediated dispute.

Aster possesses highly sensitive information from Marlowe, including:

• financial vulnerability;

• litigation capacity; and

• settlement limits.

Acting for Corwin would place Aster in a position where her duties and confidential knowledge from the mediation materially conflict with the interests of Marlowe and the integrity of her former neutral role.

8. The Formal Disclaimer Does Not Cure the Problem

Corwin’s argument focuses only on whether Aster was formally Marlowe’s lawyer.

That is too narrow.

The issue is not exclusively a former-client conflict.

It also concerns:

• confidential information received as mediator;

• the duty attached to a neutral role; and

• public confidence in mediation.

A party must be able to participate candidly without fearing that the mediator will later become opposing counsel.

Tobias

9. The Threat to Report Marlowe Is Professionally Problematic

Model Code rule 3.2-5 prohibits using the threat of criminal, quasi-criminal or regulatory proceedings as leverage to obtain a benefit for a client.

Tobias expressly says:

accept the monetary settlement or we will report you to the securities regulator.

That is precisely the type of leverage the rule addresses.

10. A Genuine Regulatory Concern Does Not Make the Threat Proper

Corwin may possess a legitimate complaint.

He may be entitled to make it.

The professional problem arises from using the threatened regulatory process to secure a private civil advantage.

Tobias’s private comment confirms the purpose:

“The regulator is leverage.”

That makes the issue especially clear.

11. The Settlement May Have Civil Consequences Beyond the Ethics Question

Whether Marlowe can later attack the settlement under substantive contract law is outside this question.

For professional-responsibility purposes, Tobias’s method of obtaining bargaining leverage is improper regardless of whether the resulting agreement is legally enforceable.

Negotiation Statements

12. Not Every Negotiating Statement Is Treated as a Representation of Objective Fact

Negotiation inherently involves strategic positioning.

A statement such as:

“My client will not pay above $425,000”

may function as a bargaining position rather than a factual representation susceptible to literal verification.

Professional rules do not require lawyers to disclose their clients’ confidential settlement authority.

13. But Negotiation Does Not Create a General Licence to Lie

The fact that bargaining permits strategic positioning does not authorize deliberate misrepresentation about:

• material objective facts;

• the existence of documents;

• legal authority;

• or other matters upon which the opposing party is entitled to rely.

The line between permissible bargaining and dishonesty is contextual.

14. Tobias’s Statement About Settlement Authority Is More Defensible Than His Regulatory Threat

His representation that Corwin:

“will not pay a cent above $425,000”

is conventional positional bargaining.

Requiring a lawyer to reveal a client’s true reservation price would undermine ordinary negotiation.

On these facts, it is materially different from falsely claiming, for example, that:

• an offer has been received;

• a court order exists;

• or a payment has already been made.

15. The Two Issues Should Not Be Collapsed

A sophisticated answer should therefore distinguish:

Likely permissible: hard bargaining concerning settlement position.

Improper: threatening regulatory proceedings to obtain private civil advantage.

16. Overall Advice

Aster should not accept Corwin’s retainer.

Her knowledge from the confidential mediation and her former neutral role make representation in the same dispute professionally untenable.

She also should have been more disciplined in distinguishing neutral legal information from individual advice to Marlowe.

Tobias’s undisclosed settlement authority does not make every statement concerning bargaining position dishonest.

His explicit use of threatened regulatory proceedings as settlement leverage, however, breaches the professional limitation on such threats.

Brickam’s Suggested Marking Approach — Question Three

Issue	Marks
Mediator’s neutral role and obligation to make role clear under Model Code rule 5.7-1	3
Confidential caucus information and limits on disclosure	3
Aster’s individualized advice to Marlowe and need to preserve neutral role / recommend independent legal advice	3
Post-mediation representation of Corwin; confidential information, conflict and integrity of neutral process	5
Tobias’s threat of regulatory proceedings for private advantage under rule 3.2-5	3
Distinction between permissible positional bargaining and prohibited dishonesty in negotiation	2
Overall conclusion	1
TOTAL	20

QUESTION FOUR

15 marks — suggested time: 27 minutes

FACTS

Jude Corbett, a criminal defence lawyer, represents Silas Marr on a charge of armed robbery.

Silas initially tells Jude:

“I did not do it.”

Two weeks before trial, Silas changes his account.

He tells Jude:

“Fine. I was there and I took the money. But the Crown cannot prove it. Their witness barely saw my face.”

Silas says he still intends to plead not guilty.

He asks:

“You can still argue I was not the robber, right?”

Jude responds:

“The Crown has the burden. You do not have to plead guilty because you confessed to me.”

Silas then says that his cousin Nico is prepared to testify that Silas was with him in another city at the time of the robbery.

Jude asks whether that is true.

Silas laughs and says:

“No. But Nico owes me.”

Jude says he cannot call false evidence.

Silas replies:

“Then do not ask him directly. Put him on the stand and let him say what he wants.”

A further complication arises.

The complainant suffered a relatively minor physical injury during the robbery.

Silas tells Jude that his family can pay the complainant $20,000.

He asks Jude to tell the complainant:

“Take the money and ask the Crown to drop the charges.”

Silas says:

“That is not a threat. Everybody wins.”

Jude has not discussed such a proposal with the Crown.

Finally, Silas owes Jude $18,000 in legal fees.

Trial begins in nine days.

Jude tells Silas:

“If the outstanding account is not paid by Friday, I am withdrawing.”

The court has already refused one earlier adjournment and has indicated that the trial will proceed as scheduled.

QUESTION

Advise Jude concerning how he may continue to defend Silas, the proposed alibi evidence, the payment proposal to the complainant and Jude’s ability to withdraw for non-payment of fees.

15 MARKS

THE BRICKAM EXPLANATION — QUESTION FOUR

1. A Private Confession Does Not Require the Client to Plead Guilty

Silas remains entitled to plead not guilty.

The Crown bears the burden of proving the offence.

Defence counsel may continue to require the Crown to prove:

• identity;

• every element of the offence; and

• admissibility and reliability of its evidence.

Jude is not required to become a prosecutor against his own client.

2. But Counsel’s Knowledge Limits What He May Positively Assert

Jude now knows from Silas that Silas committed the robbery.

That limits counsel’s ability to advance a factual case he knows to be false.

There is an important distinction between:

“The Crown has not proven beyond a reasonable doubt that Silas was the robber”

and

“Silas was somewhere else and therefore could not have been the robber.”

The former tests the prosecution.

The latter affirmatively advances a factual proposition Jude knows to be false.

3. Jude Cannot Present the Fabricated Alibi

Silas expressly admits that Nico’s proposed evidence is false.

Jude therefore cannot:

• call Nico to present the false alibi;

• structure questions designed to place the false story before the court;

• deliberately avoid asking the obvious question so that he can later claim ignorance.

A lawyer cannot manufacture ethical blindness.

4. The Client’s Proposed Workaround Does Not Help

Silas says:

“Do not ask him directly.”

But Jude already possesses actual knowledge of the fabrication from Silas.

The instruction therefore does not restore innocence or uncertainty.

If Silas persists in demanding that Jude present false evidence, Jude must refuse.

Persistent instructions requiring counsel to act contrary to professional ethics may require withdrawal.

Payment to the Complainant

5. Restitution Is Not Itself Improper

An accused may legitimately wish to:

• compensate a victim;

• make restitution;

• resolve a related civil claim; or

• have genuine remedial conduct considered by the prosecution or sentencing court.

The problem is the proposed quid pro quo.

6. Jude Cannot Simply Offer Money in Exchange for Influencing the Prosecution

The Model Code restricts giving or offering valuable consideration in exchange for influencing the conduct of a criminal or regulatory proceeding.

A lawyer also cannot privately assure an accused that payment to a complainant will produce withdrawal of the charge.

7. Crown Involvement Is Critical

Where a restitution proposal forms part of discussions concerning:

• withdrawal;

• reduction of charges; or

• sentence,

the proper course requires appropriate involvement or consent of the Crown before counsel privately negotiates such an arrangement with the complainant.

Silas’s proposed message:

“Take $20,000 and ask the Crown to drop the charges”

is therefore not something Jude should deliver independently.

Withdrawal for Unpaid Fees

8. Non-Payment Can Sometimes Justify Withdrawal

The Model Code permits withdrawal for unpaid fees in appropriate circumstances following reasonable notice.

But criminal proceedings receive particular protection because abrupt withdrawal can jeopardize:

• the accused’s fair-trial rights;

• orderly administration of justice; and

• the court schedule.

9. Nine Days Before Trial Is Highly Problematic

The trial is imminent.

The court has already refused an adjournment.

Replacement counsel would have almost no time to prepare.

The Model Code specifically limits withdrawal for non-payment where there is insufficient time for new counsel to prepare and an adjournment cannot be obtained without prejudice.

Jude therefore cannot treat:

“Pay by Friday or I am gone”

as an ordinary commercial collection device.

10. Ethical Withdrawal for False-Evidence Instructions Is Different

If Silas persists in requiring Jude to present false evidence, the basis for withdrawal becomes more serious than unpaid fees.

Even then:

• confidentiality must be preserved;

• Jude ordinarily cannot tell the Crown or judge that his client confessed or proposed perjury;

• court permission may be required because trial is imminent.

He should disclose no more than is professionally permitted in seeking leave.

11. Overall Advice

Jude may continue to defend Silas by:

• challenging the Crown’s proof;

• challenging admissibility and credibility;

• making lawful legal arguments; and

• insisting upon proof beyond a reasonable doubt.

He cannot present the false alibi or facilitate payment to the complainant in exchange for an attempt to influence the prosecution.

Non-payment alone is unlikely to justify withdrawal nine days before trial where replacement counsel cannot realistically prepare.

Brickam’s Suggested Marking Approach — Question Four

Issue	Marks
Distinction between putting Crown to proof and affirmatively advancing factual innocence known to be false	4
False alibi; prohibition on knowingly presenting false evidence and effect of client’s proposed workaround	3
Payment/restitution proposal and prohibition on using valuable consideration to influence criminal proceeding without appropriate Crown involvement	3
Withdrawal for non-payment in imminent criminal trial	3
Withdrawal if client persists in unethical instructions; protection of confidentiality	1
Overall conclusion	1
TOTAL	15

QUESTION FIVE

15 marks — suggested time: 27 minutes

FACTS

Lowbridge Legal Group is a small firm attempting to provide lower-cost family-law services.

Its managing lawyer, Petra Solin, believes conventional legal services are unaffordable for many separating spouses.

Lowbridge advertises an online service called:

DivorceDirect — Complete Lawyer-Approved Family Court Packages for $999

The website states:

“Get the same legal quality as a traditional family lawyer without traditional legal fees.”

Clients complete an online questionnaire.

Most of the work is then handled by Arlo Quinn, a non-lawyer employed by Lowbridge.

Arlo:

• interviews clients about parenting and support;

• tells them which claims he thinks are strongest;

• chooses which facts should appear in affidavits;

• gives clients his opinion about likely court outcomes; and

• drafts the court documents.

Petra ordinarily reviews a completed package for approximately 10 to 15 minutes before her electronic signature is added.

She rarely speaks with the client.

When one associate questioned the arrangement, Petra said:

“Arlo has done family files for eight years. The whole point is to avoid charging clients $400 an hour for a lawyer to do routine work.”

A client, Wren Dalcourt, purchases the service.

Wren’s questionnaire indicates:

• she recently lost her job;

• she has no savings;

• she receives income assistance; and

• her former spouse has retained experienced counsel.

Wren asks Arlo:

“Do I qualify for Legal Aid?”

Arlo replies:

“Probably, but their process takes forever. You have already paid us, so we might as well keep moving.”

Petra never discusses Legal Aid with Wren.

Lowbridge’s $999 fee agreement describes the payment as:

“fully earned upon receipt and non-refundable.”

The package ultimately prepared for Wren omits a major pension claim because Arlo does not recognize the legal issue.

Petra does not notice the omission.

Lowbridge acquires many DivorceDirect clients through a popular social-media creator named Cade Pell.

Cade is not a lawyer.

For every customer who enters Cade’s promotional code, Lowbridge pays him $150.

Cade posts:

“DivorceDirect is basically a full lawyer for one-tenth the price. They win almost every case.”

Lowbridge has never measured its success rate.

Petra knows Cade makes these statements but says:

“He is an independent marketer. We do not control his content.”

Wren files a complaint.

Petra responds:

“The whole profession complains about access to justice, but as soon as somebody makes legal services affordable, everyone suddenly wants expensive lawyers involved again.”

QUESTION

Advise Petra concerning the professional issues raised by Lowbridge’s service model. In your answer, consider competence, supervision and unauthorized practice, fees, marketing, referral payments and access to justice.

15 MARKS

THE BRICKAM EXPLANATION — QUESTION FIVE

1. Access to Justice Is a Legitimate Professional Objective

Petra begins from a real concern.

The Professional Responsibility syllabus expressly asks candidates to consider:

• unmet legal needs;

• fees;

• alternative service delivery;

• paralegals;

• pro bono work; and

• the profession’s responsibility for access to justice.

The Model Code likewise encourages making legal services available efficiently and conveniently.

Innovation is not professionally suspect merely because it lowers cost.

2. Access to Justice Does Not Eliminate the Duty of Competence

Model Code rule 3.1-2 requires a lawyer to perform all legal services undertaken to the standard of a competent lawyer.

A low fee does not create a lower professional standard.

Limited-scope or streamlined services may be legitimate, but the lawyer must ensure that the work promised is actually performed competently within the defined scope.

3. Petra Retains Professional Responsibility for the Legal Service

Petra cannot solve the competence problem by saying:

“Arlo did the work.”

Lowbridge markets the product as:

“lawyer-approved”

and Petra adds her professional signature.

She therefore assumes responsibility for the legal service being delivered.

4. Arlo Is Exercising Core Legal Judgment

Administrative delegation is entirely different from allowing a non-lawyer to function independently as the client’s legal adviser.

Arlo:

• evaluates legal claims;

• predicts outcomes;

• selects legally significant facts;

• advises clients what they should pursue; and

• constructs sworn litigation material.

Those tasks involve legal judgment.

The arrangement creates a serious unauthorized-practice and professional-supervision concern.

The Model Code requires lawyers to assist in preventing unauthorized practice.

5. Ten-Minute Review May Be Inadequate

Efficiency is not measured simply by how quickly Petra can sign the finished package.

The pension omission demonstrates the risk.

A competent lawyer reviewing a family-law matter must be able to identify major rights affected by the retainer.

A superficial review cannot cure the delegation of professional judgment if the lawyer does not genuinely evaluate the file.

Wren and Legal Aid

6. Wren’s Financial Circumstances Raised an Obvious Access Issue

Wren:

• had no employment;

• had no savings;

• was receiving public assistance; and

• specifically asked about Legal Aid.

The Model Code commentary concerning making legal services available recognizes that a lawyer who knows or has reasonable grounds to believe a person is entitled to Legal Aid should advise the person of the right to apply unless circumstances indicate otherwise.

7. The Existing Fee Does Not Justify Silence

The reasoning:

“You already paid us”

puts the firm’s financial interest ahead of the client’s informed choice.

Petra should not withhold a potentially important lower-cost source of representation simply because Lowbridge has already received money.

Fees

8. Fees Must Be Fair, Reasonable and Properly Disclosed

Model Code rule 3.6-1 requires fees and disbursements to be fair, reasonable and disclosed in a timely way.

A fixed fee is not improper.

Indeed, predictable pricing can improve access to justice.

The concern is the description:

“fully earned upon receipt and non-refundable.”

9. Calling Money “Non-Refundable” Does Not Automatically Make It So

Professional fee obligations cannot necessarily be avoided through contractual labels.

If services have not been performed, or the retainer ends early, the lawyer must consider:

• what work was actually done;

• the governing trust and fee rules;

• whether the amount retained is fair and reasonable.

A clause designed to make every dollar irrevocably the lawyer’s before meaningful work occurs is professionally questionable.

Marketing

10. Low-Cost Legal Services May Be Marketed

There is no general prohibition against:

• online advertising;

• fixed-price services;

• comparison with traditional delivery models; or

• making legal services more accessible.

The problem is misleading marketing.

11. “Same Legal Quality” May Become Misleading in Context

The website promises:

“the same legal quality as a traditional family lawyer.”

If clients receive almost all substantive legal analysis from an unsupervised non-lawyer and only cursory lawyer review, that representation may not accurately describe the service.

Marketing must correspond to what is actually delivered.

12. Cade’s Claims Are More Clearly Problematic

Cade says:

“They win almost every case.”

Lowbridge has no data supporting that statement.

The claim is therefore at least potentially false or misleading.

Petra cannot necessarily avoid responsibility merely by outsourcing promotion to a non-lawyer where the firm knowingly benefits from and facilitates the advertising arrangement.

Referral Payment

13. Paying a Non-Lawyer Per Client Creates a Separate Problem

Lowbridge pays Cade $150 for each client generated.

The Model Code restricts lawyers from:

• sharing fees with non-lawyers; and

• giving financial or other rewards for the referral of clients,

subject to defined exceptions.

A per-client promotional payment has the substance of a referral reward.

It is different from paying a marketer a normal market-rate fee for legitimate advertising services that does not depend on delivering particular clients.

14. Access to Justice Does Not Excuse These Defects

Petra’s policy argument has some force.

Professional regulation should not unnecessarily preserve expensive methods of practice.

But access to justice requires effective legal assistance, not merely cheaper assistance.

A model that:

• conceals legal-aid options;

• permits non-lawyers to exercise unsupervised professional judgment;

• misses major claims;

• uses potentially misleading marketing; and

• pays per-client referral rewards

cannot be defended simply by pointing to affordability.

15. The Better Model Is Affordable but Genuinely Lawyer-Supervised

Lowbridge could legitimately pursue:

• fixed-fee services;

• limited-scope retainers;

• technology-assisted document preparation;

• standardized workflows;

• trained non-lawyer assistance; and

• efficient lawyer review.

But the lawyer must remain responsible for the professional judgment and competence that make the service legal representation rather than mere document processing.

16. Overall Advice

Petra’s access-to-justice objective is professionally legitimate.

The current implementation is not.

The principal problems are:

• inadequate lawyer involvement;

• unauthorized or insufficiently supervised legal advice by Arlo;

• failure to advise Wren concerning Legal Aid;

• potentially unreasonable/non-refundable fee treatment;

• unsupported marketing claims; and

• per-client payments to a non-lawyer referral source.

Affordable legal services remain subject to the same core professional obligations as conventional representation.

Brickam’s Suggested Marking Approach — Question Five

Issue	Marks
Recognizes access to justice and efficient service delivery as legitimate professional objectives	2
Competence under rule 3.1; significance of pension omission and cursory review	3
Non-lawyer legal judgment, lawyer responsibility and unauthorized-practice concern	3
Failure to advise Wren regarding Legal Aid	2
Fees: fairness, disclosure and problem with “fully earned/non-refundable” characterization	2
Misleading marketing and unsupported success claims	1
Payment to non-lawyer for client referrals	1
Overall synthesis	1
TOTAL	15

Overall Mark Allocation

Question	Marks
Question One — Organizational Client, Corporate Wrongdoing and Confidentiality	25
Question Two — Advocacy, False Evidence and Duties to the Tribunal	25
Question Three — Mediation, Negotiation and Professional Independence	20
Question Four — Criminal Defence Ethics and Withdrawal	15
Question Five — Competence, Fees, Marketing and Access to Justice	15
TOTAL	100