Red Thomas and Kristy McClure planned to divorce. They had separate bank accounts and kept their finances separate. Kristy was a successful CEO at a large corporation. Red had been out of work for the past few months and had drained almost all his savings, so, when he met with attorney Jessica Selwin, he said, "Look, I'll be honest with you. I'm broke. I can't afford your fees. But Kristy has lots of money. How about if you take 20% of whatever you can get me?" "That sounds a little risky for me. Let's make it 25%, okay?" replied Jessica. "That works for me, but what about expenses," said Red. "Let's not worry about that now," Jessica responded, "I've got a lot of people who want to work with me. Do you want me to represent you in this case or not?" "I guess so," said Red, "do I need to sign anything?" "No, I'll send you an email later summarizing what we discussed," answered Jessica, "just keep that for your records and we're all set." Jessica requested a $500 deposit from Red to cover any expenses. To make it easy to use her debit card as expenses came in, Jessica opted to deposit the $500 in her personal account. (She had done this before and always kept careful records to make sure that she didn't spend client money on her personal expenses.) At the bank, Jessica ran into Kristy, who Jessica realized she knew from the sorority they both belonged to in college. While they were waiting in line, Jessica began talking to Kristy, first about the good times they'd had in college, then about the divorce. "Who's your attorney?" Jessica asked. "Bill Schinder," she responded. "Oh, I know Bill. He's a good guy," Jessica said, "You know Red is a little desperate. He really just wants to get this divorce over with and get some money. If I were you, I'd settle quickly and move on with your life." "I'd like to just get it over with too," said Kristy, "what do you think Red would be willing to settle for?" "Well, I don't know if this is the place to get into the details, why don't you and Bill come by my office tomorrow and we can talk more?" "Tomorrow works for me," said Kristy. Bill was charging Kristy by the hour. To prepare for the meeting, he spent 3 hours and 2 minutes reviewing all the facts of the case, 2 hours and 27 minutes refreshing his memory on a few aspects of relevant law he hadn't dealt with recently, and 4 hours and 18 minutes in the meeting itself. Bill charged in 15-minute increments and billed Kristy as follows: 3 hours, 15 minutes for reviewing the facts. 2 hours, 30 minutes for refreshing his memory on the law. 4 hours, 30 minutes for the negotiations. 1 hour for time he estimated that he'd spent thinking about the case while driving to work. Most divorce attorneys in the town charge $200 an hour, but Bill charges $350 per hour. "Because I'm the only one in town who graduated from Yale Law," he told Kristy when she'd asked why his fee was higher. During the meeting, Bill suggested that it would be wise for Red to settle given his poor financial situation. Jessica jumped in and said, "that may have been the case before, but Red's uncle is going to let him live with him and promised to make sure he has everything he needs until this divorce is finalized." (Jessica said this to give Red a better position in the negotiations. In fact, Red's uncle did not even know Red was getting a divorce.) During a break in the meeting, Jessica got up to use the restroom and left her phone on the table. Earlier, she'd told Red to text her during the negotiations if he thought of anything relevant. Red didn't realize Jessica had left her phone and texted her, "Does it matter that I had an affair? Kristy doesn't know and don't think she could find out but thought I should mention to you just in case it's relevant." Jessica had her phone set to show a preview of emails and texts when the phone was locked, and Bill saw the mention of the affair when Red's text came through.

Analyze Jessica and Bill's situations under the Model Rules of Professional Conduct.

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