February 25, 2010
PL 305--Legal Ethics
In class tonight, Thursday 2/25, I distributed three handouts: a comment key to my comments on the Corey case briefs; Rules 1.7 through 1.10 of the MRPC; and the take-home exam that is due next Thursday (reproduced below). I returned the Corey case briefs, and we went over them. We went over the requirements for the exam. We then spent the rest of the class going over the rules for Conflicts of Interest, including the Maine conflicts rules, how to do a conflicts check, and the rules regarding screening of paralegals. The assignment for Thursday 3/4 is to complete the take-home exam.
PL 305 LEGAL ETHICS TAKE-HOME EXAM FEBRUARY 25, 2010
INSTRUCTIONS: This exam is due at the beginning of class on Thursday March 4, 2010. If you cannot be in class next Thursday, you should e-mail your exam to me by that time at goldmans@husson.edu; you may attach it if you use a .doc format, but not if you use .docx or other formats. If in doubt, just copy and paste it into the e-mail. The exam should be written by yourself (no collaborative writing). There’s no need to repeat the questions in your exam-- just show me the answers.
All of the situations are governed by Maine law, unless otherwise indicated. Each of the questions requires specific authority from Maine, such as a statute, case, or Rule. You do not have to do any research for these questions--they are to be answered in accordance with the principles and cases and statutes that we have already discussed in class. The cases may include both the cases that were assigned for your reading, and cases that I went over in class. You need to cite the appropriate authority, to write good English, and to get to the point in answering the question. Use quotations only as necessary, and only in snippets--the writing is your own, not a dropped-in collection of long quotations from court opinions and statutes. If you need more information in order to answer a question, state specifically what information is necessary, and precisely how it would impact your answer.
If you have questions about what I am asking, you can e-mail me. Remember that you can consult the blog (www.goldmanhusson.blogspot.com) for the rundown of all the cases discussed in class.
SAMPLE: You have landed a lucrative job in New Jersey with a corporation that has many employees...but not as many as it did before it fired a number of employees for trying to form a union. Your job is to represent the corporation in unemployment hearings, trying to deny unemployment benefits to the fired workers. The state regulation allows this representation by paralegals. There are corporate lawyers who are your direct superiors, but they know nothing about unemployment law, and they leave these hearings pretty much just up to you. During the course of your preparation for the hearing, you discuss the cause of the firing with several corporation management types, and you advise them about unemployment law. You end up winning the hearings, but the employees file suit in federal court, saying that their federal rights to organize unions was violated. During the discovery phase of the case, the workers want to look at documents (file memos) that you wrote up from your conversations with corporate employees regarding the interplay between federal labor law and unemployment insurance. Now the corporate lawyers come into the case, to resist the discovery demand on the basis of attorney-client privilege.
Evaluate whether, in federal court, the attorney-client privilege will protect your file memos from discovery.
ANSWER: The answer in this case would be governed by HPD Laboratories v. Clorox, 202 FRD 410 (D. NJ., 2001). In that case, the corporate paralegal was giving her own advice to corporate employees, (as opposed to passing along the advice of attorneys). She also was not acting under the supervision or guidance of the corporate attorneys. The court found that, under those circumstances, the attorney-client privilege did not attach. Our case has the same circumstances (no supervision, the advice was not passing along the advise of the attorneys) so the result should be the same--no privilege, and the memos will be discoverable.
1. You have graduated from Husson as a paralegal, and are ready to go out and make your way in the world. You are not enamored with the idea of working for a lawyer, though, and so you decide to set up an independent practice on your own. You research Maine state administrative regulations, and find that you are allowed to represent people in their unemployment hearings as an “authorized agent”. Explain how you might, despite this administrative regulation, still run into trouble with the Maine Supreme Court in representing parties in administrative hearings.
2. You are still going for that independent practice, and you have to decide what to call the business. You think that this might draw people in:
(Your Name)
Authorized Agent for Unemployment Hearings
Graduate of the Husson University Paralegal Program
Evaluate the legality of this name.
3. Business is a little slow in the unemployment work, and so you decide to branch out to do some bankruptcy work as well, as a Bankruptcy Petition Preparer. You know that you can’t really “represent” someone in the bankruptcy case, but you do want to offer something more than just a typing service. You decide that you will not give clients any “legal advice” about their bankruptcy case; instead, you will simply provide them with a copy of the state exemption statute that lists categories and values of property that debtors may claim exempt in bankruptcy. That’s it--you won’t advise them or answer their questions about exemptions, because you’ve heard that these bankruptcy judges can be a bit testy.
Evaluate the legality of your plan, both under Maine bankruptcy court rulings and under the textbook case from the bankruptcy court in Kentucky.
4. All right, it turns out that this independent practice is just too difficult to maintain. You give in and get a job at a large law office. Tom is the senior partner in the firm, and Jerry is the attorney who directly supervises you. They are delighted that you have taken a legal ethics class in college, because they believe that this will relieve them of the need to train you in your ethical responsibilities in the law office. (In other words, the firm doesn’t train you at all).
Well, wouldn’t you know it, there’s trouble right away. In light of your prior experience, Jerry has assigned you to represent clients in unemployment hearings. You find out a juicy bit of “confidential” information that your client, a well-known figure, was fired for drinking on the job. You naturally share this information in a telephone conversation with your spouse, just like you used to do when you were an independent Authorized Agent. Unfortunately, Jerry overheard part of the conversation, figures out who were talking to, and is upset. When Jerry calms down, though, he tells you to just tell your spouse to not spread the information any further.
Assuming that you shouldn’t have shared this juicy gossip, evaluate both Tom and Jerry’s potential responsibility for your indiscretion.
5. Well, you’re still doing that unemployment hearing with the drinker. In preparing for the hearing, you ask him whether he in fact was drinking on the job. He admits that he was. Your plan then, for the unemployment hearing is to contend that your client couldn’t control his drinking, that he is in fact an alcoholic, and that he was therefore not guilty of misconduct on the job, because his conduct was beyond his control. Your client will testify to this at the unemployment hearing, where the hearing officer, and the employer, and the employer’s lawyer will hear this testimony. Your client gets concerned about this information getting out, though, and so he asks you whether this testimony of his will be subject to the lawyer-client privilege. How will you answer this exact question?
6. Will the problems never end? On the day of the hearing, right before the hearing, your client tells you that he’s going to testify that he never drank on the job. He has seen that the person who actually observed him drinking did not show up at the hearing, and so he figures that there’ll be no one to contradict him if he lies about the drinking. You urge him to tell the truth, but he says he really needs the unemployment money so that he can afford to buy his booze.
Evaluate your ethical responsibilities at the hearing, after what you’ve just been told by your client.
7. Your problems at the hearing aren’t over, though. Assume that you do represent your lying client at the hearing, but there’s another problem. During a recess of the hearing, you inadvertently leave a memo in plain view on the hearing table. The memo is marked “confidential”, and it goes over your earlier conversation with your client in which he admitted to you that he was drinking on the job and was an alcoholic. The other side (employer and employer’s lawyer) read the memo. They want to use the information that they have just learned in the hearing. You don’t want them to do that.
Evaluate whether your inadvertent, yet clearly negligent, failure to protect the memo from searching eyes will result in their ability to use this memo information in their presentation.
8. Your law firm decides to pull you back from doing hearings, and so they put you on telephone duty at the office. Your job is to do the initial telephone answering when a prospective client calls about a case. An employee calls to ask if the firm will represent him in an unemployment case against a big employer in town. He tells you the name of the employer, and tells you that he was unjustly fired because he had “blown the whistle” on some illegal acts of the employer. After getting this information, you inform him that you’ll have to run this by the lawyers in the office, and you’ll be recontacting him.
when you discuss the prospective client with your supervisor Jerry, though, he explodes. “This employer is our biggest unemployment client”, he yells. “If we have to stop representing them because you got too much information from this whistling employee, then you’ll be joining him on the unemployment line”.
Evaluate what are the ethical responsibilities and options of the law firm now.
In class tonight, Thursday 2/25, I distributed three handouts: a comment key to my comments on the Corey case briefs; Rules 1.7 through 1.10 of the MRPC; and the take-home exam that is due next Thursday (reproduced below). I returned the Corey case briefs, and we went over them. We went over the requirements for the exam. We then spent the rest of the class going over the rules for Conflicts of Interest, including the Maine conflicts rules, how to do a conflicts check, and the rules regarding screening of paralegals. The assignment for Thursday 3/4 is to complete the take-home exam.
PL 305 LEGAL ETHICS TAKE-HOME EXAM FEBRUARY 25, 2010
INSTRUCTIONS: This exam is due at the beginning of class on Thursday March 4, 2010. If you cannot be in class next Thursday, you should e-mail your exam to me by that time at goldmans@husson.edu; you may attach it if you use a .doc format, but not if you use .docx or other formats. If in doubt, just copy and paste it into the e-mail. The exam should be written by yourself (no collaborative writing). There’s no need to repeat the questions in your exam-- just show me the answers.
All of the situations are governed by Maine law, unless otherwise indicated. Each of the questions requires specific authority from Maine, such as a statute, case, or Rule. You do not have to do any research for these questions--they are to be answered in accordance with the principles and cases and statutes that we have already discussed in class. The cases may include both the cases that were assigned for your reading, and cases that I went over in class. You need to cite the appropriate authority, to write good English, and to get to the point in answering the question. Use quotations only as necessary, and only in snippets--the writing is your own, not a dropped-in collection of long quotations from court opinions and statutes. If you need more information in order to answer a question, state specifically what information is necessary, and precisely how it would impact your answer.
If you have questions about what I am asking, you can e-mail me. Remember that you can consult the blog (www.goldmanhusson.blogspot.com) for the rundown of all the cases discussed in class.
SAMPLE: You have landed a lucrative job in New Jersey with a corporation that has many employees...but not as many as it did before it fired a number of employees for trying to form a union. Your job is to represent the corporation in unemployment hearings, trying to deny unemployment benefits to the fired workers. The state regulation allows this representation by paralegals. There are corporate lawyers who are your direct superiors, but they know nothing about unemployment law, and they leave these hearings pretty much just up to you. During the course of your preparation for the hearing, you discuss the cause of the firing with several corporation management types, and you advise them about unemployment law. You end up winning the hearings, but the employees file suit in federal court, saying that their federal rights to organize unions was violated. During the discovery phase of the case, the workers want to look at documents (file memos) that you wrote up from your conversations with corporate employees regarding the interplay between federal labor law and unemployment insurance. Now the corporate lawyers come into the case, to resist the discovery demand on the basis of attorney-client privilege.
Evaluate whether, in federal court, the attorney-client privilege will protect your file memos from discovery.
ANSWER: The answer in this case would be governed by HPD Laboratories v. Clorox, 202 FRD 410 (D. NJ., 2001). In that case, the corporate paralegal was giving her own advice to corporate employees, (as opposed to passing along the advice of attorneys). She also was not acting under the supervision or guidance of the corporate attorneys. The court found that, under those circumstances, the attorney-client privilege did not attach. Our case has the same circumstances (no supervision, the advice was not passing along the advise of the attorneys) so the result should be the same--no privilege, and the memos will be discoverable.
1. You have graduated from Husson as a paralegal, and are ready to go out and make your way in the world. You are not enamored with the idea of working for a lawyer, though, and so you decide to set up an independent practice on your own. You research Maine state administrative regulations, and find that you are allowed to represent people in their unemployment hearings as an “authorized agent”. Explain how you might, despite this administrative regulation, still run into trouble with the Maine Supreme Court in representing parties in administrative hearings.
2. You are still going for that independent practice, and you have to decide what to call the business. You think that this might draw people in:
(Your Name)
Authorized Agent for Unemployment Hearings
Graduate of the Husson University Paralegal Program
Evaluate the legality of this name.
3. Business is a little slow in the unemployment work, and so you decide to branch out to do some bankruptcy work as well, as a Bankruptcy Petition Preparer. You know that you can’t really “represent” someone in the bankruptcy case, but you do want to offer something more than just a typing service. You decide that you will not give clients any “legal advice” about their bankruptcy case; instead, you will simply provide them with a copy of the state exemption statute that lists categories and values of property that debtors may claim exempt in bankruptcy. That’s it--you won’t advise them or answer their questions about exemptions, because you’ve heard that these bankruptcy judges can be a bit testy.
Evaluate the legality of your plan, both under Maine bankruptcy court rulings and under the textbook case from the bankruptcy court in Kentucky.
4. All right, it turns out that this independent practice is just too difficult to maintain. You give in and get a job at a large law office. Tom is the senior partner in the firm, and Jerry is the attorney who directly supervises you. They are delighted that you have taken a legal ethics class in college, because they believe that this will relieve them of the need to train you in your ethical responsibilities in the law office. (In other words, the firm doesn’t train you at all).
Well, wouldn’t you know it, there’s trouble right away. In light of your prior experience, Jerry has assigned you to represent clients in unemployment hearings. You find out a juicy bit of “confidential” information that your client, a well-known figure, was fired for drinking on the job. You naturally share this information in a telephone conversation with your spouse, just like you used to do when you were an independent Authorized Agent. Unfortunately, Jerry overheard part of the conversation, figures out who were talking to, and is upset. When Jerry calms down, though, he tells you to just tell your spouse to not spread the information any further.
Assuming that you shouldn’t have shared this juicy gossip, evaluate both Tom and Jerry’s potential responsibility for your indiscretion.
5. Well, you’re still doing that unemployment hearing with the drinker. In preparing for the hearing, you ask him whether he in fact was drinking on the job. He admits that he was. Your plan then, for the unemployment hearing is to contend that your client couldn’t control his drinking, that he is in fact an alcoholic, and that he was therefore not guilty of misconduct on the job, because his conduct was beyond his control. Your client will testify to this at the unemployment hearing, where the hearing officer, and the employer, and the employer’s lawyer will hear this testimony. Your client gets concerned about this information getting out, though, and so he asks you whether this testimony of his will be subject to the lawyer-client privilege. How will you answer this exact question?
6. Will the problems never end? On the day of the hearing, right before the hearing, your client tells you that he’s going to testify that he never drank on the job. He has seen that the person who actually observed him drinking did not show up at the hearing, and so he figures that there’ll be no one to contradict him if he lies about the drinking. You urge him to tell the truth, but he says he really needs the unemployment money so that he can afford to buy his booze.
Evaluate your ethical responsibilities at the hearing, after what you’ve just been told by your client.
7. Your problems at the hearing aren’t over, though. Assume that you do represent your lying client at the hearing, but there’s another problem. During a recess of the hearing, you inadvertently leave a memo in plain view on the hearing table. The memo is marked “confidential”, and it goes over your earlier conversation with your client in which he admitted to you that he was drinking on the job and was an alcoholic. The other side (employer and employer’s lawyer) read the memo. They want to use the information that they have just learned in the hearing. You don’t want them to do that.
Evaluate whether your inadvertent, yet clearly negligent, failure to protect the memo from searching eyes will result in their ability to use this memo information in their presentation.
8. Your law firm decides to pull you back from doing hearings, and so they put you on telephone duty at the office. Your job is to do the initial telephone answering when a prospective client calls about a case. An employee calls to ask if the firm will represent him in an unemployment case against a big employer in town. He tells you the name of the employer, and tells you that he was unjustly fired because he had “blown the whistle” on some illegal acts of the employer. After getting this information, you inform him that you’ll have to run this by the lawyers in the office, and you’ll be recontacting him.
when you discuss the prospective client with your supervisor Jerry, though, he explodes. “This employer is our biggest unemployment client”, he yells. “If we have to stop representing them because you got too much information from this whistling employee, then you’ll be joining him on the unemployment line”.
Evaluate what are the ethical responsibilities and options of the law firm now.
posted by sol goldman | 4:13 PM
|
0 comments
