May 6, 2010
PL 305--Legal Ethics
In class tonight, Thursday 5/6, I first returned the Assignment #3 papers, and we briefly went over them. I distributed one handout, MRPC 3.1-3.6 and 4.1 and 8.4. We then discussed the concepts and cases of Chapter 9 of the text, and finally briefly went over the requirements of the take-home exam, which is reproduced below. I hope that you have a good summer.
The exam is due at 4:30 on Thursday May 13.
You should e-mail the exam to me at goldmans@husson.edu. I will acknowledge receipt of the exams--if you don’t get an acknowledgment that means that I didn’t get the exam. See the syllabus for more information, or if you do not have the exam done on time. In terms of timeliness, any attachment that I cannot open will not be considered received; so the safest course is to copy and paste the exam into your e-mail as well as to attach it.
You are not allowed to collaborate with other students. The work should be entirely your own. See the syllabus regarding plagiarism.
Maine law, or federal law governs all of the situations, unless otherwise indicated. Each of the questions requires specific authority from Maine or federal authority, 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, as well as all of the handouts.
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 advice 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 get a paralegal job with a large law firm that specializes in bankruptcy cases. You have been put in charge of the advertising for the firm.
The first thing that the partners want from you is a way to get out of having to refer to the firm in newspaper advertising as a “debt relief agency”. “What are we, some kind of consumer counseling outfit? No, we’re a bankruptcy law firm, and we don’t want to confuse our clients when they’re looking to us to help them with their bankruptcy cases. See if you can get rid of that language.”
You decide to do some investigation (and because this issue affects bankruptcy lawyers from all over the country, you’re able to solicit funds from many lawyers and amass a pretty good war chest for your investigation). You hire a polling firm, which after extensive nation-wide polling, discovers that the term “debt-relief agency” is in fact very confusing to clients. The polling firm confirms beyond doubt that prospective clients don’t know what to make of the term “debt-relief agency”, and that they are confused as to whether their bankruptcy lawyer really is a lawyer, or is some kind of government agency.
Assume that courts in which you challenge the “debt relief agency” requirement are willing to look at the issue anew. (They don’t feel bound to turn the case away just because it may have been decided already in a different case).
Discuss
a) what standard (what test) a court will use to determine whether the requirement is constitutional;
b what effect, if any, your polling results would have on the outcome of the challenge to the required language.
(Remember to give citations, for this and all questions)
2. The law firm hasn’t been getting enough clients through its newspaper ads, and it wants to branch out into more modern modes of advertising. The firm has managed to get hold of a list of people who own a serious amount of money to the hospital—good candidates, in other words for bankruptcy. They ask for your considered advice regarding these forms of advertising;
a) can they send e-mails, addressed to the patients, advising them of how bankruptcy can work to discharge debts owed to the hospital?
b) can they send e-mails, addressed to the patients, asking them to become bankruptcy clients of the firm?
c) can they place pre-recorded (robo-) calls to patients, asking them to become bankruptcy clients of the firm?
d) can they call the hospital itself and offer to represent the (for-profit) hospital in bankruptcy proceedings in which the hospital is the creditor?
3. The law firm is having trouble paying the bills with just bankruptcy cases, and so it branches out into social security disability law. These are cases in which the prevailing party can collect attorney’s fees under the federal Equal Access to Justice Act (EAJA). The first question that the firm has for you is whether, in seeking reimbursement for paralegal services, those services may be recovered at market rates as part of “fees” under the EAJA, or whether they are recoverable only at cost as part of the recovery of “expenses”. (Explain your answer.)
4. Money is still tight, and so the attorneys in the firm are starting to hog all of the work; specifically, they are doing Social Security disability work that you think should be in your work basket (in other words, work that could be performed by a paralegal). Write a paragraph to your boss, explaining, with appropriate Maine citation, how an EAJA fees petition may be affected if the attorney does work that could be performed by a paralegal.
5. Well, you’ve been trying to have more responsibility assigned to you, but now it’s led you into some trouble. The social security attorney has assigned you to do all of the calendaring for the social security cases. You’ve been doing fine with all that calendaring, but then you suddenly got what appears to be the “swine” flu. Your attorney was out of state arguing some cases in Boston, and left you to file Administrative Notices of Appeal in two cases. She had two weeks in the office to file the Notices herself before she left, but all that work is now delegated to you, the competent, experienced administrative law paralegal. Since this work is not in court, you are allowed to sign these yourself, and none of the other attorneys in the office do any of this Social Security work. When you got sick, you called the office to let them know how sick you were and that you’d be out for a while. You were too sick to think or mention to the office about the deadlines that were ticking away. By the time that you got back to the office, the deadlines on two cases had crossed over the line to the “dead” side. When the attorney returned later that same day, she was not pleased. Write her a paragraph explaining how to make the case that your (including her) neglect was “excusable” under existing Maine precedent (ignore the fact that Social Security is a federal program).
6. Well, it turns out that it wasn’t just the attorney who was upset. The two clients whose deadlines were missed also were upset, and filed grievances with the Maine Board of Bar Overseers. They filed grievances against your attorney, basically spelling out how she had missed the deadline for filing their appeals. Your attorney has never had anything like this happen to her before, and so she asks you to write her a paragraph explaining what portions of the MRPC seem to be involved, what similar cases have decided, what the likely punishment would be, and how best to conduct herself in front of the Grievance Commission (aggressively defending herself, or meekly accepting responsibility).
7. Take the facts of the case of in re Ositis, text p. 418. That case was decided under the Oregon version of the ABA Model Code (as opposed to the ABA Model Rules, which are the model for our own MRPC). Give the citations to the MRPC (from the handout of 5/6/2010) that are most closely analogous to rules used in the Ositis case, and then give your opinion about whether that Oregon Court reaches the best opinion, with your reasons for that opinion.
In class tonight, Thursday 5/6, I first returned the Assignment #3 papers, and we briefly went over them. I distributed one handout, MRPC 3.1-3.6 and 4.1 and 8.4. We then discussed the concepts and cases of Chapter 9 of the text, and finally briefly went over the requirements of the take-home exam, which is reproduced below. I hope that you have a good summer.
The exam is due at 4:30 on Thursday May 13.
You should e-mail the exam to me at goldmans@husson.edu. I will acknowledge receipt of the exams--if you don’t get an acknowledgment that means that I didn’t get the exam. See the syllabus for more information, or if you do not have the exam done on time. In terms of timeliness, any attachment that I cannot open will not be considered received; so the safest course is to copy and paste the exam into your e-mail as well as to attach it.
You are not allowed to collaborate with other students. The work should be entirely your own. See the syllabus regarding plagiarism.
Maine law, or federal law governs all of the situations, unless otherwise indicated. Each of the questions requires specific authority from Maine or federal authority, 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, as well as all of the handouts.
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 advice 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 get a paralegal job with a large law firm that specializes in bankruptcy cases. You have been put in charge of the advertising for the firm.
The first thing that the partners want from you is a way to get out of having to refer to the firm in newspaper advertising as a “debt relief agency”. “What are we, some kind of consumer counseling outfit? No, we’re a bankruptcy law firm, and we don’t want to confuse our clients when they’re looking to us to help them with their bankruptcy cases. See if you can get rid of that language.”
You decide to do some investigation (and because this issue affects bankruptcy lawyers from all over the country, you’re able to solicit funds from many lawyers and amass a pretty good war chest for your investigation). You hire a polling firm, which after extensive nation-wide polling, discovers that the term “debt-relief agency” is in fact very confusing to clients. The polling firm confirms beyond doubt that prospective clients don’t know what to make of the term “debt-relief agency”, and that they are confused as to whether their bankruptcy lawyer really is a lawyer, or is some kind of government agency.
Assume that courts in which you challenge the “debt relief agency” requirement are willing to look at the issue anew. (They don’t feel bound to turn the case away just because it may have been decided already in a different case).
Discuss
a) what standard (what test) a court will use to determine whether the requirement is constitutional;
b what effect, if any, your polling results would have on the outcome of the challenge to the required language.
(Remember to give citations, for this and all questions)
2. The law firm hasn’t been getting enough clients through its newspaper ads, and it wants to branch out into more modern modes of advertising. The firm has managed to get hold of a list of people who own a serious amount of money to the hospital—good candidates, in other words for bankruptcy. They ask for your considered advice regarding these forms of advertising;
a) can they send e-mails, addressed to the patients, advising them of how bankruptcy can work to discharge debts owed to the hospital?
b) can they send e-mails, addressed to the patients, asking them to become bankruptcy clients of the firm?
c) can they place pre-recorded (robo-) calls to patients, asking them to become bankruptcy clients of the firm?
d) can they call the hospital itself and offer to represent the (for-profit) hospital in bankruptcy proceedings in which the hospital is the creditor?
3. The law firm is having trouble paying the bills with just bankruptcy cases, and so it branches out into social security disability law. These are cases in which the prevailing party can collect attorney’s fees under the federal Equal Access to Justice Act (EAJA). The first question that the firm has for you is whether, in seeking reimbursement for paralegal services, those services may be recovered at market rates as part of “fees” under the EAJA, or whether they are recoverable only at cost as part of the recovery of “expenses”. (Explain your answer.)
4. Money is still tight, and so the attorneys in the firm are starting to hog all of the work; specifically, they are doing Social Security disability work that you think should be in your work basket (in other words, work that could be performed by a paralegal). Write a paragraph to your boss, explaining, with appropriate Maine citation, how an EAJA fees petition may be affected if the attorney does work that could be performed by a paralegal.
5. Well, you’ve been trying to have more responsibility assigned to you, but now it’s led you into some trouble. The social security attorney has assigned you to do all of the calendaring for the social security cases. You’ve been doing fine with all that calendaring, but then you suddenly got what appears to be the “swine” flu. Your attorney was out of state arguing some cases in Boston, and left you to file Administrative Notices of Appeal in two cases. She had two weeks in the office to file the Notices herself before she left, but all that work is now delegated to you, the competent, experienced administrative law paralegal. Since this work is not in court, you are allowed to sign these yourself, and none of the other attorneys in the office do any of this Social Security work. When you got sick, you called the office to let them know how sick you were and that you’d be out for a while. You were too sick to think or mention to the office about the deadlines that were ticking away. By the time that you got back to the office, the deadlines on two cases had crossed over the line to the “dead” side. When the attorney returned later that same day, she was not pleased. Write her a paragraph explaining how to make the case that your (including her) neglect was “excusable” under existing Maine precedent (ignore the fact that Social Security is a federal program).
6. Well, it turns out that it wasn’t just the attorney who was upset. The two clients whose deadlines were missed also were upset, and filed grievances with the Maine Board of Bar Overseers. They filed grievances against your attorney, basically spelling out how she had missed the deadline for filing their appeals. Your attorney has never had anything like this happen to her before, and so she asks you to write her a paragraph explaining what portions of the MRPC seem to be involved, what similar cases have decided, what the likely punishment would be, and how best to conduct herself in front of the Grievance Commission (aggressively defending herself, or meekly accepting responsibility).
7. Take the facts of the case of in re Ositis, text p. 418. That case was decided under the Oregon version of the ABA Model Code (as opposed to the ABA Model Rules, which are the model for our own MRPC). Give the citations to the MRPC (from the handout of 5/6/2010) that are most closely analogous to rules used in the Ositis case, and then give your opinion about whether that Oregon Court reaches the best opinion, with your reasons for that opinion.
posted by sol goldman | 4:47 PM
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