• April 9th, 2016

To The File

Paper, Order, or Assignment Requirements

Case Study

Recall the questions posed earlier in the unit:

Legal ethics are the special rules governing lawyers when they engage in their work. Should different rules apply to lawyers than the rest of us when they are performing their professional duties?

•Today’s lawyers have been called a modern secular priesthood. One need only think about Judge Judy, her many imitators, and the numerous movies and TV shows about lawyers, to realize the place law and lawyers occupy in the public eye.
•The concept of a secular priesthood described in the “Recurring Themes in the Law” section and its analogy to clergy is not too distant. The attorney-client privilege is as well-enshrined as the priest-penitent privilege. You considered in Unit 1 whether the law should allow lawyers to submit false evidence if it was the only way to exonerate an innocent client, or whether lawyers should be permitted to reveal their clients’ secrets to save someone’s life, even if it meant incriminating the client.
•The Truth on Trial video assigned for this unit examines a hypothetical lawsuit over plaintiffs injured by a fire caused by a possibly defective product. Watch how the lawyers conduct themselves and how they justify their tactics. Ask yourself whether you feel the lawyers’ conduct is justified by their goal of winning for their respective clients.
•Think back to Unit 4 on bioethics: Is there an analogy to the Hippocratic Oath that admonishes doctors to do no harm? When a lawyer refuses to disclose that their client is guilty, or intends to hurt someone, they are protecting their client. Are they harming others?
• Recall too the debate over assisted suicide and similar events, i.e., administering lethal injections for capital punishment. Does a doctor violate the Hippocratic Oath in doing so?

Then consider this hypothetical situation:

Confidentiality in Civil Matters

You are general counsel at ABC, Inc., a large publicly-traded corporation with thousands of shareholders, which means you are the primary lawyer for ABC. You attend confidential planning meetings of ABC’s executives.

At a recent meeting Charles, ABC’s Chief Operating Officer, made an announcement about ABC’s waste-water storage facility:

“Folks, I regret to inform you that our tanks are starting to leak. We have no choice but to illegally discharge some highly poisonous waste-water into the sewer system to keep the tanks from failing until Maintenance can repair the leak. Otherwise the tanks may explode, releasing all the water. Fortunately we have been able to keep it secret from the media.”

Sam, the Chief Financial Officer, agrees that this is the best they can do under the circumstances, and that they must keep the past leak, and the plan to discharge further water, confidential.

The executives do not ask your opinion. The meeting adjourns. Linda, President of ABC is not present, but you know she will read the meeting minutes later and find out what happened.

You want to protect ABC, its officers, and its shareholders, but you are also worried about your own culpability because now you know about this event.

You decide to make a written record of what happened, and your options as the company’s lawyer, to ensure that you act properly, and also so no one can say you ignored the situation:

Assignment

Write a 3–4 page double-spaced memorandum titled “To the File” in which you explore your options in compliance with ABA MR 1.6. State (a) the facts of what happened at the meeting, (b) identify your options, and (c) decide what to do.

• Review the confidentiality rule for lawyers in ABA MR 1.6 and its Comment located at https://www.law.cornell.edu/ethics/aba/current/ABA_CODE.HTM#Rule_1.6 (see Reading Assignment at III B iii above for details). You can and should quote from the MR and the Comment where it assists your analysis.
• Recall the “Truth on Trial” video . Write the memorandum from the perspective that Linda, President of ABC, is going to read the minutes of the meeting. She is going to ask you what you recommend for ABC and what you are going to do, just as the executives asked the lawyers for advice in the video https://www.learner.org/vod/vod_window.html?pid=198

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