"Legal Ethics and the Paralegal -How to Spot Legal Issues, Avoid"
Legal Ethics and the Paralegal – How to Spot Legal Issues, Avoid Sanctions and Keep Your Job Lawrence P. Ebiner, Esq. Jonathan G. Fetterly, Esq. How to spot issues, avoid sanctions and keep your job. • Know the rules • Raise the issue • Resolve the issue Duties of Attorney (B&P 6068) • (a) Support constitution and laws • (b) Respect courts and judges • (c) Take positions that are legal and just • (d) Tell the truth • (e) Keep secrets • (f) Respect parties or witnesses • (m) Communicate with client ETC. You are in a firm with an experienced litigator and a first- year transactional lawyer. Your client is MEGA-DEAL, a private company. The main client contact is the CFO of the company. • Is the CFO your client? 3-600(A) • What if the CFO tells you he has a great plan to artificially drive up the stock and cash out? 3-600(B) • Can you disclose the CFO’s plan to MEGA-DEAL’s Board? 3-600(B) • What can you do if the Board likes the CFO’s plan because it will benefit them as well? 3-600(C) MEGA-DEAL wants to sell a small division to ACME. You get the call from the CFO, who says he needs a simple asset purchase agreement the next day. Both lawyers in your firm are out of the office on vacation. You clear conflicts. • Can you draft the asset purchase agreement for a lawyer to review? B & P 6125 • You are smarter than your boss. Can you explain to the CFO what some of the terms mean? B & P 6125 • The experienced litigator returns. Can she draft the agreement? 3-110(C) • The first-year transactional lawyer returns. Can he draft the agreement? 3-110(C) Six months later ACME sues MEGA-DEAL. It seems the CFO made a mistake in the financial statements. ACME alleges fraud and breach of contract. The CFO is named as a defendant. • Can you take the case? 3-310(B)(4) • Can you represent the CFO? 3-310(C)(1) • Can you agree to represent the CFO but only if he agrees not to sue you later? 3-400(A) • What if you learn the firm previously represented ACME in a pro bono matter? 3-310(B)(2) • What if you suspect you will be a witness? 5-210 You take the case and you begin an informal investigation. You want to get the dirt on ACME. • Can the CFO call ACME to discuss settlement? 2-100 • Can you interview key ACME witnesses? • What about the former president of ACME? 2-100(B) comment. • What about the ACME receptionist? • What about the outside accountants? ACME won’t settle and you get ready to litigate. You interview the CFO, who tells you the company is moving most of its assets offshore where the IRS won’t be able to touch them. He wants you to help with the paperwork. • You are stressed out. Can you talk with your spouse about it. B&P 6068(e); 3-100(A) • Can you help with the paperwork? 1-120; 3-210 • Should you report client to the authorities? 3-100(A) • What if thousands of widows and orphans will be sent into poverty if the CFO carries out his plan? 3-100(B) • What should you do? 3-600; 3-700 ACME serves a document request. You are doing the pre-production review and find some very bad (and clearly relevant) documents. You call the CFO who is upset because his guys “must have missed those” while they were shredding the other ones. • Can you send back the un-shredded documents so your client can finish the job? 1-120; 3-210 • Do you have to produce the bad documents? 5-220. • Can you tell the other side about the shredded documents? 3-210; 5-220 • What if you learn your client has stolen trade secrets? 3-100; 1-120; 3-210 • Should you tell the client not to send you any more bad documents? 1-120; 3-210 It occurs to you that you have client control problems. Then MEGA-DEAL stops paying its bills. You have not yet responded to the complaint. • Can you withdraw from the case? 3-700A; (C)(1)(f) • Withdraw from the case and withhold clients’ documents until they pay? 3-700(D)(1) • Withdraw and keep the retainer because they owe you? 3-700(D)(2) • If you file a motion to withdraw, can you explain to the court you need to withdraw because your client prevaricated? ACME produces documents, some of which appear to be privileged. You find some hot documents showing the ACME president has been using inside information to trade stocks. • What do you do with ACME’s privileged documents? • Can you threaten to report the president to the authorities if ACME doesn’t settle? 5-100A • Can you turn over the information to the authorities? You are at the pretrial conference when the ACME lawyer tells you they want to settle, then makes a lowball offer. • What do you do? 3-500; 3-510 • What if he says we’ll dismiss the case against MEGA- DEAL but only if you fire the CFO? • What if he says we’ll settle but only if your firm agrees never to sue us again? Prior to trial, the parties agree that some evidence can come in by declaration. You interview the witnesses and draft the declarations. You write and cite-check the trial brief. • You suspect one of your declarants is not telling the truth. What now? 1-120; 5-200 • Should you spin the facts in a way that will help your case? 5-200(B) • Can you cite to a case that has been overruled but you think might still be persuasive to the judge? 5-200(D) The MEGA-DEAL trial begins. You’re worried about the testimony of several witnesses, including one of your experts. • Should you tell the bad witnesses, “Maybe now would be a good time for you all to go to Monte Carlo for a while”? 5-310(A) • Can you pay the witness’ travel expenses to appear at trial? 5-310(B) • What about, “We know you’re the expert, but if you want to get paid, we need you to get back on track?” You are not Perry Mason and lose the MEGA- DEAL case. The client fires you and sues for malpractice. You’re thinking about leaving your job, but then your boss has a great idea…advertising! He puts you in charge. • Should you place an ad on the side of a bus? B&P 6157 et seq; 1-400 • Can your ad say: “The best attorneys in Southern California – we guarantee it”? B&P 6157.2(a) • Can you hire your father to appear as a lawyer in the ad? B&P 6157.2(c)(1) • Can you hire Gary Coleman to act as your spokesperson? B&P(c)(3). You are looking for new cases. You read in the paper that there was an explosion at LA Ice Cream, a local ice cream factory, injuring 31 people, some of whom are in the county hospital. • Should you run down to the hospital to offer your services? B&P 6152(a)(1). • Can you call the victims? 1-400(C) • Send each victim an email? Two emails? An email every day until they unsubscribe from your mailing list? 1-400(D)(5) • You are desperate. Can you offer to pay the witness to bring the claim? B&P 6129. It’s your lucky day, and one of the victims from the LA Ice Cream explosion comes to your office and wants to sue. • Can you agree to do it on a contingency basis? 4-200 • Should you loan your client a few thousand dollars to see her through the end of the trial? 4-210(A) • Can you offer to take the case for free if the client names you in her will? 4-400. Same explosion, but now you represent LA Ice Cream. The CEO of the company confesses he knew there would be an explosion but please don’t tell anybody. • What do you do? How to spot issues, avoid sanctions and keep your job. • Know the rules • Raise the issue • Resolve the issue