Specific Instruction:
-- When referring to a Rule of Professional Conduct, cite the rule by number and title the first time that you use it. Thereafter, you may use the rule number.

--You may use the Model Rules of Professional Conduct except for any issues you spot regarding advertising, in which case you are to apply the Florida Rules of Professional Conduct.

--You may spot a few issues that were not directly addressed in class. The Legal Ethics in Motion Blog (click here) contains entries that may assist you in identifying and analyzing some of these issues.

--The Final Project is not to be worked on with anyone else.

Required Format: --Your final product should be between nine (9) and fourteen (14) pages in length.
--All material should be double spaced, in 12-point font, and include page numbers.
-- Print and submit three (3) copies that contain only your AGN number to assure blind grading.

Deadline: --Final projects are to be submitted no later than 5:00 p.m. on or before December 16th in room G288, to Ebonie Carter.

Mindful Ethics:
Professional Responsibility for
Lawyers in the Digital Age

Final Project

Part I: Trials and Tribulations


Pedro and Mindy remain close friends as Mindy settles into life as a Judge and Pedro’s firm continues to grow and prosper. Pedro has become so successful that he has expanded his firm and now has four associates and an office manager. At a recent law school alumni event, Pedro shares both the exhilaration and exhaustion of his firm’s growth with two colleagues, Eugenie Wafwana and Amy Ackerman, who also have their own firms, and they realize that they have a wonderful opportunity for a merger. They establish a new firm, Ackerman, Wafwana & Respono. The firm has 14 lawyers and 10 other support staff employees; the three name partners agree to share management responsibility.

Pedro shares the news with Mindy who congratulates him on her Facebook page. Mindy’s Facebook page has become quite popular as she has taken it upon herself to use it as a forum to educate the public.

Currently, Mindy is presiding over a trial regarding the school board’s attempt to sell a work of art to alleviate a budget shortfall. The painting has been hanging in an administrative office for more than a quarter century and was believed to be worthless. When an outside budget consultant, who happens to be an art aficionado passes by the painting she recognizes it as a original Adolph Gottlieb. The school board has it appraised resulting in an expected sale at auction of approximately $4 Million.

At a School Board meeting where approval for the sale is being discussed, a local group “Save our City Treasures” makes an appearance and challenges any sale that could result in the painting leaving the city. The school board approves the sale prompting “Save our City Treasures” to file suit seeking an injunction.

Community opinion is split and the media is covering the trial, which has been assigned to Mindy’s docket.

On a fateful afternoon Pedro drops in to watch the proceedings, which results in a series of unfortunate events. Watch the following video to learn more.
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Question 1:
Identify the rules of professional conduct and the judicial canons that are implicated in the video and discuss whether Mindy and/or Pedro violated any of them. (Be attentive to the interplay among the canons, the rules of professional conduct and the First Amendment). What do you think is likely to come of the investigation into Mindy’s conduct and Pedro’s being ordered to show cause?

Part II: A Colleague in Need of Advice


Pedro suggests to Amy and Eugenia that they hire a new lawyer to serve as the firm’s ethics and risk management counsel.

You worked with Pedro one summer and are currently working as bar counsel for the Florida Bar where you investigate ethics complaints. Pedro proposes that the firm consider hiring you. Amy and Eugenia agree and Pedro offers you the position, which you accept. Pedro says that in addition to troubleshooting day-to-day problems, the firm is interested in your recommendations on the firm’s marketing strategy and engagement in social media.

As you are setting up your new office and finding the perfect location for your uncertain-tee, you become aware of a new associate, Quentin, timidly standing in your doorway. You invite Quentin to have a seat and he immediately begins to tell you his story.

I clerked for Pedro during law school and I was thrilled when he offered me an associate position a little over a year ago. When Pedro offered me the job, his firm had not yet merged with the other two firms and I was looking forward to working closely with Pedro. Although the merger has afforded me the opportunity to become a part of a larger, more diverse law firm, I feel that I have lost my mentor, as Pedro is never available because he has been incredibly busy with all of the details of the firm merger. Nonetheless, I am trying to distinguish myself by working long hours and attempting to generate some of my own business.

In fact, the other day while I was working on my laptop at the nearby coffee shop and sipping on my daily afternoon chai latte, I met a nice woman, Adina, who sat down next to me at the crowded counter. Although I was working and she was texting while simultaneously checking Instagram and Facebook, we were also chatting and making a connection.

As I opened my wallet to pay for my latte, I saw my new firm business card and instinctively handed it to her. I told her that I am an attorney with an office just down the street, should she ever need assistance or know someone who does. Adina brightened and asked me a legal question about an employment issue. I quickly thought about what I remembered from my employment law class, gave her an off the cuff answer and scheduled a consultation with her the following day at 1:00p.m.

Later that afternoon, while back at the coffee shop for a second round of latte, I received an email from Adina, which she apparently sent as soon as she returned to her office. Her e-mail explained why she wants to sue her employer and some of her concerns with her case. Wanting to get caught up to speed quickly on the issues, knowing that I had a busy day ahead of me with other matters, I copied the facts of her e-mail and framed a set of legal questions that I then forwarded to the legal outsourcing company that the firm uses from time to time. By the end of the day an e-mail with a well thought out and researched answer to my questions was sitting in my inbox. Oh, the enjoys of technology and our global economy.

The next day, Adina arrived promptly at 1:00p.m. We had a good meeting. I was able to speak more confidently about employment law and felt like I asked the right questions to fill in the additional information that I needed. I agreed to take her case, to further research the relevant issues, and to provide her with a legal opinion setting forth her options and the possible repercussions. She paid me a $500.00 retainer, agreed to pay me $100 an hour, and we parted with a handshake. I explained that the firm was going through a transition and I would send her some paperwork at a later date. As soon as Adina left the office, I texted Pedro to tell him that I landed a client. He sent me a thumbs up symbol and I felt terrific.

Adina’s e-mail provided her Facebook page and that night I visited it. I found pictures of her clearly enjoying long lunches and also saw that she is tagged in a picture in which she is asleep on her desk under which a co-worker has commented, “working hard or hardly working?” I immediately attempted to call her, but she didn’t answer. I texted her and suggested that she clean up her Facebook page.

The next day, (which was just yesterday), Pedro stopped by my office to congratulate me on landing a client. As I was telling him about Adina’s case and showed him Adina’s e-mail, his enthusiasm disappeared and was replaced by a look of disapproval and dismay. He told me that the company Adina is contemplating suing belongs to Samantha, one of Pedro’s first clients-- a company that Pedro helped Samantha establish and build.

The worst part of the encounter with Pedro was the fact that he ended the conversation by throwing up his hands, and saying that it’s good that I recently took professional responsibility and passed the MPRE so that I can figure out what to do about the situation. He wants me to get back to him within 48 hours.

I am kind of freaking out, can’t even think straight and do not even know where to begin to analyze all that has happened since I began chatting with Adina on those counter stools at the coffee shop.
After listening to Quentin, you offer to reflect on what transpired and share with him your thoughts and a set of options. Quentin expresses his profound gratitude and leaves you to it. You reflect for a moment on whether Quentin’s timidity might conceal a brilliant tactician.

Question 2:
Identify and analyze the conflict issues that arise regarding Quentin’s actions and the fact that Adina’s cause of action is against Samantha and Samantha’s company. What are the firm’s options for handling the situation? What procedures should be put in place to avoid a similar situation in the future?

Question 3:
Create a list of short paragraphs that identify each potentially problematic aspect of Quentin’s behavior throughout his story, the Model Rules of Professional Conduct that are associated with the behavior, and one or two sentences that describe the best practice to be employed to avoid ethical problems.


Part III: The Social Media Workshop


Pedro asks you to conduct a social media workshop with the firm employees to answer their questions and gauge their degree of knowledge as to the effective use of social media in their respective practices.

Question 4:
Prepare a report for the partners in which you copy each question posed below and provide a concise answer in a paragraph that includes an explanation of the relevant rules and ethics advisory opinions that support your answer.


Amy:
Twitter has been an amazing addition to my personal marketing strategy. I regularly Tweet about employment law and have received countless comments and questions from my 700 followers, many of whom retweet the information I post. My Twitter account also provides a link to my blog. Is there anything I should be wary of, especially as my followers continue to grow?

Bob:
I’m receiving lots of endorsements and recommendations on LinkedIn. Is there any problem in accepting these?

Sandy:
One of my friends from law school just became a judge. Do I have to defriend her on Facebook? Should I suggest that she un-follow me on Twitter? What about our weekly lunches?

Rose: I just found out from my paralegal that one of our witnesses received a friend request from opposing counsel on Facebook. The witness accepted the friend request. Is there anything wrong this?

Mitchell: Do you think it is necessary to investigate jurors on social media? If so, are there any limitations? What is my obligation if I find a juror tweeting during the trial?

Sally: I specialize in representing people who have received speeding tickets and DUI citations and obtained a list of potential clients from the courthouse who I want to text to solicit business. Any problem with this approach?

Part IV: The Firm Website


You receive the following memorandum from the managing partners, which asks you to employ your expertise in the area of the Florida advertising rules to assist the new firm in the creation of its website.

MEMORANDUM


Our merger has led to a pressing need to develop a web site that will be an effective marketing tool for the firm. We recently met to discuss the best way to proceed and realized that the new website will be subject to Florida’s rules governing attorney advertising and it is imperative that we stay on the right side of the regulations. At the same time, a website can make all the difference and we wish to have the most dynamic website possible and are willing to err on the side of a more aggressive campaign while making sure we remain in a defensible position vis a vis the Florida Bar.

We have retained the services of a highly regarded web design team to assist us. While the team is exceptional at creating very effective websites and promoting them on the web with great success, they have little experience working with law firms and none with firms in Florida. Hence, we have the opportunity to enter the online space in an exceptional way but must provide the web design team with information to guide them.

We know that you are versed in many of the issues that surely will be raised in the development of the website. Accordingly, we would like you to review and consider the below “wish list” and craft a document to guide the web design team.

Question 5:
For each item on the below “wish list,” please copy the item and identify the applicable Florida advertising rule along with your determination of whether our request is rule compliant. For those requests that are not compliant with the Florida rules and applicable guideline, explain why and suggest alternative language that we may use. We plan to provide your suggestions to the web design company.


Our Wish List

1. Bio’s of all the lawyers, which list their backgrounds, areas of expertise and provide links to their online social media presence.
2. We plan to have a blog that provides general legal information and touts our victories.

We have won hundreds of cases and our clients have been awarded millions of dollars including:

$5,000,000 in Lisa Smather’s wrongful death action.
$200,000 in Farah Bronson’s dog bite case, the first in which a damages award resulted from a Chihuahua bite ruining Ferragamo shoes moments before a gala affair.
In more than 120 of 130 criminal matters, our clients prevailed.

Please let us know what guidelines we may need to employ regarding the blog web page and the posting on the blog of the above examples and other matters.
3. Each of the three managing partners has solicited and received feedback from clients that praise their services and would serve as an effective marketing tool were potential clients to read them. We would like to place these and other testimonials on the first page of our website. Here are a few of the best ones:
“Pedro is the best lawyer I have ever had. He won my case and he will win yours too.” Lisa Smathers
“I hit the jackpot with Laura. She provided legal services that were helpful and effective. She was kind, courteous and responsive. If only all lawyers were like her.” Bob James
“I received a check for $200,000 due to Larry’s amazing legal strategy in my case. I can’t recommend recommend him too highly.” Farah Bronson

Part V: The Mindful Law Firm


Amy Ackerman returns from a
Mindfulness in Law program and is intrigued by the prospect of bringing mindfulness to the law firm. As she raises the subject during lunch one day, you share with her your interest in mindfulness and experience in the Mindful Ethics class.

Question 6:
She becomes extremely excited and asks you to draft a two-page memorandum in which you suggest ways that the firm can introduce mindfulness—both as formal and informal practices. She also asks you to explain some of the benefits that the practices you suggest may offer the firm and its members.