Specific Instructions:

—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.

—Except for when a question calls for an analysis under the Florida Rules, you are to draw upon the Model Rules.

You may spot a few issues that were not directly addressed in class. The "Legal Ethics and Social Media," book and The Legal Ethics in Motion Blog (click here) should 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 Friday, December 15th in room G288, to Ebonie Carter.


ADDITIONAL RESOURCE
MATERIALS


3rd DCA Facebook Opinion (PDF)

Rogers, Mindfulness for Law Students, pp. 16, 25, 30-31, 33, 34-35, 43, 49.

Mindful Ethics:
Professional Responsibility for
Lawyers in the Digital Age

Final Project

Part I: Defining Friendship


Mindy enjoys many aspects of being a judge including her status in the community and presiding over trials in various areas of the law. She maintains her position that judges should be able to have Facebook pages for both personal and professional purposes. She enjoys both educating the public about trials over which she presides and having Facebook friendships throughout the legal community.

Mindy recently posted on Facebook about a commercial matter in which she ruled upon defendant's motion to disqualify plaintiff''s counsel based on a conflict of interest. The defendant alleged that plaintiff's counsel represented the defendant's subsidiary five years ago. Plaintiff's counsel acknowledged the representation but claimed that it does not warrant disqualification.

Mindy is currently presiding over a criminal trial in which the defendant’s counsel has filed a motion for recusal based upon the fact that Mindy is Facebook friends with many of the prosecutors in the state attorney’s office. Mindy denies the motion and explains that those Facebook friendships were established when she interned at the state attorney’s office in law school and have no bearing on her impartiality. She feels confident in both her ability to be impartial and her ruling on the motion. Her denial of the motion is appealed and owing to a split among the districts courts, makes it way to the Florida Supreme Court.

Question 1a

You are clerking for a Florida Supreme Court justice and are tasked with researching the issues and making a recommendation to your judge on how the Court should rule on the Facebook issue.

After reviewing current Florida case law and Florida JEAC advisory opinions, and the judicial canons, draft a memorandum outlining and analyzing the judicial canons implicated, the JEAC opinions, and the current split in the district courts to support a recommendation on how the Florida Supreme Court should rule. Your recommendation will be especially well received if you include public policy arguments. 

(Page Length Guideline: 3-4 pages)

Question 1b

Craft Mindy's Facebook post in which she explains to the public the factors that she considered in deciding whether to grant defendant's motion to disqualify plaintiff's counsel based on an alleged conflict of interest. You may create additional facts to assist you in illustrating the application of the rules.


(Page Length Guideline: no longer than 1 page)


II. Pedro’s Legal Ethics Opportunity


Pedro has become more involved in the state bar and currently is a member of the state bar’s grievance committee. The case currently before the committee involves the bar’s investigation of two lawyers who have sued the tobacco companies on behalf of many clients.

Originally filed as a class action, the court decertified the class and informed the lawyers that each plaintiff must file an individual case. Because thousands of plaintiffs were potentially involved, the lawyers posted announcements on the law firm website and through social media that said, “Harmed by tobacco? Contact us immediately! We are experts in making Big Tobacco pay!!!” With thousands of responses, the lawyers employed their paralegals, law clerks, and associates to rapidly file more than 3600 cases. The cases were consolidated and they won a multi-million dollar verdict. Thereafter, owing to their questionable tactics, the court appointed the U.S. Attorney as a special master to investigate the lawyers' conduct in the case.

The investigation revealed that the lawyers had filed approximately 1200 frivolous lawsuits. In fact, the investigation revealed that, as many as 500 were filed despite the fact that the plaintiffs had not consented to representation. There were also cases in which the plaintiffs never resided in Florida or where their cases had been previously adjudicated. Moreover, the court found that the lawyers made misstatements to the court about their contact with various plaintiffs and misleading statements to various potential plaintiffs. 

Additionally, one of the lawyers’ paralegals was monitoring the jury's social media presence and became a follower of one of them on Twitter. The juror repeatedly tweeted about her joy in being able to finally "light up Big Tobacco." The court was not informed about the tweets until after the jury rendered a verdict.

As a result of the Special Master's finding, the court imposed significant financial sanctions on the lawyers and has referred the case to The State Bar for investigation. This is Pedro’s opportunity to (finally) become immersed in legal ethics and play a leadership role on the Grievance Committee to which the matter has been assigned.

Question 2

Make a list of all of the Model Rules of Professional Conduct (in numerical order, e.g., 1.1 comes before 5.3)
that may have been violated by the lawyers and next to each rule list the specific facts that implicate a violation of the rule and reasons why the rule may have been violated.  

After completing the list, write a 1-page recommendation to The State Bar outlining your conclusion as to the most significant violations of the rules and whether disciplinary action is warranted.

(Page Length Guideline: 5-6 pages)

III. Confidentiality to a Fault?


After many years on the bench, Mindy has returned to private practice and teaching criminal law. She also is directing an innocence project clinic at a local local school as she has become even more passionate about righting the wrongs that she witnessed in the criminal justice system. In fact, recently the media has covered several instances of innocent individuals who have been convicted and served many years in prison before being exonerated through the efforts of various attorneys, Innocence Projects, and law school clinics.

The case of Alton Logan involves the situation where legal ethics and the attorney-client privilege were a significant cause of an innocent man’s 26-year imprisonment. Mindy and her students are advocating for a change to the legal ethics rules to prevent another travesty of justice like that suffered by Alton Logan.

Question 3:

Watch the video clip below and read the transcript to the "60 Minute Report" and identify the legal ethics rules implicated by the Alton Logan case. Propose amendments to the applicable model rules that address the impediments discussed by the attorneys in the video. For each proposed amendment, draft comments that explain the underlying policy and interpret the rule to provide guidance to attorneys.

AP Archive: "Inmate Hopes to Go Free After Secret Revealed"

Transcript: 26-Year Secret Kept Innocent Man in Prison

Note: If you are able to access this video (60 Minutes Report: "Lawyer's Keep 26 year Secret"), you can view the 60-Minutes television segment from which the transcript is generated, in lieu of reading the transcript.

(Page Length Guideline: 2-3 pages)

Question 4:

Drawing upon our mindfulness discussions in class, the demonstrations and practices that we learned, and the mindfulness related readings, put yourself in the place of one of the attorneys who represented Andrew Wilson and, accepting that you would have made the same ultimate decision to wait until your client's death to speak up, discuss how the experience of those 26 years might have been different for you depending upon whether you did or did not practice mindfulness.

(Page Length Guideline: 1-2- pages)