ETHICS HYPOTHETICALS

Ethics Hypothetical #1

You are a brand new Assistant Attorney General in the State of Atlantis. Only hired because of the glowing reference sent by Prof. Tierney, you have just been sworn in by the Attorney General himself, Nathan Clifford, whose vision for the future had inspired you to return to Atlantis after time away at both college and Harvard Law School.

After the ceremony, you are then taken to lunch at the State House Cafeteria (known locally as the “Bay of Pigs”) by Mel Fuller, your new Supervisor, who is the Chief of the Trial Division.

“We haven’t hired anyone out of law school in a long time,” Fuller begins, “but we’ve all been here forever and thought that it would be good to get some new, Ivy League blood. You won’t have any lack of work! See those cardboard boxes that are lining the halls? All cases … all the time. There is no end to the people who want to sue Atlantis!”

“You know, I’ve seen ‘em come and go over the years,” Fuller continued. “We’ve had some good AG’s — like the one we have now — and we have some bad ones. But here in the Trial Division, we just pick up the tools and get the job done. Our clients are career claims managers in the various state agencies and they are terrific, too. We like to settle whenever we can, of course, but you will get trial experience here that exceeds anything that life partner of yours will get in that fancy downtown firm!”

Forty–five minutes later you are sitting at your computer gazing at a docket list of cases. It appears that you are due in court the next day on a motion to dismiss that was filed by your well loved predecessor who has just retired.

You pick up the first file and see that you will be arguing to dismiss a case involving a former prisoner whose hand had been severed while working in the prison carpentry shop. The plaintiff’s counsel had taken several depositions and your quick review indicates that the wardens had all admitted that there was no guard on the band saw, no instructions as to how to use the band saw, and no warden in the room to stop a fight that had broken out between two other prisoners, one of whom allegedly bumped into the plaintiff pushing him into the unprotected blade.

You read further and discover that the plaintiff had been a model prisoner incarcerated for filling out fraudulent loan statements on behalf of a local payday lender who somehow was never charged. The plaintiff has now served his nine months in prison and is home and unemployed while learning to use his prosthesis. He has sued under Atlantis’s Tort Claims Act where there is a damage cap of $100,000.

A bit taken aback, you trot down the hall to see your friendly Supervisor and ask for a bit of guidance. Fuller leans back and says, “Hey! The guy was in prison! We make a motion to dismiss on all prison cases because some of the judges — who are elected in our fair state – actually grant them! Can you believe it? We get rid of 30% of our cases that way! If you lose, and you might, then we go to the Department of Corrections and see if they will put some money up to make this go away. The plaintiff must be starving to death by now and will probably take anything. Look, this is your first day, so let me make a couple things clear. The AG’s office doesn’t make those decisions. Our client makes those decisions. It would be unethical to not follow the directions of our clients. We adhere to all the ethics rules here in the AG office.”

“But… but,” you stammer, “the plaintiff has no prior record and he has three kids in school. He is an Iraqi veteran! He lost his hand! At least tell me that if we lose the motion that we are going to throw in the $100,000?”

“Not a chance,” Fuller responds. Don’t you see the snow outside? This is February.”
“February?

What has that got to do with it?,” you ask.

“The Department of Corrections always settles in the first six months of the fiscal year — when it has money — and never in the second six months when it is broke,” Fuller explains. “This is February. End of discussion! Look, didn’t you say at your interview that you wanted to litigate? You will get some of that trial experience that you wanted!”

“But…but,” you persist, with unspoken memories of the common law and articles you read in some class at Harvard, “don’t we have a higher duty to represent the public interest?”

What do you do?

Ethics Hypothetical #2

The last seven years in the Atlantis Department of Justice have been good ones for you. After four years in the Trial Division, where you received a great deal of solid trial experience, you spent a couple years in the Consumer Fraud Division before being promoted into the elite Special Litigation Section.

On a personal level, life in Atlantis has been good. Your life partner hit a few cases for the downtown firm and you have both paid off those pesky student loans. The kids are now two and four. Because you work for the State and not a firm, you are living sane hours and trying to be a good parent. Coming home to Atlantis was a great move especially because the child care — your parents! — is free. Your kids have also become close to their cousins because your sister, who is a high school teacher, lives just a mile away.

Being a part of the community means a great deal to you. Just as they told you when you started in the AG office, the AG’s come and go (you are on your third) but the work continues to be both varied and interesting. You can’t imagine working anywhere else. The Special Litigation Section is a choice assignment and in many ways is the top job for the “non–political” lawyers in the office. It is very small (only four very talented lawyers) and it handles the state’s most interesting and complex cases.

You are nonetheless working on a case that is troubling you personally.

Several years ago, an action was filed by the parents of developmentally disabled children who believe that they are not receiving the services mandated by state law. Although in Atlantis education is provided by cities, the plaintiffs not only sued both the city where you live (the plaintiffs wanted to get the media in the state capitol for maximum pressure on the legislature) and the state. The City cross claimed against the state and there has been a great deal of publicity.

Because one of your nieces, Bonnie, is developmentally disabled, your sister is part of the plaintiff class. You can’t help but think about the case everyday when you pick your kids up at your parents’ house where Bonnie also receives child care. After all, you are only human.

The plaintiffs are asking for the world (including fees and a ten year “monitor”) and would rather talk to the press than to you. The Governor is a lame duck and angling for a slot in the Obama Administration. The Education Commissioner, your “client,” is invisible and your boss, the AG, is never around as he “tests the waters” for his own race for Governor against the Speaker of the House. Whenever you ask the Chief Deputy for guidance, she is too busy to talk. The judge is grumpy and wants the case to go away.

The state’s legal position — “This is all up to the City! We have no liability! The State is broke!” — rings hollow to you both legally and morally. You ask your three colleagues in the Unit to lunch so that you can talk through the ethics of what you are doing. As you sit down, they look at you and say, “OK, Harvard” (your nickname in the office), “just exactly what is it that you want to discuss?”

How do you determine what is the “right” thing to do?

Ethics Hypothetical #3

Eighteen years ago, on your first day of work, you were told that “We’ve had some good AG’s and we have some bad ones,” and now you have a bad one, Jim Blaine.

A really bad one.

After his election, you knew you better burrow down into the ranks and so you grabbed your old consumer slot that was vacated when most of that division took early retirement. Everyone knew that Blaine is an idiot, so you obviously considered leaving while you still could get out. But the kids are only in middle school and so you decided that you would try to stick it out.

Besides, what work would you do if you left? Who would want someone who has only worked in an AG’s office? Things were also tight financially. After your so–called “life partner” went off with that summer intern, you moved back into your folks’ house. The rent was free and your mom really needed someone there at night. Besides, you are only a few years away from your vested state retirement. Although you occasionally get notes from your Harvard classmates, who must now be making millions, you aren’t going to your twentieth reunion. Frankly, you can’t afford it.

Although you had heard rumors about Blaine meeting privately with lawyers on the other side in cases and then ordering to AAG’s to settle or reverse their positions, it hadn’t happened to you. On the consumer fraud front, he let things roll along and joined in most of the multistate cases that other more activist AG’s negotiated. His press releases went out like clockwork, and he always took credit for any success the office had, but then, don’t they all?

It didn’t make much difference to you on a day–to–day basis, and you only had to see him once a year at the office “Christmas Party.” (He canceled the long–standing “Holiday Party” and replaced it with a “Christmas Party.” Oh, well, you thought, he is the boss and he gets to decide these things….). You knew enough to stay invisible.

One afternoon, you received an email from the AG’s Chief of Staff, Bill Fessenden. A non–lawyer and the AG’s 26 year old campaign manager, who allegedly was behind some recent lay–offs of some really good, long–time AAG’s, he said that he needed to see you immediately.

Your office was a good mile away from the State Capitol, so you grabbed your coat and off you went. Passing your old offices in the Special Litigation Unit, which were right next to the bosses, you were ushered into the Chief of Staff’s office. Also in attendance was Carl Milliken, a well known Statehouse lobbyist and plaintiff’s lawyer in your ex life partner’s old law firm.

For reasons that you can’t quite articulate, your stomach begins to ache.

While Milliken just smirked, Fessenden barked, “Ok, let’s get to the bottom of this. Our friend Carl tells me that you and some assistant attorneys general in other states have an investigation going against Wrong Aide Pharmacy, and that he can’t get an answer as to what is going on! I haven’t even heard of this case and so I thought it would be a good idea for you to let the front office what is happening. As you know, the AG is committed to having open lines of communication with the private bar, and, even more important, he isn’t about to let some AG in another state take the lead on some case in which good lawyers here in Atlantis are already fighting the good fight! So, what’s up?”

The truth immediately races through your mind.

Over the last two weeks, your Consumer hotline has been buzzing with complaints about Wrong Aide’s “over the counter” drug sales. The complaints all seemed to be the same, and you are suspicious about them because they seemed contrived, which is why you hadn’t opened a file or assigned an investigator to look into them. You had done a quick check on the “NAAG Secret Website” and it let you know that AAG’s around the country were getting similar complaints. Several shared your qualms especially since a national class action suit had recently been filed by a group of politically connected trial lawyers with a record of generating complaints to AG offices as a way to secure a quick, high fee settlement of the private case. The truth be known, you have no idea whether Wrong Aide had done anything “wrong” at all.

What do you say to the Chief of Staff?

Ethics Hypo #4

As a senior member of the office, it is occasionally your job to weigh in on matter that pits one division of the office against another. You have no criminal experience yourself, but you know enough to be concerned about this one.

The Alfond Shoe Tannery had long been a mainstay of the economy of Bayside, Atlantis. It employs 4-500 unionized workers and somehow has remained competitive with off shore competitors. Jacob Alfond, great-grandson of the founder and Atlantis’ most respected philanthropist, remains the vibrant CEO. He has resisted many lucrative offers to sell because “I know that they will steal the Alfond trademark and move it all to Asia!”

One of the ways that the Alfond family is revered in Atlantis is that they have a reputation of “playing by the rules” and never asking for favors.

It was therefore not initially bothersome when wastewater from the tannery dribbled into the Bayside Bay. Although the smell was horrendous, the scientists in the lab at the Atlantis Department of Environmental Protection had concluded that the actual environmental damage was not “all that serious.” Alfond’s long time counsel, your former life partner (of course!), negotiated an administrative consent agreement with a low level assistant attorney general, Chauncy DePew, that allowed Alfond Tannery to pay no fine based on its promise “to invest at least $1 million in new environmental equipment.”

The truth is that the Alfond family is not universally loved in Atlantis’ neighboring state of Canaan that faces Bayside (and the Tannery) directly across the narrows where McMansions now dominate the shore. Canaan’s summer residents rose up in fury upon learning that the Alfond Tannery “was let off the hook.” After filing a FOIA request with the Atlantis Department of Environmental Protection and reading the actual scientific analysis of the wastewater, they hired their own scientist who declared the discharge “very serious” and issued a very public outcry for the case to be reopened.

You privately advised your boss the Attorney General that reopening was not an option. Under Atlantis administrative law, a deal is a deal and the Department of Attorney General’s press secretary issued a short statement saying as much.

Not to be dissuaded, the Canaan Citizens for a Clean Bay (the CCCB) fired back that they wanted to see the personnel file of DePew now that he had joined the law firm who had represented Alfond Tannery. Once again, you advised your boss that the now ex-AAG’s file was protected by both statute and “attorney client” privilege although that latter argument was not free from doubt now that the case was closed. Once again the press secretary issued a bland statement.

Driven into a frenzy, the CCCB attacked your boss for “a huge cover up” and that demanded your criminal division launch an immediate investigation. The head of the criminal division, whom you do not know well, has emailed you (ignoring the mantra that these things should always be discussed without the use of email) and said “hey, Harvard, I am happy to look at this one. I never trust anyone whose first and last name are interchangeable that includes that AAG Depew guy. Just because he settled on the civil side doesn’t mean we can’t indict them, right? Lemme know what you think, but I may have to go to the boss myself on this one.”

What do you do?

If you open up the file and bring a criminal charge, is that ethical since criminal violations were never discussed in the settling of the administrative case?

Does it make a difference that no one has ever been prosecuted under the criminal discharge statute?

Does is make a difference if Alfond threatens to close the tannery?

Does it make a difference that the Tannery was unionized?

Does it make a difference if Alfond either contributed to the campaign of your boss or to that of his opponent? or to your personal favorite charity?

Does it make a difference that DePew actually had 37 other discharge cases along with an active litigation work load? and that the AG cried real tears at DePew’s retirement gala? made necessary because DePew has two disabled children? and is a recent widower?

Does it make a difference that AAG’s around the office are furious that their files might now be subject to review if the attorney general caves and opens DePews files?

Does it make a difference that the head of the criminal division is the Mayor of Atlantis’ capitol?

Ethics Hypothetical #5

What a ride the last 35 years have been!

Who would ever have thought that you’d have spent an entire career as an Assistant?Attorney General?

The truth is that you have very few regrets. The money has not been great, but scholarships and your ex got the kids through college and one is even at Harvard Law School. Living in the house where you were raised has been comforting and inexpensive, and you can look around you and see the positive differences you have made in your own community.

Your pension has vested and your vacation time accrues faster than you can use it. Your new “life partner” is the real thing (not a being a lawyer sure helps!) and that four week visit to Dubrovnik last Spring was the trip of a lifetime.

Bonnie has grown up and brings her kids over now and again, and you can’t help but think back of how you and your then AG managed to settle that case in such a way as to get her the services that she needed. She is so much happier than anyone would have thought possible!

Your own health is good and you love coming to work every day. You could not help but notice the contrast with your Harvard classmates at your thirtieth reunion. After all those years of making money, they looked so old and haggard. They drank way too much and bemoaned they had nothing to show for their life except for their place in the Hamptons that they never had time to visit. As head of the Special Litigation Section, you have a good working relationship with the new AG — who seems so young — and memories are fading about your cameo appearance at the impeachment trial that so shocked Atlantis. At the end of the day, the only victim of the Wrong Aide case was the AG himself! Who knew?

After a quick trip to the gym, conveniently located in the office (there is a lot of room in the state office buildings now what with tax caps and so many of the lawyers working from home), you go to lunch with a former member of the office who now proudly sits on the Atlantis Supreme Court, Associate Justice Julia Chamberlain. She is not only a great lawyer and a good friend, but she is also a client since the AG’s office represents the Judiciary when it is sued.

You begin the lunch with your customary greetings (“Hey, Harvard!” “Hey, Judge!”) and chat along as you have done for over 25 years.

As dessert is being brought, your friend says, “By the way, Harvard, I asked the Chief Justice to ask the AG to assign you to represent me on that stupid conflict–of–interest stuff.”

As you both knew, the job of representing the Judiciary went to the Special Litigation Section in order to minimize the appearance of conflict with the rest of the office who regularly appeared before the Atlantis’s courts. Allegations against the Supreme Court were few in number and always handled by the Section Chief, i.e., you.

The last thing that you wanted to discuss with your friend was the “stupid conflict of interest stuff.” A self styled citizen activist group had made allegations that your friend had gone on too many “educational” trips that were funded by several “think tanks” which in turn were funded by unknown sources. You had never liked the idea of judges going on these trips, but the courts have recently ruled that judges had First Amendment rights just like everyone else.

This ruling seems to have invalidated Atlantis’s existing statutory constraints on judicial behavior. Further complicating the matter was the fact that your good friend the Justice is recently single, and, you surmised, was not going to these meetings alone.

At that point, you deliberately spilled your water glass and, in the confusion, were able to change the subject. When you returned to the office, you called in the three fellow members of the Special Litigation Section you supervise for an impromptu meeting to discuss both “Judgegate” and whether this might be a good time to retire after all.

Do you handle the case against Justice Chamberlain?