—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.
—Generally, apply the Model Rules of Professional Conduct except on those occasions where the Florida Rules differ from the Model Rules in the area of social media and advertising apply.
—You may spot a few issues that were not directly addressed in class. The "Legal Ethics and Social Media," book should assist you in identifying and analyzing some of these issues.
—The Final Project is not to be worked on with anyone else, nor may AI be used for any purpose.
Required Format:
—Your final product should be between fourteen (14) and sixteen (16) pages in length.
—All papers should be double spaced, in 12-point font, and include page numbers. Please place your AGN atop each page.
Deadline:
—Final projects are to be submitted, with only your AGN to assure blind grading, no later than 5:00 p.m. on Wednesday, December 10th via e-mail only to Kim Cruz.
Mindful Ethics:
Professional Responsibility for
Lawyers in the Digital Age
Final Paper Project
Part 1: Rainmaking or Rainstorm?
Pedro Respono’s boutique firm, Respono & Fuller LLP, has built a solid reputation representing investors in securities fraud class actions. Pedro leads most of the firm’s litigation, while Mindy, now a partner and ethics professor, consults on professional responsibility issues.
One morning, Pedro receives an excited message from Derrick who has joined the firm as its marketing coordinator. Derrick announces that several investor websites have reposted a press release from the firm announcing “Respono & Fuller LLP files major class action against Universal Wealth Holdings, LLC, on behalf of defrauded investors.” The post gains traction, with dozens of potential clients calling within hours.
But there is a problem: the firm hasn’t yet filed the lawsuit. Pedro planned to file suit on behalf of an investor named Morgan Conrad who suffered the largest loss, but the complaint is still in draft form. Additionally, the Manning Law Firm filed a similar case two days earlier. Pedro quickly completes the complaint and files with Morgan Conrad as the named plaintiff.
When Mindy hears about the press release, she asks Derrick, “Who wrote this?” Derrick explains that the firm used a template from an earlier case and scheduled it for automatic posting. “It must have gone out early,” he says. “But everyone does this. It’s how we generate leads to find clients for our class action cases.”
Two days later, Judge Ono, now sitting on the federal bench, holds a preliminary hearing to select lead counsel for the consolidated investor cases. The Manning Law Firm files a motion to disqualify Respono & Fuller from acting as lead counsel, arguing that it misled the public by announcing that it had filed the case when it had not. The Manning Law Firm attaches copies of six similar press releases the firm had issued in the past year for other cases.
In court, Pedro insists that it was a clerical oversight and blames an ex-employee who recently left the firm. He emphasizes that no client was actually misled and that Morgan Conrad, the firm’s investor plaintiff, approved the lawsuit over a month ago.
Judge Ono is unconvinced and disqualifies Respono & Fuller from serving as lead counsel. He states that “Lawyers cannot promote their services by making false or misleading statements, even if the mistake was automated. Integrity is not a scheduled post.”
The decision circulates widely online. Later that evening, Mindy drafts a private “note to file” for the firm, suggesting that they review all digital marketing practices.
Questions:
- Identify and discuss which rules of professional conduct may have been violated by the premature press release.
- Does it make a difference if the error was unintentional?
- Analyze the role of truthfulness in lawyer advertising and how it connects to the profession’s broader duty of honesty under Rule 8.4(c).
- Derrick argues that “everyone in the industry does this.” Does custom or common practice have any bearing on the ethical analysis.
- Write a brief reflection on the professional values the judge invoked in saying, “Integrity is not a scheduled post.”
It was late on a Friday when Pedro Respono got the call. His longtime client Alma Rivera, the lead plaintiff in a hurricane-insurance claim, had passed away the night before. The funeral was scheduled for Monday.
That same morning, the insurance company finally emailed an offer:
“We are prepared to settle Ms. Rivera’s claim for $150,000. Please confirm acceptance today.”
Pedro hesitated. Alma’s daughter Maria had told him the week before, “Mom wanted this case done before she died. Please finish it if you can.”
The offer was fair and the paperwork ready. Without notifying the court or opposing counsel of Alma’s death, Pedro signed the settlement agreement “Alma Rivera, by her attorney,” deposited the check into his trust account, and mailed Maria a check for her mother’s share.
The next week, Mindy Fuller, now teaching legal ethics at the local law school, read about the case and texted Pedro suggesting they schedule a zoom meeting.
Click here to watch their conversation and answer the questions posed in the video.
A month later, the Florida Bar sent Pedro a notice of investigation.
Questions:
- Draft the Bar’s Notice of Investigation, including all of the legal ethics rules that the bar would find implicated by Pedro’s actions.
- Draft Pedro’s Response to the Bar’s Notice of Investigation.
Part 3: Realty Check
Watch this video clip below and answer the questions.
60 Minutes Report: "Lawyer's Keep 26 year Secret"
(Note: If you’d like to learn what has transpired in the years since, click here.)
Questions:
- Propose an amendment to the Model Rule of Confidentiality to address the impediments discussed by the attorneys in the video.
- Draft comments to your proposed amendment that both explain the tensions underlying the duty of confidentiality in this context and interpret the rule to provide guidance to attorneys.
- 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.
It is the first day of jury selection in Klickman v. Smith. Mindy Fuller and Pedro Respono, now co-counsel and partners, are managing voir dire while Delores Kline, the firm’s managing partner, observes quietly from the gallery.
During a short recess, Mindy and Pedro draft a quick email to Kayla Bennett, a first-year associate: "Please pull public information on the remaining jurors for our chart including work history, affiliations, and anything that might suggest bias."
Kayla gets to work, checking names on LinkedIn. That afternoon, she shares her preliminary notes with Mindy, pointing out a few jurors who appear to have strong professional connections to industries related to the case.
Later that evening, curious about the jurors Kayla had flagged, Mindy searchs for them on Facebook and Instagram to see if there is any information that might confirm or contradict Kayla’s observations.
The following afternoon, several jurors mention that they had received LinkedIn notifications reading, “Respono & Fuller LLP viewed your profile.”
When Mindy and Pedro meet with Kayla afterward, she explains that she used the firm’s LinkedIn account so that her research would appear official. She said she only viewed profiles and did not send messages or connection requests. She had also asked the firm’s paralegal to double-check a few names, and the paralegal used the same firm account to do so.
Questions:
- Identify and discuss the rules of professional conduct implicated in the vignette and what actions would be required to avoid any violations of the rules?
- What, if any, action do you think a judge could take if notified of the jurors’ comments?
It’s been several years since Mindy became a circuit judge, and Pedro established his boutique practice focusing primarily on small business law. Mindy and Pedro remain close friends.
Derrick and Samanatha, who have reconciled., refer Pedro a client. The client is the estate of Tom Lozaby, a deceased entrepreneur who co-founded “Miami Blankets Inc.” with Luna Osman. Osman is now suing Tom Lozaby’s estate claiming that he failed to share the profits from a key supply contract that Pedro’s firm helped negotiate in 2019.
Pedro vaguely remembers that when Osman and Lozaby were expanding their business in 2019, Pedro was copied on several emails between the two founders and their accountant asking Pedro to “take a look” at the draft supply contract. He recalls attending one Zoom meeting where they discussed deal terms; the engagement letter was signed only by Miami Blankets, “care of Tom Lozaby.” Pedro never billed Osman individually and didn’t think of her as a separate client.
Now, as litigation unfolds, Osman’s attorney moves to disqualify Pedro’s firm, arguing that Pedro had previously represented Osman in the negotiation of the same contract at issue. Osman’s affidavit attaches numerous emails in which Pedro gave legal advice and used inclusive language such as “you both should consider…” and “our draft should protect your joint interests.”
When Mindy—now Judge Fuller—draws the case, she must decide whether to grant the motion to disqualify. She recalls her own early experiences with fuzzy professional boundaries and implied relationships from her time in practice.
Pedro insists that he never “represented” Osman personally and that disqualifying Pedro would severely prejudice the estate. He privately calls Mindy to vent, but she reminds him that as the assigned judge she cannot discuss the case.
As the hearing approaches, Pedro re-reads the professional conduct rules on conflicts of interest and duties to former clients, wondering if he should withdraw. Fareed, one of his associates, fresh out of law school, urges him to fight the motion, saying,
“You never had a signed retainer, so she wasn’t a client—period.”
Questions:
1. Based on Pedro’s past interactions with both founders, was it reasonable for Osman to believe Pedro represented her? Why or why not?
2. What might Pedro have done at the time of the 2019 transaction to avoid the conflict allegations arising in the lawsuit today?
3. Assuming Osman was a former client, what duties does Pedro owe her now?
4. What action, if any, should Judge Fuller take upon realizing that the defendant’s counsel in her courtroom is her close friend?
5. If Pedro’s firm is disqualified, how might this impact his professional reputation and his client’s interests?
(found on Blackboard)