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MPT 1-Pla 2 Rewrite

This memo analyzes whether an attorney's plan to have a legal aid friend a witness on social media to obtain information would violate ethics rules. It discusses three approaches courts have used, and finds that under all three approaches the attorney's actions would likely be considered unethical.

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Emanuel Yunayev
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103 views

MPT 1-Pla 2 Rewrite

This memo analyzes whether an attorney's plan to have a legal aid friend a witness on social media to obtain information would violate ethics rules. It discusses three approaches courts have used, and finds that under all three approaches the attorney's actions would likely be considered unethical.

Uploaded by

Emanuel Yunayev
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Memo

To: Bert Ballentine


From: Examinee
Date: 1/23/24
Re: Social Networking Inquiry

This memo will discuss the legality, under the Rules of Professional Conduct, for specific
conduct that attorney Melinda Nelson wishes to engage in. The Rules of Professional Conduct
are plain and direct but do not have a clear answer for this conduct. Furthermore, no court in
Franklin has spoken on this matter. Therefore, we will need to rely on persuading jurisdiction
from Olmpia and Columbia courts. The cases mention three basic types of analysis that must be
taken to reach a decision in this situation. The Devonia Rosa court analyses conduct under a
strict reading of the language of the law. They would not allow any wiggle room, regardless of
the situation. The Hartson Brant court introduces the status based approach and the conduct
based approach. In either approach the court tries to reason if the actions of the attorney have
more benefit than harm from the actions he is engaging in.

1. The strict language approach of the Devonia Rosa court.

In this case, the court found the lawyer guilty of violating Rule 8.4(c), because she
misrepresented herself to the suspect. A district attorney lied to a perpetrator during a hostage
negotiation. The suspect requested to speak to a public defender and since one was not
available, the prosecutor pretended to be a public defender. The perp ended up freeing two
hostages and surrendering to police. The attorney argued that her actions were necessary and
required given the extreme circumstances. Furthermore she saved at least two individuals from
harm and possibly others from, “imminent public harm.” Still the court ruled that a narrow
reading of the Professional Rules do not include any exceptions for allowing misrepresentation
to avoid harm to the public. In our case, the attorney is also looking to perpetuate a type of
misrepresentation on a witness. While the attorney will not lie to the witness directly, she will
instruct a legal aid in her office to do so. This will not be allowed under Rule 8.4(a), which states
an attorney can not induce others to engage in a misrepresentation on his behalf. Therefore
under a strict reading of the law, the attorney would not be allowed to engage in this conduct.
This is especially true because here her actions are to uncover facts in a civil suit, and that is
significantly different to the threat to public safety that was the goal in the Devonia Rosa case.

2. The Status based approach of the Hartson Brant court.

In this case, an attorney sent his two legal aids as an undercover couple to uncover
housing discrimination. The aids were pretending to be a minority couple and were successful in
uncovering discrimination that was occurring. As explained above, the attorney could be liable
for misrepresentation under Rule 8.4(a) even if he was not the one engaging in the action. The
court rationalized that certain situations require harmless misrepresentations to uncover the
truth. It is fairly obvious that the discrimination would not be caught if they simply asked the
realtors directly, therefore some sort of ruse was required. The court states that in cases of civil
rights violations, intellectual properties or crime prevention, such misrepresentations may be
justified. One example would be the housing discrimination case that the court was asked to
judge. Since there is no reasonable alternative to determine the truth, small insignificant lies that
do not result in damage to anyone are allowed in such situations. But, this is not a requirement
that is met in our case. In our case the attorney is defending a negligence case. Also, the
attorney can simply request a court ordered deposition or interrogatory during discovery to
ensure the correct facts are brought to light. The actions of the attorney to try to friend the
witness do reach the justifications that the court tries to use in Hartson Brant and therefore it is
likely that such action will not be legal.

3. The Conduct based approach of the Hartson Brant court.

The final test is the conduct based approach. Here the court discusses a four prong test,
(1) the directness of the lawyer’s involvement in the deception, (2) the significance and depth of
the deception, (3) the necessity of the deception and the existence of alternative means to
discover the evidence, and (4) the relationship with any other of the Rules of Professional
Conduct, that is, whether the conduct is otherwise illegal or unethical. As mentioned above,
since the legal aid is “friending” the witness under the direction of Melinda Nelson, she would be
considered involved in the misrepresentation. Therefore she would fail the first part of the test.

In regards to the second part, Ms. Nelson mentioned she is most likely not to get
accepted as a friend if she makes the request herself. This shows that the witness’s privacy
would be violated in a significant way if she were to gain the information through lying to the
witness.
Furthermore, the case being civil, Ms. Nelson would have a difficult time arguing that
her actions were necessary, especially since she has other alternatives to achieve her goal.
Last but not least, such actions could not be considered ethical by a person practicing in
the legal profession. Therefore, even under the conduct based approach, Ms. Nelson’s actions
would not be considered allowed.
In conclusion, we have proven that the attorney’s actions would probably be a violation
of the rules of ethics. Regardless if the facts are interpreted under the strict language, status
based or conduct based approach, neither would allow the attorney to engage in such action.

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