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Discrimination case against City Police Department

Ann represents Officer Patty in an employment discrimination case against City Police Department
(“Department”) in which Patty alleges that Department refused to promote her and other female
police officers to positions that supervise male police officers. Bob represents Department.
At Patty’s request, Ann privately interviewed a male police captain, Carl, who had heard the Chief
of Police (Chief) make disparaging comments about women in Department. Carl told Ann that Chief
has repeatedly said that he disapproves of women becoming police officers, routinely assigns them
clerical work, and would personally see to it that no female officer would ever supervise any male
officer. Carl met with Ann voluntarily during his non-work hours at home. Ann did not seek Bob’s
consent to meet with Carl or invite Bob to be present at Carl’s interview.

When Bob saw Carl’s name as a trial witness on the pretrial statement, he asked Chief to prepare a
memo to him summarizing Carl’s personnel history and any information that could be used to
discredit him. Chief produced a lengthy memo containing details of Carl’s youthful indiscretions. In
the memo, however, were several damaging statements by Chief reflecting his negative views about
female police officers. In the course of discovery, Bob’s paralegal inadvertently delivered a copy of
Chief s memo to Ann. Immediately upon opening the envelope in which the memo was delivered, Ann
realized that it had been sent by mistake. At the same time, Bob’s paralegal discovered and advised
Bob what had happened. Bob promptly demanded the memo’s retum, but Ann refused, intending to
use it at trial.

Please answer the following questions:

Did Ann commit any ethical violation by interviewing Carl? Discuss.

What are Ann’s ethical obligations with respect to Chief s memo? Discuss.

At trial, how should the court rule on objections by Bob to the admission of Chief s
memo on the grounds of attomey-client privilege and hearsay? Discuss.

Sample Answer

Did Ann commit any ethical violation by interviewing Carl?

Potentially yes, Ann might have violated ethical rules depending on the specific jurisdiction’s rules. Here’s why:

Ex parte communication: Interviewing Carl without Bob’s knowledge or consent could be seen as an ex parte communication, which is generally prohibited. This rule prevents lawyers from gaining an unfair advantage by communicating directly with a represented party without the other lawyer present.
Confidentiality: Ann did not seek Carl’s consent to disclose his statements to others. If Carl’s information is confidential, Ann might have violated confidentiality rules.

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However, there are also arguments in Ann’s favor:

Carl was not formally represented by Bob at the time of the interview. If Carl voluntarily participated and understood the purpose of the interview, it might not be considered an ex parte communication.
Carl’s statements might not be considered confidential depending on the nature of the information and the context.

Ultimately, whether Ann violated ethical rules depends on the specific rules of her jurisdiction and the specific facts of the case. It’s advisable for Ann to consult with a legal ethics expert in her jurisdiction for further guidance.

2. What are Ann’s ethical obligations with respect to Chief’s memo?

Ann faces several ethical dilemmas regarding Chief’s memo:

Inadvertent disclosure: Although Ann received the memo inadvertently, she cannot ignore its contents. She must determine if it contains privileged or confidential information.
Attorney-client privilege: The memo might be protected by attorney-client privilege if it contains confidential communications between Bob and Chief seeking legal advice. Ann cannot use privileged information.
Work product doctrine: If the memo reflects Bob’s mental impressions and legal strategies, it might be protected by the work product doctrine. Ann should avoid using work product information unless she can demonstrate a substantial need and cannot obtain the information elsewhere.
Candor to the tribunal: Ann has an ethical obligation to disclose any information that might have a material bearing on the case. This includes information helpful to Bob’s case, even if it means revealing the memo’s contents.

Ann should consult with a legal ethics expert and carefully analyze the memo to determine the applicable ethical rules and her best course of action. She might need to return the memo, seek a court order to compel its disclosure, or refrain from using it altogether.

3. How should the court rule on objections by Bob to the admission of Chief’s memo?

Bob might object to the admission of the memo on several grounds:

Attorney-client privilege: If the memo contains confidential communications seeking legal advice, the court will likely uphold the privilege and exclude the memo.
Work product doctrine: If the memo reflects Bob’s mental impressions and legal strategies, the court might exclude it unless Ann demonstrates a substantial need and cannot obtain the information elsewhere.
Hearsay: If Ann intends to use Chief’s statements in the memo to prove the truth of their content, they might be considered hearsay and inadmissible unless an exception applies.

The court will need to carefully analyze the memo and apply the relevant legal rules to determine whether Bob’s objections are valid and if the memo should be admitted.

Disclaimer: This analysis is for informational purposes only and does not constitute legal advice. Please consult with a qualified legal professional for any specific legal questions you may have.

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Discrimination case against City Police Department

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