You discover that while the attorney you are working for is representing a celebrity, Whitney Tears, in a controversial child custody case, your employer has been secretly leaking information to a reporter. The information is from an investigation conducted by the Division of Human Services and has very personal information, some of which puts poor Whitney and is embarassing and puts her in a bad light. You confront her about these "leaks" and she replies, "Deal with it."
You really need this job but you think these actions are disloyal, despicable, devious and dishonest and downright dirty. You must take action! Based on Paralegal and Brown, explain what you would do and explain why.
Please post your comment by Sunday.
Subscribe to:
Post Comments (Atom)
14 comments:
My motto is: If you know something is wrong and let it happen than you are just as wrong! If there is anything you can do to stop unethical actions, even verbally, than you should.
In Paralegal vs. Lawyer the paralegal’s actions were not just refusing to be involved in an illegal act but also informing a third party (whisleblowing) of her boss’s misconduct.
In Brown v. Hammond the actions taken were similar to the paralegal case where an employee was fired for “refusing to perform improper practices and informing clients and authorities of their boss’ actions.”
As the plaintiffs acted in their cases, I would immitate in this case. I would call someone at the Division of Human Services about my employer’s actions. I would choose not to tell anyone at the reporter for two reasons. One, they were the ones involved in the leak so they would probably not do anything about it. Two, they could turn it around and use my situation as the next gossip story to pump up their ratings. The most ethical thing I believe in this situation would be to notify the DHS not to conduct interviews with my boss. I realize this would lead to my termination. However, while I “really need this job”, I really need my integrity and to be able to have a clear conciece!
Even if there is an employment at will doctrine – once an employer asks for your involvement in wrong practices you are essentially forced to make a decision you shouldn’t have even had to be bothered with. A moral person like myself, lol! Would do what both Brown and the paralegal did.
What the attorney (my boss) in this case is doing is in direct violation of the Rules for Professional Conduct (giving information that can damage a client's case without that client's express consent and approval). PA RPC 1.6 (a), (b), (c).
Because my confronting him/her about this violation has not yielded any change in his/her actions, I am forced to act because I know his/her behavior is an ethical violation.
Based on the court's decision in Brown v. Hammond, I would not "whistle blow' to the client directly, because the Court held that doing so was a "gratuitous" disclosure of improper employer actions. According to the Court in Brown v. Hammond, it would be permissable to report improper employer actions to "outside authorities". That would seem to indicate that it would be permissable to report my boss's RPC violation to the Division of Human Services (a proper outside authority or agency).
Paralegal v. Lawyer also indicates that I have the right not to engage in a practice that breaks the law (violates statutes governing forgery and mail fraud in that case) or violates codes of professional conduct. Again, the court held that it was proper in Paralegal v. Lawyer for the Plaintiff to report improper actions (violation of RPC rules and of the above statutes) to an "authority" (the lawyer for her boss's Disciplinary Action matter.
Based on the holdings in both Brown and Paralegal, I would definitly report my boss's misconduct to the Division of Human Services --
BUT, first I would see if there was an internal authority in my law firm that would resonably have authority in this matter to act to correct my boss's violation. If such a person existed (ie: a Paralegal Manager to whom I also reported, or a Partner to whom my boss reported to, or a Compliance Officer for the firm), I would take the matter to that authority first, before going outside the law firm to the Division of Human Resources. The reason I would do so, is that it is always better to go through the proper channels in your place of work (the law firm in this case) to handle problems, conflicts and violations) and give the chain of command process the opportunity to work as it should.
However, if the chain of command process fails, then it is my duty to go to the next authority in line. Another possible option in this case might also be to go to the Disciplinary Board we talked about a few classes back, and make a complaint which would be handeled confidentially and within the framework for policing the legal profession.
First and foremost, I would definitely report the matter to the Division of Human Services. Unfortunately, I really do not believe doing that would prevent my boss from continuing this type of behavior with Ms. Tears let alone any future potential clients. I would promptly give myself two weeks to see whether there is an improvement in my boss' behavior or if she shows remorse. If then, I note she has not modified her behavior, I would make a complaint directly with the Bar Association. I agree with Margaret wherein she states my boss has violated Rules of Professional Conduct. My boss has violated Pennsylvania Rules of Professional Conduct 3.6(a) - Trial Publicity.
On another note, I would be tactful in filing a claim because since I am an employee at-will none of her behavior towards me would indicate she has violated public policy. In the Brown v. Hammond, the Court denied in part and granted in part. The Court denied the Motion regarding the claim wherein "she was terminated in violation of public policy for refusing to perform wrongful acts." Additionally, the Court granted the Motion to Dismiss regarding her claim she was fired based on the fact she reported Employer's acts. This was not considered a public policy violation.
In that regard, I think the Court would not grant my claim that I reported my boss' wrongful actions as violations of public policy. However, if my boss' comments to me were something other than "Deal with it," I would certainly be in a different position. In order for myself to have a valid action based on public policy violation, my boss would have to tell me to perform the same wrongful actions she performed and I would have to refuse same.
In the Paralegal v. Lawyer, similar issues arise. Since paralegal refused to take part in Lawyer's misdeeds, the Defendant's Motion for Summary Judgment was denied on the basis her discharge was based on a public policy exception.
If I were a paralegal working for an attorney who was behaving unethically, my honest, real world approach would be to sit back and be wary of further misconduct.
To me, I don't think I would ever "confront" the attorney the way Brown did or sneak behind the attorney's back as Paralegal did. I would see if the behavior repeats, casually seek another job, and make a complaint to the Disciplinary Board of the Supreme Court of Pennsylvania. [I'm assuming our scenario is in PA].
However, since in the set up I've already done the confronting, I now have to deal with it.
1.) I, as a paralegal, am not LEGALLY bound to behave ethically. The attorney I work for accepts the responsibility of my ethical behavior when he/she hired me.
2.) If I choose to stay with this attorney, and his/her misconduct becomes publicly understood (since this is a celebrity case, it usually does), then my reputation is on the line too; how could I go seek another job and say "My work experience includes paralegal work with an attorney undergoing serious review by the Disciplinary Board, and I knew about it, and I chose not to leave the job or blow the whistle."
3.) In weighing the immediate needs of this job, and the long term damage this job could do to my career, I would have no other choice but to seek another job and report the attorney.
Now, if I don't seek another job, and I chose to stay at that firm, I would be aware that I'm set up for some negative workplace behavior; it would cross the attorney's mind at some point that his/her paralegal is keeping an eye on things, and it may be beneficial to have the paralegal removed from the scenario. That brings into play employment law -- particularly elements of a hostile work environment and possibly of a wrongful termination.
[Both Brown and Paralegal were, allegedly, wrongfully terminated. Brown's complaint was dismissed in part, and Paralegal's complaint was denied a summary judgement. Whether they were indeed wrongfully terminated has yet to be revealed.]
Nonetheless, if an attorney is shadey and greedy enough to leak information to reporters -- which I'm certain came with a price -- why wouldn't the attorney be shadey enough to terminate me for catching the shadey behavior?
End story: Quit the job, report the creep, and let the Board handle it.
Hello everyone,
I would report my employer to the Disciplinary Board for leaking info to the reporter.The lawyer knows they violated the rules of conduct already so there would be no use in me telling him he did so.And from the way Brown vs Hammond turned out "whistle blowing" doesnt go over well with the courts either so I wouldnt give them the chance to fire me, I would quit after I turned them in so I would not have to sue them in court. Hopefully,since I took the high road that would lead to me finding another job.
Since I am the paralegal to this Whitney's case, I take part in responsibility of keeping information confidential and making sure client-attorney relationship is established in a positive manner. Because my employer is breaking professional codes of conduct, it is also my responsibility to bring that issue into the correct hands.
As in the Brown and Paralegal situation it would seem as though I am setting myself up for retaliatory discharge. I believe that would have to be a risk that I would have to take. The legal field is established to protect/defend those that can not protect/defend themselves, charging extra “robbing” a client, misleading a client for personal gain, or falsifying information should not be overlooked or even attempted by those who are trained to handle legal matters. If legal professionals are allowed to commit these acts without punishment and instead punish those that are choosing the correct actions then those that are seeking remedy are not in safe hands.
I am facing a very difficult ethical dilemma of whose interests I should put first, mine or the public. It's not easy to find a new job... However, having such outrages behaivor of my boss unreported will cause a lot of harm to Mrs. Tears and probably other future clients.
According to Paralegal v. Laywer, I should not even possibly be faced with this type of dilemma. ... There are areas of an employee's life in which his employer has no legitimate interest. An intrusion into one of these areas (I assume my morality is one of them) by virtue of the employer power of discharge might plausibly give rise to a cause of action...
However, if I report or "blow a whistle" to the appropriate authorities, get fired and then sue my boss for wrongful discharge, I will not win, most likely.
First of all, to be protected by the Pennsylvania Whistleblower Law, one must be an employee of a public body, which a law firm is not.
Second, the laywer himself committed a wrongful act, but did not tell me to give out information on our client to reporters. So, here, there is no violation of public policy like in Brown v. Hammod, when their situation is compared to that of a bartender being fired after she refused the order of her boss to serve a drink to an already intoxicated person.
So, what I would do, I would tell Mrs. Tears about what is going on and explain how the lawyer is violating the Rules of professional Conduct and that she can take him to the Disciplinary Board. Let her deal with this.
If something like that happens again in the future with a different client, I would do the same and start looking for another job.
Paralegal v. Lawyer/Brown v. Hammond
You discover that while the attorney you are working for is representing a celebrity, Whitney Tears, in a controversial child custody case, your employer has been secretly leaking information to a reporter. The information is from an investigation conducted by the Division of Human Services and has very personal information, some of which puts poor Whitney and is embarassing and puts her in a bad light. You confront her about these "leaks" and she replies, "Deal with it."
You really need this job but you think these actions are disloyal, despicable, devious and dishonest and downright dirty. You must take action! Based on Paralegal and Brown, explain what you would do and explain why.
On these facts, the first issue is whether the attorney has broken any laws or rules regulating attorney conduct and second, do you the paralegal have a duty to report to authorities your information or belief as to the attorney’s conduct. Additionally, of concern to the paralegal is whether he/she could be found complicit under the law for not disclosing her knowledge and therefore punishable for his/her conduct.
If the paralegal has solid ground for believing that the attorney is in fact disclosing confidential information touching upon either the client or the client’s child, then the paralegal should disclose this improper conduct to the proper authorities. The authorities to be addressed would be the Disciplinary Board and the Division of Human Services Legal Department.
The attorney’s conduct, if the allegations are true, are prohibited by the following Rule outlined in our Pennsylvania Rules of Professional Conduct. Rule 1.4 (a) which states in part that “(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation,” appears to cover her employer’s conduct.
Additionally, I would suggest that the paralegal be guided by Rule 8.3 Reporting Professional Misconduct in deciding how and when to report serious misconduct, and particularly the relevant comments, which I have included below.
[3] If a lawyer were obligated to report every violation of the Rules, the failure to report any
violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The duty to report involves only misconduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the
lawyer is aware.
[4] While a lawyer may report professional misconduct at any time, the lawyer must report
misconduct upon acquiring actual knowledge of said misconduct. The discretionary reporting of misconduct should not be undertaken for purposes of tactical advantage over another lawyer, to punish or inconvenience another for a personal or professional slight, or to harass another lawyer.
[5] A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
Lastly, I would suggest to the paralegal in this fact pattern, to quit if the attorney’s conduct is intolerable to him/her and the work environment requires them to work together.
In regards to claims that the client may have against the attorney, they include defamation, invasion of privacy, fraud, intentional infliction of emotional distress to name a few.
Ooops I forgot to mention "Brown".
In Brown, the court denied the motion relative to her claim she was terminated in violation of public policy for refusing to perform wrongful acts. Based on our fact pattern, I think a claim for wrongful termination based on public policy mamdate would survive summary judgment. The Court in "Paralegal" similarly denied summary judgment where there exist a strong public policy prohibits illegal acts.
In the hypothetical situation proposed, I would probably do the following:
1) Due to the fact that I would already be a paralegal, and a lot better at legal research than I am currently. I would do my homework so I was certain of my rites and also any ethical conduct my employer was obligated to follow.
2) When I realized that she was in obvious violation of P.A. Code 1.6 (a), (b), and (c) as Marageret points out, I would take that info along with evidence that if I decided to report this I would be protected by the whistle blower act, which would supersede Pennsylvania's at will employment act to my employer.
3) I would present it to her in a subtle way such as-- are you sure this behavior is ethical?
4) Then, I would sit back and watch her reaction and subsequent actions.
I feel this is a realistic, effective, and moral choice because it gives my employer the oppertunity to "slip" out of her unethical behavior with little recourse, but it also lets her check her conscience and hopefully that is enough for her to behave appropriately in the future. Or, if her conscience is not a strong enough factor for her to change her behavior, the fact that someone is not only noticing her behavior, but presneting it to her with some strong arguments ( Pa code violations,and whistle blower act) at hand, the employer would be foolish to continue her unethical behavior.
In short, If her conscience is not enough to get her to change her actions, then her fear of facing sanctions should. If both fail, I would sleep fine knowing that I tried to resolve it amicably, without conflict, and I would report her slimey a==.
I am not sure if I would be inclined to confront my boss myself. But since the article states that I already have done so, I guess I would have to think a little in character.
I am a firm believer of "do unto others as you would want done to you." If that were me in the "lime light" and my attorney (someone who is supposed to protect my interest) was bad mouthing me and releasing my confidential information, I would hope that someone would tell me or at least someone at the firm that is representing me to have his/her misconduct taken care of.
I would definitely have to bring this behavior to the attention of maybe one of the firm’s partners or the person that my boss reports to. I may not like the idea of confronting the person that I report to, but I do have a conscience and need to be able to sleep at night. If the partner that I reported the incident to neglected to do anything, I would then have no choice but to report this to the Disciplinary Board.
Rule 1.6 of the Pennsylvania Rules of P.C. is clearly violated. Before proceeding like the paralegal did in "Paralegal v. Lawyer" I think I'd take a less drastic measure. Complaining to the Board would be one option. There are many things that attorneys might not tell their paralegals for obvious reasons. Section (c)(1) of rule 1.6 states that "a lawyer may reveal such if necessary" to prevent certain death or bodily harm. In the case of Ms. Tears' babies, they may be at a high risk for harm and bodily injury-perhaps the attorney is aware of information that you are not.
As far as billing clients goes, that is a bit more easy to pinpoint and prove. I also think it is more serious than this issue or the issue in Paralegal v. Lawyer because it is dealing with client's money. In this case I'd be more likely to take my employer to court.
My Boss would be in violation of rule 3.6 ( you should never disclose to anyone what happens during a tria, unless your client says it ok ) If my Boss ( the attorney I work for) did something like this i would definitely confront them about it. Since it is in violation of the Rules for Professional Conduct. I think that my Boss is very " Bold" to think that no one in the office would report him/her to the Disciplinary Board.
In Brown vs. Hammond they were fired for not wanted to take part in any unethical actions. This case was very similar to the paralegal vs lawyer case. I would hate to be in that position that that paralegal was in. You want your job, but right is right and wrong is wrong. So I would not let them get away with that. It's not right.
In an ideal world, employers have an open door policy for their employees to air their grievances, and subsequently will provide a remedy for the employee. However, in the real world as a Pennsylvania employee it’s about covering your a!#. My conduct of how I would proceed with the matter would be dictated by the protections I have as a Pennsylvania employee. This, is essentially none. In the Brown case, the court describes the employee at-will doctrine as “virtually absolute”. Chances are if I report the conduct to an advisory board, my employer is going to know it is me, since I already confronted them about it. If this be the case, my employer would either fire me, or make my life at work miserable forcing me to quit. If any of us has been a Pennsylvania employee long enough we will sure enough witness this scenario. I am on board with Robert. If I am morally disgusted with my employer’s behavior, I would start looking for another job. However, I would try to protect my interest in some way. I certainly would not want to be dragged into a legal conflict as an accomplice.
Actually, I was in a precarious situation like this one in my last job. I was grooming dogs for a large pet retailer, and during the course of my six month employment, I witnessed a constant and continuous disregard for the safety policies that were in place to protect the animals and the employees. Eventually, an animal died in while in the stores care, and my employer covered it up. Of course I have no real way to prove this, other than the statements of my other employees. Not long after this event people started “jumping ship”. I took a bold move, and talked to my immediate supervisor about safety issues as they concerned me. I did not confront her about the death of the animal. She heard my concerns, and agreed that they were valid, and we would all work on it. However, she never admitted to braking policies. Over a period of a few weeks, I saw no improvement. Actually, things got worse for me and the animals. In response, I went to my operations manager and expressed my grievances. Again, the deck chairs on the Titanic were rearranged and nothing got better. Finally, I sat down with the store manager, my supervisor and another middle manager and unloaded all of my guns about the violation of the safety policies. Yes, I did accuse her to her face, that I felt she was responsible for the death of the animal among other things. Throughout this process I was interviewing for other employers. Shortly, there after, I was offered another job and quit my post.
Though, the circumstances are different from the cases, the moral responsibilities I was faced with would likely be the same. I have a responsibility to the trust I am given by a client do my job with competence and integrity. Also, I have a personal responsibility to provide for my emotional and financial well being. I would probably go along a similar route in the case scenario that I did in my personal experience. I would present my ethical duties to my supervisors(s) through a chain of command, and would look for another job in the interim. Once, I secured employment I would quit. I would not immediately report the lawyer to the disciplinary board. I would hold onto any proof or information I have for awhile to use as leverage, if I were to be in a position of a legal dispute to have to exert some force on my employer.
Post a Comment