Helping Students Prepare for Practice

As part of my goal of better preparing students for day one of practice, I have been adding small projects to my larger classes to help supplement the doctrinal discussions.  One focus has been to add ethics and professionalism components to my courses beyond my continuing practice of pointing out and discussing ethical issues raised by our cases.  To that end, I started Business Associations I a little differently this year.

After discussing my course objectives, goals, and expectations for the course, and before discussing the first reading assignment, I passed out a single sheet to the entire class (about 60 students).  

Half the class was informed that they were colleagues in a law firm with Attorney S, and the other half of the class were colleagues in a law firm with Attorney K. I provided them the fact pattern and letter below, and told them that their colleague had either just sent or just received the letter. I then asked them to discuss in groups of three or four any concerns they had and any next steps they might want or need to take.  The Handout:

In May 2010, Mr. and Mrs. B went to Attorney K requesting that he prepare an insurance funded buy/sell agreement. Mr. and Mrs. B had been advised by Ms. H that an insurance funded buy/sell agreement was necessary. Attorney K prepared the insurance funded buy/sell agreement for Mr. and Mrs. B.

Later, Mr. and Mrs. B apparently questioned the need for the insurance funded buy/sell agreement. Mr. and Mrs. B retained the Mr. S to review this issue.

The following letter arrived in your office today:

Dear Mr. K,

Sometime last May, 2010, Mr. & Mrs. B approached your office, possibly with the assistance of Ms. H, requesting advice concerning a buy-sell agreement for their corporation. Since that time, Mr. and Mrs. B have questioned the need for the buy-sell agreement, since they are married, and are also the only shareholders in the corporation.

To be frank, Mr. K, my clients believe they were mis-advised, and intend to file a complaint with the state Disciplinary Administrator concerning your part in drafting the buy-sell agreement. However, if you were to simply refund your fee to them, in care of this office, I believe they may relent, and not file anything with the state Disciplinary Administrator.

I will need to hear from you no later than Monday, September 13, 2010, if this is acceptable to you. If we don't hear from you, we will assume that you would like to address this matter through the Office of the Disciplinary Administrator. If you have any questions, please do not hesitate to contact my office.

Sincerely,

Mr. S

The above fact pattern and letter are pulled from a state supreme court disciplinary case, and the case provides two subsequent communications that provide the rest of the exercise.  I, of course, did not tell them it was from a disciplinary case.  

The discussion was fairly lively, and the students raised a lot of interesting issues and questions. However, very little of the discussion focused on the "settlement attempt" made by Attorney S.  The discussion focused mostly on whether the buy-sell agreement should have been drafted and how to manage the potential harms from the case moving forward.  The discussion moving forward also focused largely on the facts, even as I provided the subsequent documents.  

This exercise helps frame important ethical and professionalism issues that students might not otherwise see (at least not in context), and it also provides a way to discuss the business of a law practice as related to a business law representation.  Part of the conversation focused on how one maintains a good law business, interacts with clients and other attorneys, and thinks about the possible repercussions of such an allegation.  Of course, it also provides the opportunity to discuss our obligations as professionals -- to our clients and the bar-- and the need to understand and embrace the rules of professional practice. Finally, it provides the opportunity to discuss the need to assess and investigate the merits of any claim BEFORE anything leaves the office.  

If you are interested in the exercise and/or the case, please let me know.  I am happy to share.

--Joshua Fershee