Supervising Attorney
A) The supervising attorney has been asked to respond to a building survey.
The attorney is busy, and asks the paralegal to “take care of it.” The
paralegal writes a letter to the building management, and also circulates
it among the other tenants of the building. Please read the following
letter, and identify and discuss any violations of ethics. Please also
respond to the following questions:
Does it make a difference if the letter is written on letterhead? It should
identify the supervising attorney on the letterhead. The paralegal must
identify herself as a paralegal in the firm.
Does it make a difference if the paralegal signs the attorney’s name to the
letter? Yes. The paralegal should not sign the attorney’s name to the
letter.
Does it make a difference if the paralegal signs the letter without
identifying himself or herself as a paralegal? It does not make a
difference if she identifies herself as a paralegal, but must say it is for the
firm or otherwise identify that information.
Does it make a difference if the letter is signed with the attorney’s name
with notation that it was signed “by” the paralegal? No it does not.
Does it make a difference that paralegal does not show the letter to the
supervising attorney before giving it to the management? Since the
attorney is supervising it she probably should show it to him, but if he
said take care of it, she could just send it on.
To: Management of Stinky Towers
Re: Your survey on smoking
After much consideration, I feel that I must respond at length to the
inquiry from your office regarding whether the building should be
designated a “smoke-free” environment. I do not believe that you have
the option to insist on any such policy according to the lease agreement
we have with you. In the event that you feel you must pursue such a
policy, I do think that you must renegotiate each and every existing
lease, lowering rents to offset lost business. At the time we signed our
lease, we did not anticipate having to meet anxious, distressed,
SMOKING clients in the parking lot, and of course we expect to be
compensated for being unable to use the space we are renting under our
existing lease. One of our biggest clients, Mr. John Puffer, is a chainsmoker, and we cannot afford to insult him by demanding that he not
smoke. I am giving a copy of this letter to other tenants and will be
talking with them, so that they may be made aware that they have legal
recourse against you.
Further, should such a policy be implemented, I will likewise insist that
the building be declared a perfume-free facility, and I am prepared to
pursue such a policy to the bitter stinking end! Government studies have
shown that spray perfumes help to deplete the ozone layer, and because
of the depletion of ozone, we are all at greater risk of skin cancer. May I
suggest that you hire a person to check for offending perfumes and
cologne at the entrance of the building? This may be expensive, but in
the long run it will be cheaper than defending skin cancer litigation you
will face if you do not make arrangements to clean up the building’s air
quality by banning perfumes.
If something is not done about this danger within twenty days of the date
of this letter, I intend to file a complaint with the building safety
inspectors, and will bring suit. On the other hand, if you would be
interested in re-writing the leases to ban perfume, please let me know,
and I am sure we could provide sample leases that you may use to
change the terms of the signed leases, for a flat fee of about $500 per
tenant, or we may be able to discount the fees if there are more than ten.
Very truly yours,
Sally Smarty
ETHICAL VIOLATIONS IN LETTER
Sally used the term “I” and signed the letter herself as if she were an
attorney and she’s not, but merely doing the letter at the behest of the
supervising attorney. She divulged the name of the client, John Puffer.
She used foul language (“bitter stinking end”). She threatened to report
the building to the building and safety department and then to file a
lawsuit. She demanded that they ban perfume and then solicited the
business of re-writing the leases for him. Also she quoted fees in the
letter which is unethical. She then signed it herself. If she made it clear
that she was writing this for the attorney or the firm, she could sign her
name, but the letter seems like it comes from the attorney.
B) Using your knowledge of valid contract formation, use the information
in the following scenarios to determine whether there is a valid contract,
and if so, identify the offer, the acceptance, and the consideration for
each:
1. You have visited a neighbor’s garage sale, and have asked the
neighbor to put aside a television because you want to buy it. The
neighbor agrees and puts aside the television.
Not really an offer (no amount)
No consideration (money)
Acceptance—set it aside, but no confirmation of money exchanged.
No valid contract.
2. You want to sell an undeveloped piece of swampland that you have
inherited. While talking on the telephone with a friend, he agrees to buy
the land for $450.00.
Offer $450, acceptance for $450, no consideration.
No valid contract.
3. You have decided to purchase a pet horse. You agree on a price and
the seller writes out a bill of sale and signs it. Offer to buy horse for a
price, Acceptance is seller signs the bill of sale, no consideration.
No valid contract.
4. Your son has been in college and has a large balance on his credit
card that was used for school supplies, books, and tuition. You want to
help him out since he has done very well in school. You write a letter to
the credit card company stating that you will be paying the bill in the
future. The credit card company agrees. Offer—to pay the credit card bill,
acceptance by the company. No consideration. No valid contract.
5. You have ordered a black sweater from an Internet source, but
received a pink one instead. The website states that there are no returns
or exchanges accepted. Offer buy a black sweater, no acceptance (got a
pink one. Probably consideration by paying for the sweater. No contract
for pink sweater.
6. You have purchased a super-sonic vacuum cleaner from a company
who advertises that “your money will be refunded if not satisfied.” The
vacuum does not perform well, and when you call to get a refund, the
company refuses. You remind the company that the ad states that your
money will be refunded if not satisfied, and the company tells you that is
correct, but they are satisfied, so there will be no refund!
Contracted to buy vacuum returnable. Offer and acceptance ok, but
they did not live up to their end of the contract.
7. You have received an advertisement in the mail from a major
appliance store, for the sale of a stereo system for $200.00 if you
purchase it by February 1st. No real offer (the advertisement to make an
offer) or anything. No contract.
8. You have agreed to watch your neighbor’s home while he is away on
vacation. Your neighbor often watches your home while you are away
and promises to watch your home the next time that you leave town.
No contract. The requirements are not met. No offer and acceptance
with consideration. If there was one “I’ll watch your home today if you
watch my home tomorrow” it might be closer to a contract.
9. You have been harassed by an ex-partner who will not leave you alone.
In desperation, you have agreed to pay another friend $50.00 plus
mileage to go to the home of the ex-partner and threaten bodily harm.
No valid contract because you cannot contract to do an illegal act.
10. While it is unethical for an attorney to share fees with a paralegal,
your supervising attorney has proposed to pay you a percentage of the
firm’s gross income based on the number of hours you have billed and
clients that you have referred to the firm. You agree.
Valid contract. You work a certain number of hours for a certain
percentage of the firms gross depending on the hours billed and client’s
referred. Offer, acceptance and consideration (work done).
C) TORTS
1. Name a tort which may be also prosecuted as a crime.
Assault
2. Name a tort for which there must be an intent to harm.
Battery
3. Name a tort which there does not have to be an intent to harm
negligence
4. If a runner for a law firm causes a wreck and injures others while
delivering documents to the courthouse, who may be liable and why?
The law firm may be liable because they own and insure the
vehicle. The runner may be liable for reckless driving.
5. If a passerby is injured in an attempt to help a child who is being
attacked by a neighbor’s dog, who is liable and why?
The dog owner is usually liable in every state because of strict liability.
6. If while in store, a patron ignores a “wet floor” caution sign, and slips
and falls, injuring himself, who may be liable?
The store may be liable for having a dangerous area where
customers are going to be walking. The customer may be liable for not
paying attention to the sign, but that is not feasible really.
7. If the same person is blind, does it make a difference?
The store would almost certainly be liable, but then a blind person
would have to know that there are dangers around and they are taking
that chance when they go into a store.
8. If a person is injured at a swimming pool when hit by another
swimmer doing a “ cannonball” into the pool, and there are signs
warning that no lifeguard is on duty, who may be liable and why?
Pool might be liable because they are responsible for the people in
the pool. They cannot just allow anyone in the pool and not be
responsible.
9. Can gossiping be a tort? How and why?
Slander can be a tort. If it is malicious and untrue. And if it publicized
around for everyone to hear.
10. Can talking a friend into breaking he lease on an office building be a
tort? How and why?
It could be malfeasance—the intent to harm without legal justification to
do so.
D) TO: Paralegal
FROM: Supervising Attorney
Date: _______, 20___
RE: People v. Sam Kant
ASSIGNMENT: Sam Kant has requested that our office represent him in
his defense against shoplifting charges. Please review the following facts
of the case and the legal authority that I have provided to determine the
strengths and weaknesses of Mr. Kant’s case. In preparing your
memorandum, please consult the sample Legal Memorandums in PCD
and Statsky. Discuss whether or not you think Mr. Kant could be
convicted of shoplifting pursuant to the law provided.
Please note, this is a closed memo. Therefore, it is important that you do
not conduct any outside research or apply any outside law in your
analysis/conclusions. Apply the law as provided.
FACTS: Our client, Sam Kant, was arrested for shoplifting at Bilmart, a
national department store. At his wife’s request, Mr. Kant went to
Bilmart on Wednesday, ______, 20___, and purchased a case of six 4 oz.
cans of Hoover’s Baked Beans with Bacon. Upon returning home, his
wife chastised him for once again failing to purchase what she had
requested. Apparently, Mrs. Kant can’t stand the taste of Hoover’s Beans,
but is very fond of the Handell’s brand, and was planning to serve them
to her book club when she hosted them for lunch the following afternoon.
Mrs. Kant ordered her husband to return to Bilmart to exchange the
Hoover’s beans for Handell’s beans.
Upon arrival at the store early the next morning, Mr. Kant found that the
line for customer service was extremely long due to Bilmart’s annual
sponsorship of a major community food drive. In an effort to save time,
and thinking the line might be shorter upon his return, Mr. Kant placed
the case of Hoover’s beans into a shopping cart, made his way through
the store to the bean shelf, and then added the case of Handell’s beans to
the cart. However, upon his return, the line had not diminished and it
was obvious that Sam would be waiting a considerable amount of time to
formalize the exchange. Fearing the wrath of his wife should he not
return in time for lunch, Sam placed the case of Hoover’s beans inside a
cart filled with what appeared to be merchandise returns in need of restocking. With the desired case of Handell’s beans remaining in the
shopping cart, Mr. Kant then proceeded to the store’s exit. As he neared
the doors, Mr. Kant was approached and detained by store security, who
witnessed Sam’s actions, and police were called to the store. Apparently,
the cart into which Sam had placed the Hoover’s Beans did not contain
returned items to be shelved, but rather, donations to the Bilmart
Community Food Drive. Officers Kopp and Slickman questioned Mr. Kant
and then cited him for Shoplifting.
LEGAL AUTHORITY:
Criminal Statute § 142.33 Shoplifting
TO: Supervising Attorney
FROM: Paralegal
DATE: June 30, 2012
RE: People v Sam Kant
Facts: Our client, Sam Kant, was arrested for petit larceny at Bilmart, a
national department store. At his wife’s request, Mr. Kant went to Bilmart on
Wednesday, June 13, 2012, and purchased a case of six 4 oz. cans of Hoover’s
Baked Beans with Bacon. Upon returning home, his wife chastised him for
once again failing to purchase what she had requested. Apparently, Mrs. Kant
can’t stand the taste of Hoover’s Beans, but is very fond of the Handell’s brand,
and was planning to serve them to her book club when she hosted them for
lunch the following afternoon. Mrs. Kant ordered her husband to return to
Bilmart to exchange the Hoover’s beans for Handell’s beans.
Upon arrival at the store early the next morning, Mr. Kant found that the line
for customer service was extremely long due to Bilmart’s annual sponsorship of
a major community food drive. In an effort to save time, and thinking the line
might be shorter upon his return, Mr. Kant placed the case of Hoover’s beans
into a shopping cart, made his way through the store to the bean shelf, and
then added the case of Handell’s beans to the cart. However, upon his return,
the line had not diminished and it was obvious that Sam would be waiting a
considerable amount of time to formalize the exchange. Fearing the wrath of
his wife should he not return in time for lunch, Sam placed the case of
Hoover’s beans inside a cart filled with what appeared to be merchandise
returns in need of re-stocking. With the desired case of Handell’s beans
remaining in the shopping cart, Mr. Kant then proceeded to the store’s exit. As
he neared the doors, Mr. Kant was approached and detained by store security,
who witnessed Sam’s actions, and police were called to the store. Apparently,
the cart into which Sam had placed the Hoover’s Beans did not contain
returned items to be shelved, but rather, donations to the Bilmart Community
Food Drive. Officers Kopp and Slickman questioned Mr. Kant and then cited
him for petit larceny.
Discussion: Mr. Kant cannot be convicted of petit larceny according to
Criminal Statute Section 143.03(a). First of all, the statute clearly states:
A person is guilty of petit larceny when he deprives the owner of property.
Under Criminal Statute Section 143, larceny is defined as follows:
(1) A person steals property and commits larceny when, with intent to
deprive another of property, or to appropriate the same to himself, he
wrongfully takes, obtains or withholds such property from an owner
thereof.
Mr. Kant was approaching the exit but had not left the store; had not
deprived the owner of the beans, or wrongfully took the beans out of the store.
One could argue that he was close to the exit, but still intended to pay for the
beans before he left the store. He still had the items in the shopping cart and
was not hiding nor trying to conceal the case of beans. Of course, he had
passed the point of sale, the cashiers, but ostensibly, one could go anywhere in
the store where customers are allowed while still deciding whether or not to
buy something or when one wants to pay for it.
In the similar case of People v Stealer (2001) Stealer had exchanged a pair
earrings and had a pair of socks in her pocket and was approaching the store
exit when stopped. The trial court held that: (1) a “taking” cannot occur until
the suspect has left the store, and (2) until the suspected shoplifter has left the
premises, mere possession of the merchandise fails to prove guilt beyond a
reasonable doubt.
Kant’s actions of putting the unwanted can of beans in the wrong cart
(the donations) would not constitute any intent to deprive the owner (the
supermarket) of any property, nor would it show that he was “appropriating”
the beans for himself. He did not even try to remove them from the premises,
nor cover his actions in any way.
Mr. Kant did not deprive anyone of property nor did he show any intent
to do so. He was, in fact, openly pushing around the cart with his merchandise
unconcealed. He also did not show any intent, nor did he deprive the owner of
the “rejected” case of beans, but rather just left them at the store, albeit
putting them in the wrong place. Reasonable doubt could be established that
he neither had the intent, nor demonstrated the necessary actions consistent
with larceny. He could, therefore, not be found to be guilty beyond a
reasonable doubt.
In People v. Stealer (2001) the defendant was charged with shoplifting when
she placed several pairs of socks into her coat pocket, conducted a formal
exchange between 2 pairs of earrings, paying the difference in cost between the
originally purchased earrings and the earrings subsequently desired, and then
approached the exit of the store while the socks remained in the pocket without
being purchased. The trial court held that: (1) a “taking” cannot occur until the
suspect has left the store, and (2) until the suspected shoplifter has left the
premises, mere possession of the merchandise fails to prove guilt beyond a
reasonable doubt.