Once you've taught for a while, you realize that some exam questions work better than others in terms of how well they help you assess students. For a number of reasons, the essay question that appears below worked particularly well for me this past semester in connection with the PR course that I taught at Boston University Law School.
Lorie is a lawyer in Boston, Massachusetts who recently graduated from Boston University Law School and passed the Massachusetts Bar Exam. She has decided to start her own solo practice in Boston. In order to develop a client base, she has adopted two strategies.
First, she slips pamphlets under the doors of potential clients. Here’s how it works: Lorie does a lot of landlord-tenant work, and she has brought lawsuits against landlords who are accused of failing to remedy various building code violations. To get the names of prospective plaintiffs, Lorie stops by the relevant municipal agency that keeps public records of buildings that have recently failed inspections. Lorie then stops by the buildings that have failed those inspections and goes door-to-door, slipping pamphlets under the doors of all of the building’s tenants. (She doesn’t ever knock on the doors.)
Recently, Lorie was slipping a pamphlet under a door just as a tenant, Trent, opened his apartment door. They have the following conversation:
Trent: What are you doing?
Lorie: I was just passing along some information about your building and offering to help you.
[Trent reads the pamphlet as Lorie stands in the hall. The pamphlet simply says in large font]:
Your building has failed some recent inspections and has been found to violate at least one building code. You may have a claim against your landlord. Call me for a free consultation: 1-800-sue-them.
[Lorie continues slipping pamphlets under doors, and Trent yells out to her]
Trent: I see. My apartment has been freezing all winter. This damned landlord never fixes a thing!
Lorie: [Lorie comes back over to Trent] I know. That’s what I could tell from the records at City Hall.
Trent: So what can you do?
Lorie: Well, I’ve brought lawsuits like this in the past, and I could bring one for you, if you wish.
Trent: That sounds great.
Lorie: Ok. Well, I just happen to have a retainer agreement right here. Do you have a moment?
Trent: Sure
Lorie goes inside the apartment, and Trent signs the paperwork, which gives Lorie a contingency fee of 25% of whatever Trent recovers. Lorie tells Trent (truthfully) that most contingency agreements call for 33% (or more) of the fee to go to the lawyer, but that she charges less because she feels so strongly about the rights of tenants. The following week, Lorie brings a lawsuit on Trent’s behalf.
In addition to her pamphlets, Lorie has adopted a second marketing strategy: she blogs on the Internet, where she writes about current issues of interest under Massachusetts law. At the end of each of her blog items, she writes, “If you have any questions about this area of law, feel free to give me a call.” She then provides her email address and telephone number.
On other parts of her blog Lorie has information about herself. In one place, the blog states that “Lorie is a lawyer who graduated from one of the nation’s elite law schools. She received her training from outstanding and very funny professors who are national experts in their fields. Although Lorie handles a wide variety of legal matters, she is a specialist in landlord-tenant matters.”
On Lorie’s blog, anyone with Internet access is able to leave Lorie a question under the “Questions for Lorie” portion of the web site. People from around the country have posted questions to Lorie through her blog on issues related to Massachusetts law. Lorie often has trouble determining whether the people are considering hiring her and where the people are actually located. Nevertheless, Lorie always answers the questions, and occasionally, someone will follow up with Lorie and hire her to do some legal work in connection with the question that the person posted on the blog. When people do hire her, the work always relates to Massachusetts law and always involves landlord-tenant situations that have arisen in the Boston area.
Recently, just before Lorie filed Trent’s lawsuit, Lorie received a question from someone with the screen name “AnonLandlord.” The question was as follows: “I am the owner of several buildings in Massachusetts, and two of them have recently been cited for building code violations. In one of those cases, I am concerned about liability because one of the tenants suffered frostbite while the heat was off. In the other case, I am concerned because I have been using my janitor to do some repairs when I knew he’s really not qualified to do them. I don’t yet have a lawyer in either case. Can you help me in these cases?”
In response to these questions, Lorie wrote an email to “AnonLandlord” that explained that, “I might be able to help you. Give me a call.” When “AnonLandlord” calls, Lorie discovers that the second case that the landlord described was the very case that Lorie was handling for Trent. Lorie tells the landlord that she can’t take that case, because of a conflict, but that she can take the frostbite case, which involves a completely different building out in Worcester. Before taking the Worcester case, Lorie gets written consent from both Trent and the landlord.
With regard to the landlord’s case involving Trent, Lorie refers the landlord to Ralph, one of Lorie’s good law school friends, who has started his own landlord-tenant practice. The landlord ultimately hires Ralph, and Ralph subsequently sends Lorie a $500 check (after revealing this fact to the landlord) to thank Lorie for the referral.
Lorie then conducts an investigation in Trent’s case, and as part of that investigation, Lorie calls Jerry. Jerry is a janitor and handyman in Trent’s building. Based on her previous conversation with the landlord, Lorie knows that Jerry may have been conducting repairs that were beyond his ability. At the very beginning of the conversation, Lorie explains to Jerry that she is representing Trent, a tenant, in a lawsuit against the owner of the building. Lorie then starts asking Jerry a series of questions about the way in which the building is maintained. From this conversation, Lorie confirms that Jerry is responsible for keeping the building clean and for taking care of basic maintenance issues. Jerry reveals that the landlord is very reluctant to spend money on repairs and that Jerry ends up having to do much of the work, even though some of it is beyond his ability.
In addition to the above facts, assume that you joined Lorie’s practice just after she interviewed Jerry. Lorie asks you to review the file in the case, whereby you learn everything that is described above.
Please identify any ethics issues that arise out of these facts and whether the conduct would violate the Model Rules of Professional Conduct or any other law that we studied in the course. Also consider any obligations that you would have (if any) now that you are practicing with Lorie and have learned all of the information described above. Be sure to justify the conclusions you reach and to consider possible counter-arguments.