The Assignment: Essay Hypothetical

2016 ABA LPL Ed Mendrzycki Essay Contest - Hypothetical

Sponsored by: ABA Standing Committee on Lawyers' Professional Liability and Long & Levit, LLP

You are general counsel to the law firm of Bigger, Means and Better, P.A. (“BMB”), one of the oldest and most venerable U.S. firms in the State of Progress (which has adopted the ABA Model Rules of Professional Conduct), and one that for decades has represented many of its largest corporations. BMB’s client base focused exclusively on the domestic market when the firm was first established in the 1900s, but it is now the norm for those clients to have investments, products and services, and even personnel move across borders. In an effort to serve this increasingly global marketplace, BBL’s management committee recognizes that it too must globalize.

Management has concluded the best way to reach the global market is to acquire existing practices abroad. It seeks to target firms located in the European market (preferably the United Kingdom or Germany) and the East Asian market (preferably China or South Korea). Management believes such acquisitions would be attractive to its existing client base that already does business in those areas, while at the same time allowing it to market to foreign companies. (In addition, management is considering a smaller acquisition in a developing market with no established legal system, with the thought that having such a presence would be attractive when big business enters that market.) Almost every member of BMB’s management committee supports these goals, believing that the only assurance that the firm will continue to thrive will be if it wins the “race to the top.”

Knowing it would be foolhardy not to consider the legal ramifications of this potential strategy, management invited you into its most recent meeting. You were pleased to receive this invitation, as you know that BMB has always complied with the Model Rules of Professional Conduct, as its attorneys pride themselves on adhering to their ethical obligations. Issues raised during the meeting include the following: (1) conflicts of interest – how different jurisdictions treat those conflicts, circumstances in which conflicts may arise, and whether and how they can be overcome, (2) the attorney-client privilege – again, whether and how different jurisdictions treat the attorney-client privilege, its impact on your communications with clients, and how best to preserve the privilege, and (3) the unauthorized practice of law – concerns if a potential acquisition target is owned by non-lawyers or if non-lawyers are involved in rendering advice. You may identify additional professional responsibility issues after the meeting. At the conclusion of the meeting, management asked you to prepare a memorandum to address concerns that may arise from the potential acquisitions.

In a private moment after the meeting, BMB’s managing partner approached you and in no uncertain terms told you that the memorandum had better bless the firm’s strategy, “or else….” You took this to mean that if you raised any ethical concerns in the memorandum, then you must provide a solution such that the firm’s plans would not be derailed.

Further, BMB’s managing partner also told you that the firm has significant influence over the State of Progress’ regulators, and that it has the ability to propose a reasonable change or two to the Model Rules of Professional Conduct to accommodate international practice. Should you deem such a change warranted, please make the recommendation and explain why.

Please prepare the requested memorandum.