The Assignment: Essay Hypothetical

2015 ABA LPL Ed Mendrzycki Essay Contest - Hypothetical

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

You are the general counsel of a global law firm, Goods, Sterns and Selie, LLP ("GSS") located in the State of Just Win. Just Win has adopted the ABA Model Rules of Professional Conduct.
GSS boasts as its client base a number of teams in Just Win professional sports leagues, including football, basketball, baseball, and even roller derby.  GSS stores its files electronically on a secure network, including all information provided by, and all communications with, its clients.

GSS asks its attorneys to market the firm to all professional sports teams. Abiding by this policy, a GSS junior partner, Biggie Leagues, attended a charity event where he struck up a conversation with an executive of the New City Hackers (the "Hackers"), a Just Win professional football team. That conversation turned into several more, and eventually, the Hackers retained GSS to provide advice concerning a confidential grievance it told Leagues that a player had filed.

In furtherance of the representation, Hackers told Leagues it would be providing GSS with strictly confidential information, including the player's employment file. Much like all GSS clients, Leagues gave Hackers limited access to the firm's secure network so that it could provide the information electronically. Leagues reviewed the information and ultimately developed a strategy that he hoped would result in withdrawal of the grievance. Hackers told Leagues it was pleased with the plan, that it would implement the plan itself, and a few days later, reported to Leagues that the player had withdrawn the grievance. Hackers personally paid Leagues a handsome bonus (which Leagues did not disclose to GSS).

A few weeks later, rumors began to spread that a number of teams in the Just Win professional leagues had concerns with the leaking of confidential information. Multiple news outlets reported the following information was obtained from anonymous sources (though the Just Win media has a propensity to report rumor as fact):

  • The details of sealed offers to sponsor a team. As a result, two sponsors withdrew their bids after they suspected the team was acting unfairly to push sponsors to increase their bids.
  • A confidential offer made to purchase a team. As a result, several players refused contract offers from that team in favor of competing teams.
  • A private memorandum from a team executive making discriminatory slurs against players. As a result, an internal investigation ensued.

As general counsel to GSS, your managing partner approaches you with grave concern that somehow the firm's confidential information had been accessed. He advises the information leaked to the media was all found in GSS's network, as it had been revealed to GSS by clients and in one case, a potential client who declined to retain GSS. The managing partner advises GSS cannot be sure that anyone illegally accessed its database, as the firm's outside IT consultants had conducted a preliminary investigation, found unusual activity within the firm's networks, but could not trace the activity to any illegal access. Their investigation is continuing.

Please prepare a memorandum to GSS's Management Committee advising on the following issues: (1) what should GSS do if its outside IT consultants cannot determine whether its networks were illegally accessed, (2) what should GSS do if its outside IT consultants determine its networks were illegally accessed, but cannot tell what information was accessed, (3) what liability does GSS face if it is determined that its network was illegally accessed, and what can GSS do to minimize liability, and (4) are there any policies GSS can implement to minimize future liability.