Business Law Ethics Course Syllabus, Fall 2016

Transcription

1 WESTERN STATE COLLEGE OF LAW ( WSCL ) Business Law Ethics Curse Syllabus, Fall 2016 Class day/time: Prfessr: Prfessr cntact utside f class: Every ther Mnday frm 4:00 p.m. 6:00 p.m. Stephen M. Mran, Esq. The best methd f cntact is via t the address listed belw. Please type BLEthics in the subject line f any that yu send me. If yu d nt receive a respnse within 24 hurs, then yur was likely blcked by my spam r ther security system. It is yur respnsibility t fllw up with me t ensure that any and all f yur questins are addressed. smran@calamp.cm If abslutely necessary, yu may cntact me at my ffice at: (949) A. Curse verview and learning bjectives. 1. This curse will merge the substantive principles, rules, and standards f legal ethics that yu studied in the curse n Prfessinal Respnsibility, with the real wrld ethical dilemmas, tensins, and pressures that business attrneys necessarily cnfrnt in advising and cunseling their business clients. 2. Given the tensin between the black and white rules f Prfessinal Respnsibility n the ne hand, and the very grey and fggy factual scenaris that the practicing business attrney will encunter in her r his practice n the ther hand, this curse will nt nly require deliberative and thughtful class preparatin and elicit lively in-class discussin and debate, but will als equip yu with the analytical framewrk t cnfidently fulfill yur ethical bligatins in thse situatins where there will be n bright-line test available that will readily yield the perfect reslutin t yur pressing ethical dilemma. With ver a quarter century f practicing business law, I can assure yu that the intersectin f legal ethics and business law suffuses nearly every actin yu will take in advising yur clients; and, when that intersectin is arrived at by way f a cllisin, it will pervade bth yur prfessinal and persnal lives. Furthermre, as a required curse fr the Business Law Page 1 f 10

2 Certificate, this curse will cmplement and synthesize yur ther curse wrk. 3. The curse learning utcmes are as fllws 1 : General Learning Outcmes I. Legal Analysis; Analytical Reasning: Specific Curse Learning Outcmes In each f the casebk s 12 Scenaris (and ther assigned curse wrk), students must demnstrate the ability t: Issue Identificatin. Identify the ethical issues arising frm the specific fact pattern set frth in: (a) each casebk Scenari; and (b) the assigned supplemental readings and/r the perfrmance test prject(s); II. Dctrinal Knwledge; Infrmatin Cmpetency: Students must als demnstrate the ability t critically analyze, identify, and evaluate the public plicies f a precedent case and related ethics rule; and, be able t evaluate hw that public plicy can impact: (a) the applicatin f the ethics rule t the underlying ethical dilemma, and (b) the attrney s persnal ethical bligatins and her r his law license; and Applicatin f the Law t Facts. Apprpriately use: cases (including identifying the salient features f the precedent case, identifying legally significant similarities r differences between the precedent case and a specific fact pattern, and then explaining why thse similarities and differences are legally significant), and ethics rules (including the ability t cnnect legally significant facts in a fact pattern t the underlying ethics rules) t predict hw a state bar ethics cmmittee, an arbitratr, r a curt wuld decide the issue, r hw a client, an adverse party, r an adverse party s attrney might respnd. In each f the 12 Scenaris, and the related assigned curse wrk, students must demnstrate substantive knwledge in the related cre curriculum subjects f Cntracts, Business Assciatins, and Prfessinal Respnsibility. This interdisciplinary apprach will require students t evaluate, and use infrmatin frm a variety f relevant resurces t render pinins and recmmend sund and ethical curses f actin. 1 The preparatry wrk and class discussin is specifically designed t cmprt with; (A) the six Argsy University Institutinal Learning Outcmes (Analytical Reasning; Effective Cmmunicatin; Infrmatin Cmpetency; Interpersnal Effectiveness; Persnal and Prfessinal Integrity and Ethical Behavir; and Prfessinal Cmpetence), set frth at EXHIBIT A; (B) the eight WSCL Prgrammatic Learning Objectives (Dctrinal Knwledge; Practice Skills; Legal Analysis; Legal Research; Cmmunicatin; Advcacy f Legal Argument; Client Sensitivity and Cultural Cmpetency; and Legal Ethics), set frth at EXHIBIT B; and (C) ABA Standard 310. Page 2 f 10

3 III. Effective Cmmunicatin; Advcacy f Legal Argument; Interpersnal Effectiveness: The real-wrld Scenaris, and related assigned cursewrk, will give rise t rbust class debate n hw best t avid and cnfrnt the ethical dilemmas in representing the business client. T that end, students must demnstrate the ability t cmmunicate bth rally (in class) and in writing (in the perfrmance test prjects and the final exam), t effectively cnvey, argue, and advcate her r his legal and ethical analysis, cnclusins, and recmmendatins. In demnstrating advcacy skills, students must shw an ability, in bth ral and written frmats, t evaluate the legal and ethical strengths and weaknesses f a fact pattern and then emply the full panply f case law, ethics rules, statutes, and public plicy t persuade the target audience t accept the crrectness f the psitin being argued and advcated by the student. Subsumed under these advcacy cmmunicatin skills will be an assessment f the student s: Target audience sensitivity in written and ral cmmunicatin (i.e., the ability t adpt a tne, style, and level f detail apprpriate t the needs, knwledge, and expertise f the target audience (client; adverse party and attrney therefr; state bar ethics cmmittee, judge, arbitratr, etc.); and written cmmunicatin basic prficiency (the ability t use the cnventins f grammar, spelling, punctuatin, dictin and usage apprpriate t the task and sufficient t cnvey effectively the student s analysis and cnclusins). IV. Legal Research: Frm the casebk and ther assigned curse wrk, students will demnstrate the ability t identify relevant legal authrity, and t prperly cite t such legal authrity in advcating the student s legal pinin and recmmendatins. V. Legal Ethics: Persnal and Prfessinal Integrity and Ethical Behavir: As the quintessence f this curse is the inextricably linked dilemmas that lurk in serving as legal cunsel t a business, students must demnstrate the ability t identify the nuanced ethical issues inherent in advising and cunselling a business; and, t make well-reasned and ethical decisins in recmmending the reslutin f such issues. VI. Practice Skills; Prfessinal Cmpetence: Mrever, the student must manifest an awareness f individual and scial respnsibility t act ethically and with integrity in a diverse, glbal sciety underpinning the practice f business law. Given the fact that ethical questins and challenges spring frm the very nature f advising and cunselling the business client, students must demnstrate the develpment f ther practical legal skills. In that regard, the student s utcmes may include, withut limitatin: ral presentatin and advcacy; cunseling; Page 3 f 10

4 applied legal writing such as drafting engagement letters, cntracts, ther legal instruments; business strategy and behavir; interviewing and fact investigatin; and prfessinal civility and applied ethics. The supplementary perfrmance test curse wrk that will be assigned is designed t test the student s ability t understand and apply a select number f legal authrities in the cntext f a factual prblem and assess the student s ability t analyze ethical issues by: sifting thrugh factual material and separating relevant frm irrelevant facts; assessing the cnsistency and reliability f facts; and determining the need fr and surce f additinal facts; analyzing the ethical rules and principles applicable t a prblem and frmulating legal theries frm facts that may be nly partly knwn and are being develped; recgnizing and reslving ethical issues arising in practical situatins; applying prblem slving skills t diagnse a prblem, generate alternative slutins, and develp a plan f actin; and, cmmunicating effectively, whether advcating, advising a client, eliciting infrmatin, r effectuating a legal transactin. VII Client Sensitivity and Cultural Cmpetency: In parsing thrugh the real-wrld ethical challenges presented in this curse, students will demnstrate an awareness f the attrney s and her f his clients needs and gals, including a sensitivity t the client s backgrund and circumstances (including, but nt limited t, sciecnmic, gender, race, ethnicity, educatinal, disability and/r religius backgrund(s)), the ability t make decisins that reflect an apprpriate fcus n thse needs and gals, and an awareness that cultural issues may affect the relevance f facts and applicatin f the ethics rules. B. Reading materials. 1. Required materials: The required text and all applicable required supplementary materials must be brught t each class: a. Marc I. Steinberg, Lawyering and Ethics fr the Business Attrney, (Furth Editin, West Academic Publishing, 2016) (the Casebk ); and b. Supplemental reading materials and/r perfrmance test prjects distributed prir t class. Page 4 f 10

5 2. Recmmended text: This text is ptinal: a. Ben W. Heineman, Jr., High Perfrmance with High Integrity, (Harvard Business Review Press, 2008). 3. Class readings must be cmpleted prir t the class in which thse readings will be discussed. C. Class preparatin; grades; attendance and decrum; and curse gvernance. 1. Preparatry wrk. This curse requires 2 hurs f utside preparatin time required fr each 1 hur f class. Therefre, since this call meets fr 2 hurs every ther week, the casebk assignments, supplemented by ther readings and/r perfrmance test prjects I will assign, will require that yu devte 4 hurs preparing fr each class sessin. 2. Grades. a. Final examinatin. The final exam will cnstitute 75% f yur final grade; f that 75%: 60% will be essay, and 40% will be multiple-chice. b. Classrm participatin: Legal educatin is a cperative venture and ral cmmunicatin skills will be imprtant thrughut yur career as a practicing attrney. Therefre, yu must be prepared t participate in class n a regular basis and 25% f yur final grade will be based n yur class participatin. 3. Attendance and decrum. I will take attendance at the beginning f each class by asking yu t sign-in fr the class n a rll sheet. If yu are nt signed in, yu are absent. It shuld g withut saying but I d nt expect that cell phnes will be heard r used during class. Yu may use yur laptps but they shuld be pen fr nte-taking and access t curserelated materials and nt t yur , Facebk, etc. N text messaging is permitted while class is in sessin. 4. Curse gvernance. The curse schedule belw is subject t change at my discretin as may be annunced in class r thrugh electrnic r print media. Pacing f the class will naturally ebb and flw during the semester. Fr example, I may schedule guest speakers thrughut the semester. Page 5 f 10

6 D. Curse Schedule: Week Date Assignment Tpics 1-2 Mnday, August 29, Mnday, September 19, Mnday, Octber 3, Mnday, Octber 17, Mnday, Octber 31, Mnday, Nvember 14, Mnday, Nvember 28, 2016 Casebk: Scenari I and Scenari II Supplementary readings/prject: as assigned Casebk: Scenari III and Scenari IV Supplementary readings/prject: as assigned Casebk: Scenari V and Scenari VI Supplementary readings/prject: as assigned Casebk: Scenari VII and Scenari VIII Supplementary readings/prject: as assigned Casebk: Scenari IX and Scenari X Supplementary readings/prject: as assigned Casebk: Scenari XI Supplementary readings/prject: as assigned Casebk: Scenari XII Supplementary readings/prject: as assigned 1. Wh s the Client? 2. Cnfidentiality Owed t Existing and Frmer Clients 1. The Lawyer as Intermediary 2. Crprate Internal Investigatins: What Abut Cnfidentiality? 1. Parent-Subsidiary Related Party Transactins 2. The Crprate Opprtunity Dctrine and the Lawyer s Rle 1. The Multiple Representatin Dilemma fr the Business Attrney 2. Screening and the Persnally Disqualified Attrney 1. Business Attrney as Litigatr in Crprate Settings 2. Lawyers Taking Equity Interests in Their Clients 1. Inside Cunsel 1. Cunsel as Directr Final Exam December 2016 Page 6 f 10

7 E. Disability Services Statement: Western State Cllege f Law prvides accmmdatins t qualified students with disabilities. The Disabilities Services Office assists qualified students with disabilities in acquiring reasnable and apprpriate accmmdatins and in supprting equal access t services, prgrams, and activities at Western State Cllege f Law. T seek reasnable accmmdatins, a student must cntact Senir Assistant Dean Dnna Espinza, Student Services Directr and Disabilities Services Crdinatr, whse ffice is in the Students Services Suite 119. Dean Espinza s phne number and address are: (714) ; despinza@wsulaw.edu. When seeking accmmdatins, a student shuld ntify Dean Espinza f her r his specific limitatins and, if knwn, her r his specific requested accmmdatins. Students wh seek accmmdatins will be asked t supply medical dcumentatin f the need fr accmmdatin. Classrm accmmdatins are nt retractive, but are effective nly upn the student sharing apprved accmmdatins with the instructr r prfessr. Therefre, students are encuraged t request accmmdatins as early as feasible with Dean Espinza t allw fr time t gather necessary dcumentatin. If yu have a cncern r cmplaint in this regard, please ntify Dean Espinza; r please ntify Assciate Dean f Students Charles Sheppard at csheppard@wsulaw.edu r (714) Cmplaints will be handled in accrdance with the Cllege f Law s Plicy against Discriminatin and Harassment. Page 7 f 10

8 EXHIBIT A Argsy University Institutinal Learning Outcmes: 1. Analytical Reasning Analyze issues bjectively, interpret and synthesize data and ideas, and develp feasible, flexible, and creative slutins t real wrld prblems 2. Effective Cmmunicatin Identify audiences, assess infrmatin prvided, interpret needs, and present relevant infrmatin using apprpriate written, ral, and listening skills and media t meet the needs f the situatin 3. Infrmatin Cmpetency Gather, evaluate, and ethically use infrmatin frm a variety f relevant technlgical and library resurces t make decisins and take actin 4. Interpersnal Effectiveness Develp individual and grup interpersnal skills t imprve and fster participatin and interactin critical fr achieving individual and grup gals 5. Persnal and Prfessinal Integrity and Ethical Behavir Demnstrate a multi dimensinal awareness f individual and scial respnsibility t act ethically and with integrity in a diverse, glbal sciety. 6. Prfessinal Cmpetence Apply skills apprpriate t prgram bjectives and emply critical reasning t cntribute t ne's field and prfessin Page 8 f 10

9 EXHIBIT B Western State Cllege f Law Prgrammatic Learning Outcmes Western State Cllege f Law s curriculum is designed s that every student achieves a level f cmpetency prir t graduatin in each f the eight Prgrammatic Learning Outcmes listed belw: (1) Dctrinal Knwledge Students will demnstrate knwledge f substantive and prcedural law in the cre curriculum subjects, including Cntracts, Criminal Law, Criminal Prcedure, Trts, Real Prperty, Business Assciatin, Evidence, Civil Prcedures, Cnstitutinal Law, Estates, Cmmunity Prperty, Remedies, and Prfessinal Respnsibility. (2) Practice Skills Students will demnstrate the develpment f ther law practice skills. Each student s chsen utcmes within this categry will be varied based n the student s particular interests, cursewrk and wrk experiences. They may include, but are nt limited t, the fllwing tpics: ral presentatin and advcacy; interviewing; cunseling; client service and business develpment; negtiatins, mediatin, arbitratin, r ther alternate dispute reslutin methds; advanced legal research and writing (excluding purely academic papers and the first fur units earned in intrductry first-year legal research and writing class); applied legal writing such as drafting cntracts, pleadings, ther legal instruments; law practice management r the use f technlgy in law practice; cultural cmpetency; cllabratin r prject management; financial analysis, such as accunting, budgeting prject management, and valuatin; cst benefit analysis in administrative agencies; use f technlgy, data analyses, r predictive cding; business strategy and behavir; pre-trial preparatin, fact investigatin, such as discvery, e-discvery, mtin practice, assessing evidence, r utilizing experts; trial practice; prfessinal civility and applied ethics; a law clinic that includes a classrm cmpnent; r a legal externship that includes a classrm cmpnent. (3) Legal Analysis Students will demnstrate the ability t identify the factual and legal issues implicated by a fact pattern and t apprpriately use cases (including identifying the salient features f an apprpriate precedent case, identifying legally significant similarities r differences between the precedent case and a fact pattern and explaining why thse are legally significant) and rules (including the ability t cnnect legally significant facts in a fact pattern t the rule) t predict hw a curt wuld decide the issue. Students will als demnstrate the ability t identify and evaluate the public plicies f a precedent case r rule, and be able t evaluate hw public plicy can impact the applicatin f a rule t the legal issue. (4) Legal Research Students will demnstrate the ability t lcate relevant legal authrity using a variety f bk and electrnic resurces, and t prperly cite t such legal authrity. April Page 9 f 10

10 (5) Cmmunicatin Students will demnstrate the ability t cmmunicate bth rally and in writing in a manner apprpriate t a particular task t effectively cnvey the authr r speaker s ideas. This includes audience sensitivity in written and ral cmmunicatin (the ability t adpt a tne, style and level f detail apprpriate t the needs, knwledge and expertise f the audience); and written cmmunicatin basic prficiency (the ability t use the cnventins f grammar, spelling, punctuatin, dictin and usage apprpriate t the task and sufficient t cnvey effectively the authr s ideas). (6) Advcacy f Legal Argument Students will demnstrate the ability, in bth ral and written frmats, t evaluate the legal, ecnmic and scial strengths and weaknesses f a case and use case and statutry authrity as well as public plicy t persuade thers. Making plicy-based arguments includes the ability t identify and evaluate the public plicies f a precedent case r rule and their implicatins, and be able t assert such apprpriate arguments t supprt a particular applicatin r distinctin f a precedent case t a legal cntrversy r a particular reslutin f the applicatin f a rule t the legal cntrversy. (7) Client Sensitivity and Cultural Cmpetency Students will demnstrate an awareness f clients needs and gals, including a sensitivity t clients backgrund and circumstances (including, but nt limited t, sci-ecnmic, gender, race, ethnicity, educatinal, disability and/r religius backgrund(s)), the ability t make decisins that reflect an apprpriate fcus n thse needs and gals, and awareness that cultural issues may affect the relevance f facts and applicatin f the law. (8) Legal Ethics Students will demnstrate the ability t identify ethical issues in law practice cntexts and make apprpriate decisins t reslve such issues. April Page 10 f 10