Long title
Teaching the Duty of Confidentiality through the Simon Eviction Simulation
Teaching material type
Class exercise
Teacher(s)'/ Author(s)' contact information
Year
2010
Country
United States
URL (web address)
One of the most critical, yet inadequately explored, issues in lawyer client communication is the problem of explaining confidentiality, especially exceptions which permit or require the lawyer to disclose confidential information. Failure to disclose these exceptions results in misrepresentation to the client (e.g. "everything you tell me is confidential"), yet an accurate and complete explanation of the exceptions may inhibit the very trust that the right of confidentiality is intended to create. This resource provides teaching materials and webcasts of actual simulated interviews in the classroom for teaching on this subject. The first attachment is the text of a law review article describing these simulations: Clark D. Cunningham, “How To Explain Confidentiality?,” 9 Clinical Law Review 579 - 621 (2003). This article is also posted on the internet in an hypertext version that enables the viewer to link directly to the teaching materials and webcasts that are described below: http://law.gsu.edu/Communication/HowToExplainConfidentiality.htm
The Simon Eviction Exercise is based on an amalgam of actual cases that a Columbia Law School clinic, Morningside Heights Legal Services ("MHLS") handled. The Simon case was originally developed as a discussion problem by Professor Andrew Schepard, at the Columbia Law School. It was converted into a simulation of a client meeting by Professor David Chambers at the University of Michigan Law School and further modified by Professor Clark Cunningham, initially while teaching at the University of Michigan and subsequently for teaching purposes at the Washington University School of Law and the Georgia State University College of Law.
Students are told to assume that the interviews take place in January 1987. It is necessary for events to take place at this time because an actual newspaper article from that period is a key piece of evidence. (A calendar for December 1986 is attached.) The lawyer role is that of a lawyer working in a governmentally supported legal services office in New York City providing free legal services to low-income persons. The client is Mr. (or Ms.) Simon, a low-income tenant living in a public housing project, the Ravenwood project at 108th Street and Madison Avenue. Simon is 39, a high school graduate and the single parent of one boy, Gordon, 17. The Housing Authority of New York City (HA), a city agency, has served a notice of termination of tenancy against Simon, alleging that Gordon attempted to rob another tenant, Mrs. Lucy Montez, on December 14, 1986. The complete background instructions are attached as: Simon Exercise -- General Background Information.doc
The first of two in-class simulations is an initial 20 minute meeting in which the lawyer is instructed to learn the client’s story and goals and to explain the lawyer’s duty of confidentiality (based on ABA Model Rule 1.6 and 3.3) in a way that is accurate, complete and comprehensible to the client. The lawyer instructions for this first meeting are attached as: Simon-Ex1Instructions.doc The additional confidential instructions to students assigned the client role are attached as: SimonEx1-Client.doc
As initially taught by Professor Cunningham (as described in “How To Explain Confidentiality?”), all students then wrote a 5-7 paper based on their viewing of webcasts of two different versions of the first meeting. The instructions for this assignment are attached as: Simon-WA1.doc
Webcasts of the two initial meetings from Fall 2000 (shown with permission of the students) can be viewed by selecting the first two URL links. You must have Realplayer installed on your computer. For a free download of this software: http://www.real.com/realplayer/
In the first interview from Fall 2000, by the A-1 subgroup, the lawyer spends about 4 of the first 6 minutes trying to explain confidentiality. She begins with the conventional overstatement of confidentiality: http://law.gsu.edu/Communication/HTE/Video/a1-sept.6.rm
Although the client in the A-2 interview is much more passive, the lawyer in that interview spends even more time -- four and a half minutes of the first six minutes of the interview -- attempting to explain confidentiality:
http://law.gsu.edu/Communication/HTE/Video/a2-sept.6.rm
The second client meeting, also 20 minutes, takes place the day before the eviction hearing. Students playing the lawyer have learned from their confidential instructions (attached as Simon-Ex2Instructions(HTE).doc, Simon-Police-Report.doc, Simon-FootballGame.pdf.) that there is evidence casting doubt on the accuracy of what the client told the lawyer at the first meeting This information presents them with a possible conflict between a promise to the client to keep everything confidential with the duty under MR 3.3 to prevent the presentation of false testimony at the hearing. The Client's confidential instructions are attached as Simon-Ex2-Client.doc.
Webcasts of these two meetings from can be viewed by selecting the 3rd and 4th URLs. In the subgroup A-2 meeting the lawyer does not try to test the truthfulness of the client's story but instead uses the information from the newspaper article to assist the client to repair the faulty alibi:
http://law.gsu.edu/Communication/HTE/Video/a1-sept.13.rm
When this interview was next re-enacted in class the student lawyer had clearly planned his strategy carefully in advance and intended to use his explanation of confidentiality along with skeptical questioning to test the credibility of the alibi. He succeeds in persuading the client to tell the truth, but the client then feels betrayed when the lawyer fully explains the MR 3.3 exception to confidentiality only after the truth is disclosed:
http://law.gsu.edu/Communication/HTE/Video/a2-sept.13.rm
Instructions for the second writing assignment are attached as: Simon-WA2(HTE).doc
The law review article contains both transcriptions of key portions of these simulations and also portions of papers written by students in that class.
The Simon Eviction Exercise is based on an amalgam of actual cases that a Columbia Law School clinic, Morningside Heights Legal Services ("MHLS") handled. The Simon case was originally developed as a discussion problem by Professor Andrew Schepard, at the Columbia Law School. It was converted into a simulation of a client meeting by Professor David Chambers at the University of Michigan Law School and further modified by Professor Clark Cunningham, initially while teaching at the University of Michigan and subsequently for teaching purposes at the Washington University School of Law and the Georgia State University College of Law.
Students are told to assume that the interviews take place in January 1987. It is necessary for events to take place at this time because an actual newspaper article from that period is a key piece of evidence. (A calendar for December 1986 is attached.) The lawyer role is that of a lawyer working in a governmentally supported legal services office in New York City providing free legal services to low-income persons. The client is Mr. (or Ms.) Simon, a low-income tenant living in a public housing project, the Ravenwood project at 108th Street and Madison Avenue. Simon is 39, a high school graduate and the single parent of one boy, Gordon, 17. The Housing Authority of New York City (HA), a city agency, has served a notice of termination of tenancy against Simon, alleging that Gordon attempted to rob another tenant, Mrs. Lucy Montez, on December 14, 1986. The complete background instructions are attached as: Simon Exercise -- General Background Information.doc
The first of two in-class simulations is an initial 20 minute meeting in which the lawyer is instructed to learn the client’s story and goals and to explain the lawyer’s duty of confidentiality (based on ABA Model Rule 1.6 and 3.3) in a way that is accurate, complete and comprehensible to the client. The lawyer instructions for this first meeting are attached as: Simon-Ex1Instructions.doc The additional confidential instructions to students assigned the client role are attached as: SimonEx1-Client.doc
As initially taught by Professor Cunningham (as described in “How To Explain Confidentiality?”), all students then wrote a 5-7 paper based on their viewing of webcasts of two different versions of the first meeting. The instructions for this assignment are attached as: Simon-WA1.doc
Webcasts of the two initial meetings from Fall 2000 (shown with permission of the students) can be viewed by selecting the first two URL links. You must have Realplayer installed on your computer. For a free download of this software: http://www.real.com/realplayer/
In the first interview from Fall 2000, by the A-1 subgroup, the lawyer spends about 4 of the first 6 minutes trying to explain confidentiality. She begins with the conventional overstatement of confidentiality: http://law.gsu.edu/Communication/HTE/Video/a1-sept.6.rm
Although the client in the A-2 interview is much more passive, the lawyer in that interview spends even more time -- four and a half minutes of the first six minutes of the interview -- attempting to explain confidentiality:
http://law.gsu.edu/Communication/HTE/Video/a2-sept.6.rm
The second client meeting, also 20 minutes, takes place the day before the eviction hearing. Students playing the lawyer have learned from their confidential instructions (attached as Simon-Ex2Instructions(HTE).doc, Simon-Police-Report.doc, Simon-FootballGame.pdf.) that there is evidence casting doubt on the accuracy of what the client told the lawyer at the first meeting This information presents them with a possible conflict between a promise to the client to keep everything confidential with the duty under MR 3.3 to prevent the presentation of false testimony at the hearing. The Client's confidential instructions are attached as Simon-Ex2-Client.doc.
Webcasts of these two meetings from can be viewed by selecting the 3rd and 4th URLs. In the subgroup A-2 meeting the lawyer does not try to test the truthfulness of the client's story but instead uses the information from the newspaper article to assist the client to repair the faulty alibi:
http://law.gsu.edu/Communication/HTE/Video/a1-sept.13.rm
When this interview was next re-enacted in class the student lawyer had clearly planned his strategy carefully in advance and intended to use his explanation of confidentiality along with skeptical questioning to test the credibility of the alibi. He succeeds in persuading the client to tell the truth, but the client then feels betrayed when the lawyer fully explains the MR 3.3 exception to confidentiality only after the truth is disclosed:
http://law.gsu.edu/Communication/HTE/Video/a2-sept.13.rm
Instructions for the second writing assignment are attached as: Simon-WA2(HTE).doc
The law review article contains both transcriptions of key portions of these simulations and also portions of papers written by students in that class.
File
Simon-Ex1Instructions.doc2.51 KB
Simon-Ex1-Client.doc6.05 KB
Simon-Calendar.pdf65.75 KB
Simon-WA1.doc6.22 KB
Simon-Police-Report.doc4.62 KB
Simon-FootballGame.pdf796.84 KB
Simon-Ex2-Client.doc3.1 KB
Simon-WA2(HTE)..doc4.7 KB
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