Spaulding v Zimmerman questions PDF

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Practice Question- Spaulding v Zimmerman...

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1. Did Zimmerman’s lawyers have a duty to inform Spaulding about the aneurysm? Zimmerman’s lawyers did not have a duty to inform Spaulding about the aneurysm because of the adversary relationship that exists between the parties. According to the trial court’s order, “no rule required or duty rested upon the defendants or their representatives to disclose this knowledge.” Their duty is to Zimmerman. However, they did have a duty to correct the inaccuracy of the petition the injuries, after the petition was filed for the approval of the settlement. Imminent serious physical harm- you are allowed to ethically breach confidentiality to prevent physical harm ^ it is a discretion, ‘may’ you don’t have to do it. 2. Did Zimmerman’s lawyers have a duty to inform their client about the aneurysm? Zimmerman’s lawyers certainly have a duty to inform Zimmerman about Spaulding’s aneurysm, as the lawyers have a duty to keep the client fully informed about all significant developments in the matter. And the lawyers also have a duty to act on the instructions given by the client. The lawyers did not inform Zimmerman about the aneurysm, which means they have not fulfilled their duties to their client. 3. Did Zimmerman’s lawyers lie to the Court when they had the original settlement approved? Zimmerman’s lawyers lied to the Court when they had the original settlement approved, as they failed to inform the Court of the inaccuracy in the petition which listed the injuries, but not the aneurysm. A

lawyer must “not knowingly mislead or deceive the court”. They mislead by omission. 4. Apply Parker’s models of legal ethics to this situation. What would a lawyer do in each of the four models? Adversarial Advocacy: An adversarial advocate’s goal is to advance their client’s interests with maximum vigour permitted by law. An adversarial advocate will not inform Spaulding of the aneurysm, claiming that his duty lies to his client, and will do all for the client to minimise the settlement numbers. Responsible Lawyering: The responsible lawyer’s goal is to be an officer of the court and the guardian of the legal system. She would maintain justice and the integrity of the law. In this case, the responsible lawyer will tell the court about the findings of Dr Hannah regarding the aneurysm, as the petition is currently inaccurate. At the very least, they would have disclosed the information to their own client, who would have given the instruction to disclose the information to the court. They would have also applied the Imminent serious physical harm rule, which would allow Spaulding to avoid harm or even death. Moral Activism: The moral activist’s goal is regarding justice as that is the fundamental role of the legal system. The moral activist will alert the opposition about Spaulding’s aneurysm, as it is the ‘right’ thing to do. This could be without the consent from the insurance company or Zimmerman, as they are acting to avoid Imminent serious physical harm. Ethics of care: A lawyer reflecting this model is concerned with the integration of personal ethics with legal practice, and focuses on the lawyer’s responsibilities to people, communities and relationships. A relational lawyer would also tell Spaulding about the aneurysm as lawyer tries to

understand the feelings and experiences of the parties involved as this model requires no one should be hurt.

5. Which model of lawyering would an insurance firm likely expect their lawyer to follow? The insurance firm would want the lawyer to implement the adversarial lawyer model, and not tell the opposition or the court about the aneurysm during the settlement to ensure that it does not get added to the list of injuries, and effectively increase the settlement costs. The insurance firm would want to protect their own interests as they are the ones who are paying for the liabilities. 6. What would you personally do if you were the lawyer for Zimmerman’s insurer? As the lawyer of Zimmerman’s insurance firm, I would be bound by duty to serve my client’s best interests. This would be to minimise the settlement cost to the lowest negotiable figures. In saying that, I would provide my client with all the alternative options which are ethical and follow the law. I would tell the insurance firm that revealing the information about Spaulding’s aneurysm would be the best strategy as, if the court comes to know about our lack of action when signing the inaccurate settlement petition, we could still be held accountable. Our laws and rules expect us to value human life. 7. What would the law of professional responsibility require of you in this situation?] Lawyers have a responsibility to serve their clients, but also to courts and the legal profession. The law of professional responsibility would require the lawyer to tell the opposition about the aneurysm. It is exempt from the rule of client confidentiality ‘to prevent

reasonable certain death or bodily harm”. Our rules to professional responsibly require us to inform Zimmerman about Spaulding’s aneurysm. It would require Spaulding’s lawyers to subpoena the reports. There was negligence by Spaulding’s lawyers, who failed to subpoena the defendant’s documents, and they would have learned about the aneurysm....