Clarke Prize in Legal Ethics
2020 Student Competition Problem
You are the full-time, in-house general counsel to Information Privacy & Freedom Foundation (IPFF), a nonprofit corporation organization under Washington law and tax-exempt under § 501(c) of the United States Internal Revenue Code. The bylaws of IPFF include the following mission statement for the corporation:
The Information Privacy & Freedom Foundation (the “Foundation”) is a nonpartisan organization dedicated to protecting and balancing two core values: individual privacy and open access to information, especially information held by the government and powerful private interests. The Foundation works toward these goals by conducting research, issuing reports, and otherwise advising businesses, regulators, and legislatures on how to ensure legitimate expectations of individual privacy while still allowing appropriate information to be readily available. The Foundation also tries to bridge the gap in communication that can arise between developers of new technologies and those who make decisions about the privacy of personal information. Specifically, the Foundation endeavors to ensure that software developers understand the privacy implications of what they develop and decision makers understand the technologies underlying and affected by their decisions.
IPFF has been very successful and has raised millions of dollars to support its work. IPFF is managed by a ten-member Board of Directors (Board) that includes lawyers, information technology experts, business people, and educators. IPFF’s daily activities are managed by an Executive Director, who is appointed by the Board. IPFF employs 25 other people in various capacities.
You joined the executive staff at IPFF as general counsel one year ago. The Executive Director hired you after a national search, and the Board approved your hire. As general counsel, you directly advise the Executive Director and the Board. You report directly to the Executive Director.
The Chair of the Board recently telephoned you to schedule a “confidential” meeting with the Board’s three-member Executive Committee, comprised of the Board’s Chair, Secretary, and Treasurer. The Chair told you of an internal, oral report from IPFF’s director of education programs that the Executive Director had sexually harassed her at an after-work event by repeatedly touching her arm while describing her as “hot.” The education program director is female, and the Executive Director is male. The Chair further informed you that the program director demanded prompt corrective action by the Board, presumptively by firing the Executive Director, or she would go public with the information and hire a lawyer. The Chair added, “The Executive Director has no history of this kind of conduct, and he has been the best leader and fundraiser that IPFF has ever had. We do not want to lose him, nor do we want to tarnish his reputation. At the same time, we cannot have IPFF caught up in a #MeToo controversy.” The Chair concluded the conversation with these instructions:
The education director report the alleged harassment directly to me, so no one else knows about her complaint yet, not even the other members of the Executive Committee or the Executive Director. Please meet with the three of us to help us determine the best course of action. Before we meet, please prepare and provide to us a brief memo summarizing your advice. We are, of course, aware of the potential for tort liability. Moreover, the facts are at this time not yet known. So, for these reasons, do not address liability issues. Instead, we want your advice about what we should do, including why and how, as a matter of professional and business values. Be sure to explain what your role will be in helping IPFF through this problem, identify any concerns you might have about that role, and provide any suggestions you might have about how that role should be limited. We want you to work exclusively and confidentially with the three of us unless and until we decide otherwise . I am sure we will have more questions for you when we meet after we have reviewed your memo. If you have questions for us, please be prepared to lead with them at the meeting.