Final Simulation (April 20, 2022)

1. You are an Assistant Attorney General in the State of Cumberland, handling civil litigation defense of state agencies and state employees. You are handling a lawsuit concerning the suicide of a patient at the Cumberland Mental Health Institute (“CMHI”).

The patient’s children have sued a nurse who was disciplined for signing off on the patient’s unescorted grounds pass, which he used to go drown himself in the river next to CMHI, the nurse’s supervisor who disciplined the nurse, and the Commissioner of the Department of Mental Health (“DMH”), along with others. You are defending all of the state employees who have been sued, and due to budget constraints, you are the only lawyer defending all of the state employee defendants.

When you meet with the nurse, Martha Bishop, she is still angry at having been disciplined following the suicide. “I am being made a scapegoat in this awful tragedy. We nurses work round-the-clock without adequate support, and then take the fall if anything goes wrong.” When you tell her that you are also representing the supervisors, she is incredulous: “How can you be my lawyer when they are trying to pin the blame on me?”

What do you say and do in response to this, and why?

Afterwards, you meet with the nurse’s supervisor who disciplined the nurse, Stephanie Russell, who has also been sued in this matter. When you ask her to tell you what happened, she responds: “Before I tell you anything, I just want to confirm that you are my lawyer, right? What we say is confidential, right?”

What do you say and do in response to this, and why?

Whatever you say to her apparently calmed the waters because Russell then speaks to you at length about the incident. “I really hated to discipline Bishop about this tragic accident. She is one of our best nurses and I am broken up over the situation. I felt I had no choice. The real cause is the chronic underfunding and mismanagement from senior management, but you certainly can’t say anything about that! The Commissioner of DMH made it clear to me that the “public” was demanding “action” in response to this suicide, and I felt that if I didn’t discipline Bishop, I might lose my job. As a single mother taking care of my disabled son, I couldn’t take that chance, so I did what I had to do.”

What do you say and do in response to this, and why?

Based on your years of experience, you know that if plaintiffs’ counsel gets wind of this, the cost of settlement will increase exponentially. Your goal, therefore, is to try to settle this case before plaintiffs’ counsel starts deposing the state employee defendants who will point fingers at each other. Accordingly, you set up a meeting with the Commissioner of DMH, Cathy Tenney, who is also a defendant, to obtain settlement authority. You are aware of her nickname, “Cathy the Hatchet,” based on her willingness to cut costs and fire people. When you ask for $500,000 in settlement authority, Tenney snorts: “You’ve got to be kidding. We don’t money like that in the DMH budget. How could this case possibly be worth that kind of money?”

What do you say and do in response to this, and why?

2. You are an Assistant Attorney General in the State of Knox representing the Board of Funeral Home Operators. You are investigating Donovan Funeral Home and its president, David Donovan, concerning a few customer complaints about alleged failure to honor pre-paid burial contracts.

Utilizing the Attorney General’s confidential civil investigative demand (“CID”) authority, you have obtained a large number of documents from the Donovan Funeral Home, including bank records. The bank records don’t match up very well—you can’t trace the money paid with the funerals or cremations provided. When you spoke to their counsel about it, she told you that it was small family-run business and sometimes the money may have gotten comingled with David Donovan’s personal bank account, but all the money was available for the funeral services purchased.

Because spreadsheets are not your forté, and you cannot tell if there is a problem or not, you took the bank records down the hall to the forensic investigator in the Criminal Division who works on the white collar cases. A few days later, an Assistant Attorney General in the Criminal Division, Dennis Young, stops by your office, and says: “These bank records look promising. I think there could be a theft case here, and I am going to open a file on this one, but I don’t see enough yet to convene a grand jury. What else do you have for evidence in this case?”

What do you say and do in response to this?

Regardless, you were thinking of using your CID authority to take a confidential deposition of David Donovan. To prepare for the deposition, you would really like some help understanding the cash flow in the bank records, and you would like the Criminal Division investigator to help you decipher them. When you mention it to the investigator, he says that it’s fine with him, but just check with Young. When you call Young, he says: “You want to take Donovan’s deposition using your CID authority? Perfect. That way he won’t get wind of my criminal investigation. Just don’t forget to send me a copy of the transcript afterwards.”

What do you say and do in response to this?

Before you can take the confidential deposition of David Donovan, opposing counsel contacts you to settle the matter against both Donovan Funeral Home and David Donovan. She tells you that they have discovered some “bookkeeping” errors, and her clients are willing not only to pay back all the missing money, but they’re willing to pay the maximum fine and agree to some licensing restrictions. The offer exceeds what you could obtain if you pursued a licensing action, so you accept the offer. Just before the papers are signed, Donovan’s counsel asks you: “We’re looking for 100% peace. Will this be a complete resolution of this matter?”

What do you say and do in response to this?

3. You are the newly elected Attorney General of the State of Oxford. Congratulations, but there is trouble brewing. You will be sworn in on May 15, 2022.

The State of Oxford is a so-called purple state, and the newly elected Governor, Sally Knight, is from the other party. Knight ran on a slogan of “Fix the Damn Potholes!” and now has her sights on the Attorney General’s Office. She was quoted in the press recently: “The Attorney General should focus on the problems here in the State of Oxford, and stop spending the time and money on political lawsuits against the President, and multi-state shakedown lawsuits against big corporations.” Governor-elect Knight has proposed to reduce the budget for the Attorney General’s Office by 15%.

As part of your transition, you meet with the current senior staff from the Attorney General’s Office. The Deputy Attorney General in charge of the Consumer Division tells you: “She’s just mad because we had told her that we were just about to file suit as part of a multi-state investigation into Knight’s tech company. Her company is engaging in unfair and deceptive practices through its sale of customer data in violation of its privacy policy. The case is not yet public and I’m not sure when the other States will be ready to file. It may be after you are sworn in, but I’m not sure.”

What, if anything, do you do in light of this revelation?

The legislature is equally dived between the two parties, and you have to take the threat of a 15% budget cut seriously in setting your priorities as the new Attorney General. If you have to make a 15% budget cut in the office, where would you look to cut back or eliminate from the current Attorney General responsibilities, and why, and what, if anything, would you do to cushion the blow caused by such cuts? Be specific as to where you believe the cuts should be made.

To make matters worse, presumably you ran because there were things that you wanted to do. What do you think should be the additional or different priorities of the Attorney General’s Office, even if it leads to additional cutbacks in current responsibilities, and why? Again, please be specific.