Pat Parker Case Study

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1. Abstract

Pat Parker was a law school graduate who started a consulting firm that specialized in conducting opposition research and writing reports for political candidates, primarily for the Democratic Party. This specific case is about how Pat Parker developed a research report for Democratic nominee, Dale Jackson for the statewide Attorney General position. Two years later, representatives of the State Academy of Trial Lawyers wanted to buy the same research document on the Republican Attorney General, Terry Paine in what Parker believed to be an effort to inoculate their candidate during an upcoming election. Parker wasn’t sure how to proceed. There was the potential to be arrested for reselling the information, plus it could jeopardize the political party’s candidate.

There are several legal issues to be concerned with in this case. Would Pat Parker violate either contract or federal copyright laws by selling the research or the associated postcards to the State Academy of Trial Lawyers or anyone else who desired to purchase them? Could Parker sell the research to the State Academy of Trial Lawyers without violating the $500 maximum funding limit under the Florida Campaign Finance Statute? Would Parker be violating the Florida Voluntary Code of Fair Campaign Practices if he sold a report generated for one party to the other party? Also, if the items were resold to a third party, would Parker & Associates be violating any particular codes of ethics?

. Legal Analysis




The first legal issue to be analyzed is whether Parker would have violated contract law if all or any portion of the research document had been sold to the State Academy of Trial Lawyers? To determine if Parker would be violating the contract, a valid contract must first exist. Three elements of a valid contract must be proven, including competent parties, consideration, and mutual assent or meeting of the minds.

· Element 1 Competent Parties. For a valid contract, each side must have the capacity to enter into it. This case provides that Parker is a competent individual who willfully accepted an offer to conduct research for the Democratic nominee, also a competent party. We can conclude that both parties had the capacity to enter into a binding contract and element one is satisfied.

· Element Consideration. In order to hold both parties to the contract, each must give something in exchange. Money is the most common form of compensation. The Democratic nominee agreed to pay Parker $5,000 plus expenses to research their opponent, and Parker agreed to provide a report in return. The exchange of a completed report for money satisfies the second element of consideration.

· Element Meeting of the Minds, or Mutual Assent. This means that both sides must fully understand the details, rights, and obligations of the contract. Exhibit 8 of the case study, the agreement between Parker and the Democratic Party, provides clear, concise details as to what each party was required to do to satisfy their part of the contract. Therefore, a mutual assent or meeting of the minds clearly occurred when both parties signed the agreement, and the third element was satisfied.

Since all valid contract elements were satisfied, it can be concluded that the contract between Parker and the Democratic nominee was valid.

The original agreement, Exhibit 8, with the Democratic Party candidate specifically stated the “use of reports” which essentially said that the research and the publications used in the research shall not be used “for any other purpose, campaign, or person” and that the research was to be used “during the present campaign cycle only.” This type of bilateral contract basically promised that the two parties would maintain the terms of the contract between them only. If the research had been sold to another party during the campaign in addition to who it was originally created for, then Parker would have been in breech of contract and the Democratic Party would have every right to sue for damages.

However, the report that the State Academy of Trial Lawyers wanted to purchase from Parker was for an upcoming election that would be occurring during a different campaign cycle. The original agreement outlined that Parkers obligation would expire upon the determination of the last election in which the Campaign had qualified its candidate. It did not state that Parker & Associates could not use the research later, only that the campaign couldn’t. Therefore, it would not be a violation of the original agreement terms if Parker decided to sell the original report to the State Academy of Trial Lawyers or to whomever their firm chose to.

The second legal issue is whether Parker could sell the research to the State Academy of Trial Lawyers or other interested parties without violating federal copyright law. A copyright offers protection for original works of authorship. Copyright protection affords the author of copyrighted work with specific rights that the authors can give or sell to others or keep for themselves.

Possible copyright problems stem from two different items. The fact that the Democratic nominee contracted the work makes it possible that they hold the copyright on the research report. Additionally, when the State Academy of Trial Lawyers heard about the postcards developed by another consultant that were based on the research done by Parker’s firm, they wanted to purchase copies of those also.

According to the Copyright law, a holder has the right to control the material covered by the copyright. Copyright law also states that for research to be copyrightable, the material must

· Exist in a fixed, tangible form that can be reproduced

· Be an original creative effort

· Not already exist in the public domain

The information that Parker researched existed solely in the public domain. The consolidation of this information is still public domain, but the assumptions added to the publicly gained information established the report developed by Parker & Associates as unique. Therefore, the elements of copyrightable material have been satisfied.

The initial issue of who owns the work and therefore the copyright is confusing at first. The general rule is that the author of the work is the owner and therefore the copyright holder. Although the person who creates a unique piece of work is the author of that work and normally, the owner, there is an exception to that principle. Copyright law defines a category of work called works made for hire. For a “work made for hire, the purchaser or employer is considered the author, not the employee. Thus, the employer owns the copyright and possesses 5 exclusive rights granted in the copyrighted work.

1. Reproduction rights

. Modification rights

. Distribution or sale rights

4. Public performance rights, and

5. Public display rights

In 18 the Supreme Court ruled, that to determine whether a work is made for hire, it must first be determined if an employee or an independent contractor prepared the work.

The key item in this case is that Parker was an independent contractor, not a campaign employee. If an employee creates the work, generally the work would be considered a “work made for hire”. In this case, the Campaign was considered the purchaser of Parkers’ services. If a work is created by an independent contractor, such as Parker, then the work is a specially ordered or commissioned work, and it is only owned by the commissioner if the work is one of the types as follows,

· A part of a larger literary work,

· Part of a motion picture or other audiovisual work,

· A translation, or

· A supplementary work such as a chart, an introduction, an atlas, a test or answer material for a test, or an instructional text.

The parties must also expressly state in their contract that the work is “work made for hire”. This was not accomplished in Parker’s case. Nowhere in the contractual agreement does this statement appear. Since the research Parker conducted technically did not fall into any of the above categories and the “work made for hire” statement is missing, it can be said that Parker, as the original author of the work also holds the copyright.

There is also the agreement that both Pat Parker and the Democratic campaign manager signed. In Section 11 of the original agreement, it states that the Democratic Campaign can only use the research during the election year and not use it “for any other purpose, campaign, or person.” Between this, and the fact that Parker is the owner of the copyright, Parker & Associates, not the Democratic Party, has full authority to sell the research to whomever they choose.

The issue of the un-mailed postcards is different from the research itself because they were not actually written by Parker & Associates. Parker’s research was provided to an outside consultant that used the research data to create the postcards. However, Parker & Associates was asked to verify that the research they provided was sufficient to support the postcards’ claims.

For Parker to have a copyright claim to the postcards, there would have had to be a joint authorship of the work considered. If at the time the postcards were created both authors had intended their works to be part of an inseparable whole, this would be considered a joint work. However, from the interview provided in the case, Parker and the other consultant did not have such an understanding regarding the postcards; therefore the postcards cannot be considered a joint work, but rather a collective work.

In a collective work, each author owns the copyright for only the material they added to the finished product. Since both Parker and the other consultant have claims to copyright in the postcards, it would take the express permission of the other party before either could sell them. As before, the Democratic Party appears to have no claim to the postcards.

The agreement does not preclude the sale of the postcards with regards to the Democratic Party. If the other consultant had not been involved and Parker’s firm had made the postcards, the postcards would be under Parker & Associates copyright. However, since the postcards are a collective work, it would preclude Parker from being able to sell them to the State Academy of Trial Lawyers. From a legal standpoint, it seems that Parker & Associates have all the backing they need to sell the research, but not the postcards.

The next issue that Parker was concerned with was violating the campaign statute (though not provided in the case), specified that it would be illegal to give, and for a campaign to accept, an “in-kind” contribution in excess of the legal limit of $500, “through or in the name of another, directly or indirectly.” Any business that violated the campaign financing statutes could be fined or even dissolved. Anyone who aids, abets, or advises in violation of the statute could also be found guilty of a misdemeanor.

Parker knew that the research report was worth substantially more than the legal limit of $500, but was not aware of how the State Academy of Trial Lawyers intended to utilize it. If the State Academy of Trial Lawyers attempted to channel the report to the Republican candidate through a loophole in campaign financing laws, then Parker & Associates might not be guilty of violating the statutes. However, if the State Academy of Trial Lawyers were to give the entire report as an “in kind” donation to the Republican Attorney Generals campaign, then both the campaign and Parker, since Parker & Associates was represented in the report, would be in violation of campaign financing statutes. In this case, Parker would probably violate the Florida Campaign Financing Statute by having contributed more than $500 to a campaign indirectly through the State Academy of Trial Lawyers and would result in a misdemeanor offense. Parker could argue that the firm was unaware that the State Academy of Trial Lawyers intended to provide the report to the campaign for free or under the $500 donation limit.

The final issue of concern for Pat Parker was whether Parker & Associates would be violating the Florida State Voluntary Code of Fair Campaign Practices if they sold the research report to the State Academy of Trial Lawyers. The Florida State Voluntary Code of Fair Campaign Practices applies to potential candidates, but Parker was not a candidate running for any political position in the State of Florida. Therefore, Pat Parker could not violate this Florida Statute by selling the research report since the data presented in the research does not appear to violate the criteria established in Exhibit of the case study.

. Ethical Analysis

Would the reselling of a research project originally created by Pat Parker & Associates constitute an unethical action? Could that action be potentially damaging to either Parker & Associates or the Democratic Party? The evidence presented in this case is concerned with ownership and control of research created by one party for use by another.

As was proven by the legal analysis, Parker & Associates was the owner of the copyright for the research report that they created, and could therefore choose to sell it to another party if they so desired. There was an assumption that Parker had an ethical obligation to maintain loyalty to the Democratic Party since the firm had never done research for any other party, and would not sell their research to the Republican Party.

An ethical alternative would have been for Parker to not sell the research report to the State Academy of Trial Lawyers or any other interested party, thus fending off any potential damages to their reputation or to the Democratic Party.

Pat Parker had to address personal opinions and beliefs before a decision about the research report could be made. Pat Parker seemed hesitant to sell the case to the State Academy of Trial Lawyers for two reasons.

1. Pat Parker wasn’t sure about the legal ramifications

. The desire to continue working for Democratic candidates only

Parker & Associates was a successful business without doing research for any Republican candidates. The need for Parker to feel satisfied with a job well done was evident. Many times during the interview with Leslie Kent, Parker mentioned a feeling of pleasure when the candidates Parker & Associates had provided research to won their elections. That feeling transferred to job satisfaction and satisfaction of personal goals.

This case deals with an issue of whether it is ethical for Pat Parker to sell a research report developed for a Democratic candidate to a third party, with the possibility of the Republican candidate whom it was written about receiving it. Pat Parker had a feeling that it would be unethical to resell the research to the opposition party. Given that Pat Parker was a campaign research consultant, it can be assumed that Parker operated with a specific Code of Ethics. It can also be rationalized that Parker would live up to those principles in order to stay credible amongst the Democratic Party, whom Parker & Associates had conducted all of its business.

A Code of Ethics usually contains a list of principles that professional organizations wish their members to abide by. Yet Parker & Associates was one of only a few firms that specialized in opposition research. There was no established organization, and there was no established Code of Ethics either. It was essentially up to Pat Parker to decide the ethical stand that Parker & Associates would take. However, the Pat Parkers and Parker & Associates reputations were at stake if the wrong decision was made.

In this case, Pat Parker did not want to lose credibility amongst peers or current and future clients. Humans by nature require justification. They have a need to know why they should do something and for what reasons. Humans need specific criteria for judging what decisions are right and what decisions are wrong. It is usually not enough to simply list appropriate actions without an explanation.

Pat Parker in this case is trying to determine the right decision from the wrong decision. Ethical theories can be used to justify such decisions. Consequentialism probably has the best approach in this case. The theory believes that one can distinguish right actions from wrong actions by the fact that right actions will have better consequences. That the right actions will lead to the maximization of overall happiness. This basic form of Consequentialism is known as Utilitarianism. Therefore, if the final decision were to not sell the research to the State Academy of Trial Lawyers, Parker would have made the right decision that would afford better consequences. This obviously would proclaim Parker loyal to the Democratic Party and boost the credibility of Parker & Associates amongst current and future clients.

In trying to clarify what the right action to take is, codes of conduct are often a combination of both Deontological and Utilitarian approaches. In substance, codes of conduct are an expression of the deontological approach. They say, Here are the principles that should be followed. Whether professionals follow a more deontological scheme when formulating ethical codes of conduct or a utilitarian one, both are similar since they clarify the specific duties a profession is obligated to carry out.

From a Virtue Theory perspective, Parker needed to evaluate certain things. If a decision were made not to sell the research, would Parker & Associates still be considered a competent entity in the business? Using the Virtue Theory, the selling of the research would not satisfy any of Pat Parker’s internal or external goals. The sale would throw Pat Parkers character traits out of balance and would consequently be considered an unethical act.

Selling the research would not develop Pat Parkers character in any way and would be considered unethical. Although it appears to be legal for Parker & Associates to sell the research to the State Academy of Trial Lawyers, the ethical reasons show that it should not be done.

4. Conclusion

I believe this case raises an issue regarding intellectual property, specifically federal copyright law. The legal problems surrounding this case are basically about one research report that was written by one person that may have belonged to the client that commissioned it. Parker acted cautiously as though Parker & Associates owned the copyrights to the report they had created. Under federal copyright law, a specific category called “work for hire, “ which states that once a product is completed and turned over to the employer, it rightfully became the property of the employer.

However, Parker was an independent contractor, not an employee. Plus, no such language of “work for hire” ever existed in the research or the contractual agreement between Parker and the client. Therefore, Parker & Associates had every legal right to sell the report to anyone else that wished to do so without violating federal copyright law.

However, Pat Parker would have gone against the personal beliefs that had carried Parker & Associates for years if the research report had been sold to the State Academy of Trial Lawyers. There would have been a sense of betrayal or untruthfulness to the Democratic Party, which Parker & Associates had supported for many years.

Pat Parker could legally sell the report to the State Academy of Trial Lawyers, but would feel ethically and morally wrong for having done so. It could have opened up the potential for future clients, but at what cost to Parkers personal preferences or to Parker & Associates in the long run by playing both sides against the middle? Which was more important, the potential for increased business or the continued respect of the firms chosen affiliation?

I believe that Pat Parker would be better off taking the path that leads to both the legal and ethical right answer. Parker & Associates had the legal right to either sell or not sell the research report to whomever they chose. By not selling a report produced for one party to another party would put Parker & Associates in a Win-Win situation.

· They would maintain the respect of the party with whom they had done business for years by not having opted for higher revenues over loyalty.

· The potential for more clients from the Democratic Party in the future was greater since it would show them that Parker & Associates was both ethically and legally bound to the good faith trust that their clients had placed in them.

· Pat Parker would be satisfied knowing that Parker & Associates had not provided documentation to the party that was not aligned with personal preferences.



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