Pat Parker & Associates

Relevant Facts

Pat Parker was a law school graduate who started a consulting firm called Pat Parker & Associates and specialized in conducting opposition research and writing reports for political candidates, primarily for the Democratic Party. This 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 knowing that this could potentially jeopardize the political party’s candidate or even worse, could be arrested for soliciting the information.

The evidence presented in this case was concerned with ownership and the control of research created by one party for use by another.

Legal Issues

There are several legal issues related to this case.

Would Pat Parker violate either contract or federal copyright laws by selling the research or associated postcards to the State Academy of Trial Lawyers or anyone else who desired to purchase them?
Could Pat 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 Pat Parker be violating the Florida Voluntary Code of Fair Campaign Practices by selling a report generated for one party to the other party? Specifically the $500 maximum funding limit?
If the items were resold to a third party, would Parker & Associates be violating any particular codes of ethics?

Legal Principles

The Pat Parker Case highlights the legal and ethical issues involved in the resell of research material, which was originally contracted from a campaign analyst, Pat Parker, and the Democratic Party. Considering the implications of this research, it must be taken into consideration that the Democratic Party could potentially already hold copyright interest in the research. I am basing this determination based on an examination of Parker’s contract for the initial job (Exhibit 8, page 19 in the Parker Case Study). This is an examination for which the determination of copyright ownership apparently varies according to who is conducting the investigation. Parker interprets the contract as awarding ownership of the research, an interpretation that would include the right to resell. “Copyright law provides that “work for hire” be expressly agreed on in writing as being “specifically ordered or commissioned”. [1] While a contract was completed between Parker and the Democratic Party, the terms of that contract are subject to debate as to how copyright should be interpreted.

If the Democratic Party did hold copyright interest to the research conducted by Parker, any subsequent sale by Parker of the material in question would be illegal. If this were the case, the consideration of whether it is legal for the Trial Lawyers to give the research to the Party would be moot. Perhaps the most convincing argument which can be made in regard to the rightful copyright holder of Parker’s research is that Parker had the foresight to include the notification in the original work that stated: “Pursuant to the Agreement for research and consulting services between the campaign and the consultant, these materials are for the use of the campaign during the present campaign cycle only”. [1]

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 were asked to verify that the research they provided was sufficient to support the postcard 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, based on the interview provided in the case study, 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. From a legal standpoint, it seems that Parker & Associates have all the backing they need to sell the research, but not the postcards.

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The next issue that Parker was concerned with was violating a campaign statute that it would be illegal to give, and for a campaign to accept, a 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. Per the case study, “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 a 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.

The next issue deals with whether Parker would violate the Florida Campaign Financing Statute by having contributed more than $500 to a campaign indirectly through the State Academy of Trial Lawyers resulting 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.

There are several other considerations, which must be made in this case as well. If under the terms specified in the contract between Parker and the Party for the initial research, the Democrats do not hold copyright interest then the Trial Lawyers would have to find some way around the $500 limit which is placed on contributions to a particular candidate by the state campaign financing statute. Under that same statute, Parker could be charged since the research value in question was more than the $500 limit and, according to the terms of any subsequent sale or release of the research, Parker could potentially be viewed as making an indirect contribution to the campaign. Given that the Trial Lawyers had offered to pay Parker the same price Parker had charged the Democratic party, minus his expenses, this possibility, however, appears unlikely.

Parker would have violated campaign statutes by reselling the research. Though the campaign statutes were not explicitly mentioned, they probably would have stated that selling a Party’s intellectual capital was not only unethical but against campaign practices. Though the research was constructed of various news clippings and other factual data, the research was produced for the Democratic Party. The fact that Parker was concerned with the illegal nature of reselling the research proves that Parker knowingly would have made a terrible decision.

The final issue of concern was whether Pat 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.

The case does state: “It was a crime (a misdemeanor) to make a contribution in excess of $500 or to make a contribution ‘through or in the name of another, directly or indirectly.” Since the work was sold to the Jackson Campaign for $25,000 plus expenses, it’s clear that the work was worth substantially more than the $500 limit. Penalties for violating this statute included fines or dissolution of the business. While Parker suspected that the Trial Lawyers might sell or donate the report to the Paine Campaign, Parker could argue about the lack of knowledge of what the Trial Lawyers intended use would be, and had no control over what they would do with it. My conclusion here is Parker would not be in violation of the Florida Campaign Statutes, since the data presented in the research does not appear to violate the criteria established in Exhibit 9 of the case study.

Relevant Facts & Legal Principles

The evidence presented in this case is concerned with ownership and control of research created by one party for use by another. Based on my 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 Parker’s 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.

Generally, the person who creates the work is considered to be the author, but there is an exception defined as “works made for hire.” In this case, the purchaser (or employer) of the work is considered to be the author, and therefore, the copyright holder. The conclusion here though, is that Parker was not an employee of the Jackson Campaign – rather specifically an independent contractor. The contract would have been required to state specifically that the work shall be considered to be a “work made for hire,” and usually clear and concise language indicating that the independent contractor “assigns and conveys” all rights to the purchaser. In this case the Jackson Campaign’s contract rights to use the work were limited exclusively to that campaign cycle, and the contract was devoid of any assignment or conveyance language. I conclude Parker and not the Democratic Party or the Jackson Campaign was the holder of the copyright, and therefore was free to sell or give the report to the Academy of Trial Lawyers.

Ethical Issues

The ethical questions are:

1) Would the reselling of a research project originally created by Pat Parker & Associates constitute an unethical action?

2) Could that action be potentially damaging to either Parker & Associates, it’s employees and the Democratic Party?

3) Would it be a breach of ethics for Parker to sell to the Republican Party (indirectly through the State Academy of Trial Lawyers) when all of Parker’s business was associated with the Democratic Party?

Ethical Duties

The fact that Parker initially accepted the request from the Trial Lawyers, and then began to have second thoughts about it shows that Parker was having an ethical dilemma. Parker knew that there where both ethical and legal concerns about this action. The legal questions of this case are what are of interest here.

Parker had two sets of duties to act upon. The first was Parker’s ethic duty to the current customers of the company. It was their “word of mouth” advertising efforts and their loyalty to Parker that allowed Parker to start the company. It was their order for a research report that provided Parker the opportunity to sell it to the Trial Lawyers. It is clear that Parker’s loyalties to the Democratic Party had been the primary success driver of the company.

Parker also had a duty to his employees to ensure that the company was acting in good faith to provide future employment for its’ staff. This is a basic principal of owning a business and hiring people to work for you. By placing the company in a questionable position, Parker failed his ethic duty to the employees of the firm.

Parker put the financial concerns of the firm above the concerns of the customers of the company. When a business is built around one group of customers, the company must treat this entire group equally. Parker failed because he didn’t treat the customers of the firm equally. In fact Parker didn’t treat the customers of the firm fairly. As a customer, you expect a certain level of support from your vendors. In this case, Parker was supposed to keep information private unless given the approval to make the information available to the public. Parker failed to get consent of the Democratic Party to resell the report.

As I mentioned in my 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.

Issues to Relevant Facts & Ethical Issues

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. Parker had a feeling that it would be unethical to resell the research to the opposition party. Given that 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.

In this case, Parker is trying to determine the right decision from the wrong decision. 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. Selling the research would not develop Pat Parker’s 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.

Overall Conclusions

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. Pat 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”. [1]

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.

Pat Parker would have gone against the personal beliefs that 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 Parker’s personal preferences or to Parker & Associates in the long run by playing both sides against the middle.

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. Here is why:

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.

References:

[1] Ethical and Legal Environment of Business Appendix Book 2, “Pat Parker & Associates Case”