This is not a political blog, nor even a civil rights law blog. So, there would be no reason for me to write a word here that has anything to do with the Walter Scott incident. But this is a blog about legal ethics and lawyering issues, and the former lawyer for the police officer who we’ve now all seen shooting a fleeing man in the back decided to engage in this interview and has presented something of a teaching moment about what not to do after resigning from representation of a client.
There is no question that a lawyer in this gentleman’s situation would certainly be able, under RPC 1.16 in most states, to take the opportunity to withdraw from representation of his client. In Tennessee, for example, a lawyer could justify withdrawal under RPC 1.16(b)(1) simply because (at least, in the absence of the interview) it could have been done without “material adverse effect on the interests of the client,” or under RPC 1.16(b)(4) if perhaps behind the scenes this lawyer learned that his client was insisting “upon taking action that the lawyer considers repugnant or imprudent,” or even under RPC 1.16(b)(7) on the basis that some “other good cause for withdrawal exists.” South Carolina has provisions quite similar to one or more of these in its own version of Rule 1.16.
Yet, this lawyer (and others in high profile situations) has managed to overlook that RPC 1.16(d) also imposes obligations on lawyers to take steps that are reasonably practicable to protect the former client’s interests during and after withdrawing. The notion of giving a press interview about the fact of withdrawal, ostensibly for purposes that are unclear other than to say that you can’t say anything about why you’ve withdrawn but to strongly imply you quit on your client once you saw video of him shooting someone in the back multiple time while the person was running away, is pretty antithetical to taking reasonably practicable steps to protect your former client’s interests.
The giving of the interview is made worse, from an ethics perspective, by the broad obligation of confidentiality owed by lawyers not just to clients but to former clients. This lawyer, while mentioning that attorney-client privilege restricts his ability to explain, appears to be ignoring his obligations of confidentiality which are distinct from the privilege. RPC 1.6 makes information related to representation of a client confidential. RPC 1.9(c) imposes certain clear, continuing obligations of confidentiality that prevent lawyers from revealing certain information gleaned from former clients. South Carolina has similar versions of Rule 1.6 and Rule 1.9. A public interview such as this, in addition to being unwise and contrary to RPC 1.16(d)’s mandates, is almost impossible to pull off without disclosing information that, even if not privileged, would be confidential under the ethics rules. That would be true even if the lawyer didn’t seem to be going out of his way to imply that he believed his client when he started representing him a few days ago and, now that he doesn’t believe him any longer thanks to videotape, he has nobly decided to stop representing him.
Fortunately (though it is hard to use that phrase in connection with the matter at all) it doesn’t appear that this ethical misstep has prevented the former client in question from securing new counsel.