I haven’t rolled a post out with this title in a while, but the more truthful title when it comes to an ethics opinion, issued here in Tennessee on September 9, 2016 would be: “More bad than worthless or more worthless than bad?”
First, the good news. Tenn. Formal Ethics Op. 2016-F-161 is short. It won’t take you but maybe five minutes to read it in full. You’ll never get those 5 minutes back, but…
Now, the not-so-good news … Formal Ethics Opinion 2016-F-161 could have been a whole lot shorter, maybe only a paragraph — in fact, the first paragraph with the heading “OPINION” probably would have sufficed. It states a premise that isn’t necessarily incorrect — a settlement agreement that would require an attorney to return work product violates RPC 5.6(b) if it restricts the lawyers ability to represent other clients– but it doesn’t do anything more than that.
To the extent it does, it isn’t exactly helpful because it works from a premise that doesn’t involve something that clearly involves work-product, and not surprisingly (given that it treats something as if it were work-product when that is less than clear) it doesn’t really explain why one thing might be okay and the other not.
If you were looking for a jumping off point to make the point that a demand for relinquishing work-product as part of a settlement agreement could violate RPC 5.6, I’m not sure this is the premise to pick:
Plaintiff’s counsel received from Defendant 541,927 pages in image form and had to electronically covert every single page to a pdf document. Plaintiff’s counsel then processed the 541,927 pages with optical character recognition to make each document searchable. The documents were then organized by relevant subtopics and incorporated into demonstrative exhibits. Creating this work product was the only way to understand the complex issues in the case, articulated the product defects, depose experts, present claims, and ultimately reach a successful settlement for the client. Plaintiff’s counsel relied on the produced materials to cut a full-size vehicle into parts for use in explaining complex engineering, vehicle dynamics, and safety mechanisms to the jury. This demonstrative evidence is useless without the underlying work product.
In addition to the way in which that description reads like the inquiring attorney wrote it, did you catch the part there where things went askew? Of course, you did. It was that moment where they wrote “Creating this work product…” despite not having referenced any creation of work product.
What they described was the production of materials by the other side in discovery. Converting TIFFs to PDFs doesn’t turn the other side’s document production into your work product. OCR’ing those PDFs doesn’t do that either. The incorporation of certain aspects of the discovery into demonstrative exhibits might rise to the level of the creation of work product, but the demonstrative exhibits would be the work product not the source material that was added to them as a component part. But even giving the Board the benefit of doubt, the opinion doesn’t exactly tackle whether (or how) the request to return discovery materials also requires the return of additional things — work product — that incorporate parts of the discovery materials.
The opinion also doesn’t clearly indicate that the settlement agreement being examined requires anything to be returned besides discovery documents produced. What is says is this: “The parties agreed on a settlement amount, and as a condition precedent to signing the settlement agreement Defendant demanded return of all documents produced….” Now the opinion then says “… which included Plaintiff’s counsel’s work product,” but I don’t know how to take that because “documents produced” on its own wouldn’t support a reading that work-product must be returned.
Otherwise, the TN opinion to bolster the premise that requiring return of work product could be a problem spends a bit of time trying to (sort of) adopt the rationale of a North Dakota ethics opinion from 1997. This part of that North Dakota opinion is fine: “Whether providing the opposing side access to or losing his or her own access to work product materials would restrict the attorney’s representation of other clients is a factual question the attorney must decide based on the documents involved and the facts and circumstances of the case.”
But, there is a key deficiency in the North Dakota opinion too , at least as described by the TN opinion, there is a seeming failure to recognize that if a client pays an attorney for work product the attorney creates, that work product also belongs to the client. Remember, in this context RPC 1.16(d), which only provides the slimmest of windows for a lawyer to refuse to turn over work-product that a client hasn’t paid for, upon the termination of the representation.
So, when the Tennessee opinion quotes the North Dakota opinion to say: “Under 5.6(b) an attorney may not agree — even at a client’s request: To turn over to opposing party or counsel documents protected by the attorney work product doctrine if that action would restrict the attorney’s representation of other clients….,” it overlooks the fundamental concept that the client, not the attorney, makes the decision whether to settle a matter. (RPC 1.2) And, if the condition on settlement is that the attorney relinquish work product that now would belong to the client because the attorney’s fee will be paid, then… well, it’s pretty dangerous for an attorney to seek to blow up that settlement on the basis that the work product is the attorney’s alone to do with as she sees fit.