Friday follow up: DC Bar counsel’s weird priorities

So (finally) I’ve made myself read a bit more into the DC situation — that for many people is now ancient history but was news to me — about what seems like something that definitely got some play in the news but ought to be a more nationally discussed scandal.  The weird penchant that DC Bar Counsel has displayed in recent years of going after not just lawyer whistleblowers but lawyers who provide advice and counsel to such lawyers.

When I started down this path originally, it was in connection with noting the discipline that was imposed against Adrianna Koeck over her sharing of certain documents she took with her upon leaving her position as in-house counsel for GE and sharing them with the media.  I’ve now had the chance to track down and read the admonition issued against Koeck’s former professor – Robert Blakey — and the recommended findings/charges against Koeck’s lawyer – Lynne Bernabei.  Having done so, I’m still left shaking my head and thinking the priorities demonstrated are bananas.

The Report and Recommendation of the Ad Hoc Hearing Committee contains information that can be referenced to succinctly distill the underlying scenario:

In her position with GE, Koeck served “as the interface between legal issues happening in Latin America, Brazil, Argentina, Chile…and the broader businesses spread across the globe….

[snip]

When Koeck joined [GE] in 2006, Koeck’s supervisor … brief her about [an investigation involving questions regarding value added tax issues in Brazil] and gave her the file concerning the matter.  Resolving these discrepancies [the VAT issues] became one of the “big issues” on Koeck’s plate….

In mid-November 2006, after eleven months of her working for GE… Human Resources advised Koeck that [her supervisor] did not want her to either stay with the company or move to another GE business.

Koeck was to be discharged at a November 29, 2006 meeting scheduled with a GE Human Resource employee, but immediately before that meeting, Koeck emailed the GE corporate Ombudsman… claiming, among other things, that she was being retaliated against “for participating in and reporting illegal activity engaged in by [GE] personnel.”  She alleged that, in the course of her compliance investigations, she had discovered tax fraud that GE had been perpetrating in Brazil.  She claimed that she was being terminated for raising concerns about the fraud to her supervisors.

[snip]

In late August 2007, Koeck sought the legal advice of her former Notre Dame Law School professor, G. Robert Blakey.  Koeck provided Blakey with some of the confidential documents that she had copied from her GE computer.  Blakey advised Koeck, “that the documents and information she had were not covered by the attorney-client relationship, because they fell within the crime/fraud exception.”

[snip]

Blakey confined his advice to Koeck to disclosures she would make to protect herself against potential criminal liability, and he recommended that she retain an additional attorney with expertise in employment law and whistleblower complaints.  Blakely gave Koeck the names of two firms, one of which was Bernabei & Wachtel, PLLC.

[snip]

On November 27, 2007, Koeck formally retained Bernabei’s firm to handle the SOX matter before the Department of Labor.

[snip]

After Koeck retained Bernabei on November 27, 2007, she and Blakey met and agreed that Koeck should inform the press about GE’s activities in Brazil.  Beginning in December 2007, Bernabei spoke with Koeck about having a press strategy and talking to the press.

[snip]

At some point in the fall of 2007, David Cay Johnston, a New York Times reporter at the time, received a telephone call from Blakey who asked if Johnson “might be interested in material about a long-running series of felonies committed by General Electric in another country.”  Thereafter, Johnson received “hundreds of pages of documents” from Blakey or Koeck.  Subsequently in January 2008, Johnston interviewed Koeck about the alleged tax fraud in Brazil and she provided additional documents in her possession regarding GE’s activities there.

Now as to Koeck and Bernabei, an interesting wrinkle learned from reading the source documents is that because the SOX proceedings were before the Department of Labor, the disciplinary body looked to the ABA Model Rules to apply to some extent, but entirely ignored any evaluation of Model Rule 3.6 on trial publicity that would appear, arguably, to permit disclosure of aspects of the proceedings to the media.  In my earlier post, I had noted that DC does not have a trial publicity rule that extends as far as the Model Rule, but this wrinkle, to me, further undermines the outcome in these matters.

But it is the details of Professor Blakey’s situation though that are laid out in his admonition letter – that bar counsel was aware of and took into account and yet still thought discipline was warranted that most astound me and leave me sticking to my guns about this all being bananas:

Ms. Koeck told you that she was concerned that GE had not and was not taking any action to stop the alleged ongoing fraud and that she was afraid that she might be personally liable for the activity because Brazilian law holds individuals, and not corporations, liable for tax fraud and criminal activity.  Ms. Koeck also said that she knew of money-laundering activities and described instances in which GE employees in South America had been murdered.  Based on your conversations with her, you were under the mistaken impression that Ms. Koeck was residing in Brazil.  You believed that she faced possible criminal liability if she did not report the alleged illegal and fraudulent activity.  You also believed that her physical safety was in danger.

[snip]

In advising Ms. Koeck to provide information and copies of GE’s documents to Mr. Johnston, you had in mind the evidentiary crime-fraud exception to the attorney-client privilege, but you did not give adequate consideration to the terms of Rule 1.6 of the Rules of Professional Conduct.

Now setting aside the fact that D.C.’s Rule 1.6(d) does provide a lawyer with an exception to permit disclosure that would at least have been arguably available to cover Koeck’s circumstances, they are managing to discipline a very distinguished lawyer on a basis of saying he assisted another lawyer in violating her ethical obligations rather than attempt to prove that the lawyer’s allegedly “bad advice” rose to a level of incompetence to justify discipline under Rule 1.1.

As a lawyer who represents lawyers, I find that to be a really quite scary turn of events.

My view on the whole situation isn’t exactly made any better after tooling around a bit on the Web regarding the disciplinary counsel involved in pursuing this matter, Hamilton P. Fox, III.  Mr. Fox appears to be the same gentleman who was on the wrong side of the exercise of abusive and over-the-top enforcement powers recently as well.  You can read about the saga involved in his arrest and his wife’s detention stemming from Mr. Fox being parked in a place he shouldn’t have been parked in. and the D.C. police appearing to significantly overreact to the situation presented here.  Assuming he is the same person, and I admit it is possible that there are two separate Hamilton P. Fox, III in D.C., but assuming he’s the same person and I think I’m on solid ground about that as other people have laid out before, you’d think the experience he went through would make him more sympathetic to wielding power irresponsibly and trying to only target those who deserve punishment, but apparently not.

As a lawyer who represents lawyers, I’ll try for now just to look on the bright side of things that I don’t practice in the District of Columbia instead of dwelling on just how chilling the actions of D.C. Bar Counsel might be on lawyers who do.

Whistling about where you work.

We appear to be living now in an era in which whistle blowers are going to be in the news (and perhaps be the news) more than ever.

Many who know me, know that I hold a pretty controversial opinion — Arrested Development is potentially the greatest television show in history.  For many years when I needed a fictional lawyer for my hypos at seminars, Barry Zuckerkorn, Bob Loblaw, and Wayne Jarvis were my go-to choices.  I could drop this blog and write a blog just about the genius of that show but (perhaps) even fewer people would read that, much like it never got its fair share of viewers.  One example of the simple brilliance of its writing though was its treatment of the issue of whistle blowers from the 20th episode of the first season, “Whistler’s Mother”:

Mr. Jordan: Listen, you’ve got the money now and you know my price. You don’t need a whistle blower around here.

Michael: Interesting choice of words, Mr. Jordan. He’s right, we don’t need a whistle blower. We need a building full of whistle blowers. Okay? Whistles. I want this place to be honest. That’s exactly why I had these made up for us. When you see something wrong…

[Whistle blows]

Michael: There you go. I want you to report it. I want you to…

[Whistle blows]

Michael: Exactly. Just like that. I want us to police ourselves vigilantly… Let’s wait till something’s actually happens, though.

[Whistles blowing]

Michael: All right… Good fun… Enough!

[twenty minutes later…]

Michael: 45, 46, 47…

Michael: Okay, there’s still three whistles left out there. Who’s got the whistles?

[Whistle blows]

Board Member #1: He kept one.

Michael: There’s a good example of whistle blowing, okay, but you’ve kept yours, so it’s hurting your case.

Board Member #1: I was in the bathroom when you asked for it back.

[Whistle blows]

Board Member #2: No, he wasn’t.

When lawyers (or those that work closely with lawyers) claim to be whistle blowers, the stakes tend to be even higher and the ethical issues for those lawyers and even for the lawyers that represent those lawyers are almost always complicated.  Even when answers seem straightforward, the tensions that exist between the public interest in preventing wrongdoing and the private interest in protecting confidentiality can lead to second-guessing as to where the right lines should be drawn.  When the traditional right of a client to fire their attorney for any reason or even no reason at all is wound into the mix, sometimes that readily clarifies how the tension is resolved  but not always.  It is a pretty good explanation for why there aren’t really many instances of outside counsel to companies or government entities serving as whistle blowers.  When the lawyer seeking to blow the whistle though is an in-house counsel, that absolute right to fire your attorney can be made to yield to public policy since the client is also the lawyer’s employer.

In the last couple of weeks, there have been three stories of interest making the rounds involving three high-profile cases – two of them in California and one in D.C. — where the classic tensions are playing out in differing ways.  The D.C. case is the longest running of the three and was actually pretty much believed to be over back in 2008 when the a former in-house counsel for GE’s Sarbanes-Oxley suit — which she supported using her former client’s confidential information — was dismissed as untimely filed.  The matter got renewed attention with a recent development of a disciplinary suspension recommendation against her.  One of the California matters is part of a roiling and unseemly dispute between the State Bar of California and the Chief Disciplinary Counsel that it fired within the last year.  The other California matter is currently in the middle of trial proceedings and involves the former General Counsel of Bio-Rad, Sanford Wadler, who filed suit back in 2015 alleging he was fired because he blew the whistle on his former employer’s violations of the Foreign Corrupt Practices Act.

The weird mess involving the California State Bar has been back in the news twice in succession.  First, there was a story that the former assistant to the former Executive Director, Joe Dunn, would not be permitted to use information she took with her on her laptop to pursue her claim that she too was fired in retaliation because of her knowledge of the same kinds of violations for which her boss has said he was terminated.  Then, even more recently, word came down that Dunn’s suit, which had previously been forced into arbitration, has been dismissed by the arbitrator.  The  former Bio-Rad General Counsel recently received a favorable ruling about his ability to use confidential client information to seek to prove his case despite what would otherwise be his ethical obligations of confidentiality.

At a primary level, the developments in the three cases underscore a few points.  One, none of them involve outside counsel.  Two, lawyers who claim to be terminated for whistleblowing are almost always going to be met with counter-allegations that that they just simply were bad at their job and were terminated for poor performance.  Three, the obligations lawyers owe to clients in terms of confidentiality not only complicate matters and raise the stakes but almost always create satellite disputes within the litigation about use of information that will make or break the case.

Rather than try to re-tread all of the details of the three matters (because you might care about all, none, or just some of them), I’m pretty sure through the links I have provided and a little Googling, you can immerse yourself as much as you want in available information about any of the three.

One piece of one of the matters though really piqued my interest and deserves a brief separate discussion — the detail of why the former GE attorney, Adriana Koeck, appears headed for a 30-day suspension and a lawyer representing her is also getting punished — going beyond the use of the confidential client information to support allegations in the complaint but providing some of that same information to the press.   One of the reasons the matter piqued my interest originally was that, here in TN, we have a version of RPC 3.6 on trial publicity that allows communications about the media regarding the contents of a complaint, for example.  D.C. has a much different version of that rule.

But, further digging is what further made me curious because D.C. really is a weird place, I guess.  Admittedly, at this point I have only read the Law360 article, but it seems bananas that a D.C. lawyer who assisted, Koeck, in providing documents referenced in her complaint to news reporters is being disciplined for doing so.  Koeck’s 30-day suspension seems to be explainable by the fact that she didn’t participate in the proceedings having already agreed to be suspended from practice by consent.  But punishing a lawyer for that lawyer seems Draconian.  Yet, and somehow I missed reading about this back in 2015, but even the prominent law professor who gave Koeck advice that the crime-fraud exception would apply to the documents also received disciplinary punishment for doing so — that seems even more Draconian.

In fairness, I’ll have to dig a bit further to educate myself on those proceedings to see if I can better explain all of that.

In the meantime, it does appear like Season 5 of Arrested Development is going to happen.  So yay for that.

 

Bad blogger doubles up on topics.

I had every intention of posting twice this week, but events, including being under the weather with general ick much of the week, undermined my intent.  So, this mediocre post will briefly hit two items.  And, with any luck, tie the two together in a way that makes this seem, in hindsight, the correct way to approach these topics.

The first, which is a potentially really big deal with respect to lawyer ethics rules and confidentiality, is a California decision expressly concluding that Sarbanes-Oxley preempts California’s ethics rule on confidentiality to the extent that California’s rule would prohibit an in-house counsel from disclosing confidential client information to pursue a wrongful discharge/retaliation claim.  California’s ethics rule on confidentiality is admittedly something of an odd duck as it is much more stringent than other jurisdictions and often appears to make it seem like California lawyers have to deal with disputes with their clients while having both hands tied behind their back.

The Bio-Rad Laboratories decision has fortunately been written about extensively already by a more prominent blogger who focuses on privilege issues.  You can read the discussion of Bio-Rad put together at Presnell on Privileges here.

Given all of the ways in which the corporate client had already waived privilege and confidentiality as discussed in the first 30 or so pages of the Bio-Rad opinion, the California court really didn’t need to weigh in on the preemption question, but the SEC filed an amicus to make clear its position and, being a district court decision, it isn’t surprising that the judge would offer up all the grounds to support its ruling.

The second is an Ohio advisory ethics opinion from early December 2016 that addressed issues associated with interpretation of RPC 5.5 and correctly explains why a lawyer not admitted in Ohio is not engaged in UPL, even if they are officed in Ohio, if pursuing an exclusively federal practice.  You can read Ohio Advisory Opinion 2016-9 here.  The Ohio opinion recognizes that the application of supremacy principles requires this conclusion.  There are, of course, a limited number of areas of law that a lawyer can practice that are exclusively federal, but they do exist.

The way these two items go together?  I’m not going to hold my breath, but Congress could address, through federal legislation, the problems associated with many aspects of the antiquated way in which various state bar or state regulatory entities address temporary practice in, or handling of matters touching on other state laws, under RPC 5.5 by treating things as unethical that really shouldn’t be in modern law practice — remember, for example, the silliness of the reprimand issued against a Colorado attorney by the Minnesota Supreme Court.

Two smart, practical ABA Ethics Opinions in a row. (And a bonus “beg to differ”.)

So, this week the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Op. 476 addressing the need to protect client confidentiality when a lawyer seeks to withdraw for reasons involving the client’s failure to pay.  As explained below, it is a solid, practical opinion touching on a subject often overlooked by lawyers who are just trying to get out of a case with as little additional wasted time and expense.

It comes on the heels of an opinion from earlier this month about a lawyer’s obligation to hold fees to be shared with a lawyer from another firm separate from the lawyer’s own funds, ABA Formal Op. 475, which — despite what this solo and small-firm centric blogger wrote recently — is also a practical, well-constructed, and correct opinion.  I have to beg to differ with the My Shingle piece because it misses the boat on the primary type of situation the ABA Formal Op. 475 is vital to addressing — where lawyers in different firms are sharing fees in a contingency case.  When you come at the question from that perspective as a starting point, the answer offered in the opinion is clearly the only answer that can be correctly offered.  The My Shingle complaints are readily resolved by simply working out a better front-end arrangement with a client about payment to multiple lawyers.

(N.B. – it can’t just be coincidence that these two opinions appear to be the first two in which my friend, Doug Richmond, shows up as a member of the committee involved in the issuance.  Doug is an excellent lawyer – as of course are all the lawyers on the committee — but Doug also has a flair for delivering practical advice through clear, straightforward written work product that leaves the reader with an abiding sense that the conclusion reached was inescapable.)

ABA Formal Op. 476 also does a nice job in tackling and acknowledging the interplay between trial court and lawyer in these circumstances.  The opinion truly can be well summed up if you lack the time or wherewithal to read it in full by simply quoting its “Conclusion,” section:

In moving to withdraw as counsel in a civil proceeding based on a client’s failure to pay fees, a lawyer must consider the duty of confidentiality under Rule 1.6 and seek to reconcile that duty with the court’s need for sufficient information upon which to rule on the motion.  Similarly, in entertaining such a motion, a judge should consider the right of the movant’s client to confidentiality.  This requires cooperation between lawyers and judges.  If required by the court to support the motion with facts relating to the representation, a lawyer may, pursuant to Rule 1.6(b)(5), disclose only such confidential information as is reasonably necessary for the court to make an informed decision on the motion.

As it stands, I really only have one item of criticism regarding Formal Op. 476 at all.  Yet it feels almost like nitpickery … in that I would have liked to see the opinion manage more clearly to stress that the need for protecting client confidences and discretion in any disclosure to a court regarding withdrawal applies to more withdrawal situations than merely not being paid.  Far too many times than I care to count have I been sitting in a courtroom and listened to a lawyer in the context of seeking withdrawal in some matter on the docket ahead of my case say too much, unprompted about their communications (or lack thereof) with the client.  The opinion says it is limiting itself to the deadbeat client situation because in other situations other rules and principles may apply, but I think there would have been value in exploring the commonalities.

The only other thing I’d like to use ABA Formal Op. 476 as a springboard to say involves highlighting an aspect of the rule we have here in Tennessee and how it provides a very helpful, practical mechanism for doing what the ABA Opinion actually encourages when it says:  “Of course, where practicable, a lawyer should first seek to persuade the client to take suitable action to remove the need for the lawyer’s disclosure.”  In the context of the ABA Formal Op. that would appear to be either: (1) pay the lawyer; (2) hire other counsel that can substitute in lieu of withdrawal, or perhaps (3) fire the lawyer so that withdrawal becomes mandatory.

In Tennessee, we offer another option as our RPC 1.16(b) also lists as a trigger for discretionary ability to withdraw merely that the client has provided informed consent confirmed in writing to withdrawal by the lawyer.  Such a clear escape valve in the rule permits a lawyer – even in a situation in which the client has become a deadbeat – to be able to counsel the client and explain that if the client will go ahead and provide informed consent to withdrawal, and show that consent by signing the motion itself, it can go an exceedingly long way in eliminating the risk that the lawyer will have to say anything about the client’s failure to pay in response to an inquiry from the court.

ABA Ethics 20/20 revisions. New York adopts some; Tennessee proposal still pending.

Roy Simon, the Chair of the NY State Bar Association Committee on Standards on Attorney Conduct, was kind enough to include me on an email last week and, as a result, I learned that New York’s proposed adoption of certain aspects of the ABA Ethics 20/20 revisions was approved, effective January 1, 2017.  Back in 2015, New York adopted certain revisions to Comments to the Rules consistent with Ethics 20/20, but the proposal to change the rules themselves required Court action.  You can read the details of the revisions that were adopted in this PDF: order-adopting-black-letter-amendments-to-part-1200-eff-jan-1-2017.  As with many jurisdictions, New York has picked up the move to a black letter duty in Rule 1.6 to “make reasonable efforts” to safeguard confidential information but not adopted several of the other Ethics 20/20 black-letter revisions  For example, New York has not adopted the Ethics 20/20 revision to acknowledge in Rule 1.6 the need to disclose certain information in connection with lateral moves and mergers in order to comply with the concomitant duty to avoid conflicts under Rule 1.7.  The Comments adopted in 2015 in New York did pick up the Ethics 20/20 revisions to the Comment to Rule 1.6 on that topic, however.

The Comments adopted back in 2015 also included the new paragraphs in Rule 1.1 that are touted by many as establishing a duty of technological competence for lawyers.

I wrote back in the late part of the summer about the TBA’s petition to the Tennessee Supreme Court proposing that Tennessee adopt almost all of the ABA Ethics 20/20 revisions.  The deadline for public comments expired in November 2016, but not before our disciplinary body, the Board of Professional Responsibility, filed comments proposing a number of additional amendments to be layered upon the TBA proposal.  Several of the BPR proposals, all of which you can read here (starting at page 2 of the linked PDF), are puzzling.

The TBA filed a response/reply to the BPR’s comment arguing against the majority of the BPR proposals.  The TBA’s response is not yet up at the Court’s website, but as I was one of the signers of it, I happen to have a copy, and you can read it at this link:  petition-bpr-comment-response

This situation regarding the pending proposal is one of the 12 developments I’ll be covering, including a detailed discussion of some of the puzzling pieces of the BPR proposal, during this year’s Ethics Roadshow.

The first stop is this morning in Memphis, and I’ll be doing it again tomorrow in Nashville.

 

Lawyers and client confidentiality. Death does not part us.

It has been a while since I’ve written about a good ethics opinion.  There is a Maine opinion from a few months ago that fits the bill (and interestingly was actually posed by bar counsel in Maine apparently) but before I spend a little bit of time discussing it, I want to give context behind why it interested me enough to write about at this point when it actually came out in April.

Quite recently in Memphis, a very well-known lawyer with some involvement in pretty historic litigation in Memphis passed away.  While he had lived a long and storied life, the end came quickly as it does for many folks in that a stroke was followed within weeks by his passing.  The local daily paper here in Memphis did a very nice piece about the attorney’s passing (behind a modified sort of paywall) which, unfortunately, was marred just a little bit by a piece of misinformation that was included as a result of a quote from the deceased lawyer’s son (not a lawyer).

The quote in question was this:

“Attorney-client privilege no longer exists after the client passes away,” Mr. Caywood’s son said. “So Dad was able to testify for the prosecution. He was able to admit in court that Holly feared for her life.”

A tough spot for the reporter, of course.  It’s a good quote even if the first part is not true, but it is a shame for the paper of record in our city to put that information out there.  In Tennessee, as with most U.S. jurisdictions, the attorney-client privilege does survive the death of the client.  There is assuredly another explanation for why the lawyer was able to testify in the particular matter about the client after the client’s death even though the son may not have been aware of it.

With that now as context, let’s talk about that Maine ethics opinion — Opinion #213 from the Professional Ethics Commission of the Board of Overseers of the Bar in Maine, which makes the correct point that the ethical obligation of client confidentiality also survives death – whether that is the client’s death or the lawyer’s death.  It also makes for an interesting opinion to write about it from the perspective of my state, Tennessee, because Maine has a version of RPC 1.6 that is something of a blend between the older version of the rule on client confidentiality — under the Code of Professional Responsibility — that spoke in terms of protection for “confidences” and “secrets,” and the current version of the rule under the Model Rules of Professional Conduct approach that we have in Tennessee that extends more broadly to “information related to the representation of the client.”  Specifically, unlike Tennessee’s version of RPC 1.6(a) which reads like the ABA Model Rule, the Maine version provides that:

A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyer reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph (b).

The Maine version of the rule on confidentiality also defines the terms “confidence” and “secret:”

As used in Rule 1.6, “confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information relating to the representation if there is a reasonable prospect that revealing the information will adversely affect a material interest of the client or if the client has instructed the lawyer not to reveal such information.

So the question being answered by the Maine opinion is: can a law firm, in possession of really, really, really old client files with documents of arguably historical value, donate those files to a library or an educational institution?  The short answer, if you don’t want to read any further, is “no,” not without client consent.  Given that the clients are long dead, then the opinion explains likely not without the lawyer slogging through files on a document-by-document basis.

In fact, if you do want to read further, you should probably just go read the Maine opinion because it has some eloquent bits, but if you don’t then I can’t come up with a better way to end this post then with the Conclusion of the Maine opinion:

In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.

Proposal to adopt Ethics 20/20 Revisions in Tennessee Put Out For Public Comment

Back in August 2012, the ABA House of Delegates approved revisions to the ABA Model Rules proposed by the ABA Ethics 20/20 Commission.  Very few of the proposed revisions included in the ABA Ethics 20/20 package are earth-shaking revisions, as many of them only involve change to language in the Comment accompanying certain rules.

The overall bent of the revisions, however, are to address aspects of the impact that technology has on modern law practice, highlight for lawyers their duty to, at the very least, keep abreast of and be competent regarding the types of technologies they use in their practice, and address a few other issues with good guidance regarding how aspects of globalization and the increased use of outsourcing interact with our ethical obligations.

More than twenty-five states have now adopted all or significant parts of the Ethics 20/20 package of changes.  Most recently Washington state has done this, with its revisions to become effective September 1, 2016.  Here in Tennessee, the TBA has filed a petition proposing adoption of almost all of those rule changes, and our Court has now put the TBA petition out for public comment with a November 17, 2016 comment deadline.  (There is also an Errata that the TBA put out to fix a redlining error made by the stupid Chair of the TBA Standing Committee on Ethics and Professional Responsibility when it was pointed out that we’d forgotten to pick up some changes to our RPC 5.5 that went into effect back in January 1, 2016.)

In my opinion, the most important, and most helpful, part of the Ethics 20/20 revisions takes place in RPC 1.6 by explicitly acknowledging the need to reconcile the duty of confidentiality with the duty to avoid conflicts of interest and the fact that, in reality, this means that lawyers need to be able to disclose some otherwise confidential information when looking at moving law firms or when firms are looking at proposed mergers in order to make sure to identify and address potential conflicts of interest under RPC 1.7.

The Tennessee proposed revisions would pick that change up.  Thus, if adopted, like the ABA Model, our RPC 1.6(b)(6) would now provide an exception to RPC 1.6(a) confidentilaity:

(6) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

If adopted, the TBA’s proposed revisions would also move the language about duties of safeguarding confidential information from the Comment to RPC 1.6 up into the black-letter of the rule itself.  Although our version of that rule would be place into a new RPC 1.6(d), instead of Rule 1.6(c) as in the ABA Model Rules because we already have a RPC 1.6(c) that deviates from the ABA Model Rules approach by imposing certain duties of mandatory disclosure of confidential information.

What we do not propose to pick up, however, are certain aspects of the Ethics 20/20 changes that were made to ABA Model Rule 4.4.  This is because, in Tennessee, we have a more robustly detailed version of  the rule that specifically addresses the duties of lawyers when they receive confidential information that they know or should reasonably know was inadvertently transmitted to them or that they know or should reasonably know was provided to them by someone not authorized to have the information in the first place.

Based on the November 2016 comment deadline, there is reason to be hopeful that these proposed revisions might become effective in Tennessee as early as January 1, 2017.  But, stay tuned.

A former lawyer of Donald Trump speaks … but shouldn’t have

A long while ago I wrote about a lawyer’s public interview that should never have happened.  Here is a lawyer’s op-ed piece that should never happened, you can read the op-ed if you haven’t already at  this link at The Huffington Post.  Now, because such a disclaimer seems to be in order and beneficial to some extent, I say this as someone who contributed to Senator Sanders campaign during the primary and who has contributed to Secretary of State Clinton’s campaign more recently, but here is a lawyer publicly saying everything people who think Trump’s candidacy represents an existential threat to democracy  should want to hear injected into our current political discourse — but the introductory portions of it, the things that the author attempts to use to give it credence and relevance as someone with real insight into the person being criticized, demonstrate that, at least in this version, the piece should never have been written at all.

Taken at face value, the writer is a former lawyer of Trump’s and he appears to be licensed in a jurisdiction, New Jersey, that (like most jurisdictions) provides for a continuing obligation of confidentiality owed to former clients.  New Jersey’s RPC 1.9(c) provides:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Thus, the first few paragraphs of the piece set this lawyer up for trouble in terms of allegations that what he is doing — and to some extent what he clearly does (the limo conversation and one or two other conversations) — is breaching his duty of confidentiality to a former client.  The statements about things his former client said to him are certain being used to the former client’s disadvantage and certainly are not generally known pieces of information.

This lawyer needed both a good editor and a good legal adviser who could have told him that with some massaging and editing at the outset he could have still written the lengthy 4,000 words or so about the 20 problems with a lead in that acknowledged that he was obligated by ethics rules not to disclose anything he learned during the representation and that everything he is writing about is information he worked hard to track down through publicly-available sources but ….

Actually, once you remove that piece of it – there is no more need for this gentleman’s voice in the public discourse (other than the stakes involved in the electoral process).  It particularly seems unwise for this lawyer to have taken on this risk, particularly given the well-known litigious nature of the target of the column — who actually, for example, had a lawyer send a letter to Trump’s co-author of The Art of the Deal demanding a return of all royalties now that the co-author is speaking out negatively about Trump despite the fact that book came out almost 30 years ago.

California (where this gentleman is not licensed) just put out a formal ethics opinion driving home the point that its confidentiality requirements adhere even to information that has been publicly disclosed.  Worth noting is even under that opinion, California would appear to signal that the rest of this piece, the just-one-more-voice detailing criticisms from publicly-available sources would not be a violation of duties to the former client, as the California opinion explains about the lawyer’s perhaps unnecessary and unwise but not unethical disclosures about a former client’s arrest for DUI at a time after the representation had ceased.  The New Jersey Supreme Court, earlier this month, refrained from disciplining a NJ lawyer over the disclosure of confidential facts of a current client representation that were already public, so maybe this guy will get a pass?

More on that Persuader Rule decision out of Texas

I’ve written a good bit here about the problems that the Department of Labor’s proposed new Persuader Rule interpretations present and, most recently, wrote a little bit about a Texas federal judge’s ruling issuing a preliminary injunction about the rule going into effect.

My discussion of that ruling back at the end of June 2016 pales in comparison to the wonderful, and wonderfully thorough, piece that the fine folks at the ABA/BNA Lawyers’ Manual on Professional Conduct have put out today.  I’m going to start sounding like a broken record but the reporter who produced this treatment of the case, Joan Rogers, did a wonderful job with the subject-matter.  She really dug into the ruling, the history, and the implications and competing positions.  She was also kind enough to include a little bit of my thoughts into her piece as well, for which I’m truly grateful.

Bloomberg/BNA has made the story available outside of their subscription paywall, so you can go read the whole thing at this link.

Astonished and admonished.

So, on days like today, it is very difficult to have a forum (even one as small as this one) and not talk about truly important problems plaguing society, but no one comes here for my thoughts on those things so I’ll refrain.

Staying in my lane, here is another example of a problem lawyers are still having trouble grasping.  The exceptions to client confidentiality under RPC 1.6 (which can also be looked to as a way of justifying disclosure of information about representation of a former client under RPC 1.9) are not likely to give you permission to debate a dissatisfied client publicly, online.  This latest example of the problems arising for a lawyer who does so comes via the fine folks at the Legal Profession Blog who first wrote about it yesterday.

A D.C. lawyer has been informally admonished for trying to refute allegations published on the web by a former client.  The former client was complaining about overbilling, and the lawyer’s allegedly negligent/improper handling of a mediation for her.  Even though the DC Office of Disciplinary Counsel ultimately cleared the lawyer of the alleged violations as to fees and actual handling of the matter, the informal admonishment was in order because of what the lawyer disclosed online in responding to the former client’s complaints.

As the informal admonishment letter to the lawyer explains:

We do find, however, that in including detailed information about your client and the client’s case in your responses to her website postings, you violated your obligations under Rule 1.6 to protect her confidences and secrets — obligations that continued after your attorney-client relationship ended.  See Rule 1.6(g).  The information that you included in your responses to the client’s posts included information about the client and the client’s case that were protected under Rule 1.6.  Although you did not refer to the client by name, you included the name of the client’s employer, the dates on which certain events occurred, and other detailed information that could lead back to your former client.  You did not have the client’s consent to publish or disclose this information.  Nor did your disclosures fall within any of the exceptions to Rule 1.6, including the exception under 1.6(e)(3) that permits a lawyer to use or reveal client confidences or secrets “to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer . . .” (emphasis supplied).

Now, D.C.’s version of the Rule 1.6 “self-defense” exception makes the inability to do what this lawyer did more clear cut than in many other jurisdictions.  (It also didn’t help this lawyer’s cause, as the letter goes on to explain, that during the disciplinary investigation process, he went back to the online site to post information claiming he’d been exonerated — conduct the letter indicates was a violation of Rule 8.4(c) and that violation is wrapped into the admonishment as well.)  But even in jurisdictions that do not have the “formally instituted” language of D.C., lawyers face an uphill climb trying to respond to online complaints of former clients as I’ve mentioned before a time or two.

It is also worth remembering that, in most jurisdictions, unlike the “confidences and secrets” language still used in D.C., RPC 1.6 extends to any information regarding the representation of a client.  Remembering that, and the fact that a paragraph of the Comment to the rule most places alerts lawyers that the prohibition on revealing information “also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”

Although the Legal Profession Blog has a bad link, you can get the full letter to the D.C. lawyer here.  And, candidly, I’m a bit astonished by that.  Here, in Tennessee, this kind of informal discipline is private.  Not so in D.C.  Learn something new every day.

(Updated – it was brought to my attention that I also had provided a bad link to the letter.  I’ve corrected the link.  Apologies.)