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.

 

Alaska you a question about read receipts.

Sorry, bad and lazy pun for a title.  As loyal readers of the site know, I like to write from time-to-time about formal ethics opinions issued by state regulatory bodies.  A recent one caught my attention at first for its — “I cannot believe someone even had to ask feel.”  But, ultimately after I read it all the way through, it intrigued me as a gateway to raise another, related and I happen to think a bit more interesting question.

With that as prologue, on October 26, 2016, the Alaska Bar Association Board of Governors approved Ethics Opinion 2016-1 for release.  The opinion tackles the following question:

Is it ethically permissible for a lawyer to use a “web bug” or other tracking device to track the location and use of emails and documents sent to opposing counsel?

The opinion gets the answer to that question undoubtedly correct by saying that, no, it isn’t and that doing something like that violates Alaska’s RPC 8.4 on generally deceptive conduct and is also problematic because it can undercut the receiving lawyer’s ability to comply with her own obligations under RPC 1.6 to attempt to protect information related to her representation of her client as confidential.

To give a better sense of the kind of technology being discussed, the Opinion explains:

One commercial provider of this web bug service advertises that users may track emails “invisibly” (i.e., without the recipient’s knowledge) and may also track, among other details:

  • when the email was opened;
  • how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities);
  • how many times the email was opened;
  • whether the recipient opened attachments to the email;
  • how long the attachment (or a page of the attachment) was reviewed;
  • whether and when the subject email or attachment was forwarded; and
  • the rough geographical location of the recipient.

Yikes, right.  That’s a pretty dogged little bug and one that would provide a significant, surreptitious window into the work of the lawyer on the other side.  When I saw the headlines at places like the ABA Journal online about the issuance of this opinion, I jumped to the incorrect conclusion that the lawyer requesting the opinion was a lawyer looking to use this kind of software feature.  At that point, I was surprised anyone would need to ask to know that you couldn’t do this, but the Opinion explains that the request actually came from someone who received an email with one of these “web bugs.”  Thus, the request for a definitive opinion of the wrongful nature of the conduct makes more sense.  (And, for those immediately wondering, apparently some email providers do have countermeasures in place that notify you about some of these “webbugs” and that has to be how the receiving lawyer knew what had transpired.)

I think the opinion is pretty well done and reaches the obvious and correct solution.  It offers some interesting discussion about how, even if the webbug were not surreptitious but actually announced itself, the use of it by the sending lawyer could still be problematic as invasive on the attorney-client relationship through, among other things, potentially revealing otherwise work-product protected information and even endangering the whereabouts of clients who are trying to stay hidden.

What intrigued me enough to write this piece though was a tangential topic that is raised a bit in a footnote to the Opinion, the ethical issues surrounding generic “read receipts” on emails.  Specifically, in footnote 6, the Opinion says:

The use of “delivery receipts” and “read receipts” through Outlook and similar email services does not intrude upon the attorney’s work product or track the use of a document, and therefore is not at issue here.  Those types of receipts are functionally comparable to the receipt one may receive from the use of certified mail.

That last part may well be true — that these are digitally the functional equivalents of a return receipts on certified mail — but I have a slightly different view on this topic.  I certainly do not contend it is unethical for attorneys to send emails to other attorneys that include a request for a “read receipt,” but I uniformly refuse to comply when I get such “read receipt” requests, and I do so because of my obligations under the ethics rules.

If I’m getting an email only because I am an attorney representing a client, then information about when I read that email – how close to when you sent it to me or how far away from when you sent it to me – is “information related to the representation of my client,” and I see no need to do anything other than act to reasonably safeguard that information and decline the read receipt request.

I doubt anyone would ever get disciplined for doing otherwise as a violation of RPC 1.6, but I’m curious as to whether there are others reading this who conduct themselves the same way and have the same view of the “read receipt” issue.

 

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.

South Carolina ethics opinion on RPC 8.3(a) – right answer but not the best articulation of the rationale

In July, a new ethics advisory opinion was issued out of South Carolina to address a question related to the obligation to report the misconduct of another lawyer, specifically what sort of timing is required.

South Carolina Ethics Advisory Opinion 16-04 addresses an inquiry from a lawyer (Lawyer A) who believes he has knowledge of a violation of RPC 3.3 by opposing counsel in litigation (Lawyer B) but is worried about the negative ramifications to his client if he makes a disciplinary report while the litigation is ongoing.  The South Carolina opinion offers the correct conclusion –“Lawyer A may wait until the conclusion of the case, or appeal, before making the report against Lawyer B if Lawyer A determines that a later report would be in the best interest of the client.”

The South Carolina opinion also correctly acknowledges in its discussion that Lawyer A’s client needs to consent to the report for it to even happen, but manages to truly miss an opportunity (in my opinion at least) to provide a thorough, and thoroughly helpful, treatment of why the fact that the ethics rules essentially give a veto to Lawyer A’s client must obviously mean that Lawyer A’s client’s interests could also justify delay in making a report.

After briefly acknowledging that a more than 10-year old Louisiana case represents the prevailing view that a report necessary under RPC 8.3 should be made “promptly,” the South Carolina opinion explains:

[It] believes it is appropriate for a lawyer to consider any potential adverse impact to his or client in determining the timing of a report against another lawyer. It is the opinion of this Committee that if Lawyer A believes the conduct of Lawyer B raises a “substantial question as to [Lawyer B’s] honesty, trustworthiness or fitness as a lawyer in other respects,” then Lawyer A must report such misconduct to the disciplinary authority. Because the Rule is silent regarding the timing of such report, Lawyer A may wait until the conclusion of the matter if Lawyer A determines immediate reporting may hurt the client. However, the misconduct should be reported “promptly” at the conclusion of the litigation or appeal.

I shouldn’t complain too strongly because, at least this opinion manages to explicitly acknowledge the need for client consent in the first place, and also as mentioned gets the answer right, but it still reads to me like a missed opportunity.  Resting everything on the idea that the rule is simply silent on timing is much less persuasive than elaborating on the natural way in which the necessary discussion between Lawyer A and his client about whether the client will let Lawyer A make a report at all can lead to a decision that the client will provide consent but only for a report to be made at a future time.

South Carolina has versions of RPC 8.3(b) and (d) that are substantively identical to the ABA Model Rule 8.3(a) and (c).  It also has a relevant, identical paragraph in its Comment to the Rule.  The two subsections of the rule, as confirmed by the comment language, work together to explain that, in a situation in which a lawyer knows of another lawyer’s violation of the ethics rules that raises substantial questions as to the other lawyer’s honesty, trustworthiness, or fitness to practice law, the lawyer has an ethical obligation to report the other lawyer.  And, that obligation is one for which the lawyer can himself be disciplined if he fails to make such a report.  But, and it is an important “but,” one that is quite often disregarded by lawyers and disciplinary counsel alike — Model Rule 3.8(c) [South Carolina’s RPC 8.3(d)] indicates that there is no such obligation to report (and thus there can be no punishment for remaining silent) if the report would require the lawyer to disclose RPC 1.6 information.  In any jurisdiction in which the scope of confidentiality is as broad as it is under the ABA Model Rules, this is the kind of exception with the potential to swallow the rule over which ethics nerds can argue for hours.

Accordingly, Comment [2] to RPC 8.3 in South Carolina (just like the ABA Model) explains that a lawyer ought to “encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.  Thus, the South Carolina opinion could have gone into greater detail to explain that the only way to make a report about Lawyer B’s violation of RPC 3.3 would be to disclose information about Lawyer A’s representation of his own client and, thus, Lawyer A would have to seek and obtain his client’s consent before making the report.

The South Carolina opinion then could have turned to how such a conversation might go . . .  Lawyer A would explain the problem, the ethical obligation, and the client’s ability to say no to the report.  The client would likely ask Lawyer A questions about what the report would mean for the case and, as part of that, Lawyer A and client could well discuss and reach the conclusion that if the disclosure and report doesn’t happen until after the case is over, that it would make certain not to prejudice the client’s matter.  Thus, Lawyer A could fulfill the obligation to encourage the client to consent, and the client could provide the necessary consent to make the report but condition it upon the timing of the report.

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?

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.)

Radiolab does the “buried bodies” case

Over the last couple of years, like a lot of other people, I have gotten very into listening to podcasts on my way to and from work and on car trips.  Most of what I spend my time listening to is in the comedic vein (MBMBAM, Judge John Hodgman, You Talking U2 to Me), but I listen to some other shows that don’t fall into that category, one of which is Radiolab.  My 11-year old son really, really likes Radiolab, which helps a good bit too in terms of finding time to listen.

Radiolab is predominantly geared toward exploring scientific issues, but the latest episode of the podcast takes on the famous “Buried Bodies” case.  That case serves often, especially, in legal ethics courses taught in law school as the starkest example of what lawyers have to be prepared to do in order to fulfill their ethical obligation of confidentiality to clients.  It is certainly the height of absurdity for me to think I can drive any traffic to Radiolab, but if you don’t otherwise know how to get to it, you can download the episode from this link.

For those of us who have a law practice that involves representing and advising lawyers, or those who follow legal ethics issues generally, the only truly new aspect of the story in the podcast is getting to hear from the mother of one of the missing girls.  I will not explicitly spoil that for anyone, but you probably don’t need many guesses to answer the question of what she thinks of the duty of confidentiality.

Tennessee,like many other jurisdictions, casts the net of lawyer-client confidentiality broadly to cover all “information relating to the representation of a client.”  We differ from a number of other jurisdictions, however, in that we require lawyers to disclose confidential information “to prevent reasonably certain death or substantial bodily harm,” rather than merely permit a lawyer to make a disclosure for that purpose as the ABA Model Rules do.  But, as Radiolab covers well, that kind of provision does not offer a lawyer a way out when the information relates not only to the representation of the client but to people who are already dead.

RPC 1.6 confidentiality is a concept that is difficult enough for some lawyers to grasp given how broadly the net is cast, and that it makes no explicit exception for information that has already been made public, so it is no surprise when regular people do not understand its full scope.

Yet, it doesn’t help when, in many respects, the duty is so frequently cast aside on mundane matters in that lawyers talk publicly and post publicly about aspects of their representation of clients undoubtedly without having gotten their client’s consent to do so.  I think how confidentiality continues or changes over the next decade or so ought to be fascinating to watch given the differences that already exist between generations with respect to social media and how that impacts whether you do or do not share everything about your life online.