The ethics of putting together an unenforceable contract.

It is still astounding (as well as deeply dispiriting) that the context of the discussion I’m about to launch is the work of White House Counsel but this is the world we currently occupy.  You may very well have read this fascinating The Washington Post article by now released in connection with the ongoing news story of a former White House staffer who repeatedly secretly taped conversations – including her own firing in The Situation Room — inside The White House and what those recordings may reveal about whether that person says even more outrageous things in private than the outrageous things he says in public, as well as whether that person is suffering from a decline in his mental faculties.

Because tackling the notion of the ethics of representing a client with diminished capacity if that client happens to be – at least theoretically – the most powerful politician on the planet – is too depressing to tackle, I’m not writing about that today.  If you want to delve into those issues, your starting point is ABA Model Rule 1.14.

Instead I want to talk about [as the title of the post telegraphed] what can be a thorny ethics issue even in much more pedestrian contexts: is it ethical for a lawyer to draft and create a contract for a client’s use that the lawyer knows to be unenforceable?

As the topic du jour the context of the question is requiring staff at The White House – public employees — to sign non-disclosure agreements including provisions that would prohibit them from disparaging the 45th President of the United States.  Seemingly everyone acknowledges that given the nature of public employment, democracy, the at-least-still-for-the-time-being cherished concept of transparency in government, and numerous other federal laws such an agreement is obviously and undisputedly unenforceable.  The article describes what the media has been told about the events:

A number of White House aides were urged to sign NDAs in early 2017 by White House Counsel Donald McGahn, according to current and former aides, who requested anonymity to discuss internal West Wing deliberations. Trump was obsessed with leaks to the news media and repeatedly demanded that McGahn draft the agreement, the aides said.

Initially, McGahn told Trump he would not draft or give aides the NDAs because they were not enforceable, White House officials said. But in the end, McGahn created a document that said aides would not divulge any confidential or nonpublic information to any person outside the building at any time, according to three people who signed it.

Other media outlets have reported that McGahn may have convinced people to actually sign the document by reassuring them that it was unenforceable.  One of the reasons the question is important ethically is that if you create a contract for a client that you know is unenforceable, they will likely still try to use that contract in the future against people and cause them harm (at the very least economic harm and inconvenience associated with defending a lawsuit seeking to claim a breach of the unenforceable contract).  Media reports today indicate that something like this is now being undertaken – although admittedly apparently based on an NDA that was required by the campaign and not the actual government.

My opinion about the answer to the question of whether any such conduct by a lawyer is unethical is, unfortunately, less than equivocal.  At heart, it will have to turn on a situation-by-situation analysis.  Using the Model Rules to explain, this is because there is not exactly a specific rule outside of the litigation context that flatly prohibits a lawyer from assisting a client in pursuing a frivolous position in negotiation of a document in the same way that there is such a rule prohibiting the pursuit of frivolous claims in litigation.

What is available is a collection of rules that would need to be sifted through and applied to the circumstances to reach a conclusion about the lawyer’s role in assisting a client in getting someone to agree to a provision in a contract (or an entire contract) that is known to be unenforceable.  Those rules are:

RPC 1.2(d):  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

RPC 1.16(a):  … a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law ….

RPC 4.1:  In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

RPC 4.3:  In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. . . . The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

RPC 4.4(a):  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ….

RPC 8.4(d):  It is professional misconduct for a lawyer to … engage in conduct that is prejudicial to the administration of justice.

Assuming that, at all times in dealing with the members of staff being asked to sign the contracts, White House counsel was truthful about the situation, then the most troublesome provisions from the list above would be RPC 4.4(a) as there seems no “substantial” purpose other than to burden these people to seek to have them agree to an unenforceable contract — particularly where one of the grounds of unenforceability in this scenario is a constitutional issue.

In other circumstances, for example, where the unenforceable piece of the contract puzzle is just one part of an otherwise enforceable contract or, on the other extreme, where the contract itself is unenforceable because its purpose is inherently criminal or illegal, then the interweaving of these rules may provide a clearer outcome.

Crossing the Line in Maine

No, the title is not a veiled attempt to publicly-shame Maine’s Governor for his latest act of public ridiculousness… or is it?  This is instead a short post discussing conduct that I posit is a lot more common than you might think and that resulted recently in a very low-level of discipline against a Maine attorney.

In the middle of December 2016, a criminal defense lawyer in Maine received an admonition for crossing the line when interviewing an unrepresented witness by providing legal advice in violation of Maine’s version of ABA Model Rule 4.3.  Rule 4.3 governs a lawyer’s communications with someone who is not represented by counsel.  That is the rule that, among other things, limits a lawyer’s advice to an unrepresented person.  Many folks remember the rule as foreclosing any advice but the advice to “get a lawyer,” but the rule actually only prohibits other legal advice if there is a risk that the interests of the unrepresented person are in conflict with those of the lawyer’s client.

In the Maine matter, the defense lawyer communicated with the victim in a domestic violence assault case against his client.  The short opinion regarding the admonition stresses that the fact of the communication itself, as well as several of the topics discussed, were perfectly appropriate since the victim was willing to talk with the defense lawyer.  Where the Maine lawyer crossed the line was providing his opinion to her about whether “she could avoid testifying by invoking her Fifth Amendment rights against self-incrimination.”  Because the victim had interests adverse to his client’s, the Maine attorney could only ethically respond to any questions about Fifth Amendment rights by telling her that she would need to get her own attorney to receive that kind of advice.

Even in less emotionally-charged circumstances than would be expected to be true in a domestic violence matter, navigating an interview of an unrepresented witness and complying with Rule 4.3 can be difficult.  Not only do people often want to take advantage of having a lawyer’s ear to seek advice but often those same people have no idea that they are putting a lawyer in a jam by asking.  Lawyers, being human  beings, can struggle with how to be inoffensive in declining to answer what the witness may view as a simple question rather than an ethical land mine.  The situation for the lawyer can be further complicated by having to work through whether or not the client’s interests and the witness’s interests are sufficiently aligned for the lawyer to be able to actually offer advice beyond “get a lawyer.”

For both of those reasons, I suspect that this kind of violation happens at a level of frequency that far exceeds the number of cases where you see discipline meted out.  Often, there never comes any reason for anyone to ever complain.  Often, anyone who might complain never knows the interaction took place.  Sometimes, the person communicating with the lawyer ends up benefiting from getting the free legal advice.

The Maine admonition came about only because the district attorney prosecuting the domestic violence case filed the grievance; the opinion makes clear that the DA had spoken to the victim shortly before the Maine attorney interviewed the victim, the fact that he filed the complaint strongly implies that he likely talked to the victim again after the Maine attorney spoke with her.

 

A duty to ask: Another of the unintended consequences of unbundling

Yesterday, the ABA Standing Committee on Ethics and Professional Responsibility issued its latest ethics opinion, Formal Opinion 472, “Communication with Person Receiving Limited-Scope Legal Services.”  On the whole, it isn’t a bad opinion.  It is well-constructed, addresses multiple topics that seem ripe for discussion, and clearly is the product of a lot of thought and consideration.

The main topic it seeks to address involves a situation that doesn’t fit nicely into traditional models – the use of the authority under RPC 1.2(c) to provide limited scope services to a client to provide what are usually referred to as “unbundled” legal services and whether/when a lawyer on the other side can treat the litigant as unrepresented for purposes of RPC 4.3 versus when RPC 4.2 applies.

RPC 1.2(c) wasn’t originally a rule designed to necessarily encourage unbundling, especially not in the litigation context, but that is a place that it has gone.  As the ABA Formal Opinion explains:

Limited-scope representation may include assisting a litigant who is appearing before a tribunal pro se, by drafting or reviewing one or more documents to be submitted in the proceeding.  “This is a form of ‘unbundling’ of legal services, whereby a lawyer performs only specific, limited tasks instead of handling all aspects of a matter.”

In Tennessee, there was a proposal a few years ago that would have involved rule changes on the civil procedure side to try to address the reality of problems with limited scope representations in litigation proceedings.  Concerns were expressed that judges might not let lawyers withdraw in accordance with terms of a limited scope representation. If memory serves, the proposal would have required lawyers in such situations to file a notice of appearance that revealed that the representation essentially had an expiration date and then would have permitted the lawyer to file a notice of withdrawal that the court would have no discretion to overrule once complete.  There were voices in opposition to aspects of the proposed rule, ironically, to make the point that it would truly make recipients of such services into second class citizens as the party on the other side would be fully aware that they could likely paper to death the lawyer in the short term to levy pressure or could simply hunker down and wait the inevitable withdrawal.  It probably was a bad rule and ultimately was not adopted.

This ABA opinion probably will be viewed in the future as a bad opinion, and I already wish it hadn’t been issued in this form.  Usually an ethics opinion that exhorts the fact that the ethics rules are “rules of reason and must be construed and applied ‘with reference to the purposes of legal representation and the law itself,'” can be counted upon to reach a practical, well-measured result.

I have no doubt the authors believe they did so here, but they squarely put the onus on the attorney who is undertaking a traditional representation model and placing the burden there is the wrong outcome under the opinion’s own terms.

In addition to calling upon the exhortation from [14] Scope above, the opinion hangs its hat on being just a repetition of the warning in Comment [8] to RPC 4.2 that a lawyer cannot circumvent RPC 4.2’s prohibition by “closing eyes to the obvious.”  Yet, the framing doesn’t track that warning at all.

In describing circumstances it says are enough for knowledge of representation to be inferred, the opinion offers:

[W]hen a lawyer representing a client faces what appears to be a pro se opposing party who has filed a pleading that appears to have been prepared by a lawyer or when a lawyer representing a client in a transaction is negotiating an agreement with what appears to be a pro se person who presents an agreement or a counteroffer that appears to have been prepared by a lawyer.

How would proceeding on the basis that you don’t actually “know” that there is a lawyer involved behind-the-scenes in either scenario “closing eyes to the obvious?”

The only obvious thing is that the “eye of the beholder” will make all the difference.  Today, it’s already fairly easy for a person, without a law license, to use the internet to find forms and pleadings of all sorts from other cases and, with some modification, attempt to use them for their own purposes.  That’s true even if you don’t bring into the mix companies that offer such forms for a fee.  When is it going to appear there is a lawyer involved as opposed to when it is going to appear that someone is buying forms or cannibalizing materials from the internet?

If the endeavor of trying to reconcile this “gap” where RPC 1.2, 4.2, and 4.3 intersect was to be undertaken “with reference to the purposes of legal representation,” then (if you didn’t already figure this out) I think the answer should clearly have been different.

The purpose of permitting unbundling as a good thing is inherently the idea that some access to the assistance of a lawyer is better than no access.  Half a loaf and all that.  Thus, unbundling necessarily contemplates that the client will have to navigate certain aspects of the matter — including communicating with counsel for the other side — on their own.  So, why shouldn’t the onus be placed on the person receiving unbundled services (with the guidance of their limited scope lawyer to make a choice — either (a) get the benefit of counsel’s involvement on a behind-the-scenes basis in exchange for the burden of being fair game for direct communication; or (b) get the benefit of being shielded from direct communication with counsel for the opposing party in exchange for the burden that your lawyer must come forward, no matter how limited the scope, and communicate forthrightly about that involvement?