Texas Ethics Opinion Offers Stellar Example of Why You Ought to Have a Rule About This.

I’ve mentioned in the past the fact that Tennessee has a version of RPC 4.4(b) that directly addresses, and provides what I happen to think is the correct outcome, for what a lawyer is supposed to do about the receipt of someone else’s confidential information either inadvertently or via someone who isn’t authorized to have it in the first place.  Our RPC 4.4(b) goes further than the ABA Model Rule in two respects on this front in that: (1) it doesn’t just require notice as to inadvertently received information but makes clear that the lawyer has to either abide by any instructions as to what to do with the information or has to refrain from doing anything further with it until a court ruling can be obtained; and (2) we apply the same standard to information received unauthorizedly, e.g. a purloined document.  (Of course, I’ve also mentioned … repeatedly I admit … that the ABA Model Rules ought to be construed via Model Rule 1.15 to fill the gap on that second point, but … leading horses… and drinking water… and all that.

Earlier this month the State Bar of Texas Professional Ethics Committee issued Opinion 664 which “addresses” the following two questions:

1. Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they are in possession of confidential information taken from the opposing party without the opposing party’s knowledge or consent?

2.  Do lawyers violate the Texas Disciplinary Rules of Professional Conduct if they fail to notify an opposing party or its counsel that they have inadvertently received confidential information of the opposing party?

In a relatively short opinion that discusses almost exclusively the first question, the Texas Committee ultimately says, “hey look, we don’t have a rule on any of this… so you are kind of on your own.”  That’s not really a quote from the opinion, of course.  The real quote from the opinion is longer but the gist is pretty much exactly the same as my fake quote.

The opinion then goes on to hold out the possibility that if you have this fact scenario plus something more than maybe one or more other rules could be violated — like Texas’s equivalents of Model Rule 1.2(d) or or Model Rule 3.3(a) or Model Rule 4.1 or Model Rule 8.4(d).  Quoting the opinion this time for real:

It is possible that under some circumstances the failure to provide notice to opposing counsel, or take other action upon receipt of an opponent’s confidential information, might violate one or more of the Texas Disciplinary Rules requiring lawyers to be truthful and to avoid assisting or condoning criminal or fraudulent acts or denigrating the justice system or subverting the litigation process.

The opinion also reminds readers that the lawyer’s course of conduct in such circumstances must be well thought through because the risk of disqualification still lurks, but in the end the opinion largely concludes with something that is mostly a restatement of the problem for Texas lawyers (and of my general inability to get horses standing so close to water to drink since Texas does have a version of ABA Model Rule 1.15  and confidential information certainly is “property”):

The Texas Disciplinary Rules of Professional Conduct do not prescribe a specific course of conduct a lawyer must follow upon the unauthorized or inadvertent receipt of another party’s confidential information outside the normal course of discovery.

The insistence on referencing discovery and, thus, making it seem like this is solely a problem for litigators rather than all lawyers is also a bit unfortunate.

The “Now You Know” ad – quite savvy or absolutely horrible?

I had been hoping I could wait a bit to write about this topic but it’s making news via the ABA Journal online today, so I’ll just plow in with this rush job of a post because I’ve already heard discussions in Tennessee about this same ad and before someone more articulate than me blogs about it before I do.

Here’s a link to the article about the Georgia dust up:.

Here, if I’ve done this correctly should be able to watch the advertisement itself at this link — “Now You Know”

For those who can’t get the video to play or who didn’t read the Georgia story above, the gist is that the advertisement explains that the fact that someone has insurance to cover liability in say an auto accident case is something that gets withheld from the jury.  (For what it is worth to those outside Tennessee, in our state insurance coverage is not even discoverable in state court although it is, of course, in federal court.)

Now, based on someone asking me about it, I thought it was already running in Tennessee, but it may only be up in Georgia at the moment.

I’m not at all prepared to weigh in on whether it presents a problem under Georgia’s advertising rules, but I feel pretty comfortable saying that it would be difficult in Tennessee to make the case that the advertisement violates any of our ethics rules.  On the first front, it is hard to point directly at any aspect of the content that would be untruthful so challenges under RPC 7.1 or similar provisions would go nowhere.  Someone might argue that the ad puts a lawyer in the position of doing something “prejudicial to the administration of justice,” in violation of RPC 8.4(d) but the natural retort to that would be, well… is it … really?  And, I suspect that the firm running the advertisement would very much like to spend time debating whether the dissemination of the information is really prejudicial to the administration of justice or not.

If there is a provision that could be fruitfully pursued, I tend to think it would be RPC 3.6(a) which prohibits lawyers from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  That rule is usually thought of as being designed to protect against publicity that would impact a particular matter, but a statement like this that would apply to all matters to some extent might just be capable of being argued to have sufficient deleterious impact to any one matter to trigger the rule.

I tend to believe that the best response to speech though is more speech, so what I’d really like to see is a defense-oriented firm cut an ad to educate the public about something like the collateral source rule.  Someone could even try to argue that RPC 3.6(c) which permits some responsive statements in order to “protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”

It’d be interesting to see that play out and whether  the firm strenuously defending this current advertisement would see any problems with a defense-oriented counterpoint.