Bad ethics opinion or worst ethics opinion? Tennessee 2014-F-158 edition

Actually, unlike some other posts in this category, this title’s not even close to reflecting a serious question being asked.  Slapping that tile on this post is more of a crutch.  The ethics opinion I want to discuss here is miles away from even being in the conversation among the worst ethics opinions.  It really isn’t even a truly “bad” ethics opinion overall.   It gets the answers to the questions it addresses mostly correct, but what makes it bad is that it does two really awful things on the path to the answers it offers and those awful things deserve some discussion.

I somehow missed the release of this ethics opinion altogether when it came out back in 2014.  I have only ended up paying attention to it in connection with a seminar I am doing later this week for the Tennessee Bankers Association on ethical issues in estate and trust administration.  I am going to go out on a limb and guess that the Venn diagram of people who will read this post before Friday and people who will be in attendance at that seminar on Friday has a small enough overlap that I’m not spoiling part of Friday’s presentation by sharing my thoughts about this now.

2014-F-158 begins by establishing that the question it seeks to address is:

Can a lawyer who represented a testator refuse to honor a court order or subpoena to disclose, prior to the client’s death, a Will or other testamentary document executed when the testator was competent on the basis that the document is protected against disclosure by the attorney-client privilege or confidentiality.

After explaining as background that what has prompted the question is a situation in which a court appoints an attorney to serve in some capacity to represent someone now suffering from dementia or Alzheimer’s, a someone who is embroiled in a dispute or litigation over whether that someone can manage their funds or even their own personal decisions.  The appointed attorney now turns their attention to getting that someone’s estate planning lawyer to hand over the person’s last will and testament.

2014-F-158 quickly pivots to break the lengthy question above into three or four shorter, successive questions.  If all you read was the first page of the opinion, you’d make out okay as you’d know that (1) if someone requests the will from the lawyer in a judicial proceeding, and the lawyer has a non-frivolous argument to make that the will is protected from disclosure by the attorney-client privilege or other law, the lawyer is ethically obligated to raise the objection; (2) whether someone appointed by the Court as a guardian ad litem, attorney ad litem, or conservator for the lawyer’s client has the power to waive privilege or otherwise can obtain the will based on the status of their appointment without jeopardizing privilege is question of law outside the opining authority; and (3) if the situation is that a court order requiring production has been entered, then the lawyer will have to comply with the court order.

The two problems that give me such pause only crop up if you plow on and read the “Discussion” section where the BPR “shows its work” to explain why those are the correct answers to those particular questions.  The Discussion section is where the BPR conflates a subpoena with a court order and undermines the scope of client confidentiality under RPC 1.6 and RPC 1.9.

The conflation of a court order, which is explicitly addressed in RPC 1.6 as overriding the obligation of client confidentiality, and a subpoena which can be issued under the signature of any attorney happens repeatedly in the discussion section.  In the first sentence of the discussion, 2014-F-158 declares that nothing in the ethics rules or in our rules of disciplinary enforcement gives the BPR the power to “opine or authorize lawyers to disregard or refuse to honor an order of a court or subpoena.”  Later, the opinion states that if the Will is sought by compulsion of law “whether by order of the court, subpoena, or otherwise,”  then the lawyer has to comply with RPC 1.6(c)(2) – the exception to confidentiality in Tennessee that makes disclosure of confidential information mandatory in order to comply with a court order or other law — and a subpoena of course is neither a court order nor other law.  The opinion then succinctly repeats the same error at a later point in the opinion in a sentence that is just a call back to one of the earlier conclusions.

Exacerbating the problem of its willingness to elevate a subpoena to too lofty of a perch, the opinion does some real potential damage to the scope of Tennessee lawyers’ duty of confidentiality under RPC 1.6.  It does this through its interpretation of the language in Comment [3] to RPC 1.6.  The relevant sentence it interprets is:

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.

That sentence can be read as having an invisible “also” before the word “applies” or an invisible “only” before the word “applies.”  Unfortunately, the BPR in 2014-F-158 appears to choose “only.”  The result leaves the reader with the belief that an attorney cannot, in response to a subpoena, push back and move to quash or alter the subpoena on the basis that it would require disclosure of RPC 1.6 information.  If 2014-F-158 is correct, RPC 1.6 confidentiality alone would not be sufficient, and only actual attorney-client privilege grounds for objection (or attorney work-product) would be sufficient.  I think that is incorrect, and I expect I will continue to advise lawyers to do otherwise and make sure that, unless they have express consent from their client, they only turn materials that include information related to their representation of a client over in response to a court order.

On the RPC 1.6 issue, while I strongly disagree with the reading, at least there is some basis for the interpretation.  We are, after all, engaged in an exercise in choosing which of two invisible words to pretend is present in the sentence.

When the opinion turns its discussion of the questions addressed to situations in which what has to be evaluated are the duties owed to a former client, 2014-F-158 manages to disregard and do damage to the careful language in Comment [8a] of RPC 1.9 that attempts to lay out what “generally known” means by turning that paragraph into something that is just shorthand for “matter of public record.”

The BPR does this by saying that if “the Will or other testamentary document of a former client is part of the public record, the document is ‘generally known’ and may be revealed or provided by the lawyer.” The BPR then provides a cite to, and in a footnote fully quotes, the language of that comment which demonstrates that the simplified reading isn’t justifiable:

[8a]  Whether information is generally known depends on all circumstances relevant in obtaining the information.  Information contained in books or records in public libraries, public-record depositaries, such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access.  Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense.  Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.  A lawyer may not, however, justify adverse use or disclosure of client information simply because the information has become known to third persons, if it is not otherwise generally known.  Even if permitted to disclose information relating to a former client’s representation, a lawyer should not do so unnecessarily.

2014-F-158 also ignores the exhortation that makes up the very last sentence of that comment about not making such a permitted disclosure unnecessarily.  What might have been a very useful, and instructive, discussion of this issue would have been to explore how turning over generally known information in response to a mere request would likely not be necessary in most circumstances whereas, the effort associated with making someone pursuing the will by subpoena have to obtain a court order might not be a needed exercise if the will is generally known information.

Unfortunately, we didn’t get that kind of analysis.  Instead, we got “guidance” that could lead a Tennessee lawyer to believe that just because something might filed in the public record — even if it is in a court that has no online access and that requires someone to pay $1.00 a page for copies of court filings — then it is “generally known.”