Many years ago now, I wrote a post about a lawyer improperly making a public announcement that they were no longer representing a prominent client. On the cusp of the United States beginning a journey caused by repeating one of its gravest electoral mistakes, I will not repeat that post in its entirety. Instead, I will simply acknowledge that something quite similar has happened again with a lawyer taking to LinkedIn (and then BlueSky) to announce that they were firing Meta as a client because of the latest turn Mark Zuckerberg has taken in the direction of being generally awful.
I will repeat, however, because even among legal ethicists there seems to be a weird disconnect over why doing what this lawyer did would violate Model Rule 1.9 unless he had gotten permission of Meta to speak publicly, a lawyer’s reasons for discontinuing a client representation is information related to the representation. Thus, saying this about a now former client is contrary to the rule on confidentiality. I elaborated a bit more cogently on these concepts in another post I wrote many years ago about a former lawyer of that electoral mistake who published an op-ed that clearly would violate Model Rule 1.9.
I, for one, did not even know that particular lawyer represented Meta on anything until the LinkedIn/BlueSky (Yay for BlueSky! Find me @bsfaughnan.bsky.social) posts made their way to my eyes. From a commonsense perspective, that sort of makes the point on why that is information related to the representation. But, more structurally, if the reason for ending the representation was not itself generally within the protections of confidentiality outlined, then lawyers wouldn’t have to be so careful when withdrawing from representations in court to seek to avoid disclosing too much information as is outlined and explained in both the Comment to Model Rule 1.6 and the Comment to Model Rule 1.16 as well as quite a few ethics opinions from an array of jurisdictions.
Now the lawyer in question is a California lawyer and, as every California lawyer will tell you (repeatedly) it deals with confidentiality differently because of an applicable statutory provision. I imagine it is pretty unlikely that Meta will care enough about this to pursue any sort of complaint against the lawyer, but, if it does, then my sense is that some California lawyers will say it was a violation and other California lawyers will disagree.
However, there have long been, and will continue to be, legitimate questions about whether the broad scope of confidentiality imposed on lawyers through provisions based on the ABA Model Rule is still properly drawn.
Such questions may become even more pointed if the kind of client bullying over political issues that Coinbase recently engaged in becomes a trend. You can read the full article here, but the short version is that the CEO of what is, essentially, a company reliant upon the viability of cryptocurrency held a press conference to announce that it would not fire any of its law firms that hire anyone who served in the “anti-crypto” Biden Administration.
Now, here’s the thing . . . as much as I am not a fan of cryptocurrency, Coinbase, or the idea of trying to tell law firms which lawyers they should or shouldn’t hire, clients have always had the right to use whatever criteria they want in deciding who to engage as their paid lawyers and, thus, they also have the absolute right to go out in front of the biggest microphone they want and say exactly what those criteria will be. As a legal recruiter quoted in the article points out, clients traditionally have not made such threats public. but that doesn’t mean the conduct becomes more problematic when it is transparent and public.
The fact that clients can make such a statement does not, however, mean that lawyers should be extended additional freedom to speak out against their own current or former clients.