Okay. It helps to get into my mindset while writing this if you hear the title in the voice of the musical snippet “For British Eyes Only” from Arrested Development. If you can’t make the frame of reference, then so be it. We’ll have to work to find common ground all the same. (Actually, for the briefest of moments I forgot that we live in 2019 when everything is but a link away, so here is what you want the title of the post to sound like: clip.)
Ethics opinions are interesting creatures. They provide a group (usually) of people with law degrees with an opportunity to elaborate on otherwise potentially unsettled (or even unsettling) questions of application of the ethics rules. As a result, they can be used to set a trend in one direction or another toward either expanding or limiting the scope of a rule.
Usually, they are most influential when they involve an interpretation of the standard version of a particular ethics rule. In Tennessee, as I’ve written about a few times now, formal ethics opinions are being used (for better or worse) to severely expand the scope of what RPC 5.6 means in terms of when an agreement entered into in connection with the settlement of client’s matter will be deemed to involve an improper restriction on the attorney’s right to practice. Those opinions are potentially of particular moment because they are interpreting language that is pretty widespread in its uniformity: “A lawyer shall not participate in offering or making … (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” Over the course of a few opinions now, the Tennessee Board of Professional Responsibility has added layer upon layer of kinds of provisions that could be in a settlement agreement for a number of potentially legitimate reasons but that are being ruled out because they are being treated as an improper restriction under RPC 5.6.
A recent ethics opinion in Ohio addressing another variation of same seems to be rowing in the same direction as it concluded that a plaintiff’s lawyer could not be asked to commit to the fact that they did not actually have any other clients at the moment of settlement with similar claims against the settling defendant. You can read that one here.
So, I was briefly intrigued when I saw a tweet about a proposed ethics opinion in North Carolina that was concluding that a lawyer could ethically agree to an “attorney’s eyes only” restriction on the production of certain documents in a case without first getting their client’s consent to such an arrangement. That seemed like a very difficult position to justify and it seemed like it was something of a polar opposite of what is going on in the thread of Tennessee ethics opinions about RPC 5.6. The 5.6 series of opinions is almost going out of its way to find conflicts between an attorney’s interest and their client’s interest in order to shoehorn the situations into RPC 5.6. Yet, here was a nearby state proclaiming that something that seemed squarely like a real conflict for the lawyer would be kosher even in the absence of seeking client consent.
(Admittedly, my initial reaction also was to be skeptical about the conclusion. I’ve certainly encountered my fair share of AEO provisions in protective orders but I’ve never signed off on one without running it by the client so that they can decide in advance if they are going to have a problem with the arrangement. Seems like a pretty clear creation of a conflict of real importance to the attorney-client relationship where the client should be signing off on accepting such a situation before it transpires.)
But, in reading the proposed opinion, which you can access here,what I learned is that it leans heavily upon non-standard language in North Carolina’s rules that provides strong justification for the conclusion. Specifically, it relies upon the fact that North Carolina has divided its RPC 1.2 into a number of subparts, including an (a)(3) that gives the lawyer the ability to “exercise his or her professional judgment to waive or fail to assert a right or position of the client.”
On its face, the existence of such a rule could provide grounds to think this is a correct conclusion, but, if you really think about it, that provision if it is without limit is … I believe the technical, legal term would be BANANAS!
Surely, it was never intended to impact things that are vital to the representation and for which the client should have final say. Right? I mean, on its face, it would allow a lawyer to exercise professional judgment to waive the client in a criminal case’s right to choose not to testify.
To the extent the comments provide us with any insight about what was intended it seems pretty important to note that paragraph [1] of the Comment provides only one elaboration on the concept: “For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.” That is both an innocuous example of the use of the rule and one that seems pretty redundant for RPC 1.2(a)(3) given that North Carolina’s RPC 1.2(a)(2) also addresses that kind of situation by saying: “A lawyer does not violate this rule by acceding to reasonable requests of opposing counsel that do not prejudice the rights of a client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.”