Thanks to ESPN I’ve long known more about Johnny Manziel than I care to. But, this past week, I learned something I really should never know — why his agent decided to fire Manziel as his client. Up until this past week, Erik Burkhardt was Manziel’s agent. Burkhardt is a law school graduate, but from the best I can determine is not licensed to practice law in any state. (I will admit that I’ve only searched the rolls in the two states that would be most likely — Texas where the sports agency Burkhardt works for is officed and Florida where Burkhardt attended law school — but the fact that media outlets describe him as just a “law school graduate” leaves me comfortable that he’s not actually a lawyer. Someone can feel free to correct me if I’m wrong.)
You do not have to be a lawyer to be a registered agent with the NFL Players Association — as is also true in many sports leagues. But when it comes to professional athletes, who all can easily afford the services of even the attorneys in the U.S. who charge the highest of hourly rates, the notion of hiring agents who aren’t lawyers bound by all of our rules of ethics has always puzzled me a bit.
Manziel, who is currently dealing with a plethora of problems, and probably doesn’t care too much at the moment that his agent decided to publicly fire him, but since he hired a non-lawyer who doesn’t have to worry about RPC 1.6 and RPC 1.9, if he ever gets around to caring about there isn’t much he can do.
Because of the obligations of confidentiality that lawyers must work under, I’d like to think that no reputable attorney would issue such a press release — or any press release at all — to say they’d fired one of their clients. If they did, they could find themselves subject to discipline.
In Tennessee this past week, the Tennessee Supreme Court issued a pretty significant decision in a lawyer discipline case, not only because it was another example of the Court doing something relatively rare which is making a decision to increase discipline that had been consented to by the respondent and disciplinary counsel. (I’ve written about another such rare instance before.) The Vogel ruling will do doubt be most significant as precedent because it is the first decision of the Tennessee Supreme Court treating the issue of a lawyer’s sexual relationship with a client as a “material limitation” conflict under our RPC 1.7(a)(2). The sexual misconduct aspect of the case will, of course, also be the focus of most of the attendant publicity, but it shouldn’t be overlooked that the lawyer involved also was disciplined for violating his obligations of confidentiality as to a different client as well.
The lawyer’s violation in that regard was one that many lawyers might not immediately grasp as improper — it certainly wasn’t a press release sort of scenario. The lawyer had filed a motion to withdraw as counsel for a client and managed to do so in the appropriate fashion by not saying anything other than making reference to the fact that the rules required withdrawal. The trial judge granted the motion to withdraw. The former client then wrote a letter to the judge in the case complaining that she did not know why her lawyer had withdrawn. The judge then communicated to the lawyer and instructed him to send his former a client a letter to explain. The lawyer did so, but unfortunately and perhaps being more concerned with making sure the judge knew the lawyer had done as asked than focusing on the requirements of RPC 1.9, the lawyer copied the judge on the letter. The Tennessee Supreme Court did a fine job of explaining why that was not something RPC 1.9 permitted.
Had Johnny Manziel retained a lawyer as his agent, then RPC 1.9 most certainly would not have permitted that person to pile on this past week. A lawyer, if contacted by the press, might have confirmed the situation with a “Mr. Manziel and I have parted ways. I wish him all the best in the future.” But, a lawyer would never be able to ethically offer up the kind of “I’ve done all I can do, the guy won’t take my advice, and I don’t want anything that happens after this point to taint my own brand” statement Manziel’s agent put out into the world.