Legal ethics

Is North Carolina’s path the future of RPC 1.6?

Okay, so in the interest of full transparency, what I really wanted to write about is the fact that we have a new entrant in the running for “Who is the worst of the Trump lawyers out there?” competition. Among the many things that have come out of the work of the January 6 Committee is information about a lawyer who appears to have flouted a basketful of ethics rules while “representing” Cassidy Hutchinson but being paid by someone else altogether.

I didn’t move quickly enough, however, and between Kathleen Clark and this Twitter thread and Stacie Rosenzweig and her excellent blog post… the ground has been covered better than I would have done.

Before you go immerse yourselves in that content though, let me offer up what I’m writing about as an alternative.

Over the last two weeks, I performed my three-hour “Ethics Roadshow” 4 times in 4 different cities in Tennessee. One of the best portions of it in terms of interactivity and discussion was walking folks through a hypothetical involving online criticism and a lawyer trying to respond to it.

I made the scenario over-the-top to make it easier to get folks talking of course so it went like this:

Imagine a Rock City, Tennessee lawyer who has had a data breach of his document system and it has resulted in the actual loss of client documents. One of the lawyer’s clients in a divorce case goes on Yelp and writes a negative review of the lawyer, going on a long tirade to say that the lawyer was incompetent, unhelpful, and that with the loss of documents the representation was ultimately “worthless.”

The lawyer jumps on Yelp and responds saying “The client was always going to lose their divorce case because they were a serial adulterer. The client was always rude to staff and difficult to work with. And it is pretty rich for this client to complain about ‘worthless’ representations because he’s refused to pay any attorney fees so far.”

Now that hypo provides an opportunity to explain that the lawyer can’t ethically say any of that online because RPC 1.6(b)(5) doesn’t fit. It also allows a way to explain that it also doesn’t matter if the client had become a former client by the time of the online reply since none of that fits any “generally known” exception under RPC 1.9.

But the scenario also works as a way to take a side venture to remind folks that RPC 1.6 continues to impose confidentiality obligations on lawyers even as to information that has been publicly disclosed and that RPC 1.6 doesn’t really provide for anything that amounts to a general waiver by the client of confidentiality by speaking out publicly in the fashion that law on attorney-client privilege does.

On that broader topic, North Carolina has just implemented a revision to its version of RPC 1.6 that, while it would not change a lawyer’s ability so drastically as to make my hypothetical scenario okay, would give lawyer’s more freedom to speak about things that have already been made public.

Specifically, effective (either already or soon I guess) according to this article, North Carolina’s RPC 1.6 and RPC 1.9 will now include language indicating that lawyer is allowed to disclose information acquired during the representation of a former client if the information is contained in the public record and disclosure is not detrimental to the client.

So far, I have been unable to locate the exact language being implemented so it is not entirely clear to me whether the exception appears in both rules or just in RPC 1.9. It looks like this is what is being discussed as now having been adopted and, if so, then this concept is only applicable in North Carolina to former clients.

It will be interesting to see whether this kind of path becomes one pursued by more courts. About 8 years ago (I think it was about 8 years ago – it could have been 6 or it could have been 10 at this point as time is just a flat circle), I was directly involved in an unsuccessful effort to have the Tennessee Supreme Court revise our RPC 1.6 to permit a lawyer to disclose information about the representation of even a current client if the information had already been made public and the lawyer, by doing so, would not be doing something detrimental to the client. That doomed past proposal appears to be broader in several ways than what North Carolina is implementing.

As such, perhaps carving that much out of client confidentiality will never gain traction. Or, perhaps it was just, in terms of proposals, a bit ahead of its time.