So, first things first, I am thoroughly surprised and incredibly honored to have made it into the ABA Journal’s 2018 Web 100. If you are here for the first time because this happened, thanks for reading and feel free to look around as there is 3+ years of content you can read while you are on hold with customer support. If you are a long-time reader here out of habit, I cherish you and you can rest easy knowing that you are still going to receive the same not-exactly-regularly-scheduled-mostly-maybe-twice-a-week-but-sometimes-only-once-a-week content you have come to expect.
Second things second: I truly and profoundly recognize the irony that this post leads off crowing about the Web 100 honor after literally just talking about how lawyers shouldn’t blow their own horn online six days ago. But I’m going to just blow past that irony and move on to today’s offering which comes up more than you might imagine in real-world consultations and that is on the radar screen for today because of two recent developments — a recent ethics opinion from the Texas Center for Legal Ethics and an order denying disqualification out of a Pittsburgh federal court. If you are a Law360 subscriber you can read some about the Pennsylvania decision and even download the order now here.
Both the ethics opinion and the Pennsylvania decision grapple with what Bill Freivogel refers to on his site as the “Underlying Work” Problem. Bill has written a very good overview at that link of the problem for law firms when they decide to take on the litigation of a matter where its earlier work for the client involved will be at issue and, if history is any guide, will likely have a good summary of that case up relatively soon.
The short version of the order denying disqualification goes like this: A visiting senior district judge denied a motion to disqualify the lawyer representing a company sued under the Americans with Disabilities Act. The nature of the claim is that the employee was wrongfully denied extra breaks to deal with her anxiety issues. The genesis of the disqualification dispute was that the lawyer in question was also the lawyer who gave the company the legal advice that it could deny the employee’s request for this accommodation.
The longer version of understanding how that might not be the outcome you’d expect is best laid out by discussing the recent, really-good, Texas opinion.
In Opinion 682, the Texas Committee explains how its version of the “advocate-witness” rule works under these facts:
A Texas lawyer assisted a client in drafting and negotiating a contract with another party represented by separate counsel. A lawsuit arose concerning the meaning of certain provisions in the contract. The lawyer drafted and negotiated those provisions. The lawyer’s client wants the lawyer and a trial lawyer in the same firm to represent her in the lawsuit. Both lawyers are attempting to ascertain whether they may do so, and if so, under what conditions, if any.
The opinion does a nice job of explaining the different analysis required for the individual attorney at the firm versus other attorneys at the same firm who were not actually involved in doing the underlying work. The fundamental difference if it has to be cliff-noted is simply that the confusion involved in the dual role of witness and advocate is severely obviated when a different lawyer is doing the advocating. The opinion also does a decent job of emphasizing a point that judges sometimes overlook when ruling on disqualification motions — that the disqualification for the witness-lawyer generally does not actually come into play until the trial – not during discovery or even pre-trial motion practice, just at the trial.
As Texas lawyers know, the numbering of the Texas ethics rules is a bit off from the ABA Model Rules even where the substance may be roughly the same. So, while lawyers normally think of the ethics rule addressing lawyers as witnesses as being Rule 3.7, in Texas it is housed in Rule 3.08. Although I think the Texas opinion provides the structural narrative for getting to the correct analysis even under the language of Model Rule 3.7, I think it is worth highlighting two pieces of Texas Rule 3.08 that likely are a real improvement on the Model Rule.
First, the rule includes an exception that seems obviously correct but is not actually addressed in the text of the Model Rule. Texas’s rule makes plain that if the lawyer happens to be a party to the lawsuit and acting pro se, then the prohibition does not arise. (I have a long history of trying [both for altruistic and pecuniary reasons]to discourage lawyers from acting pro se but it still happens and opposing counsel should not be able to try to use Model Rule 3.7 as a cudgel in such situations.)
Second, and more universally important, the Texas rule goes further in terms of requiring disclosure in two respects that I think are positive. Like the Model Rule, the Texas rule acknowledges that “substantial hardship” for the client involved can provide an exception to the lawyer’s disqualification if they also have to be a witness. Unlike the Model Rule, the Texas rule requires the lawyer who will be traveling under that exception to “promptly notif[y] opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.” The Texas rule also requires more disclosure to the client when the lawyer’s firm intends to handle the case by taking advantage of imputation of the witness-lawyer’s conflict not working its way to other lawyers at the firm by explicitly conditioning the ability to have some other lawyer at the firm handle upon “the client’s informed consent.” I think that is a vital piece of the puzzle from a loss prevention standpoint for any firm in such a situation as fully discussing with the client on the front end what the plan is and the risk associated with additional expense in the form of motions to disqualify goes a long way to avoiding grief.