Obvious things that lawyers can’t do

We here at Faughnan on Ethics are starting to become something of an online jukebox. Once again, a loyal reader has taken to Twitter and requested that something be talked about on this blog. And, once again, we are complying. Although this time with a bit of a twist because the story in question really isn’t something where there is an awful lot that can be said from an ethics standpoint beyond — “You can’t do that no matter how just you think your cause is.”

The story in question is the fact that the identity of the leaker who brought about the coverage of the “#MeToo” situation at CBS that brought down Les Moonves has come to light. You might have read some of the stories that came out in 2021 revealing that because someone — believed to be an attorney working on the investigation — had leaked information about the investigation that CBS and one of its law firms ended up settling claims of invasion of privacy for millions of dollars.

Earlier this month, as a result of the person’s decision to go on a podcast, we now know that the person who did the leaking was Allison Diercks, who was at the time an associate at Covington and Burling working on document review relating to the investigation. Ms. Diercks has nothing much to say in her defense as she has to admit that she knowingly violated her duties in making the disclosure but that she did so because she was worried that CBS would not do anything about the conduct. Lawyers can almost never take the law into their own hands, and Ms. Diercks is no exception. She has been suspended from the practice of law for 18 months starting back in 2021, she obviously lost her job, and, interestingly, she has claimed during the podcast that her former firm has threatened to come after her if she ever tries to be reinstated to practice law. In fact, she says that is the reason she has not applied for reinstatement even though her term of suspension has ended.

Now, in order to provide appropriate fan service but also have enough content for a full post, let’s point out that knowingly leaking documents is not the most frequent way these days that lawyer working on high-profile matters are doing things they know (or have to know) are wrong because they feel they are serving a greater purpose.

We’ve written in the past about lawyers quitting their representation of the only former POTUS to have never won the national popular vote, and be impeached twice, and be criminally indicted who have gone too far in making public statements about why they dropped their former client. Now, we are doing so again because earlier this month Timothy Parlatore became the latest lawyer to publicly quit representing Donald Trump. And, like people who have done the same before him, he has done so by verbally lighting a match and dropping it into lighter fluid.

You can go read articles about what that lawyer has had to say here and here, and here but even only somewhat loyal readers of this site will know that basically none of the statements the lawyer makes about why he stopped representing his clients are things this lawyer can say unless he got Trump’s permission to say them. To the extent there is any nuance about why this is the case, a lawyer’s obligations of confidentiality don’t just mean that they cannot disparage their former client publicly but they also cannot disparage other lawyers representing the common client because the opinions about the other lawyers are also information about the representation of the common client.

Or, stated more succinctly, it is almost always correct advice to say that “Representation of a client is not an airport; there is no need to announce your departure.”