I’m sure you are familiar with the idiom “One bad apple spoils the bunch” or in some parts of the country “one bad apple spoils the barrel,” but probably not in the context of legal ethics opinions.
Someone could (or has) already written versions of posts applying that idiom to lawyers generally and perhaps unethical lawyers impacting the perception of lawyers overall, but this post isn’t that.
No. This idiom jumped out at me after reading a recent North Carolina ethics opinion and wondering just how bad one part of an ethics opinion has to be before it ruins the utility of the entire opinion.
That opinion is North Carolina Formal Ethics Opinion 2023-2, and it is yet another state opinion examining when confidentiality provisions in a settlement agreement run afoul of RPC 5.6.
I’ve written in the past about just how far off the rails I believe Tennessee has gone in attempting to expand the scope of RPC 5.6 as to provisions in client settlement agreements. This North Carolina opinion, for the most part, does not go nearly as far as Tennessee has and, in fact, I think largely gives pretty good guidance on the questions it addresses.
Except … for one place where it goes farther than I think even Tennessee might go in getting things wrong on what RPC 5.6 ought to mean and how RPC 1.6 works. That place is here:
Does the “right to practice” under Rule 5.6(b) include a lawyer informing members of the Bar about developments in the law of which the lawyer is aware through CLE presentations, articles in professional publications, conversations, or email communications? If so, would a restriction in a private settlement agreement seeking to prevent Lawyer A from including the case in any updates on legal development to members of the Bar infringe on the “right to practice”?
Yes and yes. Prioritizing one party’s settlement terms over the ability of an experienced lawyer to educate other lawyers on legal developments through continuing legal education harms the profession and the clients they serve. Lawyer A may share publicly available information in a public forum. See Opinion #1.
That conclusion seems utterly and truly ridiculous. And there is nothing “special” or “different” about either North Carolina’s RPC 5.6 nor its RPC 1.6 that would justify that conclusion. There could be something special about North Carolina’s RPC 1.9 – confidentiality obligations to former clients — that could justify this conclusion, but the North Carolina opinion authors do not make any reference to that rule in order to try to justify this outcome. In fact, RPC 1.9 is never mentioned in any part of the opinion at all.
The part of North Carolina’s RPC 1.9 that is very non-standard is section (c) which deviates from the ABA Model Rule approach of allowing flexibility as to “generally known” information and instead says:
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information is contained in the public record, was disclosed at a public hearing, or was otherwise publicly disseminated; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. A lawyer may disclose information otherwise covered by Rule 1.6 that is contained in the public record, was disclosed at a public hearing, or was otherwise publicly disseminated unless the information would likely be embarrassing or detrimental to the client if disclosed.
Since the opinion authors could not be bothered to try to explain how the approach in RPC 1.9(c) could make “Opinion 3” make sense, I’m almost reluctant to bother to try for them, but it would go a little something like this.
After a settlement agreement is reached, the lawyer’s client would become their former client and, as to information that would be treated as confidential information under RPC 1.6 (which would include matters of public record), the lawyer now is free to disclose anything that was a matter of public record as long as doing so would not be embarrassing or detrimental to the client if disclosed.
Yet … the next necessary piece still does not flow. If a North Carolina former client of a lawyer tells that lawyer: “Hey, talking about my case would be very embarrassing to me, please don’t do that.” Then I think it would be clear that a North Carolina lawyer could not disregard that sentiment and talk about the client’s case at a CLE.
With that being true, then there is no way that North Carolina should be categorically declaring that a settlement agreement with a confidentiality provision that would prevent a lawyer from talking about the case at a CLE would be unethical.
To do so by stating that “Prioritizing one party’s settlement terms over the ability of an experienced lawyer to educate other lawyers on legal developments through continuing legal education harms the profession and the clients they serve,” is pretty close to saying you’ve actually lost the plot as to what the practice of law is supposed to be about.