I’ve had loads of opportunities over the years to write about interpretations of ethics rules with which I disagreed. But the discussion is much less frequently prompted by a party taking a private position outside of litigation (or even a public position in litigation) about what a rule means because … well … that usually is neither noteworthy nor all that impactful.
When the interpretation seems to be clearly incorrect, it certainly can have an impact on one or more folks, but that kind of situation may or may not be of any broader interest.
Now, when a party manages to convince a court to adopt their interpretation of an ethics provision, then things can really start to take on meaning.
A developing story out of New York City appears to be a rare blend of a private party taking an egregiously incorrect position on what an ethics rule means, immediately impacting quite a few folks, and now having, at least temporarily perhaps, gotten a court to buy into the utterly incorrect view. This story appears to present an instance of taking an ethics rule — that a lawyer has to comply with — and trying to use it as a sword by presuming that it will be violated by one or more lawyers.
The rule? Well, coincidentally, it is one we just talked about recently. RPC 4.2. That rule prohibits a lawyer who is representing a client from communicating with another person about a matter if the lawyer knows that the person is represented by a lawyer regarding that matter. What that rule would mean, for example, is if a lawyer filed suit against a company that runs a venue for sporting events, then that lawyer, and others at the lawyer’s firm, could not talk to certain people with the company about any aspect of the lawsuit (whether at the venue or anywhere else) without the lawyer for the company’s permission.
What the rule does not mean is that the lawyer, or other lawyers at the firm, are not allowed to go see a concert or a sporting event at the venue because the lawyer somehow would inherently be unable to avoid violating RPC 4.2. And the rule certainly shouldn’t be used – in what seems like a very cynical and retaliatory manner – by the company as a justification for barring the lawyer and all the others at the firm from being able to attend any events at the venue as long as the lawsuit is pending.
But that appears to be exactly what Madison Square Garden Entertainment Corp. has done, and is doing, to about 60 lawyers practicing at a firm that has filed a suit against it on behalf of 24 ticket resellers. (Interestingly, two of the lawyers who filed the suit are also plaintiffs in the litigation which makes at least a further connection to my most recent prior post.) To understand that this is an incorrect use of the ethics rule and not a just measure should be obvious even if the facts did not also include one of the lawyers being a season ticket holder for New York Knicks basketball, which plays its home games at Madison Square Garden.
And, according to the latest update on the story from The ABA Journal, MSG may have a judge willing to go along for the ride … as the lawyer and firm have made an unsuccessful bid for a temporary restraining order to allow the lawyers to attend events. The lawyers filed a new lawsuit on October 13, 2022 against MSG and its lawyer, Harold Weidenfeld. You can read the lawsuit here. Now, TROs can be difficult to obtain for reasons other than that the party is destined to actually lose … and without having been able to locate and read the ruling, it could simply be that a money damages remedy is more than adequate for being denied the use of season tickets. In fact, another story about the lawsuit includes information that the lawyer’s money for season tickets was refunded. But is still not a good look at all for any lawyers associated with MSG who are assisting their client with staking out this position about how RPC 4.2 is to be used. Notably, the October lawsuit alleges that Mr. Weidenfeld’s conduct might be a violation of RPC 8.4(d).
Coincidentally, the New York Knicks play tonight here in Memphis against the Grizzlies. Hopefully, the New York lawyer(s) impacted will be able to watch Ja Morant and the Grizz torch the Knicks tonight on television if they aren’t already on a flight here to catch the game at FedEx Forum.