A lawyer who offered a witness $7,000 for his “honest testimony” was suspended for 35 days by the Nevada Supreme Court, after a state discipline board divided on whether a public reprimand was sufficient.

The opinion is a reminder about the limits of advocacy.

Truth is no defense

The lawyer’s client disputed a will.  The lawyer sent a person, identified in the court’s opinion as D.E., a letter offering money “in exchange” for D.E.’s testimony that D.E. had never witnessed the decedent signing a will, and that the will he had witnessed was a fake.

In the several-page letter, the lawyer also threatened D.E. with personal liability and cited “the legal implications of perjury if D.E. didn’t disavow the will.”

A month later, the lawyer re-sent the letter in an e-mail, and reiterated the cash offer.

The hearing panel unanimously found a violation of Nevada’s Rule 3.4(b) (identical to the Model Rule), which prohibits offering “an inducement to a witness that is prohibited by law.”  Here, the lawyer overstepped with the threat of a perjury accusation if D.E. didn’t execute the affidavit — that violated the state statute criminalizing extortion, the court said.

The lawyer argued that the will was in fact forged, and that the only testimony being solicited from D.E. was truthful.

The court shot that argument down, citing the Restatement of the Law Governing Lawyers, which emphasizes that the prohibition is against offering any consideration contingent on the content of the testimony.  As an Illinois district court held, for purposes of the rule, it doesn’t matter if the testimony is “truthful or not.”

Not merely negligent?

Two of the three members of the hearing panel proposed that the lawyer merely be reprimanded, urging that the conduct was only “negligent.”  But the court sided with the third panel member, finding that the conduct was intentional, and deserved an actual suspension.

This was no “casual comment in a courthouse elevator that an unnoticed witness accidentally overheard,” the court said.  The court ruled that the letter and e-mail to D.E. showed that the lawyer intended the conduct, and the only negligence was perhaps in not recognizing that it violated the ethics rules.  But ignorance of the ethics rules — like the  law — is no excuse, according to the court.

Systemic costs

Interestingly, the pay-for-testimony deal never actually went forward — the court noted that, to the lawyer’s credit, the offer to D.E. was revoked after the lawyer talked to a law partner about “the ethical problems it posed,” and before any money changed hands.

While that helped prevent further harm, the court said, the lawyer’s conduct nonetheless injured the client because the trial judge excluded D.E.’s testimony and disqualified the lawyer after learning of the misconduct.

The misconduct also harmed the system itself, the court said, “fostering public cynicism [about] a system where fact witness testimony appears to be bought and sold.”

Take-home lessons

Getting suspended from practice is never a good thing — whether it’s for a month, as here, or for a longer time.  But in the grand scheme of things, 35 days off is not terribly harsh, and there’s room to consider two mitigating points in this case that appear to justify the penalty.

First, based on the opinion, the lawyer was trying to elicit true testimony. The disciplinary opinion omits some details that would have explained why the lawyer could have thought it was necessary to offer money (was the witness reluctant? did the lawyer think the witness would be untruthful?), but the court seemed to accept that the lawyer was not trying to have the witness offer untrue testimony.  Second, when advised that it was improper (and yes, the lawyer should have known that), the lawyer revoked the offer.

The court itself noted that the lawyer otherwise enjoyed a good reputation, and this was a first disciplinary offense.

Bottom line — don’t let this happen to you.

If the clerk of courts e-mails you an order that your client must pay $1 million in attorney fees to the opposing party, but your spam filter catches the e-mail and then deletes it after 30 days without alerting you, and you therefore fail to appeal the order in time — well, your client may be out of luck, as a Florida court of appeals ruled recently.  (There is a motion for rehearing pending.)

Spam canned?

The ruling thus far is a cautionary tale and shines a light on some ethics duties as they might apply to your process for handling and keeping on top of spam e-mail — especially the duties of diligence (Model Rule 1.3) and competence (Model Rule 1.1, and see cmt. 8 on technology).

The facts:  Company sued Utility Authority, and Company won.  Company’s Lawyer moved for attorney fees, and after more than a year, the trial court granted them — reportedly as high as $1 million.  It’s worth noting that during the time that his client’s fee motion was pending, Company’s Lawyer had the firm’s paralegal check the court’s on-line docket every three weeks for a ruling.

When the court finally issued the ruling, the clerk e-mailed it to all counsel.  Technology experts who later testified said that the e-mail server at the Utility Authority’s Lawyer’s firm received the e-mail. But the firm’s e-mail filtering system was configured to drop and permanently delete e-mails perceived to be spam without further alert.

Apparently that’s what happened to the e-mailed attorney-fee order.  After 30 days passed without the fee award being paid (i.e. after the time to appeal the order had run), Company’s lawyers contacted opposing counsel.

No relief

The Utility Authority moved for relief from the judgment, arguing that its lawyers didn’t receive the order in time to file an appeal.  The trial court rejected the argument, and the court of appeals agreed:  this was not “mistake, inadvertence, surprise or excusable neglect,” it held.  The Utility Authority’s Lawyer’s firm did receive the order — the equivalent, the court of appeals said, of placing a physical copy of the order in a mailbox.  The e-mail just went right to spam, from where it apparently was deleted without further notice.

At the hearing on the motion, the law firm’s former IT consultant testified that he advised against that configuration; the firm rejected the advice, as well as advice to get a third-party vendor to handle spam filtering, and advice to get an online backup system that would have cost $700-1200 per year.  Financial considerations played a part in these decisions, the court found.

The decision to use this filtering configuration despite warning was a conscious decision to use “a defective e-mail system without any safeguards or oversight in order to save money.  Such a decision cannot constitute excusable neglect,” said the court of appeals.

Adding further sting, the court noted the Company’s Lawyer had a paralegal regularly check the court’s online docket during the long pendency of the fee motion.  If the Utility Company’s Lawyer had done something similar, the court said, he would have received notice of the fee order in time to appeal.  “The neglect” of that duty “was not excusable.”

Spam:  not tasty but good to check

The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.

A Philadelphia personal injury law firm has sued an out-of-state competitor in Pennsylvania federal court, claiming that its TV, billboard and on-line ads reaching the Philadelphia area are false and misleading, violating the Lanham Act and constituting unfair competition.

The case is a reminder that the ethics rules and disciplinary action aren’t the only exposure lawyers might have to a claimed violation of the limits on advertising legal services.

A widespread practice?

The complaint against the Orlando-based firm, Morgan & Morgan, says that its ads “mislead the consumer that [Morgan & Morgan and its lawyers] actively litigate claims in Pennsylvania when in fact their representation of personal injury claims is nonexistent or minimal.”

The complaint claims that the lawyers in the ads are not licensed in Pennsylvania, and it is alleged that Morgan actually refers all or substantially all the cases generated from its Philadelphia-area ads to other lawyers and firms.

The plaintiff, Rosenbaum & Associates, alleges that Morgan’s ads contain statements like “We’re all here for you,” and “Our family is here for your family,” falsely leading Philadelphia-area consumers to believe that Morgan will handle their claims.

Morgan has not yet answered the complaint.

Plaintiff-side personal injury firms with a national footprint often seek clients beyond their home turf via ad campaigns, referring the leads they get to lawyers and firms licensed to handle them, in return for part of the contingent fee.

However, as cited in the complaint, Pennsylvania ethics Rule 7.2, unlike the analogous Model Rule, prohibits advertising that is “a pretext to refer cases obtained from advertising to other lawyers.”  (My home state of Ohio, similarly prohibits the practice of soliciting clients solely for the purpose of referring them elsewhere.  A handful of jurisdictions require disclosure when an advertising lawyer intends to forward cases to another lawyer to handle.)

The times they may be a-changing

The rules governing lawyer advertising are potentially in a state of flux.  Online service- and referral-providers like Avvo and LegalZoom are working on several fronts to alter the landscape, including by seeking to change ethics rules that might limit their ability to market and carry out their operations.

The Association of Professional Responsibility Lawyers has two proposals on the table (2015 and 2016) that would  streamline the ABA’s Model Rules on advertising and, if adopted by states, would reduce regulations that some see as unwarranted interference in marketing legal services to consumers.

The APRL proposal is working its way through the ABA vetting process.  But at least one jurisdiction, Virginia, is not waiting; effective July 1, it slimmed down its lawyer advertising rules, patterning them after the APRL proposals.  And as we have noted, North Carolina is considering changes to its rules to make it easier for on-line service- and referral-providers to operate.

But in the meantime, just to add to the mix, be aware that regulatory or disciplinary action is not the only way that potential violations of the advertising rules might be addressed.

Indeed, although the complaint against Morgan cites Rule 7.2 of the Pennsylvania Rules of Professional Conduct, the claims for relief are solely based on alleged violations of the federal Lanham Act’s prohibition against false advertising, and the parallel state common-law ban against unfair competition.

That’s worth remembering as you navigate the legal advertising landscape.

You’ve probably read about the New York Times reporter who says that he overheard lawyers for President Donald Trump discuss the ongoing Russia investigation at a Washington, D.C. restaurant, and then reported on the talk — which revealed details of a strategy debate, the alleged existence of documents “locked in a safe,” and other purported insight on the internal workings of the President’s legal team.

(If you somehow missed the story — maybe you just stopped paying attention — check out the Times reporting, the backstory on how the reporter overheard the conversation, and the ABA Journal’s report.)

Every reporter’s dream

The NYT reporter, Kenneth P. Vogel, wrote that he overheard the conversation when he happened to be seated at a steakhouse at the next table over from Ty Cobb and John Dowd.  Cobb was brought over from Hogan Lovells in July to run point on the Russia investigation; Dowd, another member of the White House legal team, retired from Akin Gump Strauss Hauer & Feld in 2015.

Vogel later wrote, “I have always thought of overhearing conversations as an underappreciated journalistic tool.”  The Washington Post commented, “It is every Washington reporter’s dream to sit down at a restaurant, overhear secret stuff, and get a scoop.”

Don’t let this happen to you!

Our take on this cautionary tale, of course, centers on Model Rule 1.6 — client confidentiality.  We often have occasion to warn you to consider particular wrinkles in the rules that affect your particular jurisdiction.  But not this time.  In every U.S. jurisdiction, lawyers have an obligation not to disclose confidential information relating to the representation of a client without the client’s consent.

That duty covers a wide swath of information learned through the representation.  It’s much broader than information that is protected by the evidentiary attorney client privilege.

And so many ordinary things you might do without thinking twice can jeopardize your client’s confidential information — as Cobb and Dowd have perhaps discovered.  (Some have suggested that the incident was so blatant that it must have been intentional.  But intentional or not, disclosure still requires client consent.  The Times reported that, according to its sources, the disclosure prompted White House counsel Donald F. McGahn II to “sharply reprimand[] Mr. Cobb for his indiscretion.”)

The list could go on ad infinitum, but here are just a few examples of every-day things that can breach your duty of confidentiality:

  • schmoozing about work while standing in line at Starbucks;
  • doing client pitches;
  • sharing war stories with friends over cocktails;
  • talking on a cell phone in a public place;
  • reading client documents on a laptop while sitting next to someone on a train or plane;
  • forgetting documents on a restaurant table or in a cab;
  • forwarding client-related emails to people outside your firm;
  • sharing documents or forms created for a client with friends or other clients.

You must remember this…

Remember, confidential information also includes “disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”  (Model Rule 1.6 cmt. 4.)  In other words, just leaving out names doesn’t help, if someone can figure out who you are talking about.

And, as the President’s lawyers perhaps learned, when your client realizes that you have disclosed confidential information, “oops” may not be a complete excuse.

Bottom line:  You might never work at the White House, but make it your default mode not to discuss client business outside of your office, and you won’t go wrong.

The ACLU and the Electronic Frontier Foundation have sued the Department of Homeland Security to block U.S. Customs and Border Protection personnel from searching travelers’ electronic devices without warrants.  This has implications for lawyers who cross in and out of the U.S. with phones and laptops  containing confidential client information.  The CBP’s policy, which the ABA also has questioned, currently authorizes such searches even without a suspicion of wrongdoing.

We first wrote about the issue last month, when the New York City Bar Association published an ethics opinion raising the client confidentiality issues and advising that in some circumstances lawyers should consider using “burner” phones, and avoid taking client confidential information across borders.

The ACLU and EFF’s lawsuit, in Massachusetts district court, alleges violations of the First and Fourth Amendments on behalf of 11 plaintiffs whose electronic devices were searched as they reentered the U.S.  None were subsequently accused of any wrongdoing.

The plaintiffs include journalists, students, an artist, a NASA engineer and a business owner — but no lawyers.  Despite the absence of lawyers from the roster of plaintiffs, the client confidentiality issues are obvious, and have received a lot of notice.  See here for the New York Times story on the lawsuit, and here and here for commentary on the N.Y. City bar ethics opinion.

I’d be interested in hearing whether lawyers have personal experience with border searches of their electronic devices.

Stay tuned for additional developments on this issue.

What if you’re about to initiate litigation on behalf of your client, or you are in the middle of litigation, and you find that a different client you represent in another matter has documents relevant to the case?  Can you subpoena the documents from your own client?  Can you cross-examine that client at trial?   Here is some background and some practical advice.

Current client conflicts

The ABA’s Ethics Committee analyzed this recurring scenario 25 years ago in its Formal Opinion 92-367, under the verbose-but-descriptive title “Lawyer Examining a Client as an Adverse Witness, or Conducting Third Party Discovery of the Client.”

The focus is on Model Rule 1.7, which deals with current-client conflicts.  It addresses representations directly adverse to existing clients and also situations where your representation of a client may be “materially limited” by your duties to another client.

The Committee concluded that cross-examining or directing third-party discovery to an existing client likely would be directly adverse to that client, and would create a disqualifying conflict of interest — unless both clients consented.  The circumstances would likely “pit the duty of loyalty to each client against the duty of loyalty to the other,” said the Committee.

The possibility of a “material limitation” on your representation of the litigation client is equally clear.  First, you could breach the duty of confidentiality you owe to your client who is the witness or the target of a document subpoena.  After all, in these circumstances, by definition, you have information that is relevant to the litigation you are conducting on behalf of the other client.

Second, there is a “punch-pulling” problem:  your interest in keeping the witness-client, or in not inconveniencing that client, may consciously or unconsciously cause you to go easier on that client, conducting a “‘soft’ or deferential” examination or document request, to the possible disadvantage of your litigation client.

The conflict issue is sharpened, of course, by Model Rule 1.10, the imputation rule:  if you are disqualified, so are all the other lawyers in your firm, by imputation.

Best practices?

The good news is that this conflict is generally viewed as being subject to the affected clients’ consent and waiver.  But how should you proceed?  Regarding the situation presented by third-party discovery against a current client, the experience of my firm and others suggests the following possible steps:

  • Advise the litigation client on whose behalf you want to serve the document subpoena that the target of the subpoena is another firm client in unrelated matters.
  • Get permission from the litigation client to inform the target of the subpoena about the subpoena and the subject matter of the request.
  • Determine if the subpoena target will be objecting to the subpoena or attempting to block production of any information called for by the subpoena.
  • If the answers to that question is “no,” then there is likely little risk of an actual conflict; but otherwise, there is a conflict that requires a waiver.

In the absence of a waiver from each client, or if your litigation client objects at the outset to the exploratory discussion with the subpoena target, you can’t proceed.

In that case, the  ABA Ethics Committee suggests that, as an alternative to withdrawing (which presents obvious and even acute problems, depending on the stage of the litigation), you might be able to co-counsel with an un-conflicted lawyer who would shoulder the third-party discovery.  A New York City Bar Association ethics opinion endorses that course of action.  But a California opinion questioned whether such co-counsel would be truly independent so as to alleviate the conflict.

The ABA’s ETHICSearch has a useful recent article on the ins and outs  of this quandary.

Clearly, there is a lot to think about when you are faced with this problem, and as always, you should make sure you know how your own jurisdiction approaches it.

A lawyer who was physically dependent on opioids and in an “opioid haze” was disbarred earlier this month for stealing more than $117,000 from a client.  Her chronic pain and addiction were not “extraordinary mitigating” factors that justified departing from the presumptive penalty for client theft, the Washington Supreme Court held.

The decision is a stark reminder at a time when the ravages of lawyer substance abuse have been spotlighted in studies, books and current events.

Trust account theft

The lawyer had a family law practice and worked with one associate.  In 2009, she agreed to represent a client in dissolving his marriage, took a $5,000 retainer and assigned the case to her associate, a recent law school graduate.

The court soon entered a dissolution decree, and awarded the client more than $117,000 as an equalization payment for his interest in the family house, which the lawyer put in her trust account.

The lawyer never paid the client.  Instead, she moved her trust account to another bank, and eventually transferred all the money to her personal account.  She used some of the funds to keep her practice afloat, but also for symphony and Mariners tickets, manicures, groceries, pet food and restaurants.

Most of the client’s many calls to the lawyer went unanswered.  When the lawyer did respond, she said she had been sick and needed time to get back to the client about the funds.  At the time, the client was destitute and sleeping on a friend’s couch while waiting for the settlement funds to help him get back on his feet.

In the meantime, the lawyer stopped coming to her office, and stopped attending to her practice.  The associate registered her concern in an e-mail, citing the trust account irregularities and the “ethical conundrum.”  In reply, the lawyer said that the associate had no responsibilities regarding the office’s finances, and purported to “relieve [the associate] of any ethical obligations regarding the firm’s financial business…”  The associate soon left the firm.  (A lawyer in such circumstances might need to consider whether Model Rule 8.3, “Reporting Professional Misconduct,” could be applicable.)

In 2014, the lawyer pled guilty to a criminal charge of first degree theft, and was sentenced to nine months of electronic home monitoring.

“Opioid haze”

The lawyer had been in successive car accidents in 2003, 2004 and 2006, and had developed chronic pain.  After the lawyer unsuccessfully tried several pain management techniques, her doctor prescribed a variety of opioids in 2006; the lawyer started taking the medication in increasingly large amounts and became dependent.

In her disciplinary filings, the lawyer said that she was in an “opioid haze,” and that her chemical dependency caused her to “overlook the proper disbursal of the trust funds” to the client.

Evidence at the hearing depicted the lawyer’s personality changes.  As her drug use mounted, she became chronically lethargic, “would pass out midsentence and was unable to complete simple tasks.”

Finally, in 2012, the lawyer entered a detox program.

No mitigation

Under the ABA’s Standards for Imposing Lawyer Sanctions and Washington law, the presumptive punishment for client theft is disbarment.  Only “extraordinary” mitigation will merit reducing that sanction, the court noted.

The disciplinary hearing officer found that the lawyer had a physical disability due to her chronic pain; that she was chemically dependent; and that these two factors justified a three-year suspension rather than the presumptive disbarment penalty.

But the full disciplinary board — by an 11-0 unanimous vote — disagreed, and the state supreme court adopted the board’s recommendation of disbarment.

The court rejected the argument that the lawyer’s significant pain was an “extraordinary mitigator”:  “We do not wish to minimize the debilitating and disabling impact that chronic pain has on many individuals’ lives.  Nevertheless, such pain does not excuse extreme lapses of an attorney’s moral judgment.”

And the court held that the lawyer’s chemical dependency, either alone or in combination, would not justify a sanction short of disbarment — even if the lawyer had been able to show that her opioid dependence caused her to steal client funds.

The court wrote that it has consistently found that alcohol and drug addiction are not extraordinary mitigating factors in cases involving client theft.  Rather, the court said, despite her “opioid haze,” the lawyer was to some degree “culpable and responsible for her actions.  At some point, she ‘chose the path’ that led to her misconduct.”  The court refused to view the lawyer as an “innocent victim of forces beyond [her] control …. We must hold her responsible for the harm she caused to the real victim here [the client].”

Harsh result — or appropriate?

This was a tragic situation — for the client, whose money was stolen by the fiduciary who was supposed to protect his rights; and for the lawyer, whose professional life has now been foreclosed by a terrible lapse.

As a profession — and as individuals — we need to do a much better job of intervening in the chain of life events that led to the result in this case.  Our failure to do so when we are aware of a situation like this makes us bystanders.  Our obligation as humans demands more.

Putting your law firm name on coffee mugs and giving away donuts to prospective clients is apparently not enough anymore.  Recent firm branding campaigns have included sponsorships of pro golfers and cricket players, including emblazoning the bats with the firm name.

That may be the trend of the future in Biglaw, but a much more modest marketing effort recently landed an Ohio lawyer in disciplinary trouble.

No Justice, no peace?

According to the opinion, from 1981-1997, the lawyer in question practiced with another attorney, who eventually became (and continues to be) a Justice of the Ohio Supreme Court.  Fast forward to 2015.  With the permission of the Justice, the lawyer began using their old firm name, including on business cards, and hung a sign outside the office saying “O’Neill & Brown Law Office (Est. 1981).”

That only lasted for a few weeks before the local bar association began investigating.  After the disciplinary authorities advised the Justice that the sign violated Ohio ethics rules, the Justice instructed the lawyer to remove his name from the sign, and eventually the lawyer did so.

False and misleading

The Ohio Supreme Court (with the Justice in question not participating) agreed with the Board of Professional Conduct that the firm name on the sign and business card, and the reference to the firm having been established in 1981 were false or misleading communications that violated Ohio’s version of Model Rule 7.1.  The court also found a violation of Rule 7.5(c), which prohibits using a judge’s name in a firm name or other firm communication, unless the judge regularly and actively practices with the firm.

By a 4-3 vote, the court imposed a two-year stayed suspension on the lawyer.  A significant aggravating factor contributed to the sanction:  this wasn’t the lawyer’s first rodeo — he’d been disciplined several times before, according to the opinion, including a previous suspension for threatening a judge who served as chair of the local bar grievance committee.  But in mitigation, the court noted that his conduct “did not involve the provision of legal services,” that no clients were harmed, and that the Justice participated in the decision to use the “O’Neill & Brown Law Office” name on the sign.

The three-judge minority would have imposed an “indefinite” suspension, which in Ohio is a term of at least two years.

Stick to the tchotchkes

A good lesson here.  A prominent legal moniker on your office sign may be good marketing, but it would be best to stick to the coffee mugs — or cricket bats.

Travelling abroad for work?  What should you do if a Customs and Border Patrol agent, claiming lawful authority, demands that you unlock your computer or thumb drive or cell phone — full of client confidential information — and hand it over to be searched as you cross the U.S. border?

New York City bar association ethics opinion issued on July 25 offers some practical tips, and spotlights the ethical duties of confidentiality and client communication involved in this increasingly-common scenario.

Cause for concern

The confidentiality concern is more than hypothetical.  According to the Department of Homeland Security, in February 2017 alone, CBP agents searched more than 5,000 cell phones, laptops and other devices.  That’s as many searches as in all of 2015.  CBP policy apparently permits U.S. customs agents to review any information that physically resides on travelers’ electronic devices, with or without any reason for suspicion, and to seize the devices pending inspection.

The ABA voiced concern in May, requesting that the Department of Homeland Security revise CBP’s procedures in order to better protect client confidential information from search or seizure at border crossings.

Evasive tactics necessary?

Under every state version of Model Rule 1.6, you have an ethical duty to safeguard the confidentiality of client information in your possession, and “few principles are more important to our legal system,” the opinion notes.

The thoroughly-reasoned and detailed New York opinion concludes that Rule 1.6, coupled with Rule 1.1 (Competence), raises obligations before a lawyer approaches the U.S. border; at the border when an agent seeks access to a device; and after an agent has reviewed clients’ confidential information.

  • Before crossing the border, Rule 1.6(c) and its comments, which require “reasonable efforts to prevent … unauthorized access to” client confidential information, means that you must take reasonable precautions in advance to avoid disclosing such information unless authorized by the client (which is unlikely).  Depending on the circumstances, including the sensitivity of the information, these efforts may include not carrying any client confidential information across the border.  If so, the opinion suggests:  securely backing up client information and then crossing the border with a blank “burner” phone or laptop; turning off syncing of cloud services; signing out of web-based services; and/or uninstalling applications providing local or remote access to confidential information.
  • At the border, Rule 1.6(b)(6) and its comments come into play.  It permits lawyers to disclose confidential information to the extent reasonably believed to be necessary when required “to comply with other law or court order,” including “a governmental entity claiming authority pursuant to … law.”  But, the opinion cautions, disclosure is not “reasonably necessary” to comply with law if there are reasonable lawful alternatives to disclosure.  The opinion concludes that “it would be an unreasonable burden” to require a lawyer to forgo entering the U.S. or to allow herself to be taken into custody or litigate the lawfulness of a border search. But the opinion also says that lawyers have a duty not to comply “unless and until” the lawyer “undertakes reasonable efforts to dissuade border agents from reviewing clients’ confidential information or to persuade them to limit the extent of their review.”  To facilitate that challenge, you should carry ID confirming that you are a lawyer, notify agents that your device has client confidential information on it, request that the agents limit their review, and ask to speak to a superior officer, says the opinion.
  • After a search or seizure of client confidential information, Rule 1.4 (Communication) requires that you notify affected clients about what occurred and the extent to which their confidential information may have been reviewed or seized.  That communication will let the client decide on possible responses, including a potential legal challenge.

Globe-trotting implications

Tennessee ethics lawyer Brian Faughan shared his comments on this opinion under the headline “Practicing law like it’s espionage.”  The ways to carry out the potential duty to avoid taking confidential information across U.S. borders, as well as the other recommendations in the New York opinion, indeed make me think of spy craft, and to wonder if we are entering the world of novelist John LeCarre.  That’s an uncomfortable thought — but under the reasoning of this opinion, such considerations are necessary as a matter of ethics.

If you’re driving from state to state, the rules of the road are generally consistent.  While details may differ, a red light means “stop” in every state of the Union.  But under our federal system, each U.S. jurisdiction has authority to regulate the practice of law — and under the resulting state ethics rules, not only the details, but even some of the basics may differ.

That’s spotlighted in a district court opinion issued earlier this year, denying a motion to disqualify counsel in a defamation case because plaintiff was not a “prospective client” under South Carolina’s ethics rules.

“If there is no conflict”

The plaintiff sued ten John and Jane Does, alleging he was defamed in a blog post.  The plaintiff first threatened suit against the blogger, who hired counsel at a Greenville, S.C. firm, (“Wyche”).  Ten days later, plaintiff’s lead counsel reached out to a different lawyer at Wyche.  They discussed the possibility of the Wyche lawyer serving as local counsel for plaintiff, and plaintiff’s lead lawyer asked for a fee agreement “if there is no conflict.”  The Wyche lawyer took the relevant names “for conflict purposes,” provided the firm’s rates, and said in an e-mail that “I hope we get the opportunity to work together.”

You can see where this is going, right?  The next day, the Wyche lawyer — having discovered that the firm already represented the blogger — told plaintiff’s lawyer that the firm had a conflict and declined the representation.

Later, plaintiff issued a subpoena to the blogger, claiming that she had knowledge of the Does’ identities.  When the Wyche firm appeared on behalf of the blogger, plaintiff moved to disqualify.

That’s where the Palmetto State’s ethics rules on prospective clients came into play.

Prospective client?

To safeguard the confidentiality interests of prospective clients, Model Rule 1.18 provides that if you obtain “information from [a] prospective client that could be significantly harmful to that person in the matter,” you and your firm are generally disqualified from adverse representation in the same or a substantially-related matter.

Who is a “prospective client” under the Model Rule? Anyone who consults with you “about the possibility of forming a client-lawyer relationship with respect to a matter” — even when no lawyer-client relationship ensues.

But South Carolina’s Rule 1.18 is more restrictive.  It’s version defines a “prospective client” as someone who consults with a lawyer — but “only when there is a reasonable expectation that the lawyer is likely to form the relationship.”

That made all the difference to the court in ruling on plaintiff’s DQ motion.  The court said that there was no evidence that a “commitment” was “likely” that the Wyche firm would represent the plaintiff.  The “hope-we-can-work-together” comment was only a “polite courtesy,” the court said.

“Niceties,” are not binding commitments to represent someone, the court held, and “are not, absent unusual circumstances, reasonably interpreted to indicate a commitment is likely.”  The plaintiff’s lawyer also clearly understood that before any engagement, Wyche had to check for conflicts.

Without having become a “prospective client” under South Carolina’s version of Rule 1.18, the plaintiff had no basis for disqualifying the Wyche firm.

Different rules, different outcome

The plaintiff here might have met the definition of “prospective client,” and been entitled to the protection of Rule 1.18, in a state that hews to the broader Model Rule language, instead of South Carolina’s more-restrictive version.  So you must be aware of such nuances in the ethics rules of the road.

But you also must be diligent in not “hearing too much” when a prospective client reaches out to you.  The Wyche lawyer who talked to the plaintiff’s lead counsel in this case didn’t get confidential information about the plaintiff before checking for conflicts.

That’s good policy.  There are plenty of examples of successful DQ motions where a lawyer has listened to details — which prospective clients often want to relate — and only then discovered a conflict.  The always-excellent Freivogel on Conflicts collects the cases.  In worst-case scenarios, that can result in needing to decline the prospective engagement and step away from the one that raises the conflict.  That’s the message of ABA Ethics Opinion 90-358 (1990) — an outcome no one wants.