Last year at this time, we published this post on gratitude, and it resonated with a lot of lawyers.  Here it is again, slightly revised.  Have a grateful Thanksgiving holiday.

Looking at the roiling current of world events, many of them dark and discouraging, can justifiably make us anxious and depressed.  Our times are marked by seemingly endless war, terrorism, hateful rhetoric, political turmoil, gun violence, sexual assault.  But here in the U.S., we will nonetheless sit down on Thanksgiving  Day with family and friends for a shared meal that is the proper antithesis — perhaps the strongest one — to hate, death and destruction.

And while you are feeling generally grateful, you should also think about your life in the law, in particular.  Legal scholars have examined the trait of gratitude and how it is and can be expressed in our profession.

In her excellent 2012 article, which appeared in the Notre Dame Journal of Law, Ethics & Public Policy, author Reed Elizabeth Loder says that “Gratitude might be a curious topic at a time that the public maligns, even demonizes lawyers.  Asking lawyers to endure social scorn and yet feel thankful seems a double insult.  Yet … every lawyer should cultivate, feel, and act upon a special type of gratitude — call it legal gratitude.”

This attitude, says Loder, can be a “sustaining source of ethical inspiration to lawyers.”  It can give us the outlook we need to survive in our challenging profession with our inmost beings intact.

So here are five reasons to specifically be thankful for being a lawyer.

  • Our knowledge, skill and training are gifts.  Whether a GC of a Fortune 500, or a contract lawyer doing document review, we have achieved a privileged status in society that has improved our lives.  We’ve earned our professional status by our own hard work, but we have to acknowledge that our “social and personal privileges” come from the generally just society that permitted us to get  here, Loder writes.  “Citizens owe gratitude to their government for general belonging and public benefits, [but] the lawyer owes special gratitude for a legal heritage that bestows greater than normal benefits.”
  • Our work has purpose.  More important than the social advantages, “are the possibilities a lawyer acquires for a meaningful professional and personal life.  The law is a worthy profession because it serves the intrinsic good of justice … Unlike many forms of work, legal work has an overarching purpose as its measure.”  Even when we struggle to find that purpose, “it is a privilege to have some standard of goodness” by which we calibrate our professional integrity.
  • We have the ability to change society.  “Because law is so central in a contemporary society that has few other shared cultural moorings, the lawyer is privileged to effectuate social changes that few have the power even to touch.  … Lawyers can influence, to small or large extent, legal reform and justice.”
  • We have the opportunity to help.  As Loder says, “there is never a shortage of satisfying work for those lawyers who can make time to donate their expertise to represent otherwise voiceless clients or causes.”
  • We can grow personally.  Whatever you call your inner being — your soul, your psyche, your character — being a lawyer presents an incredible opportunity to refine and perfect it.  This concept may get lost in daily practice, with its competitiveness and all the interactions that can diminish and dispirit us.  But at bottom, “the legal experiences that spur lawyers to perfect their craft and cultivate personal traits like patience and fortitude are the sources of gratitude.”

Our privileged position in society, the chance to do good work and serve a just system, the opportunity to serve others — all these build our own capacity for generosity and caring, and bring meaning to our own lives.

For these things, we should be grateful.

When a court orders you to meet and confer with opposing counsel about a discovery dispute, it requires you to do “something more than bickering with [opposing] counsel ….”  That’s what a California state appeals court noted in affirming $12,600 in sanctions against a defendant represented by a large national firm.  According to the opinion, a partner of the firm was uncivil, patronizing and condescending to the plaintiff’s counsel.  The court cited the transcript of the meeting.

The court didn’t consider any ethics rules in making its ruling; but the case is still a reminder about professional conduct, including Model Rule 3.4(d) (failing to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party), as well as professionalism guidelines that your jurisdiction may have adopted, as my home state of Ohio has in its Lawyer’s Creed, for instance.

Discovery standoff

The sanctions came in a case alleging labor law violations, brought under California’s Private Attorney General Act.  The plaintiff was seeking discovery about other former and current employees of the defendant company; she asserted that in a wage-and-hour representative action she was entitled to the identities of other possible “aggrieved employees.”  The defendant refused to respond to any discovery about such employees.

In a 14-page meet and confer letter, the plaintiff explained her position.  To address the defendant’s stated concerns over the privacy of other employees, she proposed an opt-out process developed through prior California case law in representative actions.  The defendant responded with a two-page letter, refusing to budge.

The plaintiff filed motions to compel and requested monetary sanctions; the defendant’s response relied heavily on a case that on its face supported its position, but which had been de-published and lacked any precedential effect.

Before ruling on the motions to compel, the court ordered the lawyers to meet and confer, and that’s where things got hot, “quickly [becoming] contentious,” as the court said.

A contentious meeting

During the meeting, defense counsel said that opposing counsel’s arguments were “idiotic,” and that she had “lost it;” he interrupted her “multiple times,” and patronized her with comments like “if there’s something you don’t understand about what I’m saying, tell me so I can try to clarify it for you.”  He told her that questions she asked him “made no sense,” and he “taunted” her.  He refused to negotiate for even minimal discovery, although plaintiff’s counsel offered to compromise on the scope of her client’s request.

In sum, the court of appeals ruled, defense counsel “was hostile and unreasonable, and failed to display a sincere effort to resolve the discovery impasse,” and held that the trial court hadn’t abused its discretion in imposing the $12,600 in sanctions.

Just be nice

There are lots of ways lawyers have misbehaved when litigating, but discovery seems to bring out the worst behavior, whether it’s throwing coffee at opposing counsel, eye-rolling and being sarcastic at a deposition, or just objecting every two seconds to your opponent’s cross-examination, and coaching the witness.  As the trial court said to defendant’s counsel here,
“[Y]ou weren’t very nice to anybody at the meet and confer.   So it kind of took away from your papers [i.e. the opposition to the motion].”

Let’s treat each other with respect, people.  And if we don’t, there can be sanctions – against you or your client – waiting at the other end.

A Pennsylvania state court judge disqualified Drinker Biddle & Reath LLP earlier this month from appearing for either defendant in a shareholder dispute involving a Philadelphia LLC that provides services to pharmaceutical companies.  The opinion spotlights the conflict issues that can come up when representing an entity and its controlling member against a claimed minority owner.

Pharma company faceoff

The plaintiff and the individual defendant apparently agreed to form a company in 2010, and the resulting LLC retained Drinker Biddle. In his complaint, the plaintiff alleged that Drinker Biddle prepared operating agreements that (although unexecuted) resulted in an implied agreement giving him an 18 percent stake in the company.

Three years later, however, the plaintiff claimed, the same Drinker Biddle lawyer prepared another operating agreement that froze the plaintiff out and gave the individual defendant 100 percent of the company.

When the plaintiff sued the company and the individual defendant, he included a derivative claim on behalf of the company, asserting that the individual defendant had breached his fiduciary duties.  Drinker Biddle lawyers entered appearances for both the company and the individual, leading to the DQ motion.

Organization as client

The court said that Pennsylvania’s version of Model Rule 1.13 (they are substantively identical) governed.  Titled “Organization as Client,” a rule comment deals with the question “whether counsel for the organization may defend … [a derivative] action.”  The comment says that “if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer’s duty to the organization and the lawyer’s relationship” with individual constituents of the organization.

The court said that such a conflict arises “because the interests of those who control the company (and with whom the attorney has had a preexisting relationship) may diverge from the interests of the company itself.”  Quoting a federal Third Circuit case, the court said that “except in patently frivolous cases[,] allegations of directors’ fraud, intentional misconduct, or self-dealing require separate counsel.”

That was the case here, the court said, because the plaintiff alleged that the individual defendant engaged in self-dealing, facilitated by legal advice from Drinker Biddle, and involving an agreement that excluded the plaintiff.

Scarce law?

In a Law360 article, counsel for the plaintiff said that there was surprisingly little law on the issue, given that “any time there’s a closely held [company] dispute, you routinely have one firm representing the company and also representing the majority and the founding shareholder.”

The court also ruled that Drinker Biddle couldn’t drop one defendant and stay on as counsel to the other, reasoning that its lawyers might be witnesses (Model Rule 3.7), and that remaining for one of its clients in the case would involve the firm in a conflict with the other client (Model Rules 1.7 and 1.9), particularly given the possibility of cross-claims.

Although the opinion is from a state trial court, it is instructive reading if you are involved in a derivative claim situation like this, or are considering representing more than one party in a company control dispute.

The Third District Florida court of appeals got some press this summer when it affirmed an order refusing to disqualify a judge who was Facebook friends with one of the lawyers in a case before her.  The court wrote that “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word,” and therefore being “friends” was not disqualifying, “without more”  — namely a well-grounded fear of partiality.

Now, the law firm on the losing end of that case has asked the Florida Supreme Court to accept an appeal, citing a split on the issue among Florida state appellate courts.

Cases and ethics opinions — some not very friendly

Some of the cases and ethics opinions on Facebook friendships between judges and lawyers have been friendly to the concept, in a qualified way — that is, when there is no other factor that would suggest impropriety or possible lack of impartiality on the part of the judge.

For instance, the professional conduct board in my home state of Ohio advised in a 2010 opinion that nothing in the state’s judicial code bars a judge from being friends – online or offline – with lawyers, even those who appear before the judge.  However, the board said, a judge should disqualify himself or herself when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party.  New York has a similar judicial ethics opinion.

Somewhat similarly, in Youkers v. Texas, the state criminal appeals court ruled in 2013 that a Facebook friendship between the victim’s father and the presiding trial judge was insufficient to show bias as a basis for recusal.

But ethics opinions in some other jurisdictions are more restrictive, and bar a judge from being Facebook friends with lawyers who are currently appearing before them (California) or even may appear before them (Massachusetts).

Florida split

In Florida, the lower courts of appeal have split.  The Third District court of appeals, located in Miami, issued the ruling that is the subject of the state supreme court petition.  In its opinion, it acknowledged that its ruling, declining to disqualify on the basis of a Facebook friendship between the judge and the lawyer for one of the parties, was at odds with a 2012 decision of the Fourth District.  The court there ruled that Facebook friendships between judges and lawyers violated the canons of judicial ethics and created the appearance of impropriety.

The Third District’s opinion agreed with a 2014 decision of the Fifth District, which noted (in dicta) that without more, being Facebook friends “does not necessarily signify the existence of a close relationship.”  (The Fifth District case involved a party, not a lawyer, and affirmed disqualification of the judge where he tried to initiate a FB friendship while the domestic relations case was ongoing).

 True friends

According to the Hebrew Bible, King Solomon said, “Love a friend at all times.” (Pr. 17:17.)   That may or may not be good advice when it comes to judges and their Facebook friends.  In any event, this is an area where continuing ethics developments bear watching, including in the Sunshine State.

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.