Tuesday, December 8, 2015

When Ethics Rules Attack: A Real-Life Example

I recently published an article criticizing ethics rule 1.9(c), and also filed a petition and memorandum (coauthored with Terry Rose) asking our state supreme court to change the rule.  The rule, which prevents attorneys from discussing even public aspects of their closed cases, not only violates our right of free political speech, but is an absolute disaster on every imaginable level.  I wrote in the article that the rule is nonsensical and indecipherable, leaving us lawyers at the mercy and whims of anti-lawyer bar associations and regulators. 

For example, if I want to write a law review article or present at a legal conference by discussing a former client’s published case, am I “using” or “revealing” that information?  The distinction, as it turns out, is critical, as it could trigger the exception for “generally known” information.  But “generally known” does not include widely and publicly available information, which leads to the question: how do I figure out what is “generally known”?  And “generally known” by whom?  The public?  All literate adults?  All literate adults in my geographic area?  All lawyers?  All lawyers attending my lecture?  (Well, obviously the information would not be “generally known” by them — if it were, they wouldn’t be coming to hear me talk.)  And if I’m “revealing” the information, how can I “reveal” something that is already publicly available to anyone with an internet connection?  Well, I can, but the regulators can’t explain how — instead, they just change the word “reveal” to “communicate,” or something similar.  And finally, regulators often get confused about which rule applies: rule 1.9 or 1.6.  This makes it particularly fun for a lawyer to try to fulfill their “ethical” duties. 

Some of these and other bizarre, irrational complexities, were on full display when a professor was recently pinned to the wall for an ethics violation when, according to the regulators, he misadvised a former law school student who, apparently, was also unable to make sense of the rules.  And the regulators?  Well, they seem to ignore the difference between current clients (rule 1.6) and former clients (rule 1.9) in the District of Columbia ethics rules, turning this all into a big mishmash of chaos.  (Although, in the end, the distinction between the two may not matter.)  You can find a brief summary of the case here, and the convoluted disciplinary letter here.   

While the above case doesn’t really deal with the free speech issues that drove me to write my article — instead, the lawyer in the above case was trying to protect herself from alleged criminal activity of a former corporate client and sought the advice of her former professor — it’s a nice example of how ethics rules can attack even the smartest and well-intentioned lawyers at anytime and without notice.  And to see the more “common” or “typical” examples of lawyers getting ensnared in ethics violations — including when rule 1.9 conflicts with other ethics rules, thus ensuring at least one ethics violation — check out my article On the Absurdity of Model Rule 1.9

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