Thoughts on ABA Formal Opinion 476

When a lawyers tries to withdraw for a client’s failure to pay, the lawyer must take care to avoid breaching the Rule 1.6 duty of confidentiality, according to the December 2016 opinion. But what does this mean, practically speaking?  I see this as yet another tension between the law as a profession v. the law as a business.

If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business. A lawyer can’t be a professional unless she can get paid.

More thoughts via the ABA Journal article Lawyers Should Tread Carefully Before Quitting a Troublesome Client.

Federal Circuit Recognizes Independent Patent Agent Privilege

This week, the Federal Circuit found that “patent agent”-client privilege exists independent from the attorney-client privilege, resolving a district court split, according to IPethics and INsights.

While the court recognized the “presumption against the recognition of new privileges,” including that “courts have consistently refused to recognize as privileged communications with other non-attorney client advocates,” it  found “that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent litigation counsel in favor of recognizing an independent patent-agent privilege.”

I find this decision particularly interesting in light of the increasing numbers of non-lawyer legal services providers.  While the privilege will no doubt remain sacred, the court’s reasoning did rely on the “clear congressional intent to authorize an agency to create and regulate a group of individuals with specific authority to engage in the practice of law,” a factor which will no doubt be relevant as our regulatory scheme increasingly embraces alternative legal service providers.

h/t to Wake Law Student and Patent Agent John Sears.

 

 

Spotlight and the role of lawyers

I’ve only seen one of the films nominated for an Oscar this season—Spotlight—and it has haunted me. (Fair warning: spoilers ahead, though the film is well worth viewing even knowing how it unfolds.)

This gripping film recounts the true story of Boston Globe editor Marty Baron’s decision to assign the newspaper’s “Spotlight” team of investigative reporters to examine sex abuse allegations against Catholic priest John Geoghan. The reporters’ interviews of victims and efforts to unseal sensitive court documents eventually led them to what we now know was an extensive cover-up of abuse by the Roman Catholic Church over many years involving not just Geoghan but thousands of priests. (The Globe won the 2003 Pulitzer Prize for Public Service based upon this reporting.) The film features brilliant acting by Michael Keaton as editor Walter “Robby” Robinson, Rachel McAdams as reporter Sacha Pfeiffer, and Mark Ruffalo as reporter Michael Rezendes, among others. Most intriguing to me, however, was the role of lawyers in the film, including Erik MacLeish, who represented numerous abuse victims in securing private settlements, and Jim Sullivan, who defended priests accused of abuse and was a long-time friend of Robby Robinson.

The film raises significant questions about legal ethics and personal morality. How do we reconcile the sanctity of confidentiality and attorney-client privilege against the moral dilemma of knowledge about a client’s outrageous acts? It is one thing to maintain confidentiality in representing someone accused of an isolated crime that occurred in the past, but what if a lawyer has information that could prevent hideous child abuse from occurring in the future?

Robinson repeatedly asks Sullivan to become a confidential source by confirming the names of child molesting priests as the Globe’s list of suspects grows. Sullivan struggles—the film captures this beautifully and painfully—then finally relents, confirming dozens of names on the Globe’s list.

MacLeish obtains settlements for hundreds of victims, all subject to strict confidentiality agreements. His work is critiqued by the reporters as essentially being a cottage industry at the expense of future victims, because the settlements prevent the abuse from becoming public. MacLeish maintains that the short statute of limitations and statutory cap on recovery made settlement the best possible outcome for his clients. Perhaps that is true for the individuals he represented; but what about the children who continued to be abused? Does settlement in a situation like this achieve justice or undermine it? (Read Owen Fiss’s Against Settlement for more on that topic.) Here again, MacLeish faces the moral dilemma of whether or not to reveal confidential information. We learn late in the film that he sent information to the Globe many years before the Spotlight investigation occurred; the Globe failed to follow up on it.

What is the role of lawyers in a massive abuse scandal of this nature? Should there be an exception to client confidentiality protections or attorney-client privilege? Does Model Rule 1.6’s exception for breaching confidentiality to prevent an act that is reasonably certain to result in substantial bodily harm apply here?

This article from the Globe’s Spotlight team reporting on the abuse scandal in 2002 offers some answers while at the same time raising even more questions:

“Plaintiff lawyers settle cases confidentially all the time,” said Paul J. Martinek, editor and publisher of Lawyers Weekly USA, a professional journal. “But if you know your client’s been raped by a priest and you settle the case confidentially, knowing that the priest could go out and do it again, your hands aren’t entirely clean.”

Middlesex District Attorney Martha Coakley has also had harsh words for some attorneys who represent victims of priests, saying in an interview that “the plaintiff lawyers bear some responsibility” for keeping abuse by priests out of the public eye by settling cases confidentially.

Looking back, silence has become hard to take

Boston attorney Laurence E. Hardoon, who took on his first clergy sex abuse client in 1992 and has since handled between 20 and 30 such cases, reflected on his role in this ugly chapter with a twinge of regret.

“If we had any inkling whatsoever of the magnitude of harm that was out there, maybe we, as a joint group of plaintiff lawyers, would have tried to encourage our clients to be outspoken in many cases,” said Hardoon, who formerly served as a Middlesex assistant district attorney. “It’s hard not to look back and say the greater good would really have been served by the lack of secrecy earlier on.”

Jeffrey A. Newman, of the Boston firm Newman & Ponsetto, has represented scores of alleged clergy sex abuse victims, and voiced a public mea culpa over his involvement in a handful of earlier cases that he settled secretly.

“Had I been more astute, I probably could have recognized the problems better,” Newman said. “I just never took the time to examine them closely enough.”

But MacLeish, Hardoon, Newman, and other plaintiff lawyers also say they were hamstrung by restrictive state laws that limited their ability to press charges against alleged offenders. They also blame legislators for failing, until recently, to require church officials to report suspected abuse. They and others have also pointed a finger at judges, prosecutors, and the press for being too deferential to the church over a long period of time.

They argue they were torn between their obligation to zealously represent their damaged clients, few of whom wanted their personal lives exposed in a courtroom, and the church’s reluctance to settle cases without confidentiality clauses. As a result, some legal experts say, secrecy was often the only option.

“If you can get $100,000 or $500,000 for your client and the price of that is silence, the lawyer’s sort of in a bind,” said Andrew L. Kaufman, who teaches ethics at Harvard Law School and sits on ethics committees for the Massachusetts Bar Association and Supreme Judicial Court.

“Ultimately, it’s the client who instructs the lawyer on whether to accept the offer,” Kaufman said. “And as long as a confidential settlement is lawful, sometimes a lawyer’s got no choice but to accept it.”

(Cross-posted at the Legal Ethics Forum)

New ABA Opinion on Ethical Duty when Client Documents are Subpoenaed

In Formal Opinion 473 (Feb. 17, 2016), the ABA provides new guidance to lawyers receiving subpoenas for client documents or information.  The opinion states that whenever a lawyer receives a subpoena or any other compulsory process for documents or information relating to the representation of a client, several obligations are implicated.  First, the lawyer must consult with the the client, if the client is available.  Next, unless the client instructs otherwise, the lawyer must assert all reasonable claims against disclosure and seek to limit the scope of any disclosure.  Next, if ordered to produce any information, the lawyer should consult with the client on whether to appeal the ruling.  Finally, if the client and the lawyer disagree on how to proceed, the lawyer should consider whether to withdraw from the representation pursuant to Rule 1.16.

The new opinion goes into some detail to explain what the lawyer should do if the client is unavailable, and to the duty to take steps to protect client confidentiality.  The opinion should be a very helpful resource to any lawyer facing attempts to pierce client confidentiality.

The new opinion is also a useful addition to Formal Opinion 10-456 (July 14, 2010), which addressed the disclosure of client information to a prosecutor when a lawyer’s former client brings an ineffective assistance of counsel claim.  Formal Opinion 10-456 makes clear that a lawyer may only disclose confidential information that the lawyer believes is reasonably necessary for the lawyer’s self-defense.

 

Conflict bw state reporting statute and binding RPC creates risk for lawyers

Let’s revisit a 2015 Indiana State Bar Legal Ethics Committee Opinion (see our previous post here).  Contemporary Professional Responsibility co-author Peter Joy explains in the ABA Journal this month how a conflict between a state statute and a binding Rule of Professional Conduct may create risk for lawyers.  The Opinion covers an Indiana statute that requires immediate reporting by those “who have reason to believe” that a child is an abuse or neglect victim; lawyers are not exempt from reporting.  The ethics opinion considers how this can be squared with Rule 1.6, finding, as Professor Joy explains, “that a lawyer only has to follow the law and report child abuse or neglect necessary ‘to prevent reasonably certain death or substantial bodily harm,’ which is the standard in Indiana’s confidentiality rule for permissive reporting of a client’s confidence.

This is a great teaching example of how other rules governing lawyers – beyond the Rules of Professional Conduct – may create confusion, or even a conflict with the binding RPC. A good example for Chapters 1 or 4.

 

Chapter 4, Confidentiality, and a New EU Case on Lawyer Surveillance

If you are looking for a way to introduce cutting-edge issues into Chapter 4 on lawyer confidentiality, you can refer to a CCBE press release about an October 27, 2015 decision from the Dutch Court of Appeals regarding lawyer surveillance.  The CCBE is the acronym for the Council of Bars and Law Societies of Europe, which represents the bars and law societies in the EU. The press release included the following summary of the background of the case:

“In May of this year the CCBE successfully intervened before The Hague District Court in a challenge brought against the Dutch State by the law firm Prakken d’Oliveira and the Dutch Association of Criminal Defence Lawyers (NVSA). The Court was questioned on the legality of eavesdropping by domestic intelligence agencies on lawyers’ calls and communications. In its verdict delivered on July 1st, the court recognised that the ability to communicate confidentially with a lawyer is a fundamental right which is currently being breached under Dutch surveillance policy. The court therefore ordered the Dutch government to stop all interception of communications between clients and their lawyers under the current regime within six months. In response, the Dutch State fast-tracked an appeal against the judgement.  On 25 August, the CCBE challenged the grounds of the appeal.”

The CCBE press release reported that the Dutch Court of Appeal had upheld the trial court’s ruling, noting that:

“In its ruling, the Dutch Court of Appeal dismissed all the grounds of appeal alleged by the Dutch State. The Court indicates that according to case law of the European Court of Human Rights surveillance activities must be subject to review by an independent body with the power to prevent or terminate potential infringements of professional secrecy.”

The CCBE press release contains links to the court decisions (in Dutch) and news stories.  Additional information is found on this CCBE Surveillance Working Group webpageThis CCBE webpage also has confidentiality-related information.

Indiana Ethics Opinion on Confidentiality and Mandatory Child Abuse Puzzling

A new ethics opinion on confidentiality by the Indiana State Bar Association Legal Ethics Committee reaches some puzzling conclusions.  The committee considered whether Indiana’s mandatory reporting statute for suspected child abuse or neglect required a lawyer who learns of such abuse or neglect while representing a client must report it.  While acknowledging that the Indiana Supreme Court is the final authority on both the law and ethics in Indiana, the committee concluded that a lawyer was not required to report the suspected abuse unless the lawyer believed it necessary to prevent reasonably certain death or substantial bodily harm.  While that seems reasonable on its face, the committee made several leaps in reasoning to get there and may have provided some ill advice to lawyers in Indiana.

Unlike some other states, Indiana’s reporting statute does not exempt lawyers from the reporting duty.  That means, unless the Indiana Supreme Court would step in and decide that the state’s Rule 1.6 trumps the state law, a lawyer who follows the opinion could be prosecuted for failing to report.  In addition, the committee fails to acknowledge that Indiana’s Rule 1.6, like the ABA Model Rule, contains that confidentiality exception “to comply with other law or court order.”

Next, the committee inexplicably reasoned that because of the mandatory reporting law a lawyer must report suspected abuse or neglect “to prevent reasonably certain death or substantial bodily harm” even though the exceptions to confidentiality in Indiana’s Rule 1.6, like in the ABA Model Rule, state that a lawyer may reveal information relating to a client’s representation in order to prevent reasonably certain death or substantial bodily harm.

The ethics opinion may state a good policy position, but the committee goes out on limb by creatively trying to reconcile a lawyer’s ethical and legal obligations in such a situation.  As it stands now, there is a direct conflict between the mandatory reporting law and the ethics rules, and the ethics opinion does not resolve this quandary for lawyers in Indiana.