Source: OTHERWISE: When Must a Lawyer Plotting a Lateral Move Obtain a Client’s Informed Consent? | Legal Ethics in Motion

When Must a Lawyer Plotting a Lateral Move Obtain a Client’s Informed Consent? | Legal Ethics in Motion
by Anibal Manzano

1. Conflict of Interest and Informed Consent

To avoid a conflict of interest, a lawyer needs to be informed client consent to engage in substantive job negotiations with a law firm that is adverse to the client. Likewise, hiring firms must avoid serious job talks with opposing counsel unless its own client consents. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.

North Carolina Rule of Professional Conduct 1.7 forbids a lawyer from representing a client if the lawyer’s own interests may materially limit the client’s representation unless the lawyer reasonably believes he or she can provide competent and diligent representation and the client gives informed consent, confirmed in writing. N.C. Rules of Prof’l Conduct, Rule 1.7(b)(2) (2003). This type of conflict may arise when a lawyer has discussions about possible employment with a client’s opponent or a law firm representing the opponent. N.C. Rules of Prof’l Conduct, Rule 1.7, cmt. 10.

2. Substantive Discussion or Negotiation

While the exact point at which a lawyer’s own interest may materially limit his representation of a client may vary, the ethics committee advised substantive discussions and negotiations materially limit the lawyer’s representation of a client. Similarly, The Restatement (Third) of the Law Governing Lawyers advises that once the discussion of employment has become concrete and the interest is mutual, the lawyer must promptly inform the client. Restatement (Third) of the Law Governing Lawyers: A Lawyer’s Personal Interest Affecting the Representation of a Client, § 125, cmt. d. (2000).

The ethics committee relied on the ABA definition of “substantive discussion”, which “entails a communication between the job-seeking lawyer and the hiring law firm about the job-seeking lawyer’s skills, experience, and the ability to bring clients to the firm; and the terms of association.” ABA Formal Ethics Op. 96-400 (1996). To find a “substantive discussion,” the ethics committee opined that there must be a discussion or negotiation that is substantive. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.

The committee further provided examples as to what constitutes a “discussion” and what is “substantive.” “Sending a resume blind to a potential employer is not a ‘discussion.” Id. “Speaking generally with a colleague at a social event about employment opportunities is not ‘substantive.’” Id.

To read the full opinion, click here.

Richard Emery, a name partner in a well-known New York City law firm, is also Chairman of New York City’s Civilian Complaint Review Board, which investigates complaints against police officers.  The New York Daily News reports that the City’s Conflict of Interest Board permitted him to “keep his name on the firm’s shingle, and [granted him] a ‘waiver’ allowing his firm to represent plaintiffs in lawsuits against the City.”  A spokesman for the CCRB added that “Mr. Emery recuses himself from any matters in which the firm represents a party associated with the CCRB,” but the Daily News reports that “[n]either the Conflicts Board, nor Emery, would provide a copy of the waiver.” Although the Board may have been applying government ethics law, Emery’s recusal from matters involving his firm would appear to satisfy Rule 1.11 (d).  Similarly, his law firm’s representation of plaintiffs who formerly had matters before the CCRB would appear to satisfy Rule 1.11 (a)(2) so long as “the appropriate government agency gives its informed consent, confirmed in writing,” as happened here.  Note that the language of the Rule 1.11 refers to former government officers but the comment expressly includes current government officers with regard to former matters.  In addition, even without consent, Rule 1.11(b) would permit the representation so long as Emery is timely screened, and the agency receives timely notice.

Judge Jesse Furman of the Southern District of New York recently refused to permit a plaintiff in a civil rights action from substituting a new lawyer on the ground that the lawyer was barred under Rule 1.11.  Furman found that lawyer “participated personally and substantially as a public officer” (Rule 1.11) in investigating plaintiff’s bias complaints when lawyer was Senior Director for Equal Employment Opportunity — not a lawyer position — at plaintiff’s employer agency.

The Colorado Supreme Court recently granted cert in the case of Nathan Yadnez (2015 WL 929996), and the decision likely will provide additional guidance on how far the rule from Cuyler v. Sullivan, 446 U. S. 335 (1980), will extend to conflicts of interest beyond those rising from simultaneous representation of co-defendants or co-participants.

The relevant facts are straightforward.  Defendant Yadnez murdered his mother at the age of 16.  Yadnez’s father, also husband of Yadnez’s mother, hired and paid a lawyer to represent his son.  The father also was a witness for the prosecution.  There were allegations of child abuse that were neither investigated nor raised by the defense.  There was no conflicts waiver.

The question is whether Yadnez’s lawyer was operating under an actual conflict of interest that adversely affected the representation, constituting ineffective assistance of counsel. The Court of Appeals found that there was a conflict, but arising solely from the fact that the lawyer was being paid by father, not sufficient to meet the ineffective assistance of counsel standard.  Defendant Yadnez argues that under Sullivan, the conflict is not merely a Rule 1.8 conflict based on third party payment of fees.  Instead, it is a nonconsentable conflict under Rule 1.7, because the father was a victim of the crime and a necessary witness for the prosecution, creating a risk of a material limitation on the representation, not merely a conflict arising from the payment of legal fees by the father.

OTHERWISE: NY Chief Judge – Judges Should Oversee Grand Juries in Deaths Involving Police – NYTimes.com.

Class actions pose challenges to lawyers who represent competing interests. – gwc
Public Citizen: NFL Concussion Plaintiffs Not Adequate Representatives of Class.
n a post fairness hearing supplemental memorandum filed today Public Citizen’s Allison Zieve argues as amicus curiae that concussion injury class plaintiffs Kevin Turner and Shawn Wooden cannot represent fairly and adequately the many conflicting interests among NFL players and retirees. The relatively limited pot of approximately $765 million has many potential claimants. Although Class Counsel, led by Chris Seeger tried to be fair and balanced it was an impossible task argues Zieve, quoting Justice Ruth Ginsburg in the landmark Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997):
“The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency.”