Recent ethics opinions

By Peter H. Geraghty
Director, ETHICSearch

In August of 2007 and April of 2008, the ABA Standing Committee on Ethics and Professional Responsibility issued two ethics opinions,

Formal Opinion 07-449 Lawyer Concurrently Representing Judge and Litigant Before the Judge in Unrelated Matters (2007) and

Formal Opinion 08-450 Confidentiality When Lawyer Represents Multiple Clients in the Same or Related Matters (2008).

I. Formal Opinion 07-449: Representing Judges

In Formal Opinion 07-449, the Committee considered what a lawyer should do when asked to represent a client before a judge that the lawyer currently represents in an unrelated matter.

The Committee began its analysis by stating that the lawyer should treat the judge as he would any other client, and that

…he must determine, under Rule 1.7(a)(2) if there is a significant risk that the representation of either client would be materially limited by his responsibilities to the other client. If so, the lawyer may proceed with the representation under Rule 1.7(b) only if the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client, and each affected client gives informed consent, confirmed in writing.

The Committee then went on to analyze the judge’s obligations under Rule 2.11 of the Model Code of Judicial Conduct. (Note: The Model Code of Judicial Conduct was adopted by the ABA House of Delegates in 2007, replacing the former ABA Code of Judicial Conduct, which was adopted in 1990.) Under Rule 2.11(A)(1), if the judge “has a personal bias or prejudice concerning a party or a party’s lawyer,” the judge must disqualify herself. The Committee noted that it is not inevitable that the judge would develop such a bias or prejudice under the circumstances and that the judge need not disqualify herself so long as she complies with Rule 2.11(C), which provides that a judge may continue to preside over the matter if the basis of the disqualification does not concern bias or prejudice and is disclosed on the record. “Thereafter, the parties and their lawyers must all consider, out of the presence of the judge and court personnel whether to waive the disqualification and must unanimously agree that the judge should not be disqualified.”

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What if the judge fails to comply with Rule 2.11?

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

…knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

To avoid being a participant in the judge’s misconduct, the Committee stated, the lawyer may communicate with the judge regarding her failure to comply with Rule 2.11(A). The Committee noted that such a communication would not violate the Model Rules and Model Code prohibitions against ex parte communications, since the subject matter of the communications would not extend to the merits of the matter.

Disclosure? Withdrawal? And tips for how to avoid these problems in the first place

The Committee then considered whether the lawyer had an obligation to disclose his representation of the judge, if the judge did not. Under Rule 1.6(a), the fact that the lawyer represented the judge would be considered a client confidence and therefore could not be disclosed without the judge’s consent. The Committee also noted that even if Rule 1.6 permitted disclosure, such disclosure would not cure the judge’s misconduct, since the judge will not have complied with Rule 2.11.

The Committee then discussed the circumstances under which the lawyer may have an obligation to withdraw from one or both of the representations, whether the lawyer would have an obligation to report the judge’s misconduct, and under circumstances where the judge had disqualified herself, for how long the lawyer would be unable to appear before the judge.

With regard to the lawyer’s duty to withdraw, the Committee stated that the lawyer would normally be compelled to withdraw from the representation that was begun later in time, although depending on the circumstances, the lawyer may be required to withdraw from both. With regard to the lawyer’s duty to report, the Committee stated that Rule 1.6 would take precedence over any duty to report a client to a disciplinary authority. With regard to the length of time a judge who had disqualified herself would continue to be disqualified from presiding over a case in which her lawyer or former lawyer appeared before her, the Committee noted that neither the Model Rules of Professional Conduct nor the Model Code of Judicial Conduct contain a specific time frame, and that the general question of whether the disqualification should continue should be decided under the general provisions of Rule 2.11. The Committee cited to New York Adv. Committee on Jud. Eth. Op. 05-143 and New York Ethics Opinion 92-54 (1992) as examples of state bar opinions that had considered this issue in detail.

Finally, the Committee offered practice tips to lawyers to help them to avoid this problem. Put a provision on an engagement letter that the judge will either disqualify herself or make the necessary disclosures on the record as required by Rule 2.11 or have the judge sign an advance waiver of confidentiality, the committee suggested.

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II. Formal Opinion 08-450: Multiple Representation,
Confidentiality and Conflicts

This opinion addressed situations where a lawyer who represents multiple clients acquires confidential information from one client that must be revealed to the other client in order to effectively carry out the representation.

Duty of confidentality vs. Duty to communicate

The Opinion began its analysis by stating that one of a lawyer’s paramount duties is to maintain client confidences under Model Rule 1.6 Confidentiality of Information. The Committee also noted that under Rule 1.4(b) Communication, a lawyer has a duty to provide information “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” In the multiple representation context, these duties can conflict when the lawyer learns information about one client that should be disclosed to the other but that would be detrimental to the client if it were disclosed.

The Committee stated that there are two points in time during the representation of multiple clients where the potential conflicts involving confidential information that can arise must be addressed. The first is at the outset of the representation, where the lawyer must carefully explain the scope of the representation and where the clients’ intentions with regard to the lawyer’s duty of confidentiality can be clarified. The Committee stated further that the clients need to understand that the scope of the representation is limited to defending the insurance claim, and does not include representing either the carrier or insureds in any coverage disputes. Furthermore, the clients should be informed in writing of any potential conflict, and that an advance waiver from either the carrier or employer may be appropriate. (For further information on advance waivers of conflicts of interest, See, ABA Formal Opinion 05-436 Informed Consent to Future Conflicts of Interest; Withdrawal of Formal Opinion 93-372.)

The second point in time at which the lawyer’s obligations regarding confidential information must be addressed is when the lawyer realizes that the disclosure to one client will adversely affect the interests of the other. In such circumstances, the lawyer must balance his obligations under Rules 1.6 and 1.4. The Committee stated:

…Absent an express agreement among the lawyer and the clients that satisfies the “informed consent” standard of Rule 1.6(a), the Committee believes that whatever information related to the representation of a client may be harmful to the client in the hands of a client or third person, the lawyer is prohibited by Rule 1.6 from revealing that information to any person, including the other client and the third person, unless disclosure is permitted under an exception to Rule 1.6….In the event the lawyer is prohibited from revealing the information, and withholding the information from the other client would cause the lawyer to violate 1.4(b), the lawyer must withdraw from representing the other client under Rule 1.16(a)(1).

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Implied authority to disclose?

The Committee noted that there are three circumstances under which a lawyer can disclose confidential information: informed consent, implied authority or an applicable exception. Under the facts of the hypothetical, there was no informed consent, and none of the exceptions to Rule 1.6(b) apply. The only possible circumstance that might apply is that the lawyer would have the implied authority to make the disclosure. Citing paragraph 5 of the Comment to Rule 1.6, which states that “a lawyer may be impliedly authorized to make a disclosure that facilitates a satisfactory conclusion to a matter,” the Committee concluded that under the circumstances, such a disclosure could not be impliedly authorized.

Withdrawal from one or all clients?

The Committee then considered the circumstances under which the conflict between the lawyer’s duty to protect client confidences and the duty to communicate with each client may require withdrawal from the representation. The Committee noted that in some jurisdictions, when a lawyer is hired by an insurer to represent the insured, the substantive law prohibits the lawyer from acting contrary to the interests of the insured, and the lawyer has no obligation under Rule 1.4 to communicate to the insurer information contrary to the interests of the insured. The Committee also noted that while many insurance contracts require cooperation and assistance in the defense, the insured still has the right to expect that his lawyer will not reveal information relating to the representation that is damaging to his interests under the policy. The Committee concluded:

When the lawyer represents the insurer or employer as well as the insured, and the interests of any of the three differ as to the advisability of waiver, Rule 1.16(a) will require withdrawal from representing the conflicting interest(s) that compromise the independent professional judgment to which the client is entitled under Rules 1.7 through 1.9.

…Whether withdrawal from representing all the parties is required is governed by Rule 1.16(a) under which the lawyer’s obligation to withdraw is evaluated separately with respect to each client.

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