EDITED BY: Professor Mike Hoeflich
PUBLISHED BY: Joseph, Hollander & Craft LLC
May 31, 2024
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 5
FEATURE ARTICLE: Attorney Listservs, Advice, & Rule 1.6: Applying ABA Formal Opinion 511
At some point in their careers, most lawyers will find that they need assistance from another lawyer concerning an issue that has arisen in a case. They may not have anyone in their firm who can help them, or they might be solo practitioners. Thus, they may decide that they need to get outside help. Model Rule 1.1 encourages lawyers to seek assistance from other lawyers through “affiliation” to maintain the required standards of competence. However, there are times when a lawyer wants to discuss a difficult issue with another lawyer without affiliating with them formally. Indeed, a lawyer may wish to consult a group of lawyers if the problem she faces is of considerable complexity or difficulty. If a lawyer does so, then she must be sure to maintain client confidentiality.
In Formal Opinion 511, released May 8, 2024, the American Bar Association Standing Committee on Ethics and Professional Responsibility provides guidelines for this. Opinion 511 observes that Rule 1.6 prohibits lawyers from disclosing confidential client information unless the client specifically or implicitly authorizes the disclosure as integral to the representation. Comment 3 to the Rule makes it clear that this prohibition applies even to publicly available information (and guides the reader to see ABA Formal Opinion 04-433 (2004)). Comment 4 to Rule 1.6 specifically prohibits lawyers from revealing information that, while anonymous, might lead others to discover the identity of and other information about the client.
After permitting a lawyer to reveal confidential client information with informed consent, the opinion addresses whether a lawyer may share such information without client consent through hypothetical examples.
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OPINION: Supreme Court Soap Opera Reaches New Dramatic Low
I would not want to be Chief Justice Roberts right now. Even the staggering power he possesses, the incredible perquisites of the job, and the fact that he gets to judge from a really cool chair could not convince me to swap jobs with the Chief Justice. I might have already thought this way after the Court began dealing with the continuing inquiries into Justice Thomas’s finances (and his refusal to show any concerns about them), was scandalized by the leak of a draft opinion (and an investigation that never seems to have been resolved), and was forced by public opinion to adopt an ethics code (albeit one with virtually no teeth). But the events of the past few weeks have somehow escalated the Supreme Court’s soap opera dramatics to even greater heights. There have been not one, but two, questionable flag-flying incidents at Justice Alito’s homes. And to top it all off, Justice Sotomayor announced during an award ceremony that she cried after the Court issued some recent opinions. One wonders what former Chief Justice John Marshall would have said about the current Court.
Here are the first three Canons established for Justices in the new Code of Conduct issued in 2023:
- CANON 1: A JUSTICE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY.
- CANON 2: A JUSTICE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES.
- CANON 3: A JUSTICE SHOULD PERFORM THE DUTIES OF OFFICE FAIRLY, IMPARTIALLY, AND DILIGENTLY.
Underlying the Canons and the behavior of the Supreme Court for more than two centuries has been a common consensus that the Supreme Court is an unelected body that has immense power over virtually every aspect of American life. Americans expect fairness and impartiality from the Justices—a small price to pay in exchange for the power and prestige we bestow upon them. We also expect dignity. We expect the Justices to behave in a manner that represents the profound importance of the Court and its business. There is a reason why the Justices wear somber black robes and not clown suits.
The point of having an ethics code, even if it is toothless, is to assure the public that the Court plays by the rules. The introduction to the new Code of Conduct makes this clear:
The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.
Nevertheless, how are we, members of the legal profession strictly bound to the Rules of Professional Conduct, to comprehend—let alone condone—Justices behaving contrary to their own Code? Even if the Justices’ behavior does not violate the Code, doesn’t it bring the dignity of the Court into question? I am sure that many accept Justice Alito’s explanation that “my wife did it” and feel that Justice Sotomayor’s tears demonstrate how much she cares. However, I find this behavior undignified for a Supreme Court Justice, and I believe that many Americans feel the same way.
ETHICS & MALPRACTICE RESEARCH TIP: Student Article from the Georgetown Journal of Legal Ethics
It has been another quiet month on the ethics article front. However, this gives the LEMR a chance to feature this thought-provoking student note from 2023:
- Cahn-Gambino, Abigail L., “Under Pressure: The Effects of Dobbs on Lawyers Advising Abortion Providers,” 36 Geo. J. Legal Ethics 597 (2023).
There has been a good deal of discussion of the ways in which the Dobbs decision impacts physicians. There has been precious little discussion of how the decision impacts lawyers who represent doctors. This note helps to fill that gap.
A BLAST FROM THE PAST: Accountability to the Highest Standards
It has been well said that the customary presence of attorneys and counselors in courts of justice and their habitual participancy in the most solemn and interesting judicial proceedings, have naturally caused them to be considered a constituent part of the court itself; that, as to many of the functions which they take upon themselves, for failure to discharge these with fidelity and efficiency they are properly held amenable to severe punishment, and that court of justice will, therefore, see to it that their clients are protected against over-reaching by the shrewd and dishonest lawyers, whom they may employ. Certainly lawyers should be held to as strict accountability to their clients as physicians and surgeons to their patients. It was, doubtless, these impressions that induced Chancellor Lansing to pursue and promptly imprison a counselor at law and a high official for what he deemed malpractice and contempt of court.
—L.B. Proctor, Lawyer and Client 148-149 (1882).
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 5
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