ALI-ABA Course of Study

ADVANCED EMPLOYMENT LAW AND LITIGATION

November 29-December 1, 2007

Ethical Considerations in Employment Litigation

by
Debra S. Katz ¹
Katz, Marshall & Banks, LLP
Washington, D.C.

Contents at a Glance:

Legal Ethics in the Representation of Multiple Parties

Extrajudicial Statements:
Lawyers' Ethical Obligations In Communicating With The Press

Ethics of Viewing and/or Using Metadata

Legal Ethics in the Representation of Multiple Parties

I.  Introduction

This chapter surveys several hot topics in the intersection between employment law and the ethical requirements and obligations of attorneys in multiple representation contexts. We have reviewed a representative sampling of cases and professional responsibility opinions from various jurisdictions that reflect the spectrum of permissible and impermissible conduct. The ABA Model Rules of Professional Conduct (1983, as amended through 2002) have been used as the baseline, although a minority of jurisdictions, including New York, still uses the older ABA Model Code of Professional Responsibility (1969), and California has its own combination of statutes and judicial rules governing attorney conduct. It must be emphasized that even if two jurisdictions have adopted the same version of a provision of the Model Rules (or the Model Code), the interpretation of that provision by the courts and committees on professional conduct may significantly differ between the two jurisdictions.

Useful links to bar associations, rules of conduct, ethics opinions and related resources, at the state level, include:

ABA Center for Professional Responsibility 
FindLaw: Ethics and Prof. Resp. 
Georgetown Law Library Catalog 
Internet Legal Services 
Legal Information Institute 

II.  Representation of Multiple Plaintiffs

The ABA Model Rules, as for most other ethics standards, permit multiple representation of non-adverse clients, provided that there is suitable informed consent in advance. The ABA Model Rules further require that the lawyer reasonably believe that multiple representation will not adversely affect the lawyer's ability to adequately represent each client. The issues that typically arise in multiple representation situations are: (1) the potential existence of conflicts in the joint representation, how to minimize them, and obtain informed consent; (2) the nature of informed consent needed; (3) issues arising from the joint settlement of plaintiffs' claims; and (4) the attorney's obligations if conflicts arise subsequent to obtaining informed consent to the multiple representation. The analogous ethical conflicts that may arise in employment discrimination class actions are not discussed here, but have been recently summarized by Mersol. See G.V. Mersol, "Ethical Issues in Class Action Employment Litigation," 20 Labor Lawyer 55 (2004).

A.  Conflict of Interest and Disqualification

Rule 1.7 of the ABA Model Rules governs conflicts of interest. Rule 1.7 was completely rewritten in 2002, and currently provides that:

(a)  Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1)  the representation of one client will be directly adverse to another client; or
(2)  there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b)  Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1)  the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2)  the representation is not prohibited by law;
(3)  the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4)  each affected client gives informed consent, confirmed in writing.

ABA Model Rule 1.7 (2002).²

Rule 1.7(a) governs cases in which the representation of one client is directly adverse to the representation of another and arises infrequently in the multiple representation of employment discrimination plaintiffs. Rule 1.7(b) encompasses the multiple representation context: situations in which a lawyer's representation "may be materially limited by the lawyer's responsibilities to another client, a former client to a third person, or by a personal interest of the lawyer." In such situations a lawyer can only represent the client if the lawyer "reasonably believes" the representation will not be affected, the representation is not prohibited by law, there are no client conflicts, and each client gives informed consent in writing. Comment 8 to Rule 1.7 provides that the critical inquiry in determining whether multiple representation is appropriate is the likelihood that a conflict will arise.

A client may consent to joint representation notwithstanding a conflict, but the lawyer should not seek consent when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances. For example, a conflict may arise from a substantial discrepancy in the prospective clients' testimony, incompatibility in their positions in relation to an opposing party, or the fact that there are substantially different outcomes for the claims or liabilities in question. See Rule 1.7 cmt. 23.

The Rhode Island Bar addressed the issue of representation of multiple plaintiffs in Opinion No. 93-15 (Mar. 31, 1993). This opinion is based upon a scenario in which an attorney represented two plaintiffs who were separately suing a single defendant. Both plaintiffs sustained injuries and or damages that potentially exceeded 50% of the defendant's insurance policy limit. The concern was that if one case settled first, the second plaintiff's right to a full settlement might be prejudiced. The panel concluded that Rule 1.7 applied and mandated withdrawal from representing one client.

The New York State Bar Association Committee on Professional Ethics addressed a similar question in Opinion No. 639 (Dec. 7, 1992). At issue was whether a lawyer may represent two plaintiffs injured in the same fire in separate suits against a defendant, when there is likely to be insufficient assets available to satisfy fully all of the parties' claims. Neither client caused or contributed to the fire or the other's respective injuries. Although the inquiry concerned the attorney's ethical obligations in accepting potentially adverse multiple representations under a rule patterned on the Model Code DR 5-105, the Code and Model Rules are substantially similar and the outcome would likely be similar under Rule 1.7.

New York's DR 5-105(A) prohibits a lawyer from accepting a case which is likely to involve representation of "differing interests," including conflicting, inconsistent, diverse and other interests that will adversely affect the judgment or loyalty of an attorney to a client. While this is accepted to include issues arising from the varying stages of litigation, it is broadly interpreted to also encompass inconsistent and other interests that will adversely affect the attorney-client relationship. DR 5-105(c) permits an attorney to represent both clients where the attorney can adequately represent both clients and after proper consent has been obtained from each client after full disclosure of the possible effect of such representation on the exercise of the lawyer's independent professional judgment on behalf of each.³

The Committee concluded that the interests of the two clients would be inconsistent, and hence "differing interests" within the meaning of DR 5-105, if the available assets are likely to be insufficient to satisfy the judgments that realistically might be obtained by the clients in the aggregate. In reaching this result, the Committee relied on Alabama Opinion 82-591 (Mar. 17, 1982) (a lawyer may not represent all plaintiffs in an automobile accident case where the assets are not sufficient for the full satisfaction of all potential claims and a recovery by one claimant would reduce the assets available for the satisfaction of the other claims); Colorado Opinion 58 (Mar. 21, 1981) (lawyer may represent more than one client involved in the same water rights litigation, unless the claims or rights of one client could impair the rights or claims of another client); and Matter of Guardianship of Lauderdale, 15 Wash. App. 321, 549 P.2d 42 (1976) (regarding apportionment of a settlement of a wrongful death action, an attorney may not act as guardian ad litem for several minors whose interests are not substantially the same where he must recommend a larger settlement for one to the potential detriment of another).

The New York Committee further concluded that once the attorney determined that insufficient assets likely would be available to pay aggregate judgments, the attorney must decline the representation or determine whether consent may be obtained. Multiple representation is proper under DR 5-105(c) only if it is obvious that the lawyer can adequately represent both clients and each consents after full disclosure. The Committee noted that the "obviousness" condition may be met if both claims can be pursued zealously by the same lawyer (and the respective interests are not divergent except as to the lack of sufficient assets for satisfaction), with the a priori agreement that the plaintiffs will divide the available assets in proportion to their respective judgments or in accordance with an agreement regarding the allocation of recoveries.

The District of Columbia Bar took a slightly different approach in Opinion No. 248 (June 21, 1994), which addressed the case of an attorney who wanted to represent plaintiffs who were unsuccessful candidates for the same position and both claimed that their non-selection was discriminatory. The attorney asserted that to establish liability he need only prove that each plaintiff was better qualified than the person selected.

The D.C. Ethics Committee noted that pursuant to D.C. Rule 1.7, a lawyer might be able to represent multiple clients in the liability phase of a case, but agree to represent only one of the clients in the damages phase.⁴ The Ethics Committee also noted that while bifurcated proceedings had been common in employment discrimination cases in the past, passage of the Civil Rights Act of 1991 permitting jury trials and compensatory damages (42 U.S.C. § 1981a), created the prospect that one side or the other may benefit from, and be entitled to insist upon, a unified trial of all issues, covering both liability and damages.

While the D.C. Ethics Committee was "not prepared to say that Rule 1.7 precludes such representation," it did set forth various scenarios suggesting that such multiple representation situations are rife with problems. The Bar posited a situation where even if an agreement were reached that counsel would represent both plaintiffs with respect to proving liability only, relief issues could arise at any stage of the litigation in the context of settlement discussions. For example, the defendant employer might argue that since there was only one position that both plaintiffs claim they each should have received, only one of the plaintiffs could have been selected for the position. Thus, only one plaintiff would be entitled to reinstatement, backpay and damages. The Committee reasoned that a lawyer could not represent both plaintiffs under circumstances where it might be in the interest of each plaintiff to demonstrate that he or she, and not his or her co-plaintiff, was better qualified and should have been selected for the position. The lawyer would then be in a position of having to take "adverse positions" for the two clients in the same matter.

The D.C. Ethics Committee noted that as an alternative, the lawyer and clients could agree in advance to limit the objectives of the representation to establishing liability, as permitted by Rule 1.2(c).⁵ The Committee expressed doubts as to whether a client, if adequately informed about the possible constraints on a lawyer's representation, would consent to such joint representation or would agree to limit the scope of the representation in such a way that a lawyer could reasonably conclude that he or she would be able to satisfy his or her duty of zealous representation. Despite all of these misgivings, the Committee declined to adopt a per se rule banning such joint representation. The Committee made clear, however, that a lawyer can proceed with such representation only if the lawyer concludes that zealous representation is possible and obtains fully informed consent.

Another problem can arise when a defendant files a counterclaim against one of the plaintiffs. In such situations, the plaintiffs generally can consent to continued representation. In Hamilton v. Merrill Lynch, 645 F. Supp. 60 (E.D. Mich. 1986), the defendants moved to disqualify an attorney representing multiple plaintiffs in a securities action. One of the defendants filed a counterclaim against one of the plaintiffs alleging that this plaintiff was the person responsible for all of the other plaintiffs' losses. The defendants argued that this plaintiff's interests were adverse to the interests of the other plaintiffs. The court held that the plaintiffs' counsel could adequately represent the interests of the plaintiffs so long as they all agreed that it was the defendants who engaged in the fraud that caused their injuries. The court also noted that disqualification is not required when a defendant files a counterclaim stating that one plaintiff is solely responsible for the losses to the other plaintiffs, so long as all of the plaintiffs have consented to joint representation after full disclosure of the possible effects of multiple representation and after obtaining the advice of independent counsel. Id. at 61-62.

In Gustafson v. City of Seattle, 87 Wash. App. 298, 941 P.2d 701 (1997), the plaintiffs, a married couple, were involved in an automobile accident where the other driver counter-claimed that the husband was contributorily negligent. Citing Washington Rule 1.7(a), the court held that in such cases, an attorney must get the informed consent of each client prior to representing them jointly, unless it reasonably appears that the other party is solely liable. However, the court stressed that passengers and drivers have potentially conflicting interests whenever they are involved in a collision and that a claim against the driver is reasonably foreseeable. Therefore, consent from both the husband and wife after full disclosure of the material facts was required as it was reasonable to anticipate that a counterclaim would be filed charging the driver with contributory negligence. Gustafson, 941 P.2d at 704.

B.  Judging Informed Consent

In order to satisfy the consent requirement in a case with potential conflicts of interest, lawyers should, at a minimum, explain to their clients: (1) the ways in which their interests could come into conflict; (2) the possible hampering of their respective claims if they were to agree not to take conflicting positions; (3) the possible increased cost and disruption if it were necessary for either or both clients to retain new counsel later, and (4) the implications concerning compensation if a contingent fee is contemplated. See, e.g., D.C. Bar Opinion No. 248, supra. Informed consent has been found where a client studied a consent form for 20 minutes prior to signing it and the consent form included an explanation of the potential conflicts and legal rights of the parties involved. See Zador Corp. v. Kwan, 31 Cal. App. 4th 1285, 1301, 37 Cal. Rptr. 2d 754 (1995). The court stressed that attorneys are not required to disclose every possible consequence of a conflict in order for consent to be valid so long as the clients understand the general issues involved with their joint representation. Id.

Attorneys must be very careful to inform all clients fully of the potential conflicts of interest as a court may disqualify counsel if the plaintiffs are not sufficiently aware of the potential problems with joint representation. In one case involving forty plaintiffs suing over the death of a relative, a magistrate judge found a conflict of interest between the heir and non-heir plaintiffs and ordered the plaintiff law firm to fully disclose possible future conflicts to all plaintiffs. See Figueroa-Olmo v. Westinghouse Elec. Corp., 616 F. Supp. 1445 (D.P.R. 1985). The law firm proceeded to obtain statements from the plaintiffs saying that the conflicts were explained to them and after "amply discussing the matter" consented to representation. Id. The generalized language, along with plaintiff counsel's refusal to acknowledge the severity of the potential conflict, prompted the district judge to reject the statements and order an individual questioning of each plaintiff before proceeding with the case. Id.

The District of Columbia Bar has endorsed the "joint statement of facts test" to evaluate whether consent is informed. This test, which consists of the following, provides considerable protection to the plaintiffs:

(1)  The co-parties agree to a single comprehensive statement of facts describing the occurrence.

(2)  The attorney reviews the statement of facts from the perspective of each of the parties and determines that it does not support a claim by one against another.

(3)  The attorney determines that no additional facts are known by each party which might give rise to an independent basis of liability against the other or against themselves by the other.

(4)  The attorney advises each party as to the possible theories of recovery which each may be foregoing through this joint representation based on the disclosed facts.

(5)  Each party agrees to forego any claim or defense against the other based on the facts known by each at the time.

(6)  Each party agrees that the attorney is free to disclose to the other party, at the attorney's discretion, all facts obtained by the attorney.

(7)  The attorney outlines potential pitfalls in multiple representation and advises each party of the opportunity to seek the opinion of independent counsel as to the advisability of the proposed multiple representation;⁶ and, each either consults separate counsel or advises that no separate consideration is desired.

(8)  Each party acknowledges that the facts not mentioned now but later discovered may reveal differing interests, which, if they do not compromise these differences, may require the attorney to withdraw from the representation of both without injuring either.

(9)  Each party agrees that the attorney may represent both in the litigation.

See District of Columbia Bar, Opinion No. 140 (July 7, 1984). The "joint statement of facts" test is based on the ABA Committee on Ethics and Professional Responsibility Informal Opinion 1441 (1979).

Note that some courts may order disqualification even when each party consents to the joint representation, despite the conflict. For example, in Caprioty v. Bell, Civ. A. No. 89-8609, 1991 WL 22134, 1991 U.S. Dist. LEXIS 1930 (E.D. Pa. Feb. 19, 1991), the court ordered disqualification of the plaintiffs' attorney where one plaintiff was potentially liable to the other plaintiff under an indemnity agreement. The plaintiffs were, respectively, an administratrix of an estate and an insurance company from which the administratrix had obtained bonds. After the estate failed to pay taxes, the state named the administratrix personally liable for the debt. The insurance company, as guarantor for the administratrix, paid the full value of the bonds toward the back taxes. The two plaintiffs then joined together to sue the estate's attorney for malpractice related to his handling of the estate taxes. The court held that, even though the two plaintiffs were at that time united in interest, because the insurance company could potentially seek indemnity from the administratrix under their contract, there was an irreconcilable conflict of interest. The potential conflicts included the fact that the administratrix would have a greater interest in choosing a trial over settling so that, if the full value of the bonds were awarded to the insurance company at trial, the indemnification claim against her would be foreclosed. The court found that consent was not possible under these circumstances.

A similar conclusion was reached in D.C. Bar Opinion No. 131 (Nov. 15, 1983). The D.C. Ethics Committee concluded that a firm representing a plaintiff class in a discrimination action against a federal agency could not also represent an employee-grievant at that agency in an unrelated administrative action to remove certain performance evaluations in the employee's file, including some prepared by a supervisor who was a class member in the other action. In determining that such representation constituted a non-waivable conflict, the Committee concluded that success in representing the employee would amount to a successful attack on the supervisor/class member's judgment, and that such a ruling could be used to deny the supervisor relief in the class action.

The Eighth Circuit Bankruptcy Appeal Panel reached a similar conclusion in In re McGregory, 340 B.R. 915 (BAP 8th Cir. 2006). The court held that an attorney's dual representation in a debtor's refinancing transaction, both as counsel for debtor and as an employee of lender, presented such an inherent and impermissible conflict of interest that could not be waived by informed consent. Id. at 921. In doing so, the court looked to the Missouri Supreme Court's holding that some types of conflict cannot be cured by consultation and consent, and in particular, its finding that attorneys for settlement service providers may not represent or furnish legal services to the provider's customers "because, when a lawyer is laboring under this kind of conflict of interest, the conflict in effect forecloses alternatives that would otherwise be available to the client." Union Planters Bank v. Kendrick , 142 S.W.3d 729, 737 (Mo. 2004).

Courts will require some degree of probability of conflict to mandate disqualification. See, e.g., Shaffer v. Farm Fresh, Inc., 966 F.2d 142 (4th Cir. 1992) (Fourth Circuit reversed the judgment of the district court disqualifying counsel for the employees). In this case, a law firm represented both employees of Farm Fresh as well as the Union that had been conducting an extensive organizing campaign to become the exclusive bargaining representative of Farm Fresh Employees. The law firm brought a class action law suit against Farm Fresh under FLSA on behalf of Farm Fresh employees. Farm Fresh sought to disqualify counsel on the ground that a potential conflict might develop (e.g., the Union might object to a quick, confidential settlement because it would not further its organizing objectives.)

The Fourth Circuit held that while Virginia's Disciplinary Rule 5-105(B) prohibits multiple representation by an attorney if his or her independent judgment on behalf of a client is or is likely to be adversely affected by representation of another client, the argument in favor of disqualification was "too attenuated a basis upon which to disqualify counsel."

1.  Joint Representation: Confidentiality v. Duty to Keep Client Informed

In 2000, the D.C. Bar issued an opinion addressing the issue of "Joint Representation: Confidentiality of Information," D.C. Bar Opinion 296 (Feb. 15, 2000). The D.C. Bar specified that when a lawyer undertakes representation of two clients in the same matter, the lawyer "should address in advance and, where possible, in writing, the impact of joint representation on the lawyer's duty to maintain client confidences and to keep each client reasonably informed." The lawyer should "obtain each client's informed consent to the arrangement."

a.  The mere fact of joint representation, without more, "does not provide a basis for implied authorization to disclose one client's confidences to another." Id.

b.  Where express consent to share client confidences has not been obtained and one client shares in confidence relevant information that the lawyer should report to the non-disclosing client, in order to keep that client reasonably informed, the lawyer should: "[s]eek consent of the disclosing client to share the information or ask that client to disclose the information directly to the other client. Id.

c.  If the lawyer cannot achieve disclosure, a conflict of interest is created that requires withdrawal. Id.

In a 2005 D.C. Bar Opinion "Joint Representation: Confidentiality of Information Revisited," D.C. Bar Opinion 327 (March 2005), the D.C. Bar now concluded that where one client has given consent to the disclosure of confidential information by the lawyer to another client, "the lawyer must do so if the information is relevant or material to the lawyer's representation of the other client." The Bar reasoned that "[b]ecause the disclosing client previously has waived confidentiality, there is nothing to weigh against either the nondisclosing client or the lawyer's obligation to keep that client reasonably informed."

2.  Where Disclosed Confidence Involves Fraud or Criminal Activity

In the D.C. Bar's 2000 Opinion on "Joint Representation: Confidentiality of Information," D.C. Bar Opinion 296 (Feb. 15, 2000), it made clear that where the disclosed confidence involves fraud or criminal activity that may detrimentally affect others involved in the representation in the future, the lawyer may retract or disaffirm documents that were premised on the fraud.

C.  Ethical Issues Posed By Settlement With Multiple Plaintiffs

Settlement raises a number of difficult issues when representing multiple plaintiffs. Rule 1.8 (g) provides that: "A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients . . . unless each client consents after consultation, including disclosure of the existence and nature of all the claims . . . involved and of the participation of each person in the settlement." See Rule 1.8. Under Model Rule 1.2(a), a lawyer must abide by a client's decisions concerning the objectives of representation and whether to accept an offer of settlement.

Settlement issues can create a variety of conflicts between co-plaintiffs. It is frequently the case that a defendant will not wish to settle a case piecemeal, and will condition settlement on attainment of a global resolution between the parties. If some, but not all, of the co-plaintiffs wish to settle the matter, a conflict will develop between the co-plaintiffs. In employment discrimination cases, where emotions tend to run high, a plaintiff who sees her role as vindicating larger interests than her own may wish to take her case to trial to have a public airing of the issues. Her co-plaintiff(s) might not share this public interest goal, and may instead wish to settle the case.

Another common conflict occurs between plaintiffs when apportioning or distributing settlement monies. Although Rule 1.8 prohibits attorneys from making an aggregate settlement of the claims without consent of the clients, defense counsel often present settlement offers in that manner. While it is not considered unethical for a defendant to make such "blanket" settlement offers,⁷ the plaintiffs' attorney is potentially confronted with a conflict of interest. If the co-plaintiffs do not consent to the lawyer's participation in aggregate settlement discussions, co-plaintiffs often find themselves bidding against one another to secure the largest share of the settlement monies that the defendant has offered or would be prepared to pay. Co-plaintiffs may also differ on the type of relief that they would be prepared to accept, creating yet other types of conflict. For example, a defendant might be willing to pay a large sum of money for the plaintiffs to forego reinstatement or the right to reapply for a position with the company. This might be acceptable to one plaintiff who has secured alternate employment in the interim, but not to his co-plaintiff who has been unemployed since his termination.

The Standing Committee on Professional and Judicial Ethics of the State Bar of Michigan addressed the issue of acceptance of a court-ordered mediation award by some clients and its rejection by others in Opinion No. RI-134 (May 28, 1992). A mediation determination of $7,500 was made, to be divided equally among three plaintiffs - $2,500 to each. Under court rules, the mediation award was deemed rejected unless all the clients accepted it. Applying the Model Rules, the Committee determined that an attorney must withdraw from the representation of all clients unless they all consented to the attorney's continued representation. The rejection of a mediation award by one client is directly adverse to the interests of the other clients who wish to accept the award, therefore triggering Michigan Rule 1.7(a). An attorney may not represent a client where the representation of that client is directly adverse to another unless the attorney reasonably believes the representation will not adversely affect the relationship with the other client, and each client consents. Where two or more clients accept the terms of the mediation award and one objects, Michigan Rule 1.7(b) applies, since this situation materially limits the attorney's responsibilities to the client who rejects the award.

The Committee, however, noted that if the mediation award is rejected, and the matter goes to trial, the lawyer may continue to handle the joint representation because the conflict arose with respect to decisions about settlement, and not because of any factual dispute, differing legal argument or benefit or detriment to a client in pursing the representation, as long as the clients waive the conflict. The Committee also found that paying individual mediation fees in order to receive separate mediation awards for each client would not relieve the conflict question. The Committee reasoned that the conflict arose because the lawyer had undertaken duties to each client that were in conflict if the clients made differing decisions regarding acceptance of the award, not because the mediation award was presented in the aggregate.

Attorneys may wish to head-off potential conflicts by encouraging plaintiffs at the commencement of the representation to agree to an approach for deciding whether to settle, and how to divide settlement monies. For example, plaintiff's counsel in Allegretti-Freeman v. Baltis, 205 A.D.2d 859, 613 N.Y.S.2d 449 (N.Y. App. Div. 1994), a breach of contract case, drew up an agreement which conditioned settlement of any individual plaintiff's case, upon majority approval by the other plaintiffs. Defendants sought the disqualification of the law firm, arguing that this agreement violated public policy by placing an improper restriction on the ability of any individual plaintiff to settle, and therefore created an impermissible conflict of interest.

The court held that the agreement did not violate public policy. It reasoned, that where several plaintiffs agree to pool their resources for litigation purposes, "we cannot say that it is improper for them to require as part of that agreement that their cases be handled in a uniform matter." The court also rejected the defendants' argument that multiple representation of the parties posed an impermissible conflict of interest justifying the firm's disqualification.

The court noted that "[i]n this case it is not difficult to envisage a scenario wherein [the attorney's] loyalty to the multiple plaintiffs would become divided should certain plaintiffs desire to accept a settlement offer notwithstanding the majority's lack of consent." Id. at 861. The attorney could not represent the interests of the plaintiffs who decided to breach the agreement conditioning settlement on majority approval, and plaintiffs who decided not to accept the settlement. However, the court then stated that such a scenario had not arisen, and seemed unlikely to arise. Because of the hardship that disqualification would pose in the form of delay and increased costs, the court declined to disqualify the attorney, despite the fact that the situation might create the appearance of impropriety. The court further concluded that the interests of a client in retaining an attorney of his/her choice and preference should prevail as against the general rule that the appearance of impropriety should be avoided.

Although plaintiffs may agree to impose additional settlement conditions on one another, as they did in Allegretti-Freeman, plaintiffs may not enter into an agreement that waives their rights under Rule 1.8. Specifically, plaintiffs may not contract around the requirement that all plaintiffs consent to an aggregate settlement. An arrangement that allowed a majority of plaintiffs to govern settlement decisions was found to violate basic ethical proscriptions and was not enforceable. See Hayes v. Eagle-Picher Ind., Inc, 513 F.2d 892 (10th Cir. 1975). After two out of the eighteen plaintiffs challenged the settlement accepted by the majority, the court found that the arrangement violates the "basic tenets of the attorney-client relationship in that it delegates to the attorney powers which allow him to act not only contrary to the wishes of his client, but to act in a manner disloyal to his client and his client's interests." Id. at 894-95; see also M.A. Stratton, "Hit Hard, not Low," Trial, Sept. 2003, at 60, 62-63.

D.  Withdrawal

If all conflicts cannot be resolved, the lawyer cannot continue to represent all parties. Under Rule 1.16(a), the lawyer must withdraw from a representation if he or she determines that the representation will result in violation of the rules of professional conduct or other law. Whether or not the lawyer can continue to represent one former co-plaintiff after withdrawing from representing the other is governed by Rule 1.9, which deals with conflicts of interest between current and former clients. Rule 1.9 (1995 version) states that:

(a)  A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation.

(b)  A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9© that is material to the matter; unless the former client consents after consultation.

c)  A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation of the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

The 2002 version has some changes , primarily to add that the consent must be in writing.

A lawyer is not permitted to simply withdraw from representing one client while continuing to represent the other client. Consent of the former client must be obtained; otherwise, the attorney is required to withdraw from representing both clients. The rule is designed to preclude even the possibility that a client's confidences will be later used against him and it protects the client's rightful expectation of continued loyalty from the attorney. See In re Corn Deriv. Antitrust Litig., 748 F.2d 157, 162 (3d Cir. 1984).

It is possible, in certain circumstances, for an attorney to obtain a prospective waiver of future conflicts from the clients that he or she represents, thus allowing the attorney to continue with his or her representation of one co-plaintiff should he or she have to withdraw from the representation of one or more of the remaining co-plaintiffs. The waiver must meet all the requirements of contemporaneous conflicts of interest, and must be of sufficient clarity so that the client's consent can be reasonably viewed as having been fully informed when given. See ABA Formal Ethics Op. 372 (1993). For example, the Los Angeles Bar Association held that an attorney may obtain a prospective waiver from an employee represented by the same counsel as the company which permits the attorney to withdraw from representing the employee and continues to represent the employer. Ethics Opinion No. 471, L.A. County Bar Association (1993). See also Zador Corp. v. Kwan, 31 Cal. App. 4th 1285, 37 Cal. Rptr. 2d 754 (1995) (fully informed prospective waiver upheld when former client challenged its legitimacy after hiring new counsel).

1.  Advance Waiver Less Likely to Be Valid if Circumstances Considered by Client Are not Specific and/or if Client is Unsophisticated

In D.C. Bar Opinion 309, on "Advance Waivers of Conflicts of Interest," the Bar held:

Advance waivers of conflicts of interest are not prohibited by the Rules of Professional Conduct. Such waivers, however, must comply with the overarching requirement of informed consent. This means that the less specific the circumstances considered by the client and the less sophisticated the client, the less likely that an advance waiver will be valid.

But see In re: Congoleum Corp., 426 F.3d 675 (3d Cir. 2005). There the court invalidated prospective waivers, finding that ineffective waivers from the claimants it represented in a complex bankruptcy proceeding violated the Rules of Professional Conduct. The court stated:

"[a]lthough concurrent conflicts may be waived by clients under the New Jersey and ABA Rules of Professional Conduct, the effect of a waiver, particularly a prospective waiver, depends upon whether the clients have given truly informed consent. Given the complexities of the bankruptcy proceeding and the 'many hats' worn by Gilbert throughout the pre- and post-petition process, we cannot conclude that the purported waivers Gilbert received from Weitz 'on behalf of' the individual clients constituted informed, prospective consent. . . ."

"We conclude that Gilbert did not receive effective waivers from the claimants it represented and, therefore, acted in violation of the Rules of Professional Conduct."

2.  Advance Waiver Given by Client Having Independent Counsel is Presumptively Valid

An advance waiver given by a client having independent counsel (in-house or outside) who is available to review such a provision is presumptively valid, however, even if general in character. D.C. Bar Opinion 309 (Sept. 20, 2001). However, where the two matters are "substantially related to one another," an advance waiver of conflicts will not be valid "[r]egardless of whether reviewed by independent counsel."

E.  Successive Representation

The problem implicated by successive representation is the potential for the use of confidences gained from a former client to the detriment of that client. A related problem is the failure to use information favorable to the present client in order to protect the confidentiality of the former client.

Disciplinary Rule 5-105(D) of the Virginia Code of Responsibility states that a "lawyer who has represented a client in a matter shall not thereafter represent another person in the same or substantially related matter if the interest of the person is adverse in any material respect to the interest of the former client..." This test was articulated in the seminal case T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F. Supp. 265 (S.D.N.Y. 1953), and has been adopted by most of the Circuit Courts of Appeal which have addressed the question of attorney disqualification in the successive representation context. See Tessier v. Plastic Surgery Specialists, Inc., 731 F. Supp. 724 (E.D. Va. 1990).; Rogers v. Pittston, 800 F. Supp. 350 (W.D. Va. 1992) ("It is well settled that once an attorney-client relationship has been established, an irrebuttable presumption arises that confidential information was conveyed to the attorney in the prior matter.")

Some courts have held that a former client need not prove actual possession of confidential information to disqualify a former attorney from serving as counsel to a successive client in litigation adverse to the interests of the former client. H.F. Ahmanson & Company v. Salomon Brothers, Inc. , 280 Cal.Rptr. 614, 617 (Cal. Ct. App. 1991); Rosenfeld Construction Company, Inc. v. Superior Court , 286 Cal.Rptr. 609, 614 (Cal. Ct. App. 1991). Courts have required a "substantial relationship" test; meaning that a former client must demonstrate a substantial relationship between the subjects of the former and current representations which leads the former client to believe that the attorney received information in the first representation which the former client would reasonably expect the attorney to withhold from the current client. Flatt v. Superior Court , 885 P.2d 950, 954 (Cal. 1995); see also Cohen v. Acorn Intern. Ltd., 921 F.Supp. 1062, 1064 (S.D.N.Y. 1995) (articulating the "substantial relationship" test as a necessary first inquiry to determine if the attorney would have had access to confidential materials in the course of prior representations which the client would reasonably assume the attorney would withhold from his current client).

III.  Dual Representation of Corporate and Individual Defendants

The issue of whether in-house or outside counsel can represent both a defendant employer and its managerial or supervisory employees who are also individual defendants, which frequently occurs in other legal contexts (e.g., white collar defense and securities derivatives litigation), has become increasingly important in employment discrimination litigation.

The problem is that the defendant employer and the alleged harassers or discriminators may not share common legal interests: each may attempt to shift the blame to the other. The Supreme Court's Ellerth and Faragher decisions held that the employer could be vicariously liable when its managers or supervisors caused the hostile work environment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) ("An employer is subject to vicarious liability to a victimized employee for an actionable hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee."); accord Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (quoting Ellerth).

Under Ellerth and Faragher, there is an affirmative defense to vicarious liability in the absence of a tangible employment action, where the employer proves "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. The first element of the affirmative defense, which looks to the steps that the employer took "to prevent and correct promptly" the supervisor's conduct, itself may create a conflict of interests between the employer and the supervisor regarding these preventative and corrective steps. The affirmative defense to liability is not available "when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808 (quoting Ellerth).

The Supreme Court's Kolstad decision established a defense for the employer to liability for punitive damages under Title VII. Kolstad v. American Dental Ass'n, 527 U.S. 526, 545 (1999) ("we agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where those decisions are contrary to the employer's good-faith efforts to comply with Title VII") (internal quotation marks omitted). Thus, this defense can create an incentive for both employer and the individual defendants to shift the blame to each other: (1) the employer will argue that it had implemented adequate programs or policies to prevent discrimination and harassment in the workplace, and that it was the individual defendant who was acting "contrary" to its good-faith efforts; (2) while the individual defendant will argue either that he never received any such training, or that his actions were in fact in compliance with corporate policies, orders, or custom.

Since Section 1981 (42 U.S.C. § 1981) and Section 1983 (42 U.S.C. § 1983) claims, along with those under some state and local anti-discrimination statutes, allow for individual liability, these two defenses can create an incentive for individual defendants to shift the blame and resulting liability for damages to their employer, and vice versa. In these circumstances, the employer and its managers or supervisors may well have adverse legal interests which could preclude joint or dual representation.

ABA Model Rule 1.13, "Organization as Client," applies to joint or dual representation. Rule 1.13, in relevant part, states that:

(a)  A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

. . . .

(e)  A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

"Constituents" of an organization are its "officers, directors, employees and shareholders." See Comment 1 to Rule 1.13. Comment 7 to Rule 1.13, "Clarifying the Lawyer's Role," states that:

There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances, the lawyer should advise any constituent, whose interest he finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.⁸

Large employers typically have insurance policies (e.g., Officers and Directors policies), which may fully indemnify its managers and supervisors for their liability in employment discrimination cases. In such circumstances, counsel may argue that there will be no conflict of interest between the employer and the individual defendants, since any damages will come out of a single pot, the insurance policy.

However, if the employer's internal investigation or the discovery process should reveal that the individual defendants were engaged in other illegal conduct, there may be a conflict in that the individual defendant may have had confidential communications with the in-house or outside counsel, which could create a conflict when the company desires to use that information to bring a claim against the individual defendant, whether through a cross-claim or a separate action. In such circumstances, the "joint defense privilege," whereby the employer and its supervisor(s) agreed to share legal resources in defending the initial action, may cause a conflict of interest when the defendants later part ways and sue each other, since the attorneys for the employer will have received confidential information from the supervisor, which it could then use to the supervisor's detriment in the subsequent actions. See, e.g., Felix v. Balkin, 49 F. Supp. 2d 260, 267-72 (S.D.N.Y. 1999) (disqualifying employer's counsel from continued representation of employer when a supervisor, named as a respondent in an employee's sexual harassment charge, subsequently brought her own harassment charge against the employer); see generally Ageloff v. Noranda, Inc., 936 F. Supp. 72, 76-77 (D.R.I. 1996) (defining scope of joint defense privilege).⁹

In Dunton, a Section 1983 action brought by a police officer who alleged that two other officers (the Pfeiffers) had assaulted him after a party, and caused him to be arrested for sexual assault, the issue was whether the county's attorney could represent both the police department and the two individual defendants. Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984) ("Dunton I"), modified 748 F.2d 69 (2d Cir. 1984) ("Dunton II"). The individual defendants were sued in their personal capacity for punitive damages; therefore, the County advised the Pfeiffers to obtain their own private counsel. Dunton I, 729 F.2d at 906. Although the County, in its initial Answer "included an affirmative defense that Robert Pfeiffer was acting in good faith pursuant to his official duties and responsibilities," the County then took a different tack at trial, when its attorney, during both opening and closing remarks to the jury, argued that Mr. Pfeiffer was acting as a husband, and not as a police officer. Id. The claims against the County were all dismissed, leaving only the Section 1983 claim and the state law battery claim against Mr. Pfeiffer and the state law malicious prosecution claim against Ms. Pfeiffer, and the jury found for plaintiff on both state law claims, awarding compensatory and punitive damages. Id.

Mr. Pfeiffer argued that there was a conflict of interest in the dual representation by the county attorney, since the attorney should have argued to the jury that he [Pfeiffer] was acting in good faith within the scope of his employment; his failure to so argue thus "undermined the good faith immunity defense." Id. at 907. The Second Circuit recognized that the county attorney's argument to the jury "was a good defense for the county . . . . However, it was not in the best interest of Pfeiffer, who was ultimately found liable in his individual capacity." Id. The Second Circuit held that this was prejudicial error, since "[if] Pfeiffer's first trial had been fair, he might have escaped liability altogether. The county had agreed to indemnify Pfeiffer for compensatory damages. If the jury found that Pfeiffer was acting in good faith as a police officer, it might not have awarded punitive damages." Id. at 909. Thus, the Second Circuit vacated the judgment against Mr. Pfeiffer and remanded the state law claims. Dunton II, 748 F.2d at 71.

IV.  Settlement Issues: Restriction on Attorneys' Ability to Practice Law

An important ethical issue that can arise during settlement negotiations occurs when a settlement agreement precludes an attorney from using information acquired in one case in future litigation involving other clients or otherwise restricts an attorney's ability to practice law. Given that cases are more likely to be settled than go to trial, it is imperative that employment litigators be aware of these and other pitfalls that may occur in settlement. See generally American Bar Ass'n, Section of Litigation, Ethical Guidelines for Settlement Negotiations (2002).

For example, a plaintiff's counsel may have several pending or prospective cases against the same employer. The plaintiff's counsel may want to use information learned or obtained during discovery in the first case to help litigate other cases. Even if the plaintiff's counsel is willing to keep such information confidential, i.e., by not releasing it to the public and by filing court documents containing that information under seal, defendant's counsel may object to any future use of that information by the plaintiff's counsel.

In 2000, the ABA issued a formal ethical opinion, holding that while a settlement agreement could restrict an attorney from releasing information, a settlement agreement could not prohibit an attorney from making any use of that information, as that would be an improper restraint on an attorney's right to practice. See ABA Formal Opinion 00-417, "Settlement Terms Limiting a Lawyer's Use of Information" (April 7, 2000). The ABA concluded that:

Although a lawyer may participate in a settlement agreement that prohibits him from revealing information relating to the representation of his client, the lawyer may not participate or comply with a settlement agreement that would prevent him from using information gained during the representation in later representations against the opposing party, or a related party, except in limited circumstances. An agreement not to use information learned during the representation effectively would restrict the lawyer's right to practice and hence would violate Rule 5.6(b).

Id.; see also "ABA Opinion Says Lawyers May Restrict Release, But Not Use, of Secret Information," 68 U.S.L.W. 2757 (June 20, 2000).

The New York State Bar Association similarly held that, under Disciplinary Rule 2-108(B), a New York attorney could not be prohibited, through a settlement agreement, from representing other clients in future cases against that client's employer. See N.Y. State Bar Ass'n, Committee on Professional Ethics, Opinion 730, "Settlement Agreements; Restrictive Covenants" (July 27, 2000), available online at New York State Bar Association ; see also "Lawyers May Not Promise in Settlement to Keep Mum About Facts that Aren't Secret," 69 U.S.L.W. 2102 (Aug. 22, 2002). This opinion noted that although such agreements may be enforceable, see Feldman v. Minars, 230 A.D. 356, 658 N.Y.S.2d 614 (1997), they were prohibited under Rule 2-108(B).

More generally, some states have statutes that prohibit sealing of settlement agreements. See L. Bernabei, "Confidential Settlement Agreements and the Right to Testify," 1 J. Empl. Discr. L. 81, 82-83 (2000) (collecting statutes from Florida, Oregon, North Carolina, and Texas).

The D.C. Court of Appeals upheld the one-year suspension of an attorney who entered into a secret settlement agreement with the defendant in a products liability class action. In re Hager, 812 A.2d 904 (D.C. 2002). Here, the settlement agreement would, inter alia, prohibit the attorney representing current or future clients with claims against the defendant, and preclude the current clients from obtaining the attorney's work product or the names of potential class members, which effectively foreclosed the clients from continuing with their claims. Id. at 917-18. The court found that the attorney's conduct violated D.C. Rules 1.2(a) (a lawyer must abide by the client's decision whether to accept a settlement offer) and 5.6(b) (prohibiting a lawyer from entering into a settlement agreement that restricted the lawyer's right to practice).

The Virginia Bar, in 2004, discussed the circumstances in which a settlement agreement's restriction on a plaintiff's lawyer's ability to file future lawsuits against the employer was an impermissible restriction on the attorney's ability to practice law. There, the settlement agreement provisions were so broad that even departing attorneys could not sue the employer in their new law firm. See Va. Bar. Legal Ethics Op. 1788  (Feb. 17, 2004).

The Committee concluded as follows:

"Whether an agreement between an attorney and a settling defendant broadly restricts the right to practice law in violation of DR 2-106(B), is a "fact-intensive question and cannot be answered in an all-encompassing fashion." Va. Legal Ethics Op. 1715 (1986). Factors to be considered include the nature, scope and geographical location of the attorneys' practice, the composition of the surrounding legal community and the significance of the defendants' role in the community. Id. Also of importance is whether the attorney has represented similarly situated plaintiffs against the defendant in the past and whether the attorney has an expectancy of representing plaintiffs against the defendant in the future. Id. In addition, whether the restriction is "broad" is to be analyzed in terms of its impact on the practice of each individual attorney and not the law firm as a whole.

In 1985, this Committee held that a settlement agreement which contained a provision preventing a plaintiff's attorney from thereafter accepting cases or prosecuting similar claims against the same defendant was improper under DR 2-106(B), the predecessor to Rule 5.6(b). Va. Legal Ethics Op. 649 (1985). In contrast, LEO 1715, supra, the Committee found that the proposed agreement in that case did not violate DR 2-106(B). However, the facts in that opinion are dissimilar to those in the hypothetical now being presented to the Committee. In LEO 1715, plaintiffs' attorney settled an employment discrimination suit on behalf of a former employee against the former employer. Plaintiffs' attorneys, because of their intensive discovery of defendant's employment records, were in a unique position to provide valuable advice to the employer regarding its employment practices. As part of the settlement agreement the plaintiffs' lawyers were hired for a fee by the defendant employer to provide advice regarding its employment practices. As a result the plaintiffs' lawyers were conflicted out of future cases against the defendant employer.

In upholding the agreement, the Committee in LEO 1715 remarked that it promoted the public good by assisting the defendant employer in its effort to bring its employment practices in compliance with the spirit of employment-related laws and by helping to promote good employment practices. In addition, the plaintiff's lawyers in that hypothetical did not represent any other client adverse to the employer and had no expectation of such representation in the future. More importantly, unlike the settlement agreement in LEO 649 and the Agreement now before this Committee, the agreement in LEO 1715 did not include a provision that the plaintiffs' lawyers would be prevented from prosecuting similar claims against the defendant employer in the future. Thus, the Committee believed that the agreement under consideration in that opinion did not violate the important public policy favoring clients' unrestricted choice of legal representation. See Committee Commentary to Virginia Rule 5.6.

The Committee observed that "[t]he common thread in the settlement agreements uniformly disapproved by other ethics panels was an explicit provision that prohibited representation of future clients against the same defendant." ABA/BNA Lawyers' Manual on Professional Conduct 51:1209-51:1212 (1995). It opined that, because the settlement agreement did not directly restrict plaintiff's attorneys from subsequent representation adverse to the defendant employer and because the employers' employment of plaintiffs' attorneys was not a ruse to circumvent DR 2-106(B), the Disciplinary Rule was not implicated.

In the hypothetical presented, the Agreement with X Corporation specifically prohibits the individually signing attorneys from filing or causing to be filed any action on behalf of any plaintiff at any future time for any asbestos-related cause of action on any theory other than workers' compensation. The Committee acknowledges other bar opinions holding that agreements similar in nature to the Agreement in the hypothetical have been deemed improper restrictions on the lawyers' right to practice law. However, most of those opinions applied rules which on their face appear to prohibit any restriction on a lawyer's right to practice law. Virginia's rule is unique and requires that the settlement agreement "broadly restrict a lawyer's right to practice law."

The Committee declined to reach a conclusion about whether the Agreement imposed a broad restriction on the right to practice law, noting that the facts in the hypothetical are complex and would require the Committee to make actual findings to determine whether the Agreement at issue creates a broad restriction of the plaintiffs' lawyers' right to practice law. "Some of the factual matters include, for example: the length of time the parties have operated under the agreement; the numbers of cases settled or resolved in the past; the number of cases likely to develop in the future where clients would have a direct action against Corporation X; the ability of clients to find other lawyers of equivalent expertise and experience in handling these cases; the nature and scope of the practices of the lawyers who are parties to the Agreement; the geographical location of those lawyers and the significance of the defendant Corporation X in the local community."

The Committee did find, however, that the provision requiring every future associate or partner to execute a copy of the agreement to be a violation of DR 2-106(A), as well as Va. Rule 5.6(a), which prohibits a lawyer from entering into a partnership or employment agreement restricting his right to practice law after termination of the relationship, except as a condition of retirement benefits, because those future associates and partners would be found by the Agreement even after they terminated their relationship with the firms in question.

Some employers have tried to circumvent these ethical proscriptions by including a settlement provision retaining the plaintiff's counsel to provide legal services for the employer, such as in a monitoring or consulting role with respect to the implementation of the settlement, or providing harassment training.

A recent race discrimination case filed against BellSouth illustrates the serious consequences of such agreements by plaintiffs' counsel to provide "consulting" services to the employer, where those "consulting" fees have the effect of reducing the plaintiffs' settlements. See Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1255-60 (11th Cir. 2004); Adams v. BellSouth Telecomm., No. 96-2473, 2001 WL 34032759 (S.D. Fla. Jan. 29, 2001); Adams v. BellSouth Telecomm., No. 96-2473, 2000 WL 33941852 (S.D. Fla. Nov. 20, 2000). In the BellSouth litigation, several attorneys, led by Norman Ganz, filed a race discrimination case on behalf of 56 plaintiffs, and threatened to file another lawsuit against BellSouth on behalf of 22 additional plaintiffs. Before the litigation progressed very far, the attorneys reached a global settlement with a total value of $1.6 million for all 72 plaintiffs. However, of that amount, the plaintiffs received only about $300,000, with their counsel receiving the remainder, including $120,000 in a four-year consulting fee, $230,000 in an "engagement" fee, and $51,500 in other expenses. After one plaintiff complained to the court that she was forced to sign a settlement agreement that prohibited her from finding out the total value of the settlement or the amounts that the attorneys would receive, the district court appointed a magistrate judge to conduct an investigation. The court adopted most of the magistrate's recommendations, including sanctioning Mr. Ganz by requiring him to disgorge $300,000 to the plaintiffs and suspending him from practicing before the federal court for three years. However, the court declined to impose monetary sanctions on BellSouth's counsel, even though they had suggested the "consulting fees," and only imposed a requirement that the defense counsel complete ethics training. Adams, 2001 WL 33941852, at *2-*10. Subsequently, Ganz was disbarred by the Florida Supreme Court, for this and related misconduct, and his co-counsel agreed to disgorge $250,000 to the plaintiffs. Jackson, 372 F.3d at 1258 n.9.

Practitioners who are asked to consider the provision of training to the employer/defendant as part of settlement should carefully review Virginia Legal Ethics Opinion 1715, "Settlement Agreement: Future Conflicts; Restriction of Lawyer's Practice," (Feb. 24, 1998). The Opinion considered a hypothetical settlement agreement between an employee and an employer in which, as part of the settlement, the employee's attorneys agreed to provide a specified number of hours of training about employment law to the employer in exchange for a specified sum of money. The agreement specifically stated that the plaintiff-employee's interest in the case is not monetary but rather the improvement of employment practices by the employer. It further stated that the employee releases all claims against the employer and will not seek employment with the employer again.

In response to an inquiry into whether the agreement constituted a violation of DR 2-106(B), which prohibits a lawyer from entering into a settlement agreement that "broadly restricts" the lawyer's right to practice law, the Ethics Committee noted that the agreement contained no express prohibition on the lawyers' right to practice law and therefore refused to speculate about the employer's possible attempts to "buy off" the attorneys by conflicting them out of future lawsuits against the employer, particularly in light of the plaintiff's stated interest in improving the employer's employment practices. However, because the employer proposed making a payment to the employee's attorneys for training services, the Committee noted that a full disclosure of the attorney's financial interest in the settlement and informed consent from the employee would be required to render the agreement ethical as written.

It remains to be seen whether or not these types of arrangements will be recognized as ethical, even if the courts can enforce those provisions. See also G.V. Mersol, "Ethical Issues in Class Action Employment Litigation," 20 Labor Lawyer 55, 75-76 (2004).

V.  Conclusion

The foregoing discussion makes clear that, before undertaking multiple representation of clients in employment discrimination suits, it is prudent to memorialize an understanding between the clients about all matters that might cause subsequent conflict. Attorneys must fully disclose the existence of potential conflicts and advise clients of their legal rights, including the right to obtain the advice of outside counsel.

If the clients are adequately informed of the potential conflicts and then consent to joint representation, it is possible for attorneys to preclude future controversy between the plaintiffs. For example, the clients should reach an agreement about division of the available assets in proportion to their respective judgments or in accordance with another appropriate mechanism for the allocation of recoveries.¹⁰ Additionally, the attorney may be able to obtain a prospective waiver of future conflicts that would allow the attorney to continue to represent one party. Such waiver, however, must be given with full written consent after the client has been fully informed of the consequences.

The consolidation of cases, when appropriate, can be advantageous for clients as well as their attorneys, taking into consideration the economies of scale arising from consolidating discovery and trial. Multiple representation can be beneficial for all parties involved, provided that attorneys understand the applicable rules and take the necessary time to consider, address and resolve potential conflicts.

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¹  Debra S. Katz is a partner with Katz, Marshall & Banks, LLP, a plaintiffs' employment and civil rights law firm based in Washington, D.C. The firm specializes in the representation of plaintiffs in employment law, civil rights and civil liberties matters, and whistleblower matters. Alan R. Kabat of the Bernabei Law Firm assisted with the research and earlier draft of these materials.

²  Formerly, this Rule provided that:
      (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
          (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
          (2) each client consents after consultation.
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
          (1) the lawyer reasonably believes the representation will not be adversely affected; and
          (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

³  See also New York Ethical Consideration EC 5-1, which provides that the professional judgment of a lawyer should be exercised solely for the benefit of the client, free of compromising influences and loyalties. The interests of other clients should not be permitted to dilute a lawyer's loyalty to another client. EC 5-15 cautions that all doubts should be resolved against multiple representation of clients having potentially differing interests; further, that there are few situations in which the lawyer would be justified in representing in litigation multiple clients with potentially differing interests.

⁴  Comment 4 to D.C. Rule 1.7 states that an attorney may be able to represent clients when their interests are not adverse (i.e., in the liability phase), and then represent just one of them in the damages phase even if the other client, represented by separate counsel, might have an adverse position as to that phase of the case.

⁵  Rule 1.2(c) provides: "A lawyer may limit the objectives of the representation if the client consents after consultation."

⁶  See, e.g., Ruth v. Crane, 392 F. Supp. 724 (E.D. Pa. 1975), aff'd, 564 F.2d 90 (3rd Cir. 1977) (table) (lawyers should advise the client to obtain independent advice regarding consent to simultaneous representation).

⁷  See, e.g., N.J. S. Ct. Adv. Comm. Prof. Eth. Op. 616, "Blanket Settlement Offers to Multiple Plaintiffs" (Sept. 22, 1988).

⁸  The 2002 revisions to Model Rule 1.13 are minor and do not affect the excerpts quoted herein. See Model Rule 1.13 (2002) .

⁹  The New York State Bar Association Committee on Professional Ethics discussed the situation arising from the representation of multiple defendants, where the defendants may have "differing interests," particularly relating to potential indemnification claims. See N.Y. Ethics Op. 778 (Aug. 30, 2004), online at New York State Bar Association . The Committee held that joint representation could only occur "if the lawyer determines a disinterested lawyer would believe the lawyer can competently represent the interests of each defendant, the defendant with the indemnification claim waives the right to assert it as a cross-claim, and both defendants otherwise consent after full disclosure." Id.

¹⁰  For example, the following provision can be included in each of the multiple clients' retainer agreements:
  I agree that if a lump sum settlement is offered to me and my co-plaintiffs that is acceptable to each of us, the lump sum will be apportioned according to the same percentage that our individual economic losses constitutes of the total economic loss we have collectively suffered. I agree to use and abide by the percentages of these losses as calculated by our economic damages expert.

©Copyright 2007, Debra S. Katz, Katz, Marshall & Banks, LLP.

Extrajudicial Statements:
Lawyers' Ethical Obligations In Communicating With The Press

In an era when attorneys have broad access to the media and the public has a seemingly insatiable appetite for information about high profile legal cases and cutting edge legal issues, an attorney's familiarity with the professional obligations of communicating with the press has become increasingly important.¹ The following chapter addresses some of the obligations that constrain attorneys in their communications with the press.²

I.  BACKGROUND

The debate over the proper regulation of statements by attorneys to the press implicates legal, ethical and constitutional values, including the attorney's First Amendment right to free speech, the parties' right to a fair trial and zealous representation, and the state interest in the administration of justice. The issue has arisen periodically throughout American jurisprudence, but peaked in Sheppard v. Maxwell, 384 U.S. 333 (1966). In that decision, the Supreme Court overturned the murder conviction of Sam Sheppard and held that the publicity the case generated unfairly prejudiced the trial. The decision led to searching consideration of the propriety of extrajudicial statements by attorneys and eventually the adoption of ethical rules constraining attorney speech, such as ABA Model Rule of Professional Responsibility 3.6, which states:

(a)  A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b)  Notwithstanding paragraph (a), a lawyer may state:

(1)  the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;

(2)  the information contained in a public record;

(3)  that an investigation of the matter is in progress;

(4)  the scheduling or result of any step in the litigation;

(5)  a request for assistance in obtaining evidence and information necessary thereto;

(6)  a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7)  in a criminal case, in addition to paragraphs (1) through (6):

(i)  the identity, residence, occupation and family status of the accused;

(ii)  if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii)  the fact, time and place of arrest; and

(iv)  the identity of investigating and arresting officers or agencies and the length of the investigation.

(c)  Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d)  No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).³

When an attorney in Nevada challenged a disciplinary ruling against him under a Nevada Bar rule patterned after a previous version of Model Rule 3.6,⁴ the Supreme Court was again faced with the issue of extrajudicial speech by attorneys. In Gentile v. State Bar, 501 U.S. 1030 (1991), the Court addressed the case of a Nevada attorney who had been disciplined for holding a post-indictment press conference in which he declared his client's innocence and identified a Las Vegas police officer as the likely guilty party. The client was ultimately acquitted, although the attorney's comments were not found to have actually prejudiced the outcome of the trial. Id. at 1064-65.

The Nevada rule at issue prohibited a lawyer from making "an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." Gentile, 501 U.S. at 1033. The rule provided a safe harbor, however, for, among other things, statements of "the general nature of the claim or defense" made "without elaboration." Id. at 1061-62.

The holding of a splintered Supreme Court was controlled by Justice O'Connor, who, along with Justices White, Scalia, and Souter, joined Chief Justice Rehnquist's opinion upholding the application of the "substantial likelihood of material prejudice" standard to extrajudicial comments by attorneys. However, Justice O'Connor, along with Justices Marshall, Blackmun and Stevens, joined Justice Kennedy's opinion holding the Nevada rule void for vagueness, because the safe harbor provision failed to provide sufficient guidance to inform an attorney "when his remarks pass from the safe harbor of the general to the forbidden sea of the elaborated." Id. at 1048-49.⁵

In response to the Supreme Court's decision in Gentile, the ABA House of Delegates amended Model Rule 3.6 in 1994. Model Rules of Professional Conduct Rule 3.6. The amendment specified certain types of information that a lawyer may disclose in an effort to provide more guidance for lawyers. Most significantly, the amendment allows for greater access to the press by allowing attorneys to respond on behalf of a client to negative publicity. However, most states that have adopted the Model Rules still follow the pre-1994 version of Rule 3.6. See ABA/BNA Lawyer's Manual on Professional Conduct, "Trial Publicity", LMPC 61:1001 (1998). Therefore, in practice, the Rules continue to provide only limited guidance as to an attorney's ethical obligations in communicating with the press.

Although Gentile appeared to clearly endorse the "substantial" likelihood of prejudice standard, the decision failed to explicitly foreclose lesser protection for extrajudicial speech. In fact, the opinion mentioned that eleven states at that time continued to follow the Disciplinary Code provisions, using a "reasonable" likelihood of prejudice standard. Yet the court was silent on the constitutionality of that standard. See id. at 2741. While it is not entirely clear whether the Supreme Court would uphold the constitutionality of the "reasonable likelihood" standard, at least two circuits have applied that standard in the criminal context since Gentile. But see Atlanta Journal-Constitution v. State, 596 S.E.2d 694, 696-97 (Ga. App. 2004) (holding that the "reasonable likelihood" standard was insufficient to overcome First Amendment protections); Attorney Grievance Com'n of Maryland v. Gansler, 835 A.2d 548, 563 (Md. 2003) (noting that the ABA's 1983 proposal for a new model code was "in an effort to address concerns that the 'reasonable likelihood' standard . . . might not meet the requirements of the First Amendment.") The Second Circuit, using the reasonably likely standard, upheld a contempt conviction of a lawyer in New York who ignored a gag order imposed in a criminal trial and told a television audience that his client, mob boss John Gotti, was being persecuted and framed by the government. See U.S. v. Cutler, 58 F.3d 825 (1995).

The Fourth Circuit, in In re Morrissey, 168 F.3d 134 (4th Cir. 1999), went even further and determined that the "reasonable likelihood" standard could be reconciled with the holding in Gentile since the Supreme Court did not explicitly foreclose its use. In Morrissey, an attorney in a high profile drug case, after being warned by opposing counsel about court rules on extrajudicial speech, held a press conference at which he played a videotape of a witness recanting previously given testimony. The Fourth Circuit upheld the attorney's contempt conviction, specifically endorsing the "reasonable likelihood" standard. It is clear that the attorneys' behavior in both of these cases was fairly notable and would possibly rise to the level of violating a "substantial likelihood" standard. However, in less clear-cut cases, the subjective nature of the standard creates a potential risk for discriminatory enforcement. See Gentile, 501 U.S. at 1050-51) (noting that the imprecise language of Rule 3.6 and Nevada's Rule 177 creates a risk of discriminatory enforcement.) Attorneys in districts employing the "reasonable likelihood" standard should be aware that extrajudicial speech is likely afforded less protection than in other jurisdictions. Furthermore, in a few cases, lower courts from various other jurisdictions addressed the constitutionality of the "reasonable likelihood" standard at arms length, seeking guidance from circuit courts. See U.S. v. Koubriti, 305 F. Supp. 2d 723, 743 n. 18 (E.D. Mich. 2003) (noting that "[t]he Sixth Circuit has not yet decided whether the "reasonable likelihood of prejudice" standard survives First Amendment scrutiny."); Devine v. Robinson, 131 F. Supp. 2d 963, 972 (N.D. Ill. 2001) (avoiding the question of Rule 3.6's constitutionality "where "possibility" of a constitutional reading exists" given that the rule were revised to meet constitutional concerns in Gentile).

II.  CIVIL AND CRIMINAL TRIAL DISTINCTIONS

The high-profile cases discussed above all dealt with press contact during criminal trials. However, ethics rules and case law concerning extrajudicial statements recognize that crucial distinctions exist between civil and criminal adjudicative proceedings when determining attorneys' ethical obligations. Comment 6 to Rule 3.6 states that the nature of the proceeding involved is a relevant factor to determining prejudice and that "civil trials may be less sensitive" than criminal jury trials to extrajudicial speech.

Courts are far less likely to impose restrictions on extrajudicial speech in the civil arena for a number of reasons. First of all, civil trials typically are more drawn out than criminal trials and speech restrictions could potentially last for many years. See Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 258 (7th Cir. 1975). Secondly, it is recognized that civil trials often involve important social issues that require some degree of public knowledge and discussion. See id. Finally, although impartial justice is valued in all legal proceedings, it is generally believed that criminal trials "require even a greater insularity ... [and that] the mere invocation of the phrase "fair trial" does not as readily justify a restriction on speech when we are referring to civil trials." Id. at 257-58.

Although it is clear that lawyers involved in civil trials are afforded more latitude in their contacts with the press, there is surprisingly little guidance within the rule concerning the types of comments that are materially prejudicial in civil trials. Comment 5 to Rule 3.6 lists six examples of statements that would likely prejudice a criminal trial, including statements relating to witness character and credibility and opinions as to the guilt or innocence of the accused. Model Rules Rule 3.6 cmt. 5. No similar examples are provided for civil adjudication. Therefore civil attorneys often lack a clear understanding of their obligations when speaking to the press.

III.  COMPELLING FORCES ON ATTORNEYS DEALING WITH THE PRESS

Attorneys may have a variety of motivations for speaking to the press about a client or a case. Regardless of the motivation, utilization of the press is often a very effective means of zealously representing the interests of a client. Accordingly, attorneys may be compelled to seek out the press where doing so would benefit the client.

Advocacy in the court of public opinion is an important role for an attorney. In many types of cases, it is imperative to pursue a public relations strategy on behalf of the client. It is not only criminal defendants who need a lawyer to advocate in the court of public opinion. Public figures, corporations, public interest groups, civil rights litigants, and parties in high-profile cases often require such advocacy. One reason is that these kinds of clients often attract general attention in the media, and are often concerned with the judgments of institutions and the public, not just those of judges and juries.

Justice Kennedy recognized in Gentile that a legitimate goal of extrajudicial advocacy may be to maintain - or restore - a client's position in the community. See 501 U.S. at 1043. In Gentile, the client was a prominent businessman who wished to minimize the effects of his indictment on his business interests. Public interest lawyers can also use the press, and their lawsuits, to bring attention to problems faced by their clients and their causes.⁶

Additionally, other ethical obligations would suggest that an attorney should use the press when advantageous to his or her client to do so. Canon 7 states that "a lawyer should represent a client zealously within the bounds of the law." Model Code of Professional Responsibility Canon 7. Further, EC 7-9 states that a "lawyer should always act in a manner consistent with the best interests of his client." Model Code of Professional Responsibility EC 7-9. Similarly, comment 1 to Model Rule of Professional Conduct 1.3 states that a lawyer "may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." While these rules provide limited assistance in actual situations, they do stress that attorneys have a duty to push their clients' causes to the fullest of their abilities.

In recent years the press has become increasingly accessible to attorneys. There never seems to be a dearth of media outlets reporting on potential and pending litigation. By accessing these outlets, an attorney can bolster a client's reputation, position for settlement with the opposing party, or meet a variety of other possible goals. Because of the effectiveness of such tactics, it can be argued that the ethical requirement of zealous representation requires an attorney to communicate with the press on behalf of a client in situations in which it is in the best interest of the client to do so.

IV.  CONSTRAINING FORCES ON ATTORNEYS COMMUNICATIONS WITH THE PRESS

While zealous representation of a client might compel an attorney to speak to the press, an attorney faces ethical constraints on what the attorney may say. These constraints come from a myriad of rules of professional conduct, which work to limit attorneys in various ways.

A.  Duty Not to Prejudice Adjudicative Proceedings through Statements to the Press

The Model Rules and Model Code both expressly place ethical limitations on attorneys in communicating with the press. The guiding principle of these rules is the protection of the jury from unfair prejudice. As noted above, Model Rule 3.6 prohibits statements that have a "substantial likelihood of materially prejudicing an adjudicative proceeding." Model Rules of Professional Conduct Rule 3.6(a).⁷

One significant addition to the rule in the 1994 amendment allows an attorney to "make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client," to the extent necessary to "mitigate the recent adverse publicity." Model Rule 3.6(c). This provision, which follows the reasoning of Justice Kennedy's opinion in Gentile, provides attorneys with significant latitude in communicating with the press, at least in cases where the issue has already received press coverage from other sources.

Another significant exception to Rule 3.6 is for information contained in a public record. Model Rule Rule 3.6(b)(2). Most public speech is made under this exception and lawyers can take advantage of the exception by influencing what is in the public record. See ABA/BNA, supra. For example, lawyers can strategically tailor pleadings and motions to make information public that otherwise would be subject to trial publicity rules.

While prejudice is determined on a case by case basis, published opinions that have dealt with the application of Rule 3.6 provide some guidance in understanding the limits of an attorney's ethical obligations under the rule. In an advisory opinion on pre-trial publicity issued by the Maryland Bar, an attorney requested guidance as to whether a pre-trial press release and dissemination of the complaint in a products liability suit would violate Maryland Rules of Professional Conduct 3.6. Nat'l Rptr. on Legal Ethics, Md:Opinions:9 (1997). The committee responded that there is no per se prohibition against press releases before trial, but that without seeing the actual wording, it could not determine if other ethical rules might be violated. The committee also concluded that the release of the complaint, already filed with the court and therefore a public record, would not be an ethical violation.

In Ruggieri v. Johns-Manville Products Corp., 503 F.Supp. 1036 (D. R.I. 1980), the plaintiff's attorney in an asbestos case appeared on a nationally televised show discussing the surge of nationwide asbestos litigation. In the interview, the attorney revealed that there was evidence showing that the major asbestos manufacturers had knowledge of the dangers of asbestos as early as 1935. The defendant asbestos company brought a proceeding to disqualify the attorney and to prohibit him from making any further extrajudicial statements about the litigation. The court denied the motion, relying on the fact that the there was no evidence that the television show was broadcast in the trial district or had any impact on potential jurors. The court explicitly recognized the distinction between civil and criminal trials and limited its holding to civil litigation, reasoning that other, less restrictive protections, were available to insulate civil trials from prejudice. For example, the opinion stated that Rule 47(a) of the Federal Rules of Civil Procedure gives judges broad discretion in examining prospective jurors. The opinion also cautioned that each civil case is unique and that no bright line rule can be established for extrajudicial speech in the civil arena.

In Longs Drug Stores Cal., Inc. v. Shea, 2005 WL 91682 (Cal. App. 1 Dist. Jan. 18, 2005) (unpublished), the attorney represented plaintiffs charging the defendant, their employer, with tortious conduct in interrogating them about suspected thefts. In a press release issued after the jury verdict was rendered in the plaintiffs' favor, the attorney commented on evidence not introduced at trial involving the Longs' alleged failure to take action after an employee who had been interrogated committed suicide. Id. at *1. Longs then sued the attorney for defamation. On appeal from the order denying the attorney's motion to strike the complaint under the anti-SLAPP statute, Code Civ. Proc., § 425.15, the court held that litigation privilege does not protect an attorney from liability for libel or slander who issues statements to the press about matters that were not introduced as evidence at the trial. The court specifically affirmed on the ground that Longs' claim did not involve a "widespread" public issue where it was not apparent that the verdict on the issue of Longs' abusive employee-interrogation techniques would directly affect anyone other than the plaintiffs in the original lawsuit. Id. at *6-8. The court rejected the attorney's argument that the subject of the suicide could not be divorced from "the larger, assertedly public issue of Longs' employee abuse" and, instead, found that the suicide was part of any public interest potentially created by the trial because it was not addressed at trial and because it was a private matter prior to the press release. Id.

Courts are much more willing to impose sanctions on lawyers involved in criminal trials. In State of Delaware v. Grossberg, 705 A.2d 608 (Del. Sup. Ct. 1997), the State sought sanctions against one of the defendant's attorneys for violation of the Delaware Lawyers' Rules of Professional Conduct. Prior to the attorney's admission pro hac vice, the court entered an order limiting pretrial publicity in accordance with Rule 3.6 and both parties represented to the court that they would abide by the rule. Later the attorney gave two television interviews where he stated "Amy did not commit the crime" and that she was "not guilty." Id. at 611. The court analyzed the statements under Rule 3.6 and stated that it was "plain that [the statements] conveyed his personal opinion as to the innocence of defendant Grossberg". Id. at 613. The court found the statements, made only 97 days before the scheduled trial, violated the state's rules. As a sanction, the court revoked the attorney's appearance in the court.

However, the public record exception applies in criminal as well as civil trials. In United States v. Pasciuti, 803 F. Supp. 563 (D.N.H. 1992), the District of New Hampshire refused to grant the defendant's motion in a criminal drug conspiracy case for a continuance and disqualification of the prosecuting attorney. Among the prosecutor's statements were that "an anonymous jury is used when the defendant is engaged in alleged violent activity"; "jurors can act unimpeded if they have no threat of retaliation"; "the notoriety of the Hell's Angels group around the country is (sic) the Hell's Angels are alleged (sic) in attempts to influence jurors' decisions or judge's decisions with bribery and so on"; "Prosecutors said though he has been jailed since October, he continued to run the drug operation from his cell. This has led to concern that he is capable of retaliating against the jurors even while incarcerated"; and "Don Pasciuti has very significant power and authority within the Hell's Angels organization . . . By virtue of his position and authority, he can cause things to happen outside the jail." Id. at 566-67.

Analyzing the prosecutor's conduct under Model Rule 3.6, the court found that all of his statements to the press could be traced to the record of the case or information made available prior to a stipulation to limit contact with the press. Id. at 566. The statements at issue appeared prejudicial to the defendant, but the court found that each statement satisfied the ethical requirements of Rule 3.6(c) since they were statements without elaboration of information contained in the public record. Id. at 568.

B.  Duty Not to Assist Others in Violating an Ethical Rule

Attorneys must be careful of the way in which they prepare and guide clients in communicating with the press. Model Rule 8.4(a) prohibits attorneys from knowingly assisting or inducing others to violate the rules of professional conduct. See also Model Code of Professional Responsibility DR 1-102(A)(2). Accordingly, where an attorney assists a client in making extrajudicial comments to the press which she herself could not make, she may be deemed to have committed an ethical violation.

The Delaware Superior Court addressed this issue directly in State of Delaware v. Grossberg, 705 A.2d 608 (Del. Sup. Ct. 1997) (discussed supra) and found that the criminal defense attorney violated Rule 8.4(a) by assisting his client in violating Rule 3.6. In that case the defendant's attorney appeared with her on a television news program. The attorney precluded inquiries into the events occurring around the time of the alleged crime, but proceeded to guide the defendant in her answers to questions about what the past months had been like for her, her feelings about the co-defendant in the case, how she felt the previous summer when the events occurred, how she felt on the date of the alleged murder, and her response to the allegation that she is a murderer. Id. at 611-12. The court found that the information could be relevant to the defendant's state of mind and at a minimum addressed the character and propensities of the defendant. Id. at 613. The court then ruled that the attorney violated Rule 3.6 through Rule 8.4(a) and stated that "[a]ny preparation . . . of [the defendant] for a television interview should have been limited to those areas which [the attorney] himself would have been permitted to comment." Id. at 613.

C.  Duty Not to Engage in Conduct Prejudicial to the Administration of Justice

The duty of an attorney not to conduct himself in a way that is prejudicial to the administration of justice also constrains the attorney in his communication with the press. Model Rule 8.4(d) states that it is misconduct to "engage in conduct that is prejudicial to the administration of justice." See also Model Code of Professional Responsibility DR 1-102(A)(5). This rule has been applied to address attorneys' comments disparaging judges and alleged attempts to manipulate the judges and the courts.⁸

In Standing Committee v. Yagman, 55 F.3d 1430 (9th Cir. 1995), the Ninth Circuit overturned the district court's two-year suspension of Stephen Yagman under a provision similar to Model Rule 8.4(d). Yagman had sought the disqualification of the judge assigned to his case. His motion was denied and he was sanctioned by the judge hearing the argument for pursuing the matter in an "improper and frivolous manner." Yagman was later quoted in the newspaper accusing the judge who heard the motion of being an anti-Semite and being drunk on the bench. The Ninth Circuit overturned the finding that Yagman had engaged in conduct prejudicial to the administration of justice after applying the Gentile standard that a "substantial likelihood of prejudice" must exist.⁹ Id. at 1142-43. The court refused to extend the rule in Gentile beyond the confines of a pending matter, and held that the possibility of prejudicing the jury pool was of little concern since Yagman was speaking on matters unconnected to a pending case. Id. Accordingly, the court applied the "clear and present danger" test to Yagman's speech and held that the sanction could not be upheld. Id. at 1444-45.

In Louisiana State Bar Ass'n v. Karst, 428 So.2d 406, 409 (La. 1983), the Louisiana Supreme Court upheld a finding by the Commissioner of the Committee on Professional Responsibility that the attorney violated DR 1-102(A)(5) when he sent a letter to a local newspaper, which was later published, accusing a judge of being dishonest and corrupt. Id. at 407. In his investigation, the Commissioner found the accusations to be false and reckless. The court held that the attorney's "groundless and irresponsible" behavior was prejudicial to the administration of justice. Id. at 410.

D.  Duty Not to Divulge Client Confidences

Attorneys must also be careful not to divulge client confidences without the consent of the client in their communication with the press. Model Rule 1.6(a) states that an attorney "shall not reveal information relating to the representation of a client unless the client consents after full consultation, except for disclosures that are impliedly authorized to carry out the representation." See also Model Code of Professional Responsibility DR 4-101.

Certainly, an attorney should have the consent of the client prior to any contact with the press and there should be an understanding of what will be divulged to the press. Simply speaking to the press without a client's prior knowledge might raise issues under Model Rule 1.6(a). However, even with the knowledge and participation of the client, attorneys must be cognizant of the bounds of what they may and may not say to the press. It is conceivable that a client may not wish certain matters to be disclosed to the press that the attorney believes may be helpful to the case if released to the press. Accordingly, to avoid divulging client confidences in violation of an attorney's professional responsibility, there should be a clear understanding between the attorney and client prior to communicating with the press.

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¹  For an interesting examination of competing views regarding the propriety and desirability of extrajudicial advocacy, see Jonathan M. Moses, Legal Spin Control: Ethics and Advocacy in the Court of Public Opinion, 95 Colum. L. Rev. 1811 (1995).

²  This chapter focuses on the issue of extrajudicial statements made by an attorney representing a party. Attorneys have a different set of ethical obligations when serving as commentators for the media on cases on which they are not personally involved. For a discussion of this issue see, Erwin Chemerinsky and Laurie Levenson, People v. Simpson: Perspectives on the Implications for the Criminal Justice System: The Ethics of Being a Commentator, 69 S. Cal. L. Rev. 1303 (1996).

³  By its terms, Rule 3.6 prohibits only comments likely to prejudice "an adjudicative proceeding." Thus, it would not appear to prohibit comments likely to influence settlement negotiations, so long as those comments are not also likely to influence an eventual trial or other adjudicative proceeding.

⁴  The Nevada Rule did not contain a provision analogous to section (c) of the current version of Model Rule 3.6, which allows an attorney to make extrajudicial statements required to mitigate the prejudicial effect of prior statements not initiated by the attorney or the attorney's client. The comments for which Nevada attempted to discipline Gentile appear to have been the kind of comments envisioned by section (c) of the current version of Model Rule 3.6.

⁵  Justice Kennedy's opinion noted that extrajudicial comments by attorneys can be useful to mitigate prejudice caused by prior comments made by others - as Model Rule 3.6(c) specifically allows - and "to protect the rights of the client and prevent abuse of the courts." Id. at 1042-43, 1058.

⁶  In Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice, UCLA law professor Gerald P. Lopez offers advice on law practice aimed at improving social conditions. Lopez, like many public interest lawyers, contends that getting media attention for cases and the causes they represent is an important aspect of progressive lawyering. See also, Max D. Stern, The Right of the Accused to a Public Defense, 18 Harv. C.R.-C.L Rev. 53 (1983), which illustrates how a public defense was instrumental in protecting a minority defendant who had been falsely accused.

⁷  The Model Code provision governing extrajudicial statements, DR 7-107, is substantially similar to the provisions of the Model Rules.

⁸  This analysis also intersects with the attorney's duty not to make false statements of law or fact. Model Rule 8.4(c) states that it is professional misconduct for an attorney to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." See also DR 7-102(A)(5).

⁹  The District Court found that Yagman's statements were made in an attempt to "judge shop" by creating a situation where the judge would be forced to recuse himself from any future cases Yagman brought before him. Id. at 1143.

©Copyright 2007, Debra S. Katz, Katz, Marshall & Banks, LLP.

Ethics of Viewing and/or Using Metadata

Several interesting ethical issues have cropped up in the legal field due to increased use of the internet and electronic media in the transmission of information. One such issue concerns the use of metadata and whether an attorney may use or view such metadata when provided by an adverse party. Metadata is electronically embedded information within programs (e.g., Microsoft Word/Excel/Power Point, Corel Word Perfect/Quattro Pro, Adobe Acrobat, etc.) which is not readily visible from the face of the document, either in the print version or on computer screen, but which is retrievable and which may include data such as author, dates of creation/printing, number of revisions, content and authors of those revisions or previous versions, editing time, and other information relating to the production of the final document.

There are several pertinent inquiries into the ethical use of metadata. First, is it ethical for an attorney, who is the recipient of a document with metadata produced by another party, to view and use the metadata contained in the document. Second, is the attorney sending a document with metadata under any obligation to remove metadata from files prior to transmitting them? And third, is the attorney who receives a document with metadata under any obligation to ascertain first whether the sender intended to include such metadata before viewing or using it?

Several State Bars have considered these issues and have issued opinions to address them. Recently, the Maryland State Bar Association issued Ethics Opinion No. 2007-09, in which it advised that there are no ethical violations if an attorney in receipt of a document containing metadata uses or views the metadata without first ascertaining whether the sender intended to include it. In determining such, the Committee of Ethics relied upon the differences between the Maryland Rules of Professional Conduct and the American Bar Association's Model Rules of Professional Conduct. The Maryland Rules do not require a receiving attorney to inform the transmitting attorney of the inadvertent transmission of confidential or work-product information. Though the Committee points out that there is no such ethical obligation codified in the rules, the Federal Rules of Civil Procedure's 2006 amendments with respect to electronic discovery in federal litigation supersede the lack of ethical obligations, and such conduct, though not an ethical violation, might be in violation of the Federal Rules and Rule 8.4 concerning the prejudicial administration of justice.

The Committee also stated its belief that the sending attorney has an ethical obligation to take reasonable measures to avoid the disclosure of confidential or work product materials imbedded in the electronic discovery:

The Committee believes that this ethical obligation arises out of a combination of Rule 1.1, which provides that a lawyer shall provide competent representation to a client, together with Rule 1.6, which obligates the lawyer not to reveal confidential information relating to the representation of a client. See generally, New York State Bar Association Committee on Professional Ethics Opinion 782 (2004), concluding that attorneys have an obligation to "stay abreast of technological advances" and to behave reasonably in accordance with the risks involved in the technology they use. This is not to say, however, that every inadvertent disclosure of privileged or work product material would constitute a violation of Rules 1.1 and/or 1.6 since each case would have to be evaluated based on the facts and circumstances applicable thereto.

In August 2006, the ABA issued its own opinion stating that attorneys may look for and use information hidden in metadata: "[t]he Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer's reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party." In September 2007, the DC Bar issued a similar opinion, Opinion No. 341, in response to numerous inquiries regarding the viewing and use of metadata embedded in electronic documents from opposing counsel. Opinion No. 341 stated that, "A receiving lawyer is prohibited from reviewing metadata send by an adversary only where he has actual knowledge that the metadata was inadvertently sent." The Opinion was careful to distinguish electronic documents provided outside of discovery and those provided in discovery or pursuant to a subpoena. As for electronic documents produced outside of discovery, the Opinion stated that under Rule 1.6, a sending attorney has an obligation to avoid providing confidential information and take reasonable steps necessary to remove metadata before sending it. See N.Y. State Bar Ass'n Committee Op. 782. A receiving lawyer has an obligation to consult with the sender when the receiving lawyer has actual knowledge that the sender inadvertently included metadata in his transmission. Absent such actual knowledge, however, the sender may view the metadata even if there is uncertainty as to whether the metadata was inadvertently disclosed.

With respect to documents produced in discovery, the Opinion said that a sending attorney is prohibited from altering, destroying, or concealing evidence. This may include erasing metadata from a discoverable document when the attorney knows that the evidence is or may be the subject of discovery. A receiving lawyer is permitted to view such metadata since the presumption is that the metadata was provided intentionally, provided that the receiving attorney does not have actual knowledge to the contrary.

Not all bar associations take the same view. The New York State Bar Association Committee on Professional Ethics, in Ethics Opinion 749 from December 14, 2001, and the Florida Bar Association Ethics Committee, in Ethics Opinion 06-02 from September 15, 2006, both found such metadata mining to be unethical. Other state bar associations have made similar findings. With increased electronic technology and transmission of confidential information, the topic of data mining likely will continue to be a much debated topic in the realm of legal ethics and professional responsibility.

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This rule should apply equally to extrajudicial statements.

©Copyright 2007, Debra S. Katz, Katz, Marshall & Banks, LLP.