Lessons learned from modern fictional attorneys

A few years ago, a colleague from the San Francisco Bar Association's Legal Ethics Committee and I started an annual tradition of presenting a CLE to our members about legal ethics lessons learned from fictional attorneys.

We set the stage with examples of how fictional attorneys handled a thorny issue, and then broke down how the attorney got it wrong (or right) by applying the rules of professional conduct. We offer practical guidance for how the principles discussed might affect your work. Much of what we discuss is elementary legal ethics, so the CLE is usually meant to be a refresher for experienced lawyers or a guide for newer attorneys.

I highlight two modern shows that we broke down in this year's program. Take a seat, sit back, and enjoy the show.

So Help Me Todd - Corduroy Briefs

This was an entertaining show, notwithstanding the fantastical unethical situations in which the main character often found herself. Margaret Wright is a powerhouse attorney in private practice who will stop at nothing to protect her clients. Her son Todd, the show's namesake, is her in-house investigator.

In this episode, Margaret is prosecuting a class action against an aerospace company. She sends Todd to interview a current employee of the defendant company, tasking him to find out why a form that employee signed was altered. Todd interviews the employee at the defendant's premises, while impersonating an FAA official. After he threatens the employee with potential charges for failing to cooperate, the employee provides key information, including the name of the person who signed the form before it was altered. Todd and Margret then interview the former employee. This time, Margaret discloses who she represents, truthfully.

We start with California Rules of Professional Conduct (CRPC) 5.3(b), which states: "a lawyer having direct supervisory authority over the nonlawyer, whether or not an employee of the same law firm, shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." Here, Margaret is supervising Todd, implicating this rule. Thus, Margaret must reasonably ensure that Todd is not violating Margaret's professional obligations.

Todd, however, interviewed the current employee of an opposing party. That employee's actions are directly at issue in the litigation because of signing the altered key document. Pursuant to CRPC 4.2, "[i]n representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer."

When the other party is a represented corporation, the rule prohibits the lawyer from communicating with a "current employee" - "if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability." See CRPC 4.2(b)(2).

Thus, Todd's interview of the current employee about the altered document was a violation of Margaret's professional obligations. Moreover, Margaret is responsible for Todd's conduct because Margaret directed and ratified his conduct. See CRPC 5.3(c)(1).

Comment [1] to CRPC 4.2, while not implicated here, is important to know: "This rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this rule."

Todd's conduct also violated CRPC 4.1(a) (Truthfulness in Statements to Others), because he made a "false statement of material fact" to a third person when he impersonated an FAA official.

Margaret thus engaged in professional misconduct under CRPC 8.4(a) because she solicited Todd to violate the rules.

Did Margaret do anything right here? Yes, when she interviewed the former client, she appropriately disclosed her representation of the plaintiff. See CRPC 4.3(a): "In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested."

However, watch the show to see whether Margaret also met this part of the rule: "If the lawyer knows or reasonably should know that the interests of the unrepresented person are in conflict with the interests of the client, the lawyer shall not give legal advice to that person, except that the lawyer may, but is not required to, advise the person to secure counsel." CRPC 4.3(a).

All Rise - Trouble Women

Amy Quinn and André Armstrong are named partners in a law firm defending a civil class action. Vanessa "Ness" Johnson is a rookie associate at their firm. Ness receives notice on her computer that there was a security breach. After seeing the notice, Ness immediately accuses a paralegal of allowing the breach, giving key privileged and confidential documents to opposing counsel.

After learning of the issue, André's first reaction is to ask Ness who to blame. Amy suggests that they slow down, take a beat, and figure out what happened. Ness explains that the documents were encrypted, so that the opposing counsel should not be able to view them anyway. Ness is then told: "You had two very important duties Ness. To oversee the paralegals and to maintain privilege logs of attorney-client documents." No one suggests that they consult with a forensic expert to determine what happened.

After Amy discusses the matter with opposing counsel, opposing counsel demands to "settle" the class action for far more than the settlement value, in exchange for not disclosing to the firm's client that the breach happened. But before the settlement is reached, Ness determines that the breach happened because of a security flaw on opposing counsel's side. She then "cracks" his code and reviews opposing counsel's privileged documents, learning that the case had no merit based on the privileged documents she reviewed.

As a threshold matter, CRPC 1.1, Comment [1] states: "[t]he duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology." CRPC 1.4(a) requires that a lawyer "keep the client reasonably* informed about significant developments relating to the representation."

Here, all three attorneys missed the mark on the competence and communication requirements because they did not properly investigate the potential breach, and after learning that there was a breach (opposing counsel in fact received the confidential document), they failed to inform the client. See Cal. Formal Opinion 2020-2023 (Data Breaches).

Second, the managing partners failed in their supervisory duties. CRPC 5.1(a) states: "A lawyer who individually or together with other lawyers possesses managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm comply with these rules and the State Bar Act." Here, they improperly assigned to Ness, a first-year and brand-new attorney, the task of overseeing paralegals and maintaining privilege.

Third, the law firm was in a conflict situation once the opposing counsel demanded to settle in exchange for keeping his silence. See CRPC 1.7(b) ["A lawyer shall not, without informed written consent from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer's representation of the client will be materially limited . . . by the lawyer's own interests"]. By entertaining the demand with a counter-offer and without client consent, André acted unethically.

Fourth, Ness's conduct of compromising opposing counsel's account and reviewing privileged documents implicates CRPC 8.4(b) and 8.4(c), because she unlawfully breached opposing counsel's device and engaged in dishonest conduct. Reviewing the privileged information arguably also implicates CRPC 8.4(d) [engaging in "conduct that is prejudicial to the administration of justice"].

Fifth, opposing counsel's actions were also improper. Under CRPC 4.4, he should have refrained from examining the privileged documents that he had inadvertently received in the first place. As noted in Comment [1], "If a lawyer determines this rule applies to a transmitted writing, the lawyer should return the writing to the sender, seek to reach agreement with the sender regarding the disposition of the writing, or seek guidance from a tribunal." Instead of following this rule, he used the receipt of privileged documents as a bargaining chip.

Finally, this scenario also serves as a reminder to be mindful of wellness in our work. Here, Ness and André engaged in the blame game from the get-go. Amy's proposal to "take a beat" was productive. Being competent includes having the mental and emotional ability reasonably necessary to provide legal services. See CRPC 1.1(a). The takeaway is this - when mistakes are made, or thought to have been made - take time to process the situation, investigate, and check in on each other, rather than point fingers and raise blood pressures.

The Klinedinst PC Ethics and Risk Management Team writes a monthly Practical Ethics Column to assist California Practitioners understand cutting edge ethics issues, manage risk, and ensure compliance. More about the Team and the authors--Heather L. Rosing, Dave Majchrzak, Joanna Storey Mishler, and Christine Rosskopf-- can be found here: https://klinedinstlaw.com/practice/legal-ethics-law-firm-risk-management