Publicly correcting your former client about the matter you represented them on. (Floyd Abrams' letter to the editor in the NYT)

I agree with the letter to the editor that Floyd Abrams wrote. It disagrees with his former client's views about the matter on which he represented the client. That's ok under the ethics rules, right? (Even if some aspect of Oasis West Realty were held to apply in New York?) I suppose that the NYT decision to run the letter is acquiesence/consent, isn't it?

Comments

[Nicole]

Ha! Imagine if the NY Times tried to argue that Abrams violated some ethical duty in publicizing his disagreement with the NY Times regarding these decisions, forcing Abrams to adopt an Oasis defense (i.e. that he was exercising his freedom of speech). It would pit the rights of the NY Times (a corporation) against the free speech rights of an individual (Abrams), which the NY Times has just argued are paramount. That's almost too "meta" for me.

But, to your questions - I don't think it's unethical to publicly disagree with your former client's interpretation of the decision issued in the case where you represented the client. We owe a duty of confidentiality to former clients, but nothing Abrams wrote revealed confidential information. Whether we continue to owe a duty of loyalty is obviously much debated, but even if we do, I still don't see how this would violate the duty of loyalty. Attorneys have to be able to discuss legal precedent and give their interpretations of what cases mean - even their own cases. If your interpretation of the decision differs with your former client's, that can't be an ethical violation. A thornier question is whether the lawyer can later say that he disagrees with the outcome of a decision that was favorable to his former client (i.e. what if Abrams were arguing that Sullivan was wrongly decided and should be reversed?). That seems to go into the territory of a lawyer attacking his former work product.

The question of whether the NYT's decision to publish the letter is consent (assuming the letter was an ethical violation) is interesting. In sending the letter to the NYT's, Abrams is arguably just sending a letter to his former client pointing out his disagreement with the client's interpretation. It's not a public disagreement until the NYT prints it.

[Richard Painter]

I concur. No problem here.

A different situation would arise if the lawyer endorsed an interpretation of the prior opinion that directly questioned the legality of the client's own conduct. For example, arguing that "the court's decision in X case (in which I represented you) does not allow you to do Y."

Even that statement -- however disloyal -- probably would not violate the ethics rules unless the lawyer disclosed confidential information or made the statement in the course of representing an adverse party in a matter substantially related to the prior representation (see MR 1.9).

RWP

[Monroe Freedman]

Nicole: Thanks for another thoughtful post. Why don't you list yourself as an active blogger?

[John Steele]

Monroe, you'll be pleased to see that Nicole's first post is already up. No sooner said than done!

[Noah Rosenthal]

Further to the point about Oasis Realty (assuming, as John did, that Oasis would apply in NY), a court would have to substantially expand Oasis to apply to Mr. Abrams's letter.

The basic conceit of Oasis is that attorney Goldman could not "use" his former client's confidential information in a manner adverse to the client even if, in using that information, he did not disclose it. The Court concluded that it was "reasonable to infer" that Mr. Goldman was "using" the confidential information in forming his opinion against the Hilton project, then acting on that opinion. (I see many problems with that holding, but that's a conversation for a different day.)

While I think the basis for that inference against Mr. Goldman was questionable, such an inference against Mr. Abrams would could wreak havoc on our legal system. Mr. Abrams's letter does little more than describe the U.S. Supreme Court's decisions in Sullivan and Citizens United. Inferring that he used the confidential information from his New York Times and McConnell representations to form his understanding of the public, published holdings in those cases would effectively ban lawyers from any future representation that addressed similar issues as past representations, unless the attorney took the exact same position in the subsequent cases.

While, perhaps, there could situations where issue adversity would require disqualification or justify a breach of fiduciary duty claim, applying issue adversity in this manner would amount to a ban on developing expertise in a particular area of law. We might even run out of lawyers if we applied such a rule!

[John Steele]

Noah, I'm with you on that analysis. There was loose language in Oasis about not being disloyal to your client on the subject matter you formerly repped them on -- but Abrams was hardly attacking the result in Times v. Sullivan.

How about this analogy? Abrams' letter was like a patent lawyer who argues to the PTO on behalf of one client that the patent the lawyer obtained for another client should be construed this way or that way.

As I'm spinning out the hypos, I don't want to suggest that Abrams breached the ethics rules. It just struck me as interesting to see a lawyer publicly disagree with a former client that way.

[Monroe Freedman]

I think Abrams was reasonable in believing that his letter *furthered* his former client's (the NYT's) interest, rather than being adverse to the NYT's interest.