Last year, a former Toyota in-house lawyer, Dimitrios Biller, brought a well-publicized wrongful termination action against Toyota (here and here). At the time, the publicity was focused on Biller's claim that Toyota had failed to turn over damaging information in the context of rollover litigation.
Here's a story just published at cnn.com that concerns the potentially devastating information that Biller appears to have about the company's litigation practices more generally. (Thanks to Suffolk's Jeff Lipshaw for sending me the link.) According to sources quoted in the story, Biller's information reveals that Toyota was aware of more problems with its vehicles and for a longer period of time than the company has acknowledged.
What caught my eye, however, was this section of the story concerning Biller's conduct:
So why, if Biller knew a judge had ordered all information produced, didn't he produce it? He said he tried but was stopped by a superior who told him, "You have to protect the client at all costs."
"Even if that includes," Biller asked, "committing criminal acts or violating the law?"
The answer, Biller said, was yes.
Did he break the law? "No, I did as much as I could as a lawyer for a client to not break the law," he said. "I wrote e-mail after e-mail, memo after memo, explaining the legal obligations Toyota and its affiliates needed to fulfill."
Biller suggests that he didn't break the law (and presumably the ethics rules) because he did everything he could to get Toyota to do the right thing. But we know from Rule 5.2(a) that Biller cannot defend himself by saying that he was acting at the direction of a superior.
From what I can tell, Biller was working on these cases and assisting with the discovery process. If so, several rules are implicated here, including Rule 1.2(d). Here are some notable comments concerning that rule:
[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.
Comment [9] appears to favor Biller, because he did not help Toyota to engage in any wrongful conduct. But comment [10] and Rule 1.16(a)(1) would have required Biller to withdraw or quit once Toyota refused to disclose documents that Biller believed that the company was legally required to produce. Rule 1.13 and perhaps SOX are also applicable here.
As an ethics matter, how exactly should Biller have proceeded? At what point, would he have been ethically required to quit his job at Toyota or, at the very least, withdraw from handling any litigation where he thought that documents were being inappropriately withheld?