I want to share an email I received from a legal ethics lawyer in Michigan, Don Campbell, who takes issue with two of my conclusions about Saul’s conduct in Episode 7 (Bingo). First, he disagrees that Saul breached confidentiality when he shared his elderly clients’ files with Chuck. Second, he disagrees that Saul’s involvement in breaking into the Kettlemans’ house was an ethical violation. Here are his remarks (edited for space), with my responses in bold. Although in my previous posts, I have used the name “Saul,” I use the name “Jimmy” below to be consistent with Don’s comments.
Don: I have found myself thinking about Jimmy’s conduct. I think his conduct was not inconsistent with the rules.
First, the easier one is Jimmy bringing the files to his brother. In both NY and Michigan, a lawyer who is not competent to handle a matter is permitted to associate with another lawyer who is competent. I see Jimmy doing just that.
Nicole: Correct - Rule 1.1(b) says that a lawyer should associate with a competent lawyer if he is not qualified to do the work himself. But I believe this must be disclosed. Don disagrees:
Don: The question becomes can Jimmy bring in his brother without the knowledge and permission of his clients? I say yes… . You raise the issue of improper sharing of confidences, but I don’t think that is violated when a lawyer is complying with Rule 1.1(b). So long as the other lawyer is covered by the duty of confidentiality. I think 1.6© allows this. To me this is like outsourcing a project to a contract lawyer. You don’t need client permission to do staffing. I think staffing is a decision left to the lawyer under 1.2(a), even outside counsel.
Nicole: One reason I take issue with this is because I think it’s misleading. A client should know whom she is hiring. If she hires Jimmy because she mistakenly thinks he is qualified to do the work, but in reality someone else is doing the work, she should know that. This is more than just a “staffing issue” - there the supervising lawyer is qualified to do the work, but uses associates or contract lawyers to assist with the work. When a lawyer needs to associate with a more experienced lawyer outside his firm, that is a very different issue.
Prof. Roy Simon - a leading NY commentator - agrees with me. In his seminal treatise on NY ethics, he writes:
Rule 1.1(b) itself does not expressly require a lawyer to obtain client consent to associate with a more experienced lawyer… . [However,] client consent is required before the inexperienced lawyer can give the experienced lawyer any meaningful information about the matter, because Rule 1.6(a) generally prohibits a lawyer from revealing a client’s confidential information to another lawyer without the client’s informed consent.
Don: A harder issue is Jimmy’s aiding (if not masterminding) the money being taken from his clients’ house by Mike. I think Jimmy’s conduct was not inconsistent with the rules. You suppose the taking of the money was a crime. It likely was. But, a lawyer is only answerable to those crimes that adversely reflect on her honesty, trustworthiness and fitness as a lawyer. Certainly Jimmy is responsible for Mike’s conduct under 8.4(a). But what was that conduct? It was breaking and entering but not for a felonious or larcenous purpose. I assume the money could not be stolen from the clients because they were never in lawful possession. So it would likely only be a misdemeanor in many jurisdictions. In any event a crime that does not involve moral turpitude. I do not think Jimmy violated 8.4.
Nicole: I understand Don’s view, but I still feel that breaking into a client’s home does reflect on a lawyer’s honesty, trustworthiness and fitness as a lawyer - even if it’s to confiscate stolen money. I think most clients would feel that a lawyer who breaks into their home was not “fit” to be their lawyer.
Don: What about a possible conflict of interest you ask? Jimmy’s loyalty to Kim apparently exceeded his loyalty to his clients. However, There is simply no conflict under 1.7. None. In Nix v Whiteside, 475 US 157 (1986), the Supreme Court said that a lawyer’s refusal to call a client to testify falsely is not a conflict, because there is no right to commit perjury. I would analogize Jimmy’s situation to the lawyer in Nix. Where the clients are upset that they wanted to continue a crime, that can’t be the proper basis of a claim of conflict in my opinion.
Nicole: The difference in Nix is that the lawyer followed the proper procedures for dealing with client perjury. He warned the client that he had a duty to disclose any false testimony, which persuaded the client to testify truthfully. After being convicted, however, the client complained that he was denied a fair trial because he wasn’t able to testify falsely. The Court ruled that an attorney is not obligated to assist a client in committing perjury. Unlike Jimmy, the attorney in Nix didn’t use his knowledge of the client’s guilt to trick him into accepting a plea deal. The message of Nix is that there are legitimate options for lawyers who are faced with client perjury and misconduct. I doubt that a court would bless Jimmy’s dishonest and manipulative way of handling of the situation.
Don: Hope you found my "dissent” interesting, if not compelling. I do enjoy the show and try to watch - unless there is sports on, of course. Looking forward to your next blog.
Nicole: Here it is Don! Hope you enjoy it!