Legal Ethics Forum

The First Thing We Do, Let's Blame All the Lawyers

It’s okay for clients to blame lawyers for life’s complexities, especially when prenups are involved, as I explain in today's Chicago Tribune:

[Also posted on The Faculty Lounge]

October 23, 2017

The first thing we do, let’s blame all the lawyers

Steven Lubet

The “Modern Love” column in the Sunday New York Times is always about relationships, but they are usually between romantic partners rather than attorneys and clients. Sometimes, however, lovers need lawyers. Even so, the sweethearts often resent the advice of counsel, and never more than when the heart wants one thing and an attorney is recommending something else.

Consider the “Modern Love” story of Abby Mims and her fiance, Matt. Already in their early 40s, and living together with their toddler son, the two had not yet wed.

Abby, who wrote about their relationship, was eager to get married, but Matt held back, mostly for fiscal reasons. Having worked for 15 years “in finance,” he’d accumulated a significant amount of money “that he hadn’t disclosed to anyone,” including the mother of his child. Abby, on the other hand, was an impecunious freelance writer, with only a few thousand dollars and an old car to her name, not to mention $10,000 in debt.

Predictably, they had fought about money throughout their six-year relationship, and even couples therapy had not resolved their differences.

Matt eventually figured out how to overcome his aversion to marriage. He proposed to Abby on the condition that they obtain a prenuptial agreement, saying that “he would pay all of the lawyers’ fees and make it as easy as possible.” Abby cringed at the thought, but she half-heartedly agreed, “believing it was the only way forward.”

The reality of the prenup turned out to be more humiliating than Abby had imagined. She could barely bring herself to reveal her meager finances to her own lawyer, and she recoiled when he pointed out the unfairness of a provision in Matt’s proposed agreement. Who could possibly care about “the hypothetical divorce payout from a man I wasn’t yet married to from the sale of a house we didn’t yet own”?

Abby fled the office in tears. She “sort of hated” her lawyer for bringing up the house-sale clause, which made her feel “surprisingly worthless.” Still weeping, she called Matt for reassurance. “What a mess,” he consoled her. “I thought it would be simple. I forgot that nothing is simple when you get lawyers involved. Listen, I don’t know what he’s talking about, but let’s just sign it and finish the process.”

Matt’s encouragement to “just sign it” was disingenuous at best. As an affluent banker, he surely realized that the house-sale provision was intended to protect his assets at Abby’s potential expense. After all, asset protection was why he wanted a prenup in the first place. Perhaps Abby could not envision a post-divorce house sale, but Matt, who had kept his investments hidden, must have understood the possible complications of joint property ownership.

It is easy to blame the lawyers for making life complicated, but nobody coerced Matt into seeking a prenup. And once he retained counsel, it was his lawyer’s obligation to anticipate everything that could go wrong in the marriage. It would border on malpractice to draft an agreement that fails to account for a couple’s most valuable property, which in this case would have been paid for by Matt’s earnings.

Of course, Matt was not the first client to blame his lawyer for trying to do a good job. That comes with the territory. For lawyers, it is better to be blamed now than cursed later.

Abby accepted Matt’s feeble excuse that he had never asked for the house-sale provision, and she went along with his urging to execute the agreement as written. “I called my lawyer and told him Matt and I were getting married in a week and I wanted to sign the prenup,” including “the troublesome house-sale clause.” Fortunately, her attorney balked and he negotiated a change in the language so that “when we sold the house we didn’t yet own, I would get my fair share.” (There were fees; lawyers do not work for free any more than bankers do.)

Matt soon apologized for insisting on the prenup. “This was an awful thing I did to you, to us,” he said. “And for all the fights we’ve had about money, this was a huge waste of it.” “But there was no other way,” Abby told him. “If I fought you on it, everything would have imploded.”

Abby and Matt have now been married for two years. It seems that they no longer argue about money, with Matt having sequestered his personal funds and Abby trusting that the whole ordeal will turn out to have been unnecessary. “I don’t even know where we put our prenuptial agreement,” she wrote, “and I hope I never need to know.”

Matt no doubt shares Abby’s optimism, but it’s a safe bet that he knows exactly where to find the prenup (hint: his lawyer has a signed copy). But if things ultimately do implode, well, Abby will at least get half of the house.

Steven Lubet is a law professor at Northwestern Pritzker School of Law and director of the Bartlit Center for Trial Advocacy.

Section on Professional Responsibility AALS Annual Meeting Events in San Diego Jan. 6, 2018

On behalf of the Executive Committee for the Section on Professional Responsibility, I am writing to remind you about the fabulous day of events planned for the AALS Annual Meeting in sunny San Diego on Saturday, January 6, 2018. Please note the 11/30 RSVP deadline for lunch. And congratulations to scholars selected from the call for papers for both the plenary session as well as the works-in-progress session. We hope you will join us!

8:30-10:15 PR Section Plenary Session – The Ethics of Legal Education
Deans Dan Rodriguez (Northwestern Law) and Andy Perlman (Suffolk Law) as well as Dean Emeritus and Professor of Law Joan Howarth (Michigan State Law) are confirmed speakers. Two additional panelists were selected from the call for papers: David McGowan, Lyle L. Jones Professor of Competition and Innovation Law (USD Law) and Brian Tamanaha, John S. Lehmann University Professor (Washington University St. Louis Law).

11:30-1:30 PR Section Lunch and Annual Meeting, hosted by the University of San Diego Law School
A bus will depart the AALS hotel lobby at 11:30AM, with lunch beginning at noon, followed by the annual meeting and presentation of the Zacharias Award. The bus will return to the hotel at 1:30PM. USD Law is generously providing this lunch for our section, but you must RSVP in advance no later than November 30 in order to attend. Please RSVP to Pam Watson: [email protected] with “AALS PR Section Lunch RSVP” as the subject.

3:30-5:15 PR Section Works-in-Progress Session
Peter Marchetti (Thurgood Marshall Law), The Need to Regulate For-Profit Law Schools to Prevent Inherent Conflicts of Interest (commentary by Ben Barton—Tennessee Law)
Irene Joe (UC Davis Law), Ethics of Mass Prosecution (commentary by Ellen Yaroshefsky—Hofstra Law)
Veronica Root (Notre Dame Law), Two Paths Forward (commentary by Renee Knake—Houston Law)
Moderator, Ben Edwards (UNLV Law)

Lisa Bloom’s Short-Lived Representation of Harvey Weinstein: The Difficulty of Seeing One’s Own Conflicts

On October 5, Lisa Bloom released a statement via twitter regarding her representation of Harvey Weinstein and the Weinstein Company. She explained that she and Weinstein had been working “together on a project bringing [her] book to the screen,” and asserted that “he has always been respectful toward” her. Bloom also said that Weinstein asked her “to do a comprehensive review of his company’s policies and practices regarding women in the workplace.”

Two days later, Bloom announced (again via twitter) that she was no longer representing Weinstein (or presumably the Weinstein Company).

Bloom’s engagement on this matter may have been doomed from the start. She apparently failed to identify -- let alone explain to her clients -- her own conflict of interest in the matter. According to the New York Times, Bloom “denied that her work with Mr. Weinstein created a conflict of interest. ‘A conflict is representing two different sides in the same case.’”

As is obvious to readers of this blog, conflicts aren’t limited to situations where a lawyer represents “two different sides in the same case.”

California Rule 3-310 identifies other types of conflicts, such as when a lawyer has a business relationship with a party to a matter. Under those circumstances, the lawyer must inform a “client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client.” (emphasis added)

Here, Bloom had a pre-existing business relationship with Weinstein and the Weinstein Company: the business deal to bring her book to the screen. Bloom’s clients obviously were aware of that business relationship because it involved them directly.

But under the California Rule, Bloom had an obligation to provide her clients with a written explanation of how that business relationship could have “actual and reasonably foreseeable adverse consequences” for them – such as by affecting Bloom’s objectivity in advising Weinstein and limiting her credibility when speaking on his behalf.

While Bloom couldn’t see her own conflict of interest, others could see it. The NYT reported that Lance Maerov, a Weinstein Company board member, identified Bloom’s conflict of interest in an email to her:

“’You have a commercial relationship with TWC via a TV deal so how can you possibly provide impartial advice to Harvey or address this group with any credibility?’”

Bloom hasn’t always had such a narrow definition of conflicts of interest. Earlier this year, she asked Fox News to conduct an investigation of Bill O’Reilly’s sexual harassment of her client, Wendy Walsh. After Fox News chose Paul Weiss to conduct the investigation, Bloom complained that “because Paul Weiss has represented Fox News before, the firm has a conflict and should not serve as the investigator. She asked that Fox News assign the investigation to someone else.” (source: Law360)

In the last few days, Bloom has been subjected to public criticism -- and worse -- for her decision to represent Weinstein.

I don’t know whether Bloom sought counsel from anyone else before deciding to take on this representation, or whether she relied on her own legal ethics analysis. Her short-lived representation of Weinstein may be a cautionary tale about the danger of relying on one’s own judgment when taking on a representation that appears to be a great opportunity.

 

 

Conceding a Defendant’s Guilt

On September 28, the Supreme Court granted certiorari in McCoy v. Louisiana to consider whether the Sixth Amendment permits defense counsel to concede guilt over the express and emphatic objection of the defendant.

In affirming McCoy’s murder convictions, the Louisiana Supreme Court found that defense counsel’s concession of guilt was justified because the defendant’s proposed alibi defense “could not be substantiated, had no reasonable chance of success [and] exposed those who attempted such a defense to the charge of perjury.”

The amicus brief filed by the Ethics Bureau at Yale in support of the petition for a writ of certiorari refutes this “astonishing interpretation” of the Rules of Professional Conduct by pointing out that neither Rule 1.2 nor Rule 3.3 invests a lawyer with authority to unilaterally concede a client’s guilt because the lawyer doubts his client’s claim of innocence. As argued by amicus, the Rules provide guidance for counsel facing a request to present false evidence, but the alternative approaches to the problem do not include conceding guilt.

Justice Blackmun’s concurrence in Nix v. Whiteside reminds us that the only federal issue in cases like McCoy is whether the defendant was deprived of effective assistance of counsel. But Louisiana’s reliance on counsel’s “ethical dilemma” to justify his unilateral concession of guilt provides the Court with an opportunity to discuss Louisiana’s interpretation of its ABA based Rules of Professional Conduct.