Legal Ethics Forum

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.

 

 

Seattle, WA Bar Association Seeks Ethics Rules on Lawyer Pot Use and Advice

In 2012, Washington State voters approved Initiative 502, legalizing some marijuana possession and use in Washington State, and creating a regulated market for marijuana distribution. As a result, many Washington lawyers have wondered whether and to what extent under RPC 1.2(d) they ethically may counsel and assist clients on personal and business matters involving marijuana that are lawful under state law, but that would remain criminal under federal laws still applicable in Washington State. A few lawyers perhaps may have wondered even whether the ongoing federal prohibition would make their own personal possession and use unethical under RPC 8.4 even if the possession and use is lawful under state law. The subject invited a lively discussion, for instance, at a recent WSBA ethics CLE here in Washington on which I served as a panelist.

In response to this uncertainty, the King County Bar Association in Washington State has asked the Washington Supreme Court to add new comments and a new rule to the Washington RPC to make clear that lawyers do not violate the RPC by conduct that is lawful under state law but that "standing alone" may violate federal law. The proposed comments interestingly provide expressly that these new provisions "specifically address Washington State Initiative No. 502." The proposed comments and new RPC 8.6 are available here. An ABA Journal story on the topic is here.

New View of Salary Trends: it's bad and going to get worse

The article is here, by Northwestern Adjunct Professor and former Kirkland & Ellis partner Steven J. Harper, from Belly of the Beast, his blog.  One breathtaking point:  " The median starting salary for law firms of all sizes dropped from $130,000 in 2009 to $85,000 in 2011."

Georgia Appellate Court Adopts Unique Approach to Intra-firm Privilege

Hunter, Maclean, Exley & Dunn v. St. Simon's Island Waterfront LLC, is available here. Boiled down, the firm was concerned it had committed malpractice, thought the client had accused it of that, but could not withdraw because there were multiple on-going representations.  The firm consulted with its own lawyers, as well as outside counsel, on the issues. When this case, the malpractice suit, was filed, the firm asserted privilege as to the communications.

The court rejected the notion that a firm cannot assert a privilege against its own client because all conflicts are imputed, and also rejected the notion that it can assert the privilege unless the fiduciary exception applies.  Instead, in broad terms it adopted the approach of Professor Elizabeth Chambliss from The Scope of In-Firm Privilege, 80 NOTRE DAME L. REV. 1721, 1745 (2005).  In part the court explained:

Nevertheless, when firm counsel “individually has no conflict of interest under Rule 1.7 or Rule 1.9, and the in-firm communication meets the ordinary requirements for privilege,” we conclude that “courts should not automatically impute a conflict under Rule 1.10.”43 Instead, imputation should depend on “the structure of the in- house position.”44 Thus, when “firm counsel holds a full-time position and does not represent outside clients, courts should not impute a conflict under Rule 1.10." In this regard, compensation is perhaps the clearest way to demarcate firm counsel’s role, particularly through the use of billing procedures “to establish the firm as the client and to distinguish the lawyer who acts as firm counsel from other lawyers in the firm.” The role can be further demarcated by ensuring that its function is known and understood throughout the firm, that its compensation is not significantly determined by firm profit, and other similar measures. 

Additionally, courts should not impute a conflict to part-time firm counsel when “the lawyer who serves in that capacity does so on a formal, ongoing basis, such that the firm is clearly established as the client before the in-firm communication occurs.”48 So long as counsel in this position has had “no involvement in the outside representation at issue and the firm is clearly established as the client before the in- firm communication occurs, firm counsel should be treated as the functional equivalent of corporate in house counsel.” Put simply, “the same lawyer who represents the outside client cannot simultaneously represent the firm in a dispute between the firm and that client without the informed consent of both clients.”

 

There's a lot of cautionary language in the opinion, and limitations, and definitely worth a read.

 

 

 

 

Will Document Review Factories by Replaced by an Algorithm?

My friend Carolyn Southerland and I wrote a short piece here about the potential impact on "predictive coding" (basically, using a computer to search for responsive documents, as well as privileged ones, instead of eyeballs).

The technology is nascent, but last Friday another judge ordered its use.  It will be interesting to see (a) how well it works (what will happen if/when there's a first major privilege disclosure, or non-disclosure of key documents?) and (b) what impact it will have on hiring, since a lot of lawyer time is being sucked up in document review.

South Carolina to Lawyers: Don't Answer, Don't Tell.

There's a website called "justanswer.com" that permits folks to ask questions on about anything, including law, for a fee. Then an "expert" provides an answer.  Can a lawyer participate?

South Carolina's recent bar opinion on that question (and answer) are here.  Here is the summary:

 

The website’s use of testimonials, endorsements, the word “expert,” and other misleading statements prohibit Lawyer’s participation. The site invites specific questions about specific legal matters and offers specific legal advice but uses buried small-type statements to attempt to disclaim the creation of attorney- client relationships and to warn against reliance on the advice. The Committee believes Lawyer’s participation under these circumstances would be improper.

As to legal information websites in general, if a website complies with all communications and advertising rules, Lawyer could participate in such a program but with specific caution against inadvertently forming an attorney-client relationship by offering more than basic information of general applicability. Where legal advice is provided, it is improper for Lawyer to accept compensation from the website provider without complying with Rule 1.8(f).

Sounds about right to me.

Federal Circuit Denies En Banc Reconsideration of Subject Matter Jurisdiction over Patent-Related Malpractice Claims

The case is here.  Three judges dissented from the denial of en banc rehearing, in a 28 page opinion that I need to read.  This can be a significant issue since, unlike almost all other legal malpractice claims, there need not be an independent jurisdictional basis for one based on patents....

Protecting Client Files in the Digital Age and Grabbing and Leaving

The allegation is that before he left a former partner used Dropbox and thumbdrives to take copies of 70,000 client files.  While understandably the firm is suing him, should the clients be concerned at the apparent ease with which this happened?  I don't know - just asking.  Here is the story.

Interesting Op-Ed Re Changing NY's Position on Review of Metadata

The op-ed is here.  Boiled down, a New York opinion says lawyers shouldn't look for metadata sent from opposing counsel (outside the discovery context, obviously), while the ABA says you can.  Sounds like a technical disagreement, but it boils down to whether it is "dishonest" to look for metadata.

What I have heard smart lawyers do is plant false metadata to mislead those who would be dishonest.... wait, there's something strange about that solution.

 

Lawyers as Plaintiffs in Copyright Suit Against Lexis and Westlaw

The story is here.  As I understand it, West & Lexis make available briefs, etc., that they somehow acquire (Pacer?).  I have used the database and it is a great resource.  Lawyers are now bringing a proposed class action suit to stop this practice.

I don't know enough about copyright law to know if this is fair use (it's commercial use, but at the same time it's not going to lower demand for a brief somebody wrote, because there is none).  But the suit if successful certainly is a way to make it more expensive for clients to have work done for them, and it has the potential to retard the development of the law.

Thoughts?