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So Young, So Cynical

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8 Responses

  1. floria says:

    thank you for share your experiences,
    become a teacher is my dream.
    mbt
    emu boots

  2. A.J. Sutter says:

    Maybe I’m mixing apples and oranges in a way your post didn’t intend, but how does the “self-reporting” duty play out in the context of the Qualcomm litigation situation — and particularly the issue of “unprivileged knowledge”? E.g., suppose an associate discovers the unproduced emails when examining one of the client’s computers, and tells a Partner A; the partner makes the call not to produce the emails, despite the discovery request (let’s ignore for now the affirmative misrepresentations made in court). Suppose further the client also would prefer not to admit its concealment to the court. Does the associate have a duty to report the partner’s breach of ethical duty?

    (A) Does any privilege attach because the associate learns of the existence of the unproduced emails from the client? Or is that privilege negatived because of the outstanding discovery request? (You can see from this naive question that I’m not a litigator.) (B) Partner A’s decision to conceal is not something learned of from the client. Is it therefore unprivileged? Or, if some privilege does attach in the question (A) context, does that privilege extend to the partner’s decision (since to disclose the partner’s decision would be also to disclose the client’s concealment)?

    If the client’s concealment can’t be disclosed because of some breach of privilege, it would seem to me the appropriate thing to do would be to resign from representation. In my practical experience, the best way would be for the associate to approach other partners (if any) in the firm and let them know that their rear ends might soon be in a sling if they don’t do something about Partner A’s dubious call. Is that enough? What if there aren’t any other partners, or if they back up Partner A — what should the associate do?

  3. Michelle Harner says:

    A.J.:

    I do not think you are mixing apples and oranges; I think your comment is exactly on point. Privilege is one concern, but the larger, related concern is a lawyer’s duty of confidentiality under Model Rule 1.6. This duty is very broad and includes basically anything the lawyer learns in the course of the representation, whether from the client or a third-party source. And the lawyer’s reporting duty is subject to the client’s consent if the disclosure implicates confidential information. So, both the senior lawyer and client could block reporting.

    That being said, a lawyer also has a duty not to assist a client in fraud, illegality, etc. Whether that duty under Model Rule 1.2 trumps client confidentiality is subject to debate and is often referred to as a noisy withdrawal. That leaves the lawyer with the course of action you recommend, leaving the firm or withdrawing from the representation. Of course that often is not a desirable result from either the lawyer’s or the client’s perspective, and I think it is a particularly hard decision for subordinate lawyers. It also asks a lot of young, inexperienced lawyers who may not be comfortable concluding that a senior lawyer’s decision is unethical versus aggressive advocacy within the bounds of the law. For that dilemma, I encourage students to seek advisory opinions from their jurisdiction’s disciplinary counsel. Although not binding, it at least provides them with an objective perspective on the ethical issue.

    Thanks for the comment.

    Best regards, Michelle.

  4. Michelle Harner says:

    Floria: Thank you for your comment. Teaching is a wonderful and very rewarding experience. I highly recommend it. Best regards, Michelle.

  5. A.J. Sutter says:

    Thanks for your reply. When I was about a 5th-year corporate associate, I was once roped in to help a partner in my firm’s tax department do a deal. It turned out that not only did he have a personal interest, but he and a couple of controlling shareholders of a company were preparing to screw some minority holders, mostly employees. I contacted the heads of our conflicts and opinions committees, and together we crafted a bunch of ultra-conservative conflict disclosures and opinion disclaimers that we designed to be so unpalatable to the tax partner that the deal would die. Our plan worked; and the partner was booted out within 2 years, since this was neither the first nor last of his shenanigans.

    It’s very important for associates to develop some rapport with partners other than the ones they work for, including in other departments of their firm. Partners don’t like to become subject to huge liabilities because of one jerk in the partnership. At least in a mid-sized to big firm, a network of trust will usually be an easier alternative for a young lawyer than consulting the jurisdiction’s disciplinary counsel, IMHO.

  6. Michelle Harner says:

    A.J.: I completely agree with you. Great advice for junior lawyers, and a relatively easy step that I think many lawyers fail to appreciate. Thanks also for sharing your story. So often law students think ethical dilemmas are a problem for the classroom but not a real issue in practice. Best regards, Michelle.

  7. Civ Pro King says:

    Well, Bodoh must have taught you well. :-)

  8. Michelle Harner says:

    Judge Bodoh is indeed an amazing mentor; I am so fortunate to have clerked for him. Thanks for the comment!