Talking culture, compliance, confidences & candor.

Flashback to 1994:  I was a brand new attorney.  Another attorney in my office mentioned Shelley Hill.  I asked, “who’s Shelley Hill?”  The attorney responded, “someone you never want to hear from.”

Back then, Shelley was Vermont’s disciplinary prosecutor.  The attorney’s answer to my question was the extent of the ethics guidance I received in my first ever job as a lawyer.

Legal Ethics

We’ve come a long way.  It’s no longer taboo to talk legal ethics.  We talk it.  A lot.  Not only does it help us do better for our clients, it improves the image of the profession.  To that end, one of my goals as bar counsel is to foster an ongoing and open dialogue about legal ethics and professional responsibility that helps to build a culture of compliance that we put out there for the world to see.

Reflective of the today’s world, the conversation happens in many forums.**  Today, I woke to having been mentioned in a tweet by a lawyer who was concerned by the news that Nikolas Cruz’s public defender disclosed Cruz’s potential inheritance in a motion to withdraw from representing him in the criminal case.  The lawyer tweeted:

“i would be interested to learn the circumstances of the public defender of Nikolas Cruz disclosing to the court in Mtn to Withdraw and on the record that his client inherited $430,000 (VERY vulnerable to civil suit if not exempt) – seems a bit problematic, eh @VTBarCounsel?”

The entire string is here.

Look at us.  We are talking legal ethics in public! THAT is professional responsibility.

I’ve blogged often on client confidences and Rule 1.6.  Basically, my position is that lawyers should STFU.  Or, to borrow a quote from Thomas Edison that my Dad instilled in me as a kid:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”

Obviously, it’s far wiser to take my Dad out in public than his eldest son.

Anyhow, as indicated in my reply Tweet this morning, I don’t comment without hearing all sides to a story, not to mention that I have no idea what Florida’s rules are.  But it’s a great construct to use as a mini-refresher on Vermont’s rules.

By rule, “information relating to the representation of a client” is confidential.  The scope is broader than the privilege and includes all information related to the representation no matter the source.  Comment [3].  Such information shall not be disclosed unless:

  • the client gives informed consent to the disclosure;
  • disclosure is impliedly authorized to carry out the representation;
  • disclosure is required by paragraph (b);
  • disclosure is permitted by paragraph (c).

Returning to the Parkland case, if Vermont’s rules applied, the first possibility is that Cruz gave informed consent for his public defender to make the disclosure.

I’d be surprised if any of exceptions in paragraph (b) applied.  However, it’s possible that one of the exceptions in paragraph (c) applies.  That is, disclosure of the inheritance might be authorized by another rule.  Stay with me here.

This morning I did something rare: I did some research before I tweeted.  I learned that, as reported by the South Florida SunSentinel, a year ago Cruz’s inheritance was the subject of a hearing as to whether he qualified for public defender services.  Per the report, it appears as if it was represented to the court that Cruz stood to inherit far less than recent developments indicate.

If so, and again if Vermont’s rules applied, it’s possible that the new information required the public defender to make the disclosure pursuant to Rule 3.3.  The rule, entitled “Candor to a Tribunal,” requires a lawyer to correct a prior material statement of fact that was false.  Were the statements made in last year’s hearing on Cruz’s eligibility for public defender services “material” and “false?”  If so, one might argue that the public defender was required to make the disclosure in the motion to withdraw.

Finally, reading today’s reports left me with the impression that Cruz’s public defenders believe that, given the inheritance, the law precludes him from being eligible for their services.  Thus, it appears to me that they argued that they are required to withdraw.

In Vermont, Rule 1.16 governs withdrawal.  Perhaps most relevant here, Rule 1.16(a)(1) requires withdrawal when “the representation will result in violation of the rules of professional conduct or other law.”  So, it looks to me as if the argument is “by law, the inheritance prohibits us from representing him, thus withdrawal is required.”  The Florida courts will decide.

Aside: as some of you know from having called me or heard me speak.  When it comes to a motion to withdraw, I think it best to limit the motion to citing the text of whichever provision(s) of Rule 1.6 you’re arguing.  Then, if the court asks for more information, respond, but in such a way as to disclose no more information than is necessary to answer the court’s question.  Being mindful, the entire time, of a larger duty not to harm to your client’s interests on your way out.  Others may disagree with me, but that’s fine.

Indeed, that’s why it’s so important to continue to discuss legal ethics and professional responsibility.  The discussion makes us do better by our clients, the courts, and the profession.

Talk on.

** I couldn’t decide whether to go with “fora” or “forums.”  Flipped a coin.