As most of you know, the vast majority of the inquiries that I receive involve conflicts of interests. Conflicts (and potential conflicts) can be tricky to assess. Last week, I urged lawyers to keep conflicts simple by trusting their guts. I also blogged on a Supreme Court opinion that reminds us that, in some cases, appearances matter.
Last night, I found myself considering conflicts & wondering whether professional sports might provide lessons, or useful analogies. Here are a few of my thoughts.
Former Client Conflicts: James Harrison
James Harrison is a professional football player. He spent the bulk of his career playing for the Pittsburgh Steelers. As a Steeler, he won 2 Super Bowls and was the 2008 NFL defensive player of the year. He’s the Steelers’ all-time leader in quarterback sacks.
In December, the Steelers cut Harrison. A few days later, he signed with the New England Patriots.
The Patriots and Steelers are bitter rivals. 6 days before the Steelers cut Harrison, they lost to the Patriots in one of the most-controversial endings in recent memory. Many experts and fans expected the Patriots and Steelers to meet again in the AFC Championship Game. Instead, the Steelers lost their first playoff game and did not advance to the AFC Championship.
When Harrison signed with New England, Steeler fans felt betrayed. Anticipating the rematch that never came, many feared that Harrison would provide inside information to the Patriots that would help them defeat Pittsburgh again. ESPN, NBC Sports, and ProFootballTalk covered the potential for Harrison to share Steeler secrets.
In a sense, that’s how your former clients might feel if you end up taking a case against them.
Here’s what I hear all the time: “It was long ago, I haven’t looked at the file in years, and I don’t remember anything about the case.” Fine. But that’s not the rule. Further, as a policy matter, the Supreme Court has said that Rule 1.9(a) is “prophylactic” and that we aren’t going to force clients to disclose confidences in order to protect them.
I get it: James Harrison is not a licensed professional who is bound by any sort of code of professional conduct. Still, if you’re a sports fan, and if one of your team’s players has ever joined a rival, keep that in mind when considering whether to enter an appearance on behalf of a new client whose interests are adverse to those of a former client.
Appearances of a Conflict – Derek Jeter
Derek Jeter is a former professional baseball player. He spent his entire career playing for the New York Yankees and is in the Hall of Fame. I wouldn’t be surprised if the top 3 results for a word association game with “Derek Jeter” are “New York, “Yankees,” and “New York Yankees.”
Last September, Major League Baseball approved the sale of the Miami Marlins to an ownership group that includes Jeter. Jeter owns a small stake in the franchise. He is also the Chief Executive Officer of the Marlins.
When Jeter assumed his role as Marlins CEO, the team had a player named Giancarlo Stanton. Last year, Stanton won the award as the Most Valuable Player in the National League. He is 28 years old and is in the prime of his career. He has been, is, and will continue to be one of the best baseball players in the entire world.
Within months of taking over the Marlins, Jeter traded Stanton.
To the New York Yankees.
In exchange for 2 low-level prospects who might never make the majors.
Conflict? I guess not. MLB approved the trade and nothing in its rules or bylaws prohibits a former player from running a team different from the one he played for.
But it sure looks like one. Business Insider might have said it best when it described the trade as “baffling.”
Again, I blogged last week that appearances matter. My post included this statement:
- “when talking about conflicts, it’s not uncommon for me to say two things:
- the rules prohibit actual conflicts, not the appearance of a conflict; and,
- even if you decide you don’t have a conflict, do you want to deal with the appearance? The other side will almost certainly file a motion to disqualify or a disciplinary complaint. Either can be costly and aggravating.”
So, the Jeter lesson might be this: maybe you don’t have an impermissible conflict. But it sure looks sketchy. Do you want to deal with that?
Current Clients – Tom Brady & Jimmy Garoppolo
Rule 1.7 addresses concurrent conflicts of interest. Section (a)(1) indicates that a concurrent conflict exists whenever representation of one client will be directly adverse to another client.
Tom Brady is the quarterback for the New England Patriots. For many years, Jimmy Garoppolo was Brady’s back-up. Earlier this season, the Patriots traded Garappolo to the San Franciso 49’ers. Brady and Garoppolo share the same agent. The agent is a lawyer.
Michael McCann is a law professor. He founded the Sports & Entertainment Law Institute at UNH School of Law. He is a legal analyst and writer for Sports Illustrated. A few weeks ago, SI ran a piece by McCann: Analysis: Brady and Garoppolo’s Sharing of an Agent Adds to Patriot Intrigue.
I find the post fascinating. As most of you know, I love sports and I work in legal ethics. McCann’s piece is the only sports article I’ve read that not only cites to, but quotes, one of the rules of professional conduct. Worlds colliding in such a way as to make music to my ears. Give it a read.
This column might be of little help to you. Arguably, it was nothing but a thinly-veiled excuse for me to write about sports. Nevertheless, I’m going to continue to try to find different ways to visualize and present conflicts.
On a personal level, this picture best describes the conflict of interests that I encounter in athletics: