California Bar issues opinion on whether attorney can refuse to disclose confidential information in support of motion to withdraw from representation

The California bar's ethics committee recently issued an opinion (Formal Op. 2015-192) attempting to clarify whether an attorney seeking to withdraw from a litigation for ethical reasons might have grounds for resisting a court order that would require the lawyer to disclose client confidences to a judge who wants more information before ruling on the motion.  Although it admits there is no on-point guidance in California, the committee urged lawyers not to reveal confidential information to support their withdrawal motion. If the judge insists, the committee said, there is no clear legal or ethical authority in California that either permits or forbids an attorney to comply with the court's directive.  You can read the opinion here.  The summary reads as follows:

An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney - client relationship. In attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communications with the client, either in open court or in camera. To the extent the court orders an attorney to disclose confidential information, the attorney faces a dilemma in that she may not be able to comply with both the duty to maintain client confidences and the duty to obey court orders. Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed. Although this Committee cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, this Committee does opine that, whatever choice the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client.

Podcast on lawyers and modern technology

The Legal Talk Network has a new podcast on lawyers and modern technology. You can listen to it by clicking on the play button below. If you can't see the button, you can go here.

Here is the description of the program:

As we’ve heard time and time again, many lawyers are averse to becoming knowledgeable about modern technology. Older attorneys often do not want to learn a computer-based management tool and feel as though they can hire someone to manage the security and encryption of their sensitive information. Often, even having a young lawyer in the firm can seem like a solution since they will most likely have grown up with a certain level of technology knowledge. But none of these are valid excuses to a proper level of technological education. The luddite lawyers need to face the ethical implications of their ignorance.

In this episode of The Digital Edge, Sharon Nelson and Jim Calloway interview lawyer and legal technology blogger Sam Glover about when technology became an issue for attorneys, how they can get in trouble due to ignorance, and what all attorneys need to know about hackers, cloud services, and the resulting ethical duties. First, Glover explains that lawyers are getting into trouble in the courtroom by not knowing about how technologies like Twitter work... Concerning cyber security, Glover discusses the many reasons lawyers cannot simply outsource technology knowledge. ... Simply put, you cannot avoid technology as a lawyer anymore. There are courses, blogs, webinars, books, and many other ways to become educated about legal technology.

Cert petition before the Supreme Court on whether exonerated defendant can sue New Orleans parish prosecutor's office, ... again

A new case has reached the Supreme Court on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages.  The case is called Truvia v. Connick and you can read the certiorari petition here.  (And, before you ask, yes, that is the same Harry Connick, whose office was involved in Connick v. Thompson and Smith v. Cain).

As you probably remember, in Connick v. Thompson, the defendant conceded that the prosecutor in the case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before his conviction was reversed. He sued and won a multi-million dollar verdict, but the Supreme Court, in a five-four opinion by Justice Thomas, reversed holding that there was no evidence of a deliberate indifference to the rights of persons or a pattern of similar constitutional violations.  The dissenters in the case argued the evidence was sufficient stating that "the evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record ...  reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical."  (It is now known that the DA's office’s failure to disclose exculpatory evidence led to the exoneration of at least twelve people since 1990.)

A year later, after listening to the oral arguments in Smith v. Cain, during which the justices discussed the history of misconduct at the same prosecutors' office, maybe the Court would have been ready to accept the fact that there was a pattern of misconduct.  However, that was not at issue in that case and the Court simply (and almost unanimously, Justice Thomas being the only dissenter) reversed the conviction because of the prosecutor's misconduct.

The new petition before the court involves two men who were exonerated after 27 years behind bars. After their convictions were vacated, the filed a complaint asserting claims under 42 U.S.C. § 1983 for constitutional violations arising from the prosecutors misconduct in not disclosing exculpatory evidence.  They argued (and presented evidence to support the argument) that the Orleans Parish District Attorney’s office had a policy and custom of withholding exculpatory evidence.  The lower court, however, ruled there was no triable issue of fact.  On appeal, the Court of Appeals for the Fifth Circuit affirmed.

I hope the Court grants the petition because it would give the Court the opportunity to define the level of evidence needed to support a claim for civil rights violations by prosecutors due to violation of the duty to disclose exculpatory evidence.  As the petitioners argue in their petition, this is an issue of national importance. 

In Connick v. Thompson the Court held that the single incident of prosecutorial misconduct in withholding exculpatory evidence was not sufficient to create local government liability.  The Court's conclusion was based on the finding that the plaintiff “did not prove a pattern of similar violations that would establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution.” The Court, however, did not indicate what would be sufficient to establish a "pattern of violations" sufficient for a finding of a “policy” or “custom” with regard to the failure to turn over exculpatory evidence. This is the question the Court will have a chance to answer if it grants review.

Also, as I have argued many many times in this blog, I think courts do not do enough to discourage misconduct on the part of prosecutors.  Recognizing a standard that could open the door to claims by exonerated defendants who suffer because of such misconduct would hopefully have a deterrent effect on what Judge Alex Kozinski recently called an “epidemic” of misconduct. 

UPDATE (March 30, 2015):  The Supreme Court denied cert.  Go here for the full story.

So you thought that the attorney-client relationship is a fiduciary relationship, right? Not in Delaware, apparently!

Raise your hand if you think the attorney client relationship is a fiduciary relationship.  Wait, not all hands are up?  How come?  Yesterday, a judge of the Delaware Superior Court for Sussex County issued an opinion in a civil case which concludes the notion of a fiduciary relationship is not what we have always been told.  The case is called Dickerson v. Murray and you can read the opinion here.

In this case, the plaintiffs hired a lawyer to represent them in a transaction.  Then, according to the plaintiffs, they suffered an injury as a result of the fact that the lawyer had a conflict of interest.  They sued for malpractice, but the complaint included a separate count for "conflict of interest." The judge found that the plaintiffs could support the cause of action for negligence, but dismissed the other cause of action.

The court dismissed the second count of the complaint because, according to the judge, “merely establishing an attorney-client relationship does not de facto give rise to fiduciary duties.”

That is news to me!

Pick any Professional Responsibility book and somewhere in it you will find an explanation of the basic principles of the attorney-client relationship.  And somewhere within that explanation you will find a statement that, in one way or another, defines that relationship as a fiduciary relationship.  Take for example Gillers, Regulation of the Legal Profession, page 2: "The lawyer's relationship to the client is fiduciary..." or Rotunda & Dzienkowski, Professional Responsibility, A Student's Guide, page 42:  "Lawyers are fiduciaries of their clients" and "[m]uch of the law of ethics is derived from, or related to, the law of fiduciaries." (emphasis in the original).

Yet, incredibly, the judge in this case concluded that “[a]n attorney must act in some capacity beyond the mere provision of legal services to owe actionable fiduciary duties” and the plaintiff “failed to allege factual contentions sufficient to prove the existence of a special trust, or relationship to substantiate a breach of fiduciary duty claim.”

The only factual allegation the plaintiff needs to allege to support the claim is that the defendant was the plaintiff’s lawyer, period.  The attorney-client relationship is, by definition, one based on special trust.  Again, citing Rotunda & Dzienkowski, "Clients have every right to expect trust from their lawyers, who are expected to act for the benefit of their principals, their clients."

The second count of the complaint was obviously argued poorly by calling it simply "conflict of interest" instead of arguing it as a separate claim for breach of fiduciary duty, but the court understood the allegation as such.  Thus, the problem is not that the judge did not understand the claim; the problem is that the judge does not understand the law.

As the court put it, "[i]n order to prevail on a breach of fiduciary duty action, unlike a negligence claim, Plaintiff must demonstrate the attorney-client relationship between the Defendants and Plaintiff was fiduciary in nature."  Yet, as any second year law student knows, a plaintiff does not have to "demonstrate" this.  It just is. 


Thanks to the Legal Profession blog for the link.

Court of Appeals for the Third Circuit declares unconstitutional NJ rule banning use of quotes from court opinions

Back in 2012, in response to a complaint filed by a judge, the New Jersey Supreme Court approved a new ruled that stated that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” The attorney whose ad had initiated the whole discussion on the issue challenged the rule in federal court and the Court of Appeals for the Third Circuit recently declared the rule unconstitutional.  I agree with the result.  Lawyer Ethics Alerts Blog has a good summary of the case here.