Florida lawyer Dan Gelber quit his law firm, Akerman Senterfitt, after BP hired the firm to represent it in the oil claims process. This will undoubtedly help him in his campaign for Florida Attorney General (Gelber is currently a state senator). His decision to resign is a very prudent and ethical one, but not for the reason most Floridians will think.

Voters almost certainly will believe that Gelber’s resignation demonstrated his revulsion at his firm’s new client, currently responsible for poisoning the Gulf Coast.  BP hired Akerman Senterfitt to handle civil litigation weeks ago, and Gelber’s opponent,  Dave Aronberg, immediately called for Gelber to quit the race, saying, “Working for the law firm that is defending British Petroleum for damage done to Florida beaches is disqualifying. You don’t have to be a lawyer to know that you can’t profit from the polluter and then represent those who have been injured by that same polluter.” Aronberg, who is a lawyer, knows better, or at least I hope he does. There is nothing unethical, unseemly or wrong for an attorney whose firm represented a client to later represent plaintiffs against the same client, as long as he was uninvolved in the previous representation.* Aronberg’s wording suggests, and is intended to suggest, hypocrisy, which is alien to how the legal profession views its role. ( ABA Model Rule 1.2 (b): “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”) Everyone deserves the protection of the law, and a lawyer isn’t endorsing or approving what a client has done or believes simply by representing that client.  Criminal lawyers are not pro-crime, and the firms that represent corporate polluters are not pro-pollution.  The lawyer who represents the unpopular client is helping the legal system be fair. Aronberg knows that criminal defense lawyers often go to work for the prosecution, and they are not “disqualified” because they went from defending criminals to convicting them. A prosecutor could conceivably try a former criminal client, if it was for a completely unrelated charge. Lawyers are trained to represent either side of a controversy competently, and the profession encourages them to represent anyone in legal need.

Aronberg knows all this too, but chose to suggest that there was something unethical about Gelber representing a perceived “villain.” For a lawyer to promote this misconception to the public is not only cynical, it is also dumb. Aronberg is sure to represent some less than admirable clients eventually, if he hasn’t already, which is very unlikely. How will he explain his own”profit” from clients who are tax cheats, deceptive advertisers, frauds, crooks, arsonists, wife-beaters,tobacco companies and others?

Nevertheless, Aronberg was right about one thing: Gelber did have to resign from the firm, but not because B.P. made him retch. If he became Florida Attorney General, his firm’s representation of BP could have created a problem for the state legal staff. He would be leading legal action against a former client that his law firm had represented regarding the exact same matter—the Gulf oil spill—while he was working there. That’s the kind of conflict of interest the ethics rules specifically forbid, because the secrets and confidences a client may have shared with its trusted attorneys might be used against them if those attorneys are permitted to switch sides. This is one of the most basic ethical prohibitions in the law: ABA Model Rule 1.9...

…(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

Gelber had made it clear that he was not going to be involved at all in the BP representation, screened off from all related activities, and would therefore not be risking violation of 1.9 because he would acquire no confidences. “I know nothing about the case, nor will I ever,” he said. Nevertheless, BP would be certain to challenge his assertion if he became Attorney General, and sometimes courts decide that a firm “screen” had too many holes. Gelber was right to avoid even the smallest risk that he might be ruled unable to direct state action against BP because of his membership in the firm. The responsible remedy was to remove that risk by resigning, which he did.

Unfortunately, most non-lawyers in Florida will misinterpret his action as an anti-BP protest. That may help him at the polls, but it also reinforces public misconceptions about lawyers’ role in society and their obligation to see that all parties, not just “the good guys,” get competent legal representation. Dan Gelber did the right thing for the right reason, but his primary benefit from it will be for the wrong reason. Ironically, he has no reason to set the record straight: voters are drawn candidates who make sacrifices on principle, but they are not usually excited by lawyers who take prudent action to prevent a possible strict construction of Model Rule 1.9.

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* Comment [5] to ABA Model Rule 1.9: “…if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.”