Tag Archives: confidentiality

Clearing Up A Matter Of Widespread Confusion: How Lawyers Acquire Accidental Clients

When I pointed out this morning that by Sean Hannity’s own description of his relationship to Trump fixer Michael Cohen, he was Cohen’s client, several commenters protested, including a lawyer or two. This suggests that many more were similarly confused, and it is no surprise. A disturbing number of lawyers fall into the trap of acquiring “accidental clients.” There are many ways this can happen, but the most insidious of them is this, which people like me constantly and repeatedly warn lawyers about, often to no avail.

A relative or a friend approaches you, a lawyer, at a party. He or she asks you a question about some legal issue, and you give an off-the-cuff answer. Because you are a lawyer, and because you gave advice, however vague, that individual accepts it as a free legal opinion, and also assumes that the conversation was confidential. Usually nothing happens. Sometimes, however, the friend or relation acts based on your advice. If the results turn out badly, he or she may sue for malpractice, and sometimes will win damages. In an infamous case that is still good law, an individual went to a medical malpractice specialist to engage him to sue a hospital. After describing the facts, the potential client was told, “You have no case,” and informed that the lawyer would not accept the representation. But the individual relied on that statement, and didn’t bring a suit until the statute of limitations had run. Then he learned, from another lawyer, that he did have a valid case, though one he could no longer pursue. The first lawyer was sued for malpractice, and the court found that indeed “You have no case” constituted legal advice, and the advice was relied upon, meaning that an attorney-client relationship had been formed. Continue reading

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Is James Comey An “Untruthful Slimeball?”

That was the measured, dignified description of the fired FBI chief in President Trump’s latest tweet on the matter of Comey’s tell-all book, “A Higher Loyalty: Truth, Lies and Leadership. The Ethics Alarms verdict on the allegation doesn’t require reading the book, which I wouldn’t do if Jigsaw had me trapped in a room and gave me the choice of writing a book report on it or chewing off my own foot. (Okay, maybe I’d read it then, but I’d still have to think about it.)

We know Comey is untruthful already—he lied to Congress—and the fact that his book exists proves that he’s a slimeball.

I know I repeat myself a lot, for ethics issues are on a merry-go-round that never stops. However, I think I’ve written more than enough about the unethical practice of government officials who have left an administration cashing in with tell-all books before the administration has ended. The practice  is a crass  betrayal, venal, disloyal, damaging to the nation and its institutions, and I don’t care who the slimeball author is, or which President he slimes. They are all slimeballs, by definition. One of the first was President Reagan’s arrogant Budget Director, Stockman, early in that administration. Prior to Stockman, the predominant attitude and ethics was the one embodied by General George Marshall (no relation, alas), World War One and Two military leader, former Secretary of State, and architect of the Marshall plan, when he was offered a million dollars to write his memoirs in the 1950s, after he had retired from public life.  Marshall turned down the cash, explaining that he couldn’t write a truthful memoir without undermining people still at working for the United States in the government and military.

How quaint! What a sap!

Or so James Comey probably thinks. Continue reading

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Morning Ethics Warm-Up, 3/23/18: The All-Disposable Edition…Legal Ethics, Budgets, And Grocery Bags

Good Morning…

1. More Professionals Behaving Badly: The news media has widely reported that Ted Olson of the law firm Gibson Dunn refused Donald Trump’s request for his legal services. Olson, who is best know for arguing  the Bush side of Bush v. Gore that ended the 2000 Florida recount,  had declined to comment on this to the media but a partner in the firm Gibson Dunn’s “global co-chair” issued a tweet that Olson was not going to be representing the President. This is a straight-up violation of an attorney’s ethical duty  of confidentiality to a prospective client.

In other Trump lawyer news, the media is also widely reporting that John Dowd resigned from the President’s legal team over the President’s refusal to accept Dowd’s advice that he not agree to give testimony to the Special Prosecutor. Telling the news media that—telling anyone that—would also be a breach of confidentiality on Dowd’s part.

2. Per se legislative incompetence. Once again the Senate and the House passed a huge bill with massive implications and consequences without reading it. The legislation funds the federal government for the remainder of the 2018 budget year, through Sept. 30, directing $700 billion toward the military and $591 billion to domestic agencies. The military spending is a $66 billion increase over the 2017 level, and the non-defense spending is $52 billion more than last year. It also further explodes the deficit and the debt that bring the United States one step closer to a ruinous financial reckoning. The Democrats have been happily on this path for the entire 8 years of the Obama administration, but the Republicans rode to power in part because the public recognizes how insane this is. The GOP couldn’t even muster a cut in the arts spending that it has been promising since the Reagan administration, or to finally cut ties with public television, though Big Bird fled the nest years ago. Continue reading

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Ethics Observations On The Steve Bannon-President Trump Blow-Up

Excerpts from his new book revealed that journalist Michael Wolff extracted some highly inflammatory quotes from ex-White House aide Steve Bannon, who criticized his former boss, members of his family, and White House colleagues. In an unusually well-written, if unrestrained, response, the President used a rhetorical blowtorch on his former ally, writing,

“Steve Bannon has nothing to do with me or my Presidency. When he was fired, he not only lost his job, he lost his mind. Steve pretends to be at war with the media, which he calls the opposition party, yet he spent his time at the White House leaking false information to the media to make himself seem far more important than he was. It is the only thing he does well. Steve was rarely in a one-on-one meeting with me and only pretends to have had influence to fool a few people with no access and no clue, whom he helped write phony books.”

Observations:

  • Once again, we have the unforgivable spectacle of a once highly placed member of an administration team betraying trust to vent, to get publicity, to settle scores, or to cash in. It’s not whistle-blowing, and its not in the public interest. It hurts the current President and future Presidents, by making a breach of loyalty and confidentiality that was once unimaginable routine. David Stockman, Reagan’s bitter budget director, started this trend with a tell-all book after his star fell to earth, and now every Presidential appointee is a potential Judas. If any of these creeps were ethical, professionals or patriots, they would wait until the administration they had worked for were out of power and in the rear-view mirror, and ideally, way, way in the rear view mirror, like a decade or more. Better yet, they would take the secrets they were entrusted with to the grave.

But what’s the fun in that? More to the point, where’s the money in it? Ten years from now, Steve Bannon will be the answer to a trivia question. Continue reading

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Dear Lisa Bloom, You Unethical Hack: Stop Making Me Defend Kathy Griffin!

I had to get this post up before the Morning Ethics Warm-Up, because it warmed ME up by almost exploding my head.

Lisa Bloom, the daughter of feminist muck-raking celebrity attorney Gloria Allred, has already shown the she has either no regard for legal ethics, or is spectacularly ignorant of them. She has publicly breached the duty of loyalty, attacking her former client, Harvey Weinstein; she took on Weinstein in the teeth of a blatant conflict of interest that she also publicized, as if it was something to be proud of. Yesterday, she showed that she is unfamiliar with, or perhaps just doesn’t give a damn about, the core legal ethics principle of confidentiality, perhaps the most important legal ethics duty of all.

Her latest ex-client to be the victim of Bloom’s unprofessional conduct and disloyalty is Kathy Griffin, she of the severed head. Griffin announced that she had fired Bloom, and wasn’t nice about it—but then when is Griffin ever nice?—saying, “Yes, I got Bloomed. Yes, I didn’t have a good experience with her. Yes, I feel that she and her husband exacerbated my personal situation.” Disaffected clients can say anything they choose about their lawyers. They can do it on Yelp, on the lawyer consumer site Avvo,  to the Hollywood Reporter or hire a skywriter. What a client says, mean or not, untrue or not, still  does not alter a lawyer’s continuing ethical obligations one whit. A lawyer cannot get into a public fight with a former client over what did or did not occur during the representation. Every lawyer knows this, or is supposed to.

Yet Bloom—I would say “incredibly” had we not seen other examples of her professional ethics cluelessness—released this statement on Twitter:

[My head told me in a statement that it would have exploded over this but determined that doing so over Kathy Griffin and Lisa  Bloom was demeaning to head-explosions. I concur.]

The fact that Bloom had prepared Griffin’s remarks for the press conference, the fact that they worked on them together, the fact that Griffin discarded them, the fact the performer “ad-libbed” and “extemporized” are all client confidences. For all we knew, Griffin’s claim during the press conference that she was ignoring her notes was part of a pre-planned strategy.  I assumed it was; Griffin is an actress. “It’s best if you show that you are talking from the heart, Kathy,” is advice I would expect Griffin’s lawyer to give. A lawyer cannot tell the public that a client ignored her advice. Only the lawyer and the client know that. Revealing it is to disclose information the lawyer learned during the course of the representation that will harm or embarrass the client, a serious ethics violation and betrayal of trust Continue reading

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That Settles It, If It Wasn’t Obvious Already: Lisa Bloom Is An Unethical Hack (But I Could Be Wrong…)

Now, don’t sue me, Lisa! Remember what it says in the “About” section (above), this is all just my opinion. When I say you are a stunningly unethical lawyer, that’s just my analysis; it’s true I know something about legal ethics, teaching and consulting on it full time, but I can’t assert my opinion as fact. I can’t read your mind or slog through your soul. I don’t know what a bar disciplinary committee would decide, though I know this is a famously gray area in legal ethics, so unethical conduct is unlikely to be punished.  And when I say you’re a hack, remember that “hack” isn’t a description subject to objective proof, any more than, say, “asshole.” Perhaps your definition of “hack’ is different from mine. In fact, I’m sure it is.

That said, your conduct is a professional disgrace. I think. Who knows? I may be wrong.

In an interview with BuzzFeed News published this weekend, Bloom, speaking of her recently terminated representation of Harvey Weinstein, said

“I can see that my just being associated with this was a mistake. All I can say is, from my perspective, I thought, ‘Here is my chance to get to the root of the problem from the inside. I am usually on the outside throwing stones. Here is my chance to be in the inside and to get a guy to handle this thing in a different way.’ I thought that would be a positive thing, but clearly it did not go over at all.”

Bloom added that she will no longer represent men accused of sexual misconduct, “even those who convincingly tell me they are innocent….I will just make the best choices I can out of every situation. I have clearly not been successful. I think anybody who does big bold things fails. And I definitely failed on this one.”

What Bloom has failed at is called “being a trustworthy and competent lawyer.”

The next day, during an appearance on Good Morning America, Bloom even more explicitly threw her former client under the metaphorical bus:

“It’s gross, yeah,” Bloom told GMA. “I’m working with a guy who has behaved badly over the years, who is genuinely remorseful, who says, you know, ‘I have caused a lot of pain.’”

Did Bloom actually graduate from law school, or did she just apprentice in her mother’s office (she is Gloria Allred’s daughter) and somehow get an honorary license? Did she never learn about the a lawyer’s duties of loyalty and confidentiality? She obviously didn’t know about conflicts of interest, since she represented Weinstein while agreeing to let him turn her book into a TV miniseries.

Ethics Alarms has previously criticized lawyers who have publicly undermined their former clients. The most recent example  was last year, when a former Trump lawyer used his experiences while representing the future Presidential candidate decades earlier to write a scathing mid-campaign attack on his former client in the Huffington Post. I wrote,

There is strong disagreement in the profession about whether the answer to “Is this unethical?” should be an outright yes. The status of loyalty among the legal ethics values hierarchy is as hotly contested now as it ever has been. If a lawyer wants to attack a former client in a matter unrelated to the representation and no confidences are revealed in the process, is that a legal ethics breach? If it is, it would be a very tough one to prosecute. I think it’s a general ethics breach, as in wrong and unprofessional. It is disloyal, and clients should be able to trust their lawyers not to come back years later, after a client let the lawyer see all of his or her warts, and say, “This guy’s an asshole.” It undermines the strength of the public’s trust in the profession.

Continue reading

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Morning Ethics Warm-Up: 8/26/17

Good Morning!

(My Dad was from Kentucky. He couldn’t stand Tom T. Hall…or Mitch McConnell)

1. I have been working on a legal ethics seminar for lawyers who represent seniors (I was told that the politically correct term among the groups was “older clients.” Older than what?) It is one of those areas of the law in which the usual ethics rules don’t work very well, or sometimes not at all. This anomaly requires a lawyer practicing in the field to be ready to embrace the Ethics Incompleteness Principle: to violate the letter of the professional ethics rules in the best interests of the client. For example, what does a lawyer do whose aging client lives with a son or daughter, and the lawyers sees signs of elder abuse? When the lawyer asks the client, he makes various excuses for his caretakers, and finally says that while he has been abused, it’s not serious and will only get worse if the lawyer says or does anything in response to it. Now what? The fact of the abuse, under the usual construction of the rules, is a confidence controlled by the client.

The emerging consensus is that the lawyer can ethically use the exception to confidentiality that allows an attorney to reveal a client confidence to prevent death or serious bodily injury to a “third party,” the client becoming “the third party” for his own protection.

2. A federal lawsuit was filed last week alleging that a Tennessee judge and sheriff violated inmates’ constitutional rights by instituting a program offering reduced jail time for criminals who agree to undergo vasectomies or get contraceptive implants. The suit claims the White County program amounted to “eugenics with a twist.” I don’t think it’s much of a twist; I’d say it’s eugenics, straight up. I’d assume CBS will love it: after all, eliminating criminal types is even better than eradicating Down Syndrome babies. Isn’t it?

3. Lots of people sent me this horrible story, about the cheerleader camp at a Denver area high school where young girls were being forced to do splits (it hurts me even thinking about doing splits) , with the camp’s instructor shown in a leaked video pushing down on the shoulders of a 13-year-old as she screamed for him to stop.

Boy, there is a lot of child abuse out there.

The Denver Board of Education said in a statement: “As the elected representatives for Denver Public Schools — and as the moms, dads and family members of D.P.S. students ourselves — we are deeply disturbed by the videos of cheer practices at East High School that came to our attention yesterday.”

Gee, it’s good to know that you are all disturbed that children are being tortured at schools that you are supposed to be overseeing.. This must mean you are competently doing your jobs. No, actually it doesn’t

“As the investigation continues,’’ it states, “our focus must be entirely on our students, families and educators.”

The school superintendent also said: “We have sent notification to our athletic directors emphasizing that D.P.S. does not allow the use of ‘forced splits’ or any other activity that puts a student’s physical or mental health at risk, or in which a student is forced to perform an exercise beyond the point at which they express their desire to stop.”

An Ethics Alarms note to that school system: Any athletic directors who have to be reminded that abusing children in their care, and continuing to make them perform painful acts after they have said that they don’t want to, is not something they should be doing shouldn’t be employed in the first place. Continue reading

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