The Negative Pregnant Argument Fails
One interesting aspect of the District of Columbia Hearing Committee report (noted here) in In re Larry Klayman is the handling of the expert testimony offered in his defense of the claim that he violated the former client rule
The expert is Professor Ronald Rotunda; the Hearing Committee opined
Respondent maintains that no Rule 1.9 violation occurs when a lawyer sues a former client to “enforce” a contract on behalf of a new client who was on the other side of the negotiating table when the lawyer negotiated the contract. See Resp. Br. 12-13, 20, 21, 23, 24. Respondent and his expert, Professor Rotunda, stake this interpretation on Comment 1 to Rule 1.9, which uses as an example “seek[ing] to rescind on behalf of a new client a contract drafted on behalf of the former client.”
According to Rotunda, this example contains a “negative pregnant”—it does not say “rescind or support”—and the failure to use that language means that a lawyer who drafts a contract for one client can later sue that same client on behalf of the other party, so long as he never sued on behalf of the first client, and the lawsuit seeks to “enforce” rather than rescind the contract. Tr. 513, 528. Rotunda takes this further, arguing that matters are the same for Rule 1.9 only if the lawyer changes sides in a specific lawsuit or otherwise attacks his work product. E.g., Tr. 504-506, 509, 512, 513. We reject this reasoning; such a rule would smother Rule 1.9 in contract cases because every litigant can claim to be the one “enforcing” the contract.
Rotunda does not offer any support for this theory. So far as we can tell it is not discussed or mentioned in any of his academic writing and has never been adopted in any case. The only authority that is superficially close, oddly enough, is in the commentary to Florida’s Rule 4-1.9, which since 2006 has stated that matters are substantially related “if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client.” Fla. R. 4- 1.9, cmt. (emphasis added). Although the comment mentions “attacking work” for a former client, it cannot plausibly be read to support Respondent’s and Rotunda’s theory because a contract case will always involve the “same transaction” as the contract itself. A lawyer simply cannot negotiate a contract for one side and then later sue his client on behalf of the other side.
The “attacking work” comment addresses situations where the prior representation did not involve the same transaction or legal dispute. For example, Florida courts have found that defending a product-liability suit concerning a particular model of lawn mower was substantially related to a later product-liability suit concerning the same model; whereas defending a hospital in a negligence case was not substantially related to a later negligence suit against the same hospital. Health Care & Ret. Corp. of Am. v. Bradley, 961 So. 2d 1071, 1073-1074 (Fla. App. 2007) (discussing Sears, Roebuck & Co. v. Stansbury, 374 So. 2d 1051 (Fla. App. 1979)). In the Stansbury case, the lawyer sought to represent a plaintiff bringing a product-liability claim on a lawnmower where the lawyer had defended a product-liability case for the same company, based on the same lawnmower. Id. at 1073. Because the plaintiff was new, the matter did not arise from the same transaction or legal dispute, but lawyer would nevertheless have been attacking his prior work for the company. Id. The negligence case, on the other hand, did not involve attacking the lawyer’s work for the hospital because each negligence claim “turns on its own facts.” Id. at 1073-1074. Thus, Florida’s commentary about attacking one’s work is no help to Respondent because the three matters here were the same as matters he handled for Judicial Watch.
In D.C. , the Board on Professional Responsibility considers the sanction de novo.
The Court of Appeals in turn defers to the Board on sanction per Rule XI, section 9(h)
the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.
(Mike Frisch)