Paradise For Lawyers; For Clients, Not So Much

When the American Bar Association promulgated the Model Rules of Professional Conduct, the District of Columbia Bar responded  with a version that departed in a number of significant ways from the ABA Model.

Some of the D.C. variations (see generally D.C. Rule 1.7) are unhelpfully idiosyncratic. Some are more pernicious and have real and dangerous implications for ethical lawyering.

In other words, D.C. wants to make it harder than the ABA to enforce ethics norms.

First, in D.C. Rule 1.7, the District of Columbia departs from the ABA in requiring that full disclosure of material limitations be in writing. 

So, unlike anywhere else, if a D. C. lawyer claims that he or she made full oral disclosure of a conflict that explanation may suffice.

And if the lawyer and client disagree on the content of the oral disclosure, a lawyer-dominated panel decides where credibility lies and resolves all doubts in the lawyer’s favor.

The second client-unfriendly insertion is in D.C. Rule 1.6.

The ABA Rule is a rule of strict liability.

D.C. , in its infinite wisdom, adds a requirement that the breach of confidentiality must be a knowing one. 

The significance of the element of knowledge is on display in a recent report of the Board on Professional Responsibility.

The BPR reversed a hearing committee finding of a knowing violation and dismissed charges of a Rule 1.6 violation.

The client was a domestic violence victim who had specifically instructed counsel not to disclose her address for legitimate reasons of personal safety. Counsel clearly understood the importance of protecting that information.

When the client failed to pay legal bills, her address was provided to the counsel who filed the suit and used the address in the caption of the fee collection case.

A clear violation under the ABA Rules.

Not so in the lawyer paradise of the Capitol City.

We have considered the record before us with considerable care. [Editor’s note: that is always comforting when lawyers are letting other lawyers off] It is undisputed that Ms. Small’s home address was a “confidence or a secret” under Rule 1.6. FF 30. The Hearing Committee concluded that this information was a “confidence.” H.C. Rpt. at 25-26. We disagree, since this information was not provided for the purpose of obtaining legal advice and is not protected by the attorney-client privilege. Instead, we find that it is clearly a “secret,” since Respondent learned it in the course of representing Ms. Small and Ms. Small “requested be held inviolate” and “the disclosure of which . . . would be likely to be detrimental” to Ms. Small. Rule 1.6(b); see In re Gonzalez, 773 A.2d 1026, 1030 (D.C. 2001). We agree with the Hearing Committee’s conclusion, however, that the analysis of whether Respondent violated Rule 1.6 does not change because of our finding that Ms. Small’s address was a secret, not a confidence. See H.C. Rpt. at 25-26 n.4. 

“I forgot” is a complete defense

If a respondent truly forgot that a fact was a secret, her disclosure of the fact is not a knowing disclosure of a client secret. As with all testimony about a person’s state of mind, the credibility of the witness – considered with the other evidence presented – is critical to the determination of whether the respondent’s asserted memory loss is true or false.

And to hell with deferring to credibility findings below

we find that the Hearing Committee erred when it credited Respondent’s testimony in its factual findings and then speculated in its legal analysis that she could not have forgotten that the client’s address was a secret. Further, the Hearing Committee incorrectly determined that Respondent must have looked at the case file to select which one of the ten LexisNexis addresses to use, stating “[t]he record contains no evidence to the contrary.” See H.C. Rpt. at 29. By this statement, it is clear that the Hearing Committee failed to consider Samantha Jones’ December 20, 2012 email message, in which Ms. Jones forwarded a single address (that Ms. Jones had selected from the ten as the most recent) to Respondent (Ex. 48). This was the address that Respondent gave to Mr. Soschin. This overlooked contrary evidence indicates it was not Respondent who selected the address at issue. On this record, we do not believe Disciplinary Counsel has proven the necessary state of mind by clear and convincing evidence…

We recognize that Respondent’s disclosure could have had serious consequences, and we are in no way condoning the disclosure of a client secret. [Editor’s note: this is a huge relief]  However, a client’s address is not typically information that an attorney would automatically remember to keep secret. For that reason, we believe this is an unusual case, and considering the “entire mosaic” of circumstances, we find that Disciplinary Counsel did not prove that Respondent knowingly disclosed her client’s secret at the time she made the disclosure to Mr. Soschin or when the complaint was filed.

First, the ABA Rule gets it right. Confidentiality is important enough to enforce by a strict liability standard.

Second, the hearing committee found the violation. The BPR engaged in its own fact-finding in aid of its clear desire to remove any teeth to the duty of confidentiality. What the BPR calls “speculation” is actually what we lawyers call “drawing inferences.”

The case is In re Luxenberg and can be found at this link.

An exercise in shameful lawyer-forgiving sophistry. 

BPR member Jason Carter was a sole dissenter

The fact that Ms. Small’s address was a secret is not in dispute. Ms. Small moved out of her marital home because of domestic violence and fear and obtained a civil protection order against her husband. She moved to an address that she kept secret from her husband. Respondent, an experienced attorney on domestic abuse cases, advised her staff that the address was secret, and she did not include it on pleadings or papers filed with the court. Respondent marked the address in her files as “keep pri[vate].” She refused to provide it to Mr. Small’s counsel. Yet, Respondent somehow provided the address to her own counsel, Mr. Soschin, for his use in a collection action against Ms. Small. After all of her earlier precautions, Respondent nonetheless failed to notify Mr. Soschin that the address should not be disclosed, even after Respondent reviewed the complaint prepared by Mr. Soschin…

Respondent reviewed the pleadings prepared by Mr. Soschin, which contained the secret that Respondent had previously taken care to protect and which her files noted should be kept private. Respondent admits that she should have handled this in a different manner. Tr. 142-43. But, in handling this in the way that she did, Respondent did not exercise reasonable care to prevent the disclosure of the secret as required by Rule 1.6(f).

For the reasons stated, I find that Respondent violated Rule 1.6(f). In light of her contrition, her swift corrective actions, and the absence of any prejudice to the client, I recommend an informal admonition.

If the more client-centered ABA Rule was at play, none of this discussion would be necessary. Sad! (Mike Frisch)