With Whom May I Talk and What May I Say? Current Issue in Legal Ethics
| Pages | 81 |
| Publication year | 2021 |
65 CBJ 81. With Whom May I Talk and What May I Say? Current Issue in Legal Ethics
For the first time since it began publishing its annual survey issues on developments in Connecticut law, the Journal is presenting an article on the increasingly fertile field of legal ethics. That poses a problem, easily surmounted but necessary to address at the outset. While other articles of the Annual Survey deal with decisions of Connecticut courts or agencies deciding Connecticut law, or enactments of Connecticut's General Assembly, the field of legal ethics involves different sources of law; and the most important developments frequently involve different and non-Connecticut decision-makers. Accordingly, a brief review at the outset is in order to orient the reader in this new area of interest.
Since October 1, 1986, Connecticut lawyers have operated under a new ethics regime: the Rules of Professional Conduct, adopted by the Judges of the Superior Court. These Rules were based upon draft rules devised by the Connecticut Bar Association's Committee on Professional Ethics and ratified by the Association's House of Delegates.
The Rules as adopted originated with the American Bar Association's Model Rules of Professional Conduct, the product of the "Kutak Commission," which the ABA House of Delegates adopted on August 2, 1983, and sent to the states for their consideration. The verb "originated" in the preceding sentence has been carefully chose; for the Connecticut Rules are not in haec verba the ABA Model Rules. While for the most party they are, they differ in significant respects in a number of crucial places; and those are differences in substance as well as in form and are outcome-determinative.
The devoted reader of the Journal will recall that the ABA's Kutak Commission went through different drafts of its
recommendations before the final product was approved in 1983. (fn1) When Connecticut considered the ABA Model Rules, it felt that in various respects earlier drafts were preferable to the final version, and opted for the earlier ones.
So, for instance, with respect to Rule 1.6, dealing with client confidences, Connecticut's Rule 1.6(b) requires a lawyer to reveal client information ("information relating to representation of a client") "to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm". The ABA counterpart, Model Rule 1.6(b)(1), merely permits such a disclosure. And where Connecticut's Rule 1.6(c)(1) and (2) permit a lawyer to reveal such information to prevent the client from committing "a criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another" and to "rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used"; the ABA Model Rules give no such permission.
So, too, Connecticut's Rule 7.3 dealing with contact with prospective clients is significantly different from the ABA Model Rule 7.3; and Connecticut has in Rules 7.4A-C a scheme of certifying specialists that is nowhere replicated in the Model Rules. Other examples could be given as well, but the point has been made: in important areas, the Connecticut Rules differ from their ostensible source, the ABA Model Rules.
The ABA Model Rules were offered to the states as a replacement for the Model Code of Professional Responsibility, which the ABA had devised a scant dozen years earlier to replace the 1908 Canons of Professional Ethics. (Connecticut operated under its version of the Code from 1972-1986). The hope had been that all jurisdictions would embrace the Model Rules and adopt them as drafted, thus establishing a uniform ethical code throughout a nation where interstate practice and the multi-state effects of practice in a given state were the ever-increasing reality. There was, and remains, even a movement to institute national bar exams to replace individual states' exams in recognition of the fact that, especially with the inevitable impact on heretofore local
transactions of federal common, statutory and regulatory law, ours was becoming a national bar rather than a congeries of state bars.
For better or for worse, the states have proven inhospitable to the siren song of uniformity. Fourteen states, (significantly including New York and Massachusetts) have chosen to retain their respective versions of the Code of Professional Responsibility, and to tinker with it in various ways peculiar to each state. Those states, now a majority, that have adopted a version of the Model Rules have, like Connecticut, invariably made changes in the model. This fact means that great care must be taken, both by lawyers seeking guidance as to the ethical propriety of contemplated conduct and by authorities sitting in judgment upon past conduct, when reading decisions or advisory opinions on ethical issues from other states. While the facts may be temptingly similar, the rules against which they must be judged may be dispositively different from Connecticut's.
Needless to say, the differences in ethical standards from state to state become important to a Connecticut lawyer when engaged in a court or agency in, or transaction involving, another state. In days of yore this might well have been of concern primarily to lawyers practicing near the New York, Massachusetts and Rhode Island borders. In these days when the affairs of all manner and means of clients may involve interstate transactions or have foreseeable out-of-state effects, what constitutes "doing business" in another state and the arcane principles of conflicts of law and jurisdiction over lawyers' practice become fertile fields for the aggrieved to explore (as Rule 8.5 and its comment recognize). Every lawyer is therefore increasingly at risk.
As if this welter of ethical diversity among states were not cause enough for confusion, there is yet another source of potential ethical diversity within Connecticut. By Local Civil Rule 3, the judges of the United States District Court for the District of Connecticut have recognized as authority the Connecticut Rules of Professional Conduct, but with limitations. They recognize them only as they existed on October 1,1986; and any subsequent amendments are not binding in federal court unless expressly adopted by the federal judges. Connecticut Rules 3.6 and 3.7(b) were not adopted by the federal judges, who opted instead for standards set forth in Local Civil Rule 3.3 and Local Criminal Rule
13 to govern, respectively, lawyers as witnesses and public statements by counsel. And the judges will recognize only their own interpretation of the Rules, or those of the Court of Appeals for the Second Circuit or the United States Supreme Court, as binding on them.
Thus it is that a Connecticut lawyer may be considered a paragon of ethical propriety in Superior Court for the same conduct that subjects him to discipline in federal court two blocks away. And the interpretation of the Rule in question by the Supreme Court of Connecticut is not binding on a federal trial court judge a half mile down the street. This is the apotheosis of the principle of federalism.
While the rules of ethics duly adopted in whatever form by the appropriate authority are the traditional and primary source of law in the area of legal ethics, there is emerging yet another source that bids fair to have a significant impact in this area. Since the mid-1980's the American Law Institute has been embarked upon a massive project which will culminate in the adoption of THE RESTATEMENT of Law (Third), THE Law GOVERNING Lawyers. While not purporting to be a source of ethical rules, the RESTATE MENT - which seeks, as its name implies, to restate all law affecting the practice of law - inevitably will have a profound effect on the interpretation of rules of ethics. The increasing interface of ethics law and malpractice law; the frequency with which claimed ethical violations are raised in litigation to affect both the representation in that litigation and the course that litigation will take; the involvement of lawyers, as lawyers and as principals, in complex transactions that ultimately give rise to suits alleging fraud or other misfeasance on the part of the lawyer or the client (or both); increased attention to the meaning of and exceptions to the lawyer-client evidentiary privilege and its effect upon the broader ethical analogue of Rule 1.6 - all of these factors and more are leading to a blending of law and ethics into something called "the law governing lawyers."
What will inevitably add yet another element of confusion to this situation will be the inevitable pull and haul of competing sources of law, and competing interpreters of each body of law, during the undoubtedly extended period of time it will take before the law becomes settled and commonly accepted (if, indeed, that
day ever comes). As just one example, there is the issue of screening. Screening is a commonly used method by which a law firm can continue to represent a client even though a lawyer in that firm once represented the client's adversary. A number of courts have recognized that proper screening can avoid the consequences of imputed disqualification of the entire firm mandated by Rule 1.10. (fn2)
And yet, the Rules permit screening to overcome imputed disqualification of the law firm in only two special circumstances: where the tainted lawyer gained his confidential information while in government service, Rule 1.11(b), or where the lawyer's...
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