The Ethics of a Lawyer's Mistake

• Author: William Freivogel
• Position: The author is a Chicago-based ethics consultant to lawyers.
• Pages: 9-10

Published in Litigation, Volume 43, Number 2, Winter 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information

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The “whrc.org” domai n is owned by

the Woods Hole Research Center, where

Holdren previously had worked as direc-

tor. On its website, CEI describes Woods

Hole as “an environmental pressu re group.”

CEI had learned in earlier l itigation

that Holdren continued to use his old

email address for government-related

work. But OSTP, in moving to dismiss

this lawsuit, a rgued that becaus e the

Woods Hole account is under the control

of a private organization , and not the

government, it was “beyond the reach of

FOIA.” FOIA, they clai med, governs only

federally cont rolled storage mecha nisms.

The federal district cour t agreed and dis-

missed the lawsuit .

In a firm rebuke of the gover nment’s

position, th e D.C. Circuit pa nel—com-

posed of conservative Senior Di strict

Judge David Sentelle, liberal Senior

District Judge Harr y Edwards, a nd

Obama appointee Judge Sri Srinivasa n—

unanimously found th at the White

House had improperly responded to

CEI’s FOIA request.

In the controlling decision for the

court, Judge Sentelle character ized the

White House’s argument as a n asser-

tion that agency heads ca n avoid FOIA

through “the si mple expedient of using a

private email account rather th an the offi-

cial government com munication system.”

The court flatly rejec ted that premise.

The court observed that whi le the

White House may not operate the Woods

Hole email servers, the account rema ins

under Holdren’s control. Noting that “an

agency always acts t hrough its employ-

ees and officia ls,” the court held that gov-

ernment records “do not lose their agency

character just becaus e the official who

possesses them ta kes them out the door.”

Otherwise , the court noted, an a gen-

cy head could avoid FOIA requests for

“hard-copy documents by leavi ng them

in a file at his daughter ’s house and then

claiming that t hey are under her control.”

The D.C. Circuit remanded t he deci-

sion to the district cour t with no specific

instr uctions but with an implicit sugges-

tion that the tria l judge order OSTP to

require Holdren to search his Woods

Hole account for responsive documents.

The court of appeals also made clea r it

was “not ordering the specif ic disclosure

of any document,” and that any a sser-

tions of exemptions or that the records

yielded in a search do not constitute

“agency records” as define d under FOIA

must await furt her litigation in the dis-

trict court.

Ironically, the appeals cour t re-

leased its ruli ng the same week as the

Department of Justice an nounced its de-

cision that it would not prosecute Clinton

for her use of “private” email servers i n

her home for government business. And

with the release of the cou rt’s decision,

judges in the Clinton FOIA cases— one of

whom specifically sa id he was waiting for

this guida nce from the D.C. Circuit—have

begun moving a long at a quicker pace.

The lesson should now be clear to all

government employees: When you ta ke

your work home, you bring your FOIA ob-

ligations along with you . And the prec-

edent may prove useful for those con-

cerned with t ransparency and President

Trump's administration.q

ETHICS

The Ethics of a

Lawyer’s Mistake

WILLIAM FREIVOGEL

The author is a Chicago-based ethics consultant

to lawyers.

A client comes to its law firm for help in

enforcing a commercial lease. Ben , a part

-

ner who retired two years a go, had draft-

ed the lease. So, Bett y, another real es-

tate lawyer, takes a look at the lease. She

becomes concerned about the parag raph

that has caused a dispute. That pa ra-

graph is not in the law fi rm’s standard

commercial lease forms . Betty ema ils

Ralph, the law fir m’s general counsel,

expressing her concerns. Ralph, i n turn,

forwards the emai l to Marsha, chair of

the executive committe e. Marsha imme-

diately forwards the ema il to Ivan, the

partner who deals w ith the fir m’s mal-

practice insura nce. I hope this conflicts

scenario isn’t fami liar to any readers. But

if it is, keep reading.

This particu lar scenario rai ses sev-

eral issues. Are t he law firm’s internal

communicat ions privileged? And wh om

should the law firm tell a bout the mis-

take and when? These issues are a ffected

subtly by ABA Model Rule 1.7(a)(2), which

defines a confl ict, in part, where the law-

yer’s own interests may interfere wit h the

lawyer’s duties to a client. All st ates have

a version of that rule.

First, what happens to t he commu-

nications among Bett y, Ralph, Marsha,

and Ivan if the client sues the law f irm

for malpractice and the client seek s to dis-

cover those communicat ions? Are they

privileged? Several lines of deci sions on

this issue have evolved. In ea rlier deci-

sions, courts held that inter nal law firm

communications enjoyed the same law-

yer-client privilege enjoyed in the corpo -

rate context. There then followed a series

of decisions in which courts held th at if

the commun ications occ urred du ring

the client relationship, then the law fi rm

had a conflict of intere st, which obviat-

ed the privilege. See, e. g., E-Pass Te chs.,

Inc. v. Moses & Singer, LLP, 2011 U.S. Dist.

LEXIS 96231 (N.D. Cal. Aug. 26, 2011). In

the most recent cases—including, for t he

first time, deci sions by the highest courts

of several jurisdiction s—courts have held

that the privileg e applies even if the cli-

ent relationship existed at the ti me of the

communicat ions.

On a related note, the communica-

tions at issue must also meet some for-

mality requi rements. A recent example

is St. Simons Waterfront, LLC v. Hunter,

Maclean, Exley & Dunn, P.C., 746 S.E.2d

98 (Ga. 2013). The opinion says that, to be