Saturday, November 12, 2011

Handing up the client in self-defense

Way too often, a lawyer gives the client the best advice he can, perhaps the advice that every other skilled lawyer would impart under the circumstances, only to be met with the client's foolish rejection of it. Nonetheless, such a result is altogether fair - the client, not the lawyer, will ultimately pay the price for his decision, and so he should indeed be the one to decide. Lawyers can only impart advice, not insist that it be taken.

Still, when the client rejects the advice and the outcome is bad, the lawyer must keep silent, even if the lawyer may look bad when all conclude that the client acted on the lawyer's advice. It would be indefensibly wrong and unethical to publicly or even privately say, for example, "I told my client to plead guilty [or settle the case civilly] and cut his losses, but he foolishly overruled me, and the result is this debacle" - thus revealing a privileged conversation. If lawyers can't keep their mouths shut in trying times, they don't deserve to be lawyers (as we have often said in this column)!

But what about when the client, and basically also the lawyer as his representative, are under court order, perhaps to produce discovery, and the client who actually maintains the records proposes to resist the court order by simply not producing, or allowing counsel to produce the material required by the formal document demand? What is the lawyer to do then?

Yes, of course, he should - indeed, he must - remonstrate with the client, maybe in writing to avoid any mistake about it, boldly telling the client that having lost the battle to quash or gain a protective order, "We are simply obliged to produce these records, and anything short of full production will be viewed by the court as contemptuous. There is no further lawful road for us but to produce, and produce now!" Still, however, the attorney fails: The client won't respond to the lawyer's calls or emails or, more directly, simply won't give him the records. And maybe the client even instructs the lawyer to disobey the court order.

The lawyer who, above all, wants to protect himself may just withdraw or, if necessary, seek court leave to do so, citing knee-jerk, time-honored "irreconcilable differences" - obviously without identifying for the court those "differences."

Perhaps, however, he hasn't been paid, and the withdrawal, whether unilateral or even consented to by the client, will result in a large, never-to-be-paid receivable. Or, maybe the case is frankly too big to forefeit the representation - the "big case" syndrome. Accordingly, the attorney seeks to tough it out. So, when his adversary initiates a contempt or sanctions motion against the client - but, more poignantly, against the lawyer himself - for failing to produce discovery, the attorney might find it necessary to defend himself in court, by essentially pointing a finger at the client to justify the non-compliance. To do so - that is, to basically assert a quasi-Nuremberg defense that "I was following [my client's] orders" - would likely not constitute a legal defense. More important here, though, it might also constitute an ethics violation.

This is basically what occurred in Ceglia v. Zuckerberg and Facebook, a class action lawsuit in the Western District of New York. There, plaintiff Paul Ceglia's lawyers actually accused their client, in affidavits that opposed sanctions against them, of "instructing" them to defy the discovery order of the district court which had directed Ceglia to consent to a webmail search. Specifically, Ceglia's lawyers swore under oath that, when the district judge denied a stay motion and they told Ceglia that he was still obliged to produce the relevant email account information, "Mr. Ceglia continued to refuse to comply with the August 18 Order." Pretty raw indeed, even for a New York lawyer!

Zuckerberg's attorneys met this "defense" by Ceglia's attorneys, citing case law that a lawyer can't immunize his own responsibility for a discovery violation by hiding behind his client's actions, arguing that they were just following orders. Specifically, "[W]hen an attorney advises a client in discovery matters, he assumes a responsibility for the professional disposition of that portion of a lawsuit and may be held accountable for positions taken or responses filed during that process." (Devaney v. Continental American Ins. Co., 989 F. 2d 1154, 1162 11th Cir. 1993). Further, "Even if [the clients] requested that their attorneys not fully respond to discovery, attorneys have an obligation to the Court and other attorneys," and may be sanctioned for unjustifiable discovery positions (Thompson v. Fajerstein, 2010 WL 4628515, at *5-6 N.D. Ill. Nov. 8, 2010).

More pertinent, here, though, Zuckerberg's attorneys raised ethical bars in support of their sanctions motion, claiming Ceglia's lawyers transgressed Rule 1.6 of the New York Rules of Professional Conduct: "A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client for the advantage of the lawyer or a third person." Further, claiming that Rule 1.8 was also violated, Zuckerberg argued that Ceglia's attorneys used "information relating to the representation to the disadvantage of the client [in violation of] the lawyer's duty of loyalty."

Clearly, Ceglia's attorneys were in a tight spot, confronted with a client who, as they basically articulated it, is bent on defying a court order. And yes, it may well be that Zuckerberg's lawyers have no standing to complain that Ceglia's lawyers acted unethically in trying to shift blame to him or off themselves. After all, Facebook was certainly not harmed by the ethical lapses allegedly committed by Ceglia's lawyers. Actually, they may have been aided by Ceglia's lawyers directly confronting him.

Still, one wonders if attorneys may properly conduct themselves as did Ceglia's lawyers when facing their predicament. Should they have tried to go ex parte with the judge with the goal of self-protection, without incriminating the client? Hardly. How can you tell the judge who holds your client's fate in his hands that your client intended to defy him? Moreover, the alternative of simply taking one's medicine for sanctionable conduct and taking the blame for the client's own conduct would also have been unacceptable. Perhaps a better tack could have been to request an ex parte appearance before a magistrate or a different district judge to explain the problem, thereby "covering themselves" without having to air the problem before the judge with ultimate responsibility for the case.

While the latter course may have been preferable, it would clearly have been better for the issue not to have gotten that far. Put simply, the lawyers could and probably should have withdrawn when they first saw the handwriting on the wall. Yes, it is uncommonly easy to armchair quarterback and pontificate that no fee or representation is worth the bad publicity or the sanction that may now fall on Ceglia's attorneys. Lawyers are officers of the court. Clients must be allowed to make the ultimate decision, but only with full knowledge that if, in the attorneys' view, their proposed strategic decisions may violate court orders, the lawyers may find themselves to be answerable to a "higher authority."

As a postscript, an attorney should indeed be a client's special-purpose friend. Nonetheless, given that these lawyers chose to directly and under oath accuse their client of wrongdoing (when their choices were sharply limited in the means available to avoid sanctions or even worse), they surely won't be "friending" their client real soon on Facebook or, for that matter, anywhere else. In fact, on Oct. 17, Ceglia's third team of lawyers withdrew from the case, and that may say something too.

By Joel Cohen


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