By Professor Nancy Rapoport
Thanks, readers,1 for sending out possible ideas for the column. And now, it’s mailbag time:
Question #1: Shifty McFraud goes to Larry Lawyer and tells him about [insert one: a preference, a fraudulent conveyance, hiding assets, or nefarious deeds]. Shifty doesn’t like Larry’s response, which (as all of you would do) is to talk about filing an honest bankruptcy case. So Shifty goes to Barry Barrister, having now been cleverly warned away from telling Barry anything about those preferences/fraudulent conveyances/hidden assets/nefarious deeds. Barry files a bankruptcy petition for Shifty, and lo and behold, the [undisclosed thing of whatever kind] is not disclosed in the SOFA.2
What are Larry’s ethical duties?
Answer: Ay yi yi. We hear of these things happening all the time, and it’s frustrating to know that someone is using you to test the waters for what he or she can get away with doing. But there are a couple of things for you to keep in mind. First, your state law duties: either the person who came in is, at least briefly, a “client,” in which case the duty of confidentiality applies,3 or he’s a former client, or he’s a “potential client” (because he didn’t retain you).4 Can you rat out old Shifty? Nope.
Let’s assume Shifty’s your client (and that he fires you once you give your advice and he rejects it, walking out the door). You have confidential information that you can’t reveal.5 You don’t fit within any exceptions, not even under the permissive rule of 1.6(b)(3) (“to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services . . . .”) Remember, 1.6(b) is permissive (“may reveal”), not mandatory. And once old client Shifty lets your door hit him on the way out of your office, he’s probably become a former client, so you should also look at Rule 1.9(c) on keeping client confidences after the attorney-client relationship has ended.6
You guessed it. You can’t squawk. The (former) client didn’t use your services to lie to the court in the SOFA, at least not directly. And if the (former) client never hired you, are you home free? Nope. There’s a rule for “potential clients’” confidences: Rule 1.18 applies to protect confidentiality (“Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.”).
Let’s talk a little bit about Barry’s responsibilities, though. I hope that Barry’s intake form asks if the client has seen any other lawyers before seeking Barry’s advice. It’s not always the case that switching lawyers is a bad sign, but at least it’s a sign that should raise Barry’s eyebrows.7 His antennae should be up.8 Barry, as a debt relief agency, should be mindful of Section 526(a)(4) (“A debt relief agency shall not . . . (2) make any statement, or counsel or advise any assisted person or prospective assisted person to make a statement in a document filed in a case or proceeding under this title, that is untrue or misleading, or that upon the exercise of reasonable care, should have been known by such agency to be untrue or misleading . . . .”). So Barry had best be asking Shifty some questions that reasonable lawyers would think might ask upon finding out that the client had walked away from the first lawyer’s advice. Now, my guess is that Shifty will lie to Barry (“I just didn’t like Larry; we didn’t end up talking about my case at all”), but it’s worth it to Barry to watch Shifty’s body language when he’s explaining himself.
Depressing, isn’t it? That’s the frustrating thing about confidentiality. Sometimes, the bad guys get away with things. Let’s try one more question.
Question #2: I’m going on vacation. Is it ok for me to leave this “out of office” message on my email? “Thank you for your e-mail. I will be out of the office. I will read and respond to your e-mail upon my return. Thank you.”
Answer: No. (Sorry, that was me being snotty.) The full answer is “no, not unless you make arrangements for case coverage while you’re gone.” Check out this part of Comment 1 to Rule 1.3: (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”).
“But Ms. Ps and Qs,” you say. “You live the cushy life of a law professor. You take your summers off. Why should I serve my clients 24/7?”
Well, yes, I do have a cushy life (but most law professors research and write during the summer, so we get about as much vacation as the rest of you—probably no more than you do).9 I’m not asking you to be on call 24/7. I am asking you to check your email once a day to see if there are any emergencies that you need to handle from afar. If you’re vacationing in a yurt10 without an Internet connection, then make sure that someone in your office is checking your email and voicemail. In the very worst scenario—you are a true solo, with no staff—then you’d better be taking your vacation during a time when there’s very little likelihood of client emergencies, and you’d better give all of your clients some advance notice that you’ll be gone.
Variant on Question #2: Fine. You won’t let me take a vacation, ever, so now I’m burned out. Thanks a lot, Ms. Ps and Qs. May I please at least put this bounce-back message on my emails? “New email protocol—because email messages are also processed on cell phones. Please only email during normal work hours – 9-5 Monday through Friday. Email messages sent before or after 9-5 Monday through Friday or on weekends may not be immediately returned and they could be deleted.” May I please, for heaven’s sake, get some peace and quiet for once?
Answer: Meh. Yes, you may, on the theory that you, too, are human.11 It’s nice to have an emergency number for true emergencies (or an answering service), but because you’re not an obstetrician, trauma surgeon, or anesthesiologist, you probably don’t have a lot of nighttime emergencies. Spend a little time outside work. Aw, you can thank me later.
1 I’m assuming more than one reader. If I’m wrong, well, I’ll never know, right? A special thanks to Regina, who always gives me great ideas.
2 Shocker, right?
3 Check out your state’s version of MRPC 1.6.
4 If your state has a version of MRPC 1.18, that’s where you’d find the rule about potential clients. Even if your state doesn’t have such a rule, you always should worry about whether the person who walked through your office door thinks that you’re his lawyer. If that person has formed a reasonable belief that he’s your client, then guess what? He is. That’s why I joke in PR class about walking around wearing a T-shirt that has, on the front, “I am not your lawyer,” and on the back, “I am not giving you legal advice.” So much for a reasonable belief if you’re wearing that shirt. Oh, and yes, I do have a few of those shirts myself.
5 MRPC 1.6(a) is mandatory (“shall not reveal”).
6 That section says:
- (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
- use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
- (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
7 Or the eyebrows of his staff.
8 Yes, with raised eyebrows and antennae, Barry is one funny-looking dude.
9 We’re testy about this oft-raised assumption. Can you tell?
10 Who doesn’t love to say the word “yurt”?
11 Unless you listen to every lawyer joke ever told.
Nancy B. Rapoport, a/k/a “Ms. Ps & Qs,” is the Gordon Silver Professor at the William S. Boyd School of Law, University of Nevada, Las Vegas. Professor Rapoport’s prior experience includes private practice, primarily in bankruptcy law, in San Francisco, and a distinguished academic career at multiple academic institutions, including serving as Associate Dean and Professor at The Ohio State University College of Law and Dean and Professor at both the University of Nebraska College of Law and University of Houston Law Center. Her specialties are bankruptcy ethics, ethics in governance, and the depiction of lawyers in popular culture.
She has also appeared in the Academy Award®-nominated movie, Enron: The Smartest Guys in the Room (Magnolia Pictures 2005) (as herself). Although the movie garnered her a listing in www.imdb.com, she still hasn’t been able to join the Screen Actors Guild. When not acting, teaching or writing, in her spare time, she competes, pro-am, in American Rhythm, American Smooth, and 9-Dance ballroom dancing with her teacher, Sergei Shapoval. You can visit her blog at: http://nancyrapoport.blogspot.com.