No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 20 November 2018
The work of the Kutak Commission in developing the Model Rules of Professional Conduct is probably the most important work in legal ethics since the Alabama State Bar Association first codified its Canons of Ethics in 1887. In general, the Commission's product is excellent. It is progressive without being radical and conservative without being timid. However, as can be expected in any discussion draft, there are issues not wholly thought through and concepts not clearly expressed. In the spirit of improving the next draft, these mostly critical comments are offered.
1 The effect of the present Code of Professional Responsibility on these conflicting interests is analyzed in Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 Harv. L. Rev. 702 (1977).CrossRefGoogle Scholar
2 E.g., Rules 3.1–3.8, and 4.2 and 4.3, in American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct (Discussion Draft, Chicago: American Bar Association, Jan. 30, 1980).Google Scholar
3 Id., pt. 6.Google Scholar
4 Id., pt. 3.Google Scholar
5 DR 5–105(C) provides: “In the situations covered by DR 5–105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can represent the interest of each and if each consents to the representation after full disclosure of the possible effect of the representation on the exercise of his independent professional judgment on behalf of each” (emphasis added).Google Scholar
6 “For example, under no circumstances could a lawyer properly represent both the plaintiff and the defendant in contested litigation, or represent parties to a negotiation whose interests are fundamentally antagonistic to each other.” See Rules, Model, supra note 2, at 29.Google Scholar
7 Rules 1.1, 1.5, and 1.4, respectively.Google Scholar
8 “A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.” DR 9–101(B).Google Scholar
9 “Except when permitted under DR 4–101(C), a lawyer shall not knowingly … [u]se a confidence or secret of his client for the advantage … of a third person, unless the client consents after full disclosure.” DR 4–101(B)(3) (note omitted).Google Scholar
10 E.g., Emle Indus., Inc. v. Patentex, Inc. 478 F.2d 562 (2d Cir. 1973); Chugach Elec. Ass'n v. United States Dist. Court, 370 F.2d 441 (9th Cir. 1966).Google Scholar
11 The leading case is Allied Realty of St. Paul, Inc. v. Exchange Nat'l Bank, 283 F. Supp. 464 (D. Minn. 1968), aff'd, 408 F.2d 1099 (8th Cir.), cert. denied, 396 U.S. 823 (1969).Google Scholar
12 I am grateful to my colleague L. Ray Patterson for his helpful insights as to this distinction.Google Scholar
13 18 U.S.C. § 207 (Supp. II 1978).Google Scholar
14 See, e.g., 5 U.S.C. § 552b (Sunshine Act), and 5 U.S.C. § 552 (1976 & Supp. II 1978) (Freedom of Information Act).Google Scholar
15 These distinctions are developed further in Thomas D. Morgan, Appropriate Limits on Participation by Former Agency Official in Matters Before an Agency, 1980 Duke L.J. 1.CrossRefGoogle Scholar
16 Supra note 9.Google Scholar
17 In 18 U.S.C. 5 207(a)(3) (Supp. II 1978) the phrase is “participated personally and substantially as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, while so employed. …”Google Scholar
18 E.g., Supreme Court Order No. 71–288, 409 U.S. 824 (1972) (memorandum of Rehniquist, J.), in which Mr. Justice Rehnquist denied need to disqualify himself and pointed out that he had never participated in the government's conduct of the case in Laird v. Tatum, 408 U.S. 1 (1972).Google Scholar
19 The section requires the affected official to make full disclosure to the “Government official responsible for appointment to his position” and to receive in advance a written determination “that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such officer or employee.” 18 U.S.C. § 208(b) (Supp. II 1978).Google Scholar
20 The leading case discussing possible approaches is Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978), reversing 448 F. Supp. 1284 (N.D. III.).Google Scholar
21 “If a lawyer is required by this rule to decline representation on account of personal and substantial participation in a matter, … no lawyer in a firm with the disqualified lawyer may accept such employment.”Google Scholar
22 E.g., T. C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F. Supp. 265, 268–69 (S.D.N.Y. 1953), and cases cited in note 11 supra. Google Scholar
23 The term “law firm” is defined specially in the Rules as: “A lawyer practicing with the assistance of other persons in the service of a client, including partners, associates, lawyers ‘of counsel’ to a firm, and employees of a firm, and lawyers employed in the legal department of a corporation or other organization, in the legal department of a government agency, or in a legal services organization.” See Definitions in Model Rules, supra note 2, at 6.Google Scholar
24 But cf. City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193, 211 (N.D. Ohio), aff'd without published opinion, 573 F.2d 1310 (6th Cir. 1977).Google Scholar
25 ABA Formal Opinion No. 342 (1975), reprinted in 62 A.B.A.J. 517 (1976).Google Scholar
26 Association of the Bar of the City of New York, Committee on Professional and Judicial Ethics, Opinion No. 889, reprinted in 31 Rec. Ass'n B. City N.Y. 552 (1976).Google Scholar
27 Kesselhaut v. United States, 555 F.2d 791 (Ct. CI. 1977), and Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980) (en banc). reversing 606 F.2d 28 (2d Cir. 1979). But see United States v. Kitchin, 592 F.2d 900 (5th Cir. 1979) (per curiam).Google Scholar
28 E.g., International Electronics Corp. v. Flanzer, 527 F.2d 1288 (2d Cir. 1975).Google Scholar
29 E.g., Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980) (en banc), reversing 606 F.2d 28 (2d Cir. 1979).Google Scholar
30 “Opposing counsel may in proper circumstances raise the question [of a conflict of interest], certainly where there is a substantial possibility that the conflict could result in reversal of a judgment or invalidation of a transaction. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment.” Comment to Rule 1.8 on conflict charged by an opposing party, in Model Rules, supra note 2, at 30.Google Scholar
31 The Scope and Definitions portion of the discussion draft provides: “Violation of the Rules should not necessarily result in civil liability. Many of the Rules are designed to prevent harm rather than to define harm; the uncritical use of preventive norms as norms of liability distorts the purpose of regulation.” Model Rules, supra note 2, at 4–5.Google Scholar
32 A good example are the Rules providing for disclosure of information to the opposing party under certain circumstances–-e.g., Rules 3.1 and 4.2. One can imagine that if civil liability were imposed on the lawyer for an opposing party to make such disclosures, there could be endless recriminations and unwarranted pressure on the lawyer. He might be liable to his own client if he made disclosure and liable to be the other side if he did not. Enforcement of such third-party obligations seemingly should be left to disciplinary proceedings or orders issued by the court in a pending case, while obligations to one's own client might be enforced by malpractice sanctions as well.Google Scholar
33 My own view with respect to the disqualification under Rules 1.10 and 1.11 is that something analogous to a standing requirement should be imposed. That is, one should be able to seek to disqualify the other lawyer in order to protect the parties' own interest but not someone else's. For example, if the protections of Rule 1.11 are primarily to protect the government, it seems inappropriate in all but the most extreme cases for a private, nongovernment litigant to be able to rely on Rule 1.11 to disqualify the opposing attorney. See, e.g., the Scope and Definitions section of the Rules, which provides: “The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.” Model Rules, supra note 2, at 5.Google Scholar