Speaking of Ethics: Agreement Between Lawyer and Media Representatives
From Washington Lawyer, April 2006
By Heather Bupp-Habuda
Rule 1.8(c) of the D.C. Rules of Professional Conduct forbids the acquisition of literary or media rights by a lawyer while representation is ongoing and the lawyer’s decisions for the client may still be influenced. As such, Rule 1.8(c) does not allow for the possibility of a client waiver of that conflict in any circumstances.
Rule 1.7(b)(4) generally provides that a lawyer may not represent a client with respect to a matter where “[t]he lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.” A lawyer may seek, however, a Rule 1.7(c) waiver. See D.C. Rules of Prof’l Conduct R. 1.7(b)(1)–(4), (c).
Recently, in Opinion 334 (2006), the D.C. Bar Legal Ethics Committee addressed important issues pertaining to Rules 1.7 and 1.8. A lawyer representing a pro bono client in litigation drew the interest of the press and was approached by reporters considering writing a book or producing a movie about the litigation. The primary interest was in the lawyer rather than the client. The media representatives wanted to arrange for the attorney to receive compensation in return for cooperation and rights to the story. The client would also receive compensation.
The committee concluded in Opinion 334 that Rule 1.8(c) is inapplicable because the rule “prohibits a lawyer from acquiring media rights from the client or otherwise; it does not, however, prohibit the lawyer from making an agreement with media representatives with respect to his own media rights.” D.C. Bar Legal Ethics Comm. Op. 334, at 3. The committee further held that the facts described above raise a serious issue under Rule 1.7(b)(4), and that the lawyer cannot proceed to negotiate with the media representatives without full disclosure to the client and an appropriate waiver, if possible, under Rule 1.7(c).
Rule 1.7(b)(4) covers the very wide range of interests and responsibilities that a lawyer may have that do not involve representation of a different client. The broad scope of subparagraph (b)(4) shows that “any kind of interest or obligation of the lawyer can trigger the applicability of the subparagraph if the presence of that interest could reasonably adversely affect the lawyer’s ability to represent a client in a matter.” D.C. Bar Legal Ethics Comm. Op. 334, at 5.
The question of how, and even whether, a client may consent to a conflict under Rule 1.7(c) is crucial. Valid consent may be obtained only after consultation with the client, that is, “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.” D.C. Rules of Prof’l Conduct, Terminology . According to Opinion 334, the question is whether the lawyer’s judgment on how to conduct the representation for the client might be adversely affected by the lawyer’s pecuniary or publicity interest.
Two impediments exist to a clear appreciation by the client of what is at stake. First, future developments in the representation involve possibilities that may not well be presently understood, so that an appreciation of them currently might be difficult or impossible. Second, the impact on the lawyer’s judgment in representing a client involves issues particularly within the knowledge of lawyers, but not of clients.
As to the first problem, Opinion 309 (2001) comprehensively examined the question of the degree to which consent can be valid when it is given in advance of events that affect the scope of the conflict. There the committee concluded that a valid advance consent can be given only where full consultation as described in the Rules can be had, and a client has the ability to give fully informed consent, in advance. Opinion 309 did not specifically treat a conflict that arises under Rule 1.7(b)(4) and is sought to be waived in advance.
In Opinion 334 the committee noted that a large part of obtaining a valid waiver of any conflict caused by the lawyer’s negotiation of a contract with media representatives would involve the detailed explanation to the client of the litigation choices that the lawyer expects and the possible impact on those choices that are the result of having the media contract. “Loyalty, and the ability to act despite somewhat divided loyalties, is a relatively simple concept to understand. But the impact of the lawyer’s personal interests on the lawyer’s ability to make tactical and strategic decisions for a client, which is presented in a conflict arising under Rule 1.7(b)(4), requires the lawyer to explain, and the client to understand, the significance to the client of influences on the lawyer’s handling of specific issues.” D.C. Bar Legal Ethics Comm. Op. 334, at 7.
The committee opined that the client would benefit from independent counsel to offer advice on the scope of any adverse impact on the lawyer’s ability to provide adequate representation despite whatever influences the media arrangement may have. A second but less viable option is for the lawyer to obtain independent legal advice to provide the most objective view possible of the lawyer’s ability to act adequately for the client in the circumstances. As a general rule, practicing lawyers should be open to seeking the guidance of independent legal advice when appropriate to address a potential conflict.
New comment 11 to Rule 1.7 and new comments 1, 2, 3, and 4 to Rule 1.8 of the D.C. Bar Board of Governors Proposed Amendments to the D.C. Rules of Professional Conduct are consistent with the conclusions reached in Opinion 334.
Legal ethics counsel Heather Bupp-Habuda is available for telephone inquiries at 202-737-4700, ext. 232, or by e-mail at firstname.lastname@example.org.