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By Samson Habte
Jan. 6 --An attorney who represented a lawyer in an ethics proceeding engaged in misconduct of his own by negotiating a settlement agreement that required the complaining party to refuse to cooperate with bar investigators, the Kentucky Supreme Court declared Dec. 19 (Ky. Bar Ass'n v. Unnamed Attorney, 2013 BL 352410, Ky., No. 2012-SC-000388-KB, 12/19/13).
Bar counsel alleged that the lawyer who negotiated the deal violated Kentucky Rule of Professional Conduct 3.130-3.4(g). That rule, patterned on ABA Model Rule 3.4(f), generally states that a lawyer may not “request a person other than a client to refrain from voluntarily giving relevant information to another party.”
Voting 5-2, the court agreed. “The plain language of the rule mandates this result,” it declared in a majority opinion signed by Chief Justice John D. Minton Jr. The court issued a private reprimand as a sanction.
But Justice Will T. Scott, in a partial dissent joined by Justice Bill Cunningham, said he “strongly” disagreed with the majority's interpretation of Rule 3.4(g). The provision--enacted in 2009--was “not intended to apply to confidentiality and non-cooperation provisions in settlement agreements,” Scott said.
The application of Model Rule 3.4(f) in the context of settlements is a subject that has received scant judicial or academic attention.
In a 2008 law review article, University of Connecticut law professor Jon Bauer--one of the few scholars to tackle the issue--described the prohibition on inducing witness noncooperation as “one of the least well-known of lawyers' ethical duties.” Bauer, Buying Witness Silence: Evidence-Suppressing Settlements and Lawyers' Ethics, 87 Or. L. Rev. 481, 487 (2008).
Bauer told Bloomberg BNA when asked about the Unnamed Attorney case that he found merit in aspects of all three opinions.
Bauer said that overall he agreed that the plain language of Rule 3.4 compelled a finding of guilt in the case. But he said his own research lends credence to the notice-related concerns expressed in Scott's dissent. “If this is what the rule is, people are consistently violating it,” Bauer said. It is for that reason that Bauer endorses one aspect of Abramson's concurrence.
Abramson said she had no “hesitancy in applying [Rule 3.4] to this situation” because the court “should not condone a practice that would make the disciplinary process more difficult.” But she added that “further evaluation” was needed to weigh “the broader application of this rule in other contexts.”
Bauer agreed with Abramson that the majority should have said more about how Rule 3.4 applies outside the disciplinary context. But he said he was less enamored with the argument that Rule 3.4 should apply differently in civil cases, where secrecy and nondisparagement clauses are ubiquitous parts of settlement agreements.
Bauer acknowledged that lawyers' opinions on that issue split along fairly predictable lines.
Plaintiffs lawyers' tend to view such agreements as a “classic way of suppressing evidence that leads to accountability,” he explained. By contrast, he said, in-house and corporate defense counsel tend to be more supportive of such agreements, which they view as a way to “buy peace.”
Although some commentators believe authority on the propriety of such agreements is unsettled, Bauer disagrees. A growing body of case law, he said, indicates that they are improper in a broad variety of contexts, including civil cases.
“Private litigation also has a role in enforcing the law,” said Bauer, who rejects policy arguments for limiting the scope of Rule 3.4 in civil cases.
He pointed to several cases as supporting that view, including EEOC v. Astra USA, 94 F.3d 738 (1st Cir. 1996) (forbidding agreement that prohibited sexual harassment plaintiff from making disclosures to EEOC); In re JDS Uniphase Corp. Sec. Litig., 238 F. Supp.2d 1127 (N.D. Cal. 2002) (enjoining use of “confidentiality agreements to chill former employees from voluntarily participating in legitimate investigations into alleged wrongdoing”). See also United States ex rel. Longhi v. Lithium Power Techs., Inc., 575 F.3d 458 (5th Cir. 2009) (refusing to enforce employee release of False Claims Act claims).
The dissenters also said the trial commissioner should have admitted expert evidence from an ethics professor about what the rule means.
The respondent in this case, identified only as “Unnamed Attorney,” represented a fellow lawyer who was accused of overcharging a client while handling a probate matter.
The client (“Jane Doe”) filed a complaint with the Kentucky Bar Association against the probate lawyer. During the initial stages of the ensuing proceedings, Unnamed Attorney arranged a meeting with Doe to discuss a possible settlement.
Bar authorities were notified about the meeting, which ultimately produced a written “release agreement.” The agreement called for the probate lawyer to refund a $30,000 fee in exchange for Doe's promise to withdraw her disciplinary complaint.
A noncooperation clause specifically provided that Doe “agrees to the extent permitted by law, to refuse to voluntarily assist or to voluntarily provide information to the KBA or anyone else, regarding the Bar Complaint unless directed to do so pursuant to subpoena, court order or other binding authority.”
Bar counsel requested a copy of the settlement agreement--and, after reviewing it, filed a complaint against Unnamed Attorney.
The complaint charged Unnamed Attorney with violating Rule 3.4(a) “by unlawfully obstructing another party's access to evidence, or by counseling or ordering another to do so.” It alleged that he also contravened Rule 3.4(g) by requesting that a person who was not his client “refrain from voluntarily giving relevant information to another party.”
A trial commissioner found Unnamed Attorney violated both rules, and recommended that he be publicly reprimanded and suspended from practice for 30 days.
On appeal, the bar's board of governors concluded that Unnamed Attorney was not guilty of either charge.
The supreme court reversed in part.
The board, it said, correctly found that the Rule 3.4(a) violation had not been proven. That provision “prohibits a lawyer from unlawfully obstructing another party's access to evidence,” the court said, and nothing indicated that the respondent's conduct was unlawful.
However, the court reversed the board's finding that the Rule 3.4(g) charge was not proven.
A lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or agent who supervises, directs or regularly consults with the client concerning the matter or has authority to obligate the client with respect to the matter;
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
“The structure of the rule immediately presents a concern--that is, notably, whether 3.4(g)(1) and 3.4(g)(2) are to be read in the conjunctive or disjunctive,” the court observed. That confusion, it said, appears to have been the result of a drafting oversight: “The semicolon after [Rule] 3.4(g)(1) is followed by neither 'and' nor 'or.'” The court pointed out that the ABA template includes an “and.”
The court decided that a conjunctive reading was required. It then found that, “Under this interpretation, Unnamed Attorney is guilty of violating [Rule] 3.4(g),” because he did not satisfy the two conditions that must be met to claim an exception to the general rule against inducing parties to withhold voluntary cooperation.
“The plain language of the rule mandates this result,” the majority concluded. “We cannot place our imprimatur on settlements that attempt to obstruct the disciplinary process in any way,” it added.
Turning to the proper sanction, the court conceded that “Unnamed Attorney's actions were not of a highly objectionable nature as undoubtedly many attorneys may engage in similar conduct outside the disciplinary context.” Accordingly, the court concluded that a private reprimand was appropriate.
The majority's reading of Rule 3.4(g) was not shared by University of Kentucky law professor William Fortune, who according to the dissent played a key role in developing the Kentucky rule.
Unnamed Attorney asked Fortune to testify in his disciplinary hearing, but the trial commissioner rejected the proffer after concluding that it needed no expert help in reading and applying the rule.
Unnamed Attorney challenged that ruling, arguing that the decision to exclude Fortune's testimony was an abuse of discretion. The majority was not persuaded.
“Here, the Trial Commissioner was faced with a seemingly novel application of a rule adopted during 'Ethics 2000,' the recent overhaul of our ethics rules,” the majority said. “We fail to see how a Trial Commissioner choosing to interpret a particular rule without the aid of a proffered expert is 'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'”
The dissenters agreed that the respondent did not violate Rule 3.4(a). However, they took issue with the majority's two other conclusions: that he violated Rule 3.4(g) and that the exclusion of Fortune's testimony was not erroneous.
As to the latter issue, the dissent emphasized Fortune's leading role in the Ethics 2000 process in Kentucky. “Plainly, this Court relied heavily on Professor Fortune in the formulation of these rules--and even relied on him to 'sell' the changes to the bar,” Scott wrote. “Yet, the majority now feels it would have been improper for the trial commissioner to have listened to the very person this Court entrusted to explain its meaning.”
Scott cited Fortune's written report that “the legislative history and secondary authorities do not support the proposition that the rule was intended to apply to non-cooperation agreements contained in settlements.”
Fortune, who declined Bloomberg BNA's request for comment, also warned in his oral testimony that “the ramifications of [applying] this rule to provisions in a settlement in a civil case are very far reaching.”
The dissenters agreed. “Because confidentiality and noncooperation provisions are customary in settlement agreements, applying this rule to those agreements (which by nature restrict the free flow of discoverable information) will have unintended effects,” Scott said.
In a separate concurring opinion, Justice Lisabeth Hughes Abramson agreed with the majority's conclusions about use of Rule 3.4(g) in the disciplinary context but added: “As for the broader application of this rule in other contexts, I think this case and the issues it has raised establish the need for further evaluation of the rule by this Court.”
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