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Ethical Considerations in Prison Law Matters


BETSY GINSBERG: Great. So as Liz said, our last segment for the day is ethics. And while I know you're all excited because it's the holy grail of Ethics CLE, and you get to finally nail this one, you should actually be excited for this because we have a great instructor, and that's Peggy Cross-Goldenberg, who is a Supervising Trial Attorney and the Director of Training in the Southern District office of the Federal Defenders.

She also teaches a course on Professional Responsibility at Columbia University Law School. And as those of you know who practice in this area, we encounter lots of thorny ethical issues in our practice. And so Peggy is going to try to take us through at least some of the types of things that tend to arise in this area. So I'm going to turn it over to Peggy.

One quick thing is, for those of our web viewers who may find themselves with questions along the way, feel free to type those in and send those, even before we're taking questions so that they have time to reach us. And if we have time at the end, we will get to those.

PEGGY CROSS-GOLDENBERG: OK, thank you. It's good to see you all. I know it's been a long day. And so this is, of course, the super engaging topic of legal ethics, which I know will keep everybody interested. But I also thought since it's the end of the day and you guys have been here for a while, it would be good to try to keep it interactive. You know, issues of legal ethics are situational, right? They always arise in ways that you couldn't have predicted, and they're always highly dependent on the facts of the case.

I tell my students, I remember back to when I took the MPRE and I felt like you could always narrow it down to two choices. And one was always "Yes, because"-- and the other one was "No, because"-- right? Which seems, like, not very helpful. But it's always what's in the because that matters. And so I do think that the best way to think about legal ethics problems is through hypotheticals. And so that's what we're going to do. We'll walk through a hypothetical representation and some issues that might come up. And then along the way, we'll take some polling questions.

So like Liz said, I'm told-- I haven't actually done it-- but what you'll need to do is hit the Back button on the top of the screen, and then press the Polling tab on the bottom of the screen. And you should be able to vote in all of our polls. And so the plan is we'll walk through the hypothetical together, and then we will take the polls and we'll discuss the rules that apply to that question. And what the "Yes, because" and the "No, because" of the answers might be.

All right, so let's get started. Oops. In this hypothetical, you are an attorney at an organization called Lawyers For Prison Progress. You are involved, primarily, in impact litigation against jails and prison. The litigation is aimed at improving prison conditions. Occasionally, your office will assist clients with other legal matters that arise during the representation. Most of the cases that your office brings begin either as referrals from family members of incarcerated individuals, or letters from incarcerated individuals themselves asking you for help. And because of the sheer volume of the requests that you receive, your office only accepts written requests for information.

You receive a letter addressed to the organization from a concerned mother. And she says, "Please help my daughter, Angie. She caught a case because her boyfriend kept drugs in her apartment. She didn't even know the drugs were there. But the judge gave her five years and said the law didn't allow her to give any less time. The guards treat the female prisoners really bad. They play favorites, and even try to have sex with them. Then they reward certain prisoners with illegal drugs and cell phones, and make the ones who say no do all the cleaning on the unit. She heard she can get out early if she testifies against the guards. Please help her. Thank you from the bottom of my heart, Silvia Smallman."

I wish this was a completely hypothetical hypothetical, but for those of you who followed the cases against the guards at the MPC in Brooklyn, that have been going on recently, this is sadly actually a letter that an organization like this might receive. So because you're interested in litigating prison condition issues, the allegations of sexual abuse catch your attention. And you know that this is a topic that has been in the courts recently, and that your organization is really committed to doing what it can to eradicate sexual abuse in prison.

So you go to meet with Angie. You go to the prison and you meet with her. She tells you what she knows. She begs you to stop the sexual advances, and to get her a lower sentence. She gives you the names of three guards who are perpetrating the abuse, and bringing in the drugs and cell phones. You tell her that you will try to help her. You promise to investigate her allegations of sexual abuse, and if there is sufficient evidence to bring a lawsuit against the prison.

OK, so here's our first poll. Have you formed an attorney-client relationship with Angie?

BETSY GINSBERG: Are folks seeing the poll come up?


PEGGY CROSS-GOLDENBERG: OK, so you have to-- are you in the PowerPoint?

BETSY GINSBERG: Ah, here it is. It's up. OK.

PEGGY CROSS-GOLDENBERG: OK. And then do I have to close it, or it just does it automatically, right?

SPEAKER 1: It takes a few minutes, or moments



PEGGY CROSS-GOLDENBERG: OK, and you guys can see the results on the side, right? I think we can't, but--

BETSY GINSBERG: They have it on their screen.

PEGGY CROSS-GOLDENBERG: And it's on your screen too, got it. OK, so it's about 2/3 yes, 1/3 no. I didn't give you any wiggle room there. There were no becauses, so you had to make a choice. So let's walk through this and what applies to this, what rules apply to this question. The first sort of background point is that an organization like Lawyers For Prison Progress would not have an obligation to answer every piece of unsolicited mail that it receives from a potential client, right? Nor could it.

But they only are under an obligation to answer letters or phone calls that reasonably require a response. And a regular unsolicited letter without more is not going to reasonably require a response. It won't make Angie, in this case, or Angie's mother, a prospective client. But here, you take the affirmative step of going out to meet with Angie to discuss her case, right? So that puts her firmly in the category of a prospective client. And it's important to note that certain rules would kick in at that point.

And so even if no actual client-lawyer relationship ensues, you would have a duty to keep confidential the information that she gives you in that initial meeting. The restatement of the law governing lawyers, section 14, discusses the formation of the client-lawyer relationship. And it describes it as when a person manifests to the lawyer, the person's intent for the lawyer to provide legal services. And then the lawyer either manifests consent to do so, or fails to manifest the lack of consent to do so. The attorney-client relationship is formed.

The burden here is on the lawyer, right? As the party with the superior information and understanding of the situation. In a situation like this where the lawyer met with the client to discuss these issues, the burden would be on the lawyer to say, "I'm not going to represent you at this point." And here, as you've left it in the hypothetical, right, you say, "I will represent you. I'll investigate your claims. And if they're substantiated, or if there's something there, I'll file a lawsuit." So yes, I think you do have an attorney-client relationship with Angie at that point.

AUDIENCE: Just a quick question. I agree with the yes. What happens if you say, specifically, that you'll look into it, but you don't plan on representing that person. Maybe you just have a full schedule, or maybe you've been [INAUDIBLE] that person's not a very reliable person, I don't know. But are you able to say something in the negative in the representation to allow her to know that you're not representing her, even though you'll still look into it to see if something changes your mind?

PEGGY CROSS-GOLDENBERG: OK, so can I ask you to-- I'll repeat the question when we get you, but can I ask you to hold it till we get through the next poll, and we'll see if we answered it all. And then I'll come back to that. That's a good question. OK, so we have an attorney-client relationship with Angie. What is the scope of that relationship? What is the scope of the representation that you've undertaken? Is it a, to investigate the allegations of sexual abuse? B, investigate the allegations of sexual abuse, and then file suit? Or c, investigate the allegations of sexual abuse, file suit, and assist Angie in getting a lower sentence by cooperating against the guards?

MICHAEL CASSIDY: There's no d.


MICHAEL CASSIDY: There's no d.

PEGGY CROSS-GOLDENBERG: I think we'll get to that later [INAUDIBLE]. OK, so (COUGHING) excuse me. Most of you, firmly in the 2/3 camp, think it's the most limited scope of representation, which is just to initiate or just to investigate the allegations of sexual abuse. So let's back up and talk about the rules that might apply, and then we can think about these three options.

And let me say, I know we have people from all over the country and different jurisdictions. I can't possibly, in this hour, touch on all of the variations of the laws in different jurisdictions. So if you take away anything from today, takeaway check the rules in your jurisdiction, right? And you know that if you practice in multiple jurisdictions, you're responsible for knowing the rules in both. I'll largely track the Model Rules, and I'll talk a little about the New York rules. But obviously, different jurisdictions do have different idiosyncrasies. So let's talk about sort of, at least, the basic analysis here, right?

ABA Model Rule 1.2 deals with the scope of representation. And it sets out that the lawyer shall abide by the client's decisions concerning the objectives of the representation. So the reason Angie is coming to you to be her lawyer, and what she wants to get out of the potential representation, those objectives are hers as the client to decide. The rules allow the lawyer to limit the scope of the representation, if that limitation is reasonable under the circumstances and if the client gives informed consent to that limitation.

Different jurisdictions add some additional factors there in New York, where necessary you have to notify the tribunal of the limitation of representation. The key is the cross reference, I think, to Model Rule 1.4, which talks about communication with the client, right? So a limitation on the scope of representation is not something that the lawyer can effectuate unilaterally, right? You can't just draw a line around it. That's something that you can only do in consultation and conversation with your client. And they have to give informed consent to any limitation.

That limitation has to be reasonable under the circumstances, meaning if it was, for example, a potential investigation and lawsuit against a prison, limiting the representation to, say, one phone call wouldn't make a lot of sense, right? That wouldn't be reasonable in the circumstances, because to actually undertake this representation you're going to have to do some investigation and some legal research, right? It's going to require more than that.

The first rule, right, other than the definitions in most jurisdictions, rule 1.1, is the requirement of competence. And that applies across the board in any kind of representation. So even if you're limiting what you're agreeing to do for Angie, you still have to do it competently. So it wouldn't be reasonable to make an agreement or to try to limit the scope of the representation in a way that curtails your competency. I would say that normally if an individual comes to you as a lawyer, these two issues that Angie has raised are different, right?

There's the issue of the sexual abuse in prison and sort of how to stop it, and how to protect the women that are in prison. And then there's this question about her sentence. And this is a little bit of my practice area, right? It sort of comes up, but it might not be something that's familiar to a lot of people who are doing impact litigation or, you know, mainly civil rights litigation, as opposed to criminal representations.

And it is true, at least in the federal system, for example, that if she went to the prosecutors and sat down with them and said, here's what's happening in the jail, she could get a lower sentence if she was able to provide substantial assistance in the prosecution or investigation of these guards. And that may be her primary objective. And that may be something that you have no competence in at all. You don't know how to set up that meeting. You don't know what the sort of going rate is in the jurisdiction, right? What kind of discount she might actually get on her sentence.

And so I would say, ordinarily, you don't have to limit the scope of the representation by saying, like, everything you're not going to do. But in a case like this where the client brings up another very specific objective, if that's not something you can do, I think you have to be very clear about it. So the way I wrote the hypothetical, that you agree to investigate the allegations of sexual abuse. And if there is enough evidence to file the suit, I think you would want to go one step further and tell her that helping her with her sentence is not necessarily something you can do.

And the reason I mentioned competence before, I don't think it's something you can necessarily just ignore, right? Because then she may lose out on the chance, right? If you just bring a civil suit, there may be no more room to sort of prosecute the guards, or you know, the time may have run, right? She's in there serving her sentence. It may not-- by the time it comes to court, there might not be any time to be cut off her sentence.

So this is the kind of thing that I think if you aren't able to assist or advise, you probably do want to refer her to another lawyer, or at least explain to her that she should try to get another lawyer who might be able to help her with that. And because there is the potential for interplay, right? And you wouldn't want to hurt her chances to get out of jail sooner. That's something you probably want to look into, and not just sort of say, I'm not going to deal with that.

In your materials, I think, for this segment, there's a piece by Philip Genty on limited scope representation. And it talks about ways that legal services offices are sort of trying to stretch their dollars and be able to assist more people through, sort of, creative unbundling of legal services, right? So you may agree just to give telephonic advice in a particular case. Or you may agree to ghost write a pleading, but not to appear in court, right? Which would take a lot less of the lawyer's time, and have the lawyer on the hook for just a much more defined amount of representation, as opposed to the litigation going forward.

And I think that piece does a really good job of explaining what the ethical pitfalls are there, and what you need to worry about. So going back to your question, does that touch on it at all? Or do you want to--

AUDIENCE: Yeah, yeah. The only one thing, which gets into kind of a [INAUDIBLE] area, but if you say that you're not representing that person-- and let's just say it's your own schedule. You wanted to go see how big of a case it was and you don't know your own capacity to take it on. And you specifically say, you know, I will look into it. You know, I'm not your attorney, and I'll look into it. So from that point on-- obviously, what was said, the relationship is already established, and figuring it out. But does that cap it?

PEGGY CROSS-GOLDENBERG: Right. So the question is, could you say I'm going to look into this, but I'm not your attorney? And I think the way I would phrase it is, is it reasonable to limit the scope of the representation in that way? And I think most people thought it was a, right? That your only obligation here was to investigate the allegations of sexual abuse. And I think that's right.

Although, if you find sufficient evidence, I think you have told her, then, that you will file suit. So the question is, could you tell her just, I'm going to investigate and not take it any further? I'm not sure that would be reasonable. I mean, I think you could say, "I'm going to investigate, and we're going to talk and figure out the next step."

AUDIENCE: [INAUDIBLE] or something.

PEGGY CROSS-GOLDENBERG: Right, right. But I mean, it wouldn't do the client any good, sort of, to kind of-- and then leave you hanging. So you might run into a situation where, right, you're at least obligated to sort of move her along in some way, whether it's your office or another office. Or you know, I'll ghost write the complaint for you, but I'm not going to appear on this case. You know, we don't have the people power to do that.

But I will say, that's all something that the client has to have informed consent on. And if you are going to undertake some sort of limitation like this, it's really in everybody's best interest to have it in writing. Some jurisdictions require different types of writings, but I think personally, especially if there might be a question down the road of exactly what the client expects from you, you just want to make sure that they understand fully, and writing is the best way to do that.

OK, so we'll move on. Now, you're beginning your investigation and Angie has given you the name of several possible witnesses. Three of them are other women who she's been incarcerated with, and have been abused by the same guards. Beth has already been sentenced and is serving approximately the same sentence as Angie. Carmen received a short sentence and has already been released. Darlene is still awaiting trial.

Two of the witnesses that Angie gives you are other guards on the unit. And she believes they will tell the truth about the abuse they witnessed. One guard, Eugene, was actually transferred to another unit after witnessing abuse. And a second guard, Frank, resigned from the prison and no longer works there. So your plan is to begin your investigation by tracking down these witnesses and interviewing them.

Are there any restrictions on whether you can contact them? OK, so I think we lose the information as I move?


PEGGY CROSS-GOLDENBERG: Right. OK, so I'm just going to keep a note then of what-- because I want to go through all five, and then we'll talk about the rules. OK, so can you contact Beth? And Beth, just to remind you, has been sentenced and is serving approximately the same amount of time as Angie.


OK. All right, so only about half say yes, and then some no, and then here we get the nice "it depends" option. OK, what about Carmen? Carmen has also been sentenced, but it was a short sentence and she's out. Whoa, OK.

So a lot more people think we can contact Carmen. All right, what about Darlene? She is still in custody, and she's still awaiting trial. So she has not yet been convicted or sentenced. Can you contact her? Hm, OK.

OK, that's the most interesting one yet. Now, we move on to the guards. Eugene is still working at the prison, but he's been transferred to a different unit. Can you contact him? OK. And then finally Frank, who is no longer employed by the prison. OK.

All right, so these are great answers, right? There's a lot to discuss. Let's start again, which is the background on the rules, the Model Rules. Model Rule 4.2 covers communications with represented persons. And it says that in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless they have the consent of the other lawyer or are authorized by law or court order.

So we don't have that easy out-- authorized by law or court order-- to worry about in this case. So let's talk about some of those key terms, right? The communication that the rule concerns is about the subject of the representation. It's with a person that the lawyer knows to be represented by another lawyer in the matter. So person-- the Model Rule uses person, some jurisdictions use party, which is not always, but at least assumed to be a more narrow term. And I think the history on the difference is sort of that prosecutors were worried that if the rule just prohibited them from talking to represented persons, it might interfere with investigations. And so party, which implies that there was actually a case, was a more narrow term.

The term matter, however, is a pretty broad term. And if you go back to the definitions in the terminology section of Model Rule 1.0, or many state rules 1.0, matter, for example in New York, is defined as any litigation, judicial, or administrative proceeding, case, claim, application, request for a ruling, or other determination, contract, controversy, investigation, charge, accusation, arrest, negotiation, arbitration, mediation, or any other representation involving a specific party or parties. So that's a pretty broad thing, right? A matter is a pretty broad thing.

The rule requires that the lawyer know that the other person be represented by a lawyer, and also referring you back to the terminology section, right, under the Model Rules, and under most state rules, right? Knowledge is actual knowledge. So you have to actually know that the person is represented by another lawyer. Although, your knowledge can be inferred from the circumstances. And you can't sort of put your head in the sand and say, I didn't know know.

So with that in mind, let's think about these different individuals, right? So we have Beth, who has already been sentenced, but is still in custody. 51% of you thought you could contact her, 14% said no, and 35% said, excuse me, it depends. Does anybody who said it depends want to say on what you thought it depends?

AUDIENCE: So it depends on if her attorney for her case is also looking into this aspect of it, I think.

PEGGY CROSS-GOLDENBERG: OK, so it depends if her attorney for her case, if their representation extends to this matter, right? And that's exactly right. So the thing you know about the women who were facing criminal charges is that they had a lawyer. Or in the case of Darlene, they have a lawyer, right? Because her case isn't concluded. And I think that's the kind of thing where you know they've been represented, right?

As a lawyer, you know that either they've retained lawyer, or they had counsel appointed to them. And so you know they had a lawyer on the criminal case. And it's not hard for you to determine whether that lawyer's representation extends to the matter that you want to speak to the woman about. And so that's the kind of thing that would be easy for you to determine, right? You can look on the court docket sheet. You can find out who the lawyer was. You call them and you can ask, does your representation extend to this matter?

So that's one thing that the answer could depend on. And then even if their representation does extend to this matter, it still depends on whether they consent, right? So you can speak to a represented person if their lawyer gives you prior consent. So you can ask the lawyer then, if they say, "Yes, I represent her for this purpose." may I speak to her? They may say yes, they may say no. They may say, I want to be there. So it depends on whether she has a lawyer whose representation extends to this matter, and then on whether that lawyer consents to you speaking with her.

I don't think it depends-- which I'm guessing some people might have been thinking, just because Carmen, then, who 74% of you thought you could speak with, I don't think it depends on whether she's still incarcerated as a matter of the ethical rules in most jurisdictions. It may logistically-- like, you may not be able to get into the prison to speak to Beth if you're not already her counsel. So that might be hard, but I don't think there's anything in the rules of professional responsibility that would alter whether you can speak to her based on if she's incarcerated.

Darlene is in a little bit of a different situation, and only 34% of you thought you could speak to Darlene. And that's because you know she's currently being represented. And that lawyer's representation isn't over, because her criminal case is still ongoing. And I think if you parse the terminology of the rule, you don't necessarily want to speak to Darlene about the subject matter for which she's represented, right? You want to speak about the conditions of confinement, and not necessarily her criminal case.

But again, just like with Angie's request that you help her get a lower sentence, there may be aspects of your investigation into the sexual abuse allegations that touch on, or impact, what sentence she's going to get if she's retaliated against by the guards, that sort of thing. So practically speaking, and with her best interests in mind, right, probably the right move is to reach out to her counsel, and request permission or at least give them a heads up. But I think the rules of professional responsibility would permit you to talk to her if you determine that her lawyer's representation doesn't extend to this matter, or if her lawyer gives you permission. Does anybody have any questions about those women? Yes.

AUDIENCE: I'm a little confused or troubled--


AUDIENCE: I'm sorry. I'm a little confused or troubled, because I don't really see the basis on which you should be assuming, or believing or even inferring that the criminal defense lawyer is having anything to do with the question of abuse in prison. And one of the problems I have is that if you do so, you might not be able to cut as good deal for the person who is your prospective client if that becomes part of your representation of her.

In any case, you're undercutting her possible cooperation because maybe the prosecutor, if they're going to get involved in this, you know, will be satisfied with one person. May give the first person who comes forward the best deal. I don't know. But I just don't see any reason to assume that the criminal offense lawyer even knows about the abuse, let alone is in any way representing a prisoner about it.

BETSY GINSBERG: So just for our web audience, the question is about whether the rule requires us to inquire further as to the representation, or assume that the defense lawyer may be representing that individual in some matter related to the abuse. And I guess the other way to think about it is, if there is a knowledge requirement and you go in not knowing, is that enough or do you have to further inquire?

PEGGY CROSS-GOLDENBERG: So I think you're right. I mean, in almost any criminal case, right, once the case is over, it's over. So for the first two, the chances of their lawyers still being involved with them are slim. And I don't think that it would be sticking your head in the sand to say, I don't know that she has a lawyer. I don't think you need to assume that the lawyer on the criminal case's representation extends to this issue.

I mean, I think that unless it does, right, and unless you do have actual knowledge that it does, you are likely OK to speak to all of these women without counsel's permission. I come at it from the perspective of the criminal defense lawyer, right? And so the idea of another lawyer coming into the jail to speak to my client who has an open case about her pretrial detention conditions, when that might impact her criminal case in some way, you know, coming at it from my perspective on her behalf, right, I can see why it would be the better course to reach out to her lawyer when she does have the open case.

Might that undermine a civil case in some way? Meaning exactly like you said, like the prosecutor might be OK with just one witness, and run in and it sort of cuts the legs out from underneath. Strategically, I suppose that's a risk. But I don't think the rules of professional responsibility, unless you know, right? Because it's actual knowledge. So unless you know that the lawyer's representation extends, you don't know that they're a represented person for the purpose of this rule.

And I think the reason I did the difference between the one with the open case and the ones with closed cases, right, it brings it into a little more relief that you know the woman with the open case has a lawyer who's actively representing her. It's on something else, right? It's on the criminal case. And so I just think that becomes a closer question. But I think, ultimately, you are able to contact all three of these women, assuming, like I said, the prison rules and whatnot lets you in.

OK, let's just, for time's sake, move on to the guards and then we can come back. I know there are a couple other questions on this, just because that brings in some other considerations. Let's see, we first have the guard who still works at the prison, right? Eugene, he was transferred to a different unit after he witnessed abuse, but he still works in the prison.

I'll start out again by saying that this is a place where actually substantive law in the jurisdiction may alter which public employees you have access to, right? Assuming this is a public prison. There may be other rules regarding who you can speak to, and when, and who you have to notify and that sort of thing. So putting those sort of variables aside and just thinking about what the rules of professional responsibility are going to say on something like this.

In general, when you're talking about a represented organization, right? So the prison has a lawyer who's covered by that, and which employees would be covered by that. Because it's not all employees, as much as I'm sure the counsel for the prison would like, but there's going to be some sort of test. And the exact language is going to vary in different jurisdictions, but that looks at the employees role and their responsibilities.

And some of the things that courts consider are, does this employee have managerial responsibility? Can this employee's actions or omissions be imputed to the organization for liability purposes? Can the statements that this individual makes be counted as party admissions on behalf of the organization? And the more that their actions can be imputed to the organization, and the more that their statements are going to be deemed admissions, and the more sort of discretionary and supervisory authority that they hold, the more likely they might fall within whatever corporate representation or organizational representation there might be.

With respect to Eugene, I set him out just as a guard, right? And as a, kind of, run of the mill employee witness. And that is the sort of employee that, generally, unless there's some other-- putting substantive law aside-- but in terms of the rules of professional responsibility, generally you are going to be able to contact, despite the organization or the company having counsel. They're just a fact witness, and they don't necessarily have supervisory power or the power to bind the agency with an admission.

And when it comes to Frank, who no longer works there, generally, you are going to be able to speak to him, because as a former employee he wouldn't be covered by whatever umbrella counsel the organization has. I just will sort of flag as a side note, right? Just because you may be able to speak to them, just because they don't fall within the representation, doesn't necessarily mean that they won't have privileged information. And so it may be that they've had conversations with the corporate counselor, with the entities counsel, or they may have information from that counsel. And that may turn out to be privileged down the road. That's a little bit outside the scope of this question, but I just flag it just in case.

So actually, I think you can speak to all five of these witnesses, likely because all five of them are unrepresented. Which brings me just to rule 4.3. All right, conversations or communications with unrepresented persons. And the thing to remember there is that you, as the attorney, you can't imply that you are disinterested. So when you go to speak to, for example, the guard, you don't have to necessarily say that you're representing Angie, and that you're planning on filing a lawsuit on her behalf. But you can't hold yourself out as a disinterested, you know, neutral observer.

If or when the lawyer knows, or has reason to know, that the witness misunderstands the lawyer's role, right? Like, if Eugene starts to say things that makes it seem like you're there to help him have a better work environment, even though, of course, that would be the effect, right, of eradicating this abuse, but once it's clear that the person misunderstands your role, then the lawyer does actually have an obligation to correct that misunderstanding.

So you don't necessarily have an obligation to explain everything at the outset, you can't mislead them, but once it's clear that they misunderstand, then you do have to make reasonable efforts to correct their misunderstanding. And if the interest of the individual that you're speaking with is adverse to the interest of your client's then the only advice you can give that person is advice to seek counsel.

So if you have a situation, for example, where you're speaking to a witness who, say you were speaking to one of the three guards who was perpetrating the abuse, and they asked you, what should I do, right? You can't start to tell them, like, you should stop and you should apologize. And you should confess, right? You have to just tell them, I'm not your lawyer. You need to get a lawyer.

OK, so that's the no contact rule. Let's talk quickly about conflicts, and we'll try to go through this one a little bit quickly. You have a question?

AUDIENCE: Yes, two quick questions. Do you have to ask each person when you start the conversation? Do you have to ask them if they're represented? Is it unreasonable for you not to?

PEGGY CROSS-GOLDENBERG: OK, so the question is, if you have to ask when you speak to a witness, if you have to ask if they're represented? No, you don't. Again, if you know they're represented, then you have other obligations, but you don't have to ask.

AUDIENCE: If you're talking to a guard, do you have to stop if you realized that the guard has maybe managerial aspects and could fall under what is a represented party?

PEGGY CROSS-GOLDENBERG: So the question is, if you started talking to the guard and then you, sort of, came to realize that they were high up enough that they would fall under the covered by the, sort of, corporate counsel umbrella, do you have to stop? Probably. I think that would certainly be the better course. Because then you would realize, like, I shouldn't be talking to this person, unless I have the permission of counsel. And so you would step back and try to get that.

OK, so sadly your investigation turns up ample support for these allegations, and your office decides to file suit with the four women as your plaintiffs. And then you name the three guards that Angie told you about at your first meeting. You finished drafting the complaint and you ask a colleague to proofread it before you file it. She recognizes the names of one of the guards. She represented him on drunk driving charges while she was a public defender, before she joined LPP. And so you ask her to tell you about that case.


Can your colleague give you information about the guard's drunk driving case? OK. All right, so 8% of you say yes, 69% say no, and 23% say it depends. So let me just step back. We'll talk about a couple rules very quickly.

In the Model Rules and in New York, the rules covering client confidentiality 1.6, and remember rule 1.9 talks about your duty to a former client. So just because his drunk driving case is over, does not mean that your colleague's duty of confidentiality toward her former client is over. Presumably, the information that you would want from her, right, is information that would be covered by the rules protecting client confidences, right? Either it would be confidential information because it would be information she got from her client, or it would be a client secret, which would be information not necessarily from the client, but that you learned in the course of your representation.

Either of which would be protected. And you can't share them without the client's consent, or unless it fits certain exceptions that don't really apply here. So I think, probably, it depends turns out to be the right answer, because the client could always consent to the lawyer sharing the information. I can't think of why a client would consent in such a situation. So I think no is probably the realistic answer, that a client isn't going to give their former public defender permission to share information that she learned in his case with the people that are suing him in his capacity as a guard. You have a question?

AUDIENCE: Well, I answered it depends because if I'm asking somebody else about a case, I may very well be asking the parts of it which are public information. It's just, OK, this name rings a bell for you. What can you tell me about this case? It wouldn't necessarily be something that's confidential.

PEGGY CROSS-GOLDENBERG: So that is a great question. The question is basically, what if I'm just asking about the public information? I'm not asking for the confidential information. And I'm really glad you asked that, right? Because even if information is public in a case, right? It's still confidential client information in the sense that it's not a client confidence, right? It's not, excuse me (COUGHING). It's not something that you learn from your client, but it's information that you learned in the course of the representation.

And you still have an obligation to protect your client, whether you think of it as protecting their reputation or protecting them from further harm, right? And so even if someone could dig around and find out publicly available information, you still have an obligation to not hurt your client. And so you know, is there a line there? Yes, like you said, I represented them in a drunk driving case, that's already revealing information that's harmful to your former client's reputation.

I think that the better way to think about it is from a client centered sort of point of view, is that any information you have as the lawyer is something that, unless the client has authorized or impliedly authorized you to reveal it, you're supposed to keep close. And that includes their sentence information, right? They may have violated their probation, and that would be public because there would have been a court proceeding about it. But it's still going to hurt your client for you to go sharing that information. So it's just not information that you should probably share.

Now, again, it depends. He may permit it, and I don't think you're going to be brought up on disciplinary charges most likely if you discuss, you know, the publicly available, like say, sentence information, that sort of thing. But for the most part, you as the lawyer, the information you obtain in the course of your representation, you're supposed to hold close and you shouldn't be sharing, especially to the detriment of your client.

OK, it's 4:23. I just want to say a quick thing on conflicts, right? We might skip the next question, which is whether there's a conflict with your firm now suing her former client? But I want to say that if you look at the ABA Model Rules, comment two to rule 1.7, lays out the procedure for assessing, and potentially resolving conflicts of interest. And so that's where you want to look if a conflict arises, right?

You have to clearly identify the clients. You have to determine whether a conflict exists. Decide whether the representation may still be undertaken, despite the conflict. Meaning, if the conflict is consentable, and if the conflict is consentable, then consult with and obtain the informed consent of both clients. The rules define a conflict, right, as a significant risk that the representation will be materially limited by the responsibilities to another client, a former client, or a third party, or the lawyer's own interest, right? That's how a conflict of interest is described. And it's that risk, that's the conflict of interest, right?

So sometimes you hear people talk about actual conflicts and potential conflicts. There's really no such thing as actual or potential conflict, right? The potential for the conflict is the conflict of interest, right? The risk is the conflict of interest. And so it's at that stage that you need to be addressing it, right? And firms and lawyers, you know, we're responsible for having conflicts, checks, and procedures in place to hopefully ward off conflicts that blossom into actual impacted representation, right? Materially limited representation.

So in a situation like this, where you have a new lawyer joining the firm, right, it's unlikely that you're going to run, like, all of her hundreds of former public defender clients through your conflicts check. And the reality is, because it's not the same or substantially the same matter that she worked on, there's likely not going to be a problem with representation in a case like this.

But just note that even in a situation-- you know, I mean, one thing that I would think is much more likely to come up is where you have individuals who have had administrative proceedings sort of involving each other, right? So you may have an incarcerated individual at one institution who is seeking some sort of administrative remedy, and either a witness to the incident or to that lawsuit is a former client, or a potential client in another case. And so that's where you have to think about conflicts.

Let's see. Let's try to get through the last questions if we can. So now you filed the complaint, and you've emailed it to the prison's general counsel. She replies to your email, and she copies another lawyer on the email. She introduces that lawyer as the attorney for the individual defendants. That lawyer, Gibson, replies all to the email and she adds her clients, her three guards, email addresses to the cc field. And she tells you she'll accept service on the guard's behalf. So my question is, can you reply all to this email and attach a copy of the complaint? [INAUDIBLE]. The complaint is filed, if that matters.

OK, 29% say yes, 63% say no, and 8% say it depends. So this takes us back to rule 4.2 and 4.3, right? Which we discussed a little earlier, communications with represented persons. Now you know that these three guards are represented in this matter, right? Because the lawyer has just told you that. So you could not, in this instance, start an email chain, right? You couldn't just write an email to the lawyer and cc her clients. That you can't do.

You know, the point of the rule is to insulate individuals, to put their counsel between them and other conversations with other lawyers. So even though you're copying the lawyer at the same time, right, you need their prior consent in order to contact their clients. And so a simultaneous cc is not prior consent.

And the theory is that there's no telling, for example, how a client might respond to an email, right? Maybe their lawyer's unavailable, maybe their lawyer's on a plane. They can't get to them right away. They read the complaint, they say, you know, this is crazy. And they fire off an email response, right? Responding to the complaint and now they've made all these admissions, and it's going to hurt them in the litigation, right?

So without the prior consent of their lawyer, you can't do something like this. Now, arguably, by including them on an email chain that was definitely involving the complaint, their lawyer has impliedly given prior consent. And some of the considerations that go into whether a group response like this might be OK, or how the conversation was initiated, and also whether it's an adversarial situation. So you can imagine, say, a meeting in a case where there are multiple parties and multiple lawyers representing multiple people, and at the end of the meeting someone says like, I'll type up the notes and send them to everybody, right? And everybody says that's OK.

That's probably going to be OK even to include the clients on. Because everyone is sort of assenting to that course of action. That's very different than an adversarial situation where you would be emailing, you know, the defendant or the person that you're suing. So those two considerations, how the communication was initiated, whether it's adversarial, again, here it would seem that the attorney is inviting a reply, a reply all.

So I think probably in this circumstance you can reply all and send it. And you would be able to explain that you thought you had the prior consent of the lawyer, but I think probably the better-- because there's no need for you to send it to the individuals, right? So I think the more conservative, and probably safer course is just to delete them from the cc's. And you should, in any case, if there's a cc that you don't know, you don't recognize, and just be communicating with the lawyers. That's a little bit safer.

So one clock says we're a minute over, one clock says we're right on time. Can I take a question, or what?

BETSY GINSBERG: I think we should probably end it here, just because at PLI they seem to run the trains according to schedule. But I think Peggy has a minute, if anybody wants to come up and ask her a question.

PEGGY CROSS-GOLDENBERG: OK. Great, thank you all.



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