I should tell the organization not to share the memo with anyone else, because he's not happy with the policy implications of the correct legal answer.

Annoying. Still, if the organization likes the policy implications, it llikely will do whatever it wants with the memo.

Yeah. Probono supervisor guy is still a weenie.

Probono supervisor guy is still a weenie.

Wasn't disputing that point--plainly he is a weenie; just trying to provide some silver lining.

Is probono supervisor guy's instruction ethical?

I'm not having a lucid moment - it's too early and I haven't had coffee - but what to do about the policy implications sounds like something that's wholly in the category 'things that only the client gets to decide.' I'd think you could advise the client about the possible consequences of sharing, but that anything soundling like telling the client what to do would be improper.

It may be small consolation, but IME Idealist has it right in 1. Information wants to be freeeeeee!

...or at the very least, spread among allies.

Information wants to be freeeeeee!

Rally at Courthouse Square at 1pm. I'll bring my collection of signs that say "FREE HUEY THE CHICAGO SEVEN THE SCOTTBORO BOYS THE LIZARDBREATH MEMO

Heh, just tell the organization that probono supervisor weenie said "I am to tell you not to share the memo because the policy implications are . . . ."

Is probono supervisor guy's instruction ethical?

I hope I'm right here, because I've already complied, but I don't see a problem with it. We don't have any power to compel obedience, and we haven't asked them to conceal the conclusions or the reasoning of the memo, just not to pass the document around (that is, supervisor man would like them not to say that BigLawFirm stands behind the legal conclusions of the memo; but presenting those conclusions as the advocacy organization's own is fine.)

But I may be missing an ethical issue.

8 seems right to me. A bad idea for other reasons, maybe, but not unethical.

Hmm. I'm not sure, I'm just chewing over the ethical question.

Assume that the client decides that the best way to achieve the client's goals is to buy a full page in the Times and reproduce the memo, including BLF letterhead. Supervisor is saying "please don't do that." I can imagine only two resons for Supervisor's request:

1. That the revelation will lead to political policy consequences that Supevisor doesn't like. That's a conflict between client's political interests and Supervisor's; or

2. Supervisor doesn't want BLF to appear to be supporting client's policy position, fearing damage to BLF's reputation. That's a conflict of interest, too.

Either way, to say 'this is my professional legal opinion but don't tell anyone I said so' seems like less than zealous advocacy, and less than the legal assistance towards reaching client's goals client should expect . Or maybe not.

Not my area of expertise, but I'm with Michael in thinking this seems like an improper request.

Either way, to say 'this is my professional legal opinion but don't tell anyone I said so' seems like less than zealous advocacy, and less than the legal assistance towards reaching client's goals client should expect . Or maybe not.

But, but, it's pro bono! They're not paying for it--they should be grateful for what they get, rather than expecting the firm to provide "zealous advocacy." I mean, c'mon. You get what you pay for.

Crap, now I'm troubled about this -- I just tried to come up with a reason that 10 didn't work for me, and I'm stuck on "It's pro-bono! If we weren't mealymouthed about it, we probably wouldn't do it at all." And I'm not 100% sure that cuts any ethical ice.

Heh, LB, pwned by the more cynical 12.

In seriousness, it kinda seems to me like having taken the task, the firm should be as committed to it as they would for a paying client. Would it be ethical to advise a paying client not to disclose work that had been done for any reason other than the client's own advantage?

Is there a conflict between two client's of the firms? If so, you need to address that by withdrawal or disclosure and consent.

FYI for the non-lawyers: you owe the same ethical duty to a client regardless of whether they are paying.

I will console myself with the fact that I sent the memo out with a cover email saying 'don't pass it around until we've fully considered the policy implications' not 'don't pass it around ever', which I think gives me cover until supervisor guy is back in the office to be asked about the ethical implications here. Dammit, I'm already worried about being a troublemaker for wanting to do politically undesirable probono; I sort of hate nagging the guy about whether he just told me to do something unethical.

Feh.

That's they're pro bono in no way affects your duty to them.

I'm not saying it's a clearly sanctionable breach of professional ethics (it's certainly not), just that it seems to me to be getting close to the wrong side of a fuzzy borderline. From the MA rules (which I know better than NY, obviously):

Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client.

For avoidance of doubt, impaired loyalty is not good.

15: No, no individualized conflict at all; more, to the extent that I understand his issues, an inchoate sense that our paying clients generally might be unhappy with the approach. (The specific legislation considered couldn't possibly, conceivably, under any circumstances, affect the business of any of our current clients; the concern is purely atmospheric.)

Crap, now I'm troubled about this -- I just tried to come up with a reason that 10 didn't work for me, and I'm stuck on "It's pro-bono! If we weren't mealymouthed about it, we probably wouldn't do it at all." And I'm not 100% sure that cuts any ethical ice.

The reason it's not unethical is not that it's pro bono (at least not directly). In 10 Michael hypothisizes a possible conflict--the opinion given to A conflicts with an ongoing representation of B (even in this situation, there is, I think, some question regarding the extent to which this is necessarily a problem). But you do not seem to say that this actually is the case. Sure, you can make up possible back stories where someone is acting unethically, but you have not done that. For whatever reason, you have asked the client not to make the memo public. Is the request binding on the client? From what you say, it is not. And if it were, it is not actually as unusual as it seems. Sometimes in corporate work law firms will provide advice to the client but might balk for whatever reason in providing a formal comfort letter to be provided to a third-party.

This seems like a stupid thing to do. You have agreed to help the client. You know they want to use your memo. It's prickish and looks weasely to say "here's our opinion, but please keep it between us, because while we believe it, we do not want anyone to know we hold that opinion." Implicit disassociating that way is a sizable insult to the client. But there is not a disciplinary rule preventing such conduct.

The citation to the obligation of zealous advocacy quite obviously does not apply when you are writing a privileged legal opinion to the client. It applies only when you are . . . well, acting as an advocate.

10

I can think of another reason, the conclusion only applies to the client's unusual specific fact situation and publishing the memo might cause others to assume the conclusion would apply to them when it doesn't.

And what about the whole practicing law without a license thing? Of course this is mostly guild mentality by lawyers but there are reasons to be cautious about appearing to offer legal advice if you are not a lawyer.

Suppose you write a will for a client. Can he include the will in an estate planning book without your permission?

19: That's the thing -- I'm getting myself puzzled with what 'zealous advocacy' means outside of a litigation or pre- or post- litigation situation. This situation is open-ended enough that it's hard to figure. I mean, Advocacy Organization is trying to pass legislation -- we have high powered lobbyists. But obviously, by doing some research for them, we haven't committed ourselves to sending our bigwigs up to Albany to make their legislation happen. If we haven't committed ourselves to that, I'm not sure why doing the research would commit us to not discouraging them from publicizing the research attached to our name.

20: I guess I could conceive of situations where that would be a concern, but not here -- it's a pretty general issue.

If we haven't committed ourselves to that, I'm not sure why doing the research would commit us to not discouraging them from publicizing the research attached to our name.

Exactly. You are only obligated to do what you signed up to do.

22- I don't think the obligation would necessarily be to do or not to do anything on behalf of the client in this case, as much perhaps as operate on a basis of full disclosure. If it's a personal/internal/ideological conflict or whatever that's prompting you to say you don't want the memo made public, at the least I would think you'd want to disclose that fact to the client. Otherwise, they will likely, and will have every right to, assume that your professional advice is all being solely offered with their best interests in mind.

switch solely and offered and you'll have something resembling an intelligible sentence.

Maybe your original note already made this clear. In which case, I'll back off.

Obviously, its pro bono status makes no difference. The duties are the same whether you're paid or not. But I'm not as troubled by this as some.

You aren't saying "don't use the reasoning" or any aspect of the memo, except the fact that it originates in your firm, correct? So the only question is whether they can in public attach your firm name to the memo itself.

It's not, as I understand it, a breach of the duty of zealous advocacy to qualify an opinion letter as only to be relied on by whoever hired you to opine, is it? I don't see this as having any difference from that.

The clearest way to express this as a conflict is this: You are already representing your client, and now you are asking the question "is it in my [firm's] interest to release this opinion, without regard to whether it is in the client's interest." Any time you ask a "my interest but not client's interest" question you are on dangerous ground and the question has to be answered no, I guess.

SO, my instincts say you're ok but the last para suggests maybe not... I'm still somewhat inclined to say you're ok.

26: Erm, clearish, maybe? Eh, I'll talk to supervisor guy and then clarify further on the next contact with the client.

I lot of us are pretty much anti-Bono, you know, and not just because he is Irish.

Can we even imagine what the world was like ante Bono?

Less Edgy, I'm led to believe.

Or maybe just not as Sonny.

Sorry, LB, I really hadn't meant to put you in a difficult position, nor did I mean to suggest that you were clearly violating a rule. It's clearly unclear. But let me throw in another question just because I like exploring these issues.

Both LB and Idealist have mentioned tht there's no way to compel the client to keep the memo secret. That's obviously true - yet also, perhaps, in some way, untrue.

I'm inferring that there's an unequal power relation; that BLF is holding the cards, that BLF can kiss client goodbye without penalty (even, perhaps, with relief) while client is in no position to walk down thee street and write a $Nx10^^6 check as a retainer to Other Big Law Firm.

Is superviser guy letting that power imbalance influence his decision, and if so, isn't that questionable?

Eh, the client has the same power to seek legal services elsewhere that any client does -- we don't have any special powers over them because we're working for free.

Is superviser guy letting that power imbalance influence his decision, and if so, isn't that questionable?

Part of the disconnect here is that when lawyers talk about legal ethics we typically are talking about a specific set of rules that may or may not look like what may be considered ethics to the philosophers among us.

On the payment point, the rules are pretty clear. In general (exceptions for court appointed criminal defense etc. and a few other things), if someone cannot pay, you do not have to represent them. And if you start representing someone and they cannot pay, you might have to get court permission if you are in a litigation, but in general you have no obligation to continue representing someone. Law firms are, of course, businesses. The rules of legal ethics recognize this.

34

I don't think that is quite right, if you are working for free and you know the client can't afford to pay for representation this does give you some leverage to deliver second rate service without the normal fear the client will go elsewhere.

Well, of course, for any pro bono client you're working for charity rather than gain, so if the client walks away you're materially better off. I'm still not seeing that fact as an ethical issue.

As long as you lawyerly types are all here, could you help illuminate this news tidbit for us laymen?

WASHINGTON - Monica Goodling, a senior Justice Department official involved in the firings of federal prosecutors, will refuse to answer questions at upcoming Senate hearings, citing Fifth Amendment protection against self-incrimination, her lawyer said Monday.

Wow, this obviously says a lot, but just what I'm not sure. At the minimum it seems that she's coming out and saying that what's being investigated is indeed foul play, or is that not right? Is she fishing for immunity? Is Gonzales feeling his gut drop to his ankles, or is he going bwaa-haa-hah?

33

"Both LB and Idealist have mentioned tht there's no way to compel the client to keep the memo secret. That's obviously true - yet also, perhaps, in some way, untrue."

Is it really obviously true? Can legal memoes be copyrighted? Would an agreement that legal advice not be disclosed to others be unenforceable? Weren't there some recent tax shelter cases in which professional advisors tried to keep their advice confidential?

We gave them a copy of the memo. While conceivably (and I'm stretching the word here) we could tell them them, as the copyright holders, that they weren't allowed to make copies of it, we certainly don't have any legal argument for keeping them from showing it to other people on our letterhead.

37

It isn't directly but it makes it difficult in practice to live up to an ethical obligation (should it exist) to treat paying and nonpaying clients equally. For that matter does anyone really expect a small client to get the the same service as a large client?

Work-for-hire? Don't the clients own the copyright to the memo?

Can legal memoes be copyrighted?

Theoretically, although I suppose one could get into a lively debate regarding whether it is a work for hire, and thus owned by the client. I would say not.

Any requirement to keep a memo confidential would have to be a matter of agreement with the client. Of course, in general, clients have a strong interest in keeping communications with their lawyers confidential, because if they disclose their lawyer's advice, they put themselves at risk of having to disclose all advice the yreceived on the subject matter if it were relevant to a lawsuit (although not much of a concern in this particular situation, probably).

If a law firm really did not want something disclosed, they simply would not write it down. It is a truism that patent lawyers only issue opinion letters saying that the client is not infringing someone else's patent. If the finding were contrary, there would be no opinion letter, the client would just be told.

if someone cannot pay, you do not have to represent them. And if you start representing someone and they cannot pay, you might have to get court permission if you are in a litigation, but in general you have no obligation to continue representing someone.

This misses this issue, I think. Of course you never have an obligation to do any additional work for a pro bono client beyond what you've agreed to do (which is the answer to LB's lobbyist problem in 22). Neither do you have such an obligation with a paying client (again, there's no difference between the two as far as ethics are concerned). But once you've accepted a client engagement, you have a duty to pursue that engagement fully and completely and blah blah blah, and not to let your own self-interest, or other conflicts-of-interest, interfere with that representation. And this is no way a duty that's limited to litigation. And instructing the client not to use the memo in a way that might be in their interest, when that instruction is being given on the basis of one's own conflicted interest, and especially without clear disclosure of that fact to the client, is again not what I would call a clearly sanctionable violation, but it seems to me to be walking very close to a very precarious line.

(And, it's unrelated, but you're absolutely wrong that you have "no obligation to continue" representing someone if they can't pay their bills. You have no obligation to take on new matters, and you can probably back away from substantial new work on existing matters, but you cannot just drop their work cold turkey. You have an obligation to assist them at least so far as to facilitate an orderly transition of their representation (even if they might not have subsequent representation lined up, since they're not paying their bills and all)).

Again I'm speaking mostly MA here, but I can't imagine NY is very different.

"While conceivably (and I'm stretching the word here) we could tell them them, as the copyright holders, that they weren't allowed to make copies of it"

Obviously I cannot comment about your jurisdiction, but, in my jurisdiction, the client owns that memo, not you.

They hired you to perform that service for them. They own it.

43

"Theoretically, although I suppose one could get into a lively debate regarding whether it is a work for hire, and thus owned by the client. I would say not."

It is a work for hire but by the law firm not by the client.

44: And there the question is what we agreed to do. I haven't seen an engagement letter here -- I don't know if there was one -- but it seems perfectly plausible to me that our agreement was to give them the benefit of our legal research, not of our firm's name to be used in lobbying, if you see the distinction. (And I don't think 'zealous representation' necessarily implies 'an expansive interpretation of the scope of the work to be done'.)

And, it's unrelated, but you're absolutely wrong that you have "no obligation to continue" representing someone if they can't pay their bills. You have no obligation to take on new matters, and you can probably back away from substantial new work on existing matters, but you cannot just drop their work cold turkey.

Come on, 'absolutely wrong' is an overstatement. "[I]n general you have no obligation to continue representing someone," doesn't imply a claim that you're allowed to set their files on fire -- you have to tie off loose ends and send the client's stuff where they want it to go, but you don't have to keep working for free, usually, which is all Ideal said.

45: Sounds right -- I don't know jack, professionally, about copyright law. All I meant to say was that in the absolute strongest possible copyright claim, that wouldn't require keeping the memo secret.

In NY, does the client own the file? In VA, the file belongs to the client. If they ask for it, you have to give it to them, but you are allowed to make copies of it. (At your expense)

The client certainly owns all of the final work-product (copies of pleadings filed, letters sent, that sort of thing). I think there's some argument about ownership of internal drafts, memos, and so forth.

35: You have no obligation to continue representing someone

True. One may withdraw, as long as it doesn't leave the client in the lurch (Model rule 116.D) However, if one doesn't withdraw, consider:

"In representing a client, a lawyer shall exercise independent professional judgment and render candid advice" (ABA model rule 201, adopted in my jurisdiction. I dunno about NY)

And: " ... a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's repsonsibilities to another client or to a third person, or by the lawyer's own insterest, unless: (1)... not adversely affectd; and (2) the client consents after consultation ..." (Rule 107)
On preview: I see that once again I'm way slower than everyone, and Brock hit most of these points.

As to "our agreement was to give them the benefit of our legal research" - yes. But what would the client's reasonable understanding of the bargain have been? I'd suggest it's possible that they expected to be able to tell people "well, it's not like we're relying on Harriet Miers or Alberto Gonzales - BLF gave us this opinion"

48

Not the existence of the memo but including a copy in a full page newspaper ad would not be allowed under copyright law.

But what would the client's reasonable understanding of the bargain have been?

I don't think this matters -- in fact, I'm feeling (ethically) much better about the situation now. (I still think it's stupid and it sucks, but I'm not worried anymore.) The prior agreement doesn't matter -- the question is whether the client prefers us to withdraw completely (that is, not to turn over the research at all), which we'd be ethically fine with doing, or to circumscribe the scope of our representation to that which we can do zealously -- provide legal research, but not the credibility of our name.

It would have been, perhaps, formally preferable to ask them "Would you prefer to go elsewhere for your research, or would you prefer to see the memo, but not distribute it under our name?" before sending the memo, but considering that we can't bind them to not distributing it, I don't think the distinction between the two situations is important.

LB, I'm not at all trying to say you've done anything unethical (in the meaningful rather than the technical sense of the word). I'm not even trying to say your reasoning in 44 is bad. It isn't; it's certainly one reasonable way to frame the issue, and it's probably even correct. All I'm trying to impress upon you is that, generally, (i) undisclosed conflicts of interest are bad, (ii) altering the advice you give to a client because of your own conflicted interests is worse, and (iii) doing all that without clearly disclosing it to the client is the worst of all. I'm sure you know this, and I'm not interested in hearing arguments for why your case is different (which, as I said, are probably correct). You're just very close to a line, and the line itself is pretty fuzzy, and you ought to be mindful of that.

And Idealist's implicit claim was that if a client's payment bill was three or more business days overdue, you had a automatic right to shred every file in your possession and stop answering their phone calls. To say this is "absolutely wrong" is not an overstatement.

"Not the existence of the memo but including a copy in a full page newspaper ad would not be allowed under copyright law."

I would be surprised if this was accurate. Are you speaking as someone who knows something about copyright law?

You're misreading Ideal completely -- I know what he knows on this issue, and he wouldn't dream of making the implicit claim you describe.

On the larger issue, what makes this okay, and not, now that I've worked through it, particularly worrisome at all, is that there's a very clear difference between a situation in which you have agreed to do X for a client, and due to some form of conflict you do X with less than your whole professional skill (bad! unethical!) and a situation in which you agree with the client to do Y, but not Z, even though the client would have liked you to do Z (not a problem at all). And I'm much closer to the second situation than the first.

The client owns the file in most states, but the lawyer has a charging lien against it-- that is, the lawyer can hold it against payment of the fee. I've litigated both sides of the what-does-the-client-own issue.

I'm pretty sure most lawyers do not think they are doing work-for-hire-- they think that the expression, etc. is still theirs. As independent contractors who haven't expressly agreed to give up copyright, I'd think that is probably right, but that's close to a guess. Interesting and probably totally academic question.

a situation in which you agree with the client to do Y, but not Z, even though the client would have liked you to do Z

Well, that's the question I was trying to ask - what were the terms of the undertaking? What was the agreement? I would suggest that in a possible disagreement between a lawyer and their client as to the limits on the agreed representation a court might resolve any ambiguity in favor of the client. That's why I asked what the client's reasonable understanding was - and why I'd be hesitant about trying to rewrite the agreement after partial performance, especially considering the (posssible) power imbalance.

In other words - what BL said - plus, at this point, I'd think it a real good idea to disclose the possible potential partial maybe conflict of interest to the client, in the interest of candidness.

In NY, does the client own the file?

Not exactly. If the client does not pay your bill, you have a right to put a lien on the file and not turn it over to the client or successor counsel.

And Idealist's implicit claim was that if a client's payment bill was three or more business days overdue, you had a automatic right to shred every file in your possession and stop answering their phone calls. To say this is "absolutely wrong" is not an overstatement.

Neither explicit nor implicit. That is just silly. You have duties in New York to a client who has stopped paying its bill, but not a lot. As I note above, if they do not pay, you do not have to hand over the files. You do have to facilitate--excepting that--an orderly transition. And if you are in litigation and they do not consent, you have to move for permission to withdraw, but the law in New York is clear that you have every right to if you are not getting paid.

56- It's not clear to me that the client realizes you agreed to do Y, but not Z. I think I said way, way upthread that, if they do, there's no problem. But (based only on the facts I know) it seems the client might view Z as a naturally part and parcel of Y. It's not clear to me that *you* wouldn't have viewed Z as a naturally part and parcel of Y, if you didn't have a conflict of interest that's causing you to separate the two. Which is what's problematic. And all I've said all along is that the conflict and the separation ought to be clearly explained to the client.

But you're obiously a lot closer to the facts here than I am, and you're comfortable with it, so I'm not going to push the point.

And if you didn't realize that the last paragraph of 54 was in jest, I suspect you've probably misinterpreted half or more of all the comments I've ever left on this site. (I find many people often don't pick up on my humor. I'm tempted to call it "subtle" but I realize "unfunny" might be a better descriptor.)

unfunny

That is exactly how I would describe a claim that I would do as you suggested to a client, yes.

I would suggest that in a possible disagreement between a lawyer and their client as to the limits on the agreed representation a court might resolve any ambiguity in favor of the client.

But under these circumstances (discovery of a conflict-ish situation after the commencement of the representation) the lawyer would be perfectly within their rights to withdraw (in my case, tell them we couldn't do the memo at all). Renegotiating the scope of the representation rather than withdrawing is therefore not improper.

(And this was all done terribly informally. We do lots of work for Advocacy Organization, largely under its hat as Social Services Provider) -- the agreement was almost certainly a phone call to Supervisor Guy asking whether we could look into this issue for them -- nothing more elaborate or specific.)

55

In general you can't publish something (as in a newspaper ad) if you don't own the copyright (or have the the permission of the copyright holder). Unless there are special rules for legal advice the client would not appear (absent a specific agreement to the contrary) to own the copyright to or have permission to publish a legal memo from an outside law firm. This is my layman's understanding, I am not a lawyer, this is not legal advice.

And if you didn't realize that the last paragraph of 54 was in jest, I suspect you've probably misinterpreted half or more of all the comments I've ever left on this site. (I find many people often don't pick up on my humor. I'm tempted to call it "subtle" but I realize "unfunny" might be a better descriptor.)

Erm, in context I missed it completely.

But you're obiously a lot closer to the facts here than I am, and you're comfortable with it, so I'm not going to push the point.

Man, I'd hate to argue with you when you were.

In general you can't publish something (as in a newspaper ad) if you don't own the copyright (or have the the permission of the copyright holder).

No one is disputing this. The question, which is mostly theoretical in real life, is who holds the copyright to the memo. As I wrote above, in reality it would be exceptionally unlikely for a client to publish such a memo since doing potentially compromises their rights. Further, if a client did so, it is hard to imagine the law firm that would sue over it.

Off topic, but this
could be a big frigging deal.

62: you seem to be assuming that if one has a right to withdraw, one necessarily has the lesser included right to renegotiate. I think I've been asserting positions more strongly than they deserve, and I'm not sure of this position either, but I don't think you're right.

Any time you are negotiating with a client there's an obvious conflict of interest. That's why business dealings with clients are always dangerous. Considering that you've already established a lawyer-client relation there's that pesky duty of candidness and independent judgment and disclosure. You can't negotiate at arm's length any more.

65

I believe (absent a specific agreement to the contrary) that the law firm owns the copyright.

64- well, as I said, it's probably a recurring miscommunication. Generally if I say something that's patently absurd, I mean it as a joke.

67: I'm not assuming that a firm necessarily has the included right to renegotiate, but under the given circumstances it seems pretty clear that we actually have that right -- any other outcome looks absurd.

69: Where I lost you was on the smooth transition from actually disagreeing with Ideal in 44, to hyperbolically disagreeing with him for comic effect in 54. I'll work on my subtlety.

69

Very funny.

But under these circumstances (discovery of a conflict-ish situation after the commencement of the representation) the lawyer would be perfectly within their rights to withdraw (in my case, tell them we couldn't do the memo at all). Renegotiating the scope of the representation rather than withdrawing is therefore not improper.

Again, I really want to pull away from this discussion, but you're to sensible for this: you could withdraw from a client representation if a conflict developed after commencement if you explained to the client the fact of the conflict and your inability to continue the representation. Once more, I think all anyone's objecting to is your (apparant) failure to disclose the conflict to the client. You don't get to unilaterally renegotiate the scope of the relationship, without telling the client about it.

And you claim seems in part to rest on the idea that you could just up and end the representation whenever you wiished. Would you really think yourself within your rights simply to withhold the completed memo from the client in the absence of any conflict whatsoever? Just because you decided you didn't want to send it to them? (Bearing in mind that your professional obligations are the same, do you think you possess that same right with a paying client?)

I think a client who engages a lawyer to write a memo owns the memo. Even if the lawyer has agreed to waive the fee.

(My knowledge of copyright law is next to nothing, though.)

And I agree with the opening sentence of the middle paragraph of 72.

You don't get to unilaterally renegotiate the scope of the relationship, without telling the client about it.

Yeah, see my 28. I'm not sure that my last email was clear enough that we're asking them to keep the memo on the D.L. for our benefit rather than theirs -- it's probably clear, given what I said and that there's no way to read it as being for their benefit, but nonetheless I'm going to reclarify. (And, you know, stated my intention to do so quite a while back. I've been assuming that you're arguing about the situation as I've described it.)

And to the second paragraph, we're not in the absence of any conflict whatsoever, are we. We're in the presence of a perceived conflict discovered in the course of the representation (I'm guessing Supervisor Guy didn't think of it, because he believed the research was going to come out the other way, which wouldn't have been problematic), and you are allowed to withdraw upon discovering a conflict with your own interests.

Jesus Christ is Supervisor Guy a weenie.

looks that way from here....

Do tell?

76: Dumped the ethical considerations back on your shoulders?

(I think you have it right above, BTW: you're providing legal analysis, not lobbying support, and you're within your rights to ask them not to use your memo (and your letterhead) as a lobbying tool.)

I brought up the ethical issues (as requiring active disclosure). His response: Oh, that's not a conflict, we'd just be worried about making bad law for our other clients; and anyway we can get around it by rewriting the memo so that it's clear that the conclusions apply narrowly to only the proposed legislation. That is a conflict, and the conclusions don't apply narrowly.

I remained politely disagreeable -- we've got a call with the client later on, and once we're all on the phone, if he asks them not to distribute the memo, I'm going to pipe up with our clearly stated reasons -- that we're narrowing the scope of our representation because of a conflict with our perception of our other clients' interests.

And I'm certainly not rewriting the memo to say something there isn't law to support.

Uggh, the "we're too big and reputable to be unethical" approach.

80: good for you, LB

Oh, this is small potatoes, I'm not being notably brave or anything. And I'm sure SG would be taking the ethical issue more seriously if it were higher stakes.

I still think the client owns the memo. Obviously, how big a deal the authorship of it is will depend on the circumstances. I imagine the following:

Advocacy Org: Hey, that bill we want is perfectly legal, and consistent with statute X.

Important Legislative Staffer: Says who?

AO: My excellent lawyer at Big Firm.

ILS: Big Firm says this is OK? Well then, what's that conclusion again?

AO: (Thinking) I'm sure happy to have gotten that clever lawyer from well known Big Firm to do this analysis for me, because since most people in the legislative process aren't going to examine the conclusions of the memo carefully, simply dropping the Big Firm name will be enough to give my position credibility. . . .

I also think that the client is likely sophisticated enough to see that a narrower version of the memo -- one that says it's ok to do what they want, but goes no further (treating the area beyond the boundaries as unexplored territory) might well be useful in the lobbying context, as well as for your management's view. Look at it this way: if the broader application (not necessary to acheive client objectives) might be offensive to some of Big Firm's client's sensibilities, it's quite likely to be offensive to some legislators' sensibilities, and for the same reasons.

The memo doesn't have to say that at the edge of the earth there are dragons. It can as well say that it is only concerned with that portion of the earth visible from some particular point.

So I wonder if it isn't a good idea to consider re-writing the memo as a way of furthering the client's objectives.

The memo doesn't have to say that at the edge of the earth there are dragons. It can as well say that it is only concerned with that portion of the earth visible from some particular point.

The problem is that there's nothing in the precedent with any specific application to our legislation at all. We'd like to do X; precedent says that laws doing X are perfectly conventional in contexts Y and Z, but we're not in Y or Z. Precedent further says that while doing X is unconventional and disfavored out of those contexts, so ambiguous statutes will be read as not having meant to do X, there aren't grounds to strike a statute down for doing X. There's no way to read the precedent as saying 'You can do X in the context of this law, but it's unsettled whether you can do it in other contexts'; all we've got is law saying you can straight up do it, without restriction.

Note to self: if I ever need a lawyer, hire Brock rather than Charlie.

86 gets it completely wrong. No offense to Brock, but Charley's at least as much on the side of the angels and more practical about how LB can best serve the client's objectives.

Ah, no. Charley was talking about a way to sidestep the conflict without impacting anyone's interests, which is absolutely unexceptionable -- it doesn't work here, but under slightly different conditions it might. But what he was saying wasn't even a little shady, at all, remotely.

88 to 86, and I fully agree with 87. Charley's strategy really would often work fine, and be an excellent thing to do -- I just can't figure how to work it in this case.

87: I was being a li'l facetious. Except for being really impressed by Brock's firmness (ATM) on the issue of one's duty to a client being one's duty to a client, regardless of the client's power, wealth, or the size of his case. Which I hope any professional I ever hire believes in as strongly as he does.

But of course, no offense meant to Charlie at all. Shoulda kept it at "hire Brock" and left off the latter part. Sorry.

Bad topic for facetiousness, particularly considering that Charley's got his real name hanging out all over the place.

85 -- X (the action the client wants to take) has a context. The client wants to do X is a situation where A, B, and C all apply. There's nothing wrong, it seems to me, with a memo that says that X when A, B, and C apply is OK. This doesn't say or even imply that X without A, B, and C is impermissible (which, as I understand your research, is incorrect, but also inconvenient).

The client doesn't need/want the answer to the question whether X is OK in the absence of A, B, and C. Why insist on giving it to them? Am I totally off-base in thinking that the same factors that motivate your SG and his perception of your clients will also affect legislators?

86 -- Heh. I don't think my advice and Brock's particularly conflict, but may have skimmed a little too briefly. I certainly think the client ought to be informed about why the memo would be recast.

The thing is that I've got no support for X that rests on any specific circumstance about our situation. I can say 'X is okay when A, B, and C', but I can only support it by saying 'X has never been found not to be okay -- it seems to always be okay'. I haven't got any support for 'X is okay' that's less than totally general; nothing that applies to our specific facts. I have to mischaracterize the precedent to imply that our reasoning for saying 'X is okay' wouldn't apply to any other situation you could think of. So to rewrite the memo as you suggest requires that I make up law -- I could tweak the intro to assert that I'm talking about the specific situation, but the argument is all as general as anything could be.

92: True. Feel free to redact if you like.

the issue of one's duty to a client being one's duty to a client, regardless of the client's power, wealth, or the size of his case. Which I hope any professional I ever hire believes in as strongly as he does.

The thing is that lawyers who get on their high horses about always doing the right thing regardless of consequences often end up being shitty lawyers. That's not always true, and I don't at all mean to suggest anything negative about Brock, but looking for workarounds that solve the client's problem while sidestepping difficult issues is an important and honorable part of what good lawyers do.

Oh yes; I'm extremely grateful to the lawyers I talked to during the PaulD/gnan thing who stayed calm and advised me how to, as one person put it, "just make it go away."

So to rewrite the memo as you suggest requires that I make up law

You've misunderstood me.

Question Presented: Is X OK when ABC?

Answer: Yes.

Smith v. Jones -- which arose in circumstances DEF -- gives no reason to believe that A, B, or C would in any way make X unlawful. The same applies to Green v. Red, which arose from facts GHI. The Statute of Wills, enacted in the reign of Henry VIII, does not preclude X in the circumstances of AB or C. Neither does the Statute of Uses. There's nothing in the nature of ABC which dictates that, as a matter of public policy, X ought not be permitted in those circumstances.

What law have I made up?

Now if you were going for oral argument, some smart-ass justice is sure to catch you out: doesn't, Ms. Breath, your argument imply X in all circumstances, and isn't that the very end of civilization as we know it?

Well your honor, the record is quite clear that A, B and C are present in this case, and

Answer the question, dammit

I am always amazed at how nonlawyers see arguing loudly to mean arguing effectively.

"wow, that lawyer really fought for their client!"

Uh, didnt you see that they lost?

See, this is why Charley is the kind of guy you need. We should all be extra-nice to him so he'll still be around when we need to get Ogged out of Guantanamo.

ogged?

I'm worried about us WASPS.

No, I think we get sent to the naval brig in Charleston.

90

In the real world bigger clients get better service. If you expect otherwise you are likely to make suboptimal hiring decisions.

I should have said I'd never hire Shearer, but thankfully he's not a lawyer.

94

I thought you said X is not ok when it is not explicitly allowed, so X is not always ok.

As long as the FBI doesnt screw up and mistake fingerprints on a bomb for your's, you should be ok.

I wouldn't say that bigger clients get better service. Not at all.

This doesn't say or even imply that X without A, B, and C is impermissible.

Is this the case in law? It isn't always true in ordinary conversation. e.g., "When is school open?" "Monday through Friday." implies that it's not open on Saturdays and Sundays. It seems that a lot will depend on how the brief is written.

Another pet peeve:
Clients who say "You are supposed to believe everything I say!"

No, I am supposed to get you the best result possible. Sometimes/often, that means explain how full of crap your position is.

98: I understood you, and maybe I'm just being stubborn because SG put my back up, but I can't make it work. The problem is that X is intuitively a problem; it's surprising for it to be broadly permissible. So 'okay under facts GHI' and 'okay under facts JKL' aren't going to be convincing support for 'okay under our facts' unless I can accompany them with 'in fact, there are no cases that find X not okay -- cases with qualms about it, sure, but none that overturn a statute on that basis'. And then the cat is out of the bag.

109 -- With a memo, you get to write the question and the answer. And (in consultation with the client) it may be possible to reframe the question in plenty of cases. Is school open on Tuesday? Yes might well be fine for someone who doesn't need for the lawyer to tell them whether school is open on Friday, or Sunday.

111 -- Obviously, LB's problem is not one of those cases where the question can be reframed enough to limit the answer acceptably.

In that case, I'm actually more of a hardliner on this thing than Brock, in that I'm not sure I'm willing to recognize the existence of a conflict here. It seems that they're choosing between what the correct answer is when the client asked 'what is the law' and what the firm wishes the answer had been -- not for any litigation Big Firm is itself engaging in, or because of an actual positional conflict between this client and another client, but because Big Firm doesn't want to be associated with a particular, correct view of the law.

I'd freely use the word 'weenie' for someone who makes the obviously wrong choice on this one. (On my scale of insults, this is much milder than 'they should take down their signs, close the doors, and go home').

should take down their signs, close the doors, and go home

I usually use this expression with my firm: 'if we can't get this [task accomplished] we should just . . .'