Tuesday, December 26, 2017

The SG’s Empty Ethics Case Against Jane Doe’s Lawyers

David Luban

A few days ago, Solicitor-General Noel Francisco submitted a Reply Brief for Petitioners in Hargan v. Garza, a case in which the government fought against releasing a pregnant teenager (“Jane Doe”) from immigration detention so she could have an abortion. The government lost in an en banc opinion by the D.C. Circuit Court of Appeals, and she had the abortion, as was her constitutional right.

The government wants the Supreme Court to grant certiorari and vacate the Court of Appeals decision, on the remarkable ground that Jane Doe’s lawyers, including ACLU counsel, behaved unethically by not telling DOJ when she would have the abortion. As a result, the abortion took place without DOJ filing an emergency motion for a stay. The government also wants the Court to take disciplinary action against Jane Doe’s counsel. My question in this post: how good are the SG’s ethics arguments? And my answer is: not good at all. Giving the government confidential information about the timing of Jane Doe's abortion would have been the real ethics violation.

The factual background

A bit of factual background: under the laws of Texas, where Jane Doe was in custody, women seeking abortions must be counseled at least 24 hours in advance of the procedure by the same physician who would perform it. Jane Doe received counseling, but the physician who counseled her (the “first doctor”) was initially unavailable the day after the Court of Appeals issued its order that she be allowed to proceed. On the evening of Tuesday, October 24, Doe went to the clinic to obtain counseling again, from a second doctor.  When the second doctor was not available at the clinic, one of Doe’s representatives appointed by the Texas courts informed government counsel that Doe had rescheduled her appointment at the clinic for the next morning (Wednesday the 25th) at 7:30 a.m., and that the abortion would take place the day after that – Thursday morning the 26th.   At that time, the attorney ad litem believed that fact to be true. 

The SG’s argument depends upon what happened a few hours later.  Doe’s lawyer learned, later that night, that the first doctor might be available, after all, and they moved up the next day’s appointment to 4:15 a.m.  As Marty Lederman explained in a recent post, at 9:30 p.m. on the 24th, Doe’s attorney ad litem emailed the Texas shelter and the AUSA to inform them of the new 4:15 appointment time—a step that was necessary in order to inform the shelter employees of when they had to allow Doe’s transport to the clinic, regardless of whether that appointment would be for counseling with the second doctor or an abortion with the first.  The attorney ad litem’s e-mail did not specifically mention that the new appointment might be with Doe’s previous doctor (something that was not yet confirmed), nor that Doe might obtain an abortion at that appointment if the first doctor were able to attend.  Doe’s counsel had not promised to update the government on when the abortion would take place – they said only that “as soon as we understand the clinic’s schedule tomorrow we’ll let you know.” (Here, p. 13.)  Even so, and as the SG has acknowledged, the unusual time of the rescheduled appointment naturally “caused shelter staff to wonder later that night whether the nature of the appointment also might have changed.” 

Then, sometime soon after midnight on the 25th, Doe and her representatives confirmed that the original doctor could be present at 4:15, and could perform the abortion that morning—but they did not tell the government of this fact, which the government only learned three or four hours later, when Doe arrived at the clinic.  The SG’s argument is, in effect, that these few hours of silence, very early on Wednesday the 25th, amounted to an unethical “misrepresentation” by omission, tantamount to affirmatively lying about the purpose of the visit. The government lawyers relied on this supposed “misrepresentation,” and failed to apply for an emergency stay, even though there was already reason for the government to suspect, as the shelter staff did, that the 4:15 appointment might be for an abortion procedure.

Confidentiality 101

As I argued in an op-ed in The Hill,  the failure of Jane Doe’s counsel to inform the government of the fact that the 4:15 appointment would be for an abortion was not unethical. Just the opposite is the case: it would have been unethical for counsel to reveal confidential client information to the adversary, who would then likely use it to harm their client’s interests. (I should note that in its brief in opposition to the government’s petition, Garza’s counsel cited my op-ed – page 31, footnote 18.) Her counsel couldn’t affirmatively lie to the government about the purpose of the accelerated doctor’s visit (and they didn’t), but revealing it would have been an egregious violation of their duty of confidentiality. In this case, the revelation would be particularly damaging – it might have made it impossible for her to get the abortion she wanted, and that was her constitutional right. That’s because at the time of her abortion, she was 16 weeks pregnant, and in Texas abortion is illegal after week 20. The government’s strategy was obviously to delay the abortion for at least the time that it would take to have the case resolved by the Supreme Court.

To be clear: the information about the purpose of her doctor’s visit would be protected by the confidentiality rule even if revealing it did not threaten Jane Doe’s interests. This is common sense: a major policy underlying confidentiality is to protect client privacy. Partly for that reason, the Model Rules defines confidential information in the broadest possible terms: “information relating to the representation of the client” (MR 1.6). This broad protection of confidentiality is common to all states. The Texas rules – governing Jane Doe’s attorney ad litem – clarify that “confidences” includes both privileged information and “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client” (Texas Disciplinary Rule 1.05(a)). A lawyer must not reveal confidences to anyone “other than the client, the client's representatives, or the members, associates, or employees of the lawyer's law firm” and “shall not knowingly use confidential information to the disadvantage of the client unless the client consents after consultation” (Texas Disciplinary Rule 1.05(b)(1) and (2)).

The same with the D.C. Rules of Professional Conduct, with a minor variation in wording: “confidences” means privileged information, “secrets” are “other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client” – and both are protected. (D.C. Rules of Professional Conduct 1.6(a) and (b)). (The “confidences and secrets” terminology is a holdover from the Model Rules’ predecessor, the 1969 Model Code of Professional Responsibility.) The import of all these rules is the same: if you learned the information while representing the client, and it pertains to the representation, it is confidential.

The SG's argument: misrepresentation by omission

The SG argues that failure to reveal confidential information about the changed purpose of her doctor’s appoint was an unethical “misrepresentation by omission.” The argument depends upon an awkward admixture of one rule of the Model Rules of Professional Conduct—Rule 8.4(c)—with a comment related to another Model Rule, Rule 4.1(a):

Rule 4.1 provides that, “[i]n the course of representing a client a lawyer shall not knowingly * * * make a false statement of material fact or law to a third person,” Model Rules of Prof’l Conduct R. 4.1 (2017), and shall not, at any time, “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” Model Rules of Prof’l Conduct R. 8.4(c) (2017). Although a lawyer “generally has no affirmative duty to inform an opposing party of relevant facts,” misrepresentations can occur through “omissions that are the equivalent of affirmative false statements.” Model Rules of Prof’l Conduct R. 4.1 cmt. 1 (2017). Even when a lawyer makes a representation he reasonably believes is true when made, an “obligation to disclose * * * ordinarily arises” if the lawyer subsequently discovers the statement to be false. Restatement (Third) of the Law Governing Lawyers § 98 cmt. d (1998). Respondent points to no legitimate reason why these basic principles should not apply here.

On this view, the “representation” that the attorney ad litem made, reasonably believing it to be true, was that the abortion would occur on Thursday the 26th.  And the “discovery” that that would no longer be the case occurred shortly after midnight on the 25th.  Was this, in the words of the ABA’s (non-binding) comment to Model Rule 4.1(a), a “misrepresentation” by an “omission” that was “the equivalent of [an] affirmative false statement[]”?

Notice that the comment says only that omissions can be the equivalent of affirmative false statements.  It does not, however, identify which omissions those are. Nor does it explain what a lawyer should do if the information in the omission is confidential. In order to understand the application of the comment, it's important to look at the other half of Rule 4.1—Rule 4.1(b), which the Solicitor General fails to cite:

In the course of representing a client, a lawyer shall not knowingly . . . (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Two things about this rule are noteworthy.  First, it prohibits failing to disclose a material fact only when, at a minimum, such a failure would assist the client’s “criminal or fraudulent act.” Obviously, then, Rule 4.1(b) has nothing to do with what happened in the Jane Doe case, because she was not engaged in any criminal or fraudulent activity—she was merely exercising her constitutional right to an abortion.

Second, even as so limited—to cases, unlike this one, involving the client’s criminal or fraudulent activity—a failure to disclose is still required, if the “disclosure is prohibited by Rule 1.6.”  Model Rule 1.6 establishes the duty of confidentiality.  Thus, even if a client is committing a crime or fraud, her lawyers cannot divulge information protected by Rule 1.6. It would be absurd, then, to suppose that lawyers can, let alone that they must, divulge a crucial client confidence when their client’s conduct is entirely lawful. If confidentiality limits disclosure when the client is committing a crime or fraud, it plainly does so when the client’s conduct is blameless.

The SG quotes a standard treatise on the law of lawyering, which says that the duty of confidentiality is not absolute. Of course confidentiality isn’t absolute – the rule (MR 1.6) has exceptions, which every law student is expected to learn for the bar exam. For example, if a client’s crime or fraud will cause serious bodily or financial injury, lawyers are permitted (not required) to reveal client confidences. But none of the exceptions applies in Jane Doe’s case. The SG doesn’t quote or cite the actual confidentiality rule; it isn’t hard to guess why.

The Restatement of the Law Governing Lawyers

To support the charge of misrepresentation by omission, the SG also cites the Restatement (Third) of the Law Governing Lawyers. According to the Restatement, “A lawyer who has made a representation on behalf of a client reasonably believing it true when made may subsequently come to know of its falsity. An obligation to disclose before consummation of the transaction ordinarily arises, unless the lawyer takes other corrective action.” (§98, comment d) This sounds like clear confirmation of the SG's argument.

Notice, however, the words “before consummation of the transaction.” They make it clear that this comment is about obligations to disclose in the context of entering into business transactions, not adversarial litigation. The rest of the comment – which the SG doesn’t mention – makes that clear: it refers readers to the Restatements of Agency and Contract, contexts where it’s illegal to consummate deals based on undisclosed material facts.

The same comment to §98 in the Restatement of the Law Governing Lawyers continues: “Disclosure, being required by law (see §63), is not prohibited by the general rule of confidentiality.” Section 63, which this sentence cross-references, indeed says that “a lawyer may use or disclose confidential client information when required by law.” This makes it crystal clear that the “obligation to disclose” that the SG quotes only applies to disclosures required by some other law (such as the law of contracts). Disclosure may be required by law in business transactions – but it obviously is not required in adversarial litigation. In litigation, lawyers are obligated to disclose confidences to the adversary only when other law or a valid court order compels them to do so (as in the discovery process). (Rule 1.6(b)(6))

Recognizing that fraudulent business transactions are the primary context for doctrines of misrepresentation by omission helps us better understand the comment to Rule 4.1 – and to see how little it has to do with Jane Doe’s case. The 1983 Model Rules and their comments were completed while Big Law was reeling from two recent scandals (here and here) in which lawyers watched their clients commit extravagant financial frauds but did and said nothing; one law firm paid $10 million in a civil settlement. Post-scandal, the question of how lawyers can disentangle themselves from client frauds without violating confidentiality preoccupied the drafters, especially Geoffrey Hazard, Jr., the reporter who drafted the Model Rules. (Here and here.) The Restatement's references to agency and contract law, and to disclosures required by law make explicit what the drafting history confirms: that the comment to Rule 4.1 is about disentangling lawyers from fraudulent transactions. The Restatement section from which the SG selectively quotes actually harms his case rather than helping it, because it makes clear that it pertains only to disclosures required by other law. 

That is not Jane Doe's case. Nothing in the Model Rules or its history suggests that the rules require advocates in the midst of contentious litigation to correct faulty inferences their adversary draws from things the lawyer has not said. (One might add: this is doubly true when the client is doing nothing fraudulent, triply true when the confidential information concerns something as personal as a medical procedure, and quadruply true when the client is a vulnerable minor in government custody.)

The Court's own disciplinary authority

The SG also calls on the Supreme Court to discipline Jane Doe’s counsel under its own rules. Rule 8.2 permits the Court to “take any appropriate disciplinary action against any attorney who is admitted to practice before it for conduct unbecoming a member of the Bar.” But how can fulfilling the ethical obligation of confidentiality be “conduct unbecoming a member of the Bar”? On the contrary: violating the confidentiality rule would be conduct unbecoming a member of the Bar. Ironically, it’s an ethics violation to “knowingly induce” other lawyers to violate the ethics rules – which seems to be what the SG is asking the Court to do through the cudgel of its disciplinary power.

This past week, we witnessed government lawyers trying again to stop two undocumented teenagers (one of whom was pregnant from a rape) from obtaining abortions, this time on the ground that it is not in their own best interest – a mind-boggling argument Marty blogged about here and here. They failed. The SG’s rather desperate effort to vacate the Court of Appeals decision in Hargan v. Garza on specious ethical grounds should fail as well.

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