DC Bar to Capitulating Law Firms: FAFO (plus: Ethicking is Six! And other news)
Greetings, folks, and I know, I know, I have been absent long enough that readers may wonder if “she blogs frequently at ethicking.com” (which is in various forms of my biography) is an 8.4(c) issue. (If I had readers who noticed, anyway.) As before, actual work plus the state of affairs has made blogging a bit spotty.
Some short takes tonight:
The DC Bar Association has issued a banger of an opinion directed at attorneys and law firms who may have made deals with the federal government to try to ward off executive actions (which I first wrote about in March). My quick summary: Welcome to Conflictsville, population: you. Not only might you have created a conflict regarding each and every client and matter you have, or will have, with interests adverse to the federal government, the Calvinball nature of negotiating with said government may make these conflicts impossible to navigate or waive, and you may have ceded your professional judgment and you may have impermissibly restricted your right to practice in settlement of a controversy. Oops.
Every lawyer has some restrictions on dealing with press (namely, confidentiality and avoiding tainting a jury pool); prosecutors are even more limited. A case study in what not to do can be found in this Lawfare article in which interim U.S. Attorney for the Eastern District of Virginia, Lindsey Halligan, contacted journalist Anna Bower via Signal, primarily to criticize Bower’s coverage of Halligan’s prosecution of New York Attorney General Letitia James—and then, 33 hours after she started, she claimed that the whole thing was off the record, the whole time. Here’s a protip: There may be times when talking to the press is prudent and necessary, and some times when it makes sense to do so off the record, but you need to make sure in advance that the conversation is off the record. (Just like court.) And you still need your client’s informed consent to talk to a journalist about the representation, whether it’s on the record or not.
ICYMI, and ICYHaveASubscriptionAndCanGetPastThePaywall, I wrote a piece last month for Law360, expanding on a blog entry about whether attorneys should be disciplined for saying mean things about Charlie Kirk. (Short answer: No.)
This blog launched on October 24, 2019. Happy (slightly belated) sixth birthday, Ethicking! I hope you’re enjoying all-day kindergarten and learning how to ride a bike.
