Transitioning between the Public and Private Bar: Ethical Dilemma? Caroline P. Hay Attorney-at-Law Saturday November 18, 2017 This focus of this presentation is hopefully pragmatic. My colleague’s very thorough paper looks directly at the issues that dog transitions either way – whether from public to private or the other way around. My paper also attempts to identify and how the issues that may arise from movement between public and private work spaces might be foreshadowed by the Canons and have been dealt with by the Courts. In this presentation, I discuss cases that toss up practical and/or ethical issues to see whether we can end up with some guidance on how to both detect and manage or avoid the issues and follow on consequences. “The sense of the dramatic” Olint Corp Limited to many persons was a blessing in disguise. It seemed to have been the answer to many a call for wealth by poor, middle income and already rich persons. Foreign exchange trading was believed at the time to be capable of generating great wealth. Maybe it was. From the looks of it, many persons made a lot of money from it and whilst things were “swimming and swanky”, all was well. Well, maybe not all. In Olint Corp Limited v National Commercial Bank Jamaica Limited, 1 His Lordship Mr Justice Roy Jones (Jones J) started his judgement (on the application for injunction case) as follows: “[1] In January 1720 in the United Kingdom, The South Sea Company offered shares to the public at the modest price of £128.00. The directors of the company in an effort to whip up interest in the company’s shares, published claims of great success and far-fetched tales of South Sea riches to entice investors. One such claim was that it was a ‘company for carrying out an undertaking of great advantage, but nobody to know what it is.’ By the end of June 1720, the share price rose to £1080.00. As the events unfolded, it led to what is euphemistically called the “South Sea Bubble.” [2] Unlike the South Sea Company, Olint Corp Limited (hereinafter called the Claimant) provides customer services to its members as a private club. It is widely reported in the public media to be involved in what is said to be the lucrative business of foreign currency trading, but no one knows for sure. It is also widely reported to be one of a group of “alternative investment schemes” currently engaged in a legal fight (at the Jamaican Court of Appeal) over whether or not it offered “securities” as a “prescribed financial institution” and therefore should be regulated. It is also widely reported in the public media to be competing successfully with the local banking industry (inclusive of the Defendant) for US$ investment funds. It is concerned about its ability to provide service
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Claim No. 2008 HCV 00118 delivered April 18, 2008
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for its customers if National Commercial Bank Jamaica Limited goes ahead with its threat to close its accounts.”
So within the banking industry (and apparently the Courts or at least, with 1 Judge) there was disquiet. Although within the public domain the reasons given for the banks’ disquiet had to do with the fact that their market share in foreign exchange trading was being eroded, Jones J identified the issue in the matter before him as having to do with Olint’s delay in providing required Know Your Customer (KYC) data so that NCB could comply with its AML/CFT obligations. The issues were protracted and difficult and ordinary investors were nervous. However, earlier on there was another judgement delivered by Jones J on March 6, 2008. In that application, Olint sought to invoke the “special jurisdiction” of the Supreme Court over its officers and to have Mr Michael Hylton QC removed from the case as NCB’s Counsel. I cannot set it out more colourfully than the learned Judge: “[1] On November 7, 2007, NCB (hereinafter called the Defendant) wrote to Olint Corp Limited (hereinafter called the Claimant) advising of its decision to close its banking accounts. The Claimant filed an action in this court for breach of the Fair Competition and Banking Acts on the part of the Defendant; they also obtained an ex-parte order in the Supreme Court from Pusey J prohibiting the Defendant from closing its accounts. The ubiquitous former Solicitor-General of Jamaica, Michael Hylton QC, appeared for the Defendant on its application to have aspects of the ex parte injunction varied; he is now instructed to defend the substantive action on behalf of the Defendant. The Claimant cries foul and claims that by accepting instructions from the Defendant Mr Hylton QC is conflicted; he has crossed the ethical threshold and must withdraw from the matter. Mr Hylton’s sense of the dramatic is unmatched here; in the face of an accusation of disqualifying conflict of interest, he refuses to stand down. After hours of charges, counter charges, much soul searching and negotiations on both sides, the positions hardened. [2] The Claimant resolved that the small talk must stop and filed an Application for Court Orders objecting to Michael Hylton QC representing the Defendant in this case. The basis of the objection is that a disqualifying conflict of interest exists and that there is a real risk that confidential information disclosed by the Claimant to Michael Hylton QC as SolicitorGeneral, Chairman and Commissioner at the Financial Services Commission (hereinafter called the FSC) may find itself into the hands of the Defendant in this case. Mr Hylton’s response became more strident. He charged that the Claimant’s application is misconceived and amounts to nothing more than setting a cat amongst the pigeons. Whether or not there is substance to this charge remains to be seen.”
From these introductory paragraphs, we see the germ of an ethical dilemma. NCB and Olint were in conflict. Either prior to or during the conflict, Olint was also in conflict with the FSC. Whilst dealing with the FSC, Olint’s principal Mr David Smith had occasion to interface with Mr Hylton QC in his capacity as the Chairman and a Commissioner of the FSC, Olint’s potential regulator. Again, Jones J puts it neatly: [4] Michael Hylton QC, the Respondent in this application, was involved in the dispute with the Claimant through various offices. He was Solicitor-General between January 2|Page
2001 and October 2007; a Commissioner at the FSC between 2006 and August 2007 and Chairman of the FSC between October 29, 2007 and January 11, 2008. [5] Prior to Mr Hylton QC relinquishing the various positions that he held, David Smith, the principal in the Claimant Company met with him on two occasions. Mr Smith alleges that during their talks he discussed all matters having to do with the standoff between himself and the FSC as well as the pending closure of his accounts by the Defendant in the substantive matter. Mr Smith claims that he gave Mr Hylton QC confidential documents pertaining to the operations of the Claimant and its affiliates. The Defendant had by that time indicated to Mr Smith by a series of letters that it intended to close the accounts of the Claimant and its affiliates, commencing on November 14, 2007. At the time of the discussions with Mr Smith, Mr Hylton was no longer Solicitor General but was Chairman of the FSC and had actual or apparent authority to meet with Mr Smith.”
Olint sued NCB and Messrs Michael Hylton & Associates filed an Acknowledgement of Service. Olint immediately objected by letter to Mr Hylton QC acting and Mr Hylton QC responded with like speed. Olint immediately filed its application to remove Queens Counsel and his firm from appearing in the matter. CANON IV AN ATTORNEY SHALL ACT IN THE BEST INTERESTS OF HIS CLIENT AND REPRESENT HIM HONESTLY, COMPETENTLY AND ZEALOUSLY WITHIN THE BOUNDS OF THE LAW. HE SHALL PRESERVE THE CONFIDENCE OF HIS CLIENT AND AVOID CONFLICTS OF INTEREST.
The ethical issues arose around the risk of the Claimant’s confidential information falling into the hands of its adversary whom Counsel now represented. It was there that Olint wanted the Court to find disqualifying conduct. Counsel would no doubt have been in possession of confidential information and the Court in fact so found. The confidential information only came into Counsel’s possession because of the public offices he held – Chairman of the FSC, FSC Commissioner and Solicitor-General of Jamaica. So Olint’s concern was that Counsel could use that which was disclosed to him in his public office against them in the litigation. Jones J considered Canon IV (preserving confidentiality and avoiding conflicts), Rule (q)(iv) (withdrawing from employment from a matter pending before a tribunal where remaining in the matter would cause him to violate a rule of law or discipline) and Canon V Rules (e) (public office holders not using public position to influence a tribunal) and (f) which I think I should set out: “An Attorney shall not accept private employment in a matter upon which he previously acted in a judicial capacity or for which he had substantial responsibility while he was in public employment.” (Emphasis added)
It is settled law that there is no general rule that an Attorney who once acted for a client could never act against that client. One sees that similarly, the fact that an Attorney once acted for the government is no bar to acting against it. Were that to be otherwise, a significant number of 3|Page
defence Counsel would be disqualified from acting as defence Counsel by reason of that fact alone. In Rakusen v Ellis Munday & Clarke, 2 the applicable test for assessing and determining whether there is a disqualifying conflict of interest is the “real probability of real mischief.” Real mischief could arise where the Attorney had substantial responsibility (or even some responsibility) for the preparation of a case whilst within the government but after leaving, accepts a brief in the same case. Confidential information from witness interviews or file notes would be very attractive to a defendant for example, where the notes come from the witness against him. Is it any less a concern that the Attorney who was perhaps an Assistant Crown Counsel (starting level) assigned merely to brief the facts of the case and prepare the allegations sheet now assists lead defence Counsel to defend the same Accused? Jones J cited Cozens Hardy MR at page 835 as saying: “…A solicitor can be restrained as a matter of absolute obligation and as a general principle from disclosing any secrets which are confidentially reposed in him. In that respect it does not very much differ from the position of any confidential agent who is employed by a principal.”
Those words appear to be of wide application and to incorporate government Attorneys who move from government practice into private practice. There is also the Official Secrets Act which enjoins the government worker to secrecy on any matter coming to his/her knowledge during the course of the employ and afterwards. The combination of both the common law and statute ought to make it clear that the duty of confidentiality is not only a matter of ethics but also of statute. Jones J also looked at the Australian case of Grimwade v Meagher, 3 describing it as a “striking” illustration of the power to remove an Attorney from representation where it considers it necessary to do so in the due administration of justice. Mr Grimwade sought and obtained an order removing Mr Meagher from appearing in a civil case against him after Mr Meagher had been involved in long and repeat prosecutions against him ultimately ending in his acquittal on appeal. Arguably there were special circumstances in that case, including the spectre either of prosecutorial misconduct or negligence in the tendering of a fictitious exhibit. There were also allegations of oppressive conduct with the giving an opening speech to the jury lasting 25 days and conducting a trial over 23 months before a jury as 2 examples. In the judgement of Mandie J granting the relief to disqualify the Attorney, His Lordship cited inter alia, the decision in Abse v Smith 4 where Donaldson MR said the following starting at page 547: “I would hold that in principle where it is satisfied that the interests of justice so require the High Court has an inherent jurisdiction to restrain a barrister from continuing to act as counsel for a particular party in proceedings before the Court. Richardson J went on to consider a number of Australian cases including D and J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 and Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 and then said at 411: To sum up at this point, it is I think fair to say that in so [1912] 1 Ch 831 [1995] 1 VR is 446 4 [1986] QB 536 2 3
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far as the Australian cases rely on the appearance of impropriety as a justification for restraining practitioners from acting in relation to litigation the Judges could have invoked the inherent jurisdiction of the Court to control its own processes to ensure the due administration of justice in the particular case. Richardson J then referred to the position in Canada and set out the following passage from a decision of the Full Court of the Ontario Divisional Court in Everingham v Ontario (1992) 88 DLR (4th) 755 at 761-762: It is within the inherent jurisdiction of a superior court to deny the right of audience to counsel when the interests of justice so require by reason of conflict or otherwise. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached. The issue here is not whether or not the rule was breached, or whether the solicitor worked for the government. Nor is it solely whether the patient lost confidence in the process. The issue is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor. ... The public interest in the administration of justice requires an unqualified perception of its fairness in the eyes of the general public ... The goal is not just to protect the interests of the individual litigant but even more importantly to protect public confidence in the administration of justice...Richardson J concluded at 412: I respectfully agree with the approach of the Ontario Court. Disqualification will ordinarily be the appropriate remedy where the integrity of the judicial process would be impaired by counsel's adversarial representation of one party against the other. The decision to disqualify is not dependent on any finding of culpable conduct on the lawyer's part. Disqualification is not imposed as a punishment for misconduct. Rather it is a protection for the parties and for the wider interests of justice. The legitimacy of judicial decisions depends in large part on the observance of the standards of procedural justice. Where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by counsel on behalf of one party, disqualification is the obvious and in some cases the only effective remedy although considerations of delay, inconvenience and expense arising from a change in representation may be important in determining in particular cases whether the interests of justice truly demand disqualification. On the present evidence I consider that the inherent jurisdiction of the Court provides a more satisfactory basis for determining the question than the indirect and somewhat artificial development of a special rule, which treats knowledge of a client (as distinct from knowledge of his or her affairs) gained through a professional association as confidential information under the umbrella of protection of misuse of confidential information.” (Emphasis added)
In his analysis of the issues, Jones J accepted that Mr Hylton QC was a part of all the major decisions relating to the Claimant’s business activities. He found that Counsel had access to all confidential information at the FSC relating to the Claimant’s business activities. He therefore found that there was a statutory duty of confidence imposed on Mr Hylton QC and that any information which came into his possession could only be used only for the benefit of the FSC. He declared Mr Hylton QC to be bound by the confidences. The reason the application failed was that: “the Claimant…has failed to establish the relevance of the confidential information disclosed or accessible to Mr Hylton QC to the issues in his case against the Defendant.”
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The question which had to answered was whether the undoubtedly confidential information was relevant to the facts in issue. It had not that much to do with the appearance of impropriety or the concept of the due administration of justice, which one could easily argue is largely subjective. The far more important issue was its relevance to the current case. Jones J found as a fact that the Claimant had failed to meet that test and as such, the application failed. It also failed on appeal. Incidentally, it was for this very reason why the application to remove Mr Hylton QC and the firm of Messrs Hylton Powell failed in JMMB Merchant Bank Limited v Winston Finzi and Mahoe Bay Company Limited (No.3). 5 The Applicant was able to raise the presumption that Mr Hylton QC would have come into the Applicant’s (Mr Finzi) confidential information whilst at his former firm, which firm had acted for him some 20 years prior. He however was unable to demonstrate that the confidential information Counsel was presumed to have had, had anything to do with the issues in the case JMMB had brought against him. Sykes J commented on the decision in the Olint case as paragraphs 36 and 37 of his judgement: “[36] From my reading of the Olint case, I would observe the following. First, neither Mr Smith nor his company was a client of Mr Hylton and therefore the relationship of attorney/client never arose. Second, the public offices held by Mr Hylton meant that he never had an interest that was anything other than adverse to the interest of Mr Smith. Third, the trial judge was rather generous in analyzing the matter in terms of whether Mr Hylton could take a client with an interest adverse to Mr Smith when the reality of the circumstances was that at no time was Mr Hylton ever aligned with Mr Smith’s interest. Mr Hylton’s position was that of a government official who was part of an operation to shut down the unregistered scheme. It was the regulator of which, Mr Hylton was a Commissioner and later its Chairman that raided the offices where the scheme operated and then shut it down via court order. Fourth, when looked at in this way the die was cast and the outcome could only be one way, that is dismissal of the application. [37] The only hope for Olint was to rely on the secrecy provisions in the statute governing the regulator. That would arise not because of any duty to Mr Smith but because a statute said so. Mr Hylton had no relationship with Olint that would impose a duty of secrecy. Mr Hylton’s secrecy obligation arose because he was a Commissioner and later Chairman of the regulator and if anything it was to that institution he would owe any duty of confidentiality even in the absence of the statutory provision.”
The Supreme Court in both the Olint 6 and Finzi 7 cases reviewed the House of Lords decision in HRH Prince Jefri Bolkiah v KPMG (a firm) 8, which case also had very interesting facts. It was as landmark a case in its time as was Rakusen and has been widely cited and relied upon since. It applied Rakusen’s case but reviewed the principles and placed the issues more on the objective duty to maintain confidentiality, as opposed to a duty arising from notions of right, wrong or good intentions. It is also, a case not about solicitors, but about accountants.
[2015] JMCCD 16. Op. cit. 7 Op. cit. 8 [1998] All ER (D) 767 5 6
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The facts are carefully set out in the judgement of Lord Millett: The Brunei Investment Agency (BIA) was established in 1993 and since that time, KPMG had undertaken the audit of its core funds. It also carried out associated consultancy and advisory work for the BIA – the lead consultant was Mr Harrison; The BIA was established to hold assets (many billions of dollars) for and provide money management services to the Government of Brunei; It was criminal offence to disclose the affairs of the BIA; The Appellant, Prince Jefri was the baby brother to the Sultan of Brunei. They were once very close. He was also the former Minister of Finance and Chairman of the BIA; Over several years “numerous large transfers of capital (the special transfers)” were made out of BIA core funds – the KPMG audit did not cover these special transfers and KPMG relied on annual representations to it from the BIA that the transfers were legitimate; Over 18 months, KPMG accepted a retainer from Prince Jefri to offer substantial litigation support to one of his companies. He was personally involved in the litigation. The investigation was named “Project Lucy” and the London office of KPMG led the work with the lead consultant being Mr Bates; Whilst assisting on Project Lucy, KPMG also undertook a number of personal assignments for Prince Jefri. They thus came across “extensive confidential information concerning Prince Jefri’s assets and financial affairs. In particular, they became privy to a substantial volume of information concerning the identity of his assets, their location, the legal structure of their ownership, and the manner and financing of their purchase.” The litigation was settled in 1998 and KPMG was instructed to discontinue their work on 14 May 1998; In June 1998 the Government of Brunei formed a task force to enquire into the activities of the BIA. Mr Harrison was summoned to meet with them and asked to co-operate with them. After explaining what little KPMG knew about the special transfers he was asked to enquire into them. KMPG did the work and the House agreed that would have been a natural extension of their audit function; In the meantime, Mr Ellison from KPMGs forensic accounting department was approached by the BIA and asked to assist them to track and locate the present location of the special transfers; At that point, KPMG met with its partners and solicitors to consider whether it could accept this new assignment. It concluded that it could because the contract of retainer with Prince Jefri had ended more than 2 months prior and he was no longer a client. They concluded though that special arrangements would need to be made to ensure that no information 7|Page
passed from Mr Bates’ team in Project Lucy to this new team for “Project Gemma” – the “Chinese Wall”; Nobody in KPMG either advised Prince Jefri of this new retainer or sought his consent for them to so act.
Lord Millett observed: “The further assignment was given the code name Project Gemma and Mr Harrison was appointed as the lead partner. He had never been in receipt of any confidential information relating to Prince Jefri’s affairs. Although he was to head the project, this was clearly not simply an extension of the audit; it would involve the tracing and recovery of assets and might well lead to civil and even criminal proceedings against Prince Jefri. It would be undertaken by members of the forensic accounting department and would be likely to involve them in the provision of litigation support services. It must have been obvious, and indeed is common ground, that some at least of the confidential information obtained by or provided to KPMG in the course of Project Lucy was or might be relevant to Project Gemma. It must also have been obvious, and again is common ground, that in relation to Project Gemma the interests of the BIA were adverse to those of Prince Jefri. KPMG did not inform Prince Jefri of their new assignment, nor did they seek his consent to their acceptance of the project.”
Prince Jefri of course, sought injunctive relief against KPMG and obtained it at first instance. The Court of Appeal discharged it and the House of Lords restored it. In commenting upon Rakusen, Lord Millett suggested that the basis of the jurisdiction to grant the reliefs was not founded upon avoiding the perception of impropriety but rather on the protection of confidential information, where the former client is now at risk of having his confidential information exposed. It was therefore not primarily an ethical issue on this score. Were the client an existing one, then the basis would be and inherent, inescapable conflict of interest. Lord Millet also said: “Where the court’s intervention is sought by a former client, however, the position is entirely different. The court’s jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interests of the former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence.”
The government Attorney has no client. He/she advances the mandate of the body or department to which he/she is assigned. However, he/she WILL hold confidential information arising from all sorts of circumstances – the mode and method of police investigations into certain kinds of criminal conduct, historical data on matters, identification and location of witnesses, non-disclosed breaches of duty, the list is endless. It is clear that the transitioned Attorney must steer clear of unwitting or unintended disclosure of any of those matters. It is not merely an ethical issue – it is an absolute duty of confidentiality. 8|Page
“The tactical strike” by the “Green Book Warriors” The issue of conflict of interest is not to be assessed without any consideration of the rights of a party to be represented by Counsel of his choice. The right to Counsel of choice is an important right which the Courts recognize ought not to be treated with lightly. Removing an Attorney from a case interferes with that right. It is also not to be assessed without serious consideration of whether the application is presented as a tactical strike by one party as opposed to a genuine complaint affecting fair trial and the concept of equality of arms. In Finzi, Sykes J cited Geveran Trading Co Limited v Sjkevesland 9 which was an application to remove an Attorney by reason of acquaintance. At paragraph 43 of Geveran the court said: “[43] A Judge should not readily accede to an application by a party to remove the advocate for the other party. It is obvious that such an objection can be used for purely tactical reasons and will inevitably cause inconvenience and delay in the proceedings. The court must take into account that the other party has chosen to be represented by the counsel in question…”
The issue of litigation tactics was also identified in the Bermudan case Graham Jack and Susan Armstrong v Minister of Public Works. 10 The Court in said at paragraph 15 of the judgment: “[15] I accordingly had little difficulty in concluding that the application to remove the Plaintiff’s attorneys was wholly unmeritorious and could only have been advanced for tactical ends, putting off the ‘evil day’ when their summary judgement application could be fully heard.
The Court considered the dictum of Borins J in Everingham v Ontario 11 at paragraph 10 of the Judgement: “Although the Rules of Professional Conduct of the Law Society of Upper Canada must necessarily apply to all lawyers, it is my view that one who is a lawyer employed by the government must be particularly sensitive to the rules which govern his or her professional conduct. Such lawyer may be said to have a higher obligation than lawyers generally…While the private lawyer represents the client’s personal or private interest, the government lawyer represents the public interest. Although it may not be accurate to suggest the public is the client of the government lawyer as the client concept is generally understood, the government lawyer is required to observe in the performance of his or her professional responsibility the public interest sought to be served by the government department, ministry or agency of which he or she is a party. That is why I believe there is a special responsibility on the part of the government lawyers to be particularly sensitive to the rules of professional conduct, a responsibility regrettably, Mr Wickett overlooked in this case.”
The decision in Everingham has been widely followed and broadly cited. The reasoning clearly commends itself to Courts across the Commonwealth, particularly in Australia. [2003] 1 WLR 912 [2016] SC (Bda) 108 Com (13 December 2016) 11 1991 Can LII 8322 (ON SC) 9
10
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This could suggest that the transitioned Attorney has to pay closer attention to the tactical strike which could quickly be made to remove him/her from a case. Government Attorneys tend to have a great advantage of sheer experience. They tend to have large caseloads, heavy desks and must learn their work quickly. The burdens on them are high. They tend to be attractive on leaving government because of their knowledge and connections which the new employer – if they leave for employment by a firm or entity - would no doubt wish to take advantage of. Clients like them too. In Australia it seems that the test of disqualifying conduct leans more in favour of the appearance of impropriety whereas in Jamaica the test has more leaned towards the relevance of the confidential information to the actual case. No doubt in a proper case, the due administration of justice and appearance of impropriety tests will be closely examined and if needs be, applied. Other case examples Cases in the United States tend to be determined by application of statutory and other rules of conduct. However, they still make interesting reading and I shall discuss 2 such cases in this paper. In The State of Louisiana v Shannon Clausen 12 the issue was whether the firm of Attorneys representing Mr Clausen ought to be removed from the record because of a failure to comply with the Louisiana Rules of Professional Conduct by failure to promptly disclose the fact that a former government attorney was now working with that firm, albeit not on that case. Mr Clausen had been charged with armed robbery and possession of a firearm while in possession of a controlled dangerous substance. One Ben Sanders, then Assistant District Attorney assigned to that case, participated in the case preparation as a prosecutor. Pursuant to his prosecutorial role, Mr Sanders participated in an interview of the armed robbery victim as well as a number of meetings with supervisors in preparation for trial. In August of 2011, Clausen’s original counsel withdrew and Joyce Sallah, employed by Martin Regan, enrolled to represent him. In June 2012, Mr Sanders resigned from the District Attorney's office and went to work for Mr Regan's firm. On June 25, 2012, the State filed a motion to disqualify Mr Regan's firm from representing the defendant due to Mr. Sanders' former involvement with the case. At the July 12, 2012 hearing Mr. Sanders' previous involvement with the case as a prosecutor was acknowledged but it was explained that he was not participating in his firm's representation of the defendant and had not discussed the case with any member of the firm. For his part, the defendant orally waived any objection to Mr. Regan's representation. So the client had no problem with this issue. In response, the State noted the extent of Mr. Sanders' involvement in preparing the case for trial and objected to Mr. Regan's continued representation of the defendant. In its motion, the State also pointed out Mr. Regan's failure to provide prompt, written notice to the District Attorney's office pertaining to the possible conflict, as required by the Louisiana Rules of Professional Conduct.
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104 So. 3d 410 (2012) del. December 14, 2012
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The trial court denied the State's motion but it was reversed by a majority on appeal. The majority did not believe that the Affidavit filed by Mr Sanders was sufficient to cure the mischief because it did not confirm the he would not take part in the fee and the firm’s filing was not prompt. The Rule of Professional Conduct at issue was: Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation,(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.* * *’
The dissenting judgement of Weimer J is instructive and I set it out in full: “The choice of which attorney to hire to provide legal representation, particularly in a criminal matter, in an infinitely personal decision. I very respectfully dissent, believing on this record the trial court did not abuse its discretion in respecting the choice of attorney by the defendant and determining the law firm chosen by the defendant should not be disqualified. As the majority notes, the state filed a motion to disqualify Mr. Regan's firm on June 25, 2012. While the exact date is not included in the record before the court, it is undisputed that the former assistant attorney, Mr. Sanders, resigned sometime earlier in the month of June. The date Mr. Sanders later became associated with Mr. Regan's firm is also not included in the present record. However, even assuming that Mr. Sanders both resigned from the district attorney's office and joined Mr. Reagan's firm [sic] to carry its burden as the objecting party to show that the notice required by Rule 1.11(b)(2) of the Rules of Professional Conduct was not given "promptly." Subparagraphs (a),(b)(l), and (b)(2) of Rule 1.11 contain a regiment of consideration, decisions, and actions by counsel and possibly by the client. For example, subp. b(1) requires that a former government attorney be effectively "screened" from participating in matters in which the attorney was formerly engaged for the government. The Rule does not call for immediate notice to the government, but rather, notice that is given "promptly," a word affording some degree of discretion, both by a firm and by a court when evaluating the timeliness of a firm's actions. In its writ application, the state has not specified when the most pivotal events occurred, namely when Mr. Sanders left the district attorney's office and when he began his working association with Mr. Regan's firm. From what the state supplied, there could not have been more that twenty-four days which transpired before the state filed the motion. Because a criminal defendant's right to choice of private counsel in recognized by both the state and federal constitutions, this court must insist on the state carrying every aspect of its burden 11 | P a g e
to show that Mr. Regan's firm failed to "promptly" give notice; therefore, the exact dates of the events at issue are parts of what the state must show. Possibly, for this very reason, the court of appeal denied relief to the state with the pointed comment that the denial was "[biased upon the showing made." State v. Clausen, 12-k-1193, p. 1 (9/4/12), ___ So.3d ___. Given the vast discretion afforded the trial judge and the right of the defendant to choose his own attorney, I respectfully dissent.”
Another Louisiana case went the other way – The State of Louisiana v Douglas K. Craddock 13 another armed robbery case. The Accused was convicted of the offences and on appeal, complained that his lawyer had been a former prosecutor: “CONFLICT OF INTEREST In pro se assignment of error number 3, defendant contends that his trial counsel's prior service as an assistant district attorney at the time the charge against him was filed created a conflict of interest that adversely affected counsel's performance and the trial court failed to sufficiently inquire into the conflict. The customary remedy for an alleged conflict of interest is disqualification of the attorney or firm with the conflict. In determining whether or not a conflict exists, courts often look to the Rules of Professional Conduct. Furthermore, the Louisiana Supreme Court has determined that the ethical rules which regulate attorneys' law practices have been recognized as having the force and effect of substantive law. The burden of proving disqualification of an attorney or other officer of the court rests on the party making the challenge. Walker v. State, Dept. of Transp. and Dev., 01-2078, 01-2079, p. 3 (La.5/14/02), 817 So. 2d 57, 59-60. …[citing the Louisiana State Bar Articles of Incorporation the lawyer] (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. ... (e) As used in this Rule, the term "matter" includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency. In the instant case, during voir dire, defense counsel Crawford advised the court that defendant had been given legal advice by "Mr. Francis" that it was improper for Crawford to defend him because at the time of defendant's arrest, Crawford was a member of the district attorney's staff. Crawford stated that he worked as an assistant district attorney in St. James Parish in April of 2008. The state indicated it had asked Crawford if he "knew" 13
62 So.3d 791 (La. Ct. App. 2011),
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the instant case prior to being appointed to the case and Crawford had stated he "never heard the case, never knew anything about the case." Crawford also informed the court that he had met with defendant in regard to the case the previous night until after 11:00 p.m. and had seen him many times over the previous several weeks in preparation for trial. Crawford indicated that defendant's father had rejected a plea offer from the state. Crawford also stated that he had spoken to defendant's grandmother and a Baton Rouge attorney concerning the plea offer in the case, but they had advised him that defendant rejected the offer. Crawford advised the court he had sleepless nights preparing for the case and had given defendant his full attention. He indicated he took his professional responsibility very seriously and there was no ineffective assistance of counsel in the case. The court questioned how defendant could be prejudiced if Crawford had nothing to do with the case from the time of the arrest, and noted, if anything, Crawford's prior service as an assistant district attorney would appear to be advantageous to defendant. A thorough review of the record shows that defendant failed to carry his burden of proving Crawford violated either Rule 1.9 or Rule 1.11 of the Rules of Professional Conduct. Defendant presented no evidence to counter Crawford's assertion that during his employment as an assistant district attorney, he had no knowledge of the case against defendant. There is no proof in the record to the contrary. Thus, there is no evidence to support a conclusion that Crawford should be disqualified. See Walker, 01-2078, 01-2079 at p. 5, 817 So.2d at 61. This assignment of error is without merit.”
It seems that the tactical strike can come not only from the “Green Book Warriors” but also from disgruntled convicted clients who are disappointed with the outcome of their cases. The Australian case of Mallesons Stephen Jacques (A Firm) v KPMG Peat Marwick (Formerly Peat Marwick Hungerfords) et al 14 is another interesting case which presents the transition issues in another way. Those issues arose in this case where a firm of Attorneys had advised a firm of accountants and then after the retainer ended, took a brief from the prosecutor in charges against a partner within the firm of accountants. Mr Carter was a partner in Hungerfords, an accounting firm. Hungerfords had earlier retained Mallesons to assist them with advising in some work. During the course of that retainer, Mr Carter shared confidential information with Mallesons. Hungerfords terminated the Mallesons retainer. The Commissioner of Corporate Affairs (“the Commissioner”) then retained Mallesons to assist them with the prosecution of Carter among other persons. Some of the information which had been disclosed to Mallesons was now to be at risk of use against Mr Carter in his own trial. To alleviate the risk, the Commissioner varied to contract of retainer with Mallesons to exclude any confidential information which had been given to Mallesons. Ipp J was having none of it. At pages 22-23 he said: “The confidence of the prosecution on the one hand and the concern and apprehension of Carter on the other would be sharply enhanced if, to Carter’s knowledge, the prosecution was in possession of the information disclosed by Hungerfords to Malleson at the meetings in September 1988. The adversary system of criminal justice brings about an atmosphere 14
(1990) 4 WAR 357
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of tension in the court room which is an important part of the trial process. It is often the dynamics of that atmosphere that determines a jury’s decision to believe or disbelieve a witness. In a trial involving serious charges, lasting many months, covering many complex issues, there could be an incalculable and prejudicial effect upon the state of mind, and therefore the demeanour, of a defendant who knows that prosecuting Counsel has been briefed by the very firm of solicitors whom he previously consulted to advise him on several of the very issues which from the subject matter of the prosecution, such prejudice would be intangible, but, nevertheless, very real.”
The relief was granted and Mallesons removed from the matter.
Billing and other transitional issues Canon IV enjoins us to charge “fair and reasonable fees.” “One difficulty identified by almost all former government lawyers is the transition to the economics of private practice. In almost every case, the government lawyer will not (and suddenly) be billing on an hourly basis. The requirement to keep detailed and accurate time records is one of the first – and often the most psychologically difficult – issue facing the former government lawyer. Although accuracy is the most important part of effective timekeeping, characterizing the time is very important as well and becomes more complex as the diversity of the firm’s clients increases. An institutional client may require that time be described according to a set of codes that can be lengthy but still maddeningly incomplete. An individual who has never hired a lawyer before may require more explanation about how and why the time is spent. Timekeeping under these circumstances is an art, not a science, and both the firm and the former government lawyer need to be patient and persistent as the lawyer moves along the learning curve of effective billing. Further, former government lawyers are often startled to learn that billable hours do not necessarily equate with hours worked. The firm may write off hours worked as unbillable or excessive. Unhappily, this often brings more pressure to bear on the former government lawyer; virtually all private firms have a required billable minimum, and hours reduced means more hours to make up. Government lawyers often put in just as many hours as their counterparts in private practice, but the realities of billing pressures are a common source of dissatisfaction.” GPSolo Magazine – July/August 2005 “From Public
Service to Private Practice” by Mark E. Beck and Joseph M. Hartley
Excessive billing has led to disbarment in the United States and would in Jamaica be a breach of the Canons and a disciplinary offence, provided no criminal conduct is involved. Dolores Dorsainvil in her article entitled “Two Young Lawyers Disbarred for Padding Bill Young Lawyers Take Heed” 15 discussed 2 cases where young Attorneys had been disbarred for not only padding their bills, but perjuring themselves in the hearings.
15
https://www.americanbar.org/content/dam/aba/publishing/young_lawyer/yld_tyl_may10_bill.authcheckdam.pdf
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“’Padding’ may be of particular concern for attorneys who are starting out in a new law firm. Some law firms have quote systems and require that attorneys bill a minimum number of hours per year. Such billing minimums, which may have been easier to fulfill in better economic times, can be difficult to meet. In those instances, associates may feel pressured to make misrepresentations in their records and “pad” their time.”
The author went on to discuss the case of In the Matter of Berg 16. Berg overbilled an insurance company in 41 malpractice cases. He billed the insurance company for work he had not performed and records showed that he had charged the company more than 24 hours on some days and over 100 per day for a substantial number of days. After the insurance company had paid his submitted bills they audited them and observed the overbilling. The California State Bar found the conduct “egregious” but it was Berg’s refusal to acknowledge the wrongdoing that constituted aggravating circumstances and justified the sanction of disbarment.
The second case discussed in the article was Re Cleaver-Bascombe 17 involving a legal aid Attorney. The Attorney submitted a bill for payment for services to represent an indigent criminal defendant. In the bill she stated that she visited her client several times whilst he was in jail when she knew that was not the case. During the hearing, Cleaver-Bascombe insisted that she performed the services, thus perjuring herself. The false voucher and her false testimony led to her disbarment.
There are high standards expected of us when we bill our clients. The issues go to the root of integrity in our conduct. Many Attorneys who transition however, struggle with billing demands and practices in the new setting. The struggle could come from cultural practices within the firm. Some firms are aggressive in billing, with systems designed to ensure a healthy cash flow. Others are more familiar with the clients, less aggressive or structured. A transitioned Attorney in the latter setting could either feel right at home or struggle to adjust to the culture of under-billing or casual billing. That can create its own tensions between the receiving firm and the transitioned Attorney since ultimately, it affects the ability of the Attorney to earn. Bearing in mind that one primary reason for moving from the public service to private practice is to increase one’s earnings, the problem identifies itself. Perhaps the way to address these issues is to be found in the advice given earlier by Beck and Hartley – patient understanding and working together can achieve a positive and fair outcome.
Psychological and Emotional Differences In the earlier referenced article by Beck and Hartley, they identify other transitional issues which they suggest create greater challenges for government lawyers to meet and handle:
16 17
3 Cal. State Bar Ct, Rptr 725 (Rev. Dep’t 1997) No 06-BG-858 (2010)
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“The client’s emotional state” – whether or not a Judge, Crown Counsel, Witnesses, state agent representatives live or die, the government goes on. Whether the public sector lawyer wins the case or loses the case – the work within the public sector does not stop. However, in private practice, the very survival of the client’s business or the client’s liberty may be at stake. This creates a level of intensity that is not equally felt by the government lawyer.
“The client, not the lawyer, controls the case” – Most government lawyers make the decisions about the cases on their desks with relatively little input from additional persons. The process is not complicated by large numbers of persons needing to have an input. There are rarely significant emotional stakes in a decision. “By contrast, a lawyer in private practice may represent a partnership of diverse parties, all of whom want a say in the management of the case. Or the client may be a single individual who rightly believes that she is fighting for her life. Instead of controlling the case and basing his/her decision on the facts and the law, the lawyer in private practice must often allow the client to make the decision. This involves more than client relations; the lawyer must foster the client’s trust so that the lawyer can try to do what should be done for the client – not an easy task if the client does not agree with the lawyer’s assessment.”
“Determining the tone of the case” – the client may want a hostile or aggressive stance taken by the former government lawyer, against the government. Where this problem is arises it must be quickly resolved and it might involve a solution which either removes the transitioned Attorney from that case or works through the stance to be taken with the client.
“Playing a subordinate role” – In private practice the client may insist that he/she wants to be handled by only the senior partner in the firm, even if the senior is only going to be sitting with a cup of coffee and listening to what the grandkids have done in the world. The government lawyer having left government at a senior position might be reduced to note taking with the client not even bothering to make eye contact with him/her. Carrying bags for a senior is not popular practice at the public bar and takes some getting used to!
“The pace of private practice is more frenetic” – the Green Book Warriors will tell you that the CPR is the bane of their existence. Any Court case can present deadline after deadline for steps to be taken. At times, certain kinds of work can come in at odd hours requiring sleepless nights to produce the application or respond to it. Work hardly starts at 9:00am and ends at 5:00pm. Work also isn’t largely paper.
“In private practice, you’re often reacting instead of acting” – Cases come with their own needs and one can never predict timelines if new things develop. The transitioned Attorney has to be able to react to the external demands and become accustomed to not being the one to set the demands. 16 | P a g e
This section of the paper ends as follows: “Obviously, none of what we have discussed in this article is an insuperable hurdle for the government lawyer who wants to transition from public service to private practice. However, both the lawyer and his/her new law firm must understand that this transition will not be seamless. The former government lawyer faces a new set of skills and a new set of emotional challenges that can only be mastered with practice. Being aware of the differences between public service and private practice, and recognizing that it takes time to make the transition, will assist both the law firm and former government lawyer in making that transition successful.”
Summary – what principles? It seems that the primary ethical issue for the transitioning Attorney arises when confidential information to which they have had access becomes relevant to a client and could give that client an unfair advantage in litigation. There are confidentiality obligations under the Official Secrets Act, which follow you forever. There are real anxious moments for persons who know you hold information which they gave to you or you obtained in privileged circumstances. If it is relevant to the case under review, it is off limits. There is the right to ply one’s trade and the fact that one has special expertise in an area ought to enure to one’s benefit. There ought to be the right to offer a desired service to those willing to pay for it. There should be few restrictions on trade in a free and democratic society. The dilemma thus often comes from trying to balance the 2 competing desires – the right to free trade of services against the ethical obligations to former places of employ or former clients. There is no gainsaying the fact that older more experienced heads are good to consult – if you don’t know what to do, ask a colleague at the Bar who is ahead of you. In the multitude of counsel, there is wisdom. Many Attorneys now of great repute and name once worked within public chambers and have a wealth of knowledge and wisdom. Consult and get good sound advice. Ethical boundaries must always be observed and if the transitioned Attorney refuses to recognize them, then perhaps with a little help from the Courts or the General Legal Council, they just might be persuaded to do so.
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