- “After the termination of the representation, a lawyer may publish an article that discusses legal issues in the representation, as long as the article does not reveal confidential information without the consent of the client.”
- “Confidential information does not include a lawyer’s ‘legal knowledge or legal research’ or information that is ‘generally known’ in the local community or in the trade, field or profession to which the information relates. But information is not generally known merely because it is available in court files.”
- “Rule 7.1(r) of the New York Rules of Professional Conduct (the “Rules”) encourages lawyers to speak publicly and write for publication on legal topics to help lay persons identify legal problems. Similar policy considerations apply to lawyers who speak or write for the legal community on legal issues that may arise.”
- “The inquirer’s concern is that Client A is wary of publicity and believes that publicity about the case could be damaging to his reputation. That raises the question whether the proposed article would violate any other provisions of the Rules.”
- “By its terms, Rule 1.1(c) applies during the course of the representation. Thus, Rule 1.1(c) does not apply to former clients.”
- “Different confidentiality rules apply once a client becomes a former client. The lawyer’s confidentiality duties to a former client are set forth in Rule 1.9(c), which prohibits a lawyer from using or revealing the former client’s confidential information unless there is an exception in Rule 1.6 (the confidentiality rule).”
- “The inquirer will therefore have to determine whether Client A remains a current client in the matter of the representation. In N.Y. State 1008 (2014), we addressed this issue, noting that whether a person is a current client or a former client is a mixed issue of fact and law that the Committee cannot resolve.”
- “As noted above, a lawyer’s duty of confidentiality to a former client is set forth in Rule 1.9(c), which depends on whether information is ‘protected by Rule 1.6.’ Rule 1.6(a) prohibits a lawyer from knowingly revealing ‘confidential information’ (as defined in Rule 1.6), or using it to the disadvantage of the client or for the advantage of the lawyer, unless the client gives informed consent.”
- “The inquirer states that Client A is worried about information the inquirer gained during or relating to the representation that is ‘likely to be embarrassing or detrimental to the client if disclosed.’ Whether any particular information meets this requirement is a question of fact that we cannot resolve.”
- “After the termination of the representation, a lawyer may publish an article that discusses legal issues in the representation, as long as the article does not reveal confidential information without the consent of the client.”
(Reminds me of issues raised in the client verdict PR story we noted last year.)
“Ex-Magellan Execs Waive Conflicts Over Past Shared Counsel” —
- “Two former Magellan Diagnostics executives charged with conspiring to hide defects in the company’s lead testing devices agreed on Friday to waive any potential conflict created by their prior joint representation by a Donnelly Conroy & Gelhaar LLP attorney.”
- “The waivers from former Magellan CEO Amy Winslow and former chief operating officer Mohammad Hossein Maleknia came during a brief remote hearing before federal Magistrate Judge Judith Dein.”
- “The government raised concerns about the situation in a motion filed late last month requesting a so-called Foster hearing into whether attorney George Vien could continue to represent Maleknia after he had previously also represented Winslow.”
- “‘I discussed this situation extensively with my client, Mr. Maleknia, and my former client, Ms. Winslow, and we answered all their questions,’ Vien told the judge Friday. ‘Given the status of the case and all the facts, we do not see any conflict, but both my client and my former client have said they would waive any potential conflict and want me to stay in the case.'”
- “Winslow’s current attorney, William J. Trach of Latham & Watkins, told the judge that he also had ‘extensive conversations’ with her and is confident that she understands the issue and is willing to waive any potential conflict.”
- “Judge Dein outlined some of the risks of having previously shared counsel, including hindering plea negotiations, any defense or sentencing request based on culpability of the other party, or a future appeal based on ineffective assistance of counsel.”
- “Asked by the judge if she understood that the risk to her is largely from any prior information she might have disclosed while represented by Vien, Winslow told Magistrate Judge Dein that she did.”
- “Maleknia and Winslow, along with former quality assurance director Reba Daoust, are facing charges of wire fraud, conspiracy to commit wire fraud, conspiracy to defraud a government agency and introduction of a misbranded medical device in what the U.S. Attorney’s Office for the District of Massachusetts says was a scheme to hide issues with Magellan’s LeadCare line of testing devices.”
New York: “Judicial Ethics Opinion 23-151” —
- “A judge may preside over Article 75 proceedings challenging employment arbitration awards, where the state agency employer was previously represented in-house by the judge’s law clerk’s spouse, but the judge must insulate the law clerk and make appropriate disclosures.”
- “A judge asks if it is ethically permissible to preside over certain Article 75 proceedings challenging employment arbitration awards, where the judge’s law clerk’s spouse, an in-house counsel at a state university, previously represented the employer at the arbitration. The Attorney General’s office, and not the law clerk’s spouse, will be representing the employer in the proceedings before the judge.”
- “A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). However, where disqualification is not required under objective standards, a judge ‘is the sole arbiter of recusal’ (People v Moreno, 70 NY2d 403, 405 [1987]).”
- “Where a member of the judge’s staff has a conflict, it is ordinarily sufficient to insulate the staff member and disclose the situation…”
- “After insulation and disclosure, disqualification is entirely within the judge’s discretion, even if a party objects, provided the judge can be fair and impartial… Here, too, we conclude the judge’s impartiality cannot “reasonably be questioned” simply because the law clerk’s spouse is employed by a party to the case before the judge and, as in-house counsel to that public sector employer, previously appeared in an earlier stage of the case. Instead, disclosure and insulation is sufficient.”