Risk Update

Risk Rules Reviewed — Entertainment “Conflict” Update (aka MSG Tickets Master Matter), “Snitch” Standard Spotlighted

Remember this story about the lawyers being barred from attending entertainment events at Madison Square Garden and other venues due to some claim about professional rules? Here’s an update via Brian Faughnan: “Dot. Dot.Dash (3 updates)” —

  • “…there has now been a ruling in that MSG case where the lawyers for MSG were badly misusing RPC 4.2 to justify barring certain attorneys from attending events at Madison Square Garden in New York City. The good news from a lawyer ethics standpoint is that the Court at least implicitly appears to grasp the flawed nature of the RPC 4.2 argument:
    • ‘The Court also believes that the balance of the equities continues to favor plaintiffs for the reasons previously indicated by this Court, that there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.’
  • “The bad news for the lawyer plaintiffs is that they still didn’t quite manage a win as the only thing they get to attend are concerts not sporting events. The bad news for legal ethics is that the MSG lawyers apparently still do not get it.”
  • “According to this ABA Journal online article [“Lawyer can see Billy Joel but not Knicks at Madison Square Garden as result of judge’s ruling“], they are continuing to send letters to lawyers representing people in lawsuits against MSG that continues to assert a ban on lawyers as long as they are engaged in active litigation. The letters, however, at least do not appear to try to argue that the action is justified by New York’s 4.2.”

[If I were a lawyer caught in this web, and the resolution of a matter had some bearing on the ability to attend this Taylor Swift concert series I hear is quite popular, I confess I’d probably be receiving domestic pressure to settle. Thankfully, none of that applies. Though if anyone has a line on Bay Area tickets…#itsmehi]

[I’m the sort that also might be curious that if the grounds for this maneuver stood — revoking a license as the ticket providers put it — would mean that technology vendors involved in legal matters might be able to turn off licenses and access provided to adverse lawyers — since those lawyers might file a support ticket, for example, leading to “prohibited contact”… There goes your phone, word processor, and email server… Just thinking aloud…]

Tom Girardi Scandal Prompts State Bar to Reconsider Misconduct ‘Snitch Rule’ for Lawyers” —

  • “A state bar leader said Thursday that he wants the agency to revisit a potential rule that would require state-licensed attorneys to report colleagues who have committed professional misconduct.”
  • “Ruben Duran, chair of the State Bar of California’s board of trustees, said in brief comments at the board’s regularly scheduled online meeting that ‘it’s time to reconsider’ the issue of a so-called snitch rule in light of the recent prosecution and disbarment of trial lawyer Tom Girardi. Duran referred the matter to the bar’s Committee on Professional Responsibility and Conduct, which, among other things, drafts ethics opinions and advises the board on related issues.”
  • “Duran made no specific requests but mentioned the American Bar Association’s Model Rule 8.3, which requires a lawyer who ‘knows’ a fellow lawyer or judge has violated professional rules to notify the appropriate authorities.”
  • “California lawyers have balked at adopting such a mandate for years, most recently during an overhaul of the Rules of Professional Conduct in 2017. A memo written by a rules drafting team at the time expressed concerns that mandated reporting would force lawyers to breach confidentiality requirements or possibly create a loyalty conflict with current and past clients.”
  • “Attorney Carol Langford, who was a member of the rules revision committee, said she and her colleagues dug into issues surrounding a possible mandatory reporting requirement, including whether the perceived misconduct should have to rise to the level of a felony. In the end, she said, members were concerned about the rule’s enforceability, particularly a showing that a lawyer ‘knows’ misconduct was committed.”
  • “‘Sometimes you have rules because you want to let people know you don’t like that type of conduct,’ Langford said. ‘But they’re hard to enforce.'”
  • “George Cardona, the bar’s chief trial counsel, told the Los Angeles Times last month that he thought adoption of a mandatory reporting rule might help restore public confidence in the state bar.”