An entertainment attorney has for many years represented a country music star. One
evening, the attorney and the music star were having a quiet business dinner together
at a restaurant. Another diner approached their table and in a loud voice began a
vulgar and defamatory tirade against the music star. Everyone in the restaurant heard
the entire exchange. While all of the defamatory comments about the music star
involved her personal life, about which the attorney had no real knowledge, he felt
that they could not possibly be true. At the music star's request, the attorney
commenced a slander suit against the diner, after spending considerable time
reacquainting himself with slander law. In his answer to the complaint, the diner
admitted making the allegedly slanderous statements, and as an affirmative defense,
he alleged that the statements were entirely truthful.
When the case comes to trial, would it be proper for the attorney to act as the music
star's trial counsel?
Give this one a try later!
, Yes, because the attorney is not a necessary witness.
A roomful of witnesses heard the diner's comments and could testify to
them. Moreover, the diner has made a judicial admission that he made the
statements; thus, no testimony is required on that point. The attorney has no
knowledge as to the truth of the statements, as he knows nothing of the
star's personal life; thus, he would have no relevant testimony on that issue.
Therefore, the attorney is neither a "necessary" witness, nor a witness who
"ought" to be called.
There is no need for informed consent in this situation. Even if there is a
remote possibility that the attorney might be called, he is not a necessary
witness, and it is unlikely that he would be called by the diner's lawyer
because he could not have anything favorable or relevant to add. A mere
remote possibility that a lawyer will be called as a witness is not sufficient
to disqualify the lawyer from representing a client. Every lawyer generally is
considered competent to take any case as long as the lawyer sufficiently
prepares. Here, the attorney spent considerable time preparing before he
filed the complaint.
An attorney worked at the United States Department of Labor and was responsible
for compiling certain corporate safety records into an annual report containing the
accident statistics. The report is used internally and in discussions with companies, but
it is not distributed to the general public. However, a person may obtain a copy of the
report by filing a formal request under the Freedom of Information Act. During the
last three years, Company A has had more accidents than any of the other reporting
companies. Six months ago, the attorney left the Labor Department and took a job
with a private law firm. Recently, a person came to the attorney seeking
representation in a suit against Company A for injuries he sustained while working at
Company A's factory. The attorney agreed to represent the client.
Is the attorney subject to discipline?
Give this one a try later!
, No, because the information is available by formal request under the
Freedom of Information Act.
The general rule is that a government lawyer who receives confidential
government information about a person must not later represent a private
client whose interests are adverse to that person, if the information could
be used to the material disadvantage of that person. [ABA Model Rule
1.11(c)] The rule covers only "confidential" information, which means
information that the government is prohibited from revealing or has a
privilege not to reveal, and which is not otherwise available to the public.
Here, because the information is available under the Freedom of
Information Act, it is not confidential. In fact, any attorney representing the
client could obtain the information; thus, the attorney is free to use it.
A lawyer is not barred from ever working on a case where he gained any
relevant information while working for the government. To bar
representation, the information must be confidential. Consent from the
government entity is only required when the attorney takes on a
representation in private practice in a matter in which the lawyer
participated personally and substantially while in government service. A
"matter" is a set of specific facts involving specific parties. Here, the
attorney was not involved in any matter while in government service that
concerned the client's claim against the chemical company. The information
is not confidential and thus can be used against the chemical company.
Furthermore, even if the information were confidential, mere nonuse would
not be sufficient; the attorney would not be permitted to represent the
client.
An attorney is admitted to practice only in State A, where he specializes in securities
and real estate finance law. In that role, the attorney advised his client that the law of
State B did not require the client to include information about certain mineral rights in
a disclosure statement that the client had to file in State B in order to sell some real
estate limited partnership interests to State B citizens. Acting on the attorney's advice,
the client did not disclose the information and did sell partnership interests to State B
citizens.
Later, the attorney became a full-time trial court judge in State A. Later still, State B
brought a criminal action against the client for failing to disclose the mineral rights
evening, the attorney and the music star were having a quiet business dinner together
at a restaurant. Another diner approached their table and in a loud voice began a
vulgar and defamatory tirade against the music star. Everyone in the restaurant heard
the entire exchange. While all of the defamatory comments about the music star
involved her personal life, about which the attorney had no real knowledge, he felt
that they could not possibly be true. At the music star's request, the attorney
commenced a slander suit against the diner, after spending considerable time
reacquainting himself with slander law. In his answer to the complaint, the diner
admitted making the allegedly slanderous statements, and as an affirmative defense,
he alleged that the statements were entirely truthful.
When the case comes to trial, would it be proper for the attorney to act as the music
star's trial counsel?
Give this one a try later!
, Yes, because the attorney is not a necessary witness.
A roomful of witnesses heard the diner's comments and could testify to
them. Moreover, the diner has made a judicial admission that he made the
statements; thus, no testimony is required on that point. The attorney has no
knowledge as to the truth of the statements, as he knows nothing of the
star's personal life; thus, he would have no relevant testimony on that issue.
Therefore, the attorney is neither a "necessary" witness, nor a witness who
"ought" to be called.
There is no need for informed consent in this situation. Even if there is a
remote possibility that the attorney might be called, he is not a necessary
witness, and it is unlikely that he would be called by the diner's lawyer
because he could not have anything favorable or relevant to add. A mere
remote possibility that a lawyer will be called as a witness is not sufficient
to disqualify the lawyer from representing a client. Every lawyer generally is
considered competent to take any case as long as the lawyer sufficiently
prepares. Here, the attorney spent considerable time preparing before he
filed the complaint.
An attorney worked at the United States Department of Labor and was responsible
for compiling certain corporate safety records into an annual report containing the
accident statistics. The report is used internally and in discussions with companies, but
it is not distributed to the general public. However, a person may obtain a copy of the
report by filing a formal request under the Freedom of Information Act. During the
last three years, Company A has had more accidents than any of the other reporting
companies. Six months ago, the attorney left the Labor Department and took a job
with a private law firm. Recently, a person came to the attorney seeking
representation in a suit against Company A for injuries he sustained while working at
Company A's factory. The attorney agreed to represent the client.
Is the attorney subject to discipline?
Give this one a try later!
, No, because the information is available by formal request under the
Freedom of Information Act.
The general rule is that a government lawyer who receives confidential
government information about a person must not later represent a private
client whose interests are adverse to that person, if the information could
be used to the material disadvantage of that person. [ABA Model Rule
1.11(c)] The rule covers only "confidential" information, which means
information that the government is prohibited from revealing or has a
privilege not to reveal, and which is not otherwise available to the public.
Here, because the information is available under the Freedom of
Information Act, it is not confidential. In fact, any attorney representing the
client could obtain the information; thus, the attorney is free to use it.
A lawyer is not barred from ever working on a case where he gained any
relevant information while working for the government. To bar
representation, the information must be confidential. Consent from the
government entity is only required when the attorney takes on a
representation in private practice in a matter in which the lawyer
participated personally and substantially while in government service. A
"matter" is a set of specific facts involving specific parties. Here, the
attorney was not involved in any matter while in government service that
concerned the client's claim against the chemical company. The information
is not confidential and thus can be used against the chemical company.
Furthermore, even if the information were confidential, mere nonuse would
not be sufficient; the attorney would not be permitted to represent the
client.
An attorney is admitted to practice only in State A, where he specializes in securities
and real estate finance law. In that role, the attorney advised his client that the law of
State B did not require the client to include information about certain mineral rights in
a disclosure statement that the client had to file in State B in order to sell some real
estate limited partnership interests to State B citizens. Acting on the attorney's advice,
the client did not disclose the information and did sell partnership interests to State B
citizens.
Later, the attorney became a full-time trial court judge in State A. Later still, State B
brought a criminal action against the client for failing to disclose the mineral rights
