NYCLA COMMITTEE ON PROFESSIONAL ETHICS
TOPIC: Public Speaking on Law Reform Activities Under Rule 6.4
Rule 6.4 does not require a lawyer to obtain client consent to speak publicly at a law reform forum, notwithstanding that the reform may affect the interests of a client of the lawyer. It is permissible for a lawyer to participate in law reform activities even if the client objects, provided the attorney does not divulge any confidential information. The lawyer must, however, take into consideration and be mindful that conflicts of interest may, in certain circumstances, require the lawyer to cease the client representation, or cease the law reform activity, under Rule 1.7. Rule 6.4 also requires that the lawyer disclose to the law reform organization when a lawyer knows that the client’s interests may be materially benefitted by a decision in which the lawyer participates.
RPC 6.4, 1.7, 1.6, 3.9, 1.9
May a lawyer speak or participate at a law reform forum under amended Rule 6.4 without the consent of a client whose interests may be affected? What if the client affirmatively objects? Must a lawyer disclose to a law reform organization that a client’s interests may be materially benefitted by something the organization is considering?
Rule of Professional Conduct 6.4 has recently been amended to state:
A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration, notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer actively participates, the lawyer shall disclose that fact to the organization, but need not identify the client. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly 1.7.
The purpose of Rule 6.4 is to provide guidance to lawyers working with law reform organizations and to encourage lawyers to participate in law reform activities that will improve the legal system and profession. Research has revealed no ethics opinions interpreting this revised version of the New York rule and no decision disciplining a lawyer for violating it, although research has uncovered two brief advisory opinions applying similar language in other jurisdictions.
A “law reform organization” is any group that studies or proposes amendments to the law or suggests improvements to the system of justice. Organizations that propose amendments to statutes, rules or regulations, comment on amendments proposed by others or propose new programs, higher levels of funding or new sources of funding are within the definition of a “law reform organization.” Additionally, civil rights groups, environmental groups, religious groups and other non-profits that propose or support improvements in law or the justice system are “law reform organizations.” This Committee and its parent association, for example, are law reform organizations.
Rule 6.4 applies to membership in an organization that engages in reform activities related not only to the law but to the “administration” of the law. Thus, it applies to an organization’s activities directed at improving the quality of judges, operation of the court system, operation of legislative bodies, operation of executive branch officers and agencies, and operation of administrative agencies such as public boards and commissions with oversight over zoning, education and schools, historic landmarks, parks and recreation, arts and culture, elections, public finance, elections and the like.
The previous version of Rule 6.4 required that a lawyer disclose to a client any participation in a decision by a law reform organization that could materially harm the interests of the client. Some commentators argued that this former requirement had a chilling effect on lawyers’ participation in law reform activities. After all, what lawyer would want to inform a client of activities that were detrimental to her client’s interests? In May 2010, this unworkable requirement was stricken from the rule and no longer restricts a lawyer’s ability to participate in law reform activities.
For example, suppose a lawyer proposes to speak at a bar association conference at which the client’s interests may be affected (to which the client would object). The new rule does not require notification to that client prior to engaging in law reform activities; the lawyer may proceed with speaking at the conference without informing her client, so long as confidential information is not used or disclosed. But, when personal interests of the lawyer conflict with the client’s interests, the lawyer must consider whether she must either withdraw from the representation or from speaking or participating in the law reform activity when there is a significant risk that her professional judgment on behalf of the client will be adversely affected (Rule 1.7).
Lawyer’s Duty to Client:
Even if a client affirmatively objects to the lawyer’s participation in law reform activities, Rule 6.4 permits the lawyer to proceed without the client’s consent. However, in every case, the lawyer must evaluate whether confidential information of the client could be disclosed or used, in which case Rule 1.6 is invoked, and whether personal conflicts of interest prevent the lawyer from representing the client in compliance with Rule 1.7.
Rule 1.6(a)(1) provides that “a lawyer shall not knowingly reveal confidential information or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person unless the client gives informed consent.” While this Rule applies to situations involving current clients, the restriction on revealing confidential information remains applicable through Rule 1.9 whenever a lawyer chooses to participate in a law reform activity, even if the lawyer no longer represents the client. Therefore, if a lawyer’s disclosure to a law reform organization identifies the client (directly or indirectly) or reveals confidential client information, the lawyer must obtain the client’s informed consent in writing before participating in the law reform activity. A lawyer should also note that consent is required in order to use confidential information as well as to disclose it.
Another rule that may be implicated when a lawyer participates in a public law reform forum is Rule 1.7. Rule 1.7(a)(2) states that a lawyer shall not represent a client if a reasonable lawyer would conclude that “there is a significant risk that the lawyer’s professional judgment on behalf of a client would be adversely affected by the lawyer’s own financial, business, property or other personal interests.” While Rule 1.7 would not bar a lawyer’s participation in a law reform activity, it may require the lawyer to cease the client representation if the lawyer’s personal investment in the activity poses a significant personal interest conflict.
While Rule 6.4 is not directly implicated when a scenario involves former clients, lawyers should also be aware of their preexisting duties to former clients under Rule 1.9, which can be implicated when a lawyer seeks to participate in a law reform activity. In a recent California case, for example, a lawyer publicly spoke out in opposition to a zoning permit for a shopping center and was sued for doing so by a former client. The same lawyer had previously represented that client in its application for the same zoning permit. The lawyer argued that his public comments were protected by the First Amendment. The Supreme Court of California found that the lawyer could not rely on a First Amendment defense because relevant confidential information was known — and impliedly used — by the lawyer. Oasis West Realty LLC v. Goldman, No. SC 101564 (Cal. May 16, 2011).
Lawyer’s Duty to Law Reform Organization:
While a lawyer who participates in law reform activity may not have a personal conflict with a client, she may be faced with a disclosure obligation to the law reform organization when a decision of the organization may materially benefit a client. This disclosure must be made regardless of the lawyer’s actual motivation for participating, in order for the law reform organization to take that information into consideration while debating and implementing law reform.
The disclosure requirement illuminates behind the scenes “lawyer lobbying” and informs the law reform organization that the lawyer’s position may be motivated by several interests, including actual client considerations. This provision roughly parallels Rule 3.9, which provides that a lawyer who makes a presentation to a legislature or administrative agency regarding a proposed change in the law should disclose that the appearance is on behalf of a client. Thus, under Rule 6.4, lawyers participating in a decision of a law reform organization must disclose when they know that the decision may materially benefit a client, but need not specifically identify the client.
Rule 6.4 requires disclosure by a lawyer when a law reform organization makes a decision, and “decision” in this context should be construed broadly and is not limited to voting acts. Any action taken by the organization, or its members acting in their membership capacity, is a “decision” for the purposes of Rule 6.4. For example, assume a lawyer on the board of a non-profit organization devoted to public safety and health reform reads in the newspaper that a local bridge has been unsafe for years. He speaks with the director of the non-profit and recommends the members publicly protest the insufficient safety regulations in order to urge lawmakers and local officials to adopt more detailed regulations. If the lawyer has a client whose primary business is to build and repair local bridges and the lawyer knows that the client could materially benefit from this publicity by gaining an opportunity to repair the bridge, it is this Committee’s opinion that Rule 6.4 would require the lawyer to disclose that fact to the organization.
While Rule 6.4 also restricts the disclosure requirement to situations where the lawyer “actively participates,” active participation in this context should also be construed broadly. A lawyer who abstains from voting on a proposal may still actively participate in a “decision” by speaking at the meetings, informally expressing an opinion on the proposal to other members of the committee or otherwise contributing to the decision in any way. For example, a lawyer who represents insurance companies sits on a committee that promulgates and interprets legal ethics rules. A proposed rule would affect whether insurance companies have conflicts of interest requiring retention of separate counsel for each party in a litigated dispute, thereby increasing defense costs for insured claims. While planning to abstain from voting, the lawyer tells another committee member that the proposal would inappropriately intrude upon personal freedom. Since the proposed rule would benefit the lawyer’s clients, the lawyer must make a disclosure to the committee of the lawyer’s representation under Rule 6.4. Again, Rule 6.4 would not require the lawyer to identify the client, and Rule 1.6 would forbid disclosing the client’s identity or any other confidential information without informed consent from the client.
Finally, Rule 6.4 applies to a lawyer’s advocating that a law reform association should not take an action that would injure the lawyer’s client. This scenario falls within the realm of a decision that may “materially benefit” the client, because a lawyer who prevents an injury to a client has benefitted that client. To illustrate this point, assume that a lawyer whose firm derives substantial revenue from representing tobacco companies is also a member of a committee that is voting on a report favoring a city-wide smoking ban in restaurants. Knowing that a ban would decrease sales of her client’s cigarettes, the lawyer participates in the debate on the ban and advocates that the committee not issue the report. Because a decision not to issue such a report would materially benefit the lawyer’s client, this Committee believes that Rule 6.4 requires that the lawyer disclose to the law reform organization that her client’s interests would benefit if the ban were rejected (although she may not identify the client without that client’s informed consent).
A lawyer may speak or participate in law reform activities without a client’s consent, even in the face of a client’s affirmative objection, as long as the lawyer’s participation does not violate the lawyer’s obligations under other Rules, including Rules 1.6 and 1.7. When a lawyer actively participates in a decision by a law reform organization and the lawyer knows that the interests of the lawyer’s client may be materially benefitted, the lawyer must disclose that fact to the organization, but need not identify the client.