THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1997-3
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
[NO DATE IN ORIGINAL]
ACTION: FORMAL OPINION
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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
TOPIC: Lawyer's right to engage in activity or express a
personal viewpoint which is not in accordance with a client's interests
DIGEST: A lawyer may espouse a personal viewpoint adverse to the interest of a former or present client in a pending matter as long as client confidences and zealous representation of the client are not compromised.
CODE: DRs 4-101(B); 5-101(A); ECs 5-1; 5-2; 7-17; 8-1.
May a lawyer publicly engage in activity or take a position (for example, as a member of a bar association) that differs from a view that would best serve the interests of one or more of his or her clients?
It has come to the Committee's attention that members of the Bar have come under pressure from clients not to express public support for certain positions in the context of bar association or legislative activities. We take this opportunity to reaffirm that a lawyer may resist a client's efforts to curb expression of his or her personal views on public issues, assuming the lawyer does not reveal a confidence or take a position that would adversely affect the lawyer's specific representation of a client in a direct way.
"The leaders of law in America, historically, have been men who could say no, who preserved their autonomy, who served their clients with their hearts, their skills, their advice, their advocacy and their friendship - but not with their souls or with their citizenship." Sol M. Linowitz, The Betrayed Profession 227 (1994). As the President of the American Law Institute, Charles Alan Wright, stated, "our end product is the honest conviction of disinterested people about what the law is and should be. Our only sure protection against those who would seek to sway us to serve particular interests is the independence and objectivity of our members." Id. at 3. Indeed the Council of the American Law Institute recently promulgated a new Council Rule reaffirming such independence:
To maintain the Institute's reputation for thoughtful, disinterested analysis of legal issues, members are expected to leave client interests at the door. Members should speak and vote on the basis of their personal and professional convictions and experience without regard to client interest or self-interest. It is improper under Institute principles to represent a client in Institute proceedings . . . .
ALI Council Rule 9.04, quoted in The President's Letter, The ALI Reporter (American Law Institute, Philadelphia, PA), Winter 1997 at 1.
As these respected commentators make clear, when an attorney becomes a member of the Bar, he or she is not thereby stripped of a personal viewpoint or the freedom of expression. Our legal system has long recognized that a lawyer is not required to adopt a client's viewpoint in all professional and personal activities outside the scope of the lawyer's representation of the client. The New York Code of Professional Responsibility endorses this basic premise:
The obligation of loyalty to the client applies only to a lawyer in the discharge of professional duties and implies no obligation to adopt a personal viewpoint favorable to the interests or desires of the client. While a lawyer must act always with circumspection in order that the lawyer's conduct will not adversely affect the rights of a client in a matter the lawyer is then handling, the lawyer may take positions on public issues and espouse legal reforms favored by the lawyer without regard to the individual views of any client.
Lawyers are entitled, and in fact encouraged, to take part in the resolution of complex public questions or lobbying for or against legislation concerning the legal system. New York's Ethical Considerations make this clear:
By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus they should participate in proposing and supporting legislation and programs to improve the system, without regard to the general interests or desires of clients or former clients.
EC 8-1; see also Restatement (Third) of the Law Governing Lawyers § 206, comt. e (Proposed Final Draft No. 1 1996) ("Restatement") ("Resolution of many public questions is benefited when independent legal minds are brought to bear on them."). Finally, a lawyer has a First Amendment right to freedom of expression. See id.; Johnston v. Koppes, 850 F.2d 594, 596-97 (9th Cir. 1988) ("[L]oyalty to a client does not require extinguishment of a lawyer's deepest convictions; and there are occasions where exercise of these convictions . . . is protected by the Constitution.").
It follows that a lawyer does not need to obtain a client's permission or consent to engage in public discourse about an issue which differs from the view of a client. In general a lawyer may publicly take personal positions on controversial issues without regard to whether the positions are consistent with those of some or all of the lawyer's clients. Consent of the lawyer's clients is not required. Lawyers usually represent many clients, and professional detachment is one of the qualities a lawyer brings to each client.
Restatement § 206, cmt. e.
At the same time, a lawyer remains obliged to comply with the relevant provisions of the Code of Professional Responsibility concerning past and pending engagements. Therefore a lawyer may not, in the course of discussing his or her view on a public issue, misuse or reveal a client confidence. DR 4-101(B). Nor may a lawyer publicly take a policy position adverse to a current client if taking that stance would materially and adversely affect the lawyer's representation of the client in a pending matter. n1 DR 5-101(A) provides that a lawyer shall not accept employment in the absence of informed consent if the exercise of professional judgment will or reasonably may be affected by personal, as well as financial or business, interests.>FTNT>
n1 See EC 5-1 ("Neither the lawyer's personal interest, the interests of other clients, nor desires of third persons should be permitted to dilute the lawyer's loyalty to the client."); EC 5-2 ("A lawyer should not accept proffered employment if the lawyer's personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client."); Restatement § 206, cmt. e.>ENDFN>
For example, it is difficult to see how a lawyer could speak publicly on one side of an issue knowing that he or she must personally argue the opposing side of that issue in front of a tribunal in a pending case. The possibility that a lawyer's publicly proclaimed personal opinion would become known to the tribunal, undermining his or her credibility and thereby jeopardizing the client representation, does warrant some curtailment on public expression of a personal viewpoint to preserve the integrity of a lawyer's advocacy. Of course, the question of whether zealous advocacy may be compromised can arise in numerous situations. A lawyer must exercise sound judgment in determining whether publicly and openly espousing his or her personal opinion would be directly deleterious to a representation of a particular client. n2 In certain cases, while client consent may not be required, it may nevertheless be desirable to give the client an opportunity to terminate the representation before the lawyer openly takes an opposing personal position on the same subject.>FTNT>
n2 This analysis is somewhat akin to that required in the case of a potential positional, or issue, conflict. See N.Y. City Formal Op. 1990-4; ABA Formal Op. 93-377; Restatement § 209, cmt. f.>ENDFN>
Two situations merit further comment. First, we do not consider that a lawyer is speaking "publicly" on an issue when he or she expresses a personal view during a closed door meeting of a bar association committee or in a comparable setting. In that case, the limitations discussed above would not apply. Second, the fact that another lawyer in his or her law firm is arguing a position before a tribunal should not, in and of itself, undercut the right of a lawyer to take a personal position on the issue in public. n3 The rule of imputed disqualification that applies with respect to legal services rendered by different lawyers within the same law firm, see DR 5-105(D), should not automatically extend to a case involving personal views espoused as such by a lawyer in the firm not working on the relevant matter. n4 In any case where there may be a question, it is recommended that the lawyer begin his or her remarks with a disclaimer to the effect that the views expressed are his or her own. In the Committee's view, the interests of the legal system are best served by encouraging lawyers to speak out about their personal convictions, even if they are not always in harmony with the interest of a client. "The good lawyer should also be able to tell private from public duty. He should be able to represent the corporation which hires him and still advocate the public interest as he sees it, either in his voting or in his private conversations or in his community leadership. He must have a sense of the right, and confidence to act on it." Lee E. Hejmanowski, An Ethical Treatment of Attorneys' Personal Conflicts of Interest, 66 S. Cal. L. Rev. 881, 895 (1993) (quoting John P. Frank, The Legal Ethics of Louis D. Brandeis, 17 Stan. L. Rev. 683, 709 (1965)).>FTNT>
n3 Pure personal interest conflicts do not involve misuse of confidential client information, which is the subject of a separate prohibition.
n4 Restatement § 206, cmt. e explains that personal-interest conflicts are imputed to affiliated lawyers. However, it goes on to note that such interests "may be idiosyncratic or otherwise of such a kind that it is improbable" that a real conflict exists:
one affiliated lawyer's personal interests that produce personal prohibition disable an affiliated lawyer from representing the same client only when there is a significant risk that the interests of the first lawyer would materially and adversely impair the second lawyer's representation. Whether such a risk exists requires examination of such facts as the magnitude of the interest of the personally-prohibited lawyer, the extent to which pursuing the client's interests would threaten that interest, and the other circumstances that might indicate the described significant risk.
As long as client confidences and zealous advocacy in a pending matter are not compromised, a lawyer is entitled to participate in bar association activities and speak publicly on issues which may be contrary to the interest of a former or current client without obtaining client consent.