October 19, 2017

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith R. Fisher, Christina Houston

Professional Responsibility

Preemption of Ethics Rule Forbidding Prosecutors from Subpoenaing Lawyers to Provide Information about Past or Present Clients

By Keith R. Fisher, National Center for State Courts

On October 2 the U.S. Supreme Court denied certiorari in a Tenth Circuit case invalidating as preempted New Mexico Rule 16-308(E), derived from ABA Model Rule 3.8(e), subjecting prosecutors to professional discipline if “in a grand jury or other criminal proceeding” they subpoena other lawyers to provide information about their past or present clients, subject to exceptions for lack of privilege or necessity. Most states have a similar disciplinary rule in place, and the rule is also reflected in the rules of federal district courts that incorporate state rules of professional conduct.

Years earlier, the Tenth Circuit had upheld the Colorado version of this rule as binding on federal prosecutors and not preempted, all in the context of criminal trials, but did not have occasion to consider the grand jury context. The more recent decision held the rule preempted with respect to grand jury proceedings, notwithstanding 28 U.S.C. § 530B(a), which was enacted by Congress to address this situation and which provides that federal prosecutors “shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”

Failure to Notify Counsel of Inadvertent Disclosure of Privileged Information

By Keith R. Fisher, National Center for State Courts

A federal judge sitting in diversity held recently that inadvertent disclosure in discovery resulting from an error in using a file-sharing site did not waive attorney-client privilege or work product protection. The court found that receiving counsel had an obligation to notify opposing counsel of the disclosure or, at a minimum, to bring the matter to the court under seal to ascertain whether waiver had occurred. Failure to do so, the court ruled, violated Virginia’s legal ethics standards and justified evidentiary sanctions but was not sufficient to require disqualification of the law firm in question.

Keith Fisher

Principal Consultant and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.