September 04, 2018

“Roman J. Israel, Esq.” offers lessons on common ethical challenges

A recent issue of the ABA Journal opined upon the “25 Greatest Legal Movies.” However, one film that raises interesting ethical quandaries is absent from the list – Roman J. Israel, Esq.  As I encourage everyone to see the movie (despite its imperfections), I will avoid overt spoilers – but can’t promise you won’t get some hints.

The movie, to give it the IMDB-style summary, is a “dramatic thriller” set in the overburdened Los Angeles criminal court system. Denzel Washington stars as Roman J. Israel, a rather obsessive but idealistic and brilliant behind-the-scenes defense attorney who, through a tumultuous series of events, finds himself in a crisis that leads to extreme action. Colin Farrell co-stars as the successful front-page criminal defense lawyer who brings Roman into his firm and tries to rescue him.

The key to the film is the character created by Washington. Roman J. Israel is a three-dimensional lawyer who is on a believable professional and ethically challenging journey. As more attention is paid to lawyer wellness, career satisfaction and succession planning, Roman is a real picture and not a caricature. These are all factors that move the plot. Of particular relevance for lawyers is that the plot moves along via legal ethics conundrums.

The film brings to mind two recent ethics opinions. First is ABA Formal Opinion 479, “The ‘Generally Known’ Exception to Former-Client Confidentiality.” The headnote to the opinion reads, in part:

The “generally known” exception to the duty of former-client confidentiality is limited. It applies (1) only to the use, and not the disclosure or revelation, of former-client information; and (2) only if the information has become (a) widely recognized by members of the public in the relevant geographic area; or (b) widely recognized in the former client’s industry, profession, or trade. Information is not “generally known” simply because it has been discussed in open court, or is available in court records, in libraries, or in other public repositories of information.

Recently, in a case pending in the U.S. District Court in Los Angeles, information that had been filed under seal was mistakenly made available on PACER, the federal court documents online database. The information was published in the Los Angeles Times. The court ordered the publication clawed back and deleted.

In essence, the court ordered the bell be unrung. 

While not a perfect analogy, under Opinion 479, that information would not be generally known if it was about your former client – regardless of the court’s order or how widely the information might have been circulated by the disclosure. Indeed, several commentators have criticized the Opinion for not interpreting the Rules more narrowly.

Perhaps a related issue is connected to an ongoing debate over lawyer whistleblowing and the concomitant question of whether such a lawyer may collect a financial reward or “bounty” when that is a feature of the law involved, for example, the Dodd-Frank Act. In 2013 the New York County Lawyers Association issued Formal Opinion 746, saying in part:

New York lawyers who are acting as attorneys on behalf of clients presumptively may not ethically collect whistleblower bounties in exchange for disclosing confidential information about their clients under the whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act because doing so generally gives rise to a conflict between the lawyers’ interests and those of their clients. 

This opinion is not uniformly shared. A recent commentator has criticized the opinion as a misinterpretation of both law and ethics. See, Dennis J. Ventry, Jr., “Stitches for Snitches: Lawyers as Whistleblowers” 2017 UC Davis School of Law 1455.

Another issue that arises in the film suggests the continuing debate over succession planning.  Most states have a state supreme court rule providing for the appointment of a receiver for the protection of client interests. Several states require individual lawyers to specifically designate a successor lawyer to assume responsibility. As the film opens, Roman has been working for more than 25 years for a sole practitioner who treats him as an equal professionally, but pays him as the lowly associate that he is. When the sole practitioner dies suddenly, Roman is left out.

It is unfortunate that succession planning remains an issue and is not standard practice. In 1992, ABA Formal No. 92-369 said, in part:

[A] lawyer should prepare a future plan providing for the maintenance and protection

of those client interests in the event of the lawyer’s death. Such a plan should, at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention, and who would notify the clients of their lawyer’s death.

Indeed, Roman’s situation recalls the plight of the approximately two dozen lawyers who were similarly stranded when acclaimed Chicago lawyer Leonard Ring died suddenly in 1994.  Because there was no succession planning and because of the laws and ethics of Illinois at that time, the estate transferred the substantial case “inventory” to other firms. See, Mark Hanson, “Death Shutters a Law Firm,” ABA Journal, October 1994.

Nowadays, ABA Model Rule 1.17 allows the sale of a law practice without fear of violation of Rule 5.4(a)(2) as that Rule specifically allows payment to the estate or other representative of the lawyer. Thus, there is no improper sharing of legal fees with a nonlawyer.

Finally, though the film occurs in the present day, one cannot help but notice that Roman is a vintage character – he is a civil rights activist of the 1960s wearing clothes of the 70s with a flip phone from the 90s and iPod from the 2000s. But the ethics issue may actually be found in his office equipment, which does not appear to be consistent with Rule 1.1 Comment [8]: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes…including the benefits and risks associated with relevant technology.”

“’Roman J. Israel, Esq.’ offers lessons on common ethical challenges” originally appeared in the September 2018 edition of the YourABA member newsletter. Click here to view the entire issue.

The ABA Center for Professional Responsibility advances the public interest by promoting and encouraging high ethical conduct and professionalism by lawyers and judges. The Center provides leadership and guidance to the legal profession and the judiciary by developing, interpreting and promoting the implementation of policies and standards that govern the conduct and regulation of lawyers and judges, including examining the challenges and opportunities of today’s global legal environment, and by producing scholarly and other resources. These efforts seek to assure that lawyers and judges perform their duties in a manner that advances respect for the rule of law, the legal process, the legal profession and the judiciary.