This article was begun back in October—a simpler time, it seems. The impetus was the comment ascribed to Secretary of State Rex Tillerson—not an attorney—that the President was a “moron”. While the rules of ethics that apply to the attorney-client relationship do not apply to their president/cabinet member relationship, there seemed something absolutely wrong with the comment.

This may sound prissy, coming from a writer with the vocabulary of a truck driver, but we are lawyers and are obligated to treat our clients (and former clients) with a certain degree of respect in communicating with third parties, however difficult that may sometimes be. And those who don't sit exclusively in the ivory tower of academia, but have been in the trenches, know exactly what I'm saying.

This is not about where the client affirmatively wants his lawyer to badmouth him for calculated reasons; those who adopt the strategy of “Sometimes it's good for the batter to think the pitcher is a little bit crazy.” There, a client may hope the adverse party will knuckle under to the threat of having to deal with a “crazy”—even financially suicidal—adversary for whom there are ostensibly no holds barred. Nor does this column address cases like that presently pending before the Supreme Court, McCoy v. Louisiana, where the defense lawyer in a death penalty case, over the client's specific objection, far more than “badmouthed”—he told the jury that his client was actually guilty of triple homicide, in order (unsuccessfully, it turns out) to beat the death penalty. Such a case has obvious Sixth Amendment implications not covered here.

Nor does this article address situations like that presented years ago, in the criminal prosecution of real estate baroness Leona Helmsley. There, her very talented trial lawyer surprisingly opened to the jury by calling her—his client—“a tough bitch,” presumably hoping to promote the idea that witnesses were lying because she had been “mean” to them. Likely, Helmsley—the “Queen of Mean”— agreed to that strategy, however unpleasant.

Current Examples

Let's deal, instead, with scenarios where the attorney badmouths the client (or former client), without the client's blessing. We have seen it recently in comments made by Lisa Bloom, and David Boies, about their mutual (former) client Harvey Weinstein. You would have to be living under that proverbial rock to not know that Weinstein has been accused by dozens of women of harassment and even rape.

Bloom has long represented women who have been bullied, harassed and abused. Yet, she took Weinstein as a client, and less than two weeks later resigned. She has now spent more time apologizing and explaining her own actions. She has said: the representation was a “colossal mistake”; that “just being associated with this was a mistake,” that she was “mortified to have been connected with him.”

David Boies, one of the nation's most accomplished and respected lawyers, publicly apologized for his role in overseeing a contract with investigators which Boies explained he understood was to ascertain what Weinstein was accused of, “and to try to find facts that would prove the charge to be false and thereby stop the [newspaper] story,” which The New York Times claimed was inconsistent with Boies's representation of The Times in other matters. (Boies issued a statement that his retainer agreements and the circumstances allowed the representation). Boies told The New Yorker: “In retrospect, I knew enough in 2015 that I believe I should have been on notice of a problem [with Weinstein's behavior], and done something about it. I don't know what, if anything, happened after 2015, but to the extent it did, I think I have some responsibility … .” And in his statement to his staff which was released to the press, he tells them he was lied to and that he would never “knowingly participate in an effort to intimidate or silence women … .”

Confidentiality Under the Rules

While the sacrosanct attorney-client privilege is widely recognized and abided by, lawyers may be less aware of their ethical obligation to maintain their clients' confidences, regardless of whether counsel is told about those confidences by the client or third parties. Rule 1.6 of the New York Rules of Professional Conduct states that, with certain exceptions, a lawyer may 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.” “Confidential information” is information gained during or relating to the representation of a client, whatever its source, that is protected by the attorney-client privilege, likely to be embarrassing or detrimental to the client, or information that the client has requested be kept confidential. Cf., ABA Model Rules of Professional Conduct 1.6. These Rules apply to current and former clients. NY and ABA Rules 1.9.

The ABA Standards for Imposing Lawyer Sanctions takes violations of confidentiality very seriously and recommends suspension if the disclosure causes injury or potential injury (at 4.22). While New York case law is sparse on this issue, here are cautionary tales in our world of reflexive tweets. Colorado attorney James Underhill Jr. had a history of disciplinary troubles. But he was suspended for 18 months when he responded to posts by former clients placed on the Better Business Bureau website and Yelp with his own “Internet posts that publicly shamed the couple,” in which he made “uncomplimentary observations about and accusations against the couple based on confidential information related to the representation.” Another Colorado attorney (also with a history) was suspended for six months, for posting, in response to online complaints that he was the “worst” attorney, substantial confidential information, including accusing a client of forgery. People v. Isaac, 2016 WL 6124510. In Washington, D.C., an attorney responded to an anonymous yet highly critical posting by a former client with detailed information about that client. He was informally admonished, even though he never identified the client by name. In re Mahoney, D.C. Bar Docket 2015-D141.

In short, a lawyer cannot use confidential information to protect himself from negative on-line posts. And to be clear—the “self-defense exception” to Rule 1.6, which allows disclosure to the extent the lawyer reasonably believes it necessary to defend an accusation of wrongful conduct, simply does not apply. NYSBA Ethics Op. 1032; cf. NYC Bar Formal Op. 1986-7 (exception applies to lawyer accused of wrongdoing by prosecutor who can disclose to the “extent necessary”).

Conclusion

As lawyers, we have our good name and our reputation. But sometimes it may be necessary to put those to the side to observe our ethical obligation of keeping silent, even when—or especially when—our client lies to us. Our clients, frankly and in many circumstances, may not have such a good name or reputation. But they certainly have the right to be confident that we, their lawyers or former lawyers, aren't piling on for whatever seeming justification we may think we have.

Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan. He is an adjunct professor at Fordham Law School. Dale J. Degenshein, special counsel at Stroock, assisted in the preparation of this article.