Lawyer Reprimanded for Press Interview
A Pennsylvania lawyer agreed to receive a public reprimand after he released information to the media that compromised his client’s interests.
William C. Penglase, of Bucks County, entered into a
Joint Petition in Support of Discipline on Consent. In the Petition, Penglase stipulated that he was appointed to represent a defendant in a murder case. Initially the client agreed to plead guilty. Penglase obtained video recordings of the client admitting to guilt of the crime. Without his client or co-counsel’s knowledge, Penglase met with a reporter, conducted an interview about the pending guilty plea, and provided the reporter with a copy of the video.
Shortly later, the client changed his mind and informed Penglase and co-counsel that he did not want to plead guilty, insisting on going to trial. Co-counsel and the client only found out about Penglase’s interview when he called the reporter’s station from the courtroom, trying to prevent the interview from being broadcast.
After revelation of the interview, the client retained private counsel and went to trial where he was found guilty. The parties stipulated that the revelation of the video significantly impacted trial strategy and led to numerous pre-trial and trial issues. Penglase stated that he thought he was acting in the client’s interest by releasing the information shared, and that it was not to be published until after the client’s plea was entered. He conceded that the latter expectation was “imprudent and irresponsible.”
The parties agreed that Penglase’s conduct violated the following Rules of Professional Conduct:
- 1. RPC 1.1, competence;
- 2. RPC 1.2(a), failing to abide by the client’s decisions as to objectives;
- 3. RPC 1.4(a), failing to consult with the client as to the means of achieving objectives;
- 4. RPC 1.6(a), confidentiality;
- 5. RPC 3.6(a), extrajudicial statement; and
- 6. RPC 8.4(c), conduct prejudicial to the administration of justice.
The Disciplinary Board approved the Joint Petition, and has scheduled a
Public Reprimand for Penglase on July 22, 2020.
Social Media Present New Competency Challenges
Social media have transformed much of American culture over the past decade or two, and its pervasive effect on American lives is here to stay. As the Florida Law Journal noted, “it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.”
In
an article in the ABA Journal, Craig Carpenter and John Patzakas of X1 Discovery, a legal software firm, discuss how the reach of social media presents challenges for lawyers seeking to maintain their competence in finding and presenting evidence from social media. They note that many bar associations, including the ABA and the Pennsylvania Bar Association, have stated in ethics opinions that lawyers have a responsibility to know how to access, preserve, and use social media as a consequence of the duty of competence under Rule 1.1.
Comment [8] to Pennsylvania Rule 1.1 states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
The authors outline several of the challenges associated with employee use of social media, noting that at least 34% of people admit to using personal social media on work time. Risks include that employees will make controversial statements reflecting negatively on the business, will disclose employer business that is confidential or private, or will disparage competitors or clients in ways harmful to the employer. They stress the importance of both establishing and enforcing social media policies.
They also discuss the importance of establishing a foundation for admission of social media content. Courts have generally held that a simple printed copy of a social media post is admissible without a foundation establishing its authenticity. Technological options enable wide and efficient searches of social media websites and preservation of the information found in a form that will be admissible as evidence.
Ethical Response to Negative Reviews
Another new reality of the 21st century world is that lawyers face reviews posted online for all to see. Positive reviews can be rewarding, but as law is a profession doused in controversy, negative reviews by unhappy clients have become an issue for many lawyers. Can a lawyer ethically respond to a negative review?
Philadelphia lawyer Cynthia Sharp addresses the question in an
article published in the ABA Journal.
The first point she makes is that lawyers remain bound by
Rule 1.6 of the Rules of Professional Conduct, involving confidentiality, in responding to client complaints. The “self-defense” exception of Rule 1.6(c)(4) does not apply to public communications outside of a proceeding. Based on a Los Angeles County Bar Association opinion, she notes that a lawyer may respond to a review if:
- 1. no confidential information is disclosed;
- 2. the response does not injure the former client relating to the representation; and
- 3. the response is “proportionate and restrained".
Ethics opinions in several states, including Pennsylvania, have reached similar conclusions.
Thomas Wilkinson, Jr. of Philadelphia, a member of the ABA Standing Committee on Professionalism, suggests the following sample response to a negative review: “Lawyer confidentiality obligations prevent us from correcting the factual background in this post. We are very proud of our track record of client satisfaction and favorable results.”
Sharp cites several cases in which lawyers received discipline for ill-considered reactions to online reviews, for revealing confidential information, client identities, public criticism of the client, and false representations in response. She notes, “Common sense and restraint should be exercised, even when emotions make that difficult.”
Sometimes the best counters to bad online reviews are good ones. However, there is ethical risk in a lawyer seeking positive reviews from clients too vigorously. Promotion of positive client reviews may require a qualifier or disclaimer that past results do not guarantee a future outcome. Another risk is “astroturfing,” the practice of creating or soliciting positive reviews from people who are not actually clients. A lawyer who pays an individual or third-party vendor for the generation of positive reviews runs the risk of violating
Rule 7.2(c) of the Rules of Professional Conduct, which states, “A lawyer shall not give anything of value to a person for recommending the lawyer’s services,” subject to certain exceptions. Inducing clients by the use of solicited reviews may even lead to civil liability, as happened to a Pittsburgh law firm that directed staff to solicit five-star reviews from friends and family members.
ABA Opinion Explores Duties to Prospective Clients
Most lawyers are familiar with their duties to people with whom they have formalized a client-attorney relationship. But what responsibilities does a lawyer have to a person who approaches him or her about representation, if that relationship is not formed?
Formal Opinion 492 (6/20/2020) from the ABA’s Standing Committee on Ethics and Professional Responsibility addresses that question.
The primary source for understanding a lawyer’s duty to prospective clients is
Rule 1.18 of the Rules of Professional Conduct. Rule 1.18 defines a prospective client as “A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.”
Rule 1.18(b) is somewhat narrower than the confidentiality provisions of
Rule 1.6. It only requires that a lawyer who has learned information from a prospective client shall not use or reveal information which may be “significantly harmful” to that person. The Pennsylvania-adopted rule differs from the ABA Model Rule, which prohibits the lawyer to “use or reveal that information, except as
Rule 1.9 would permit with respect to information of a former client.” The ABA Model Rule does, however, incorporate the “significantly harmful” language into the disqualification provisions of Rule 1.18(c). Both the Pennsylvania and ABA versions provide that a lawyer is disqualified from representing another person with interests materially adverse to the prospective client in the same manner if they have learned information which could be “significantly harmful” from the prospective client. That disqualification extends to the lawyer’s entire firm, subject to certain narrow exceptions set forth in Rule 1.18(d).
The ABA opinion notes that the prospective client need not disclose confidential information to seek a lawyer’s disqualification, nor prove that the shared information actually resulted in harm. The opinion notes, “[T]he Model Rule addresses information that ‘could be significantly harmful,’ a standard that ‘focuses on the potential use of the information.’” The opinion cites cases finding that examples of significantly harmful information could include:
- sensitive or privileged information that the lawyer would not have received in the ordinary course of due diligence;
- information that has long-term significance or continuing relevance to the matter, such as motives, litigation strategies or potential weakness;
- premature possession of information that could have a substantial impact on settlement proposals and trial strategy;
- personal thoughts and impression about the facts of the case; or
- information that is extensive, critical, or of significant use.
The fact that information is detrimental or embarrassing may not, however, be sufficient to meet the “significantly harmful” standard.
The Committee notes that Comment 4 to Rule 1.18 advises that the lawyer should “should limit the initial consultation … to only such information as reasonably appears necessary” to the decision whether to accept the case. This is not a recommendation to make decisions on inadequate information; it warns that the more information the lawyer gathers, the more likely it is they may be disqualified from representation related to the subject matter of the consultation.
Pants Vendetta Lawyer Suspended
We have over the years reported several incidents in the sad saga of District of Columbia lawyer Roy Pearson, Jr., who became the poster child for the dangers of obsession with his extended series of litigation over a lost pair of pants.
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Pearson’s ruinous quest began in 2005, when he visited Custom Cleaners in Washington, DC, only to discover that a pair of pants brought in for alterations had been lost.
2 Pearson sued the cleaner for $15,000 for emotional distress and punitive damages under the District’s consumer protection law, based on signs at the cleaners that said, “Satisfaction Guaranteed,” “Same Day Service,” and “All Work Done on Premises.” After losing the case at every level, Pearson kept escalating his demands until the total he sought reached $67 million, including $90,000 to rent a car to drive to another dry cleaner, $3 million for emotional distress, and $500,000 in legal fees for 1200 hours of work. He also got into trouble for misquoting a case, accusing the trial judge of bias, and making numerous choices which made the case time intensive.
Stories about the case may have led to Pearson not being reappointed to his job as an administrative law judge.
Finally, on June 4, 2020, the District of Columbia Court of Appeals entered an
Order suspending Pearson from the practice of law for 90 days. The Court noted that its Board of Professional Responsibility found that Pearson showed no remorse or change in attitude, but litigated the disciplinary case with the same uncompromising and unreasonable approach he brought to the pants litigation. The Court found that Pearson violated Rules 3.1 (frivolous litigation) and 8.4(c) (conduct prejudicial to the administration of justice), and suspended him for 90 days.
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1 It turned out the cleaners said they found the pants, but Pearson claimed they altered another pair to look like his.
3 You were braced for a suspenders joke here, weren’t you?
