United States: Fettered Is Almost Always Better For Lawyers.

Last Updated: October 11 2019
Article by Brian S. Faughnan

Fettered is a fun word on a number of levels. It is a word lawyers are usually familiar with when it has a prefix attached to it and gets used when we talk about disclosures or access as being “unfettered.” But, it is also a word that literally means “to be restrained with chains,” so it would not be an entirely incorrect usage of “fettered” to describe being physically handcuffed … although it usually involves chains or manacles around the ankles rather than handcuffs.

The connection created by that word and its meanings is truly the only thing that prompted me to link the following two stories of interest for lawyers.

One involves a very thoughtful court ruling that provides a road map for the way lawyers should go about avoiding unfettered disclosure of client confidences even when they have the right to defend themselves.

The other involves a lawyer who so flagrantly went about things the wrong way that her lateral move ended with her in actual handcuffs for a couple of days, not to mention likely financial handcuffs for many years to come.

I’ve often spoken with lawyers about how the right to disclose confidential client information to defend your conduct is clearly acknowledged by the ethics rules, but also still an endeavor not entirely free of risk given the limits imposed under those same ethics rules. Model Rule 1.6(b) and its accompanying paragraphs of Comment actually combine to do a very good job of explaining to lawyers how they still have to go to some pains to try to protect information, even in the face of unreasonable conduct by clients (or former clients) behaving incredibly unfairly.

The two biggest components of those “pains” are: (1) that you cannot simply unleash and disclose everything you know that might be damaging to your former client but have to make measured disclosures that are only what is reasonably necessary to defeat the allegations against you, and (2) that you likely also must make some effort to see if the Court will allow you to file what you have to say under seal or under some other form of protective order to prevent far and wide dissemination of the information you are disclosing. But, what happens a fair percentage of the time is that lawyers read the rule but not necessarily the explanatory comments.

In connection with a criminal case in federal court in West Virginia involving accusations of ineffective assistance, a U.S. Magistrate Judge issued a very well structured and thoughtful opinion that essentially follows the guidance of the rule and its comment in a way that provides a good model for letting a lawyer defend their conduct while properly imposing safeguards to avoid unfettered disclosures. Thus, the full opinion is now another place to point lawyers to beyond just the Comments where they can read the preferred way this needs to work. As a bonus, it also provides an excellent gloss on a now-decade-old ABA Formal Ethics Opinion that some folks believed went a bit too far.

As to the lawyer who likely thought she was seeking greener pastures but ended up in handcuffs, the easiest place to succinctly describe Chelsea Merta’s conduct is a paragraph or two of the Confession of Judgment and Consent Permanent Injunction Ms. Merta entered in state court in St. Louis, Missouri around 10 days ago:

3. On or about February 2, 2018, seven days prior to her resignation, Merta transferred approximately 22,000 data files from SLF [her then firm] onto a portable USB flash drive without authorization from SLF. The data files that were transferred to the portable USB flash drive included files from SLF’s clients and SLF. Merta took the flash drive containing these files and, upon her resignation (despite representations to the contrary during her exit interview with SLF), retained the files. Many of those files were later found to be contained on [her and her new firm’s] MacBook Pro computers and cloud storage accounts.

4. Prior to her resignation and without authorization from SLF, Merta tampered with, deleted, and wiped her SLF computer, her SLF-issued smart phone, and other storage locations of all data, including data related to SLF’s clients and SLF, and also informed three clients of her imminent departure from SLF. Thereafter, following the submission of her notice of resignation, but prior to it becoming effective, Merta contacted a number of clients to inform them of her resignation and inform them that they could transfer their file to her new law firm.

In that confession of judgment, Merta agreed that the damages caused to her former firm were in excess of $550,000. The consent judgment also references the Court having already awarded damages against her for more than $200,000 over conduct involving contempt of court.

It was the contemptuous conduct – which itself at heart was continued refusal to relinquish the improperly taken files and continued misrepresentations to the Court about those facts – that also resulted in her spending two nights in jail until she purged the contempt. You can read all about the contemptuous conduct in this earlier order here.

Merta’s behavior when leaving to start a new firm, I sadly believe, happens a lot more often than you might think. It usually does not come to light for a variety of reasons, such as the dynamic associated with the pros and cons for the firm that has been wronged of ever pursuing the wrongdoing because of potential adverse effects for the firm and for continued discomfort on the part of its current and former clients. The reason that lawyers can tend to get away with this kind of conduct though is not that the departing conduct can’t be proven as the order lays bare. Technology these days makes it very difficult to not leave behind the kind of digital trail that Merta left.

Nevertheless, the tendency to engage in the conduct on the way out the door is fundamentally puzzling because it is antithetical to what lawyers usually are — risk adverse. It will likely come as no surprise to hear that this particular lawyer also has been pursuing bankruptcy proceedings. Thus, this case demonstrates just how significant the financial and professional risk of doing this can be in those cases where the firm that is wronged does make the decision to plow forward with proving it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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