I’ve been known in the past when writing or speaking about Model Rule 4.2 and the restrictions it imposes to make the point that our ethics rule treats grown up adults as incapable of making decisions for themselves. Mostly jokingly I make that point. When elaborating it is merely to focus on the idea that in order to protect clients from overreaching by adverse counsel the rule does not allow the client to make the decision it wishes to communicate with the lawyer for their adversary. The consent to allow such a communication to occur has to come from the lawyer for that person.
But, what can happen when a represented client decides to freelance and talk about their legal issues without the input of their counsel? Well, as luck would have it during this extremely historic week in the United States, we have an example that can be taught and learned from.
An example where the client made a public communication that could be described by those who read it as “incoherent,” “utterly frivolous,” “chock-full of impenetrable arguments and unsupported assertions,” “organized in ways that escape our understanding," and that “capitalizes words seemingly at random.”
You probably know exactly what I am referring to.
What? No, I didn’t see that the third President in U.S. history to ever be impeached sent a letter out earlier this week that his lawyers didn’t bless. I’ll have to check that out.
No, I’m referring to a brief that was filed in the Seventh Circuit Court of Appeals by a represented party but that wasn’t actually authored or approved by the lawyer for the party.
Though as both the article and the opinion stress in their own ways, the true problem for the lawyer involved in this situation, and the reason for sanctioning, was the decision to let the client’s filing appear as if it had been the work-product of the lawyer and not a pro se filing by the client. The Seventh Circuit was particularly chapped when it first ruled at the notion that an attorney was responsible for a “monstrosity of an appellate brief.”
The patently frivolous nature of this appeal isn't the only thing that troubles us. The hopelessness of McCurry's cause didn't deter her lawyer, Jordan Hoffman, from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in the law.
That, in and of itself, is a rare variation on a topic much-discussed, and likely much more common, when a lawyer offers behind-the-scenes assistance to a client but then has the client make the filing pro se and without disclosing that a lawyer’s assistance was provided. That is a set of circumstances that can also bring about ire from a court but for entirely different reasons.
As a reminder to my Tennessee-based readers, we have a Formal Ethics Opinion addressing that particular ghostwriting issue, which you can refresh your memory about at this link.
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.