Lawyers Wearing Two Hats

My former student, and prolific anti-juristocracy commentator Beau Baumann, recently proposed a Brad Wendel Bat Signal on Bluesky, for legal ethics issues that need to be urgently addressed. I hadn’t yet read the New York Times story by Jodi Kantor and Adam Liptak on the origins of the Supreme Court’s shadow docket, which was sourced to 16 pages of internal memos among the justices, written in 2016. I didn’t quite see any legal ethics issue related to this, but Harvard law professor Stephen Sachs wrote a Substack post in which he suggested that not only was the leak of the documents a serious violation of the Court’s confidentiality rules, but

may also reflect serious legal-ethics violations by one of the Times article’s coauthors, Adam Liptak, whom I understand to be a licensed attorney in New York and subject to that state’s Rules of Professional Conduct.

The rules in question are Rule 8.4(f), prohibiting a lawyer from “[k]nowingly assist[ing] a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law,” and Rule 8.4(d), the D.C. version of which (more on that below) prohibits “[e]ngag[ing] in conduct that seriously interferes with the administration of justice.”

I was going to respond on Bluesky with one of those chain posts, but it got out of hand pretty quickly. There are several issues raised by Professor Sachs’s Substack that are worth a closer look. The bottom line is that I’m doubtful that Liptak’s conduct violated either of these provisions of the relevant rules of professional conduct, which renders the First Amendment analysis moot.

The issue of lawyers wearing two hats arises frequently for in-house counsel, who are lawyers and corporate officers (see one of my favorite teaching cases on attorney-client privilege and work product, U.S. v. ChevronTexaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal. 2002)); lawyers who are also licensed clinical social workers and thus may have an obligation to report misconduct where the reports would involve disclosure of confidential information (there is tons of writing on this – I did a CLE on it a few years ago); and in connection with the 2020 presidential election it was an issue for lawyer-spokespeople or lawyer-political advisors like Cleta Mitchell and Rudy Giuliani. What makes these cases so interesting is there’s no clear priority principle: The lawyer rules and the legal norms of the other discipline each claim to supersede the other. So Adam Liptak as a lawyer-journalist cannot rely on the exclusivity of either set of norms, assuming they both apply to the conduct and mandate inconsistent conduct. This is a fun issue to talk about, and I’m grateful to have been summoned.

But first, a boring but necessary issue:

Lawyers and scholars working in the law of lawyering often refer to the ABA’s Model Rules of Professional Conduct as a shorthand, but it’s important to remember that the Model Rules have no regulatory authority. As my late rulebook co-editor Larry Fox one said, when the ABA House of Delegates votes on adoption or an amendment to the Model Rules, the only thing that happens is the publication of a booklet. That’s very true. The Model Rules do serve as a model – hence the name – for state courts to use in adopting rules of professional conduct for lawyers in their jurisdiction. In general the Model Rules have been influential, and most states follow them closely enough, in most particulars, that a nationally relatively uniform body of the law governing lawyers has developed.

As I remind students, however, there are significant jurisdictional variations with respect to many rules. The classic example is confidentiality and its exceptions, where Model Rule 1.6 is not the governing law in most places (with California famously having an almost-exceptionless prohibition in revealing confidential client information). The advertising and solicitation rules vary a lot, too, which is a real headache for multistate law practices. Lawyers can make mistakes by blowing past the choice-of-law analysis.

Adam Liptak is a legal journalist employed by the New York Times and also a lawyer admitted to practice in New York. The leaks occurred in Washington D.C., and according to Professor Sachs’s theory of prejudice to the administration of justice, the leak had its predominant effect in the District of Columbia. Like all lawyers, Liptak remains subject to the disciplinary authority of his admitting jurisdiction (which, weirdly, in New York is one of the four Appellate Divisions of the Supreme (trial) Court; I’m admitted in the Third Department, for example, and I suspect Liptak is in the First Department). But that doesn’t necessarily mean the New York Rules apply to his conduct. Rule 8.5(b)(2) of the D.C. Rules of Professional Conduct, pertaining to conduct not in connection with a matter pending before a tribunal, provides:

In any exercise of the disciplinary authority of this jurisdiction, the Rules of Professional Conduct to be applied shall be as follows . . .

(i) If the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and

(ii) If the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

New York’s rule is similar. Both of these jurisdictions have declined to adopt the ABA’s Model Rule 8.5(b)(2), which provides:

In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows . . .

(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

The ”predominant effect” test in the Model Rules is so much more helpful than the test in the New York and D.C. Rules which refer only to the jurisdiction of the lawyer’s licensure. The point of the rules of professional conduct is to protect clients, i.e. the citizens of a jurisdiction; it makes sense that the jurisdiction whose citizens would be affected by the lawyer’s conduct have the most significant interest in the application of its rules.

Under the Model Rules approach to choice-of-law, the D.C. Rules would almost certainly be the applicable law. On the NY version of Rule 8.5(b), it would be New York, on the assumption that Liptak is only licensed there. Some uncertainty is created by D.C. Rule 8.5(b), however, with its reference to the rules of either the lawyer’s admitting jurisdiction (NY) or the jurisdiction where the conduct clearly has its predominant effect (DC, I think), but that provision is qualified by the assumption that the lawyer is also licensed in D.C. Liptak is not, and D.C. Rule 8.5(a) does not include the language from Model Rule 8.5(a) that a lawyer is subject to discipline in D.C. if the lawyer provides or offers to provide legal services in that jurisdiction. Presumably this is because the D.C. Rule presupposes background law on unauthorized practice of law. In general, a lawyer must be admitted in D.C. (I’m not sure whether that includes pro hac vice admission, but it must) to practice law in D.C. There is no equivalent in D.C. to Model Rule 5.5(c), permitting temporary practice in a jurisdiction in which a lawyer is not licensed under appropriate circumstances.

So, the bottom line is . . . uhh, I’m not sure? D.C. seems to be the jurisdiction that clearly has the biggest stake in the matter. Indeed, Professor Sachs’s argument for the application of Rule 8.4(d) is that it is prejudicial to the administration of justice to “compromise[] and disrupt[] the deliberative process, the most essential function of the court” by disclosing nonpublic information. The predominant effect of the disclosure would therefore appear to be in D.C. Even though D.C. Rule 8.5(b)(ii) assumes dual licensure, it seems far more likely that the D.C. Office of Disciplinary Counsel would take an interest in the matter than the First Department in New York. If the latter grievance committee did decide to investigate and prosecute this matter, however, it would presumably apply the New York Rules, following N.Y. Rule 8.5(b).

Does the choice of law analysis make a difference? Actually, it very well might. The D.C. version of Rule 8.4(d) prohibits conduct that “seriously interferes with the administration of justice.” The modifier “seriously” is absent from the NY and ABA version of the rule. Presumably it is there to put a thumb on the scale against discipline in close cases. More importantly, however, the D.C. version of the rule has a comment elaborating on what conduct might seriously interfere with the administration of justice:

Paragraph (d)’s prohibition of conduct that “seriously interferes with the administration of justice” includes conduct proscribed by the previous Code of Professional Responsibility under DR 1-102(A)(5) as “prejudicial to the administration of justice.” The cases under paragraph (d) include acts by a lawyer such as: failure to cooperate with Disciplinary Counsel; failure to respond to Disciplinary Counsel’s inquiries or subpoenas; failure to abide by agreements made with Disciplinary Counsel; failure to appear in court for a scheduled hearing; failure to obey court orders; failure to turn over the assets of a conservatorship to the court or to the successor conservator; failure to keep the Bar advised of respondent’s changes of address, after being warned to do so; and tendering a check known to be worthless in settlement of a claim against the lawyer or against the lawyer’s client. Paragraph (d) is to be interpreted flexibly and includes any improper behavior of an analogous nature to these examples.

The comment to D.C. Rule 8.4 indicates that “conduct prejudicial to the administration of justice” generally is defined as conduct related to either (i) a pending adjudicative proceeding (including conduct like abusive or disruptive behavior in court or at a deposition) or (ii) the attorney disciplinary process. The highlighted language at the end is a little ejusdem generis cue, to interpret the open-ended rule in accordance with the enumerated examples. The ABA’s very useful resource, the Annotated Model Rules of Professional Conduct, while interpreting Model Rule 8.5, similarly indicates that the rule is “most often applied to conduct connected with proceedings pending before a tribunal.” New York, weirdly, has not officially adopted comments to its rules, but the New York State Bar Association has published unofficial comments, which are widely recognized as helpful guidelines to interpreting the rules. Unofficial comment [3] to N.Y. Rule 8.4 says:

The prohibition on conduct prejudicial to the administration of justice is generally invoked to punish conduct, whether or not it violates another ethics rule, that results in substantial harm to the justice system comparable to those caused by obstruction of justice, such as advising a client to testify falsely, paying a witness to be unavailable, altering documents, repeatedly disrupting a proceeding, or failing to cooperate in an attorney disciplinary investigation or proceeding. The assertion of the lawyer’s constitutional rights consistent with Rule 8.1, Comment [2] does not constitute failure to cooperate. The conduct must be seriously inconsistent with a lawyer’s responsibility as an officer of the court.

So the “seriously” language comes back, only in an unofficial comment. (New York really is weird.) The comment also uses examples similar to the D.C. comment, indicating that application of the rule should stick close to conduct involving interference with a pending judicial proceeding.

Aha! you might say – the rule is “mostly” applied in that context, but that means there might be other contexts in which it would pick up conduct not in connection with either a pending judicial proceeding or a bar disciplinary matter. That’s right in theory, but the caselaw indicates that most of those cases involve either criminal conduct, abuse of a public office or position of trust, or sexual misconduct. In other words, conduct that the D.C. rule (or the N.Y. rule interpreted in conjunction with unofficial comment [3]) would identify as “seriously” interfering with the administration of justice.

Even without the “seriously” qualifier, it would be a big stretch to apply the rule to leaking court documents, let alone receiving leaked court documents in ones capacity as a prominent legal journalist. Here’s where the two-hats problem returns.

Before getting to the First Amendment, I think the application of Rule 8.4(d) in this context should be sensitive to free speech and free press values (sort of like the way the common law fact/opinion distinction in defamation litigation is sensitive to expressive liberties even apart from the Sullivan/Gertz line of cases). A disciplinary authority should be reluctant to conclude that a legal journalist doing his job as a journalist is engaging in conduct that is [seriously] prejudicial to the administration of justice, just because the journalist also happens to be a lawyer.

I think it is overwhelmingly likely that the First Department grievance committee (in New York) or the D.C. Office of Disciplinary Counsel would refuse to pursue a complaint against Liptak under Rule 8.4(d). To clarify, however, I’m not falling back on the crude legal realist position that avoiding sanctions is equivalent to lawful conduct. I believe the correct application of Rule 8.4(d) should stick close to conduct that is disruptive to a pending judicial proceeding or the disciplinary process, and only in very rare situations involving very serious misconduct should the rule reach other conduct.

Professor Sachs also contends that Liptak’s conduct may violate Rule 8.5(f) which, conveniently, is identical in New York, D.C., and the ABA Model Rules:

It is professional misconduct for a lawyer to . . . knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law . . ..

I am not for a minute questioning the seriousness of leaking court documents. The federal appellate court judge I clerked for loathed The Brethren and severely admonished all his law clerks that disclosing any confidential information about cases that came before the court, discussions in chambers, or anything else, was about as serious as misconduct could be. I accept that, but it doesn’t mean that it would be a violation of applicable rules of judicial conduct for a judicial officer (including a law clerk) to disclose the memos.

The relatively recently adopted Supreme Court Code of Conduct does not contain an equivalent of the supervisory duties provision in the ABA’s Model Code of Judicial Conduct, Rule 2.12(A):

A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.

Anyway, it’s not clear that the Supreme Court Code includes confidentiality obligations for the Justices. Professor Sachs cites Rule 4(D)4:

A Justice should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the Justice’s official duties.

Maybe, but the location of that provision in the section dealing with financial activities strongly suggests it pertains to activities like insider trading, not leaking to journalists.

There’s very little caselaw interpreting Rule 8.4(f). It’s literally a half page in the Annotated Model Rules. It plays no role in the very recent ABA Formal Op. 26-522, which requires lawyers to disclose information they have that bear on judicial disqualification or recusal. The few decided cases involve things like colluding with a judge to improperly obtain an ex parte injunction and nondisclosure of a romantic relationship with a judge.

Moreover, at least in the law of lawyering, the word “assist” generally denotes something beyond passively receiving information or even encouraging its transmission. A very important provision of the Model Rules of Professional Conduct for lawyers is Rule 1.2(d):

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . .

A recent ABA opinion, Formal Op. 24-513, was issued to provide guidance to lawyers regarding their obligation to investigate the facts and circumstances of a representation to ensure that their services were not being used to assist conduct that is criminal or fraudulent. Model Rule 1.16(a)(4) was also recently amended to recognize a risk-based due diligence obligation to ensure that the lawyer’s services are not being used to assist criminal or fraudulent conduct. The word “assist” kind of lurks undefined in these recent ABA documents, but it is very clearly defined in the law governing lawyer civil liability for providing knowing, substantial assistance in wrongful conduct by the client, such as a breach of fiduciary duty. See, e.g., Baker v. WilmerHale, a Massachusetts Court of Appeals case I love teaching. Whatever Liptak did to cajole the leaker to disclose the memos, it almost certainly falls well short of the level of providing assistance in the conduct.

One of the principles that guides writing this Substack is “stay in your lane,” and I’m not a First Amendment scholar by any means. But lawyer regulation often bumps up against the First Amendment, in areas like advertising, pretrial publicity, anti-discrimination norms, and bar admissions, so I’ve picked up a little here and there.

Professor Sachs first mentions the two-hats scenario:

Nor does it matter that Liptak is a journalist as well as an attorney. For example, if a Times journalist were also a licensed New York social worker, he might be required to act as a mandatory reporter and to inform the Office of Children and Family Services of suspected child abuse discovered in his professional capacity—even if he might prefer to keep that information confidential and to develop a source for news articles about the abuse instead. The additional role carries with it additional duties (even conflicting duties), whether they involve communicating information or keeping it confidential.

I agree with this, and mentioned the social-worker example above as a case in which a two-hatted lawyer may face genuinely conflicting obligations. Wearing a journalist hat along with a lawyer hat does not provide any additional protection, qua lawyer, to Liptak if there is any real possibility of bar discipline (which I don’t think there is). What has become interesting recently, as a result of the Court’s professional speech jurisprudence, is the following contention:

Nor does Liptak necessarily have any First Amendment right to violate the Rules of Professional Conduct. If, for example, the nonpublic material described in the article had arrived at the Times unsolicited, it’s possible that the First Amendment (as construed in Bartnicki v. Vopper) would restrict state interference with its publication. But attorneys are often under confidentiality obligations that the First Amendment doesn’t impose on others. (A lawyer who receives unsolicited material accidentally produced by the other side sometimes has to give it back.) And were an investigation to show that Liptak solicited or took part in soliciting a violation of court-imposed confidentiality rules, that solicitation wouldn’t be protected by the First Amendment, any more than any other speech that serves as an “integral part of conduct in violation of a valid” legal-ethics rule. Either way, a First Amendment defense on Liptak’s part requires a fact-intensive inquiry, which the First Department’s Attorney Grievance Committee could conduct.

It is very true that lawyers have stringent confidentiality obligations that non-lawyers do not have. In this case it’s irrelevant, because the confidentiality rule in D.C. and New York covers only confidences (i.e. communications protected by the attorney-client privilege) and secrets gained in the course of representing a client. But point taken, there may be a situation in which an attorney is required by the confidentiality rule to keep something secret that would be of great interest of disclosed. In that case, would the First Amendment override or somehow invalidate the rule of professional conduct requiring confidentiality?

Not long ago, no one would have seriously entertained that possibility. Sure, there’s a line of First Amendment cases applying to lawyer speech, including the advertising cases (Bates, Shapero, Zauderer, et al.), bar admissions and the character and fitness inquiry (Konigsberg, Wadmond, Anastaplo, et al.), pretrial publicity (Gentile), and now the anti-discrimination rule (Greenberg v. Lehocky in the 3d Cir., although that case went off on standing). Now, however, we’ve got the Court saying things like this, in Chiles v. Salazar:

[T]he First Amendment’s protections extend to licensed professionals much as they do to everyone else. . . . In reaching that conclusion, to be sure, we acknowledged two kinds of content-based restrictions that can apply to professional speech without triggering strict scrutiny. First, courts generally deploy less searching review when faced with laws that require speakers to disclose only factual, noncontroversial information in “‘commercial speech.’” Second, laws regulating conduct in ways that incidentally sweep in speech may also generally avoid strict scrutiny. . . . But, we stressed, neither “turn[s] on the fact” that a licensed professional happens to be speaking. Nor, we emphasized, do these narrow categories of lesser-protected speech warrant a new rule exempting a broader “category called ‘professional speech’” from demanding First Amendment review.

I still think most professional conduct rules are content neutral and thus subject only to intermediate scrutiny, as the Second Circuit held in the appeal of the unauthorized practice of law action against the non-lawyer organization Upsolve. But the Court’s speech-is-speech approach seems to open the door to greater First Amendment protection for lawyers like Liptak who are also wearing the hat of another constitutionally protected actor, such as a journalist.

Not only is the two-hats problem interesting here, but this seems like another attempt to fight a different battle by proxy. Here is Sachs’s conclusion:

Regardless of what one thinks of the “emergency docket” or the Clean Power Plan, leaking confidential court materials poses a real danger to the integrity of the justice system. That’s why licensed attorneys usually fear to touch such leaks with a ten-foot pole. The leak of a draft opinion in Dobbs, for example, led directly to an assassination attempt on Justice Brett Kavanaugh, aimed at preventing that draft opinion from obtaining his vote for the necessary majority. It’s only a longstanding culture of respect, fidelity, and trust among attorneys and court personnel that prevents these leaks from becoming a daily occurrence—and that allows courts to deliberate effectively on the law. It can only undermine that culture further for the disciplinary system to overlook a decision by a licensed attorney and officer of the court to make these leaks more effective weapons against any judge with whom the leaker disagrees.

Not only do I share Professor Sachs’s aversion to leaks and whistleblowing, but I agree very much that a culture of respect, fidelity, and trust among lawyers and court personnel is essential to sustaining the rule of law. But I’m an old-school Hart & Sacks follower and take considerations of institutional competence seriously. Through that lens, the disciplinary system may be one of the worst ways to respond to the concern here, which is that leaks may be weaponized against judges or positions with whom the leaker disagrees. There really isn’t a rule on point that covers this situation, and there’s a countervailing risk to the integrity of the judicial system of using bar grievance procedures to settle political scores.

Yes, I know, I have to carry that critique through to grievances filed against Trump administration lawyers like Pam Bondi, Ed Martin, and Drew Ensign. In general I do, and not because I don’t believe their conduct is highly corrosive of respect, fidelity, trust, and the rule of law, but because I doubt the institutional capacity of state bar grievance committees to deal with problems that do not directly implicate clear provisions of the rules. This is not what these institutions were set up to do and for the most part they’re not equipped to do it. I have more to say about this – I’m still working on an Ed Martin post – but I’ll wrap up by reiterating that it would be a real stretch, even an abuse of the rules, to apply them to Liptak’s conduct here.