According to this April 13, 2014 article on Forbes.com, a prominent U.S. law firm has come under fire for agreeing to represent very unpopular clients. The suit, brought on behalf of two California Japanese Americans and a corporation, was filed to stop the display of a memorial to World War II era victims, commonly referred to historically as comfort women.  By their litigation, the clients seek to prove their legal point, in part, through the apparent argument that the comfort women–sex slaves used by the Imperial Japanese Army in World War II–were volunteers.  The suit seeks removal of the memorial, arguing the plaintiffs would suffer feelings of exclusion, discomfort and anger otherwise.

Aside from its controversial substance, this story is a reminder that someday we may be asked to represent an unpopular client who makes socially and/or historically controversial arguments. When faced with the issue, what do your rules of professional conduct mandate? Each jurisdiction has its own set, but many rules are based on the ABA Model Rules of Professional Conduct, which provide that:

Lawyers can represent unpopular clients;
An individual lawyer may be disqualified from representing such a client under certain circumstances; and 
The individual’s disqualification would likely not be imputed to his or her entire firm.

Regarding the representation of an unpopular client, Rule 1.2 and its official comments state that legal representation should not be denied to those “whose cause is controversial or the subject of popular disapproval”, and, representation of a client “does not constitute an endorsement of the client's political, economic, social or moral view or activities.”  

However, a lawyer faces an ethical conflict of interest if there is a “significant risk” that the lawyer’s representation of an unpopular client will be “materially limited” by the “personal interest of the lawyer.”  Such a conflict arises where the issue has a sufficiently effect on the lawyer's judgment.  See Rule 1.7(a)(2).  Under Rule 1.7(b), such a conflict can be cleared if certain conditions are met, chiefly that the client gives informed consent and the lawyer reasonably believes that he or she can “provide competent and diligent representation” to the client.

Finally, under ABA Model Rule 1.10(a)(1), an individual lawyer’s disqualification under this type of personal interest conflict is not imputed to the entire firm unless it presents “a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” The comments to this Rule explain that one lawyer's “strong political beliefs” would not disqualify the entire firm, as long as the lawyer did not work on the case and his personal beliefs “will not materially limit the representation by others in the firm.” 

While these rules provide guidance on the ethical aspect of representing the unpopular client, they of course do not delve into the more practical question—will representing this unpopular client using your legal services to establish highly controversial views damage your firm’s reputation? For that issue, you are on your own. 

Matthew Haydo is an associate practicing general litigation at Spilman Thomas & Battle in Charleston, West Virginia. He is a member of DRI's Lawyers' Professionalism and Ethics Committee. The views expressed herein are his own.


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As reported by Forbes, a U.S. District Court sanctioned a prominent U.S. law firmfor manufacturing a frivolous lawsuit.  The case is Lavesky et al. v. ITT Educational Services, Inc., filed under the False Claims Act (“FCA”).  The Lavesky court did not mince words in sanctioning plaintiff’s counsel: “From what the Court can gather, [plaintiff’s attorneys’] view is that virtually any ex-employee will do for purposes of manufacturing an FCA lawsuit.”  

Lavesky carries implications for all cases, not just those filed under the FCA--it provides a blueprint for the defendant victim of a manufactured lawsuit.  If discovery shows that the plaintiff was unaware of the facts upon which she based her lawsuit before an “enlightening conversation” with her attorney, the defendant should consider moving for sanctions pursuant to:(i) Federal Rule of Civil Procedure 11, and (ii) Model Rule of Professional Conduct 7.3, which prohibits lawyers from soliciting “professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”  This recipe ended up costing the Lavesky’s counsel almost $400,000 in fees.

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Last week, the Wall Street Journal Law Blog wrote about a recent New York ethics opinion approving legal advertising on Groupon and other group coupon sites.  These services allow consumers to pay one price up front for a service that is more valuable. A restaurant, for example, may offer a $50 meal for $25 that is paid immediately. An attorney, like this one, for example, may offer to provide a will for $99.  New York wasn’t the first state to weigh in on the issue--South Carolina has, too--and it probably won’t be the last. 

Both New York and South Carolina have approved groupon lawyer advertising per se despite claims that it constitutes the improper sharing of legal fees with a non-lawyer. However, and probably of more practical use to one considering running a groupon lawyer deal, the opinion of each state shows that it is essentially a path fraught with dangerous ethical pitfalls.  For example, New York identified a laundry list of issues aside from fee-sharing that may be implicated in the typical scenario depending on the facts, including improper payment for referral, excessive fees, advertising violations, improper creation of the lawyer-client relationship, conflicts of interest, and improper scope of representation.

With these potential ethical pitfalls in mind, not to mention the questionable effectiveness and taste of such advertising, it is doubtful that legal service groupons will ever become too common. 

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