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TRANSITIONS BETWEEN THE PUBLIC BAR AND THE PRIVATE BAR:THE ETHICAL DILEMMAS WHEN ATTORNEYS CHANGE EMPLOYMENT NADINE C. ATKINSON-FLOWERS, ATTORNEY-AT-LAW JAMAICAN BAR ASSOCIATION CONFERENCE NOVEMBER 16-19 , 2017

TRANSITIONING

• Chief Justice Rehnquist opined that counsel: “. . .have become increasingly mobile, feeling much freer than they formerly did and having much greater opportunity than they formerly did, to shift from one firm to another and take revenue-producing clients with them.”

HE IS NO LAWYER WHO CANNOT TAKE TWO SIDES

• When an Attorney begins to feel the stirrings of movement in his feet for other, perhaps greener pastures, s/he invariably becomes pregnant with anxiety as there is much to consider even before he sets forth his plan into motion.

PART ONE :THE INITIAL PLAN TO LEAVE • What Do the Canons say Must Be Done by the Attorney?

The Legal Profession (Canons of Professional Ethics) Rules Canon 1(b)

PART ONE :THE INITIAL PLAN TO LEAVE โ ข What and when do you tell your staff? Seniors? Colleagues?

The case of Dowd & Dowd v Gleason. 181 III. 2d 460 693 N.E.2d 358 is instructive. Two lawyers decided to leave Dowd for private practice. For months, the partners secretly prepared to leave, all the while promoting a faรงade of normality and denying all intentions of jumping ship. It is submitted that especially since these were partners, they would be in breach of Canon 1. For other junior Attorneys, the effect may be less deleterious but still of concern.

PART ONE :THE INITIAL PLAN TO LEAVE • What is your duty to the entity?

The departing Attorney has a fiduciary duty to the entity (using the term broadly, and recognizing that The Legal Profession (Canons of Professional Ethics) Rules, # 2 defines “Attorney” to include a Firm of attorneys”).

More Dowd & Dowd.

PART ONE :THE INITIAL PLAN TO LEAVE • Broad parameters set out by the Dowd Court .

• At one end of the spectrum, . . .taking steps to locate alternative space and affiliations would not violate a partner's fiduciary duties . . . As a matter of ethics, . . . to inform clients . . . and to remind the client of its freedom . . .

• At the other end of the spectrum, secretly attempting to lure firm clients) to the new association, lying to clients . . . lying to partners . . . would not be consistent with a partner's fiduciary duties.

PART ONE :THE INITIAL PLAN TO LEAVE • Can an Attorney properly solicit other Attorneys/other staff to flee in the night with him/her?

The Dowd case is replete with drama. their new law firm. The exodus of the partners, attorneys and staff was clearly akin to the words of Bob Marley:

• The Legal Profession (Canons of Professional Ethics) Rules at Canon II (b) • It is submitted that as long as there is no breach of the Attorney’s fiduciary duties and the conduct of soliciting others to join does not amount to gross interference with the current entity’s practice, there should be no violations.

PART ONE :THE INITIAL PLAN TO LEAVE • Where are you going? Considerations • The movement to the private criminal bar and the movement from the private bar to the public bar.

• Firstly, the movement to the private criminal bar

LAWYERS?! • Lawyers?!

PART ONE :THE INITIAL PLAN TO LEAVE • Canon III (h) states that An Attorney engaged in conducting the prosecution of an accused person has a primary duty to see that justice (emphasis added) is done . . .”.

• The Legal Profession (Canons of Professional Ethics) Rules at Canon III (a): • Canon III (c)” • Canon III (f).”

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PART ONE :THE INITIAL PLAN TO LEAVE

• Other issues that occur when a public Attorney transitions to the private bar • Secondly, the movement from the private bar to the public bar

PART ONE :THE INITIAL PLAN TO LEAVE • Moving to the public bar: • “ I applied for an opening at _____ in March, as soon as it was posted. I didn’t hear from them until the agency called in mid-September and asked me to come in that day for an interview. They had to fill the position immediately or they would lose the funding. They made me an offer the day of the interview. There’s a moral to this story—I t can take a long time. Be patient.You can apply and then sit there for months not hearing anything and think that nothing’s going to happen. Then, all of a sudden, you get a call, and the final stages of the hiring process can happen much more quickly and informally than you ever imagined!”

• The author can add, from personal experience and anecdotal tales, that after a few weeks of waiting and there is no letter, telephone call or the now ubiquitous email, many bright eyed new Attorneys, now somewhat jaded and much depressed, give up hope of landing such a position. They move on of practical necessity. But when the call does come, there are several unexpected features.

PART ONE :THE INITIAL PLAN TO LEAVE • At the public bar, especially the public criminal bar, junior Attorneys have more independence and responsibilities thrust on them earlier than their counterparts at the private bar. They thus garner their experiences by baptisms of fire.

• The author humbly suggests that nothing can be added to Mark Beck and Joseph Hartley’s perceptive analysis: • “In private practice, the client may insist that as the biggest client of the senior partner, he or she is entitled to have the senior partner as lead counsel. Even young government lawyers are accustomed to greater independence and often have unexpected authority and experience given their comparatively few years of practice. Often, they are unused to carrying the bags for another lawyer selected simply because he or she has more gray hair.”

PART ONE :THE INITIAL PLAN TO LEAVE • However, it is important to recognize that many Attorneys as they seek to transition to another environment have experienced ethical dilemmas, burn out, fade out, disillusionment and sometimes even plain despair.

“A JUNIOR ASSOCIATE IS LIKE A PENCIL;YOU USE IT UNTIL

YOU BREAK IT, AND THEN YOU GET ANOTHER ONE.”

PART ONE :THE INITIAL PLAN TO LEAVE • What can you do/take?

• The Attorney must ensure that he remains worthy of the public confidence in the profession as noted in Incorporated Law Institute of New South Wales v R D Meagher (1909 9 CLR 655 at 681): • There is therefore a serious responsibility on the Court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential.

PART ONE :THE INITIAL PLAN TO LEAVE • Therefore, the Attorney must act with the requisite decorum regarding the following nonexhaustive issues: • Clients. Canon I. For example, the departing Attorney lying to current clients regarding the choice to follow the Attorney to his new place of employment, that would be a breach.

• Canon V (o) • At the public criminal bar for example, the transition of Attorneys can also be disconcerting and have an impact. It is not unheard of for a prosecutor to indicate to the Court that the previous prosecutor has left and so a new Attorney will have to be assigned.

• Authorities

PART ONE :THE INITIAL PLAN TO LEAVE •

• Files today are often electronic and hard copies.

• Meta data : Electronic File and Rule 1.10(b). Estate of Kennedy v. Stuart A. Rosenblatt • The American Bar Association (ABA) rule 1.10 (b) • Canon IV • Canon V(f) • Canon IV (t)

PART ONE :THE INITIAL PLAN TO LEAVE • The matter at issue: • The Appellate court reversed “conditionally”and sent back the case for further proceedings.

Law Firm had erected a “screen” around the electronic files. However, the court said that if someone in Law Firm looked at the substance of the retained electronic files, Law Firm should be disqualified. If, however, all Law Firm lawyers did was look at metadata (emphasis added) to determine whether anybody in Law Firm had looked at the files substantively, then the Law Firm should not be disqualified, and directs Law Firm to delete any electronic files remaining.”

•

PART ONE :THE INITIAL PLAN TO LEAVE • Who if anyone at the old entity does the Attorney ask to act as a reference?

• According to Harrison Barnes, in his article “Firm hopping” on the vexing issue: • Large firms tend to give good references as truthfully, they want associates to leave, so new associates can come in, energized and make the firm a lot of money. Small firms and solos tend to give harsh references, they have less at stake, not being dependent on a constant stream of associates.”

PART ONE :THE INITIAL PLAN TO LEAVE • What you should not do/take, even if they deserve it • Canon VI • As legal practice is increasingly steeped in technology, some entities are not using paper files as much as before. Attorneys can stay in one part of the country and work on a document online for all the others in another part of the country to see, sometimes in real time.

• Cybercrimes Act, ss, 2, 3 and 4.

• Such actions might well also expose the Attorney to the scrutiny of Canon III (k)

PART ONE :THE INITIAL PLAN TO LEAVE • Day after Tomorrow: First Day of the Transition • Canon V • Increasingly potential clients are checking the GLC’s website to ascertain if an Attorney is entitled to practice.

• Sounding Boards

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • What does one call the Attorney who accepts a matter where he was formerly on the other side? Turncoat? Spanish Machete? Pragmatist? The key is to remember that: • “When you become an advocate, you are not required to sign away your soul. . .You are not asked to be advocate, opposing counsel and judge in the same matter.

• When you take on a role, you are bound to act in a manner in line with that role. However, it is important not to confuse your place in the system with an abdication of morality and integrity. In order to be true to yourself, you must understand the rules.You must be able to identify situations that will compromise . . .”

• Is there a conflict of interest such that it is imprudent or there is the appearance of professional impropriety for the now transitioned Attorney to act.

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • The “appearance of professional impropriety” • Canon I speaks to the avoidance of even the appearance (emphasis added) of professional impropriety as there is much anxiety to ensure that Attorney conduct maintains the dignity and integrity overall of the profession.

• In Westinghouse Electric Corpn v Gulf Oil Corpn, the US Court of Appeals for the 7th Circuit–588 F.2d 221 7th Cir. 1978 considered rules of the American Bar Association Code of Professional Responsibility at Canon 9 • The Court considered that the determination of whether there is an appearance of impropriety rested on if there was confidential information that might have been given to the attorney previously. The examination also considered how such would fit in relation to the subsequent matter in which the disqualification is sought.

• What was the scope of the prior representation? Could the lawyer have learned confidential information? Would such information be useful in the current litigation?

• The answers were all in the affirmative and so the Court held: the lawyer and his new firm employer were disqualified.

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • Rakussen v Ellis Munday & Clarke [1912] 1 Ch 831 The issue must turn on whether or not there was some degree of likelihood of mischief or prejudice. The interpretation is that if there was confidential information imparted by the client then the duty not to disclose such information continues after the retainer has ended. The Court felt assured that there was no prejudice and did not order an injunction. • Prince Jefri Bolkiah v KPMG [1999] 2 AC 22 established that where a solicitor had information deemed confidential, he cannot be allowed to act against that client unless there is absolutely no risk of disclosure. If there was a risk of disclosure of confidential information by the Attorney, then that risk must be a real one, not a merely fanciful risk, in the realm of infinite possibilities. However, the test also established that the risk need not be substantial.

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION •

Withdrawal forthwith . . . for good and compelling reason”

• Canon IV, (q) • Saminadhen v Khan [1992] 1 All ER 963, CA. Lord Donaldson MR: • “I can conceive of no circumstances in which it would be proper for a solicitor who has acted for a defendant in criminal proceedings, the retainer having been terminated, to then act for a co-defendant where there is a cut-throat defence between the two defendants. I think it is desirable that that should be known.”

• It is submitted here that a circumstance such as this would easily be seen as a breach of Canon IV(q).

• An example is offered. The Attorney had been retained to make a bail application for a defendant and discovers his/her own previous role.

• Canon IV • Mark Summerfield. Senior Patent Attorney Found Guilty of ‘Unsatisfactory Conduct’ April 15, 2012

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • Canon IV, (q) • “It is said that clients are often not interested in knowing the law. They are even less interested in what the law should be. They are interested in how the law affects them and their related interests, and also what it is going to cost them. Crucially, they want to know what you think they should do. If you do not feel comfortable answering these questions, perhaps private practice is not for you.”

• Criminal matters and questions asked • Abraham Lincoln once said: • “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser---in fees, expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough. “

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • “Not knowingly reveal a confidence or a secret . . . to client’s disadvantage . . . own advantage . . . other person . . . unless . . . consent . . . after full disclosure” • Canon IV, (t): An Attorney shall not knowingly• i)reveal a confidence or secret of his client, or, • ii) use a confidence or secret of his client• to the client’s disadvantage; or • to his own advantage; or • to the advantage of any other person • unless in any case it is done with the consent of the client after full disclosure.

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION •

In the case of MacDonald Estate v Martin (1991) 77 DLR (Fourth) 249 SCC, it was held that a lawyer who has acted for a client in a matter should not thereafter act against him. This is a succint position but it is submitted that it might ignore certain practical realities and also that the better test might be that of substantial responsibility as advocated in the Jamaican Canon at Canon V (f).

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“Substantial Responsibility”

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Canon V, (f)

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This area for ease of reference, will be broadly discussed as acting against a former client.

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In Mills v Day Dawn Block Gold Mining (1882) 1 QLJ 62) the Court held that if a former client swore out an affidavit to the effect that he had passed confidential communication to his Attorney, then the Court would restrain said Attorney from acting for the other party in any proceeding relative to the same circumstances and the Court would not weight conflicting testimony as to the existence of their confidence.

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Winston Finzi and Mahoe Bay v JMMB Merchant Bank (28th and 30th July 2015, ) The application therein was for an order barring opposing counsel and associated firm from representing the bank in the substantive litigation, on the ground that said Attorney had acted for the applicant in the past. Sykes J refused the application.

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • What of the situation where an Attorney whilst representing the Crown on a date set down for disclosure did just that. Later on, the said Attorney is employed to a firm handling the matter for the defendant. Should the Attorney be enjoined from participating because of this cursory handling of the matter previously?

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION •

“Attorney’s conduct towards fellow Attorneys . . . characterized by courtesy . . . ”

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Canon VI, (a)

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Two real examples are noteworthy here, (1) client says:

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“I heard you call my wife’s lawyer your friend in court today. Now that you realize that, how can you represent me?”

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What is the response to this? The Attorney had to explain as succinctly as possible the fact that the term is one of respect for the other Attorney but also had to impress on the wavering faith the client now had, that there was no impediment to zealous representation, friendship aside!

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What about this (2) client says:

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“You seem to be very familiar with the judge, the other lawyers/prosecutor/police. I am not so sure you should do my case.”

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To this the Attorney had to cautiously respond that familiarity is not necessarily a bad thing as it meant that the Attorney perhaps understood the temperament of each of those parties a little better!

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • For the next bit of information, the author thanks Mr. Jeremy Taylor, Senior Deputy Director of Public Prosecutions (and who also read the draft of this paper) for sending this publication which is a treasure trove that all practicing attorneys should read!

• “It’s almost a year, and we have not really reached anywhere.” The frustration in her voice was clad in a slowpaced, almost collected tone, which revealed just how over it she really was. There was very little that felt like family to her even when at the Family Court.

• The tired mother of four found solace in another court user as they both sat in the waiting area. It seemed as though all she needed was someone to listen as no one would listen to her; not even by way of her attorney, “To me this senior attorney is always talking … To me he has been given an opportunity to talk…

But to say my attorney getting an opportunity to voice and really stand up for me and thing, I don’t think it was fair. The only thing I could think is the other attorney being favoured because she is senior.” (emphasis added)

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • The court user in this excerpt pithily defines how indeed that scenario play out in courts sometimes. It is not unusual for junior Attorneys to complain about how they are treated in court regarding when they are heard by the Court. An example from the criminal bar suffices. Many have been heard to say that despite arriving early for their matters, they are still relegated to being heard last and the woe is greater if there are several Queen’s Counsel present in Counsel’s bench! (Many senior attorneys are quite gracious and may give junior counsel leave to mention matters before theirs.)

• To be fair the author has actually seen several Judges and Parish Court Judges, after respecting the tradition of seniority for a while during the court day, ask more junior counsel to mention their matters.

Indeed, as the Court did that it made sure to indicate that many of the junior Attorneys had been in court since 10am and whilst seniority must be respected, it is only fair that a few of the junior Attorneys be heard.

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • Judges of the Court of Appeal and the Supreme Court • Two Canons are important here.

• Canon V, (f) • Canon V, (g) • As regards this Canon, it seems appropriate here to say that even as such Judges are properly prohibited from appearing, there is much room to learn from their experiences. Many have sat on Boards and Commissions but it seems to the author that their experiences could be formally utilized in other ways in the court system, such as in training Attorneys and Judges.

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION • Parish Court Judges • An interesting case occurred a few years ago. A Parish Court Judge (Resident Magistrate as it then was) was hearing the preliminaries for a case set down for trial on that day. The case had been sent back by the Court of Appeal for retrial. Upon hearing the Crown’s opening, the Parish Court Judge asked the Crown Counsel and Counsel for the defense to approach the bench. The Learned Parish Court Judge advised that she recalled the matter and in fact had more than a passing knowledge of the case, having been the Clerk of Court with conduct of it.

• The Learned Parish Court Judge then gave the Attorney for the defendant time to explain the developments to the defendant before proceeding to recuse her/himself in open court. The Learned Parish Court Judge advised the defendant that there was a conflict of interest and s/he could not hear the case. The matter was immediately transferred to be heard before another Parish Court Judge.

• The case also illustrates that there is no mechanism to determine conflicts of interests in matters that the Attorney may have had a substantial role in, in a previous setting.

PART TWO: ETHICAL ISSUES TO DECIDE IF ATTORNEYS SHOULD ACCEPT MATTERS POST TRANSITION •

Oops, almost missed that conflict issue: time for formal mechanisms?

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This case shows clearly how the employment of one Attorney impacted on an issue in the court, where the said Attorney was not even acting for any party. The author therefore hopes the parties forgive the liberty to put in some amount of detail.

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The case is Winston Finzi and Mahoe Bay Co Ltd v JMMB Merchant Bank [2015] JMCA App 32 28, 29, 31 July and 5 August 2015. The Court was hearing a matter. It became clear to the Court that an attorney-at-law and a former partner in a law firm, had acted in connection with a share sale transaction regarding one of the present parties, was the Court’s spouse. All counsel in the present matter were advised of the Court’s spouse’s then involvement and invited to take instructions from their respective clients. They were to examine if they felt able to continue and if not, alternative arrangements could immediately be made for another Court to hear the case.

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All counsel present advised that they had taken instructions. There were no objections from the clients.

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The issue now looming large was if the Court should indeed recuse in light of all of the foregoing. The Court approached the issue thus:

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“The answer to this question must turn, it seems to me, on whether in all the circumstances Mr. Finzi/Mahoe Bay are to be regarded as having waived their right to object to my participation in the proceedings on the basis of the matter disclosed to the parties by me.” (The Court then examined several crucial authorities and declined the invitation to recuse.

OTHER STAFF

OTHER STAFF • The office staff of every law entity is core and crucial to success, whatever the measurement.

The term paralegal staff will be used here but is to be understood to mean legal secretaries, paralegals, clerks, assistants and so on) However there has been little if any attention judicially on this aspect of when paralegal staff transition between employment. Importantly, while there are many paralegal training institutions locally, there is no true regulatory body (and the author stands corrected) for this extremely important group of staff in a law entity. • The author fears little disagreement when it is opined that many paralegals know the case file as well as and sometimes better than the Attorneys. These foreign authorities show the import of the group in regard to conflicts of interest.

OTHER STAFF •

Other Staff

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Ullman v. Denco, Inc., (No. 14-cv-843 SMV/GBW (D.N.M. April 22, 2015): Law Firms A & B are opposite in this case. B hired away A’s sole paralegal after courting the paralegal for employment, who had worked on this case. B set up a timely screen around the paralegal to prevent any potential conflict. A’s client moved an application to disqualify B from the case.

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In McMillan & McMillan (unreported judgment of Finn, Kay and Moore JJ, Full Court of the Family Court of Australia at Melbourne unreported 6 October 1999 [2000] Fam Ca 1046, the Full Court indicated that it was immaterial that the employee was not a legally qualified Attorney. The appeal was therefore dismissed and the firm enjoined from acting.

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Finally, the issue of the movement from law school clerks to employment. An example:

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The local law school student did internship with a defense Attorney on a matter, taking the client instructions, researching authorities and attending court with the Attorney.

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The law school student shortly after admission became a prosecutor. In the course of preparing the daily list of court cases, the Attorney realized that the Attorney seemed to be remember odd bits of information from the case.

PART THREE: CONCLUSIONS AND CONFLICT CHECK SYSTEMS - EMPLOYED/STARTS A PRACTICE • A thread that seems to run through the ancedotes in this paper is that there appears to be no formal conflict of interest checks.

• The manner of the resolution of the ethical dilemmas by our local practitioners speak volumes to the ethical principles that run through our practitioners (despite the notoriety that attends when there is Attorney misconduct [mainly for conflict of interest regarding clients funds], especially those leading to disbarment).

PART THREE: CONCLUSIONS AND CONFLICT CHECK SYSTEMS - EMPLOYED/STARTS A PRACTICE • The case of Prince Jefri Bolkiah v KPMG ( a Firm) [1999] 1 All ER 517 indicated that the protection of confidential information that had been learnt in the former representation was crucial as regards conflicts of interest. The House of Lords, at p. 517 held that: • “Like a solicitor, an accountant providing litigation support services owed a continuing professional duty to a former client following the termination of the client relationship to preserve the confidentiality of information imparted during the subsistence of that relationship. That duty was unqualified and required the accountant to keep the information confidential, not merely to take all reasonable steps to do so, and also not to misuse it.

• . . . Although there was no rule of law that Chinese walls (emphasis added) or other arrangements of a similar kind were insufficient to eliminate the risk, the presumption was that, unless special measures were taken, information moved within a firm and, to be effective, those measures had to be an established part of the organisational structure of the firm, not created ad hoc (emphasis added). Rakusen v Ellis Munday & Clarke [1911–13] All ER Rep 813 overruled.”

• Registers and checklists

PART THREE: CONCLUSIONS AND CONFLICT CHECK SYSTEMS - EMPLOYED/STARTS A PRACTICE • And as we started so we shall end: . . . maintain the confidence and preserve inviolate the secrets of clients.

• Thank you very much