Firing (and Shaming) a Client

A prominent IP professor and lawyer is getting a lot of attention for terminating his representation of Meta. Mark Lemley posted this on his LinkedIn account:

I have struggled with how to respond to Mark Zuckerberg and Facebook's descent into toxic masculinity and Neo-Nazi madness. While I have thought about quitting Facebook, I find great value in the connections and friends I have here, and it doesn't seem fair that I should lose that because Zuckerberg is having a mid-life crisis. On reflection, I have decided to stay, though I will probably engage somewhat less than I normally do.

But I am doing the following three things . . . 3. I have fired Meta as a client. While I think they are on the right side in the generative AI copyright dispute in which I represented them, and I hope they win, I cannot in good conscience serve as their lawyer any longer.

Apart from its impact as a political statement, Lemley’s post raises some interesting ethics questions, both in the narrow sense of “does this rule apply?” and in the broader and possibly more interesting sense of “should a good lawyer do that?”

Ethics Rules

On the rules, it’s clear that Lemley was permitted to withdraw from the representation of Meta. Model Rule 1.16(b)(4) provides that “a lawyer may withdraw from representing a client if . . . the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” The word “repugnant” is interesting, particularly when it occurs in the same provision as having a fundamental disagreement with the client’s course of action. It makes sense to permit the lawyer to withdraw from representation if there is a fundamental breakdown in the relationship caused by a deep disagreement over the client’s proposed course of action. That’s tantamount to a conflict of interest created by the lawyer’s inability to effectively provide competent legal services to the client under these circumstances. So what’s the word “repugnant” doing in there?

Sometimes legal duties require actions that would be a violation of moral standards if done by someone who was not acting in a professional capacity. This is the problem of role morality, which underlies many of the famous ethics dilemmas that law school Professional Responsibility teachers love to talk about. The criminal defense lawyers, for example, whose client confessed to a murder for which another man was wrongfully imprisoned, were faced with a conflict between the requirement of the rule of confidentiality and the moral considerations that would support disclosing the client’s confession to free the wrongfully convicted man. Sometimes the requirements of law put pressure on moral agency, which is just another way of saying the responsibility everyone has to act on their own assessment of the balance of reasons to act in a particular way.

There are spots in the mandatory legal rules of professional conduct where protection of the moral agency of lawyers is built in. The most obvious examples are the various permissive disclosure rules, permitting but not requiring a lawyer to reveal confidential information to protect a third-party interest, such as preventing reasonably certain death or substantial bodily harm. (At least that’s true on the Model Rules version of the confidentiality rule. California, as we’ll see in a minute, is a different story.) Another way the rules allow for the exercise of moral agency is in the absence of any requirement to represent any given client. Except in the limited circumstances of a court-ordered representation a lawyer can refuse to represent a client for pretty much any reason, and even the rule on court appointments allows a lawyer to refuse the appointment where “the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.” Model Rule 6.2(c).

There’s that word “repugnant” again. The idea here is that a lawyer shouldn’t be compelled to represent a client with whom the lawyer has a fundamental moral disagreement, although notice that the rule raises the bar a bit for repugnance. The client or the cause must be so repugnant to the lawyer that it will have an impact on the representation or the relationship – again going back to the notion in Rule 1.16(b)(4) that withdrawal is permitted only where there is a real breakdown in the lawyer-client relationship. I read these rules as saying, in effect, that many clients are sort of gross, or have objectives that a lawyer might be uncomfortable with, but sometimes that job requires lawyers to hold their noses and provide effective representation anyway. To put it less negatively, the legal system and the role of lawyer presuppose a certain amount of disagreement about moral concepts like good, right, and justice. Mere disagreement with a client is not sufficient to justify withdrawal or refusing a court appointment; the disagreement has to be so fundamental as to undermine the trust and confidence necessary for the lawyer-client relationship.

This is Lemly’s point. He has come to find Meta, his client, and its CEO Mark Zuckerberg, so repugnant that it fundamentally interferes with a functional attorney-client relationship. Now, interestingly, California (where I’m pretty sure Lemly is admitted to practice) does not have exactly the same withdrawal provision as the Model Rules, but it comes close. The California rule on point provides:

[A] lawyer may withdraw from representing a client if:

(1) the client insists upon presenting a claim or defense in litigation, or asserting a position or making a demand in a non-litigation matter, that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(2) the client either seeks to pursue a criminal or fraudulent course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud;

(3) the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent;

(4) the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;

(5) the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;

(6) the client knowingly and freely assents to termination of the representation;

(7) the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;

(8) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;

(9) a continuation of the representation is likely to result in a violation of these rules or the State Bar Act; or

(10) the lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

Cal. Rules 1.16(b)(1)-(3) condition the permission to withdraw on the client’s insistence on a course of action that is legally frivolous or else constitutes a crime or fraud. These aren’t moral-agency-preserving rules; they are intended to backstop the lawyer’s duties as a matter of positive law to avoid bringing legally unsupported actions or providing assistance to a client crime or fraud. But I think Cal. Rule 1.16(b)(4) is close enough to serve Lemley’s purposes. He reasonably believes that the client’s conduct – here, that caused by the client’s CEO’s “descent into toxic masculinity and Neo-Nazi madness” will make it unreasonably difficult for him to provide legal services as usual to the client. If Lemley has entered an appearance in the pending litigation he must seek the permission of the tribunal to withdraw, per Cal. Rule 1.16(c), but in a case where there is co-counsel and it is unlikely that Lemley’s withdrawal will cause any real prejudice to the client, I would expect the court to grant a motion to withdraw as a matter of course.

But this leaves the interesting question of what a lawyer can say on the way out the door. There’s a concept called “noisy withdrawal” which is an old workaround allowing lawyers to extricate themselves from potential civil or criminal liability when they found that their conduct had been used by a client to provide assistance in a crime or fraud. That’s not what we’re talking about here. This is not a case of noisy withdrawal as that term is usually understood. It is just bad-mouthing the client in the course of withdrawing. Is that allowed?

The Model Rules version of the rule of confidentiality is quite broad. Model Rule 1.6(a) states: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by” various express textual exceptions. The key language here is “information relating to the representation.” It replaced the definition of confidential information in the old Model Code, which defined protected information as either communications covered by the attorney-client privilege or “secrets,” defined as “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client” (Model Code, DR 4-101(C)). Some states, like New York, continue the “confidences” and “secrets” definitions from the Model Code.

Interestingly, while the Model Rules definition of protected information is generally regarded as broader, in this case Lemley’s trash-talking of Meta seems to fall more clearly within the Model Code definition of information that would be embarrassing or detrimental to the client. Being called a neo-Nazi would surely be at least embarrassing to a former client. Still, though, it’s not entirely clear that Lemley’s disclosure is of the client’s information, rather than Lemley’s own views about the client. The trouble with the Model Rules definition is the squishy word “related” to representation. What does that mean, exactly? In a sense Lemley’s disclosure is of information related to the representation, because it explains why he withdrew from it.

But wait, you say, what about California? The Golden State is famous in legal ethics circles for the uncompromising approach it takes to client confidentiality. First, the definition of confidentiality refers to a statute: “A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent, or the disclosure is permitted by paragraph (b) of this rule.” Cal. Rule 1.6(a). The statute, in turn, says it is a duty of a lawyer “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Comment [2] to Cal. Rule 1.6 further defines the scope of protected confidential information:

The principle of lawyer-client confidentiality applies to information a lawyer acquires by virtue of the representation, whatever its source, and encompasses matters communicated in confidence by the client, and therefore protected by the lawyer-client privilege, matters protected by the work product doctrine, and matters protected under ethical standards of confidentiality, all as established in law, rule and policy.

This doesn’t really end up in a different place than the Model Rules definition of confidentiality, but like I said, California is famously protective of client confidentiality. A state bar disciplinary proceeding defines the scope of protected confidences this way (from a California lawyer on the APRL listserv): “The ethical duty of confidentiality prohibits an attorney from disclosing facts and even allegations that might cause a client or a former client public embarrassment In the Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 189.” I think there’s some risk here that Lemley has violated the California rule of confidentiality.

Ethics Beyond the Rules

One of my longstanding gripes about the discourse around legal ethics is that it too easily slides into close parsing of the rules of professional conduct to see whether a lawyer is, in MPRE lingo, “subject to discipline” for conduct. To be sure, if you were a lawyer worried about a grievance proceeding, it matters whether a contemplated course of action would be a violation of the rules. Much of the time, however, the issue under discussion is broader: People want to know whether such-and-such was a good thing for a lawyer to do, not only with references to mandatory rules but also (1) the standards of good and bad lawyering and (2) the considerations that a good person would take into account, even when acting in a professional role. I don’t begrudge lawyers the fun of analyzing the rules, and in fact I enjoyed reading the informed debate among lawyers on the Association of Professional Responsibility Lawyers listserv about this case. But outside the small group of law-of-lawyering nerds (and I include myself in that group), most people are asking something more like “was that a lousy thing to do to one’s client?” or “can lawyers really trash-talk their clients on the way out the door?”

I just published a book about public criticism of lawyers, called Canceling Lawyers. (I promise, I’m not planning to use this newsletter to relentlessly promote the book, but it’s relevant here.) One of the principal themes of the book is that lawyers are morally accountable for the clients they represent. That doesn’t mean they are necessarily wrongdoers in the same terms as their clients, but they must be prepared to give reasons in justification of their representation of clients. As I was workshopping draft chapters, one particularly dogged commentator kept insisting that it was unfair for the public to shame lawyers for the clients they represent because lawyers are inhibited, by the rule of confidentiality, from responding to this criticism. I agreed with that feedback, and clarified that the relationship of accountability between lawyers and those with whom they stand in a morally significant relationship requires a reason in principle for representing a particular client, but lawyers may be legally prohibited from providing that justification publicly if it would result in revealing confidential client information.

Sometimes being a lawyer is a tough job and you have to take some shots from the public, even if they’re unfair, and not respond because of duties of confidentiality owed to your client. To that I’d add . . . and duties of loyalty owed to your client. The highly fiduciary relationship of trust and confidence between lawyers and clients depends on lawyers being seen as on their client’s team as long as the relationship is ongoing. In the book I discussed one of my all-time favorite legal ethics articles, by David Wilkins, Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan?, 63 Geo. Wash. L. Rev. 1030 (1995). The Black lawyer in the article’s title was Anthony Griffin, who served as general counsel of the Texas chapter of the NAACP who also sometimes worked on behalf of the ACLU. A state human rights commission attempted to compel the KKK to turn over its membership list and, in response, Griffin agreed to defend the Klan to vindicate the First Amendment right established in NAACP v. Alabama that an organization’s membership lists should be confidential.

There are a lot of interesting things to say about this article, but let’s focus on one aspect highlighted by Wilkins. Regardless of what one thinks about whether the KKK deserves a lawyer to defend it in the civil rights action, there is a further question for any particular lawyer, namely, should I be the lawyer providing that representation? The question is particularly acute for a Black lawyer like Anthony Griffin, who draw some understandable criticism from his community for taking on the case. In response, Griffin made sure to clarify that he, personally, was no fan of the Klan (again, understandably). He said to journalists writing about the case that he believed the Klan to be a terrorist organization whose message of hate and intolerance should be condemned by all decent people. Wilkins does not discuss these comments as a matter of violating the rule of confidentiality. Rather, he sees the question as whether a lawyer who represents an unpopular client must commit himself or herself wholeheartedly to the cause, including to maintaining public support for the client’s cause (p. 1054). I see this as a question of whether it is possible to preserve one’s moral agency – here, by making it clear that the KKK is still a threat to Black citizens that should be taken seriously – while also serving as an effective advocate for the client. It seems quite difficult to square that circle in this particular case, given the identity of the lawyer and client. Wilkins is sympathetic to Griffin’s attempt to preserve his integrity, in the sense of “an individual’s to harmonize his or her diverse commitments into a meaningful life plan and to act, so far as possible, in accordance with the actual requirements of that plan” (p. 1058). (In a future newsletter I may talk more about this conception of integrity and how it aligns with the recent ABA requirement that law schools incorporate reflection on professional identity formation.) Wilkins therefore grants Griffin some leniency regarding his trash-talking of his client, seeing them as efforts to preserve his integrity.

In the Meta case, Lemley apparently believed he could not, in good conscience, continue to contribute his talent and experience to Meta’s causes, given his assessment of Zuckerberg’s recent changes at the company. As a matter of his personal integrity, he could not continue in a fiduciary relationship of trust and confidence with the client. Fair enough. But he had an option to preserve his integrity, which was to withdraw from the representation. David Wilkins’s discussion of the Anthony Griffin case suggests that integrity-preserving actions by lawyers ought to be narrowly tailored to be minimally intrusive on the client’s reasonable expectations of loyalty and confidentiality. It’s not necessary to the preservation of one’s moral agency to take gratuitous swipes at the client on the way out the door. My point here isn’t so much to criticize Lemly, however, as to use this as a case study of the tension between moral agency and the duties of lawyers. There is often not a clear priority between them, and lawyers may go wrong by thinking that if something is the right thing to do from a personal perspective then acting on that reason is a sufficient justification from the legal point of view.