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Friday, January 11, 2008
Did Clemens' Attorneys Violate Ethics Rules with Phone Conversation?

Attorney Paul W. Schwarzenbart of the Madison, Wisconsin-based law firm Lee, Kilkelly, Paulson & Younger e-mails me a really interesting thought:
I am curious why no question has been raised (that I have seen anyway) as to whether Roger Clemens' attorneys violated attorney disciplinary rules by (apparently) engineering and participating in (by listening in) on the subject telephone conversation with Brian McNamee.

This conduct seems to skirt very close to the line of what is permissible under ABA Rule 4.2, which provides:
Model Rules of Professional Conduct. Transactions With Persons Other Than Clients Rule 4.2 (Communication With Person Represented By Counsel)

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Has there been any suggestion that this rule is implicated by the attorneys' conduct? (Perhaps it does not apply in TX and NY?) As a practicing attorney, the tactic strikes me as slimy, whether or not rising to the level of a technical violation.


What a welcome relief to have a posting such as this (can we put Tiger talk behind us for a while?). This is a very insightful comment and why no one has mentioned it before is amazing. Clemens attorney should, indeed, be a part of this battle now as well. This act by the attorney is crooked....oh, don't worry: I'm sure the attorney will say that he was not acting as an attorney, but as an agent.....go ahead and drink your water, too...

Anonymous Anonymous -- 1/11/2008 9:14 PM  

I thought what was even worst was that they have tried to imply guilt in the conversation that any logical person would see is invalid. Sure McNamee never said that Clemens did take steroids, but at the same time he didn't say that Clemens didn't take steroids. Really, if this evidence can be applied in court I would be surprised

Blogger Game Time Worouts -- 1/12/2008 2:24 AM  

In California, such eavesdropping violates the penal code if McNamee thought it was a private communication. Not so in other states.

As to the ethical rules, my understanding (and this is mostly CA law, where I argued a "communication with represented party" case on appeal a couple years ago, the attorney only violates the rules if they communicate with the person they know is represented in that matter. Communications not relating to the matter (e.g. small talk about the weather) don't count.

So, the three questions are:
1. Was McNamee clearly represented and did the lawyers know it?

2. Was McNamee represented in any sort of dispute relating to Roger Clemens specifically? (just having a lawyer generally may not be enough).

3. Most important, did the lawyers say anything to McNamee? If not, then I suspect that the rule is not violated technically, or even in spirit. If Clemens could have recorded the conversation legally to give to his counsel, then how is it an ethical violation to cut out the intermediary tape and just listen directly?

Even if the lawyers fed questions to Clemens, they could have done that before hand. I think the rule is designed to protect represented parties from harassment and coercion by "skilled" opposing attorneys, and talking to friends and acquaintances, no matter where the friend gets the materials, is not really enough.

Slimy? That's a whole other story...

Anonymous Michael Risch -- 1/12/2008 8:12 AM  

The answers to ## 1 and 2 both should be a clear yes. McNamee had two different lawyers making comments in the paper about the truth of McNamee's testimony and threatening to sue Clements. Plus, doesn't the Mitchell Report indicate that McNamee had counsel present when he met with investigators?

As for # 3, is the difference between Clemens doing this on his own and passing it along and the lawyers being directly involved in guiding, prepping, etc. Clemens to do this?

Can we analogize this to the use of police informants? If A's prison cellmate has a conversation with A in which A confesses and the cellmate snitches to police, the state is not deemed involved in eliciting the confession. But if the police send the cellmate in to for the specific purpose of geting the confession, the government is on the hook for any constitutional violations that might occur involving A's right to counsel.

Blogger Howard Wasserman -- 1/12/2008 8:36 AM  

Oh, but of course: Clemens' lawyer did no wrong...

Anonymous Anonymous -- 1/12/2008 11:58 AM  

As for # 3, is the difference between Clemens doing this on his own and passing it along and the lawyers being directly involved in guiding, prepping, etc. Clemens to do this?

Can we analogize this to the use of police informants?

I certainly think there is a difference with the prepping, but what lawyer hasn't prepped his or her client for an important meeting with an opposing party. We did that all the time. We couldn't listen in (in CA), but we certainly could give the client angles to use, and zealous advocacy demands nothing less.

I don't think there is an analogy to the informant situation.

First, if something is to be barred by the ethical rules (which can cause a lawyer to lose his or her livelihood), it must be crystal clear. This is a much higher standard than the nebulous "constitutional violations" of an agent.

Second, the question is not admissibility of evidence - if the lawyers coach Clemens to say something that gets an "improper" admission from McNamee, then it might not be admissible - but that's not an ethical violation.

Third, the rule is pretty clear - the lawyer may not communicate with a represented party - but listening is not communicating.

Anonymous Michael Risch -- 1/12/2008 12:34 PM  

Do the rules, the commentary, or case analysis state that "listening is not communicating", to the extent you know? I ask in all seriousness because it is not obvious to me that listening is not communicating; I could see a good argument that it is. Because if listening is not communicating, that means I have no obligation to stop the opposing (represented) party in a case from talking to me about the case in the hallway. Maybe I don't have such an obligation, but I would like to know more.

Blogger Howard Wasserman -- 1/12/2008 1:50 PM  

From the notes on 2-100:
"Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing in the rule prevents a member from advising the client that such communication can be made."

In one case in CA, La Jolla, the lower court held that it was proper for the client to obtain a declaration from a represented opposing party. The appeals court affirmed on other grounds, and thus never reached the question.

Note that this is may be different than a courtroom hallway - if you are standing right there when opposing party talks to your client, your body language, nods, etc. would likely be considered "communicating." But, what if (like in a soap opera), you are just around the corner and overhear the conversation that your client is having (assuming such eavesdropping is otherwise legal). Is that communication? I think not. Do you have to come out and say - "Wait, I can hear you." I don't think so.

That's how I see the Clemens call - though reasonable minds can differ.

Final note: I think prepping is Okay, but if Clemens is acting as an intermediary for the lawyer (realtime question feeding), then it is a much closer case that it is "indirect" communication, though I still land on the "OK" side so long as it is the client and not an investigator or "snitch".

Anonymous Michael Risch -- 1/12/2008 3:16 PM  

it seems pretty clear that clemens was coached while this phone call was going on. Hardin should be disciplined.

Anonymous Anonymous -- 1/13/2008 5:43 PM  

rusty hardin was talking to mcnamee...
only using clemens as a microphone.

that can't be allowed under 4.2

Anonymous Anonymous -- 1/13/2008 5:45 PM  

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