Naming Lawyers in Complaints
As with formal complaints, informal complaints can often include a business' attorneys as named parties. This website is focused on privacy violations ("do not call", GLBA, etc.), but the subject matter is more relevant to consumer complaints in general. In particular privacy issues and other issues involving corporate policy often involve corporate law departments.
This is linked from a related webpage concerning naming_individuals.html when filing formal and informal complaints in privacy violations ("do not call", GLBA, etc.).
A business' lawyers are usually involved at some point in company policy. To the extent they are involved, it makes sense to name them in a civil or criminal complaint against the business.
If a company policy is illegal, their lawyers have an ethical responsibility to stop it. Unfortunately, many local bar "ethics" rules come close to approving "The Three Monkeys" approach to corporate accountability.
Taking this one step further, if their lawyers provided advice to violate the law, they are co-conspirators. The only way for businesses to disregard the law is for their employees to cooperate in doing so. More to the point, by naming individuals, the people implementing illegal policies may be asked to respond.
Naming the lawyers in a complaint calls this bar acceptance of disregard of the law to task.
There are two different levels of involvement by attorneys in company activity:
- 1. The lawyer reviews an activity and provides advice.
- This involves issues raised by the attorney-client relationship. More significantly, this involves the conflicting obligations of confidence vs. the obligation to report prospective wrongdoing.
- 2. The lawyer becomes an active participant in the activity.
- If the lawyer becomes actively involved in an activity, that person becomes a principal and is directly subject to the legal action.
Legal "Ethics" Rules
While one should expect a lawyer to uphold the law, in the US, legal "ethics" rules suggests the opposite. The local bar associations in many cases resist moves to require lawyer reporting of violations.
In almost all cases, a lawyer is obligated to maintain confidences. This includes any information regarding a client's past criminal acts. This follows international human rights law in order to provide a defendant with a right to legal representation.
Where the issues are muddled regards prospective acts. In the case of prospective act, if the person is going to violate the law regardless of legal representation, the engagement of the lawyer extends beyond that of protection of civil rights.
In other words, lawyer silence about prospective acts accomplishes the opposite results as the right to confidence about past acts. It is legitimized corruption of the legal system.
US bar groups suggest that the purpose of the attorney-client privilege (the Common Law terminology) is to encourage legal behaviour by allowing people to confide in their lawyers. Again this is self-contradictory when applied to prospective lawbreaking. If the client brings up the issue to the lawyer, the client generally can be presumed to know of the legal issue. If the client is intent on proceeding with the violation, the only purpose of attorney-client privilege is to include the lawyer as a de facto co-conspirator.
In the case of a corporate entity, this balances the rights of a fictitious person to seek advise about breaking the law with the presumed obligation of the lawyer to uphold the law.
Under some (but not all) local bar rules, lawyers have an obligation to prevent future (prospective) wrongdoing. In jurisdictions with this rule, the procedure is almost universally to advise the client that the act is illegal, and that the lawyer has an ethical obligation to intervene. If is apparent that the client will proceed despite the advise, the lawyer must then raise the issue with the proper authorities. Again, this is for prospective violations.
The SEC rules require that the lawyer first go up the "chain of command", but ultimately to report the wrongdoing unless it is clear that the violation will not occur. This regulation specifies a specific manner of reporting. This is significant in that the regulation specifically requires that the attorney take action even if the local bar's ethics rules condone "The Three Monkeys" approach.
Silence concerning prospective acts becomes further complicated when advice includes instruction on how to violate the law. That could implicate the lawyer as a co-conspirator. Lawyers are careful to avoid "smoking gun" documents, but there's more to a conspiracy than documentation:
- The client (the business) will often directly or by implication identify obtaining advice from their law department.
- This could be anything from, "Our lawyers approved it," to something which indicates legal opinion would have been employed. Usually an employee trying to say something suggested (directly or indirectly) by the law department will not be inclined to conceal that source.
Waiver of Confidence
Even if the advice is privileged, that privilege can be waived by the client.If the client states that the client has been authorised to do something, that authorisation is no longer privileged. If the client states that it came from the lawyer, that confidence no longer exists!The waiver of the privilege doesn't directly reach to a duty to report; however, it does bring into question the lawyer's involvement. That in turn at least raises the questions of:
- a duty to report wrongdoing; and
- the propriety of the lawyer's actions.
Therefore a lawyer advising a client on how to violate the law would have to consider that those advised will say that the activities were approved by the law department.
Despite the "code of silence" enforced by some bar rules, it is still a major issue is when a lawyer knows of a prospective violation and remains silent. Much of this depends on the particular bar rules, and whether the lawyer was in fact a participant.
Validity of Bar Rules
Just because the bar rules permit encourage a lawyer to conceal prospective illegal acts doesn't mean that's the law. The local bar rules may not be:To the extent that the rules enjoy official sanction, it's difficult to hold the lawyers liable; however two factors come into play:
- a set of regulations established pursuant to statute.
- rules established by the highest court of that jurisdiction.
- rules established by the bar association and sanctioned by the highest court of that jurisdiction.
- rules established by the bar association without official sanction.
- The bar rules must make the lawyer exempt from a violation; and
- The lawyer or law department may be deemed to be the person(s) who initiated the violation. In that case, the same bar rules can be applied against the lawyer.
What to Expect
Naturally, it's impossible to determine in an article like this the nature of a specific complaint, not to mention the specific circumstances surrounding the complaint. In general, the inclusion of individuals depends on the agency, if any, pursuing the complaint. As mentioned above, it may be that the part naming the individuals may be struck from the complaint. If not, then the response depends on the individuals and the institutions involved.
It's not really a classical "jobsworth" attitude, but the possibility of personal sanctions will often cause the lawyer to be more open about wrongdoing by others. In particular, someone who had no qualms about ignoring (or more deliberately encouraging) a violation would be quickest to blame others for the violation. While there is an incentive to "cover up" a wrongdoing, there is perhaps a stronger incentive to deny personal involvement.
As a result, naming the lawyer tends encourage favourable resolution of the issues, at least in cases where the lawyer was in fact involved in the violation.
Naming Individuals in General
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first posted 30 December 2003 ~~ this page rev 3009nbsp;409nbsp;18 ~~ written in WordPerfect 5.1 ~~ copyright 2003 by S. Protigal ~~ Feel free to link to this.