You’re right, I did point to Chevron’s campaign as a cause of Patton Boggs’s capitulation.

Thank you for responding.
Unquestionably Patton Boggs should not have abandoned their clients. Not only have they done so, they have stabbed them in the back for good measure.
However, what you also appeared to question, was what pressures caused this. Patton Boggs, you point out, were desperate for a merger, which was unlikely to happen with the Chevron case unresolved. The LAP team say that Chevron has used its might to scare off the opposition, and that is a position which seems to have merit. Patton Boggs are the latest example of an LAP ally with an Achilles’ heel.

Thanks, Peter, for the comment. I hope I have no axe to grind, though readers may disagree. It’s only fair to point out that to the extent I’m talking about legal ethics and professional responsibility here (particularly in the comments), I’m talking about Patton Boggs, not Gibson Dunn. The interesting question of professional responsibility, I think, has to do with whether Patton Boggs ought to have settled on terms that included making discovery available to Chevron and issuing its statement of regret. As I noted in a prior comment, I don’t have a firm view on this. What Gibson Dunn has done raises system-wide questions, but I am not sure they are questions of legal ethics or professional responsibility.

And in any case, as I’ve said, I’m not asserting that Patton Boggs acted unethically. I think it’s just a problematic issue worthy of a better analysis than we’re probably giving it here!

I think your reading reputational harm in general into the rule is a little tenuous. Under your reading, a law firm defending a client against defamation claims could properly withdraw from the representation at any point and say that it regretted representing the client as long as the client had asserted truth as a defense to the charges. Moreover, your reading would diminish the significance of model rule 1.2(b), which states that “[a] lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

In any event, this is a fascinating topic, and it got me to break out my model rules even after I’d already completed by final exam in ethics.

Financial harm is financial harm, whether reputational or otherwise. I don’t see the rationale for your narrowing interpretation of the plain language of the rule. (And I am too much of a lay lawyer in this field to know whether there is case law or drafting history supporting your position. The official ABA comment adheres to the plain language of the rule, without narrowing it.)

I agree that Patton Boggs’ very limited statement hardly cures the harm done to Chevron (in the language of the rule, it does not “rectify” the harm). But it helps: in the language of the rule, it “mitigates” the reputational harm (for the reasons stated in my comments above).

I think you may have hit the nail on the head. I do not believe that the reputational harm that seems to be your concern is what Rule 1.6 has in mind. I think the rule is intended for cases in which, for example, a lawyer representing a seller makes a misrepresentation about the goods being sold to the buyer and has to correct it when he learns that his client is engaged in fraud, or a lawyer for a public company has to correct a misrepresentation in an offering document that misleads shareholders. And so on. I could be wrong, but that’s the kind of thing I think the rule is aimed at. Anyway, Patton Boggs’s statement doesn’t really do anything, nor does it seem calculated to do anything, to remedy the reputational harm Chevron has suffered.

Dear Ted,

Your view strikes me as responsible and eminently understandable. I think many lawyers would agree with you. However, the ABA Model Rules, as I read them (non-expert on ethics that I am), appear to take a different view. ABA Rule 1.6(b)(3) states as follows:

“(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:”

…

“(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; …”

As I argued in my earlier comments, I think Patton Boggs’ statement was indeed necessary to mitigate substantial injury to the financial interests of Chevron caused by the LAPs’ fraud. That is a question of fact and judgment. You may agree or disagree; if so, we could discuss that issue.

But what seems clear from the ABA Rule is that a lawyer in a litigation fraud situation is not ethically constrained to consider only the clients’ interests, but may also consider the harm done to the opposing party, and reveal information relating to the representation accordingly.

Again, I have not researched individual State rules, but Patton Boggs appears to me have acted ethically in accordance with the ABA Model Rule, at least.

I think if you have to withdraw from a matter for ethical reasons and you’re not ethically required to say why you’re withdrawing, then you shouldn’t say anything, so as to minimize the harm to your client.