In 2012 I created a program I named The 5 Most Dangerous Rules of Professional Conduct, parts of which I have used as topics for this blog over the years. In 2013 I wrote about Prospective Clients and the risk they pose to a lawyer who is consulted but not engaged. In 2015 I compiled An Informed Consent Concordance, cataloging all the Rules of Professional Conduct that require an attorney to provide a client with “adequate information and explanation about the material risks of and reasonably available alternatives to [a] proposed course of conduct.” Early in the pandemic, I wrote about the most dangerous rule, the duty of confidentiality under Rule 1.6 – a piece I titled And We Really Mean It.
This spring I was invited by the Pueblo County Bar Association to present an in-person CLE, my first since the pandemic began. The program they asked for was The 5 Most Dangerous Rules. In updating my written materials I considered whether my ranking of “most dangerous rules” had held up over the last decade. As explained in an earlier blog, in selecting finalists I employ two criteria: the risk of inadvertent violation, and the potential for professional discipline to result therefrom.
Again applying this standard, the top 5 “most dangerous” rules remained unaltered, though I was happy to demote Rule 1.18 (Prospective Clients) one notch due to an intervening amendment. When I first wrote about Prospective Clients, the threshold for attorney disqualification was simply that a person “discuss[ ] with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter,” something that could easily happen at a cocktail party or a bus stop. Evidently realizing the difficulty of applying this standard, not to mention its potential for mischief, in 2016 the Colorado Supreme Court revised Rule 1.18, making it consistent with the ABA’s Model Rule, and substantially heightening it by requiring a “Prospective Client” to “consult[ ] with a lawyer.”
This article considers one of the two remaining “most dangerous rules”: Rule 4.3 – Dealing with [an] Unrepresented Person. Almost every attorney action “on behalf of a client” begins by communicating “with a person who is not represented by counsel.” The frequency with which Rule 4.3 applies alone should make it one of those rules attorneys have committed to memory. The rule is simple enough. It requires three things:
- a
lawyer who is “dealing on behalf of a client” with an unrepresented person cannot
pretend to be disinterested in the subject of the representation;
- if
the lawyer knows or should know that an unrepresented person does not understand
the lawyer is acting as an advocate, the lawyer must correct the misimpression;
and
- a lawyer may not give legal advice to an unrepresented person other than to get a lawyer.
That’s it. Simple, right?
Well, not always. The line between stating your client’s legal position, e.g., a demand letter which alleges that the recipient’s actions constitute a violation of the Copyright Act, and “giv[ing] legal advice,” can be a thin one. To make this line even more slender, the Comments state that the rule “does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person.” Colo. RPC 4.3, Comment [2]. Try walking that line for any length of time without “giv[ing] legal advice.”
The potential nuance in applying Rule 4.3 deserves close inspection. But not today. Today we consider an easy case in which Rule 4.3 might apply. A case that is fun because it is topical: John Durham’s indictment and the ongoing trial of former Perkins Coie attorney Michael Sussmann for allegedly lying to the FBI.
The salient portions of the indictment against Sussmann are:
1. In or about late October 2016 -approximately one week before the 2016 U.S. Presidential election -multiple media outlets reported that U.S. government authorities had received and were investigating allegations concerning a purported secret channel of communications between the Trump Organization, owned by Donald J. Trump, and a particular Russian bank ("Russian Bank-I").
. . . .
3. The FBI had, in fact, initiated an investigation of these allegations in response to a meeting that MICHAEL A. SUSSMANN, the defendant herein-a lawyer at a major international law firm ("Law Firm-I") -requested and held with the FBI General Counsel on or about September 19, 2016 at FBI Headquarters in the District of Columbia. SUSSMANN provided to the FBI General Counsel three "white papers" along with data files allegedly containing evidence supporting the existence of this purported secret communications channel.
4. During the meeting, SUSSMANN lied about the capacity m which he was providing the allegations to the FBI. Specifically, SUSSMANN stated falsely that he was not doing his work on the aforementioned allegations "for any client," which led the FBI General Counsel to understand that SUSSMANN was acting as a good citizen merely passing along information, not as a paid advocate or political operative. In fact, and as alleged in further detail below, this statement was intentionally false and misleading because, in assembling and conveying these allegations, SUSSMANN acted on behalf of specific clients, namely, (i) a U.S. technology industry executive ("Tech Executive-I") at a U.S. Internet company ("Internet Company-I"), and (ii) the Hillary Clinton Presidential Campaign (the "Clinton Campaign").
5. SUSSMANN's lie was material because, among other reasons, SUSSMANN's false statement misled the FBI General Counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of SUSSMANN's clients.
(Emphasis added.)
Notwithstanding its political importance and intrigue, the Sussmann trial as been virtually ignored by the legacy media which found the salacious allegations of the contemporaneous Johnny Depp – Amber Heard defamation trial far better for its ratings. For lawyers, though, the Sussmann case is worth taking note of.
The provision of Rule 4.3 relevant to Sussmann’s indictment is the first sentence:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.
Assuming the allegations of the indictment are true, Sussman was “dealing on behalf of a client” – actually two clients, the most high profile of which was the Hillary Clinton Presidential Campaign.
Rule 4.3 earns a place among the “most dangerous” rules for several reasons. In addition to being one of the most frequently applicable rules, thus having a statistically greater chance of being violated, the rule does not require a lawyer to affirmatively avow he is “disinterested” – it is enough that he “implies” it. The indictment, however, asserts that Sussmann affirmatively “stated falsely that he was not doing his work on the aforementioned allegations ‘for any client,’ which led the FBI General Counsel to understand that SUSSMANN was acting as a good citizen merely passing along information, not as a paid advocate or political operative.” Thus, if applicable to his interaction with the FBI, Sussmann appears to have blatantly violated Rule 4.3.
Considering how often attorneys deal with unrepresented persons, there is surprisingly little commentary about the policy underpinnings of Rule 4.3, probably because the rationale for the rule is intuitive. The key word in the rule is “disinterested,” which Merriam-Webster defines as “free from selfish motive or interest: unbiased.” One claiming or implying to be disinterested dons a cloak of implicit honesty and trustworthiness. Not necessarily reliability – a disinterested person may be egregiously wrong or misinformed. But a “disinterested” person is, by definition and common understanding, free from bias and therefor innately more credible. This is the principal rationale supporting Rule 4.3. An unrepresented person will naturally assume that a disinterested lawyer is both trustworthy:
An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person.
Rule 4.3, Comment [1] (emphasis added). If the facts alleged in the indictment are true, and if the FBI was an “unrepresented person,” Sussmann ran roughshod over Rule 4.3, exploiting both natural human tendency to equate disinterest with credibility and his friendship with Jim Baker, then the FBI’s General Counsel.
Key evidence in the prosecution’s case is a text message sent by Sussmann Baker prior to his meeting with the FBI:
“Jim — it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow? I’m coming on my own — not on behalf of a client or company — want to help the Bureau. Thanks.”
In an attempt to counter this damning evidence, Sussmann’s defense introduced notes taken by Tashina Gauhar, a Justice Department intelligence oversight official who attended a briefing held after the FBI’s meeting with Sussman. Gauhar notes include this statement: “’attorney’ brought to FBI on behalf of his clients.” This, the defense has argued, establishes that Sussman identified himself as acting on behalf of a client when he gave the FBI information suggesting that the Trump campaign had a secret back-channel communications line with Russia.
Tashina Gauhar's Meeting Notes
The defense’s claim that, at some time after sending his text message to Baker, Sussmann identified himself as representing a client, raises an interesting question: Can a lawyer avoid discipline under Rule 4.3 if, having first claimed to be disinterested, he later identifies himself as acting for a client? It is unclear from Gauhar’s notes whether after sending his text message Sussmann identified himself as acting on behalf of the Clinton campaign, or if his representational capacity later came to light through other sources. If Sussmann did recant his statement that he was “not [acting] on behalf of a client or company” but simply “want[ed] to help the Bureau,” would it expunge an earlier Rule 4.3 violation?
Of course, John Durham’s prosecution of Sussman is not an ethics inquiry. In any ethics investigation Sussmann would argue that the FBI was not a “person who [was] not represented by counsel” because the meeting was attended by Baker, then the FBI’s General Counsel. Of course, if Baker’s testimony – that Sussmann said nothing at the meeting to correct his earlier text that he was “coming on my own — not on behalf of a client or company” – is believed, in potentially escaping the clutches of Rule 4.3 Sussman would run directly into the buzzsaw of Rules 8.4(c) and (d), which respectively provide that “it is unprofessional conduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “that is prejudicial to the administration of justice.”
At the time of this posting the Sussman jury is still out. It remains to be seen if, in addition to potentially being found guilty of lying to FBI, Sussmann may face an ethics investigation which could lead to his disbarment or suspension, as happened to his most famous client’s husband 21 years ago.
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