Re: Re: Ms. Murray's Reputation

At 3:20 PM -0400 8/11/05, Mike Bradley wrote:
>I guess Ms. Murray is a wonderful person and fine attorney. But
>isn't her move exactly the sort of move that lies at the heart of
>the corruption so many of us complain about in politics? A person
>works for a government regulator then works for the regulated
>industy then manages a government dept then works as a lobbyist
>lobbying the same dept, and so on.
>
>The swinging door is a practice condemned by every non-partisan
>good-government watchdog. It inevitably presents serious conflicts
>of interest and has been shown to undermine honest dealings in
>government and industry alike.
>

That would be the revolving door, and it is/was a problem to the extent there are/were no rules for non-lawyers like the Rules of Professional Responsibility that govern the conduct of lawyers in or out of the government. The problem of the revolving door for non-lawyers between regulator and regulated has been addressed, at least at the federal level, by the enactment of laws that are closely analogous to the Rules of Professional Responsibility, except the rules for lawyers are more specific.

It is important to understand that a conflict of interest does not arise from the mere fact of representing an old opponent as a new client who may have interests that are opposed to those of a former client. The conflict arises from the inability to zealously represent the new client without violating continuing obligations to the old client, such as confidentiality. The rules essentially prohibit representation of the new client in matters related to your representation of the old client, unless we get waivers all around, because you cannot represent the new client zealously while you are keeping secrets from him.

At 12:25 PM -0400 8/11/05, Irvin Muchnick wrote:
>"What about all the info Guild members have confided in Kay
>Murray regarding the settlement? Is she bound by
>attorney-client privilege?

The answer is unequivocally and emphatically "OF COURSE!" Mr. Muchnick might have asked the question before he wrote the rant, but then he wouldn't have had a rant to write.

>The issue is not whether Murray is a lovely person, but whether her
>legacy as a lawyer "so sensitive to authors' issues" might be a tad
>... tainted ... by this chain of events, if not by her participation
>in arguably the worst sellout in the history of writers' rights, and
>an egregious abuse of the class-action system to boot.

Mr. Muchnick doesn't understand the "legacy" that lawyers are about. We take on cases, not crusades. We represent clients, not causes. Mr. Muchnick may have good cause for his crusade. Maybe Ms. Murray rolled over at $10-18 mil. when the publishers were prepared to pay something closer to Muchnick's $2.5-600 bil. before saying "screw this -- let's litigate." (That's a big spread, Irv. Where would you like to start the negotiations? At $600 bil., or should we save some time?) If Muchnick has cause for his crusade, he's a client with a case who needs a lawyer; but the only conflict of interest less specious than Muchnick's invention, is Murray's continued representation of the Guild -- defending both her client and herself against Michnick's implicit claim that her representation was ineffective. Or as he would have it now, traitorous, because it's hard to argue that the Tribune Company hired her for her demonstrated incompetence and docility. Let's not lose sight of the irony here. One would expect Muchnick to applaud the defection and welcome the replacement of an incompetent or traitorous attorney if he shared the interests of other members of the Guild.

>"Attorneys have an obligation under the canons of ethics to avoid
>even an appearance of impropriety," one outraged attorney-reader
>wrote to me. "This really stinks."

Outrage and a sensitive nose are poor substitutes for logic and law. The Rules of Professional Responsibility prohibit the disclosure or use of a client's confidential information without the client's permission. They make it clear that you cannot take employment that would require you to violate that rule. It's a bright-line rule. There's no appearance about it. The rules regarding the appearance of impropriety plug a hole by prohibiting private employment in matters in which you acted in a judicial capacity or as a government official even if you don't have any confidential information to disclose. There is no appearance of impropriety -- absolutely none -- in Murray's representation of the Tribune Company in matters that don't suggest the useful disclosure of confidential information obtained from her client in this case. You don't get to own a lawyer forever by hiring her once. A lawyer in the District Attorney's office can decide he'd rather work for the Public Defender. You can't take the appeal if you prosecuted the conviction, but if you can put a guy in prison for killing his wife, and then take the case when he's charged with murdering his cellmate, you're a lawyer.

John Noble Received on Fri Aug 12 2005 - 19:20:30 GMT