Samuel Stretton
Samuel Stretton ()

The U.S. Supreme Court’s attorney discipline rules are not in line with other courts.

How does the U.S. Supreme Court handle reciprocal attorney discipline?

The U.S. Supreme Court handles reciprocal attorney discipline very badly. At least in my experience, it has been the practice of the Supreme Court, if an attorney is suspended, to disbar the attorney. Therefore, if a lawyer is suspended for two years and a member of the bar of the Supreme Court, a rule to show cause will be issued. The lawyer may or may not answer. But the end result will be the same, a disbarment.

Such a procedure violates the Federal Rules of Civil Procedure for attorney discipline, at least in the district and circuit courts. It also violates fundamental due process. It makes no sense why the Supreme Court would disbar a lawyer who has only been suspended in another jurisdiction. But that has been the practice over the years, as any lawyer who handles attorney disciplinary matters knows.

Unfortunately, there is nowhere else to go since there is no other court one can appeal to. It seems odd that the nation’s highest court would routinely disbar without hearings or arguments, in violation at least of rules for reciprocal discipline in other courts, without any explanation. One can perhaps understand judicial economy, because the Supreme Court doesn’t have the resources to hear thousands of cases of suspended lawyers throughout the nation who happen to be admitted to that court to practice. On the other hand, the court could establish the disciplinary system with masters and at least make recommendations. Or the court could enter the reciprocal suspension as opposed to regularly disbarring attorneys.

There is an interesting article in the Georgetown Journal of Legal Ethics, Volume 26, No. 3, which talks about judicial ethics and Supreme Court exceptionalism. Although the article is not about reciprocal discipline, it talks about whether Congress has the constitutional authority to regulate the justices of the Supreme Court in their ethical conduct. The essay talks about congressional power versus the separation of powers doctrine and the need to preserve judicial integrity.

The article was written by Amanda Frost, a professor of law at American University Washington College of Law. Frost concludes that Congress has broad but not unlimited authority to regulate Supreme Court justices’ ethical conduct. Frost finds that Article 3 mandates the existence of the Supreme Court, but then leaves the creation of that court up to Congress, thereby triggering Congress’ authority to make all laws “which shall be necessary and proper for carrying into execution … all other powers vested by the Constitution in the government of the United States.” Frost cautions that judicial independence does temper to some extent the authority of Congress.

But getting back to the question, why does the Supreme Court not follow a basic due process concern instead of disbarring lawyers who are suspended? There is no good answer. Perhaps there are examples when a different result occurs, but my experience has been to the contrary.

The bottom line is that if a lawyer is suspended in a court, there is an obligation to notify all other courts to which the lawyer is admitted. Those courts will then have a hearing on reciprocal discipline, unless the lawyer consents to the discipline. But with the Supreme Court, the practice appears to have been a disbarment, even though the underlying discipline of suspension is sometimes far less.

Courts are leery of attorneys representing 
competitors of former clients.

I have represented many business clients over the years. At times, I have represented their competitors, but not in the same cases. Can I do this or would I be disqualified?

The appropriate language is found in Rule of Professional Conduct 1.9, which deals with a lawyer’s duties to former clients. That rule indicates a lawyer who has formerly represented a client in a matter shall not represent another person in the same or a substantially related matter in which the person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent. Very few clients are going to give consent in something that is directly adverse. The fight is often over what defines a “substantially related matter.”

In Pennsylvania, an important case to review is Maritrans GP v. Pepper, Hamilton & Scheetz, 602 A.2d 1277 (Pa. 1992). The opinion, when written, was truly a landmark. Maritrans broadened the definition of “substantially related.”

The lawyers in the Maritrans case had represented Maritrans previously. Maritrans then sought injunctive relief against the lawyers, who were now representing a competitor of Maritrans. Apparently, the lawyers had been representing some of the competitors, including in labor-related issues and labor-related negotiations. Although not directly adverse to Maritrans, there was concern that confidentiality and trade secrets might be violated.

Apparently, there was an attempt to set up some sort of screening process, but, unfortunately, some of the previous lawyers who worked on the Maritrans case were now representing the competitor. The court had concern that the lawyers had gotten substantial information from Maritrans during the representation that would place Maritrans at a disadvantage, particularly if that information became known to the new clients. Of interest is the fact that it does not appear that there was any violation of that confidentiality. Despite that, the court granted the injunction. The court noted it would be difficult, if almost impossible, to handle that type of screening process. There could be inadvertent disclosures. The court held that to allow this to continue and not to grant the injunction would “create a danger that Maritrans’ confidential relationship with Pepper and Messina would be breached.”

The court then established a case-by-case rule. The court noted that one of the factors would be the extent to which the fiduciary was involved in the former client’s affairs. Obviously, the greater the involvement, the greater the chance of confidences being revealed.

Maritrans is a very interesting case and should be read closely. It does not preclude all representation against former clients’ competitors, but it has factors that have to be considered and analyzed. A lawyer taking on a former client’s competitor has to fully evaluate all of the aspects of Maritrans, because otherwise the lawyer may do a disservice to the new client if there is litigation on disqualification.

Representing a competitor of a former client is not always a wise decision and one should carefully review all aspects before representation is taken. Courts are very leery to place a former client in a position where confidences could be exposed and that is the correct position that should be taken. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.