Tuesday, March 01, 2005

Abbott v. IRS (9th Cir. - March 1, 2005)

I've taught Professional Responsibility at USD for the past decade. On my midterm and final examinations, I often ask my students a question about what it means for parties to be "directly adverse" pursuant to ABA Model Rule of Professional Conduct 1.7 (A). If Judge Noonan were to take my exam, he'd clearly get the answer wrong. As he manifestly does in this case.

Here, an attorney (Dennis Harkavy) is representing a client (Peterson) in a dispute with the IRS, while at the same time Harkavy is working on an unrelated matter for the IRS. Peterson claims that this violates Rule 1.7(a), which states that a lawyer "shall not represent a client if the representation of that client will be directly adverse to another client unless . . . each client consents after consultation." Peterson didn't consent, so the only question is whether the IRS and Peterson were directly adverse parties. Remember: One was suing the other. Sounds like they're directly adverse parties, eh?

Judge Noonan states: "Rule 1.7(a) has no application here. Representation [by Harkavy] of the IRS in the McGuire Partners case was not 'directly adverse' to the representation of the estate. The cases were entirely unrelated." This is the kind of answer I'd only expect from a subpar -- very subpar -- student in my class, since it entirely ignores Comment 6 to Rule 1.7, which both defines what it means to be directly adverse (and makes clear that only the parties -- not the cases -- need be directly adverse), and also expressly states: "[A]bsent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated." Judge Noonan's interpretation of Rule 1.7(a) is simply flatly wrong.

Plus, Comment 6 even gives a reason for this rule: that even if the matters are unrelated, the simultaneous representation of both X and Y (in a situation in which X and Y are in litigation against each other) may well make a client feel betrayed, and "the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively." Comment 6 goes on: "In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., the the representation may be materially limited by the lawyer's interest in retaining the current client." That's why we have a bright-line, prophylactic rule against simultaneously representing both X and Y -- even in unrelated cases -- when X and Y are litigating against each other.

There were plenty of other ways for Judge Noonan to resolve this case without butchering Rule 1.7(a). I can't fathom how he could get wrong a very basic component of Rule 1.7(a) -- sometime that the vast, vast majority of law students are able to get right. Especially since Judge Noonan is the author of a textbook on professional responsibility. Yikes.

You gotta pay more attention in P.R., John.

P.S. - Random reference. A google search of counsel for Peterson, Robert Sticht, reveals the following description of Sticht in another case: "With flowing shoulder-length hair, Sticht appeared as if he had just returned from Woodstock. Perhaps intentionally causing everyone to doze off, he droned on with interminable pseudo-intellectual dissertation." Ouch. That said, consider the source of this critique, which is contained exclusively in the Jubilee Newspaper, the self-proclaimed "Newspaper of Record for the American Christian Patriot". There's where I get all my reliable news reports. Oh yeah.