Sunday, May 4, 2014

Suits Season 1 Episode 10 Part 1

Suits 1x10 - "The Shelf Life" - Part 1

Pearson Hardman uses Dreibach Accounting as their account firm; Dreibach Accounting is also their client. Having a business relationship with one of your clients is normally a conflict of interest in violation of Rule 1.8, but, as Mike Ross notes, if Dreibach has signed a conflict of interest waiver, then they have given written informed consent to enter into the agreement.  So long as (1) the terms were fair and reasonable, (2) Dreibach was given a reasonable opportunity to hire independent counsel to help with the contract, and (3) they gave written informed consent, then this relationship is ethical.


If Mike was a lawyer (and he's not) then he would have violated 1.6 when he revealed the results of Dreibach's background check to Stan Jacobson, a Senior Vice President at the accounting firm. Dreibach accounting is the client, not Stan Jacobson. Therefore, Mike "knowingly revealed a client's confidential document" according to Jessica, and Mike would have broken the confidentiality Dreibach had with Pearson Hardman if Mike were a lawyer. But he's not, and because Harvey did not order or ratify his conduct, Harvey is also not violating Rule 5.3. Harvey told Mike to print off the background check, he didn't tell him to reveal it to Stan.



Violation of 4.3, 8.4
When Stan is fired, he becomes a former employee and he is no longer represented in any capacity by Pearson Hardman. Stan becomes an unrepresented person and that becomes apparent when Harvey meets him outside of another law firm. At this point, Dreibach accounting's interests and Stan Jacobson's interests are in conflict, and Harvey is violating Rule 4.3 when he gives Stan the legal advice to sign the severance package. Specifically, Rule 4.3 states that "The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client." Harvey gave Stan legal advice when Stan was unrepresented and his interests were in conflict with those of Dreibach's, and so this is a violation of Rule 4.3. Additionally, Harvey threatens Stan with litigation, and in some jurisdictions this might be coercive enough to be criminal, which would violate Rule 8.4.


Possible Violation of 5.3
Stan is also upset when Harvey contacts him, because he thinks that if the firm he was going to told Harvey he was coming, that that was a breach of the attorney-client privilege. Regardless of whether or not this was a breach of attorney-client privilege, at first blush this could be a breach of confidentiality because Stan was a prospective client. Stan was a prospective client because he called them looking to be represented and according to Rule 1.18(a), "A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." Therefore, according to Rule 1.18(b) "...a lawyer who has learned information from a prospective client shall not use or reveal that information..." and so even the fact that Stan Jacobson wanted to see the other firm is information protected by confidentiality. However, Harvey tries to get around this by saying that his assistant is part of a network of assistants, and so if an assistant leaked the information to Harvey, then it wouldn't be a violation of Rule 1.18 because the assistant wasn't a lawyer. However, it would then still possibly be a violation of Rule 5.3 because the other law firm's assistant, as a nonlawyer employee, did not receive the adequate training to avoid routinely breaking confidentiality. The way Harvey makes it sound, this does not sound like a one-time breach, and so most likely this would be a violation of 5.3 because the firm did not have reasonable measures in place to ensure that its nonlawyer employees were adequately complying with the rules of professional conduct.


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