Suits Season 1 Episode 6

Suits 1x6- "Tricks of the Trade"

Possible Violation of 5.3(c)(1)
Mike goes to visit Bradley Reger to find out where Gabby Stone is. Gabby Stone, a trader on Wall Street, is accused of insider trading and was about to sign a plea deal when she ran away from the offices of Pearson Hardman. While talking with Bradley, Mike represents himself as someone from the Department of Justice. Normally this would be a violation of 8.4(b) (because impersonating a federal officer is a crime) and 4.3 (because Mike didn't explain his role in the matter to an unrepresented person), but again, Mike is not a lawyer, so while he could be subject to criminal penalties for impersonating a government officer, he is not technically breaking any rules of professional conduct here. Harvey is, however. Later in the episode, we realize that Harvey found out Mike had done this, and he warns Mike not to impersonate a federal agent again. Here, Harvey is violating Rule 5.3(c)(1), which states that "(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged by a lawyer if (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved." Here, Harvey has actual knowledge of the specific conduct because he asks whether Mike told Bradley he worked for the Department of Justice and Mike, after trying to beat around the bush and work around the question, admits to it. Even though Harvey warns him not to do it again, he is essentially accepting that Mike has violated the ethics rules and so he has ratified the conduct when he didn't reprimand Mike for his conduct.

Violation of 4.2
Now, we come to something I thought would have been violated by now. Harvey and Mike visit Gabby Stone in prison. Gabby Stone, seen earlier in the episode, is represented by a lawyer, Nick Zegan. Harvey knows that she is represented by Nick, and so she is a represented person under Rule 4.2. 4.2 states, "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Here, Harvey has not been authorized to see Gabby Stone by either the law or by a court order, and we know that he hasn't received the consent of her lawyer Nick Zegan because Harvey tells Nick he went to see Gabby later in the episode. During the jail meeting, Harvey, Mike, and Gabby discuss the matter at hand (her insider trading) and so Harvey has violated Rule 4.2.

Violation of 1.9(a), 8.4(c), 8.4(b)
Now, we get to some really interesting facts. Harvey Specter accuses Nick Zegan or representing both Burt Kimball in a civil suit twelve years agao and Lunardi Pharmaceuticals in their FDA approval suit. This matters because Nick Zegan represents Gabby Stone, who is accused of insider trading with information about Lunardi's FDA Approval. Gabby worked for a company of which Burt Kimball is an executive officer. Essentially, attorney Nick Zegan was giving Burt Kimball insider information about the FDA Approval and Burt was then giving that information to Gabby to trade on. When Gabby got caught, there was nothing to trace it back to either Burt or Nick and they cut her loose. Obviously we are dealing with a conflict of interest here. Nick's former clients are Burt and Lunardi Pharmaceuticals, and his current client is Gabby Stone. First, we need to determine whether Nick Zegan violated 1.9(a) by breaching a duty to his former client Burt Kimball when he represented Gabby Stone. Rule 1.9(a) states that "a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." Harvey says that Nick Zegan represented Burt Kimball in a civil suit twelve years ago. Most likely, Burt's civil suit is not the same or substantially related to Gabby's case, and so he didn't have a conflict of interest with his former client when he took on Gabby's case. He did, however, have a conflict of interest representing Gabby Stone after representing Lunardi Pharmaceuticals. Nick represented Lunardi in their FDA approval proceedings, and Gabby Stone's case is about trading insider information concerning Lunardi's FDA approval proceedings. Therefore, the cases are the same or substantially related. Additionally, Gabby's interests are materially adverse to Lunardi's interests. Lunardi, even though it's not a party to the suit, has a material interest in ensuring that their inside information is not traded on and would want Gabby prosecuted to the full extent of the law. Gabby wants to defend herself from the suit. Therefore the party's interests are materially adverse and Nick Zegan violated 1.9(a) when he represented both of them. Additionally, by helping Burt use Gabby as a pawn in their insider trading scheme and then turning around and representing her, Nick has violated 8.4(c) which states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Furthermore, the securities violations are probably criminal acts, and so Nick has violated 8.4(b) which states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

Violation of 8.4(e)
Harvey tells Nick, "You see my relationship with the DOJ [Department of Justice]. Do you want me to point them in your direction? Or do you want to admit to me that Burt Kimball's paying you off?" This is one of Harvey's favorite ethical violations, a violation of 8.4(e), which states that it is professional misconduct to "state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law." It's unclear whether the threat of criminal prosecution itself would be a violation, especially when the threat is based on reasonable facts that would warrant criminal charges. The older rules of conduct did have language to this effect, but the new rules took that language out, so under the Model Rules it doesn't appear that a threat of criminal prosecution, when the facts show that the criminal prosecution could happen, violate the ethical rules. Please feel free to comment below if you disagree with that summation.