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.

Season 1 Episode 9 Part 2

Season 1 Episode 9 Part 2

Violation of 5.3(c)(1) and 8.3(a)
Harvey goes to see his private detective. She tells him she tapped the phones at Emerson Petroleum and that the executives and Travis Tanner were talking about intimidating Harvey's plaintiff. First, Harvey is violating 5.3(c)(1) because the private detective is working for him (as evidenced earlier in the episode when he pays her with a stuffed envelope) and so she is a nonlawyer employee, and he is her supervisor. She tells him she tapped Emerson's phones, which is a criminal act that violates the Rules of Professional Conduct (Rule 8.4(b)) and by accepting  the flash-drive containing the illegally wiretapped conversation, he is ratifying her conduct and therefore violating 5.3(c)(1), which states that "a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved." Additionally, because Harvey now has actual knowledge that Travis Tanner violated the Rules of Professional Conduct, he must report him, and because he does not, Harvey violates Rule 8.3, which states that "(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." Because Harvey did not inform the appropriate professional authority, he is now violating 8.3(a).

Violation of 8.4(a) and 8.4(c)

We find out that Wakefield-Cady offered Jimmy a junior partnership position at their firm if he would leak the list, but when he did, they reneged on the offer. Wakefield-Cady violated Rule 8.4(a) and 8.4(c). First, they used Jimmy to violate Pearson Hardman's duty of confidentiality to its clients, and so  they violated 8.4(a) which states that it is professional misconduct for a lawyer to "(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." Additionally, they lied to Jimmy, promising a promotion but reneging on that promise once he came through. Here, they violated Rule 8.4(c) which states that it is professional misconduct for a lawyer to "(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

Suits Season 1 Episode 9 Part 1

Suits 1x9 - "Undefeated" - Part 1

Two Violations of 8.4(c)
First, Travis Tanner lies to Mike Ross, telling Mike he is a close friend of Harvey's so that he can find out where Harvey's office is. Second, Travis lies to Donna, telling her that a witness fainted so that she can leave her post and he can visit Harvey uninterrupted. These two lies technically violate 8.4(c) which says that an attorney commits professional misconduct when they "(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

Violation of 1.6(a)
We find out that an associate at Pearson Hardman leaked a confidential witness list to Wakefield-Cady, a rival firm. Once that information was sent, Wakefield-Cady had to comply with 4.4b, even though the genie was already out of the bottle, so to speak. 4.4b dictates that "(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender." Even if they notified Pearson Hardman, Wakefield-Cady already received the information, so that's all that matters to them. The person who sent it, who we later find out was Jimmy, sent it intentionally and therefore broke a client's confidentiality, violating rule 1.6(a) which states that "(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)." Here, none of the exceptions applied and Jimmy violated 1.6(a).

Five violations of 8.4(a), violation(s) of 5.3(c)(1), possible violations of 4.1(a), 4.2, 4.4, 8.4(a), (b), and (c), two violations of 8.4(b), and 8.4(c)
Travis uses a proxy (a third party person) to intimidate Kenny, the lead plaintiff in Harvey's class action lawsuit, telling Kenny he needs to accept the settlement offer or the other side is going to tear the other plaintiffs apart in cross-examination. That person is probably violating 4.1(a), 4.2, 4.4(a), and 8.4(a), (b), and (c). Here, Travis is violating 8.4(a) because it is professional misconduct to "(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." Because Travis and his client hired that person to intimidate Kenny, he was violating the rules through the acts of another, and was himself violating 8.4(a) for each action someone took on his behalf or per his orders. Additionally, assuming that third person was a nonlawyer, Travis was also violating Rule 5.3(c)(1) where "(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 in by a lawyer if (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved." Here, Travis and his client ordered the nonlawyer to intimidate Kenny. The question becomes whether Travis simply violated 5.3(c)(1) because he ordered the conduct involved, or whether 5.3(c)(1) means Travis violated 4.1(a), 4.2, 4.4(a), and 8.4(a), (b), and (c) because he ordered the conduct involved. Please feel free to post in the comments below about your opinion on this and any other matters. Additionally, by ordering someone else to criminally intimidate Kenny, Travis is probably also guilty of criminal intimidation, and so this would be an independent violation of 8.4(b).

Two violations of 8.4(c)
We then find out later that Jimmy (1) impersonated Luis so he could (2) use Rachel's employee access codes to fax Wakefield-Cady the confidential witness list. Jimmy is twice violating 8.4(c), where an attorney violates the rules by committing professional misconduct when they "(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

Violation of 8.4(a)
Travis Tanner then does something brilliant which is, at first blush, not a violation of the Rules. Tanner knows that speaking to Harvey's clients would violate Rule 4.2 because he cannot speak to them because they are represented- he can only speak to Harvey. So, someone hired by Tanner gathers all of Harvey's plaintiffs in a room and when Harvey gets there, Travis Tanner speaks loudly to Harvey, hoping that the other plaintiffs will hear them. This is technically not a violation of Rule 4.2 because Tanner is not "communicating" with the other plaintiffs, but only with Harvey. Whoever did contact the plaintiffs to gather them in the same room is violating Rule 4.2, and Tanner is violating Rule 8.4(a) again by violating the Rules of Professional Conduct "through the acts of another."

Violation of 1.8(e)
Harvey eventually decides to pay for, out of pocket, a cash advance to hedge the settlement offer Tanner is proposing. He thinks Tanner's offer is low, and so he wants the clients to rest assured that they should stay in the litigation because that money is already assured. This is an interesting issue (and I look forward to your comments below) but I think Harvey is violating Rule 1.8 by providing financial assistance for clients for things other than the cost of the litigation. Comment 10 of Rule 1.8 is insightful, stating that, "Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because...such assistance gives lawyers too great a financial stake in the litigation." Harvey is essentially promising to pay the plaintiffs if he settles for less or losses the case, and this seems to violate the spirit of the Rule, and therefore Harvey is most likely violating Rule 1.8(e).

Suits Season 1 Episode 8 - Part 2

Suits Season 1 Episode 8 - Part 2

Two violations of 5.3(c)(1), Violation of 8.4(a), Violation of 8.4(b)
Near the end of the episode, Mike solicits Lola Jensen to hack into all of the bank records in Lichtenstein to find out where Maslow and his company hid the money. She does this in Pearson Hardman's office with Harvey and Mike present. Hacking into bank records is almost definitely illegal. Accordingly, by inducing her to hack into bank accounts, Mike is also probably breaking the law and committing a criminal act. Mike is asking Lola to break the law to help Harvey's client. Mike would therefore be violating 8.4(a) and (b) if he were a lawyer. Harvey, however, is his supervising lawyer, and as such is responsible for Mike's actions as if Mike were a lawyer. If Mike and Lola were lawyers, both would be violating the rules of professional conduct, and both are being supervised by Harvey. Even though Lola is not employed by Harvey, she is a nonlawyer who is "associating" with him for the time being, and that is probably sufficient to be considered a nonlawyer being supervised by an attorney under Rule 5.3. Therefore, because Harvey accepts what they both are doing and have done, he is ratifying their conduct, and he is violating 5.3(c)(1) which states that "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 the knowledge of the specific conduct, ratifies the conduct involved." Additionally, Harvey asks Lola to search the hacked bank records to find the 150 million embezzled on the day the money was stolen from his client. Here, like Mike, he is violating Rule 8.4(a) and possibly 8.4(b). 8.4(a) states that it is professional misconduct for a lawyer to "(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another" and (b) states that it is profession misconduct for a lawyer to "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

Violation of 1.16(a)(1)
Robert Geller represents Maslow's company, and probably Maslow himself. Rule 1.13(g) states that this dual representation can be ok - that "a lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7." However, once Robert Geller knew that Maslow had embezzled money from another company, a potential conflict of interest had arisen between Maslow and his company, and Geller, instead of representing Maslow through the negotiation, should have terminated the relationship and told Maslow to seek independent counsel. This idea can first be seen in comment 10 to Rule 1.13 which states that "There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged." More importantly, however, is that by continuing to represent Mr. Maslow through the negotiations with Harvey and Luis, Geller's conflict of interest means he is violating Rule 1.16(a)(1) because the continued representation will violate Rule 1.7 (which governs conflict of interest rules). Rule 1.16(a)(1) states that a lawyer shall withdraw from representation of a client when "(1) the representation will result in a violation of the rules of professional conduct or other law."

Suits Season 1 Episode 8 - Part 1

Suits 1x8- "Identity Crisis" - Part 1

Violation of Rule 4.4(a)
At the beginning of the episode, Luis decides not to wait for Harvey and begins deposing Elliot Perkins. He badgers Mr. Perkins, harassing him and throwing accusation after accusation. Luis asks questions like, "Do you sleep well at night?" and making statements like "When I take this public, you are gonna be disgraced." Luis' use of the deposition shows no other substantial purpose than to embarrass and harass Mr. Perkins, and so Luis is violating Rule 4.4(a). Rule 4.4(a) states that, "In representing a client [Here, Luis was representing Stable Shelters], a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."

Later in the episode, Luis contacts Inez, an employee who works for Maslow. We know Maslow is being represented as a company because Luis refers to Mr. Perkins' lawyer as an "in-house" attorney, and the attorney for Mr. Perkins is the same attorney for Mr. Maslow. So, the attorney is representing Maslow's company, and Maslow is presumably the CEO. Comment 1 to Rule 1.13 states that, "Officers, directors, employees, and shareholders are the constituents of the corporate organizational client." Therefore, because Inez works for the company, she is a constituent of the company. However, even thought the company is represented by counsel, she is not a represented person of the company as explained by the comments to rule 4.2, which state that, "in the case of a represented organization, this Rule [Rule 4.2] prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has the authority to obligate the organization with respect tot he matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability." Inez, carrying dry cleaning out of the company building, is probably not someone who regularly consults with the company's counsel and probably is not someone who can make decisions on behalf of the company. Therefore, it was ethically appropriate for Luis to speak with her, because she did not represent the company, and therefore was not one of the organization's "represented persons" under Rule 4.2.

Violation of 3.4(b); Possible Violation of 8.4(b)
However, Luis bribes Inez, offering to get her a job at Pearson Hardman working for Jessica Pearson if she would testify for their side. This is a textbook violation of Rule 3.4(b) where a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, of offer an inducement to a witness that is prohibited by law." Bribing a witness is probably also a criminal act (although Jessica later suggests that it isn't because no money exchanged hands) and so Luis is probably also violating 8.4(b) where it is professional misconduct for a lawyer to "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." 

Two Violations of 8.3(a); Possible Violation of 8.4(b) 

Inez tells Robert Geller, the attorney for Maslow. Geller tells Luis and Harvey that Luis tried to bribe Inez, but that they can put this whole mess behind them if Harvey's client now settles the case. Harvey and Robert both know that Luis violated the ethics rules, and because neither of them report Luis they are both violating Rule 8.3(a) which states that "a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." Additionally, Robert Geller is trying to gain an advantage in settling the civil suit by threatening Luis with an ethical or criminal violation. While "the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons" (see the preamble and scope of the rules) there is nothing in the language of the rules to suggest that threatening opposing counsel with legitimate ethical violations is a violation of the rules in and of themselves. Mostly, the rules have left that idea up to the states. However, this threat may rise to the level of extortion, which would be a criminal act, and Robert Geller would be violating 8.4(b) where it is professional misconduct for a lawyer to "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." 

Violation of Rule 8.3(a) 

Harvey then tells Jessica that Luis tried to bribe Inez into testifying for them. Jessica reprimands Luis, telling him that if he tries that again, it will be his last day at Pearson Hardman. First, Jessica is not violating Rule 5.1(c)(1) because she did not ratify Luis' conduct here; she reprimanded him for trying to bribe a witness. However, because Harvey told her, Jessica has actual knowledge that Luis has violated the Model Rules, she is violating rule 8.3(a) because she has failed to report him to the appropriate professional authority. 

Suits Season 1 Episode 7

Suits 1x7 - "Play the Man"

Violation of 8.4(c)
There's actually only one ethical violation in this whole episode, so let's get to it. Kyle, another associate at Pearson Hardman, promises Mike he will settle a mock trial case with him before they get to mock court. However, once they get to court, he tells the mock court that there never was a deal. Normally other rules regarding candor to the court would be in play, but since this is a mock trial, the only ethical rule in play is 8.4(c) which states that it is professional misconduct for a lawyer (here Kyle) to "(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."By tricking Mike and lying to him about a settlement when Kyle did not plan on settling, Kyle has violated 8.4(c).

I'd like to also take a second look at another ethical issue in the episode which arguably does not lead to an ethical violation. Scottie, Harvey's female rival from Harvard, is in a merger agreement between the business she represents and the business Harvey represents. Scottie gets the financial books from Harvey's client, and uses that information to torpedo the merger and instead take over Harvey's client's business in a hostile takeover. First, we need to determine whether Harvey giving Scottie his client's financial records violated his duty of confidentiality under 1.6. Normally, "a lawyer shall not reveal information relating to the representation of a client", but they can when "the disclosure is impliedly authorized in order to carry out the representation." Here, Harvey is trying to merge his client's company and Scottie's client's company, and so showing the client's financial records is normally a part of these transactions. Therefore, Harvey was impliedly authorized to show Scottie the books because showing her the books was necessary to carry out the merger for his client. There is no violation of 1.6.

Second, and more importantly, Scottie misrepresents her interest in doing a merger in order to secure the financial records of Harvey's client. It could be argued that this misrepresentation is prohibited by 8.4(c), but because the word "misrepresentation" is not included in the terminology, we would have to rely on the word as used in substantive law, and normally in substantive law "misrepresentation" is only misrepresentation of a material fact. Here, Scottie's intentions in getting Harvey's books during the negotiations is probably not a material fact, and while outright lying or deception is still prohibited even in negotiations, this type of omission does not seem to rise to the level of misrepresentation required under the rules (again, feel free to disagree with me in the comments below!). This situation is different from the one in the first paragraph above, because in the paragraph above, Kyle is making affirmative statements that he knows are not true- he is making a promise he has no intention of keeping and that Mike relies on when they start the trial. Here, however, those affirmative statements are lacking, the only thing at issue here is that Scottie's intentions are not what they seem, and a lawyer can have different intentions than the ones they put on display during negotiations. Therefore, this omission does not seem to rise to the level of a misrepresentation and Scottie probably did not violate 8.4(c).

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.