Case Information
‐ cv v. Bernstein Litowitz Berger & Grossmann LLP, et al. In the
United States Court of Appeals
For the Second Circuit
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A UGUST T ERM , S UBMITTED : O CTOBER D ECIDED : F EBRUARY No.
B RUCE B ERNSTEIN , Plaintiff,
B ERNSTEIN L ITOWITZ B ERGER & G ROSSMANN LLP, M AX B ERGER , S TEVEN S INGER , S ALVATORE G RAZIANO , E DWARD G ROSSMANN AND
G ERALD S ILK ,
Defendants Appellants. [*] ________
Appeal United States District Court Southern District New York. Civ. (VEC) – Valerie E. Caproni, Judge ________
Before: K EARSE W ALKER C ABRANES Circuit Judges
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Attorney Bruce Bernstein sued his former law firm, Bernstein Litowitz Berger & Grossmann LLP (“BLB&G”), five partners, alleging that he had been forced resign after blowing the whistle on what he considered be the firm’s unethical litigation conduct. The firm argued the relevant facts were “confidential client information” could disclosed by Bernstein complaint raising claims of, inter alia retaliatory breach contract. sought obtained permission the United States District Court for the Southern District New York (Kevin P. Castel, Judge ) file complaint under seal, automatically expire fourteen days after service process on defendants, unless extended court. Thirteen days after complaint was filed, parties settled suit confidential terms. The parties then sought order directing clerk court close file while leaving it permanently sealed.
The United States District Court for Southern District New York (Valerie E. Caproni, Judge ) denied parties’ request. The district court concluded document subject First Amendment common law. also held keeping secret necessary protect “confidential communications.” Finally, applying balancing test common law right access, found weak private interests stake did rebut access, which supported by substantial interests. agree with AFFIRM.
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Gregory P. Joseph, Pamela Jarvis, Courtney A. Solomon, on brief Joseph Hage Aaronson LLC, New York, NY, for Defendants Appellants.
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J OHN M. W ALKER J R ., Circuit Judge :
Attorney Bruce Bernstein sued his former law firm, Bernstein Litowitz Berger & Grossmann LLP (“BLB&G”), five partners, alleging he had been forced resign after blowing whistle on what he considered be firm’s unethical litigation conduct. firm argued relevant facts were “confidential information” could disclosed by Bernstein complaint raising claims of, inter alia retaliatory breach contract. sought obtained permission United States District Court Southern District New York (Kevin P. Castel, Judge ) file seal, automatically expire fourteen days after service process on defendants, unless extended court. Thirteen days after filed, parties settled suit confidential terms. The parties then sought order directing the clerk court close the file while leaving it permanently sealed.
The United States District Court for the Southern District New York (Valerie E. Caproni, Judge ) denied the parties’ request. The court concluded that the complaint a document subject presumption public the First Amendment the common law. district court also held keeping the complaint secret not necessary protect “confidential communications.” Finally, applying the balancing test common law right access, found weak private interests at stake did rebut access, which supported substantial public interests. We agree with AFFIRM.
BACKGROUND
We recite facts alleged in are necessary understand substantial interest complaint’s disclosure, discloses nature proceeding. emphasize, however, point proceeding facts alleged exactly that—simply allegations, truth which has been proven. became counsel BLB&G 2008. At firm,
he worked re Satyam Computer Services, Ltd., Securities Litigation class action which arose “massive financial No. ‐ scandal involving . Satyam Computer Services, Ltd. (Satyam), one India’s largest information technology outsourcing companies.” F. Supp. 2d 1375, (J.P.M.L. 2009). Suits brought by various investors against Satyam others were consolidated in Southern District New York Judicial Panel on Multidistrict Litigation. Id. In May 2009, Mississippi Public Employees’ Retirement System (“MPERS”) was appointed as one four lead plaintiffs in case. In re Satyam Comput. Servs., Ltd., Sec. Litig. 1:09 md BSJ [Doc. 8] (May 12, 2009). Office Mississippi Attorney General (“AG’s Office”) was inside counsel for MPERS. BLB&G was outside counsel.
In September 2010, BLB&G partner Steven Singer informed solo practitioner based Jackson, Mississippi, Vaterria Martin, would act “local counsel” “occasionally check status for MPERS, even though BLB&G already providing information directly” AG’s Office. December 2010, lead plaintiffs Satyam class action reached an agreement principle settle with Satyam $125 million. On February 2011, Satyam lead plaintiffs executed stipulation setting forth terms agreement.
No. ‐ 374 ‐ On March 1, 2011—after the agreement principle with Satyam had been reached and stipulation had been executed— another BLB&G partner, Max Berger, “assigned two unnecessary legal research projects” Martin. Bernstein protested assignment, but his concerns were dismissed, with Singer saying, “Do you ever want us work with Mississippi again?” Martin ultimately produced eighteen ‐ page memorandum on April 26, 2011, several weeks after was settled principle. Singer Berger agreed with Bernstein memorandum “addressed wrong pleading,” “contained no meaningful analysis,” was “ridiculous.” Martin reported total hours’ work on case, primarily spent producing useless memorandum.
After settlement became final, learned from BLB&G’s comptroller firm had paid Martin $112,500 proceeds Satyam class settlement. BLB&G did disclose payment court its August 1, fee petition. million. The entered amended preliminary settlement ‐ approval orders on March May 12, 2011. re Satyam Comput. Servs., Ltd., Sec. Litig. 1:09 md BSJ [Docs. No. & 319]. final judgment order as Satyam issued September 2011. Id [Doc. 363]. Formerly, local civil rules Southern District New York
required all fee applicants derivative class actions disclose “any fee sharing agreements anyone.” By rule amendment effective July 2011—three weeks before BLB&G submitted fee petition—the automatic disclosure provision repealed Concerned with ethical legal implications arrangement, Bernstein inquired further. He learned Martin had been admitted to bar only five years before Satyam was filed, was married to Deshun T. Martin, special assistant attorney general in AG’s Office.
Bernstein allegedly raised his ethical concerns again in several contentious meetings partners. firm’s leadership—Berger, Salvatore Graziano, Edward Grossmann—dismissed Bernstein’s misgivings. Graziano Berger informed Bernstein there “local pressure on Mississippi AG” use “local firms,” told him “you need drop this,” made veiled threat “blackball” Bernstein if he became “a whistleblower.” December Bernstein reported his concerns U.S.
Attorney’s Office Southern District New York. Soon afterward, became concerned about BLB&G’s conduct another class action, which firm allocated work Mississippi firms lacked relevant experience.
class actions. See S.D.N.Y. Local Civil Rule 23.1 (repealed effective July 2011); S.D.N.Y. Local Civil Rule 23.1.1. According Joint Committee Local Rules note, committee recommended automatic ‐ disclosure rule applied class actions deleted “because it redundant [with] . Fed. R. Civ. P. 23(h).” Federal Rule 23(h), turn, does mandate automatic disclosure all fee sharing arrangements class actions.
Bernstein claims that issue took its toll on his relationship with firm’s leadership. October after realizing that his termination was inevitable, he resigned from firm. Bernstein alleges that after his departure, BLB&G interfered with his relationship with lead plaintiff in one case, BLB&G partners made various threats toward him before attempting “buy [his] silence” by offering him compensation future settlement in an unrelated case on condition that he keep Mississippi ‐ counsel arrangement secret. Bernstein declined.
At two mediation sessions held before Bernstein filed suit, BLB&G expressed belief that Bernstein’s claims were based on facts learned course representation thus could disclosed New York Rules Professional Conduct. Bernstein, contrast, maintained facts underlying his claims were “neither privileged nor confidential” he was free disclose them filings.
Notwithstanding Bernstein’s position he was free disclose facts issue, filed motion prior filing requesting—“out abundance caution”—the entry “an order all materials filed until Court resolves these issues confidentiality.”
Judge Kevin Castel, sitting Part I, granted motion July before suit filed. Noting “it doubtful sealing appropriate,” the nevertheless out of an “abundance caution” ordered “[t]he action may filed under seal shall expire within days service process defendants unless extended by order judge whom case assigned.”
On August Bernstein filed seal against BLB&G five individual BLB&G partners: Berger, Singer, Graziano, Grossmann, Gerald Silk. He alleged, in substance, defendants (1) engaged a kickback scheme violation Racketeer Influenced Corrupt Organizations Act, U.S.C. §§ 1962(c), 1964(c), (2) breached their contract with Bernstein retaliation for reporting ethical breach.
After filing sealed complaint, parties returned negotiating table. As Judge Caproni, whom had been assigned, wrote: “Armed now ticking time bomb provided by Court’s order, able accomplish what he could without assistance filing Court: he negotiated mutually acceptable settlement.” The settlement agreement “includes provision voids settlement if [the] action unsealed otherwise becomes public.”
On September 2014—one day short automatic unsealing provided court’s July order—Bernstein filed notice dismissal pursuant settlement. following day, the parties jointly moved order directing the clerk of court “to close the file without ordering the file unsealed.” parties apparently believed that obtaining stipulated dismissal before the expiration the sealing order would “ensure that the [c]omplaint would never see the light day.”
On January following hearing multiple rounds briefing, the district court issued its opinion order. After determining it had jurisdiction, the district court held the complaint judicial document subject presumption public access both the First Amendment the common law. Next, district court held the complaint does not contain confidential communications information therefore public access would plausibly implicate values “higher” than First Amendment values. Finally, district court held even if First Amendment presumption did apply, common law documents would require be public because “considerable” interest disclosure outweighs “weak” private interests favoring secrecy. accordingly, denied parties’ request continue order directed clerk unseal thirty days issuance order, thirty day period tolled during pendency any appeal.
Defendants timely appealed. has filed a brief. Although he continues contest defendants’ claim that complaint contains “confidential information,” he supports BLB&G’s position that should remain sealed so as risk unwinding settlement.
DISCUSSION sole issue is whether district correctly denied parties’ request continue order. reviewing a court’s order seal or unseal, we examine court’s factual findings for clear error, legal determinations de novo, its ultimate decision seal unseal abuse discretion. See United States v. Doe F.3d (2d Cir. 1995); United States v. Amodeo (2d Cir. 1995) ( Amodeo I ).
I. Pleadings judicial records. first consider whether a is a judicial document subject easily conclude a such document. A “judicial document” “judicial record” filed item “relevant performance function useful judicial process.” Lugosch Pyramid Co. Onondaga (2d 2006) (internal quotation marks omitted). Such documents presumptively public so federal courts “have measure accountability” so may “have confidence administration *12 12 15 374 ‐ justice.” United States v. Amodeo 71 F.3d 1048 (2d Cir. 1995) ( Amodeo II ). determining whether a document is a judicial record, we evaluate the “relevance of the document’s specific contents to the nature of the proceeding” and the degree which “access the [document] would materially assist the public understanding the issues before . . . court, evaluating the fairness integrity court’s proceedings.” Newsday LLC v. Cty. of Nassau F.3d (2d Cir. 2013). [3]
Pleadings plainly meet Newsday test reasons are readily apparent. “A complaint, which initiates judicial proceedings, is cornerstone every case, very architecture lawsuit, is almost always necessary if public understand a court’s decision.” Fed. Trade Comm’n AbbVie Prods. LLC, (11th 2013). Moreover, commencing action thus invoking court’s jurisdiction, parties’ substantive legal rights duties may affected. For example, “a large number lawsuits . . disposed at motion dismiss stage, where determines solely *13 13 15 374 basis complaint whether plaintiff has made sufficient factual allegations state a claim.” Id The filing a triggers other legal consequences as well. E.g. , Kronisch v. United States , F.3d 112, (2d Cir. 1998) (obligation preserve evidence); Mattel, Inc. v. Louis Marx & Co. F.2d (2d Cir. 1965) (when duplicative actions are commenced, first filed normally determines adjudication). For these reasons, “modern trend federal cases” is classify “pleadings civil litigation (other than discovery motions accompanying exhibits)” judicial records. IDT Corp. v. eBay (8th Cir. 2013); accord AbbVie, F.3d 62–63 (collecting cases); United States Martin (3d 1984). fact a suit ultimately settled without a judgment merits does impair “judicial record” status pleadings.
It true settlement precludes determination pleadings’ veracity legal sufficiency. But attorneys others submitting pleadings obligation ensure, when submitting pleadings, “the factual contentions [made] have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity further investigation discovery.” Fed. R. Civ. P. 11(b)(3). any event, fact filing complaint, whatever veracity, *14 14 15 374 significant matter of record. Even settlement context, inspection of pleadings allows “the public [to] discern prevalence of certain types of cases, nature of parties particular kinds of actions, information about settlement rates different areas law, types of materials are likely sealed.” Hartford Courant Co. v. Pellegrino , 380 F.3d 96 (2d Cir. 2004). Thus, pleadings considered judicial records “even when is pending before judgment resolved by settlement.” IDT Corp. , F.3d at (citations omitted); accord Stone Univ. Md. Med. Sys. Corp. , F.2d n.* (4th 1988); Laurie Doré, Secrecy by Consent: The Use Limits Confidentiality Pursuit Settlement N OTRE D AME L. R EV (1999). therefore hold pleadings—even settled cases—are judicial records subject a presumption public access.
II. Presumptive right complaint. A “[f]inding document ‘judicial document’ triggers public access, requires make specific, rigorous findings before document otherwise denying access.” Newsday at n.15. The “presumption access” records secured two independent sources: First Amendment common law. Lugosch 121. analysis respect each somewhat different.
A. The First Amendment presumptive right access. Defendants argue First Amendment does apply here. disagree.
“We have articulated two different approaches determining whether ‘the public and press should receive First Amendment protection their attempts access certain judicial documents.’” Id. (internal quotation marks omitted). first approach considers “experience and logic”: is, “whether documents have historically been open press general whether public access plays significant positive role functioning particular process question.” Id (internal quotation marks omitted). “The second approach considers extent which documents derived are necessary corollary capacity attend relevant proceedings.” Id (alterations internal quotation marks omitted).
A complaint—especially ultimately settled— best evaluated “experience logic” approach, because alternative approach relevant only after proceedings have commenced. Experience logic both support here. Complaints have historically been publicly accessible default, even when they contain arguably sensitive information. Cf. Sealed Plaintiff Sealed Defendant (2d 2008). Defendants acknowledge since adoption Federal Rules of Civil Procedure federal lawsuits have been commenced the filing of the complaint. Fed. R. Civ. P. 3. But they argue that since “many federal courts did require complaints to be filed unless until judicial intervention sought” before there no strong historical tradition public access to complaints. This argument unpersuasive. It ignores history last eight decades Federal Rules. Moreover, fact that pre law may have allowed actions commence without filing a complaint says nothing about whether public at time had access documents that were permitted required filed.
Logical considerations also support public access. Public access complaints allows public understand activity federal courts, enhances system’s accountability legitimacy, informs public matters public concern. Conversely, sealed leaves public unaware claim has been leveled state power has been invoked—and public resources spent—in effort resolve dispute. These considerations indicate other pleadings has “significant positive role,” Lugosch (internal quotation marks omitted), functioning process. ‐
B. The common law presumption of access. The court concluded that addition First Amendment presumption of access, common law presumption of access attached. Defendants contend that common law presumption “lacks weight here” and unsealing constituted abuse discretion.
The courts have long recognized “general right inspect and copy records and documents, including judicial records and documents.” Nixon Warner Commc’ns, Inc. , U.S. (1978) (footnote omitted). This right “is said predate Constitution.” Amodeo I at 145.
The “right inspect copy judicial records absolute,” however, court may exercise its “supervisory power over own records files” deny access “where files might have become vehicle improper purposes.” Nixon U.S. at (internal quotation marks omitted). “Once has determined documents judicial documents therefore common law presumption attaches, it must determine weight presumption.” Lugosch at 119. weight function (1) “the role material issue exercise Article III power” (2) “the resultant value such information those monitoring federal courts,” balanced against “competing considerations” such *18 18 15 374 ‐ as “the privacy interests those resisting disclosure.” Lugosch , 435 F.3d at 20 (internal quotation marks omitted); see also Amodeo II , F.3d at 51. take each factor in turn.
Where a document’s “role in performance Article III duties” “negligible . . . , weight presumption is low.” Amodeo II, F.3d at 1050. Conversely, where documents “directly affect adjudication,” id . at used determine litigants’ substantive legal rights, presumption at its zenith, Lugosch F.3d at thus can overcome only “extraordinary circumstances,” Amodeo II at (internal quotation marks omitted). locus inquiry is, essence, whether document “is presented invoke its powers affect decisions.” Id 1050.
Applying standard, we have determined a report submitted connection summary judgment motion entitled strong access. Joy North (2d 1982). Since such document “is basis adjudication, only most compelling reasons can justify” sealing. Id By contrast, documents “such those passed between parties discovery” often play “no role performance ‐ ‐ Article III functions” and so the presumption of these records is low. Amodeo II F.3d at 1050.
Under the two factor Lugosch approach, we easily determine the weight of the presumption here is strong. Pleadings, such as the complaint here, are highly relevant the exercise of Article III judicial power. Of all the records may come before judge, complaint among the most likely affect judicial proceedings. It the invokes the powers of the court, states the causes of action, and prays relief. We have already discussed the second basis supporting weight of presumption: utility of those who monitor work of federal courts. now move crux weight presumption analysis: balancing value public disclosure “countervailing factors” such “(i) danger impairing law enforcement efficiency (ii) privacy interests those resisting disclosure.” Id. ; see also Amodeo I at 146–47. striking balance, we agree court’s careful opinion value public disclosure substantial privacy interests stake are minimal.
As the district noted, the alleges defendants, as counsel a state employees’ pension fund a lead plaintiff in a major securities class action, “regularly engage in kickback scheme with Mississippi Attorney General’s Office, public entity whose constituents might otherwise be in dark about arrangement.” Whether true or not, allegation would naturally be legitimate interest to (especially those who contribute receive payments MPERS) federal courts in future (e.g., those considering whether name BLB&G as lead class counsel or find MPERS an adequate class representative future class actions). Moreover, also did not come “within [the] court’s purview solely [e]nsure [its] irrelevance.” Lugosch at (internal quotation marks omitted). Although speedy settlement claim meant did not adjudicate merits case, courts routinely engage adjudicatory duties even connection complaints are dismissed settled. circumstances here presented, interests favoring
secrecy, meanwhile, weak. This case which disclosure would reveal details ongoing investigation, pose risk witnesses, endanger national security, reveal trade secrets. See Amodeo I 147. Moreover, we will show, does implicate duty protect either privileged attorney material confidential information. Once these rationales fall away, only insubstantial arguments remain.
On appeal, defendants spend much their brief arguing the unreliable and contesting the truth the allegations in complaint. They argue unsealing “assumes truth” allegations within it. But unsealing does no such thing. As district court noted:
Complaints can—and frequently do—
contain allegations range exaggerated wholly fabricated. That nature proceedings—not everything alleged one party can should taken ground truth. Still, pleadings can do properly frame proceeding provide outer boundaries claims advanced . redress sought.
(Internal citation omitted). Following defendants’ logic conclusion, moreover, would create untenable result—the all complaints actions in which plaintiff does prevail, all indictments criminal prosecution which defendant acquitted. sum, district engaged thoughtful extended analysis competing interests stake. concluded (1) weight accorded to was high because (a) document was highly relevant to exercise of Article III power and (b) interest in disclosure substantial, while private interests in secrecy weak; (2) BLB&G did not come forth with sufficient rationale to rebut this strong of access. These conclusions were amply supported, there no basis disturb them.
III. Sealing justified order
protect “confidential client information.”
On appeal, BLB&G renews its argument need protect “confidential information” justifies requires continued complaint. reject claim.
After Bernstein left BLB&G, George W. Neville—a special assistant attorney general civil litigation division AG’s Office—exchanged several letters Bernstein’s attorney. these letters, Neville ordered keep existence alleged kickback scheme private, writing: “As counsel State Mississippi . on behalf State Mississippi its agency MPERS, I am directing [Bernstein] disclose any confidential information he learned counsel Mississippi agency MPERS.”
Relying part these letters, defendants argued all virtually all facts alleged 374 ‐ “confidential” under New York Rules Professional Conduct thus permanent is required. district court rejected this claim. On appeal, defendants renew this confidentiality argument. We reach same conclusion as did district court.
As a threshold matter, we note that defendants rely large part on conclusions their legal ethics expert made a declaration filed court. do not consider arguments based on declaration because our longstanding rule that expert testimony on issues domestic law is not to be considered. See Amnesty Int’l USA v. Clapper n.12 (2d 2011) (holding court was “not compelled accept” a legal ethics expert’s declaration regarding whether an ethical duty had been triggered, because question for decide), rev’d other grounds S. Ct. (2013); see also Hygh Jacobs *24 24 15 ‐ 374 ‐ 359, 363 (2d Cir. 1992); Marx & Co. v. Diners’ Club, Inc., 550 F.2d (2d Cir. 1977).
We now turn merits. To overcome First Amendment right access, proponent must “demonstrat[e] that closure is essential preserve higher values is narrowly tailored serve that interest.” re N.Y. Times Co. , F.2d (2d Cir. 1987) (internal quotation marks omitted). “Broad general findings” “conclusory assertion[s]” are insufficient justify deprivation record, id (internal quotation marks omitted); “specific, record findings” are required. United States Erie Cnty. (2d 2014) (internal quotation marks omitted).
Here, defendants argue that “protection confidential client communication” is higher value. This assertion raises question whether any confidential client information actually implicated case. Putting aside moment, however, assertion itself questionable. have implied—but never expressly held— protection attorney privilege “higher value” First Amendment may rebut access. E.g. id.; Lugosch 125. Defendants go further, ‐ ‐ however, arguing protection “confidential client information” “higher value” superseding First Amendment right should have “equal status” to attorney client privilege.
The attorney client privilege duty to preserve client confidences secrets “not co extensive,” however. Doe v. A Corp. F. Supp. (S.D.N.Y. 1971), adopted sub nom. Hall v. A. Corp. (2d Cir. 1972) (per curiam). broader “ethical duty preserve client’s confidences . . .[,] unlike evidentiary privilege, exists without regard nature or source information fact others share knowledge.” Brennan’s, Inc. Brennan’s Restaurants, Inc., (5th 1979) (internal quotation marks omitted). share court’s skepticism BLB&G’s claim “this broader ethical duty should be treated identically . narrower more venerable attorney client privilege.” any event, even if we were accept defendants’ “higher
value” argument, here does contain “confidential” client information.
First, does include information “likely be embarrassing detrimental if disclosed.” N.Y. R. Prof’l Conduct 1.6. Of course, information may seriously embarrassing counsel (BLB&G AG’s Office), but not to MPERS. Indeed, it is counterintuitive to suggest that MPERS was somehow complicit an alleged kickback scheme that caused it to pay legal fees for unnecessary work. If anything, MPERS would appear to benefit disclosure; worst that can be said about it is it was unlucky choice counsel. In sum, BLB&G’s claim about possible harm MPERS mere “naked conclusory statement publication . . will injure” it. Joy at 894. Such statement “falls woefully short kind showing which raises even arguable issue as whether it may kept seal.” Id
Moreover, fact representation generally neither privileged nor confidential. See re Grand Jury Subpoenas (9th 1986). complaint’s allegation BLB&G routinely assigns work unqualified local counsel AG’s Office’s direction relates business practice, “client confidence.”
Finally, as noted, “[t]he request keep alleged kickback scheme confidential was made member Attorney General’s Office whose conduct discussed Complaint. Insofar request (and perhaps even underlying scheme) adverse interests MPERS, purpose applying ethical rule, Court does presume attorney’s request confidentiality signifies client’s desire” 1 (citation omitted). 2 CONCLUSION
3 For reasons stated above, we AFFIRM judgment 4 court. 5
[*] Clerk Court respectfully directed amend caption conform above.
[1] On March lead plaintiffs reached agreement principle settle Satyam’s codefendants—various PricewaterhouseCoopers entities were Satyam’s auditors—for $25.5
[3] While “the mere filing paper document insufficient render paper judicial document subject right access,” Lugosch at (internal quotation marks omitted), document only if judge actually relied upon it, but also if “the judge should have considered relied upon [it], but did not.” Id (internal quotation marks omitted). Such documents “are just as deserving disclosure those actually entered into judge ʹ s decision.” Id. (internal quotation marks omitted).
[4] Cf. United States Glens Falls Newspapers, Inc. (2d 1998) (settlement negotiations draft agreements “do carry access” because “[t]he judge cannot act upon these discussions documents until they final, judge may privy all them”).
[5] Rule 1.6 provides: “A lawyer shall knowingly reveal confidential information, . . or use such information disadvantage client or advantage lawyer or a third person” unless exception applies. N.Y. R. Prof’l Conduct 1.6(a)(3). One such exception “when permitted or required these Rules or comply other law or order.” Id. at 1.6(b)(6). “Confidential information” “information gained during or relating representation client, whatever source, (a) protected attorney client privilege, (b) likely be embarrassing or detrimental client if disclosed, or (c) information has requested kept confidential.” Id 1.6. Rule 1.9(c) provides lawyer shall “use” “reveal” former client’s confidential information, except Rules “permit require.”
[6] To extent expert interpretations ethical rules are useful, they better presented amicus brief parties’ citations treatises, rather than declaration affidavit.