Mitchell Epner: ⚖️ I do not teach at Stanford Law School, but I do not understand how the clinical professor who "directed" SBF's defense now feels comfortable publicly denigrating his client, even before sentencing. There was no ethical obligation to represent SBF, but once you do, there's a duty of loyalty.

⚖️ I do not teach at Stanford Law School, but I do not understand how the clinical professor who "directed" SBF's defense now feels comfortable publicly denigrating his client, even before sentencing. There was no ethical obligation to represent SBF, but once you do, there's a duty of loyalty.

Sam Bankman-Fried’s Lawyer Says He Was the Worst Witness Everwww.thedailybeast.com Stanford professor David Mills was close with the FTX founder’s parents. The relationship may be over, he says.

I believe I speak for many of the readers here when I say that I, too, do not teach at Stanford Law School

For him to *give an interview about the case and his representation* and to say SBF “may be at the very top of the list as the worst person I’ve ever seen do a cross examination,” before sentencing is the opposite of zealous representation. He won’t get sanctioned, but that’s some bush league BS.

Pictured: man who "doesn't have time or regard for self promotion" posing for magazine photographer in his self-promoting hat. Taken shortly after violating professional loyalty obligations and loyalty-to-longtime-friend obligations and wondering why that friendship may be ending. archive.is/zeD7O

Shades of Frito. youtu.be/kn200lvmTZc?...

Idiocracy Courtroom Sceneyoutu.be The court scene from the film Idiocracy.

But no violations of the Model Rules, from what I read. He didn't reveal confidential information (the cross examination is publicly well known) and he's not representing someone as an opposing party to SBF. Lawyers are allowed to express dislike or disdain for former clients.

Prof. Stevenson, I disagree. The engagement is not over until (at least) the sentencing. The Court is actively considering (among other things) whether to impose a two-level penalty on SBF for his trial testimony (as obstruction). These quotes are directly contrary to the client's interest.

W/r/t Model Rules, I'd love to hear SBF's professor/attorney address Rule 1.9 (assuming SBF is a "former client"), "A lawyer who has formerly represented a client in a matter . . . shall not thereafter (i) use information relating to the representation to the disadvantage of the former client . . ."

Rule 1.9: Duties to Former Clientswww.americanbar.org Client-Lawyer Relationship | (a) 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 pe...

Well, Rule 1.9 doesn't cover information "when the information has become generally known." The whole world knows SBF was a disaster under cross, so much so that it would violate Rule 3.1 for the lawyer to try to deny that in court, I think.

RPC 1.9 has two different prohibitions. You can’t USE information discovered in the course representing a former client unless publicly known. You can’t REVEAL information learned in the course of representing a former client unless allowed under RPC 1.6. Which means client consent, /1

For the benefit of the client, or the other exceptions in 1.6 such as to prevent physical injury to another, etc. Defense counsel here is revealing information learned in the course of representation - that SBF is a dickbag. That’s not for the benefit of a client, presumably not with SBF’s /2

California’s Rule 1.9 has a comment about this, and even if the information was more generally known, it’s a terrible idea to talk about cross examination prep and scripts - arguably it’s not know that he went off script.

Those comments also indicate that “Comment [1] clarifies that there is a residual duty of loyalty owed former clients so that a lawyer is prohibited from attacking the very legal services that the lawyer has provided the former client[.]”

I agree with the last part. The ABA just put out an ethics opinion about coaching witnesses. I'm less worried about a vague duty of loyalty here than how much he may have coached his witness, tbh.

On the other hand, California's version of Rule 1.9 is worded differently (if I remember right) so perhaps that could affect whether the lawyer here could be subject to discipline in that state.

Even if there is a technical defense under CA law (and I do not practice in CA), this was a HORRIBLE idea. The professor-attorney went public with criticism of his (former?) client at a time when it could harm the client. The only upside was to help professor repair his own reputation.

I agree that it is imprudent to talk to reporters about clients, no matter what. Not as clear that this isn't as likely to help as hurt SBF at sentencing. They may have decided to stipulate that he was a train wreck on the stand to make his specific statements seem less deliberate or malicious.

And regardless, I'd argue it implicates the duty of loyalty a lawyer owes to past and present clients.

I'm not sure that's correct

I don’t think that’s right; he revealed that SBF went “off script” during cross-examination and did not follow the legal strategy created for him. Even if he didn’t, I think duty of loyalty may be implicated if you’re weighing in on specific subject matter of representation.

You can certainly publicly express disdain for former clients as a general matter. You’d be unwise to do so and potentially violate ethical rules if you express disdain for their conduct in a particular matter in which you provided representation when doing so could harm them in that/related matter.

I'm not seeing how his statement could harm SBF. There's no way to dispute he was a famously bad witness under cross.

I'm not sure how to read "That’s not how Sam remembers things, to put it kindly" other than "Sam wasn't willing to tell the truth". archive.is/zeD7O

Even without that quote, revealing that Sam went against advice in testifying seems relevant to the testimony-was-obstructive sentencing element that @mitchellepner.bsky.social mentioned.

Ha, I first read it as "Sam doesn't agree he was trying to save FTX."

I think he would be allowed to break that confidence only insofar as he was defending himself from a malpractice claim.

Otherwise it defines the legal advice and that it was asked for.

If we're defining "duty of loyalty" in terms of what could result in a disciplinary action or malpractice liability, I'm not sure that's right.

Yeah, I'm not certain that this *would* result in disciplinary action, and malpractice liability would be a big stretch. It might result in an investigation, though. If you were ethics counsel to the professor here I suspect your advice would have been "just don't comment on this."

As an ethics counsel I think I would suddenly *not* be his ethics counsel if he wanted to go ahead with this interview.

But you certainly wouldn't talk about why

Right. It's too easy to slip and say something improper, or to have comments taken out of context, or to trigger a new set of invasive questions.

Like the California Bar actually enforces such things.

their focus and priority right now is probably still on making sure lawyers don't steal from trust accounts. the whole state bar is still reeling from the massive failures involved in the Girardi scandal.

Duty of loyalty is broader than malpractice and disciplinary concerns.

Do the Model Rules have a "conduct unbecoming" clause? Because badmouthing your client before sentencing certainly qualifies.

Nope

They should.

Sounds like he may be using information to disadvantage a former client

Even out of pure self-interest, it seems like a poor decision. Doesn’t this result in a major loss of professional respect among his colleagues at the defense bar?

He’ll earn a chuckle from defense attorneys who think it’s fun to publicly make fun of their clients (of which there are too many), and yes, he will lose respect among defense attorneys who know how to act professionally and with grace.

Probably because the professor is more concerned with his current reputation and next consultation paycheck than the welfare of his client.

Not trying to be argumentative, genuinely curious where the ethical line is here. I’ve seen this kind of thing before, e.g. Martin Shkreli’s lawyer said he was very hard to represent (this was long after sentencing though). When (if ever) is that okay?

Loyalty only goes as far as the money does

Trying to salvage his own reputation?

It’s just another scintilla of evidence toward proving that law professors aren’t “real lawyers.”

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