Over the past four decades of my life as a lawyer and law professor, I have been struck by how many lawyers dream of doing something different, either as an alternative to law practice or as a second career. Among the alternative careers that seem to be most often mentioned, three predominate: being a chef, owning a country inn, or being a professional writer. I imagine that there could be ethical issues for lawyer-chefs and innkeepers, but, to be honest, these professions are unlikely to implicate any of the Rules of Professional Conduct. The lawyer who dreams of being a writer, however, particularly if she wants to begin her writing career while still practicing law, does have to consider how novel writing may involve ethical risks. As attractive as the idea of being the next John Grisham may be, it is necessary to think about several of the Rules of Professional Conduct and be sure not to violate them as we pursue our dreams of literary fame.
One of the first things that creative writing teachers tell their students is that they should write about what they know. This is undoubtedly good advice for a novice author, but it is also dangerous advice for novice lawyer-authors. The problem is: what most lawyers know best is their clients and the matters upon which they work for their clients, but using the information they have gained from client representation raises the specter of violating Rule 1.6 on client confidentiality as well as Rules 1.7 and 1.8(d) on lawyer-client conflicts of interest.
A lawyer who decides to write about a client or a case in which she has been involved must be acutely aware of the limitations placed upon her writing by the lawyer-client confidentiality rules. KRPC Rule 1.6(a) states:
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(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
It is quite clear that none of the enumerated exceptions in KRPC 1.6(b) would authorize a lawyer’s use of client confidential information in her professional writing. Further, it seems quite unlikely that a convincing argument could be made that the use of such protected information for professional writing would be “impliedly authorized to carry out the representation” of a client. Thus, the only prudent path for a lawyer-author to follow would be for her to obtain the client’s “consent after consultation.” This consent process, I would suggest, should involve a detailed description of the proposed writing, where it will be published, and whether it will be fiction or non-fiction at the very least.
Some lawyer-authors may believe that using client information in fiction, especially if “names are changed” will obviate the necessity to obtain client consent. Such an assumption could be very dangerous for the lawyer-author. Often, even purported fictional characters are easily identifiable. In such cases a client may well object to the use of their information, and a court or disciplinary tribunal might well agree with the aggrieved client that the lawyer-author has violated Rule 1.6.
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(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer’s fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraphs (a) and (i).
For the would-be lawyer-author, the key sentence is “measures suitable in the representation of a client may detract from the publication value of an account of the representation. To understand the nature of this potential conflict, imagine a defense attorney who is retained to defend a celebrity client on a capital murder charge. The attorney wants to negotiate literary and media rights for himself before the trial begins. The problem with this situation is that the attorney may believe that a guilty verdict would be more sensational than either a verdict of innocence or a verdict without capital punishment. The more sensational verdict might well sell more books. Here is the conflict: the lawyer-author might be tempted to do less to avoid a capital verdict to increase future literary and media profits. Such a conflict is unacceptable. Indeed, the lawyer cannot negotiate these rights even if his client is willing to give informed consent. This conflict is so potentially dangerous that the client cannot waive it.
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Rule 1.8(d) is limited to a lawyer negotiating literary and media rights before the client representation ends. It does not prevent a lawyer from negotiating such rights after the representation is concluded, although lawyers in such a position must still be concerned about violating Rule 1.6 on confidentiality during the negotiations.
Another issue that may arise in some cases is the use of a “pen name.” Some lawyers may wish to publish not under their own name, but under a pen name.
Is the use of a pen name ethically problematic? In 2012 the Ethics Committee of the Arizona State Bar issued a formal opinion on precisely this subject. The question presented in Formal Opinion 12-02 was whether a lawyer’s use of a pen name to write a murder mystery would violate Arizona Rule ER-7.1(a) which states:
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A lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
Based on its reading of EC-7.1(a), the Arizona Bar Ethics Committee advised that the use of a pen name by a lawyer-author would not violate the Rule:
A lawyer who engages in an activity that does not constitute the practice of law may, for the purpose of engaging in that activity, adopt any name by which the lawyer chooses to be known, so long as the lawyer has no fraudulent or improper motive for doing so. Thus, a lawyer who changes his or her name upon marriage may continue to practice law under the former name and use the married name for personal or social purposes unrelated to the practice of law. See South Carolina Op. 07-05 (July 19, 2007). A lawyer who writes books or articles, or who otherwise engages in an activity that does not constitute the practice of law may, for purposes of engaging in that activity, adopt a pen name or pseudonym, without violating the Rules of Professional Conduct.
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A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false if it contains a material misrepresentation of fact or law.
Given that KRPC 7.1 is the same as EC-7.1 and that MRPC 4-7.1 is substantially similar to EC-7.1, a Kansas or Missouri lawyer contemplating using a pen name as an author should feel she has a strong argument that such use would not violate either the Kansas or Missouri ethics rules.
In conclusion, a lawyer who decides that she wants to become a writer should not be deterred from that additional career path, but, at the same time, should recognize the Rules of Professional Conduct will limit how she proceeds in that path.
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[1] While there are some differences between KRPC 1.6 and MRPC 4-1.6, these differences do not affect this analysis of a lawyer-author’s use of client confidential information.
Joseph, Hollander & Craft is a premier law firm representing criminal, civil and family law clients throughout Kansas and Missouri. When your business, your freedom, your property, or your career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 20+ attorneys has you covered. We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for victims of trucking collisions and those who have suffered traumatic brain injuries due to the negligence of others. We fight allegations of professional misconduct against doctors, nurses, judges, attorneys, accountants, real estate agents and others. And we represent healthcare professionals and hospitals in civil litigation.I recently read “Wyoming” (Cat's Paw Publishing in Spring House) a just-released novel by first-time author Richard Tuttle, who has lived in Chestnut Hill for five years (and Mt. Airy and Flourtown before that), and it blew me away.
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