Yesterday, I reported that serious accusations of wrongdoing had been lodged against the Coca-Cola Company, namely that it had pressured King & Spalding to dump another client, the House of Representatives. As ethics gurus have explained to me, it’s a clean-cut violation of professional ethics for a law firm to allow one client to dictate representation (or non-representation) of another client absent a conflict of interest. Moreover, if in-house lawyers of one client are doing the communicating, they, too, have committed a serious breach of their professional obligations. (And eager tort lawyers could probably make out a claim of tortious interference with business relations if one client breaks up the attorney-client relationship of another party.)
So I contacted Coke yesterday. Last night a cheery spokesman phoned to say that Coke would not be commenting on this matter. What?!
This isn’t a criminal court in which we are prohibited from inferring guilt from a refusal to testify. This is the court of public opinion. If Coke had zero involvement in this unseemly episode, it would be simple enough to issue a one-line denial. The company didn’t do that. I think it entirely reasonable (unless Coke has lost any PR smarts it has) to assume something went on here.
And guess what? The House of Representatives, not to mention state bar organizations, is fully capable of demanding answers. Ethics expert Richard Painter yesterday explained there is no attorney-client protection for any message from one client to its lawyers about another client:
First, this was a communication that occurred during the prior representation and concerns the subject matter of the prior representation, so K&S has a duty to disclose it to the client. See ABA Model Rule 1.4.
Second, this is not a privileged communication by Coke because it was not made for the purpose of seeking legal advice — or assessing any possible conflict with K&S’s representation of Coke — but to interfere with the representation of another client.
Lawyers are supposed to police themselves. But in this case the House of Representatives was the wronged client. It has every reason to explore how and why its lawyers abandoned it. And you know what? The House has the power of subpoena