Can a lawyer publish a law-journal article arguing a position on an issue that is pending before a court in the lawyer's own client's related case?

Plain-English summary

A law journal asked whether it would be proper to publish an article by an attorney ("A") on an issue pending before the United States Supreme Court. A represented a client ("C") whose claim against a failed savings and loan had been dismissed based on the Fifth Circuit's Hudspeth decision, which the Ninth Circuit had rejected in Morrison-Knudsen; the Supreme Court had granted review to resolve the split. A submitted an article advocating a legislative compromise between the two approaches, and the article disclosed A's litigation on C's behalf. The journal asked whether publication would violate A's ethical obligations.

The committee identified that the article did not take a position adverse to C, so A did not fall within the scope of former Rules 4-101, 5-101, and 5-102, which prohibit holding or representing conflicting interests. It identified that lawyers have a right to publish articles of interest to the public, relying on ABA Informal Opinion 1090 (no ethical or other valid reason why an attorney may not write articles on legal subjects). The committee saw no impropriety in publication and did not consider it an improper attempt to influence the Supreme Court in a case that might affect C's rights.

The committee identified that the journal may, as an editorial decision, choose to disclose A's interest in the related litigation, but that no ethics rule requires such disclosure. It compared its Opinion 343, where a lawyer was permitted to publish a law-review article on an issue in a case in which he was counsel of record without disclosing his involvement. The committee observed that judges are accustomed to materials and articles on issues pending before them, including from writers with interested clients, and are assumed able to disregard information from interested persons, particularly where the interest is disclosed.

Currency note

This opinion predates California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct, and also predates the May 27, 1989 rule renumbering; it cites the former Rules 4-101, 5-101, and 5-102 then in effect, which correspond to current Rules 1.6 and 1.7. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

View original opinion

Common questions

Q: Can a lawyer write an article arguing a legal position that affects the lawyer's own pending case?

A: Per the opinion, yes, where the article does not take a position adverse to the client and does not prejudice the client. The committee saw no impropriety and did not treat it as an improper attempt to influence the court.

Q: Must the article disclose that the author represents a client with an interest in the outcome?

A: Per the opinion, no ethics rule requires disclosure, though the publishing journal may choose to disclose it as an editorial matter. The committee compared its Opinion 343 to the same effect.

Background and rules framework

The opinion interprets the former California Rules 4-101, 5-101, and 5-102 (prohibiting representation of conflicting interests), which correspond to ABA Model Rules 1.6 and 1.7, and references former Rule 7-108(b). It relies on ABA Informal Opinion 1090 and the committee's own Opinion 343.

Citations and references

Rules of Professional Conduct (former):

• California Rules 4-101, 5-101, 5-102 (conflicting interests)
• California Rule 7-108(b)

Cases:

• Morrison-Knudsen Co. v. CHG International, Inc., 811 F.2d 1209 (9th Cir. 1987)
• North Mississippi Savings & Loan Association v. Hudspeth, 756 F.2d 1096 (5th Cir. 1985), cert. denied, 474 U.S. 1054 (1986)

Other opinions cited:

• LACBA Formal Opinion 343
• ABA Informal Opinion 1090

See also

• LACBA Ethics Op. 514: Listserv Communications, Ex Parte Contact, and Confidentiality
• LACBA Ethics Op. 525: Responding to a Former Client's Adverse Online Comments

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2011000