Narrator: SJC 13145,
in the matter of Michael James Kelly.
-: And Attorney Harbeson.
-: Thank you.
Pamela Harbeson, on behalf of Bar Counsel,
may it please the court.
This case involves an appeal by Bar Counsel
regarding the board of bar overseers erroneous decision
that when prosecuting a case
involving a breach of attorney-client confidentiality,
Bar Counsel has the burden of proving
not only that certain information was confidential
under the rule 1.6 of the rules of professional conduct,
but also that the information was "not generally known"
within the applicable local community or trade
at the time the disclosure was made.
During my presentation, I would like to make for a point-
-: If I could just ask you to tell us what in your estimation
is the difference between confidential information,
which you agree you have the burden of proof on
and information that is not generally well known?
-: Well, I think your honor makes an important distinction
just in your question which is,
generally known versus generally well-known,
and that is a standard that I believe that the ABA
has proposed to be widespread notoriety
being the proper standard for generally known.
But I believe the difference is as you read the rule
and the Comment 3A to the consent to the rule,
the board has previously found that Comment 3A defines
confidential information as information that is gained
during or relating to the representation of a client,
whatever its source, that is protected
by the attorney-client privilege
is likely to be embarrassing or detrimental
to the client if disclosed, or information that the lawyer
has agreed to keep confidential.
I believe that those three things in and of themselves
are what constitute confidential information.
Whether or not information has become or is generally known
within the applicable local community or trade
is an exception to that rule.
And that's what the board stated in the matter of Smith
when it said that the Comment 3A first defines
confidential information as those three things
that I've just mentioned.
And then further explains that generally-known information
is not ordinarily included
in the confidential information definition,
implying of course, that sometimes it is
and sometimes it isn't.
This is not part of the definition as the board now argues,
but rather a further explanation of certain contexts
in which otherwise confidential information
may no longer be confidential under the rules.
During my presentation I would like to make four points.
The first is that the initial burden of proof
of course lies with the Bar Counsel
to prove that information is confidential
within the definition of rule 1.6.
And in this case, Bar Counsel satisfied that burden.
Two, whether information is generally known
within the local community or trade must be treated
as an affirmative defense that the respondent must prove,
and here the respondent failed to do so.
Three, Bar Counsel's interpretation and application
of the rule protects clients and the reading and standard
proposed by the board is untenable and does not offer
the same level of protection
that Bar Counsel's reading does.
-: Also, can I interrupt you?
I know you're going through your list here.
-: Of course.
-: So I understand what you're saying,
but if we could just look into the facts in this case,
and I think that something that Bar Counsel says
resonates with me about this notion that to the extent
that the attorney knows that what's been disclosed to him
is confidential within the rule, but leaving aside,
whether it's attorney-client privileged or what have you,
with something disclosed to the attorney in confidence
while they were within their relationship.
And in this case, it's no dispute
that this stuff was confidential.
Bar Counsel says, though,
before you're going to disclose that,
you as the attorney that has that ethical obligation,
you've got to satisfy yourself that this meets
within the exception before you do what you did.
And in this case, that's particularly important
because it was a gratuitous filing
that had nothing to do with this lawyer whatsoever,
that he just seemed to me from the record,
just got notice of it through pacer
or whatever electronic filing system,
because at some point his notice of appearance was in there.
And he takes it upon himself a couple of years later
to file this thing.
Why is that unreasonable?
And to use your words, untenable,
for him to have to affirmatively lay out in the defense
why that meets the exception to the rule?
He's the one that decides to do it.
He sat there in his office and said,
"I'm gonna write this thing and I'm going to file."
Why is that untenable then to say you're raising this?
You've already done it before there's been
any disciplinary process whatsoever.
Why shouldn't that burden be on the lawyer
to show that he's within the exception
as an affirmative defense?
I don't understand why you say that that's untenable.
-: No, I believe that you've actually stated perfectly
Bar Counsel's formulation of the rule.
It is on the respondent, on the attorney, to prove,
to take on the burden of showing that the reason
that he disclosed this information
which was otherwise confidential,
was in fact within some exception of the rule,
that's exactly what Bar Counsel is advocating for.
What I am stating as untenable is the fourth test
that states on page 38 of its brief,
that Bar Counsel must show that information is not available
through generally available sources.
I believe that that is a completely untenable standard
because as we all know, Google and other search platforms
are everywhere.
And if you dig deep enough,
you can always find something out.
-: Ms. Harberson, I know you haven't gotten to point four,
and I'm anxious for you to get to point four,
so I'll be brief.
Whoever has the burden of proof will have to sort of get at
who's generally known.
And you just point out all these platforms
we have right there.
But if a lawyer can just hit Google
or pick up the newspaper and gather this information,
that's different than somebody who has inside information,
and can in a very sophisticated way through a search engine,
put something into YouTube and come up with something
that's really inappropriate to disclose about a client.
So whoever we end up having, have the burden of proof.
We still have to be able to get our arms around
what's generally known.
And that last statement that you made is,
with all these platforms, anyone can figure it out.
I'm not so sure that's true.
And that's the standard.
-: So I believe that actually goes directly to point four,
which is, what is the standard of what is generally known?
And Bar Counsel is urging this court to adopt
the ABA standard that something has to have achieved
widespread notoriety in order to be generally known.
So in this particular case there is no evidence
before the hearing committee or the board whatsoever
with how this respondent obtained this information
regarding his client.
He might have gotten it from Google,
he might've gotten it from his friend
who works at the police department, who knows?
Because he did not present any evidence,
because the burden was on him to show the hearing committee
how he obtained the information.
Now, with respect to the Google question,
it can't possibly be that someone
with a very distinctive name, like let's say,
Joe Cart Sonaya would have somehow less protection
than someone with a very common name like Robert Brennan.
If you Google Robert Brennan, which is the client
in this case, you will find
many, many, many Robert Brennans,
most of whom are Catholic bishops or stock penny brokers,
and have nothing whatsoever to do
with this particular client.
However, if you Google Joe Cart Sonaya,
you're gonna come up pretty much with one guy.
So there cannot be a standard that says if it's easily found
on Google then that's that standard.
If that makes it okay to disclose whatever you want
that you find on the internet about that person,
it has to be something more analytical
and more professional.
There's an expectation of professionalism.
-: But then we can't retain generally known,
generally known doesn't work with that argument.
I understand your argument, it's a good one,
but we'd have to get rid of generally know.
If you can sit there in two seconds and Google something,
arguably it's generally known.
-: Well, I think it does depend on the, for example,
when you Google something,
you can get pages and pages and pages of hits.
So if you get something, if I Google
stimulus payment Joe Carson I have, I'm gonna get
number one hit that he received a $1,400 stimulus check.
That's not confidential information.
It may be embarrassing to the client, but in this case,
if the attorney for Joe Carson disclosed that,
he could successfully prove by showing his Google search
that the information had widespread notoriety
because it appeared on many different media platforms
and was easily accessible.
If I Google Joe Smith of Boston,
I'm gonna get pages and pages and pages
of returns, of results.
And so it is up to the attorney in our formulation
to show that the information was not buried
somewhere deep in the internet
and therefore was generally known.
And I think that generally known, if we equate that
to widespread notoriety as the ABA does, then it does work.
That I think that it is a workable definition,
and that is exactly what the ABA has put forth
in its formal opinion 479.
I would like also point out that I.
So let me go back to my argument
that whether generally known within the local community
or trade must be treated as an affirmative defense,
because I believe there are two main issues
before this court.
The first is who has the burden,
and the second is what is the standard.
So the first being who has the burden.
I believe that this court has previously
in very similar cases to this,
had "no problem" shifting the burden to the respondent
to explain and produce the information
that may exonerate him or her with respect to what otherwise
appears to be a violation,
and that is from the Murray case.
And in that case it had to do with an attorney
who received cash.
But here I believe the same analysis can be applied
to this respondent, that he is the one
who should've made this analysis at the time
that he obtained the information,
what was his Google search?
What terms did he have to put in?
How many pages did he have to go to?
What was the information he had to put into Google
in order to find these?
Because if I Google it, I can't find it.
So there has to be some proof by the respondent
that the information falls within the exception.
And that's how the court viewed the situation with cash
in the Murray case and also in connection
with an attorney who impugned the integrity of a judge
in the matter of Wilson.
And in that case the court said that
the respondent in that case misallocated the burden of proof
and denying that his conduct violated the rule 8.2.
It is the attorney who must have a reasonable factual basis
for his or her allegations of judicial bias
before the judge.
-: It's not for inconsistency here with burdens of proof
and burdens of production, but-
-: I'm sorry.
-: We don't have perfect consistency in the case law
as you both pointed out well.
But when we usually look at a cause of action, for instance,
and we look at the party with the burden of proof,
we have confidentiality, we say,
"Okay, that party has to prove that element."
And that's just the normal course of things,
it seems a little bit different
than the normal course of things.
-: I don't think it is all that different
if you view the comment and the definition of the rule
to be the confidential information consists
of these three different things,
and that is what the burden of proof falls
to Bar Counsel to prove.
And then whether or not there is an exception to that
such as generally known, was in defense
of the lawyer's integrity or reputation
or some other cause of action that was asserted
against the lawyer, those are those kinds of exceptions
that then the burden shifts to the respondent to prove.
And then with respect, again, I see my time is running out,
I would just like to reiterate that I would urge this court
to adopt the widespread notoriety standard that is set forth
in the ABA opinion 479
as what generally known means
within the context of our technological age.
-: The other questions?
Great, Attorney Berman.
-: Thank you, madam chief justice.
And may it please the court, Joe Berman for the board.
For three reasons, the board maintains that the burden
should rest with Bar counsel to prove
by preponderance of the evidence
that information relating to the representation of a client
is not generally known and therefore confidential.
Those three reasons are the language and structure
of the relevant rules.
The second reason is the case law of this court
regarding the burden of proof and affirmative defenses,
and the third reason is that of public policy.
Addressing the first reason, there's no disagreement
in this case, I believe, that Bar Counsel,
like a prosecutor or a civil plaintiff,
bears the burden of proving each element of his case.
And the burden of course on Bar Counsel is proving
each element by a preponderance of the evidence.
As it pertains to rules 1.6 and 1.9,
one of the elements under our rules is proving
that information was "confidential".
As we discuss in our brief,
there's obviously a significant difference
between the Massachusetts rules of professional conduct
and those of the ABA model rules,
which do not use the word confidential.
It's right there in the text, the rules 1.6 and 1.9,
that key word, but that word is not self-evident.
Thus, the comments explained that there are three types
of information that are confidential
as Bar Counsel has pointed out and acknowledged.
That information that is protected
by the attorney-client privilege,
information that may be detrimental or embarrassing
to the client, or information that the lawyer agrees
to keep confidential.
Bar Counsel does not appear to contest
that they would have the burden of proving
that the information falls into one of those categories,
which again are listed in the same comment, Comment 3A,
as the generally-known explanation.
The comments immediately thereafter describe situations
where information is not confidential, such as this one,
where the question is whether the fact
the information was generally known.
The question for the court
is whether the fortuitous placement of the explanation
in a comment to the rule converts the definition
from an element of the case in-chief
into an affirmative defense.
The answer to that question, the board maintains,
is logical and obvious,
its placement in the comment is immaterial.
Since Bar Counsel must prove
that information was confidential,
its proof must accord with the comments.
The key difference, as I said,
between the Massachusetts rule and the ABA model rules
is the fact that our rules prohibit the disclosure
of confidential information relating
to the representation of a client where the model rules
refer more generally to information,
that is all information relating to the client.
The ABA prohibition is broader than Massachusetts.
And because of the limiting language in our rule,
it makes sense that the Massachusetts rule
must provide a definition of the term confidential,
which it does in the comment.
It also makes no difference that the relevant part
of the definition is phrased in the negative.
And this seems to be something
that Bar Counsel really latches onto.
The text of the rule and the text of the comment
go hand in hand, the latter defines the former.
So the fact that within the same comment,
within a few sentences of each other,
the comment says information is confidential
if it's detrimental or embarrassing to the client,
or it's protected by the attorney-client privilege,
but it's not information that is generally known.
That makes no a material difference from a legal standpoint.
The same, the Bar Counsel still must bear
the burden of proof to satisfy the definition
that it's that fundamental part of its burden of proof.
The fact that these appear in a comment
as opposed to the text of the rule makes no difference,
as the scope of the rules maintain
while the comments don't add obligations to a lawyer
under the scope, which is part of the preamble
to the rules of professional conduct.
This court has advised that the comments provide guidance.
And the comments, like the rules themselves,
are enacted by this court, they have the force of law.
Now I want to contrast what Bar Counsel maintains
is an exception for generally known with real exceptions
that this court and the board have previously
and repeatedly acknowledged are exceptions to the rule.
For example, within rule 1.6, there are exceptions
for which the respondent would bear the burden of proof.
These are clearly set forth in the text of rule 1.6 A,
beginning with the word unless.
And so if you look at rule 1.6 A,
the reading of the rule says that the lawyer must keep,
maintain the confidentiality of information
unless the information, and then it starts listing
various exceptions, including implied consent,
and the exceptions listed in rule 1.6 B.
None of those exceptions are generally known,
which again is in the comment.
So I think just structurally, I just want to repeat
that there's nothing within the language or the structure
of the rule which would put the burden of proof
on the respondent.
-: Mr. Berman, your next area of discussion is the case law.
So what about Murray with the cash?
And then what about that issue and the issue
with Wilson as well?
-: So those are, Murray involved cash,
Wilson involved a lawyer, Wilson and cop,
both involved lawyers who made disparaging remarks
about judges.
Both of those situations are judicially created
affirmative defenses or exceptions to the rules,
which are not within the actual text of the rule.
In Murray, and we go into this in some depth in our brief,
so I don't want to waste time reiterating
what we already said, but in Murray, excuse me,
the court set forth a very specific standard
regarding a lawyer who receives cash from a client
and fails to account for it.
And the (coughs), excuse me, the court held in Murray
that in that very specific and unique situation,
the burden of proof is on the respondent to prove
what he or she did with the money.
And this is because the lawyer is in the best position
to know what they did with the money.
The rules are very clear as to how a lawyer
is supposed to account for money, including cash,
and the lawyer who doesn't account for it
has clearly run a foul of those rules.
And the, so I think the structure,
I would argue that the structure of rule 1.15,
which is what Murray falls under, is very unique
and is very different than this case.
Under Wilson and cob, where the lawyer made
disparaging remarks about a judge,
again, what this court has said is,
well, if the lawyer has an objective good faith basis
for what they said,
then that could be an affirmative defense.
But the lawyer has that information,
the lawyer knows if presumably what the basis
for that accusation was.
It's not a burden, it is not an undue burden
to put on the lawyer the obligation
to come forth with that information.
By contrast, in a case like this,
and I think it's important and I want to respond
to Judge George's comment or question
to Attorney Harbeson.
Remember, in this case, the information didn't actually
come from the client.
In most cases regarding rule 1.6 or rule 1.9,
this situation arises because the client says something
to the lawyer, a marital infidelity, for example,
that is confidential.
The question isn't, where did the information come from,
the question is, is that information confidential?
Is it generally known?
If your client is a celebrity and the information
of the infidelity is all over the internet
and the newspaper, then, and it would not take much skill,
knowledge, or effort in order to obtain that information,
then the information is generally known
and therefore not confidential.
-: And so may I ask you a question?
I'm starting to see a difference
between generally known and generally knowable.
Do you see any tranction there?
-: I think I would, your honor.
And I think I would phrase it as the difference
between available and accessible.
And so for example, yes, information,
and I agree with Attorney Harberson that with some effort,
pretty much everything is available on the internet
in this day and age,
the question is whether it's accessible.
The John Smith example, for example.
Of course a common name may not be generally accessible.
But remember that this respondent, and I found it
by finding it on this local newspaper,
we don't know whether he Googled it
or whether he just was reading the newspaper
and happened to see his client name show up.
But that's immaterial.
I think the key tasks ought to be, and this goes to,
I know what Justice Lowy is most concerned about
is how do we distinguish between how much effort?
And again, it shouldn't be up to the respondent,
and it is not an undue burden to place on Bar Counsel
the obligation to say, "Well, this information
is not generally accessible or accessible."
Because it would require, let's say for example,
let's use an analog version,
something from an old arrest record
that somehow hadn't been digitized,
and one would have to go to a library in a small town
out of state and look on a microfiche
in order to obtain that information.
Well, if a lawyer discloses that,
knowing that it's not on the internet,
that the only way somebody would know about it
would be to go to another state and look in the library
on microfiche, then the lawyer runs the risk of that,
but that's not,
the lawyer doesn't have the burden of disproving that,
the burden should be on Bar Counsel,
because it has to prove that the information
is not generally known.
The other-
-: Counsel, I need to go back to this
because it's the problem that I'm still struggling with.
Joe: Sure.
-: You keep saying that this would be an undue burden
on the respondent.
I keep going back to it.
And I read your brief and I read that you think
that Murray is an opposite to this case.
I don't necessarily follow,
because like in Murray, once again,
before this respondent decided to file that pleading,
there was some calculus that the lawyer had to make
that it was okay for him to do this.
So why is it?
And I know you go through that, the procedural process
that there might be an order to show cause,
or that you might have complaints,
and they've got to list wild reasons,
but before we even get to that point,
the lawyer's got to make a decision
that it's okay for me to do this,
and for all of the other exceptions
that might be applicable.
Whether it not be thought that some third party
might be harmed, or that they were endangered,
the lawyer has to make a decision that it's okay for me
to make this disclosure.
Why is it an undue burden to say you've got to demonstrate
what your thinking was, and that it falls
within this exception?
-: Well, so your honor,
and it may or may not be an undue burden
depending on the circumstances of each case.
And I agree with you, and the board agrees with you,
and the board agrees with Bar Counsel that ethical practice
requires that before a lawyer makes a disclosure,
that lawyer needs to assure himself or herself
that the information is not confidential.
Totally agree with that.
Remember, in this case the lawyer read about it
in the newspaper.
So the lawyer at that point says,
"Oh, this is in the "Daily Patch"
in Marlborough, Massachusetts.
I found my client's name simply by reading
the newspaper online."
The lawyer then says, "Well, since everybody else,
my neighbors and my other people in my community
can read it as well, I don't think this is confidential.
I found it just by opening up the newspaper online,
therefore it's generally known."
And therefore and to your point,
yes, it was a gratuitous filing in federal court.
But remember, one of the reasons that lawyers have,
one of the exceptions under rule 1.6 B,
for which the lawyer would have a burden of proof
would be to defend themselves against allegations
of malpractice or unethical conduct
or some other allegation.
We don't know because Bar Counsel didn't call
Mr. Brennan as a witness, but Mr. Brendan may have decided
that his professional reputation
depended on him making this,
what you would refer to as a gratuitous filing
in federal court.
So I think there are important public policy reasons
why a lawyer may feel that they have to disclose
this information.
I agree with you, we agree with Bar Counsel
that the lawyer has an ethical obligation
to confirm for themselves that the information
is not confidential.
But that is a separate question
from who has the burden of proof.
-: Not necessarily, because if all of that is true,
what is so difficult about saying
that once the lever is dropped
and a complaint is filed against you,
that you have to do all of these things
in establishing your affirmative defense?
-: Well, and I think if I can,
that allows me to jump to my third point,
which is public policy.
And I think what the board wants to emphasize here
is the importance of the integrity of our process.
Just as a lawyer should ensure to themselves
that the information that they are disclosing
is in fact generally known or not confidential,
it is incumbent upon Bar Counsel under our process
to have a basis to make an allegation,
to file a petition for discipline.
And as we set forth in our brief,
there's an adequate opportunity for Bar counsel
to investigate a fault, to investigate a respondent,
take an examination under oath.
Our rules of pleading require that the lawyer
explain why they believe the information
was not confidential, which the lawyer did in this case.
And with that burden of production, if you will,
if that modicum of information coming forward
from the lawyer is provided, under the text of the rule,
and under general principles of fairness and due process,
the burden should then be on Bar Counsel to say,
"Well, no, you say that this information
was not confidential, it was generally known,
but we have satisfied our burden
to show that it would actually take extra skill,
knowledge and effort in order to obtain that information."
And that's where the burden should rest on Bar Counsel.