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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4396" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/05/Caution-techno-300x225.jpg" alt="" width="300" height="225">Do lawyers need to be reminded not to lie to a federal agency?
As reported earlier this week on Law 360, the staff of the Federal Trade Commission has issued a wake-up call to lawyers who practice before the agency, warning them that intentionally misleading the Commission could lead to &ldquo;public reprimands, sanctions and even disbarment&rdquo; from Commission practice.
The warning came in an FTC&nbsp;blog post you can read <a href="https://www.ftc.gov/news-events/blogs/competition-matters/2019/05/joining-issues-high-road">here</a>.&nbsp; The blog post notes that most lawyers who come before the FTC are honest, but &ldquo;for a few,&rdquo; there may be &ldquo;perceived opportunities to seek an advantage in the debate through misrepresentation of key facts.&rdquo;&nbsp; The post says that there have been instances when &ldquo;internal documents expressly contradict representations made by counsel and clients during investigations,&rdquo; and &ldquo;where the innocent explanation&rdquo; for such &nbsp;inconsistencies &ldquo;seemed implausible.&rdquo;
The blog post details the several <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=f38e1bbaaa7fe9c871e503cab8dd5d77&amp;mc=true&amp;tpl=/ecfrbrowse/Title16/16cfr4_main_02.tpl">FTC rules</a>, codified in the CFR, that prohibit giving false&nbsp;information to the Commission at any stage of any proceeding, and authorize the agency to sanction lawyers who violate the rules.
Our three take-aways from this interesting piece:
1.&nbsp; DUH!
First, it is startling that lawyers apparently need a tutorial on the&nbsp;&ldquo;duty of candor and professionalism&rdquo;&nbsp;owed&nbsp;to the Commission and its staff.&nbsp; In its adjudicative role, the FTC is&nbsp;a &ldquo;tribunal&rdquo; under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_0_terminology/">Model Rule 1.0(m)</a>,&nbsp;and therefore, <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/">Model Rule 3.3</a> (&ldquo;Candor toward the Tribunal&rdquo;) would apply.&nbsp; And in any event, all the other numerous ethics rules against lying apply, too.&nbsp; See Model Rules&nbsp;<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_4_fairness_to_opposing_party_counsel/"> 3.4</a> (fairness to opposing party and counsel), <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_1_truthfulness_in_statements_to_others/">4.1</a> (truthfulness in statements to others), <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons/">4.4</a> (respect for rights of third persons), <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/">8.4</a> (dishonesty, fraud, deceit and misrepresentation). Lawyers representing clients in regulatory proceedings&nbsp;do not shed the Rules of Professional Conduct at the agency door.
2.&nbsp; Agencies have ethics rules, too.
While you don&rsquo;t escape the guiderails of the Rules of Professional Conduct, administrative agencies also have their own ethics rules, as the FTC blog post notes.&nbsp; Agencies with rules for lawyer conduct include the <a href="https://www.uspto.gov/learning-and-resources/patent-and-trademark-practitioners/current-patent-practitioner/ethics-rules">Patent and Trademark Office</a> and the <a href="https://www.law.cornell.edu/cfr/text/17/205.1">Securities and Exchange Commission</a>.&nbsp; There are many others.&nbsp; See George M. Cohen, <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=http://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=1&amp;ved=2ahUKEwi1vNGt5p3iAhVDPK0KHRQ1ArkQFjAAegQIARAC&amp;url=http%3A%2F%2Fir.lawnet.fordham.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D5188%26context%3Dflr&amp;usg=AOvVaw3Pua9b7kRDGo9YWKyDvrgS&amp;httpsredir=1&amp;article=5188&amp;context=flr">The Laws of Agency Lawyering</a>, 84 Fordham L. Rev. 1963, 1978 (2016)&nbsp;(noting 46 federal agencies with rules regulating conduct of lawyers).&nbsp; As Cohen notes,&nbsp;lawyers practicing before agencies &ldquo;must comply with state ethics rules ...&nbsp;And they must consider how the agency&rsquo;s own rules may impact their ethical obligations under the general ethics rules.&rdquo;
3.&nbsp; Blogs!
The third notable thing about the FTC&rsquo;s pronouncement is that it appeared in the blog published by the agency&rsquo;s Bureau of Competition staff, titled <a href="https://www.ftc.gov/news-events/blogs/competition-matters">Competition Matters</a>.&nbsp; I guess we shouldn&rsquo;t be surprised that a federal government agency chose to use the medium of a blog to issue an important policy reminder to practitioners &mdash; blogs of all kinds have been go-to sources of information for a long time now.&nbsp; Litigants cite blogs in their briefs.&nbsp;&nbsp;(Although <a href="https://www.litigationandtrial.com/2016/11/articles/attorney/blog-cite-courts/">here </a>is an article&nbsp;criticizing the trend.)&nbsp; This blog, I&rsquo;m proud to say, has been cited in two&nbsp;law review articles (<a href="https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=4216&amp;context=cklawreview">here</a> and <a href="https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/tresl19&amp;section=5">here</a>&nbsp;[sub. req.])&nbsp;&nbsp;and in a law school case book.
In many contexts, you can&rsquo;t beat a blog when it comes to putting out timely and useful content.&nbsp; We hope&nbsp;you continue to enjoy reading this one!&nbsp; Just remember to keep on the straight and narrow when you&rsquo;re before an agency.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Lie to the FTC?  Don’t try it, warns agency blog post