Any number of people believe that the phrase “ethical lawyer” is an oxymoron.
Perhaps that is one of the reasons for the panel discussion, “IMGL Master Class: Navigating Ethics in Gaming Law.” IMGL stands for International Masters of Gaming Law and this panel had four attorneys discussing various ethical concepts as they relate to casino companies.
In the interest of full disclosure, I’m a non-lawyer, although I did watch every episode of “Perry Mason” way back when and some “Law and Order” episodes. I’ve read every John Grisham and Scott Turow novel and have watched To Kill a Mockingbird and 12 Angry Men. I’ve also hosted noted gambling attorneys Bob Nersesian, I. Nelson Rose, and Robert Loeb as guests on the podcast I co-host, “Gambling with an Edge.”
The first situation debated by the panel was one in which a company is attempting to get a gaming license in a state where one or more officers of the company are also required to be licensed. An attorney comes across information about one such officer that absolutely or potentially disqualifies him from getting licensed. What should the attorney do?
The first issue is, who does the attorney represent? Representing an individual officer and representing the company are not the same. This attorney may need to instruct the officer to get his own lawyer. While the attorney is representing the company, most or all states have a rule that an attorney may not knowingly make a misrepresentation or significant omission in whatever is filed in front of the gaming regulatory agency.
Sometimes the attorney must make uncomfortable decisions, including, but not limited to, “You tell the regulators within 48 hours or I will.” On occasion, the attorney must resign, rather than remain in an untenable position.
Another topic discussed had to do with an attorney representing a company that is 100% owned by one individual who is trying to get licensed and the owner has a disqualifying or potentially disqualifying ethical issue. This always leads to a distressing discussion with the owner, in which the lawyer must tell him to withdraw the company from trying to get a license in this jurisdiction. This discussion can easily lead to the attorney resigning or being fired.
A third scenario is when an attorney represents two or more clients and learns something from one client that could potentially benefit others. Can the attorney spread the news? The general rule depends on how confidential the information is. If no one else knows this information, it can still be spread if doing so will not injure the original party. If the information is public knowledge, then the information may be spread without restriction. Most regulatory filings are public knowledge, at least potentially, though not everyone knows how to obtain such information. But if the information is published anywhere else, then it’s fair game to be shared.
All of these issues had caveats, including special cases where exceptions might or might not apply. And in some situations, ethics must be judged on a case-by-case basis where there isn’t always a clear-cut answer. I guess that’s what makes the legal profession interesting and frustrating!
