Anti-Collusion Guidance Means Attorneys Must Limit Scope of Representation
The FCC decision that lawyers representing multiple clients in the incentive auction are at risk of violating anti-collusion rules mean communications lawyers need to limit their own access to information, lawyers who study legal ethics rules said at an FCBA ethics CLE Thursday night. Since the FCC guidance on the prohibition is focused on bidding information (see 1510070082 and 1510070072), attorneys seeking to represent multiple clients need to make arrangements with their clients ahead of time to make sure they won't have access to bidding information, said Wilkinson Barker General Counsel Lawrence Movshin. “You should be trying to avoid getting any kind of prohibited information.”
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The FCC's anti-collusion guidance was issued partially in response to an FCBA request for clarification on how the anti-collusion rules worked. FCBA took the position that attorneys could represent more than one client in the auction without being in violation. The FCC's response specifically cautioned that individual attorneys that know the bidding information or bids of more than one broadcaster participating in the auction have “a greater risk” of breaking the prohibited communications rules. The “quiet period” when the prohibition against auction eligible broadcasters communicating bidding information goes into effect is the deadline for short-form auction applications, Dec. 18. It lasts until the auction is complete.
The FCC guidance is a mistake that doesn't acknowledge that legal ethics rules already bar attorneys from using one client's confidential information to help another, Movshin said. The guidance is “a very troubling piece of advice” that dismisses lawyers' professional responsibility and creates many difficulties for the communications bar, said Movshin. “They're saying they don't trust you,” said attorney Ted Frank, a former chair of the D.C. Board of Professional Responsibility. Most firms have far more clients than lawyers, the practitioners said. The FCC didn't comment.
Many communications attorneys won't be asked to work much with bidding information, several lawyers have told us. Attorneys in such a position should be able to limit their access to bidding information and still do their jobs representing multiple clients, Movshin said. To do so, attorneys should agree with their clients ahead of time that they will limit the scope of their representation to non-bid related issues. Attorneys also could ask clients to pre-waive conflicts with other clients, the experts said. It's also important for attorneys representing multiple clients in this situation to “memorialize everything” in writing, said Frank. By carefully documenting their interactions with clients during the quiet period, attorneys can bolster their defense against post-auction challenges, he said.
Limiting the scope of representation isn't going to work for attorneys at smaller firms or those whose clients do rely on them for bidding info and advice, Movshin said. That puts those attorneys' clients in a very difficult position, said broadcast attorney Jack Goodman. Even if those attorneys limit how many clients they represent in the auction to avoid conflicts, the bumped clients have few options, said Goodman. Since every law firm is facing the same conflict problems, the firms are unlikely to want to take on more clients who create more conflicts, Goodman said. “They can't get effective representation from their current counsel and there's nowhere else to go.” Goodman helped author the FCBA overture to the commission that partially prompted the FCC to issue the guidance, but he said he doesn't know if the FCBA will try to get the agency to change its stance. FCBA President Chris Wright didn't comment Friday.