Several weeks ago, attorney Mark Lemley was criticized for having the temerity to terminate his representation of Meta during an ongoing copyright infringement case because of its CEO’s alleged “descent into toxic masculinity.”[1] Critics pounced, alleging that Lemley’s denunciation of Mark Zuckerberg was, at best, a terrible business decision and, at worst, a potential violation of his ethical responsibilities. While criticism of a client at the end of a representation is generally imprudent, would Lemley’s statements have been unethical if made in Maryland? Though there are no Maryland cases with precisely the same facts, there is some guidance in Rules 19-301.16, 19-301.6, 19-301.9, and 19-303.6.
Maryland Rule 19-301.16(b) states that an attorney may withdraw from a representation if the client “insists upon action or inaction that the attorney considers repugnant or with which the attorney has a fundamental disagreement.” Lemley disagreed with Mr. Zuckerberg’s recent actions at Meta which may, as others have noted, hasten the United States’ fall into an “electoral autocracy”[2] or “competitive authoritarianism”[3] in the vein of Hungary or Turkey.
Given his view of the changes at Meta, Lemley would be permitted to end the representation. While withdrawal may have been permissible, what about Lemley’s pointed criticism of Zuckerberg? Rule 19-301.6 cautions against revealing “information relating to representation of a client” without first obtaining the client’s informed consent. While it does not appear that Lemley’s statements would have technically violated the rule by revealing information, he should be cautious about making assertions that could undermine his former client’s interests in the ongoing litigation. Rule 19-301.9 states that an attorney who has formerly represented a client in a matter shall not thereafter use information relating to the representation to the disadvantage of a former client. Again, it does not appear that Lemley’s criticism of Zuckerberg descending into “toxic masculinity” or becoming a “Musk wannabe” would run afoul of the rule. Rule 19-303.6 sets forth the general prohibition against an attorney making statements that the attorney knows or should know will have a substantial likelihood of materially prejudicing an adjudicative procedure. Since the rule tries to strike a balance between the right of free expression and a fair trial, it might not necessarily be implicated in litigation, but it is something the attorney needs to be mindful of. Finally, if Lemley were a Maryland attorney, he would be mindful of Rule 19-308.4, which can be invoked for conduct that brings disrepute to the legal profession.[4]
The bottom line is that Lemley’s denunciation of Zuckerberg and termination of his representation of Meta was likely not unethical as no client confidences were revealed, at least under the law in Maryland, though it may prove be a poor business choice. That said, the ethical rules should not be used to muzzle an attorney who remains steadfast in his or her beliefs, especially in a time of hyperpartisanship and constant constitutional crises. However, to the extent one feels driven to criticize a former client, make sure to refrain from revealing information about the representation or using such information to his or her detriment.[5]
NOTES
[1] See “High powered lawyer: I won’t represent Meta anymore thanks to Zuckerberg’s MAGA turn,” Zachary Folk, The Daily Beast (January 14, 2025).
[2] See “In a real sense, U.S. democracy has died: how Trump is emulating Hungary’s Orban,” David Smith, The Guardian (February 7, 2025).
[3] See “The Path to American Authoritarianism – What Comes After Democratic Breakdown,” Steven Levitsky and Lucian A. Way, Foreign Affairs (February 11, 2025).
[4] See AGC v. Park, 46 A.2d 1153, 427 Md. 180 (2012).
[5] See Fla. Bar v. Knowles, 99 So. 3d 918 (2012) (where an attorney was disciplined in Florida for disparaging an ex-client by claiming they had engaged in or were likely to engage in criminal conduct).
George Mahaffey is Counsel to Goodell DeVries, where he advises and defends a wide variety of clients in professional liability matters. He handles ethics-related matters on behalf of accountants, attorneys, engineers, design professionals, and financial services and insurance professionals. He can be reached at gsm@gdldlaw.com.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.
