November 12, 2012

by Bianca Iozzia

Model Rules of Professional Conduct

The legal profession is self-regulating in that the state bar associations in conjunction with the states’ highest court promulgate, interpret, and enforce their own rules of professionalism. The practice of law is heavily regulated in that attorneys must be licensed in the state in which they wish to practice. Upon becoming licensed to practice law in a given state, attorneys agree to be bound by the state’s rules of professional conduct and held responsible for any violations. Such violations can result in reprimand, suspension, or disbarment. While the Model Rules of Professional Conduct (MRPC) serve merely as a suggestion to states, today most jurisdictions model their professionalism rules on the MRPC.

As Professor Karcher notes in his article, The NCAA’s Indirect Regulation of Lawyer-Agents[1], certain NCAA bylaws directly obstruct the MRPC — specifically, MRPC 1.3 and 1.6. MRPC rule 1.3 pertains to diligence. The rule states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”[2] MRPC 1.6 deals with confidentiality of information. Rule 1.6(a) calls for a lawyer not to “reveal information relating to the representation of a client unless the client gives informed consent….”[3]

NCAA Bylaws

The NCAA bylaws at issue include rules 10.1, 12.3.1, and 12.3.2.1. Bylaw 10.1 is the NCAA’s self-proclaimed “Unethical Conduct” rule. Essentially, the rule requires the divulgence of confidential information and communication related to the representation of a client.

Rule 12.3.1 is the general rule that an athlete shall be ineligible for NCAA participation if he or she has agreed to representation by a lawyer-agent for the purpose of marketing his or her athletic abilities. Rule 12.3.2.1 states, “A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (in person, by telephone or by mail) with a professional sports organization on behalf of the individual.”

Professor Karcher raises the question of why would a high school or college athlete hire an attorney to represent them if the attorney cannot negotiate or contract with the professional organization? Rule 12.3.2.1 effectively prohibits an athlete from having his or her lawyer communicate with any professional organization’s personnel; this includes negotiating contracts — a fundamental part of the representation.

Conflict between MRPC and NCAA

As Professor Karcher points out, it appears that the NCAA rules as construed would directly conflict with the MRPC. To abide by the NCAA rules would invite lawyer-agents to commit a professionalism violation and subject themselves to discipline. Not only could the state courts invoke discipline but the lawyer-agents could also be sued by their clients for ineffective assistance of counsel. Professor Karcher asserts that such rules are also detrimental to the athlete’s best interest and as they “serve no purpose whatsoever in preserving amateurism.”

Case in Point

Professor Karcher’s article raises the issue as to whether the NCAA rules go against the best interest of the lawyer-client relationship and are inconsistent with the MRPC. The Oliver v. Nat’l Collegiate Athletic Ass’n case illustrates this conflict between the MRPC and NCAA bylaws.

Oliver v. Nat’l Collegiate Athletic Ass’n

Andy Oliver

In Oliver v. Nat’l Collegiate Atletic Ass’n (2009, read the opinion here), the validity of NCAA bylaw 12.3.2.1 was called into question. In this case, Oklahoma State University informed Andy Oliver, a sophomore baseball player, that he was suspended for having his lawyer present during negotiations with the Minnesota Twins when he was drafted as a high school senior. Not only was Oliver two years removed from high school when the matter arose, but he also never reached an agreement for a professional contract.

Oliver challenged the suspension as a third party beneficiary to the NCAA bylaws. Oliver’s argument was twofold: 1) bylaw 12.3.2.1 is arbitrary on its face because denying a high school or college athlete from having a lawyer communicate with a professional organization is not related to preserving amateurism, and 2) 12.3.2.1 was arbitrarily applied because “virtually all amateur baseball players who are draft prospects retain an ‘advisor’ who communicates with professional teams about their ‘signability’ and thus the NCAA selectively enforced the no agent rule against him.”

The court struck down the NCAA bylaw as raising a potential ethical violation. The court explained that bylaw 12.3.2.1 inhibited an attorney from performing his or her job in competently and diligently representing a client. The court asserted that a private entity, the NCAA, may not dictate an attorney’s representation. Consequently, with the invalidation of 12.3.2.1 Oliver’s eligibility was restored.

NCAA Questionnaire

Another illustration of the tension between the NCAA and the MRPC is the NCAA’s utilization of its questionnaire to baseball players. The questionnaire called for drafted baseball players who elected not to sign a professional contract to disclose information such as their advisor’s name, number of times they spoke with an advisor, all clubs with whom their advisor spoke with and so on. In addition, the questionnaire included a “Prospective Student Athlete Release.” The release granted permission “to release to authorized representatives of the NCAA Eligibility Center any and all information pertaining to [the athlete’s] interactions, or interactions on [the athlete’s] behalf, with any MLB club or the Scouting Bureau and to read and make copies of all records pertaining thereto.”

In effect, the release forces the athlete to reveal information that would otherwise be protected by attorney-client confidence under MPRC 1.6. As noted in the comment to MRPC 1.6, the rule pertains to “disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client.”[4] As Professor Karcher points out, MPRC 1.6 is much broader than attorney-client privilege or work product protection. Thus the NCAA is compelling otherwise protected information through bylaw 10.1.

So What?

The NCAA bylaws put constraints upon high school and college athletes that ultimately implicate a lawyer-agent’s ability to represent the client. Kracher drives home the point that such regulations by the NCAA are at odds with the MRPC. One NCAA bylaw (12.3.2.1) has already been invalidated by courts — is it only a matter of time before similarly conflicting rules suffer the same fate?

References:

[1] Richard T. Karcher, The NCAA’s Indirect Regulation of Lawyer-Agents: In Direct Conflict with the Model Rules of Professional Conduct, Santa Clara University Institute of Sports Law and Ethics, Third Annual Sports Law Symposium (Sept. 2012) papers.ssrn.com/sol3/papers.cfm?abstract_id=2170975

[2] See Model Rules of Prof’l Conduct R. 1.3

[3] See Model Rules of Prof’l Conduct R. 1.6(a)

[4] See Model Rules of Prof’l Conduct R. 1.6, comment 1