This article is related to a Showcase CLE program titled “Yogi Berra Does Legal Ethics: An Overview of the Ethical Rules that Govern In-House and Outside Counsel as They Represent Their Entity Clients” that took place at the American Bar Association Business Law Section’s 2025 Fall Meeting. All Showcase CLE programs were recorded live and will be available for on-demand credit, free for Business Law Section members.
Hearing the name Yogi Berra conjures up different things to different people. Most people think of Yogi Berra, a stalwart of the New York Yankees baseball club during one of its golden eras, as an All-Star catcher who helped the Bronx Bombers win ten World Series championships and as the player who won three American League MVP awards. Some might think of Yogi Berra as the manager of the New York Yankees and the New York Mets. Some might even think of Yogi Berra as the World War II gunner’s mate aboard the USS Bayfield attack transport that participated in the D-Day Normandy landings. But many who hear the name Yogi Berra will smile and smirk at any number of “Yogi-isms,” like “It ain’t over ’til it’s over,” for which he is known.
If one delves deeper into these “Yogi-isms,” however, one might find that “Yogi-isms” are full of real-life truths and are an indication that, perhaps, Yogi Berra was far smarter than the general public gives him credit. Regardless of the truth of that statement, some “Yogi-isms” call to mind applications of our legal ethics rules—the ABA Model Rules of Professional Conduct—that may just be better remembered through a “Yogi-ism” mantra.
Consider the following:
- “So I’m ugly. I never saw anyone hit with his face.” Lawyers must remember that in the client-lawyer relationship, “it’s not about the lawyer—it’s about the client.” It is the client who makes the big decisions (i.e., sets the objectives) in their matter, and it is the lawyer who determines how that happens (i.e., the means). This concept is embodied in Rule 1.2, “Scope of Representation and Allocation of Authority Between Client and Lawyer.” In fact, the very first sentence of Rule 1.2(a) notes: “Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of the representation . . . .”
- “I’m a lucky guy, and I’m happy to be with the Yankees. And I want to thank everyone for making this night necessary.” Here, Yogi recognizes that it is the team—the organization—that is important, which brings to mind the importance of Rule 1.13 when representing organizational clients. As established by Rule 1.13(a) and its Comments, when a lawyer represents an organization, it is the organization itself that is the client—not any of the individual constituents (employees, officers, departments, executives) of that organization. While a lawyer may work through an organization’s constituents, they are not the ultimate client.
- “Pair up in threes.” Combining aspects of the first two “innings” above, “pairing up in threes” evokes two different tripartite arrangements. The tripartite arrangement that is most commonly thought of in legal ethics circles is that of insured, insurer, and lawyer for the insured. However, one that is just as fundamental is the working relationship between in-house counsel, retained outside counsel, and the organizational client itself. Here, it is very important for in-house counsel and outside counsel to recognize that they both represent the organizational client, even though outside counsel is often getting direction from in-house counsel.
- “He hits from both sides of the plate. He’s amphibious.” While a switch hitter can hit from both the left and the right side of the plate, under our conflict rules, a lawyer (and their law firm) cannot represent opposing sides of a transaction. A lawyer may represent one side in the transaction, and, with informed consent confirmed in writing, that lawyer can represent the other side in the transaction in other, unrelated matters, but the lawyer cannot—in essence—negotiate against themself.
- “Half the lies they tell about me aren’t true.” Under Rule 4.1, lawyers have an ethical obligation, in the course of representing a client, to not knowingly make false statements of material fact or law to third persons. Also, lawyers may not fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client—except when such disclosure would itself be a violation of the lawyer’s duty to maintain the confidentiality of information relating to the representation of a client, as set forth in Rule 1.6. This obligation against misrepresenting facts extends to using the statements of others, including the client. As the comment to Rule 4.1 notes, “A misrepresentation can occur if [a] lawyer incorporates or affirms a statement of another person that the lawyer knows is false”—whether that person is a client, teammate, or otherwise.
- “The towels were so thick there I could hardly close my suitcase.” Contrary to the belief of some lawyers, there are Rules of Professional Conduct that apply to them even outside of the context of representing clients. Rather, some Rules apply simply because the person is a lawyer. In particular, Rule 8.4(c) regarding “Misconduct” provides: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
- “It ain’t over ’til it’s over.” Properly terminating a representation or closing out a matter has both legal ethics and risk management implications. For one, when a representation is terminated, under Rule 1.16(d) a lawyer has an obligation to “take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.” But moreover, if the end of the representation is the result of the lawyer accomplishing the objectives for which they were retained by the client, it behooves the lawyer to send a “close out” or disengagement letter. Such letters need not be off-putting; they can even be complimentary of the client and invite the possibility of future work to address the client’s future needs. What such a letter does is (a) effectively terminate the representation on the matter and perhaps of the client, which can have ramifications on whether future conflict of interest analysis takes place under Rule 1.9 as opposed to Rule 1.7, and (b) start the clock on application of any document retention policy that the lawyer or their firm has in place.
“Yogi-isms” can be a great device to remember and understand the Rules of Professional Conduct and their application because the Rules, like many of the “Yogi-isms” above, are often grounded in common sense. Ultimately, the Rules are designed to protect our clients and the public at large.
