The twice-monthly “Dear Ethics Lawyer” column is part of a training regimen of the Legal Ethics Project, authored by Mark Hinderks, former managing partner and counsel to an AmLaw 200 firm. Read More

2023

Q: Dear Ethics Lawyer, I am an in-house corporate lawyer for a multinational agricultural products company. I was grinding away at 6 pm one evening when I received a call from a business colleague based internationally, with whom I have worked before. She explains that she is negotiating a license agreement to obtain rights to manufacture and sell some incredible new technology in the United States. She has an e-mail from the other party with the proposed form of licensing agreement. She tells me that the deal must be agreed upon in the next 12 hours or it will be lost to another bidder. Apparently she has been out of the office with an illness and had overlooked the email until just now. She wants me to review the proposed agreement immediately and advise her, but I’ve never done this before. She and I tried but were unable to reach an IP lawyer.

What do I do? I suppose my review is better than no legal review, but this is out of my area.   

Continue Reading December 15 Issue – Acting in Emergency Without Expertise

Q: Dear Ethics Lawyer, I am an associate working with a partner on a substantial matter. The client has asked for advice concerning the potential exposure and whether it should be estimated and disclosed as a material matter to audit personnel working on the company’s financial statements. The partner believes strongly that the matter is sufficiently speculative that it need not be disclosed. However, I believe that, although arguable, the partner is wrong and that a failure to disclose the matter would cause the client to misstate its contingent liabilities. The partner considered my position, but rejected it and has determined to advise the client based on his position. What may or must I do under the ethics rules?  

Continue Reading December 1 Issue – Subordinate Lawyer

Q: Dear Ethics Lawyer, I have a delicate question. I have always had a good relationship with my in-house contact for a long standing corporate client, but recently it’s taken a turn – a mutual attraction has arisen. I find myself drawn to this person, engaging in extended conversations and complimenting them on their appearance as well as how they are handling matters. Some of our meetings have been over dinner, and some of our conversations have become a bit flirty. Then last night, as we were texting each other, the client representative asked if I would be interested in getting together personally sometime, and sent me a sexually revealing picture. I responded in kind, saying that would be nice and attaching a picture of my own. I am guessing that I may not be able to have an actual sexual relationship with the client representative while the representation continues, but has what I’ve done so far crossed any lines?   

Continue Reading November 15 Issue – Unprofessional Relationships with Clients

Q: Dear Ethics Lawyer, I have a hiring question that I don’t think is covered by the rules. We want to hire a new LAA, and I’m talking to one at another law firm. I have no way of knowing or identifying if the LAA is or has supported any lawyer at the LAA’s current firm who is or has been on the other side of any lawyer at our firm, especially in matters that aren’t in court. My friend says that it doesn’t matter – that the Rules of Professional Conduct don’t apply to administrative assistants, they apply only to lawyers. Is that right? Do we have any duties here?   

Continue Reading November 1 Issue – Hiring Non-Lawyers

Q: Dear Ethics Lawyer, I just returned from our firm retreat, where after a time in the hospitality room, my partner and I had a philosophical discussion about whether as a profession lawyers have eroded their usefulness to clients (and competitive advantage over others such as the large accounting firms) by creating exceptions to privilege and non-disclosure of information otherwise protected by Rule 1.6, imposing ever-increasing duties to inquire into the bona fides and intentions of clients even in the absence of red flags of wrongdoing. What do you think about this?

Continue Reading October 16 Issue – Evolution of Attorney Client Relationship

Q: Dear Ethics Lawyer, It is hard to make money practicing law, especially with the darn Model Rules always getting in the way: conflicts, multi-jurisdictional practice issues, etc. But, I’ve got an idea. We’ve got some finance/computer whizzes who’ve worked out a breakthrough tool for legal matter budgeting, scheduling and reporting, incorporating AI to learn from existing matters. I figure we can form a separate company, using our firm’s techno-people part-time to sell their expertise to other firms. It’s not even the practice of law, so we can ignore the advertising and conflict rules and all the other requirements that get in the way. What do you think?

Continue Reading October 2 Issue – Law-Related Businesses

Q: Dear Ethics Lawyer, We want to hire a terrific associate attorney, but that attorney currently works for a law firm that is on the opposite side of a still-pending case from our firm. We do not believe that the attorney we wish to hire is or has been actively involved in the suit. Are there any circumstances under which we could hire that attorney? What if the attorney is actively involved on the other side of the suit?

Continue Reading September 15 Issue – Hiring Attorney from Adverse Firm

Q: Dear Ethics Lawyer, Another lawyer from our firm and I made a pitch to represent company A, which our firm had not previously represented, in a new matter. We discussed with A the strategy that we would employ if hired, based on the facts from their perspective that they provided to us at the time. Unfortunately, we did not get the work. Six months later, I have been asked to take on a different matter for an existing client B who is now adverse to A, one that is not the same or substantially related to the matter that we discussed with A. May the firm or I take the new matter? Do we need any kind of a waiver to do so?

Continue Reading September 1 Issue – Representation Adverse to Former Pitch Prospect

Q: Dear Ethics Lawyer, I have a good friend who is a lawyer at a small firm. Unfortunately, she recently has become the subject of a malpractice claim by a former client. She’s told me a little about it, and based on my knowledge of her professionalism, I’m sure it’s a claim without merit.

She has asked me to defend her and her firm in trying to get rid of this claim, and says that her insurer has agreed to defer to her choice since the amount of the claim is fully within her firm’s deductible. We don’t have any conflicts that would be a problem. We do have some unrelated cases where lawyers in her firm are on the other side of lawyers in our firm representing their clients, but no adversity to her firm itself. This isn’t a problem, is it?

Continue Reading August 15 Issue – Representation of Another Law Firm

Q: Dear Ethics Lawyer, A well-meaning but less competent friend of mine discovered that he has blown a statute of limitations for a client who happens to be his good friend. He feels terrible about this, and wants to make it right. Fortunately, he and his firm have the resources to do so without calling upon their malpractice insurance, the deductible of which would be a larger amount anyway.

Can he and his firm go to his client-friend, confess the error and immediately pay the full amount of damages the client might have obtained in order to solve the problem?

Continue Reading August 1 Issue – Lawyer Settlement of Client Claim