Q: Dear Ethics Lawyer, I wish I had a pivotal trial practice question to ask you relating to some huge and important case, but alas what I have for you is a mundane question about bios and practice descriptions. Together with some others, I have left a larger firm, and we are now trying to realize the dream of having our own boutique litigation practice.
We’ve divided up tasks, and I am responsible for pulling together marketing materials, including our website, with bios and attractive descriptions of our practice capabilities. I am stymied about whether and when it is appropriate to say that one of us “specializes” in a particular area of practice in light of Rule 7.2(c). I am also concerned whether we can say that one of us is “expert,” or “an expert” in a particular area. We want to be able to attract clients, but I don’t want to cross any lines.
July 15, 2026 – Ethics of Settlement Negotiation
Q: Dear Ethics Lawyer, I am sending this to you from my hotel after day one of a two-day mediation. I am representing a business (Seller) that sold an industrial facility to another business (Buyer). In the subsequent lawsuit, Buyer alleges that after the sale they discovered ground water contamination from trichloroethylene (TCE) when doing testing related to expansion of the purchased facility. Clean-up costs are estimated at $6 million. During the sale, Seller’s President had signed representations and warranties that disclaimed any knowledge of VOC contamination of the type that would include TCE. Seller had used the facility for purposes that would not ordinarily result in the use or spill of TCE, so Buyer had not done ground water testing prior to the sale. However, after the suit arose, Seller’s President admitted to me that when Seller had purchased the facility from a different entity ten years prior, he had been made aware of a “small” TCE spill by a previous owner, that he had never thought would come to light when signing the contract with Buyer. This is why we had pressed for an early mediation, to settle the case before the fact of Seller’s knowledge of the condition came to light in discovery. Seller reluctantly authorized settlement up to the full amount of $6 million in order to avoid this being turned into a fraud case with even larger potential damages, and reputational harm to Seller and its President, but indicated that I should only use the full amount of the authority as a last resort if it couldn’t be settled at a lower number.
In any event, toward the end of a long day one of the mediation, after several back and forth sessions, the mediator asked whether we were at all concerned that discovery would reveal any knowledge by the Seller of the contamination. Before I could jump in to obfuscate the answer, Seller’s President blurted out that he was not at all concerned about that. The mediator then said that he believed he could get the matter resolved for $3 million, a number we had offered, if we would assure the other side that this was our “best and final” offer and the full extent of the authority I had. Sensing a win for the client here, I confirmed that this was all the higher that we could go. Those were conveyed to the Buyer, and we agreed to return on day two simply to write up the terms of the settlement. But now, I am having concerns, both about the President’s statement, which I didn’t participate in but which I know to be untrue, and whether I overstepped in saying that $3 million was all that we would pay. On the other hand, these were settlement negotiations, and nobody really believes what others say in presenting their position. That’s why settlement negotiations are generally not admissible later, right? Have I don’t anything wrong here?
July 1, 2026 Issue – Material Limitation Conflict Based on Client Dislike
Q: Dear Ethics Lawyer, I am a mid-level partner in a law firm. I have struggled to develop business until recently when I received a call from a law school classmate who recently became head of litigation at a major family-owned private company. They have lots of litigation, and even more money to pay for it. In many ways it is a dream come true for my career. But this company stands for some things that I think are simply awful. They are very political in an open way and have views I find distasteful. They use their big war chest of money to influence public policy in a way that I find repugnant. In our meetings they say terrible things about people I respect. I have to hold my tongue not to openly disagree with them. And now, my name will forever be associated with them. I am trying my best to do their legal work well, but I am struggling. Do I have ethical issues arising out of this situation?
Continue Reading July 1, 2026 Issue – Material Limitation Conflict Based on Client DislikeJune 15, 2026 Issue – Lawyer’s Duty to Inform Judge of Basis for Possible Recusal
Q: Dear Ethics Lawyer, I am counsel in a case involving a web of corporate parties on each side. I now have information that our judge’s adult children own a substantial interest in a two of the parties. I do not know whether the judge or counsel for the opposing parties is aware of this. I like this judge and am not anxious to secure his recusal, but do I have an obligation to disclose my knowledge of this to anyone?
Continue Reading June 15, 2026 Issue – Lawyer’s Duty to Inform Judge of Basis for Possible RecusalJune 1, 2026 Issue – Client with Decision-Making Limitations
Q: Dear Ethics Lawyer, I have represented an individual entrepreneur in various business matters for the past 20 years. She has always been capable, with clear ability to receive and apply my advice and quickly make what I have believed to be logical and rational decisions. Lately, however, I have noticed a change. Her ability to process our conversations seems slower and more labored. I often have to repeat things I’ve already said, and sometimes she doesn’t seem to remember details of prior conversations. She is less confident in her decision-making, asking me what I would do in certain situations that in the past she would have quickly reasoned through herself. I try to deflect making decisions for her, and for now just talk her through the situations until she reaches what seems like a rational and appropriate decision. But, I’m not a health care professional and lack the ability to assess what’s going on with her or how serious it is. What are my duties here?
Continue Reading June 1, 2026 Issue – Client with Decision-Making LimitationsMay 15, 2026 Issue – Reporting Lawyer Who Violates the Rules
Q: Dear Ethics Lawyer, I have a question about the duty to report professional misconduct. I have learned that a lawyer (Bill) in our firm accidentally copied a lawyer from another firm with an email intended for a client, discussing the client’s matter and including confidential and privileged information. It happened when the autofill function of the email program filled in an email address from Bill’s contacts instead of the client’s email address which begins with similar letters. Bill did not catch the error before he hit send. Fortunately, the lawyer who received it was not adverse to this particular client and readily agreed to delete the email.
On the face of it, however, the communication violated Rule 1.6 (“a lawyer shall not reveal information relating to the representation of a client” without client consent), but it was a simple and understandable mistake that could happen to any of us. And what if the client does not want to report it because it doesn’t want the contents of the email to be shared with the authorities? Do I have a duty to report this to the disciplinary authorities in our state?
May 1, 2026 Issue – Ethics of Witness Preparation
Q: Dear Ethics Lawyer, I just took yet another deposition in which the otherwise successful, intelligent businessperson being deposed appeared to have the memory of an old Commodore 64—she said “I don’t know” or “I don’t remember” to just about every question. And for those few questions she answered, she rephrased absolutely everything. For example, I asked her if it was in the scope of her duties to review and approve contract terms such as the one at issue? She said, “I don’t know what you mean by review and approve, but if you are asking if I did sometimes read them, the answer is yes. But I don’t remember whether I did so in this instance.” She had obviously been coached by her counsel to within an inch of her life. And I’d bet money that when it comes to summary judgment briefing or trial, her memory will have been “refreshed” and then she will remember a version of the facts favorable to her employer.
I’m thinking I’m playing out of the wrong playbook when it comes to witness preparation. Is there any ethical guidance on what’s in bounds and out of bounds?
April 15, 2026 Issue – Potential Waiver of Multiple Bidder Conflict
Q: Dear Ethics Lawyer, I am a banking lawyer who frequently handles acquisitions of banks or branches of banks. Recently, a family-owned bank group in our region has quietly let it be known that it would entertain offers to sell. One of our clients, let’s call them Bank A, contacted me a few days ago to assist them in preparing the legal documents for a bid to purchase it involving a combination of cash and stock. Today another prospective client, Bank B, has contacted one of my partners to assist them in preparing a bid.
I seem to recall from one of your prior columns that this could be a conflict. If so, can’t we just get waivers from both bank groups to allow us to use separate teams of lawyers to assist each bid, each walled off from the other? We won’t be advising on the amount of either bid; our role in each will simply be to prepare a legal offering package, and if successful (in which case, we’d only be representing one of them), the acquisition documents.
April 1, 2026 Issue – Conflicts When Undermining Prior Work
Q: Dear Ethics Lawyer, Our firm represented a nearby city in a nuisance claim against the operator of a quarry, arising from its heavy truck traffic. A settlement was reached, by which the quarry operator agreed to allow the City to designate the route its trucks could travel to and from the quarry. Time has passed, and now we’ve been asked to represent several individuals who own land along the designated route to bring a nuisance action against the quarry operator related to the truck traffic. Our former client City would not be a party, and our new clients would be adverse to the same quarry operator we were adverse to before when representing the City. It seems like we’re on the same side as before. Is there any conflict issue here?
Continue Reading April 1, 2026 Issue – Conflicts When Undermining Prior WorkMarch 16, 2026 Issue – Conflict from Representing Multiple Witnesses
Q: Dear Ethics Lawyer, I have been asked to advise and represent a witness who has been subpoenaed to testify in a civil trial in which her employer is being sued for breach of contract by another business entity who was a party to the contract. I performed a conflict check through our firm’s system and learned that another lawyer in our firm is representing a different witness who is on the parties’ witness list in the same proceeding. Neither of these individuals has a claim against them and neither is making a claim against any of the parties or the other witness. Could there be a conflict here? How do I analyze this?
Continue Reading March 16, 2026 Issue – Conflict from Representing Multiple Witnesses