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 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 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 Issue – Conflicts When Undermining Prior WorkMarch 16 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 Issue – Conflict from Representing Multiple WitnessesMarch 2 Issue – GenAI and Privilege
Q: Dear Ethics Lawyer,
I thought AI was supposed to make the provision of legal service more efficient and effective, to the benefit of both lawyers and clients. But now I hear about the Heppner decision from New York, and how the use of GenAI may destroy attorney-client privilege and work product. What do I need to know about this? What should I tell clients?
February 16 Issue – Disclosure to Support Motion to Withdraw
Q: Dear Ethics Lawyer, I have represented a client in litigation who has become very difficult. The client has admitted to withholding relevant documents that should be produced in discovery, and has instructed me not to acknowledge it or reveal it to the other side or the court. In addition, based upon conversations I’ve had privately with the client, I believe the client has been untruthful in deposition testimony, but refuses to correct that testimony. And to compound matters, the client has not paid our billings in six months.
I believe that I am required to withdraw from the representation under our state’s version of Rule 1.16(a)(1) and that I have a basis for permissive withdrawal under Rule 1.16(b)(2),(3),(4),(5) and (6). The client refuses to consent to the withdrawal. So how much of this can I put in the motion to withdraw in order to obtain court approval? I am mindful of the need to preserve client confidentiality under Rule 1.6, but continuing to represent this client would put me at serious risk of violating the law and the rules of professional conduct, and having the opposing party accuse me of conduct giving rise to liability.
February 2 Issue – Post-Withdrawal Duties
Q: Dear Ethics Lawyer, We represented a difficult client in a litigation matter for a little over a year until it became apparent that they were not being truthful with us, and they also fell months behind on paying our fees. We withdrew from the representation after complying with applicable court rules as required by Model Rule 1.16(c) as adopted in our jurisdiction. Now, a few months later, we have received a demand from our former client to provide to new counsel they have engaged “a memorandum that includes a complete summary of all work we had performed; and all facts we had gathered, with citation and copies of sources; and legal arguments and strategies with case and statutory citation.” We understand we have some responsibility for “steps . . .reasonably practicable to protect a client’s interests,” as required by Model Rule 1.16(d), but this seems way beyond what is specified there. We are prepared to hand over the client file. But responding to this would require us to create an extensive memorandum, refreshing ourselves on matters we’ve set aside, and doing additional work—for free. What is our duty here?
Continue Reading February 2 Issue – Post-Withdrawal DutiesJanuary 15 Issue – Positional Conflicts
Q: Dear Ethics Lawyer, I am handling a significant case in which I am preparing to argue to a federal district court in our state that a state law cause of action against our client under relatively recent legislation is preempted by federal law. I’ve just learned that one of my partners in the firm is coincidentally preparing to argue in state court on behalf of a different client that preemption does not apply.
I discovered this by accident, given that our firm (similar to other firms) does not track the specific legal arguments being made over time in individual cases as part of its conflict-checking system. Now that I know about it, what do I do? Is this an actual conflict, or something that will just be difficult to explain to the clients if they find out we are arguing both sides of the same argument at the same time?
January 2 Issue – Using AI to Summarize Client Video Meetings
Q: Dear Ethics Lawyer, I am a terrible notetaker, especially in video calls with clients as I concentrate on the conversation rather than what I am noting. I understand that the usual video services offer AI summarization of the meetings. This sounds great, but are there ethical issues? What about if a client is using this service from their side of the conversation? Does that create issues?
Continue Reading January 2 Issue – Using AI to Summarize Client Video MeetingsDecember 15 Issue – Conflict with Former Client of Departed Lawyer
Q: Dear Ethics Lawyer, I represented a company let’s call Acme Rocket Cycle Co. while at a firm let’s call Wolf, Wolf and Coyote. I left the firm and took client Acme with me. Only I did any work for Acme while at the firm. May my old firm now represent their client Roadrunner, adverse to Acme, in a new matter that is not related to any matter I handled while at Wolf, Wolf and Coyote?
Continue Reading December 15 Issue – Conflict with Former Client of Departed Lawyer