Q: Dear Ethics Lawyer, I am a civil trial lawyer. I have a question about Rule 3.3 Candor to the Tribunal, which says that a lawyer shall not “knowingly” offer evidence that the lawyer knows to be false. On several occasions I have put a client witness on the stand whose testimony seems implausible in some regard, but I couldn’t prove it to be false, or have certainty that it was false. It makes me uncomfortable, but then again, sometimes the truth is stranger than fiction. Where is the line here? When do I “know” something to be false rather than just have a doubt or question about it?
Continue Reading June 16 Issue – What is “Knowingly”
June 2 Issue – Ex parte Contracts
Q: Dear Ethics Lawyer, A judge has had an important motion under advisement for 22 months. I fear he may have misplaced or forgotten about it and may need a prompt. My client is also quite impatient and does not understand the delay. May I call the judge, or stop by chambers to inquire if and when a decision will be made, or if anything additional is needed from the parties? Are there other approaches that are appropriate?
Continue Reading June 2 Issue – Ex parte ContractsMay 15 Issue – Withdrawal and the Hot Potato Doctrine
Q: Dear Ethics Lawyer, I have an opportunity to land a new corporate client that is very active in a number of practice areas (acquisitions, regulatory issues, litigation, etc.). This would be a game-changer for me and for our firm, generating millions and keeping many people busy.
Unfortunately, when I ran a conflict check, it appears that our firm is adverse to the prospective new client in a relatively small litigation matter for an existing client. The existing client has never generated more than $25,000 per year in revenue for the firm. Assuming the existing client would not be prejudiced by a change of counsel, can we simply help find that client new counsel, arrange an orderly transition at our expense, withdraw from the existing relationship to avoid a current client conflict, and then proceed to represent the new client on unrelated new matters?
May 1 Issue – Gifts for Referral
Q: Dear Ethics Lawyer, My good client Johnson recommended me to another prospect who has hired me for a major case. Can I properly give Johnson a nice gift certificate as a “thank you” for his recommendation?
Continue Reading May 1 Issue – Gifts for ReferralApril 15 Issue – Obligation to Disclose Client Intention to Commit Fraud
Q: Dear Ethics Lawyer, I am a tax lawyer with an accounting background. I practice in a smaller community and advise businesses on tax matters, as well as preparing tax returns for some of them. Today is the day that returns are due, and I have a dilemma concerning one of these clients. The owner of the business client has loaned several hundred thousand dollars from the business to his daughter, which she is using to start her own business. The loan is documented and she has been making payments on it, including interest, during the past year.
My client insists that these payments are an “informal family matter” that the IRS would never find out about, and does not want to include them as taxable income for purposes of the business’s return. I have advised him that it is income that he is obligated to report, but he refuses to do so. What are my obligations? I do not wish to participate in tax fraud, but also do not want to breach an obligation to the client.
April 1 Issue – Relationship with Client Constituent
Q: Dear Ethics Lawyer, I am a lawyer who represents businesses in corporate transactions. For the last few weeks, I have been going out with a law school classmate. Initially it was just as friends, but the last couple of times, there was a spark that made this feel more like dating. We have gone slowly and have not engaged in a fully intimate relationship yet, although I’m hoping that is where things are going. I think my former classmate feels the same way.
Last night my dating partner called to announce that they have been offered a dream job working within the law department of my biggest client. What do we do now? Does this mean that under the ethics rules we have to put a freeze on our relationship unless I stop representing the client? And if there is an issue here, does it extend to disqualify the rest of my firm from representing this client?
March 17 Issue – Privileged Information within Company
Q: Dear Ethics Lawyer, I am in-house counsel for a company, and field a steady stream of requests for legal advice from various business department heads. In looking at internal emails, I am finding that often the advice I provide is then quoted, forwarded or otherwise relayed to subordinates of those business department heads, usually without the presence (in-person or by email) of myself or any other lawyer. Does this risk waiving the privilege protection for my advice?
Continue Reading March 17 Issue – Privileged Information within CompanyMarch 3 Issue – Representing an Opposing Lawyer
Q: Dear Ethics Lawyer, I am defending a huge piece of commercial litigation. I, and others in our firm, have been opposite to plaintiff’s counsel Jane Smith in a number of hard but well-fought cases and there is mutual respect. Smith has now approached me about retaining our firm to represent her in connection with an allegation that she has employed an illegal immigrant. While unrelated to anything we are in litigation over for other clients, are there conflict issues here?
Continue Reading March 3 Issue – Representing an Opposing LawyerFebruary 17 Issue – Duties Re Mis-Performing Staff
Q: Dear Ethics Lawyer, I am mid-level partner at a firm with an active litigation practice. I use paralegals a fair amount for various tasks and have always had pretty good experiences with them, but I am not responsible for hiring and firing them, and am not in management at the firm. Recently I used a new paralegal for some work, who happens to be a distant relative of one of our practice leaders and had a bad experience. He didn’t seem to know what he was doing as to a fairly standard task, and I felt like he told me he had completed tasks that he had not done. I don’t want to rock the boat, so I plan to not use this paralegal again, and let other people form their own opinions. Given my role at the firm, this isn’t a problem is it?
Continue Reading February 17 Issue – Duties Re Mis-Performing StaffFebruary 3 Issue – Joint Representation/Aggregate Settlement
Q: Dear Ethics Lawyer, I represent co-defendants in a suit for misappropriation of trade secrets. The plaintiff has offered to settle for a total sum of $1 million. Although both defendants were involved, it appears from the evidence that the plaintiff has a very good case on damages against one but not the other. What are my obligations in presenting the settlement demand to the clients? Should I have thought of this in the engagement process? What do I do now?
Continue Reading February 3 Issue – Joint Representation/Aggregate Settlement