Q: Dear Ethics Lawyer, I represent a company in an effort to settle an employee’s discrimination claim. The employee’s lawyer seems to be on a crusade against the company, and appears to have no interest in settlement. Her strategy is to seek to try the matter in order to boost her profile for other cases, whether or not that is in her client’s best interests. The company suspects she is not adequately communicating with her client about its position and generous offer. My client contact has always had a good relationship with the employee and wants me to prepare specific talking points to use to approach the employee directly. May I do so?
Continue Reading October 15, 2024 Issue – Scripting Communications for Client with Adverse Party
October 1, 2024 Issue – Permissive Withdrawal
Q: Dear Ethics Lawyer, I am representing a client in a transaction. The client is extraordinarily difficult and wants to argue about everything, but he is not doing anything illegal or fraudulent and has not asked me to do anything unethical. He has also fallen three months behind on paying his bills and routinely asserts, without basis, that we are not doing a very good job of representing him. Life’s too short—can we just withdraw?
Continue Reading October 1, 2024 Issue – Permissive WithdrawalSeptember 16, 2024 Issue – Direct Solicitation
Q: Dear Ethics Lawyer, A new business has moved into my area of practice and opened a substantial facility. I am very knowledgeable about an area of law they are involved in, and believe I can provide them with effective service. Is it ethical for me to cold-call the President of the company to invite her to lunch to discuss my expertise and their legal needs? Alternatively, can I write the President to explain and offer my services?
Continue Reading September 16, 2024 Issue – Direct SolicitationSeptember 3, 2024 Issue – Lawyer as Witness
Q: Dear Ethics Lawyer, Last year, I negotiated a complex and lengthy contract for a client. The client has now been sued for breach of the contract. The case will turn on a pivotal issue of contract interpretation and the intent of the parties. The client will likely want me to be a witness as I was part of all the dealings with the other side. Can our firm defend the suit? What if my recollection of the negotiations differs substantially from our client’s on a critical issue?
Continue Reading September 3, 2024 Issue – Lawyer as WitnessAugust 15, 2024 Issue – Conflict from Inadvertent Attorney Client Relationship
Q: Dear Ethics Lawyer, My no-good brother-in-law has been fired, again. I know this because after downing his customary six-pack of Old Milwaukee at a family barbecue, he gave me all the excruciating details, including his view that he was fired because of his age and some younger workers brought in, although he did concede that he might not have worked very hard.
I listened as politely as I could to this tale of woe. When at the end of it all, he asked what he should do about a discrimination claim, I told him somewhat absent-mindedly that his recourse would be to file a discrimination charge against his employer with the EEOC. I never discussed representing him. Now, months later, I see a conflicts check request at our firm showing his former employer as an existing client of the firm, and my brother-in-law as the adverse party. The nature of the matter? Defend an age discrimination charge, of course. I would not be involved in the matter, but does my firm have a conflict here?
August 1, 2024 Issue – Gen AI ABA Formal Op. 512
Q: Dear Ethics Lawyer, I have the luck/misfortune to lead a medium-sized firm. For a while now, all the buzz has been about AI and Generative AI. The talk is seemingly split between cautionary tales about how one shouldn’t use Gen AI because of various ethical and malpractice concerns; and talk about how those firms that don’t adopt it will be failing ethical obligations to serve their clients more efficiently, and will also be left in the dust by their competitors to boot.
What are our ethical obligations? And to the extent we do invest in Gen AI, and serve our clients at less cost to them and more to us, how do we ethically charge for that? Also, if increased efficiency means billing fewer hours, have technology companies just taken over another piece of our business?
July 15, 2024 Issue – Ownership of Client File Materials
Q: Dear Ethics Lawyer, Occasionally, we have clients who request that we send them their files, either because the matter is completed, or because for one reason or another they are moving their representation to another law firm. I’ve also discovered that we are storing a massive amount of closed client files, at considerable cost, and I’d like to return as many of these files to clients as possible (whether we can destroy old files for which we cannot locate the client is a question for another day).
In thinking about these things, however, I am stuck on questions relating to what parts of the client matter files belong to and must be returned to clients, and what parts belong to us? Model Rules 1.15 and 1.16 do not appear to provide specific guidance.
July 1, 2024 Issue – Ex Parte Communications
Q: Dear Ethics Lawyer, Yesterday I received findings of fact and conclusions of law in which the judge in a court-tried case decided against our client. This morning, I received a copy of an e-mail to the judge from opposing counsel congratulating the judge on what she characterized as a scholarly decision and bemoaning the fact that the judge was recently passed over for an appellate court appointment. I believe from the tone and content of the email that this was sent to me by mistake, and it was actually intended as a private message. Was this an improper ex parte communication? Do I have obligation to report this conduct?
Continue Reading July 1, 2024 Issue – Ex Parte CommunicationsJune 18, 2024 Issue – Financial Assistance to Litigation Clients
Q: Dear Ethics Lawyer, I have a litigation practice centered on representing clients in a very low income area. Some of the clients have at least modest means, but are unable to fund the costs and expenses of litigation, and for those who have good cases I usually take matters on a contingent fee basis, advancing the costs and expenses of litigation, contingent (along with my fee) on the outcome. There are other clients whose needs are a bit more challenging, because an injury or housing displacement has disrupted their ability to handle normal living expenses. For these clients, in addition to advancing the costs and expense of litigation, I’d like to provide them with some financial assistance that would enable them to feed and house their family during the course of the litigation. Ethically, can I do this?
Also, I have a related set of questions. I volunteer at and serve on the Board of a neighborhood legal clinic run by a public interest organization, where we represent indigent clients in litigation matters on a pro bono basis. Are we able to advance or pay the costs and expenses of litigation in this context? Could we also advance or provide living expenses to these clients?
June 3, 2024 Issue – Responsive Document Discovered Post Settlement
Q: Dear Ethics Lawyer, Not long after reaching a settlement agreement at mediation, but before the case is officially dismissed, our client discovered a cache of additional material documents responsive to discovery requests, that were not timely produced. The client does not wish to disclose them now because of the settlement agreement, saying that the case is now over with the negotiated resolution.
But the client did come forward to disclose the discovery to us as counsel. It is clear to us from the circumstances that the client did not know of the documents until the recent discovery, and acted in good faith in connection with the earlier production. May or must we make a disclosure to the opposing party, or the court?