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 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 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 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 Issue – Ex Parte CommunicationsJune 18 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 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?
May 15 Issue – Potentially False Client Deposition Testimony
Q: Dear Ethics Lawyer, Today I defended a deposition of my client. Toward the end of today’s session, my client was asked a question that we were expecting and had specifically discussed in the preparation session. But, unexpectedly, the client gave an answer that is the opposite of what she said in our preparation. I don’t know which version is true, but obviously she either was untruthful one time or the other, or changed her story in a significant way. I need some quick advice before the deposition concludes a week from now. I certainly do not want to participate in untruthful testimony. Is there a possibility I would have to disclose my client’s change of answer? This is not a good place to be. What do I do?
Continue Reading May 15 Issue – Potentially False Client Deposition TestimonyMay 1 Issue – Representing Seller and Company Post-Sale of Company
Q: Dear Ethics Lawyer, You successfully represent a client in the sale of her Company for some serious money. It is a stock sale and the Company will continue to operate, but as a free-standing subsidiary of the Buyer. The stock purchase agreement contains an earn-out provision and representations and warranties that may or may not give rise to issues between the Seller client and the Buyer down the road. The Seller client will want your assistance on those matters if they arise. Meanwhile, because you are familiar with the Company and impressed Buyer in the sale, Buyer wants you to continue to represent the Company going forward. May you do both?
Continue Reading May 1 Issue – Representing Seller and Company Post-Sale of CompanyApril 15 Issue – Matchmaking Between Clients
Q: Dear Ethics Lawyer, I represent a client in connection with the planned sale of a local financial institution. The client believes that acquirer/investor interest in the sale will be primarily local/regional. It knows that our firm represents a number of the sorts of wealthy individuals and institutional players who may be interested and has asked me to share this opportunity. I am not aware of any reason doing so would be imprudent. What are the risks of doing this?
Continue Reading April 15 Issue – Matchmaking Between ClientsApril 1 Issue – Client as Adverse Witness in Different Matter
Q: Dear Ethics Lawyer, The name of a client in an unrelated matter is identified as a potential trial witness in litigation by an opposing party. Based on the general description of the nature of her testimony, it appears that she will be a material adverse witness and should be deposed. Would it be a conflict for me to take her deposition in the litigation given that our representation of her is unrelated? What about simply having an informal conversation with her about her anticipated testimony?
Continue Reading April 1 Issue – Client as Adverse Witness in Different Matter