Q: Dear Ethics Lawyer, I have contacts with a trade association which has asked me to present two seminars a year and to prepare a monthly summary of significant legal developments for its members. In exchange, the association will endorse and recommend my firm to its members on its website and in member communications. May I enter into such an agreement?
Continue Reading March 15 Issue – Providing Services in Exchange for an Endorsement
March 1 Issue – Withdrawal Without Cause
Q: Dear Ethics Lawyer, I’ve undertaken the representation of a client in a series of business dealings. It turns out that the client is simply a jerk. He treats me and others with a lack of respect, and sometimes in a demeaning manner. That said, he always eventually follows my advice, although complaining about it, and promptly pays his bills. I can’t say that he has breached any obligations of our engagement letter agreement, and he has not asked me to do anything illegal or unethical, at least yet. I just don’t like him and am tired of working with him, as is the rest of my team.
We just started a new matter, but after another one of his rants today, I’ve had enough. Can we just quit representing him and withdraw from the matter, even though he hasn’t breached any obligations or done anything legally wrong?
February 15 Issue – Confidentiality of Closed Files
Q: Dear Ethics Lawyer, I represented a closely-held LLC in the sale of real estate. A story broke yesterday that the LLC’s principal is being investigated for various alleged frauds and tax evasion. Now, an IRS agent has made an unannounced visit wanting to talk to me about the transaction I was involved in, and asking to review at least the non-privileged information in our file. What should I do? What if, instead, I was served with a confidential grand jury subpoena that instructs me not to inform anyone about it?
Continue Reading February 15 Issue – Confidentiality of Closed FilesFebruary 1 Issue – Aggregate Settlement Issues in Joint Representation
Q: Dear Ethics Lawyer, A lawyer is representing the plaintiffs, six people injured to various extents in an industrial accident. Is it unethical for a defendant’s lawyer to extend an aggregate settlement offer to settle all the cases on an all or nothing basis? Must the plaintiffs’ lawyer withdraw from representing the multiple plaintiffs when an aggregate settlement offer is received if it would be difficult to obtain agreement of the amounts that each should receive?
Continue Reading February 1 Issue – Aggregate Settlement Issues in Joint RepresentationJanuary 16 Issue – Waiver of Conflict When Matter is Highly Confidential
Q: Dear Ethics Lawyer, Our firm is currently advising Client A on whether a product it is developing would infringe a patent held by Competitor B. B has now asked a lawyer with the firm to represent it in an unrelated breach of contract lawsuit brought by one of its distributors. Can this conflict be waived?
Continue Reading January 16 Issue – Waiver of Conflict When Matter is Highly ConfidentialJanuary 2 Issue – Case Settled Based on Client Hiding Documents
Q: Dear Ethics Lawyer, We recently mediated a litigation matter for a demanding and difficult client whom I was happy to put in the rearview mirror. This morning, a couple of days after the settlement agreement was signed, and the client’s check conveyed, I ran into the client at a coffee shop. He pulled me aside and said he was really happy to have settled the case so easily, because (looking sheepish) it could have gone so much worse for him had the other side learned about some bad documents that he had kept in his drawer and not produced.
Shocked, I told the client we’d never work for him again, and that I’d have to consider what to do about his disclosure. He immediately said that I should do nothing because what he told me about the documents being withheld was privileged and confidential, and besides the matter was over now. Back at my office, I checked the status of the Order of Dismissal agreed to as part of the settlement. I learned that it has been submitted to the Court for signature, but has not yet been signed or filed. Do I have any obligation to do anything? Does the attorney-client privilege or Rule 1.6 mean I cannot reveal the client’s admission? Can I or should I tell anyone?
December 15 Issue – Acting in Emergency Without Expertise
Q: Dear Ethics Lawyer, I am an in-house corporate lawyer for a multinational agricultural products company. I was grinding away at 6 pm one evening when I received a call from a business colleague based internationally, with whom I have worked before. She explains that she is negotiating a license agreement to obtain rights to manufacture and sell some incredible new technology in the United States. She has an e-mail from the other party with the proposed form of licensing agreement. She tells me that the deal must be agreed upon in the next 12 hours or it will be lost to another bidder. Apparently she has been out of the office with an illness and had overlooked the email until just now. She wants me to review the proposed agreement immediately and advise her, but I’ve never done this before. She and I tried but were unable to reach an IP lawyer.
What do I do? I suppose my review is better than no legal review, but this is out of my area.
December 1 Issue – Subordinate Lawyer
Q: Dear Ethics Lawyer, I am an associate working with a partner on a substantial matter. The client has asked for advice concerning the potential exposure and whether it should be estimated and disclosed as a material matter to audit personnel working on the company’s financial statements. The partner believes strongly that the matter is sufficiently speculative that it need not be disclosed. However, I believe that, although arguable, the partner is wrong and that a failure to disclose the matter would cause the client to misstate its contingent liabilities. The partner considered my position, but rejected it and has determined to advise the client based on his position. What may or must I do under the ethics rules?
Continue Reading December 1 Issue – Subordinate LawyerNovember 15 Issue – Unprofessional Relationships with Clients
Q: Dear Ethics Lawyer, I have a delicate question. I have always had a good relationship with my in-house contact for a long standing corporate client, but recently it’s taken a turn – a mutual attraction has arisen. I find myself drawn to this person, engaging in extended conversations and complimenting them on their appearance as well as how they are handling matters. Some of our meetings have been over dinner, and some of our conversations have become a bit flirty. Then last night, as we were texting each other, the client representative asked if I would be interested in getting together personally sometime, and sent me a sexually revealing picture. I responded in kind, saying that would be nice and attaching a picture of my own. I am guessing that I may not be able to have an actual sexual relationship with the client representative while the representation continues, but has what I’ve done so far crossed any lines?
Continue Reading November 15 Issue – Unprofessional Relationships with ClientsNovember 1 Issue – Hiring Non-Lawyers
Q: Dear Ethics Lawyer, I have a hiring question that I don’t think is covered by the rules. We want to hire a new LAA, and I’m talking to one at another law firm. I have no way of knowing or identifying if the LAA is or has supported any lawyer at the LAA’s current firm who is or has been on the other side of any lawyer at our firm, especially in matters that aren’t in court. My friend says that it doesn’t matter – that the Rules of Professional Conduct don’t apply to administrative assistants, they apply only to lawyers. Is that right? Do we have any duties here?
Continue Reading November 1 Issue – Hiring Non-Lawyers