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, 2024 Issue – Potentially False Client Deposition Testimony
May 1, 2024 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, 2024 Issue – Representing Seller and Company Post-Sale of CompanyApril 15, 2024 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, 2024 Issue – Matchmaking Between ClientsApril 1, 2024 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, 2024 Issue – Client as Adverse Witness in Different MatterMarch 15, 2024 Issue – Providing Services in Exchange for an Endorsement
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, 2024 Issue – Providing Services in Exchange for an EndorsementMarch 1, 2024 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, 2024 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, 2024 Issue – Confidentiality of Closed FilesFebruary 1, 2024 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, 2024 Issue – Aggregate Settlement Issues in Joint RepresentationJanuary 16, 2024 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, 2024 Issue – Waiver of Conflict When Matter is Highly ConfidentialJanuary 2, 2024 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?