Q: Dear Ethics Lawyer, I am an attorney for a company desiring to complete a relatively small real estate transaction with an individual to facilitate a larger development. In order to complete the transaction, the individual needs to document an agreement she has with a third party by which the third party will release their interest. In order to make this happen, she asked me if I could draft a writing to reflect the agreement between her and the third party, that she can then get signed. My client company doesn’t mind. Can I do it and if so under what circumstances?
Continue Reading May 15 Issue – Drafting Document for Adverse Party to Use
May 1 Issue – Advance Waiver Commercial Parties
Q: Dear Ethics Lawyer, My firm currently represents two sophisticated commercial parties: client A on tax matters and client B in environmental work. Our firm’s engagement letter with each contains a paragraph providing for an advance waiver of conflicts for matters that are unrelated to the engagement. A and B now desire to enter into an asset purchase/sale unrelated to any work done by our firm for either one. A has already secured different counsel. May our firm advise B in the transaction? Are there any additional requirements or disclosures that must be made?
Continue Reading May 1 Issue – Advance Waiver Commercial PartiesApril 18 Issue – Conflicts from Family Relationships
Q: Dear Ethics Lawyer, I am a litigation partner in a firm. My daughter and niece graduated from law school together, and they have now gone to work for separate local litigation boutiques. A large multi-party case was recently filed against a number of defendants, including one of my firm’s clients. Most local law firms have become involved. In a quirk of coincidence, my daughter, my niece and I have each entered appearances for defendants, which have cross-claimed against each other. Do I have a conflict appearing as counsel in the action in which my daughter and niece are on opposing legal teams if they are not the lead? Does this situation result in Rule 1.10(a) imputed disqualification of any of the firms?
Continue Reading April 18 Issue – Conflicts from Family RelationshipsApril 3 Issue – Choice of Law in Multi-State Ethics Issues
Q: Dear Ethics Lawyer, I am responsible for growth at a law firm based in States A and B. I have recruited a group of lawyers from another firm who would join our State A office, and we are currently working through conflict issues. Two of these issues relate to which state’s rules apply, specifically because State A has adopted the current version of Model Rule 1.10(a)(2) which allows screening (with certain notices and certifications) to remove imputation of an incoming lateral lawyer’s conflicts arising from association with a prior firm, while State B has a version of Rule 1.10 that does not permit screening to do so, without express consent of the affected clients.
The first issue in this context is a litigation matter in State A for a State B client of our firm currently being handled by Lawyer A of our State A office adverse to a State B client of a lawyer from the firm the laterals would come from. The second issue relates to a transactional matter being handled by Lawyer B (licensed in both States A and B) of our firm’s office in State B, for a client in State B, adverse to a State A client of the laterals’ firm. In both circumstances, the other firm’s client would be Rule 1.9(b) former clients of one or more of those laterals who acquired confidential information related to the matters. See Rule 1.9(b)(2). Therefore, given the versions of Rule 1.10 in effect in the two states, screening without client consent would work if State A Rules apply, but would not work if State B’s Rules apply. This makes my head hurt – could you please help?
March 15 Issue – Settlement to Avoid Disclosing Client Fraud Lawyer Did Not Participate In
Q: Dear Ethics Lawyer, Our client was sued for breach of contract, and discovery requests were served with the complaint. I immediately reviewed relevant documents and determined that a constituent of the client had fraudulently entered the contract knowing it could not be performed, in order to boost sales figures upon which bonuses would be based on his way out the door. May we settle the case immediately for the full amount requested, or even confess judgment on the contract claim, in order not to reveal the fraud reflected in the internal documents that would otherwise have to be disclosed?
Continue Reading March 15 Issue – Settlement to Avoid Disclosing Client Fraud Lawyer Did Not Participate InMarch 1 Issue – Communication with Others in Non-Lawyer Capacity
Q: Dear Ethics Lawyer, I am in-house counsel in a growing company. However, as I rise in the ranks of my in-house position, I am gaining the confidence of others, and find myself being asked to attend more and more meetings as a business executive, not a lawyer. This has not been an issue for internal meetings as there is typically a clear delineation between when I’m raising business questions versus providing legal advice.
Recently, however, I was asked to attend an external meeting between a senior executive at my company and a senior executive at another company that we are thinking of doing business with. The senior executive made it clear that he was asking for my attendance as a business person and not as a lawyer because he wants to expand my business acumen/judgment. I am concerned because even though I’d be attending solely as a business person, my company role is as in-house counsel. The other company does not have in-house counsel and likely will not have legal representation at the meeting. Given the possible ethical issue of attending a meeting where the other party will not be represented by counsel, is there a way for me to attend (disclosure, etc.) without running afoul of the ethics rules or requiring the other company to have outside counsel attend?
February 15 Issue – Conflicts of Unclosed “General Files”
Q: Dear Ethics Lawyer, My firm has represented a wealthy family in estate planning matters for many years. In addition, for at least 25 years, the firm has represented a business owned by family members in a variety of general business matters for which time has been billed to a general file in the company’s name. The business has been in decline, and time was last billed to the company’s general file about a year ago, but the general file has never been closed. Can the firm now undertake an action adverse to the company if the substance of the action has nothing to do with any prior representation?
Continue Reading February 15 Issue – Conflicts of Unclosed “General Files”January 17 Issue – Representing an Organization
Q: Dear Ethics Lawyer, I am an in-house lawyer for a privately held construction company that has recently completed a successful private placement. The CFO came to me with a problem. Shortly before the private offering memorandum was finalized, he received a report from the team on a large international project, labeled as “Preliminary” but indicating that progress was outstanding and projecting substantial profits. The CFO provided the report to the CEO without the “Preliminary” label. Conclusions from the report were used in the offering memorandum.
The CFO says he knew there was some risk in doing this, but also knew the company needed the private offering to be successful and did not believe that the results would materially change. It now appears that those results had been substantially overstated to coincide with our compensation schedule and to pump up bonuses of project management leadership. The CFO says that given a little time the project may well be managed to profitability and an on-time completion. But, he is concerned that he may be fired or exposed to liability and wants my advice as to how he can best stay out of hot water. What are my ethical obligations here?
January 3 Issue – Publishing Information about Client Represenation
Q: Dear Ethics Lawyer, As 2023 begins, I’ve reflected on the fact that I’ve represented some bizarre people and dysfunctional companies over the years, and I’ve got some great stories. If I wrote a book about some of these stories (juicing them up just a bit) I’d be able to pay for my retirement and enhance my reputation as a really successful lawyer.
I know I shouldn’t breach client confidences, but the longest statute of limitation and the statute of repose in my state are both ten years, and some of my stories are about people who are now dead or who are no longer with their corporate clients. What if I only use stories that (a) are from over ten years ago; (b) involve dead people who probably no longer care, (c) involve people who are no longer with a corporate client; or (d) are total fabrications?
December 15 Issue – Estate Planning – Gifts to Lawyer or Family Members
Q: Dear Ethics Lawyer, My best friend asked me to prepare an estate plan for her giving various family members substantial gifts. With gratitude for our friendship she also wishes to bequeath my daughter, her goddaughter, a first edition book of philosopher Jeremy Bentham, whom she knows is one of her favorites. She will sign a written waiver of any conflict and confirming that she had the opportunity to seek advice of other counsel. May I do this under the ethical rules?
Continue Reading December 15 Issue – Estate Planning – Gifts to Lawyer or Family Members