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?
The twice-monthly “Dear Ethics Lawyer” column is part of a training regimen of the Legal Ethics Project, authored by Mark Hinderks, former managing partner and counsel to an AmLaw 200 firm. Read More
Miscellaneous
March 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?
December 1 Issue – Receipt of Unsolicited Information from Would-Be Clients
Q: Dear Ethics Lawyer, A potential client sent me an unsolicited email containing what she described as confidential information about a claim she has against an entity that turned out to be one of our firm’s existing clients. Our website says that we undertake no duties of confidentiality in the absence of an agreement, and that prospective clients should not send confidential information without our agreement. May I or the firm still defend our existing client in the resulting matter? May we use the information the prospective client sent me to do so?
Continue Reading December 1 Issue – Receipt of Unsolicited Information from Would-Be ClientsOctober 4 Issue – Local Counsel Ethical Obligations
Q: Dear Ethics Lawyer, I have been asked by a law firm from another city to serve as local counsel to them in a litigation matter. The law firm wants my agreement that they will do all the material work and will handle all communications with the client, that my responsibility is simply to file pleadings and briefs they produce, and stand by for any local practice questions. This will not be a big matter for me, but any business is business, and maybe it will lead to more. Do you see any issues with this?
Continue Reading October 4 Issue – Local Counsel Ethical ObligationsAugust 15 Issue – Duty to Correct False Testimony
Q: Dear Ethics Lawyer, In a confidential interview in connection with a civil case, one of my client’s corporate officers told me that she did not remember if she became aware of a critical accounting issue at the company before or after a sale of stock in question. At trial, you do not ask her about the matter on direct, but on cross examination by the opposing lawyer she testifies definitively that she is certain the issue only came to light after the stock sale. Do I have an obligation to disclose the client’s earlier statement to the court or the opponent? What do I do?
Continue Reading August 15 Issue – Duty to Correct False TestimonyMarch 15 Issue – Judicial Criticism
Q: Dear Ethics Lawyer, Because I’m an extremely hip lawyer… and will do it for free, StreamingCourtNews called me to video comment on a long-running celebrity case for its site. Perhaps getting carried away in the moment, I expressed the view that the judge seems to enjoy the limelight and could be providing unconstitutionally disparate treatment of the criminal defendant based upon how many TV cameras the defendant’s fame has attracted and the judge’s well-known ambition to be nominated for the appellate court. I realize this means I probably won’t find favor in this judge’s court in the future, but now I’m wondering, is this something I could actually be disciplined for?
Continue Reading March 15 Issue – Judicial CriticismNovember 15 Issue – Choice of Law
Q: Dear Ethics Lawyer, You have been telling us for years that we have to check the version of the Model Rules in effect wherever we are admitted, or where a case or transaction is, where we are proposing to do various things, or where our client is, i.e., that the rules are often different in different states. I’ve got that. But how do we know, when the rules are different between two states, which state’s law applies? If they are inconsistent in a way that means we can’t comply with both, are we simply up the proverbial creek without an ethical paddle? Is there any guidance out there?
Continue Reading November 15 Issue – Choice of Law