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

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Q: Dear Ethics Lawyer, Our firm represented a nearby city in a nuisance claim against the operator of a quarry, arising from its heavy truck traffic. A settlement was reached, by which the quarry operator agreed to allow the City to designate the route its trucks could travel to and from the quarry. Time has passed, and now we’ve been asked to represent several individuals who own land along the designated route to bring a nuisance action against the quarry operator related to the truck traffic. Our former client City would not be a party, and our new clients would be adverse to the same quarry operator we were adverse to before when representing the City. It seems like we’re on the same side as before. Is there any conflict issue here?

Continue Reading April 1 Issue – Conflicts When Undermining Prior Work

Q: Dear Ethics Lawyer, I have been asked to advise and represent a witness who has been subpoenaed to testify in a civil trial in which her employer is being sued for breach of contract by another business entity who was a party to the contract. I performed a conflict check through our firm’s system and learned that another lawyer in our firm is representing a different witness who is on the parties’ witness list in the same proceeding. Neither of these individuals has a claim against them and neither is making a claim against any of the parties or the other witness. Could there be a conflict here? How do I analyze this?

Continue Reading March 16 Issue – Conflict from Representing Multiple Witnesses

Q: Dear Ethics Lawyer,
I thought AI was supposed to make the provision of legal service more efficient and effective, to the benefit of both lawyers and clients. But now I hear about the Heppner decision from New York, and how the use of GenAI may destroy attorney-client privilege and work product. What do I need to know about this? What should I tell clients?

Continue Reading March 2 Issue – GenAI and Privilege

Q: Dear Ethics Lawyer, I have represented a client in litigation who has become very difficult. The client has admitted to withholding relevant documents that should be produced in discovery, and has instructed me not to acknowledge it or reveal it to the other side or the court. In addition, based upon conversations I’ve had privately with the client, I believe the client has been untruthful in deposition testimony, but refuses to correct that testimony. And to compound matters, the client has not paid our billings in six months.

I believe that I am required to withdraw from the representation under our state’s version of Rule 1.16(a)(1) and that I have a basis for permissive withdrawal under Rule 1.16(b)(2),(3),(4),(5) and (6). The client refuses to consent to the withdrawal. So how much of this can I put in the motion to withdraw in order to obtain court approval? I am mindful of the need to preserve client confidentiality under Rule 1.6, but continuing to represent this client would put me at serious risk of violating the law and the rules of professional conduct, and having the opposing party accuse me of conduct giving rise to liability.

Continue Reading February 16 Issue – Disclosure to Support Motion to Withdraw

Q: Dear Ethics Lawyer, We represented a difficult client in a litigation matter for a little over a year until it became apparent that they were not being truthful with us, and they also fell months behind on paying our fees. We withdrew from the representation after complying with applicable court rules as required by Model Rule 1.16(c) as adopted in our jurisdiction. Now, a few months later, we have received a demand from our former client to provide to new counsel they have engaged “a memorandum that includes a complete summary of all work we had performed; and all facts we had gathered, with citation and copies of sources; and legal arguments and strategies with case and statutory citation.” We understand we have some responsibility for “steps . . .reasonably practicable to protect a client’s interests,” as required by Model Rule 1.16(d), but this seems way beyond what is specified there. We are prepared to hand over the client file. But responding to this would require us to create an extensive memorandum, refreshing ourselves on matters we’ve set aside, and doing additional work—for free. What is our duty here?

Continue Reading February 2 Issue – Post-Withdrawal Duties