Q: Dear Ethics Lawyer, I am an associate general counsel in a corporate law department for Company A. Previously, I was a partner at a law firm in its corporate transactions practice group, advising and representing a number of clients, including one I will call Company B, about business contracts and sales and acquisitions of business units. Today, at one of our law department meetings, I learned that Company B is threatening to sue Company A, alleging that it has breached a contract that I drafted and negotiated for Company B a year before I went in-house. Is this a conflict issue for me? If so, is it an issue if someone else in the law department handles the matter?
Continue Reading November 3 Issue – Former Client Conflict of In-House LawyerThe 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
October 15 Issue – Gifts to Judges
By Mark Hinderks on
Q: Dear Ethics Lawyer, A state court judge is retiring after what seems like 105 years on the bench. A retirement party is scheduled to occur 3 days before the judge’s retirement becomes effective. A group of lawyers on behalf of the local bar is collecting money to buy tickets for a European vacation to present to the judge at the retirement party. As far as the Model Rules are concerned, may we contribute?
Continue Reading October 15 Issue – Gifts to JudgesOctober 1 Issue – General Commercial Transaction with Client
By Mark Hinderks on
Q: Dear Ethics Lawyer, Our firm represents a well-respected private equity fund company. I am a products liability lawyer and have not personally done legal work for this client. The company is now raising capital for a new fund and I would like to invest by accepting the terms of their offering, but I am concerned with the requirements of Model Rule 1.8(a) that appear to be triggered whenever a lawyer enters into a business transaction with a client. Do these requirements apply even though I don’t personally represent the client? Do they apply even though I am simply investing under the terms of an offer made to the market in general, i.e., there would be no negotiation about it?
Continue Reading October 1 Issue – General Commercial Transaction with ClientSeptember 15 Issue – Tribunal Under Rule 3.3
By Mark Hinderks on
Q: Dear Ethics Lawyer, I have a question about Model Rule 3.3 Candor to the Tribunal. I assisted a representative of a corporate client in testifying before a state legislative committee about an environmental matter. In follow-up conversations after the committee appearance, and with some additional investigation, I am concerned that the client spokesperson misrepresented the client’s lack of knowledge of an environmental condition of concern. Looking at Rule 3.3 (a)(3), it appears to me that if the legislative committee is a “tribunal,” I may have a duty to take “reasonable remedial measures” including, if necessary, disclosure of the falsity. Is a legislative committee a “tribunal” for this purpose? What are my obligations here?
Continue Reading September 15 Issue – Tribunal Under Rule 3.3September 2 Issue – Conflicts from Joint Defense Arrangement
By Mark Hinderks on
Q: Dear Ethics Lawyer, Our firm defended client X in a product liability suit in which other companies in the same industry were also defendants. The various defendants, including our client, entered into a written joint defense agreement and collaborated as a group on strategy, briefing and arguments in the matter. During discovery initiated by the plaintiff, we learned that our co-defendant Y had hired one of X’s engineers who had delivered to Y confidential and proprietary product designs of X, which Y had then used to improve its product. The product liability case has been settled, and now X would like our firm to pursue an action against Y and the former engineer for misappropriation of trade secrets and other claims relating to Y’s use of X’s intellectual property. We sent a demand letter to Y and its counsel responded, alleging that we have a conflict of interest because of our participation in the joint defense agreement with Y, and the relationship of product design at issue there to the similar issue that would be at issue in the new matter. Is this a problem for us?
Continue Reading September 2 Issue – Conflicts from Joint Defense ArrangementAugust 15 Issue – Trade Names for Law Firms
By Mark Hinderks on
Q: Dear Ethics Lawyer, I am one of four lawyers with a practice focus in technology and with difficult-to-spell or “not catchy” names, who are forming a firm. In a quandary over what to call this collection of fine legal talent in order to be able to effectively market our services, and with a flash of double meaning brilliance, we decided to name it “The IT Lawyers LLC.” Is this ethical?
Continue Reading August 15 Issue – Trade Names for Law FirmsAugust 1 Issue – Insurance Defense Conflicts
By Mark Hinderks on
Q: Dear Ethics Lawyer, A lawyer in our firm represents an insured as client pursuant to an arrangement with an insurance company under a policy that has a duty to defend the claim. Our firm has now been asked by another client to represent it adverse to the insurance company in a completely unrelated coverage dispute. May the firm do so without a waiver? What other ethical considerations apply?
Continue Reading August 1 Issue – Insurance Defense ConflictsJuly 15 Issue – Billing of Expenses
By Mark Hinderks on
Q: Dear Ethics Lawyer, For most engagements, our Firm charges a fee (hourly, fixed or contingent), plus certain expenses for travel, electronic legal research, large photocopy or scanning projects, overnight deliveries/couriers, outside vendors, etc., as specified in our engagement letter and an accompanying set of explanatory terms and conditions.
Our charges for these expense items seem to be within the range of what other firms charge, but I have no idea whether we are taking a loss, making a profit or breaking even on them. The expense tracking only gets more complicated because of costs depending on the volume of services and the allocation of expenses between clients that we incur in larger increments in contracts with vendors. If what we are charging is disclosed and agreed to in engagement letters, and is reasonable in comparison to what others charge, is this OK?
June 16 Issue – What is “Knowingly”
By Mark Hinderks on
Q: Dear Ethics Lawyer, I am a civil trial lawyer. I have a question about Rule 3.3 Candor to the Tribunal, which says that a lawyer shall not “knowingly” offer evidence that the lawyer knows to be false. On several occasions I have put a client witness on the stand whose testimony seems implausible in some regard, but I couldn’t prove it to be false, or have certainty that it was false. It makes me uncomfortable, but then again, sometimes the truth is stranger than fiction. Where is the line here? When do I “know” something to be false rather than just have a doubt or question about it?
Continue Reading June 16 Issue – What is “Knowingly”June 2 Issue – Ex parte Contracts
By Mark Hinderks on
Q: Dear Ethics Lawyer, A judge has had an important motion under advisement for 22 months. I fear he may have misplaced or forgotten about it and may need a prompt. My client is also quite impatient and does not understand the delay. May I call the judge, or stop by chambers to inquire if and when a decision will be made, or if anything additional is needed from the parties? Are there other approaches that are appropriate?
Continue Reading June 2 Issue – Ex parte Contracts