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

Q: Dear Ethics Lawyer, I have an opportunity to land a new corporate client that is very active in a number of practice areas (acquisitions, regulatory issues, litigation, etc.). This would be a game-changer for me and for our firm, generating millions and keeping many people busy.

Unfortunately, when I ran a conflict check, it appears that our firm is adverse to the prospective new client in a relatively small litigation matter for an existing client. The existing client has never generated more than $25,000 per year in revenue for the firm. Assuming the existing client would not be prejudiced by a change of counsel, can we simply help find that client new counsel, arrange an orderly transition at our expense, withdraw from the existing relationship to avoid a current client conflict, and then proceed to represent the new client on unrelated new matters?

Continue Reading May 15 Issue – Withdrawal and the Hot Potato Doctrine

Q: Dear Ethics Lawyer, I am a tax lawyer with an accounting background. I practice in a smaller community and advise businesses on tax matters, as well as preparing tax returns for some of them. Today is the day that returns are due, and I have a dilemma concerning one of these clients. The owner of the business client has loaned several hundred thousand dollars from the business to his daughter, which she is using to start her own business. The loan is documented and she has been making payments on it, including interest, during the past year.

My client insists that these payments are an “informal family matter” that the IRS would never find out about, and does not want to include them as taxable income for purposes of the business’s return. I have advised him that it is income that he is obligated to report, but he refuses to do so. What are my obligations? I do not wish to participate in tax fraud, but also do not want to breach an obligation to the client.

Continue Reading April 15 Issue – Obligation to Disclose Client Intention to Commit Fraud

Q: Dear Ethics Lawyer, I am a lawyer who represents businesses in corporate transactions. For the last few weeks, I have been going out with a law school classmate. Initially it was just as friends, but the last couple of times, there was a spark that made this feel more like dating. We have gone slowly and have not engaged in a fully intimate relationship yet, although I’m hoping that is where things are going. I think my former classmate feels the same way.

Last night my dating partner called to announce that they have been offered a dream job working within the law department of my biggest client. What do we do now? Does this mean that under the ethics rules we have to put a freeze on our relationship unless I stop representing the client? And if there is an issue here, does it extend to disqualify the rest of my firm from representing this client?

Continue Reading April 1 Issue – Relationship with Client Constituent

Q: Dear Ethics Lawyer, I am in-house counsel for a company, and field a steady stream of requests for legal advice from various business department heads. In looking at internal emails, I am finding that often the advice I provide is then quoted, forwarded or otherwise relayed to subordinates of those business department heads, usually without the presence (in-person or by email) of myself or any other lawyer. Does this risk waiving the privilege protection for my advice?

Continue Reading March 17 Issue – Privileged Information within Company

Q: Dear Ethics Lawyer, I am defending a huge piece of commercial litigation. I, and others in our firm, have been opposite to plaintiff’s counsel Jane Smith in a number of hard but well-fought cases and there is mutual respect. Smith has now approached me about retaining our firm to represent her in connection with an allegation that she has employed an illegal immigrant. While unrelated to anything we are in litigation over for other clients, are there conflict issues here?

Continue Reading March 3 Issue – Representing an Opposing Lawyer

Q: Dear Ethics Lawyer, I am mid-level partner at a firm with an active litigation practice. I use paralegals a fair amount for various tasks and have always had pretty good experiences with them, but I am not responsible for hiring and firing them, and am not in management at the firm. Recently I used a new paralegal for some work, who happens to be a distant relative of one of our practice leaders and had a bad experience. He didn’t seem to know what he was doing as to a fairly standard task, and I felt like he told me he had completed tasks that he had not done. I don’t want to rock the boat, so I plan to not use this paralegal again, and let other people form their own opinions. Given my role at the firm, this isn’t a problem is it?

Continue Reading February 17 Issue – Duties Re Mis-Performing Staff

Q: Dear Ethics Lawyer, I represent co-defendants in a suit for misappropriation of trade secrets. The plaintiff has offered to settle for a total sum of $1 million. Although both defendants were involved, it appears from the evidence that the plaintiff has a very good case on damages against one but not the other. What are my obligations in presenting the settlement demand to the clients? Should I have thought of this in the engagement process? What do I do now?

Continue Reading February 3 Issue – Joint Representation/Aggregate Settlement

Q: Dear Ethics Lawyer, Many of our vendors have a provision in their agreements limiting their liability related to their work to the amount of their fee, or to some other capped limit. Could we insert a similar provision in our standard form of engagement letter? For example, our firm has a primary malpractice insurance limit of $25 million. Could we include in our engagement letter a provision disclosing that, and limiting our liability for malpractice to the amount of our insurance?

Continue Reading January 15 Issue – Agreements Limiting Liability

Q: Dear Ethics Lawyer, If I truly believe it to be the case, can I properly tell a prospective client that I am confident that I will provide legal service as good or better than any other lawyer in my city? Or have I been watching too many cheesy lawyer ads on television?

Continue Reading January 2 Issue – Comparison Statements About Lawyer Service