Q: Dear Ethics Lawyer, I just received an email from an opposing lawyer with whom I’ve been negotiating a deal. It looks like he may have inadvertently hit “reply” rather than “forward,” as he appears to be talking to a business person at his client.
Before I realized that it was not meant for me, I read his recommendation that the client accept our offer, given problems with the validity of certain patents on assets involved. I’m confused on my obligations – at one time there was an ABA opinion that I think said I couldn’t keep or use this information. Is that still the rule? Am I supposed to destroy or delete this now? Do I tell him I received it? Can I and should I pass the info along to my client (it’s pretty material to their deal)?
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
October 17 Issue – Discovery of a Completed Fraud
By Mark Hinderks on
Q: Dear Ethics Lawyer, I represented a party selling an industrial property. After the conclusion of the transaction, I discovered, while reviewing records of the client for a different purpose, that the client made a misrepresentation concerning a material condition of the property that was sold. What may and should I do?
Continue Reading October 17 Issue – Discovery of a Completed FraudOctober 4 Issue – Local Counsel Ethical Obligations
By Mark Hinderks on
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 ObligationsSeptember 15 Issue – Negotiation Ethics
By Mark Hinderks on
Q: Dear Ethics Lawyer, I am a business lawyer negotiating with an opponent over the price to acquire a non-public company. May I state that the business is only worth $10 per share, although I have an expert evaluation opinion at $15 per share? May I also state that $12 per share is “all I will offer” if my client in fact has given me authority to go up to $15 per share?
Continue Reading September 15 Issue – Negotiation EthicsSeptember 1 Issue – Business Transactions with Clients
By Mark Hinderks on
Q: Dear Ethics Lawyer, I represent a good friend who has built a very successful business. He offered me an opportunity to join with him to start a different new business venture together. I met with him and told him that in negotiating or putting together the terms of the venture with him I would not be acting as his counsel and that he should consider seeking independent counsel. The deal we put together is fair and reasonable to my friend, who also told me that he consents to my involvement in the transaction while continuing to represent him in other legal matters. I went ahead with the transaction. Have I done anything unethical?
Continue Reading September 1 Issue – Business Transactions with ClientsAugust 15 Issue – Duty to Correct False Testimony
By Mark Hinderks on
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 TestimonyAugust 1 Issue – Client Confidences Affecting Waiver Requests
By Mark Hinderks on
Q: Dear Ethics Lawyer, A former law school classmate newly-appointed as a corporate GC asked me to represent his company to file a pre-emptive suit in a favorable forum against a competitor. He told me that based on internal documents they believe the suit probably only has a 40% to 60% chance of success, but by getting to the favorable forum, they hope to press for an early settlement. I ran a conflict check and discovered that the firm represents the opposing party in a small unrelated real estate matter. What can I do to be able to proceed? This could be a really big ongoing client.
Continue Reading August 1 Issue – Client Confidences Affecting Waiver RequestsJuly 15 Issue – Asking Current and Former Employees Not to Communication with Adverse Party
By Mark Hinderks on
Q: Dear Ethics Lawyer, I represent a corporate client in litigation. May I instruct or ask the client’s employees not to speak to opposing counsel about the case? May I instruct or ask the client’s former employees not to speak to opposing counsel about the matter?
Continue Reading July 15 Issue – Asking Current and Former Employees Not to Communication with Adverse PartyJuly 1 Issue – Avoiding Inadvertent Relationship when Dealing with Unrepresented party
By Mark Hinderks on
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 development. The individual, who is not represented, shows up at closing to sign the document, but first asks a legal question about an effect of the document, a question concerning which I know the answer. Can I tell her the answer under any circumstances without creating a conflict of interest?
Continue Reading July 1 Issue – Avoiding Inadvertent Relationship when Dealing with Unrepresented partyJune 15 Issue – Attorney-Client Privilege: PR Consultant on Litigation Team
By Mark Hinderks on
Q: Dear Ethics Lawyer, My company has been sued in very high profile litigation that not only concerns potential liability for a large amount, but that could affect our perception and relationships in the marketplace. We are forming a task force of in-house and external counsel to work with management to defend the case, and would like to hire a crisis/PR consultant to help advise the team on how legal strategy may be received by the court and potential jurors, as well as how it will be perceived among our customers and how best to manage the company’s messaging. But, by including a consultant of this type, do we risk waiving privilege on communications among task force members?
Continue Reading June 15 Issue – Attorney-Client Privilege: PR Consultant on Litigation Team