| LEO Num | Topics | Summary | Date |
1172
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| (The original LEO 1172 appeared to indicate that an in-house lawyer did not have an attorney-client relationship with the employer, but a later clarification corrected this error.) | 12/19/1988 |
0835
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| [WITHDRAWN 9/16] An in-house lawyer who represents the company in collection matters may not split any attorneys' fees collected with the company, unless the amount is a reimbursement for the actual cost of the lawyer's services. [This Legal Ethics Opinion was overruled to the extent its holding is inconsistent with LEO 1783 which permitted a lawyer representing a lender in collecting on a note containing a provision for the award of 25% attorney's fees of the principal balance due to give the client/lender whatever portion of the 25% was not actually spent on attorney's fees.] | 10/9/1986 |
1635
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| A company officer (who is also a lawyer) tape records a telephone conversation the officer has with a terminated corporate employee. Because the Code provision prohibiting lawyers from engaging in misrepresentation is "not specifically applicable to activities undertaken in an attorney-client relationship," the lawyer's tape recording was improper even if the officer were acting only as a corporate officer and not as the corporate lawyer.After citing the familiar list of factors for determining whether a lawyer's misconduct must be reported, the Bar concludes that the tape recording without consent "may raise a substantial question" as to the lawyer's honesty, trustworthiness or fitness to practice law in other respects. The Bar cautions that the reporting lawyer must be "vigilant" in avoiding such reporting "solely to obtain an advantage in a civil matter." [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.] [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.] | 2/7/1995 |
1341
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| A firm's letterhead may include a retired former partner's name as long as the former partner is accurately characterized. Corporate counsel must disclose the name of the corporate employer on letterhead and business cards. If a lawyer operates a private law practice out of a company's office, there must be separate office space, separate sign, separate files and a separate telephone listing. | 4/20/1990 |
ABA-392
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| A for-profit corporate employer may not share in fees generated by one of its in-house lawyers (above the level required to reimburse the corporation for any expenses incurred) and may not share in any court-ordered fees above the level required to reimburse the corporation. | 4/24/1995 |
0807
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| A former in-house general counsel to a corporation may not represent the lawyer's new employer in pursuing litigation against the former employer on matters in which the lawyer was involved as an employee of the former employer. This disqualification extends to the other lawyers on the general counsel's staff of the new employer. | 6/25/1986 |
0718
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| A former in-house lawyer may not represent a client against the former employer on a substantially related matter. The disqualification extends to the lawyer's entire firm. | 8/30/1985 |
1419
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| A former in-house lawyer who advised a corporation's subsidiary may not now be adverse to the subsidiary after leaving the company, even if the lawyer has no recollection of involvement in the pertinent matter and claims not to have any confidential information. | 6/25/1991 |
1615
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| A lawyer hired as a company's inside general counsel may not enter into a non-competition agreement with the company (under which the lawyer could not serve as any competitor's in-house counsel for a period of one year). The Bar notes that the lawyer must protect the former client's confidences and secrets if the lawyer begins to represent a competitor. | 2/7/1995 |
1589
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| A lawyer may communicate directly with a former employee of an adverse party unless the lawyer knows that the former employee is represented by counsel. A corporation's lawyer may not simply advise a former employee that the lawyer is representing the former employee individually and direct the former employee not to speak with opposing counsel. Former employees have the right to choose their own counsel, and until they have done so the corporation's lawyer must treat them as unrepresented parties with potentially adverse interests (and thus may only advise them to secure counsel). [Rule 3.4(g) allows a lawyer to request that former employees of a corporate client "refrain from voluntarily giving relevant information to another party" under certain circumstances.] | 4/11/1994 |
1601
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| A lawyer working at a state institution of higher learning may enter into an employment contract under which the lawyer must disclose to the administration information that the lawyer has obtained from those seeking legal advice. Although an "expectation of confidentiality" may arise in situations in which no attorney-client relationship exists, the lawyer may resolve any problems by issuing "a disclaimer to colleagues or students indicating that no attorney/client relationship will be formed and any information received will not be treated as secret or confidential." | 7/18/1994 |
0328
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| An in-house counsel may maintain a separate office for the private practice of law. | 6/28/1979 |
0509
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| An in-house lawyer employed by an insurance carrier must reveal the employment in all public communications, and may not wait until a representation begins to do so. | 3/30/1983 |
0226
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| An in-house lawyer for an insurance company may maintain a separate private practice to represent company employees at their own expense. | 6/12/1973 |
0598
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| An in-house lawyer for an insurance company may represent an insured, but must remember that the insured is the client. Among other things, the insured's lawyer may not reveal information acquired from the insured that would allow the carrier to deny coverage. [Approved by the Supreme Court 3/8/85, effective 6/1/85.] | 6/1/1985 |
0983
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| An in-house lawyer learns that a corporation has filed a false prospectus. The lawyer did not participate in preparing or disseminating the prospectus, and has now resigned from the in-house position. The lawyer may now reveal the fraudulent activity. The lawyer also has a duty to advise the corporation of the possible consequences of continuing its fraudulent activity, urge the corporation not to issue the prospectus and advise the corporation that the lawyer will reveal its conduct unless the corporation abandons its "criminal intentions." [Rule 1.13 provides guidance for lawyers in this situation.] | 10/27/1987 |
1353
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| An in-house lawyer may also be "of counsel" to a law firm. However, there must be full disclosure and consent of the corporation for the law firm to do any of the corporation's legal work (even if the "of counsel" lawyer will not share in any of the fees). Moreover, outside counsel should communicate with a company lawyer other than the in-house lawyer who is also "of counsel" to the firm. | 6/13/1990 |
1359
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| An in-house lawyer may not act as an advocate and a witness at a hearing conducted by the Virginia Employment Commission, because the hearing would be "litigation" triggering the witness-advocate rule; all doubts about whether a lawyer should be a witness or an advocate should be resolved in favor of the former. ([Rule 3.7(a) uses the term "adversarial proceeding" rather than the old Code's "trial."] | 6/28/1990 |
0877
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| An in-house lawyer may not obtain an indemnification agreement. [Rule 1.8(h) permits such indemnity agreements if the corporation is separately represented.] | 4/1/1987 |
1272
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| An in-house lawyer may not reveal a client's filing of a misleading certificate related to government contract work unless the filing was illegal or fraud is "clearly established." | 10/3/1989 |
1399
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| An in-house lawyer performed some work for the corporation's subsidiary. After leaving that position, the lawyer was hired by a company adverse to the subsidiary. The lawyer may represent the company, because the matter was unrelated to the work the lawyer had performed for the subsidiary while employed by the parent, and the lawyer had learned no confidences or secrets. | 2/15/1991 |
0480
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| An in-house lawyer's employer may not charge and collect for work the lawyer does for third parties, unless the payment is a reimbursement for the actual cost of the legal services and the lawyer receives the fee. | 9/20/1982 |
0959
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| An in-house lawyer's letterhead must indicate the employer's name. | 9/3/1987 |
ABA-442
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| As long as the receiving lawyer did not obtain an electronic document in an improper manner, the lawyer may ethically examine the document's metadata, including even using "more thorough or extraordinary investigative measures" that might "permit the retrieval of imbedded information that the provider of electronic documents either did not know existed, or thought was deleted." The opinion does not analyze whether the transmission of such metadata is "inadvertent," but at most such an inadvertent transmission would require the receiving lawyer to notify the sending lawyer of the metadata's receipt. Lawyers "sending or producing" electronic documents can take steps to avoid transmitting metadata (through new means such as scrubbing software, or more traditional means such as faxing the document). Lawyers can also negotiate confidentiality agreements or protective orders allowing the client "to 'pull back,' or prevent the introduction of evidence based upon, the document that contains that imbedded information or the information itself." | 8/5/2006 |
1364
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| Corporate counsel may not accept an indemnity commitment from their employer. [Rule 1.8(h) now permits such indemnity agreements if the corporation is separately represented.] | 6/28/1990 |
0256
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| Former corporate counsel who resigned because of a dispute among the directors may not represent one of the directors in litigation arising from the dispute (both because of the conflict and because of the likelihood that the former corporate counsel "may be called as a witness"). | 12/16/1974 |
ABA-415
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| Former in-house lawyers may not take representations materially and directly adverse to their former employers (absent consent): (1) if they "personally represented" their former employer in the same or substantially related matter (some courts indicate that the matter must be "identical" or "essentially the same" as the previous matter); or (2) if they acquired material confidential information about their former employer ("general knowledge of the strategies, policies, or personnel of the former employer is not sufficient by itself" to disqualify the lawyer; a de minimus standard might apply if the in-house lawyer only addressed legal questions on the periphery of a matter); "general supervisory responsibility such as that exercised by the head of a legal department" ordinarily does not disqualify an in-house lawyer; sophisticated companies may grant prospective consents in these circumstances. | 9/8/1999 |
ABA-424
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| Former in-house lawyers may sue their former employers/clients, even if the lawyer claims retaliatory discharge based on adherence to ethics obligations, but: may only disclose information “to the extent necessary to establish her claim against her employer”; must affirmatively seek to avoid unnecessary disclosure by using such procedures as in-camera review, sealing of the record, proceeding without disclosing the parties’ names, etc. | 9/22/2001 |
1838
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| In-house lawyers can provide legal services to their employer's sister corporation, as long as the lawyers provide "independent professional judgment" on behalf of the sister company "free of any interference or direction" from the lawyer's employer, and as long as the lawyers do not share the sister company's confidences with their employer. The Bar explained (1) that "discharging this duty of confidentiality to [the sister corporation] may require [the lawyers] to work off site, at a physically separate office, rather than on the premises of [their employer]"; (2) that the lawyers must be conscious of possible conflicts between their clients, and should address conflicts "with a letter of representation that outlines who the lawyer would continue to represent, if either, in the event of a conflict"; (3) that the lawyers' employer can charge and collect legal fees from the sister corporation for the lawyers' work, as long as the amount is a simple reimbursement, and the employer does not earn any "direct or indirect profit for legal services provided." | 5/10/2007 |
1211
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| In-house lawyers do have attorney-client relationship with employer, and therefore may not ask for an indemnity agreement. [This LEO was overruled by Rule 1.8(h), which permits such indemnity agreements if the corporation is separately represented.] | 4/19/1989 |
ABA-453
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| Law firms' in house ethics counsel: may disclose and receive client confidences to and from other firm lawyers, because "unless a client has expressly instructed that information be confined to specific lawyers within the firm, the lawyer handling the matter does not violate the duty of confidentiality by consulting within the firm about the client's matter."; may but is not required to disclose to clients that the lawyer has discussed with other firm lawyers ethics issues involving that client; does not face a per se conflict in discussing with other firm lawyers possible conflicts of interest involving the client, but may face a conflict if the communications involve protecting the interests of the law firm or its lawyers rather than the client; should explain to the firm lawyer requesting advice whether the in house ethics counsel represents the law firm, the individual lawyer or both; must comply with Rule 1.13's requirement to disclose any wrongdoing up the law firm's chain of command; should consider a possible duty to disclose a colleague's unethical conduct, recognizing that "reporting under this rule is required only when the conduct in question is egregious and 'of a type that a self-regulating profession must vigorously endeavor to prevent.'"; should remember that any duty of disclosure is trumped by the duty of confidentiality to clients (either the law firm or the individual lawyer); recognize that he might have to withdraw from representing the law firm and the individual lawyer if they disagree about whether he should report wrongdoing; realize that other lawyers in the firm may have a duty to report a colleague's wrongdoing, because they do not have an attorney-client relationship with the law firm or the individual lawyer (but may have a duty of confidentiality to firm clients whose information is involved). | 10/17/2008 |
ABA-430
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| Lawyers employed as staff employees of insurance companies may represent both the company and the insured in "full coverage cases" -- in which the insured's monetary exposure is within the coverage limits, and there is no dispute about coverage. The lawyers must keep in mind "the importance of undivided fidelity to the insured-client." The issue of separate attorney-client relationships with the insured and the company (or both) is a question of state law, but some states follow a "dual client" approach while others recognize that the lawyer represents only the insured. Most states allow staff counsel to represent insureds, but some states prohibit such representations as the unauthorized practice of law. Insurance companies' staff lawyers representing insureds must disclose to their insureds clients -- "at the earliest opportunity practicable" their "employment status and affiliation with the insurance company." Staff lawyers for an insurance company may use a traditional law firm name or a trade name, as long as they make the required disclosure to their insureds-clients. | 7/9/2003 |
ABA-443
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| Rule 4.2 is designed to protect a person "against possible overreaching by adverse lawyers who are participating in the matter, interference by those lawyers with the client lawyer relationship, and the uncounseled disclosure of information regarding the representation." The protections of Rule 4.2 "are not needed when the constituent of an organization is a lawyer employee of that organization who is acting as a lawyer for that organization," so "inside counsel ordinarily are available for contact by counsel for the opposing party." Adverse counsel can freely contact an in-house lawyer unless: the in-house lawyer is "part of a constituent group of the organization as described in Rule 4.2 Comment [7] as, for example, when the lawyer participating in giving business advice or in making decisions which gave rise to the issues which are in dispute"; the in-house lawyer "is in fact a party in the matter and represented by the same counsel as the organization; "in a rare case adverse counsel is asked not to communicate about a matter with outside counsel." The opinion does not analyze the circumstance in which an in-house lawyer is "simultaneously serving as counsel for an organization in a matter while also being a party to, or having their own independent counsel in, that matter." | 8/5/2006 |
1820
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| The rule prohibiting certain ex parte contacts applies to a railroad's in-house lawyer, the head of the railroad's claims department (who has a law degree but does not practice in the law department) and the railroad's claims agents working under the claims department head (who could not permissibly direct his staff to contact injured workers ex parte if the lawyer himself could not do so). "This attorney cannot establish and implement a procedure for his staff to routinely contact represented workers when the initiation of that contact as well as the content of the communications are incompatible with the attorney's responsibilities under Rule 4.2. Because claims agents who have law degrees are providing legal services to their employer, those claims agents are also governed by Rule 4.2. The railroad cannot justify such ex parte contacts by arguing that it is confirming written communications from the injured workers that they have lawyers, because the written notice is sufficient. Even if it were not, any ex parte communication must stop when the worker indicates that he has a lawyer. Any lawyers in the railroad's law department "cannot circumvent the requirements of Rule 4.2 by directing members of the claims department to initiate communications the attorney himself is precluded from conducting." Determining whether the non-lawyers ex parte contacts with injured workers "occurred with sufficient involvement of the in-house counsel" to trigger Rule 4.2 requires factual inquiry. Although clients may always contact the other clients directly, an in-house lawyer “is not a party to the dispute but instead is counsel for a party." | 1/27/2006 |