| LEO Num | Topics | Summary | Date |
ABA-514
|
| (a lawyer who jointly represents both an organization and its constituent owes each of them the same full duty (this opinion does not address a deposition setting, where the lawyer may either represent just the organization, or may represent both it and the constituent deponent); an organization’s lawyer does not jointly represent a constituent “simply by virtue of . . . communicating with the constituent,” but such a lawyer gathering facts rather than giving advice normally should give an Upjohn warning to avoid inadvertently establishing such a relationship; lawyers sometimes face “circumstances in which the lawyer knows or reasonably should know that the organization’s [non client] constituent is likely to have legal interests at stake if the individual acts on the lawyer’s advice,” in which case the lawyer may have duty: to engage in “a more in depth conversation“ to “satisfy the lawyers duty to undertake ‘reasonable efforts to correct’ a constituent’s misunderstanding of the lawyer‘s role as lawyer to the organization, explain to such non client constituents “that their actions on behalf of the organization may have personal consequences,” and that if they “want legal advice about how a proposed a course of conduct will affect their personal legal interests, the constituents must seek that advice from their own counsel, not from the organization’s lawyer;” in some circumstances, the lawyer must similarly advise the organization that its future conduct might create legal risks to its constituents; although perhaps not required, lawyers would be “well advised” to: “clarify their role” at other times, “avoid referring to individual constituents as their clients”, and “correct individual constituents who refer to the organizations lawyers as the constituent’s own lawyers”) | 1/8/2025 |
ABA-515
|
| (analyzing lawyers’ ability to disclose client confidences if they are victims of their clients’ criminal conduct; HYPOTHETICALS: describing several possible hypothetical situations in which clients victimize lawyers: (1) a foreign client hires the lawyer for a collection matter, but the debtor’s payment to the lawyer is discovered to be fraudulent after the lawyer has already transferred the expected amount to the client (this scam can succeed because a bank can “clear” a check and make funds available months before the bank “collects” those funds or discovers the fraud); (2) in a similar situation, the lawyer discovers the fraudulent scheme before it can be consummated; (3) a lawyer is a victim of or a witness to a client’s shooting; (4) a visiting client steals the lawyer’s wallet from her office; CONFIDENTIALITY DUTY’S APPLICATION AND EXPLICIT EXCEPTIONS: explaining that (1) in the first scenario, there may not be a bona fide client or prospective client relationship formed, thus freeing the lawyer to disclose the fraud; (2) in rare circumstances, information relating to the crime may not be “information relating to the representation” deserving of protection; but warning that “Rule 1.6 (a) covers substantially more information then does the attorney-client privilege, which ordinarily protects only confidential communications between the client and the lawyer or their respective agents;” turning to Rule 1.6 (b)’s exceptions, explaining that since 1980 the ABA Model Rules have expanded the number of permissible disclosures from 3 to 7; noting that a lawyer might rely on: Rule 1.6 (b)(1) if the lawyer reasonably believes disclosure is necessary “to prevent reasonably certain death or substantial, bodily harm;” Rule 1.6 (b) (3) to “prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services” (this exception might apply if the lawyer was victimized by the client’s financial crime and there were other possible victims - but not in the four hypotheticals described above); Rule 1.6 (b)(5) to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client” (this exception “would not justify initially reporting to law-enforcement authorities,” but might apply in a later civil claim); IMPLICIT CONFIDENTIALITY DUTY EXCEPTIONS: noting that the Model Rules are “rules of reason“ in explaining that lawyers might rely on an “implicit exception” to correctly “assume that, if a client commits a crime against them or their employees or associates, they can report the crime to law enforcement authorities and appropriate others;” listing various implicit exceptions later codified: (1) lawyers’ “widely assumed” freedom to “seek advice from legal experts outside their law firms regarding compliance with the professional conduct rules“ - even before the ABA’s 2002 adoption of Rule 1.6 (b)(4); (2) ABA LEO 455 (10/8/09)’s acknowledgment that lawyers “moving from one firm to another” may disclose certain information about their representations, which was eventually codified in Rule 1.6 (b)(7); recognizing two more implied confidentiality duty exceptions that have not been codified: (1) because lawyers would be “too easy a target of clients’ crimes ” if they were required “to remain silent when their clients abuse the relationship by committing a crime against the lawyer,” explaining that an implied confidentiality exception applies in that situation, and cleverly noting that “lawyers may metaphorically take a bullet for the client, but they cannot reasonably be expected to take a bullet from the client and to keep quiet about it;” (2) because it “would be unreasonable to conclude that a lawyer may report when the lawyer is personally a victim of a client’s criminal act but not when the lawyer witnesses a crime against someone associated with the lawyer or related to the lawyer like a staff member of the lawyer firm or against someone such as a family member,“ recognizing an implied confidentiality duty exception allowing that disclosure – but “only to the extent the disclosure of information is reasonably necessary”) | 3/5/2025 |
ABA-516
|
| (MAJORITY: lawyers may decline to take a new matter for “almost any reason,” and may terminate a representation under ABA Model Rule 1.16(b) -- which contains both mandatory and permissive grounds for termination; under ABA Model Rule 1.16 (b)(7) lawyers may withdraw from a representation at any time as long as there is no “material adverse effect on the interests of the client“ in that matter –- such as if the withdrawal “will significantly impede the forward progress of the matter, significantly increase the cost of the matter and/or significantly jeopardize the client’s ability to accomplish the objectives of the representation;” a lawyer’s withdrawal is unlikely to have such a “material adverse effect” if: (1) “the representation has barely gotten off the ground;” (2) “co-counsel can successfully complete the remaining work”; (3) the lawyer’s work “is substantially completed“ and some other lawyer can handle the completion; (4) “there is no ongoing or imminent [“impending”] matter at the time;” although some courts prohibit lawyers from dropping a client like a “hot potato“ and then taking a matter adverse to the now-former client, “some courts recognize that the principle is not absolute” –- for example, if the lawyer’s dropped representation is “sporadic, non-litigious and unrelated to the issues” in the new adverse matter; the “hot potato“ principle is not based on the ethics rules (in which “the lawyer’s motivation is not relevant”) but instead is “an extension of the [“judicial”] common law duty of loyalty” in which courts “treat the lawyer’s withdrawal as if it did not occur;” DISSENT: “we fear [that the majority’s analysis] will prove more harmful than helpful to lawyers,” because: (1) it may discourage lawyers from “transform[ing] current clients into former clients” by closing files, thus freeing the lawyers to take matters adverse to the now-former clients; (2) it “fails to address the breadth” of “hot potato” caselaw, and whether dropping a client “for the purpose of turning around and filing suit against it … could itself qualify as an act inflicting [an ABA Model Rule 1.16 (b)(1)] material adverse effect” on the dropped client; (3) it fails to adequately address ABA Model Rule 1.16 (a)(1)’s mandatory withdrawal rule under the “thrust upon exception to the hot potato doctrine; (4) it “fails to offer guidance for transactional lawyers”) | 4/2/2025 |
ABA-518
|
| ABA Model Rule 2.4 governs lawyers’ duties when acting as mediators, which such lawyers must clearly explain to the parties. As a neutral, such lawyers “should not state that the lawyer-mediator is acting to achieve a party’s best interest or that a proposed settlement is in a party’s best interest.” They may “provide legal information” and “offer an opinion as to how a tribunal is likely a rule on an issue,” but “should not state or imply that a settlement is in the party’s best interest because a tribunal is likely to decide adversely to the party.” As explained an ABA LEO 439 (4/12/06), under ABA Model Rule 4.1, “untrue statements [by lawyers representing negotiation parties] are not entirely forbidden.” But lawyer-mediators do “not have the same leeway.” For instance, they may not make a knowingly false statement that “this is the best offer the opposing party will make“ or “make misleading statements about the strength or weakness of a party’s case.” Similarly, lawyer-mediators may “accurately convey“ statements from a party’s lawyer permissible for those lawyers under ABA Model Rule 4.1 (because they “are not regarded as false statements of “‘material fact’“) – but such lawyer-mediators “may not give credence to those statements if the mediator knows them to be false” | 10/15/2025 |
ABA-517
|
| ABA Model Rule 8.4 (g), supplemented by cmt. [5], provides the ethics parallel to the Supreme Court’s prohibition on lawyers’ exercise of peremptory challenges based on prospective jurors’ “race or gender” -- while permitting such challenges based on their “age, marital status, disability, or socioeconomic status.” Cmt. [5] notes that a judge’s finding of improper discrimination does not automatically equate to an ethics violation, which requires a higher burden of proof. A lawyer acts unethically only if she “knows or reasonably should know“ that her challenge impermissibly discriminates. It is no defense that the lawyer acts at the client’s direction. But after an inquiry, a lawyer may rely on the client’s or a jury consultant’s suggestion -- if there are “sincere reasons that are legitimate” and not “ pretextual” or “impermissibly discriminatory.” Lawyers relying on AI to suggest challenges “should conduct sufficient due diligence to acquire a general understanding of the methodology.” While ABA LEO 493 (7/15/20) explained that unethical discrimination “extend[s] beyond unlawful discrimination,“ such “legitimate advocacy” as lawful but discriminatory peremptory challenges do not violate ABA Model Rule 8.4 (g). | 7/9/2025 |
ABA-519
|
| Because lawyers’ Rule 1.6 confidentiality duty applies “to the disclosure of confidential information to the court no less than to others” and there is no ABA Model Rule 1.6 exception that would allow such disclosure by lawyers seeking to terminate a representation in a matter before a court, such lawyers must address limits on disclosure of the termination’s justification. Courts’ handling this situation range from allowing extensive disclosure in open court to disclosure in camera or under seal to discipline for disclosure in withdrawal motions. ABA Model Rule 1.16 cmt [3] encourages courts to allow termination upon a bare-bones explanation “that professional considerations require termination.” Lawyers facing this dilemma may: (1) safely provide personal information, “not related to the representation” (such as the lawyer‘s physical or mental condition justifying termination); (2) secure the client’s informed consent to such disclosure; (3) rely on ABA Model Rule 1.6 (b)(6), which allows disclosure “to comply with other law or a court order;“ (4) occasionally rely on ABA Model Rules 3.3, 1.13 or 1.14 if those circumstances apply. In rare situations when a lawyer faces an insoluble dilemma because the ABA Model Rules prohibit continued representation but the confidentiality duty precludes an explanation, “the duty of confidentiality is paramount” - so such lawyers should not face discipline. Because the Rule “drafters … opted not to carve out an exception to the duty of confidentiality whenever lawyers seek court’s permission to withdraw,” lawyers should: (1) first make a “formulaic reference” to “professional considerations” or “irreconcilable differences;” (2) if that is unsuccessful, seek to persuade the court to allow termination without requiring disclosure of confidential information, (3) comply with any resulting court order by seeking to supply the information in camera or under seal; (4) provide the minimal amount of confidential information required. | 12/3/2025 |
1901
|
| While “time-based billing, such as hourly fees, can only be based on actual time spent on a task,” AI and “other technological tools that result in comparable productivity improvements“ implicate the “ethical parameters for non-hourly fee structures.” Rule 1.5(a)(1)’s reasonable fee standard includes consideration of both: “the time and labor required”; and (2) “the skill requisite to perform the legal service properly.” Lawyer’s’ technical expertise and judgment about deploying AI and similar tools “represent valuable services for which the lawyer reasonably can be compensated,” and thus “support[ ] value-based billing models that focus on outcomes rather than inputs.” “It is not per se unreasonable for a lawyer to charge the same non- hourly fee for work done with the assistance of AI as work done without the use of AI.” As long as the lawyer explains the basis for a fixed fee,” “Rule 1.5 should not require the lawyer to surrender any benefit from the efficiency gains if clients continue to receive value from the lawyer’s output.”; Such a required explanation “could … be particularly important if the lawyer’s time spent on the specific representation is substantially reduced due to the productivity-enhancing tool, such that the client may need additional explanation of why the lawyer’s experience, technical skills, or other efficiencies contribute to the value of the services and determination of the fee.” | 11/24/2025 |