| LEO Num | Topics | Summary | Date |
ABA-509
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| (ABA Model Rule 1.11(c) “protects against the misuse of ‘confidential government information’” acquired by a full-time or part-time government lawyer, by disqualifying the lawyer from representing private clients on whose behalf the lawyer could use such information to an adversary’s material disadvantage. Such “confidential government information” consists of information the government is “prohibited by law from disclosing,” “has a legal privilege not to disclose,” and which is “not otherwise available to the public.” This disqualification standard differs from the other information-based conflicts standards in several ways. First, the disqualification applies if the government lawyer acquired information from someone other than the private client’s adversary. Second, the disqualification standard applies however the lawyer acquired such disqualifying information as “a public officer or employee” (such as a police officer), even if the lawyer was not representing the government (so it applies to lawyers “serving as legislators, public executives, and other public officers who are not representing the government as legal counsel).” Third, the disqualifying information need not be protected by the normal Rule 1.6 confidentiality standard – for instance it includes information the lawyer heard from another public officer or employee. Fourth, the disqualification standard applies if the former government lawyer “could” use the information to the adversary’s “material disadvantage” (not just if the lawyer does so). Whether such information could be used in that way is “a question of fact” (as is whether such information is “publicly available” through routine discovery). The disqualification standard “applies equally to a full or part time lawyer who currently serves or formerly served as a government officer or employee,” and is “not consentable.” It also applies to lawyers currently working in the government as a lawyer or otherwise, while maintaining a private practice. The disqualification standard applies to any full-time or part-time current or former government lawyer representing a “private client” – which can “include[] public entities and officials whom the lawyer represents in private practice.” But the disqualification standard does not apply to a current government lawyer working in that role who represents “a government employee in the employee’s personal capacity.”) | 2/28/2024 |
ABA-511
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| (Absent a client’s informed consent, a lawyer hoping to “obtain assistance in a representation from other lawyers on a listserv discussion group, or post a comment,” may not provide any information “relating to a representation” – even in hypothetical or abstract form – if there is a reasonable likelihood that the lawyer’s posts would allow a reader then or later to infer the identity of the lawyer’s client or the particular situation involved.” Lawyers should remember that Rule 1.6’s breadth prohibits a lawyer from revealing “even publicly available information, such as transcripts or proceedings in which the lawyer represented a client” or even “the identity of a lawyer’s clients.” The breadth of this duty means that “lawyers are generally restricted from disclosing such information even if the information is anonymized, hypothetical, or in abstracted form if it is reasonably likely that someone learning the information might then or later ascertain the client’s identity or the situation involved.” Lawyers may be impliedly authorized to disclose such information within a law firm, but not outside the law firm. Earlier ABA LEO 411 (1998) involved disclosing anonymized information to “an attorney known to the consulting lawyer.” Such an implied authorization does not apply if a lawyer communicates “to a wider group of lawyers by posting an inquiry or comment on a listserv.” When dealing with such widespread communications, a lawyer “should err on the side of caution and avoid specific hypotheticals, refrain from posting, or obtain the client’s informed consent if there is any reasonable concern.” | 5/8/2024 |
ABA-512
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| (Lawyers relying on generative artificial intelligence (“GAI”) tools must consider several ethics issues: (1) COMPETENCE: lawyers relying on such tools “must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use” (including both its benefits and risks, including the possibility of what are called “hallucinations” when the AI generates faulty information); lawyers’ competence duty means that “lawyers may not abdicate their responsibilities by relying solely on a GAI tool to perform tasks that call for the exercise of professional judgment,” but must instead apply the “appropriate amount of independent verification or review” of what is generated by the tool; in some situations lawyers may “eventually have to use” such tools to act competently in representing a client; (2) CONFIDENTIALITY: lawyers must obtain a client’s “informed consent . . . prior to inputting information relating to the representation into such a GAI tool,” although using AI tool for “idea generation” may not require inputting protected client information; lawyers may not just add “boiler-plate provisions to engagement letters purporting to authorize the lawyer to use GAI;” lawyers must understand any AI tool’s “Terms of Use;” (3) COMMUNICATION: lawyers must communicate with their clients if they intend to use generative AI, and must also advise the client when such generative AI “will influence a significant decision in the representation” or if the lawyer used generative AI in undertaking a project for the client;” (4) DEALING WITH TRIBUNALS: lawyers must comply with the pertinent tribunal’s requirements when using generative AI; (5) SUPERVISORY RESPONSIBILITIES: managerial and direct supervisors in a law firm or law department must train their colleagues on the possible use of generative AI and the risks; lawyers must also supervise any generative AI supplier, as with any other outsourced work; (6) FEES: lawyers billing by the hour must only bill for the time they use, and may not add to that time what they consider an effort saved by using generative AI; lawyers charging a flat fee may not be able to do so if generative AI saved a material amount of the time they would otherwise have spent; as in other situations, lawyers may charge generative AI expenses, but may not add a surcharge to the actual cost unless there is some overhead that may be appropriately charged; absent an agreement with the client; lawyers must also be careful when charging a client for use of a “proprietary, in-house GAI tool” – including limiting the charge to the actual expenses and pertinent overhead; absent client consent; lawyers may not charge the client for time the lawyer spends learning about generative AI.) | 7/29/2024 |
ABA-513
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| (Recent changes to ABA Model Rule 1.16 make explicit what has always been an implicit “duty to inquire into and assess the facts and circumstances of a representation” (as previously described in ABA LEO 463 (5/23/13) and ABA LEO 491 (14/29/20)). ABA Model Rule 1.16(a)’s now-explicit duty applies “more broadly” than just to the type of transactions that may involve a “lawyer facilitation of criminal transactions such as money laundering and terrorist financing”. The duty exists when any representation begins, and also “continues throughout the course of the representation.” As explained in the earlier ABA LEOs, the new ABA Model Rule 1.16(a) provision requires lawyers to “conduct an inquiry and assessment, appropriate to the circumstances, to avoid counseling or assisting in the client’s fraudulent or criminal conduct.” The assessment must take “[a] risk-based approach [which] incorporates the concepts of reasonableness and proportionality.” ABA Model Rule 1.16 cmt. [2] identifies “five non-exclusive factors” that lawyers might consider when undertaking the risk-based analysis. The ABA Model Rule 1.16 amendments “anticipated that only certain representations would necessitate only a significant inquiry, namely, those where there appeared to be a heightened risk of crime or fraud typically because of the nature of the representation or because of the appearance of ‘red flags’”. Lawyers must decline a representation if they have “actual knowledge” that their services will be improperly used. Otherwise, lawyers must “conduct a reasonable risk-based inquiry, not a perfunctory one and not one that involves a dragnet-style operation to undercover every fact about every client.” Thus, “lawyers must conduct a reasonable inquiry and assessment, proportionate to the risks presented by the facts and circumstances.” The assessment does not involve a “‘zero failure’ approach” – and “the lawyer’s judgment should be evaluated as the time it was made, not with the benefit of hindsight.” Lawyers should focus on representations that have heightened risk of misuse – such as those involving “purchasing and selling real estate,” representations where clients “use time pressure to rush a lawyer’s work, hoping to achieve their misconduct before the lawyer (or anyone else) has time to discover it,” and representations that involve “transferring large sums of cash” – especially funds “originating outside the United States” (because experience has shown that “[a] higher risk of participating in money laundering or terrorist financing exists when the lawyer ‘touches the money’”. In connection with conducting such a necessary inquiry, “[t]he lawyer need not resolve all doubts” – “if some doubt remains even after the lawyer has conducted a reasonable inquiry, the lawyer may proceed with the representation as long as the lawyer concludes that doing so is unlikely to involve assisting or furthering a crime or fraud.” | 8/23/2024 |
ABA-510
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| (Under ABA Rule 1.18(c), a lawyer who has consulted with a prospective client can avoid her individual disqualification if she did not obtain any “significantly harmful” information from the prospective client (a standard addressed in ABA LEO 492 (6/9/20)). If the consulting lawyer faces individual disqualification because she has obtained such “significantly harmful” information, she can avoid her individual disqualification from being imputed to her whole law firm if she is screened, receives no part of the fee and provides written notice to the prospective client that the firm will represent the adversary. Notably, she must also have taken “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.” The consulting lawyer clearly must obtain information to check for conflicts (such as “the identity of other relevant parties, witnesses, and counsel”). It is also “necessary” for the lawyer to determine whether she can handle the matter competently, whether the client might be seeking to use the lawyer’s service to commit wrongdoing, whether the client has a meritorious claim or defense, etc. The consulting lawyer must also make a “business decision” about whether to represent the prospective client – focusing on time involved, likely fees, her interest in the matter, compliance with the firm’s “internal policy” about representing certain types of clients, etc. In contrast, such “necessary information” normally would not include facts about the representation that “might enable the lawyer to impress the prospective client” in an effort to land the business. Lawyers might have a business reason to “substantially investigate” a prospective client’s matter before accepting the representation, but it might not be “reasonably necessary” to do so – so she should recognize that a “free-flowing conversation” might result in an imputed disqualification, and consider “stopping [the] inquiry” after determining that her firm would not take the representation. The consulting lawyer might also be wise to decrease the likelihood of an imputed disqualification by “warn[ing] the prospective client that the lawyer has not yet agreed to take on the matter and that information should be limited only to what is necessary for the lawyer and client to determine whether to move forward with an engagement.”) | 3/20/2024 |