| LEO Num | Topics | Summary | Date |
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 |
1587
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| A lawyer became an investor in and vice-president of a company, although the lawyer did not represent the company. The lawyer later resigned as an officer and director, but remained a shareholder. Because the lawyer never represented the company and "never received the benefit of any proprietary information" from the company or its other principal, the Code did not apply to the lawyer's proposal to directly compete with the company. | 4/11/1994 |
1821
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| A lawyer may file a lawsuit against a trust company on whose board the lawyer's partner sits (but who does not represent the trust department) if (1) the "affected client/clients" (the plaintiff suing the trust company) consents; and (2) the lawyer "reasonably believes" that he can "provide competent, diligent representation" to his clients. Although the board member's recusal is not mentioned as a cure in the rules, it is a factor in analyzing the second requirement, which could be met if the board (in consultation with its lawyer) allows such recusal, after considering "such matters as whether the litigation is 'routine' or 'non-routine' in the course of the board's business; whether the claim goes to matters that had been determined by the board, or lower level administrative staff; and whether the claim involves matters on which [the partner who is a member of the board] has voted or has been involved in." The board member's resignation might cure the conflict, unless there is some contractual undertaking that would affect his post-withdrawal activities. Under Rule 4.2, the plaintiff's lawyer should not have dealt with the company through his partner who serves on the board, but rather through the lawyer representing the trust company. | 1/11/2006 |
1436
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| A lawyer representing a lender who sends documents to the borrower for signature should advise the borrower that the lawyer is representing the lender. Because the lawyer should not give any legal advice to non-clients, the lawyer is not required to advise the borrower of the opportunity to purchase title insurance. If the lawyer is to represent the borrower and lender, the lawyer must advise the borrower (and obtain the borrower's consent) if the lawyer serves on the lender's board of directors. If the lawyer represents both the borrower and lender, the lawyer should advise the borrower about the availability of title insurance. | 11/1/1991 |
0555
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| A lawyer who is acting as counsel, shareholder, officer and director of a corporation must maintain as confidential any information the lawyer has obtained from a fellow stockholder, director and officer because the conversation was with the lawyer as counsel for the corporation. [The lawyer would be free to reveal the information to the corporation's management.] | 4/10/1984 |
0484
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| A lawyer who serves as general counsel for and a member of the Board of Directors of a hospital and nursing home may sit on a medical malpractice panel as long as the lawyer avoids conflicts. | 11/8/1982 |
0453
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| It is not per se improper for a lawyer to serve as a bank's lawyer and also as a member of its Board of Directors. | 4/12/1982 |
ABA-410
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| Lawyers serving on a corporation's board of directors should: warn the corporation that their discussions with the board might not be protected by the attorney-client privilege (because they involve business advice rather than legal advice); assure that legal advice to the board is provided in a confidential setting (with non-essential corporate employees dismissed) and retained in a separate labeled file; avoid waiving the privilege on behalf of the corporation (which can occur because they are also directors authorized to waive the privilege); consider declining to represent the corporation in actions they opposed as directors; possibly arrange for other counsel to advise the board in matters involving the lawyer-director (to assure independent advice and the availability of an "advice of counsel" defense); consider abstaining from voting on any action involving retaining, paying or discharging the lawyers' firm (although the ABA rejects the New York City Bar's blanket prohibition on such activity); arrange for independent counsel to represent the corporation in litigation involving the directors or the lawyers' law firm (especially in a derivative case or if there are possible claims against the directors or the law firm). | 2/27/1998 |