| LEO Num | Topics | Summary | Date |
ABA 504
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| (ABA Model Rule 8.5(b)(2) provides a “safe harbor” for lawyers reasonably believing that they are complying with the ethics rules where their conduct has its “predominant affect” (other than where their conduct occurred). Several factors affect this analysis, including: the location of lawyer’s office and admission, the client, opposing party, relevant third parties, and the transaction; which jurisdiction’s substantive law applies; which jurisdiction has the “greatest interest in the lawyer’s conduct.” ABA Model Rule 8.5 cmt. [5] lawyer-client agreements defining the pertinent jurisdiction “may be considered.” Some examples: (1) a fee agreement between a lawyer and a client who reside in the same state will be judged under the ethics rules of the state where they both reside (and will prepare for anticipated litigation), not in another state where the litigation will later occur; (2) a lawyer admitted in a state that allows fee-sharing with non-lawyer firm colleagues may share fees generated by the lawyer’s participation in litigation pending in a state that does not allow such sharing (although the lawyer litigating in that other state must follow that state’s ethics rules in dealing with the tribunal, and in dealing with the opposing party and counsel) in that litigation; (3) a lawyer whose office is in a state that requires client consent before reporting another lawyer’s ethics violation must report a predecessor lawyer’s litigation-related ethics violation if the tribunal’s jurisdiction’s ethics rules do not require the client’s consent (even if the lawyer and the misbehaving prior counsel are licensed in or reside in the state requiring client consent — because the misconduct was “in connection with a matter pending before a tribunal” in the state requiring such reporting even absent client consent); (4) a lawyer licensed both in a state that requires disclosure of a client’s intent to potentially harm someone and a state that does not require such reporting must report a client’s threat to harm a transactional counterparty in a state that requires such disclosure; (5) a law firm will be governed by the hiring imputation rules (and self-help screen possibility) of the host jurisdiction of litigation if “the imputed conflict of interest affects a pending lawsuit,” but if the possible imputation “involves a transaction matter” the applicable rules will come from the jurisdiction where the vulnerable law firm colleague practices -- although “the location of the subject of the transaction” might supply the ethics rule; the vulnerable colleague would be “prudent” to follow the most restrictive rule and obtain the necessary consents before the firm hires the lateral, although the vulnerable colleague may not be ethically disciplined if she complies with the ethics rules of the jurisdiction where she “reasonably believes the predominant effect” will occur) | 3/1/2023 |
1893
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| (Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" —because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad litem's appointment or judicial approval of an infant settlement — and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend." | 4/12/2023 |
ABA-449
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| A lawyer considering whether to represent a judge who is simultaneously presiding over a matter involving a client may proceed "only if the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client, and each affected client gives informed consent, confirmed in writing." A judge considering whether to retain a lawyer who might appear before the judge must recuse himself if the representation would create "a personal bias or prejudice concerning a party or a party's lawyer" (this is a non-waivable ground for disqualification under the new judicial code). A judge represented by a lawyer appearing before him and who determines that he does not have such a personal bias or prejudice may continue presiding if the judge discloses on the record the lawyer's representation of the judge on an unrelated matter, and if the parties and their lawyers consider "out of the presence of the judge and court personnel" whether to weigh the disqualification, and unanimously agree that the judge may continue presiding. A lawyer's silence in the face of a judge's failure to comply with this process himself violates the prohibition on assisting a judge in an ethics violation. A lawyer's reminder to the judge of his duty does not violate the ex parte contact prohibition. If the judge still does not make the required disclosure after such a reminder, the lawyer representing the judge in an unrelated matter may not disclose the representation (which is protected by the ethics duty of confidentiality, although not by the attorney-client privilege). Even if otherwise permissible, such a disclosure would not comply with the process mandated by the judicial code. Similarly, "the judge's misconduct cannot be cured by reliance on the fact that all parties to the matter already might be aware of the lawyer's representation of the judge in another matter." If the lawyer discovers that one of his firm's clients is appearing before a judge that the lawyer is representing, "the Committee believes that, at least presumptively, the representation begun later in time is the one from which withdrawal would be required." The lawyer might also have to withdraw from representing the client, either because the judge might "develop a bias" against the lawyer or his partner, or because the lawyer cannot obtain his other client's consent to the continuation of the representation despite the judge's possible bias (because the lawyer cannot disclose his or his partner's representation of the judge). The lawyer may not report the judge (his client) to the judicial disciplinary authority, because Rule 1.6 trumps the duty to report a judge's misconduct. Neither the lawyer nor judicial ethics rules "prescribe specific time periods" that a lawyer "ought not to appear before the judge on behalf of a client" if the lawyer had previously represented the judge. That issue depends on "whether a reasonable person would believe, in light of the time that had elapsed, that the judge's fairness and impartiality could still be questioned." In making that determination, the lawyer should assess the nature of his representation of the judge (whether it was consequential as a judicial disciplinary proceeding as inconsequential as a real estate transaction), the size of the fee, whether the representation was isolated or one of a series of matters "and whether the representation was in a matter that was highly confidential or highly publicized." Lawyers considering representing judges might ask the judge to sign an engagement letter pledging to follow the judicial code process, or an engagement letter with "an advance waiver of confidentiality." | 8/9/2007 |
1894
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| A lawyer faces several conflicts issues if she jointly represents multiple children who might have been abused at a childcare center, especially if there is only a limited insurance fund to pay all of the claimant clients. As “next friend” of each child, a parent can consent to such a joint representation. If there is only a limited fund available to settle all of the case, the settlement must comply with Rule 1.8(g)’s “aggregate settlement” rule - including a unanimous agreement among all the clients about “how the settlement is allocated and what amount shall be distributed to each.” In such an “aggregate settlement” situation, the lawyer may not participate in such an aggregate settlement if even one client disagrees with the settlement. To obtain court approval of the settlement, a guardian ad litem (GAL) must be appointed for the minor children. Such GALs are subject to the Virginia ethics rules “as they would be in any other case, except when the special duties of a GAL conflict with such rules.” If there is a limited fund for an aggregate settlement, the GAL must agree with that arrangement. A GAL “must be appointed to waive the lawyer’s conflict in representing multiple children.” A single GAL may represent all of the minor children, because a court has “[t]he final decision as to the division of the settlement proceeds or recovery.” A GAL must also be appointed if the efforts fail and litigation begins. | 4/20/2022 |
ABA-406
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| A lawyer representing another lawyer may also represent a client adverse to the other lawyer's client unless the representation of the client may be "materially limited" by the relationship between the lawyers. Determining whether such a material limit exists depends on such factors as: the importance and sensitivity of the matters; the size of the fee; any similarity between the representations; whether the representations will "cause either or both of [the lawyers] to temper advocacy on behalf of their opposing third-party clients." If the representation meets this standard, the lawyer may proceed (if at all) only with consent, although even curative consent would be unavailable if the lawyer could not make full disclosure because of other client confidences. Even if not required, it might be prudent to disclose the lawyers' relationship. Any non-curable conflict would disqualify the representing lawyer's entire firm, but representation of a lawyer in a purely personal matter would not result in disqualification of the represented lawyer's entire firm. | 4/19/1997 |
0212
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| A lawyer representing himself or herself in settling with an insured driver may later represent the driver in an action against the driver's automobile manufacturer. | 12/1/1971 |
ABA-404
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| A lawyer whose client has become incompetent may take protective action, including petitioning for the appointment of a guardian (although the lawyer may not represent a third party in seeking a guardian). The appointment of a guardian should be a last resort, and the lawyer may withdraw only if it will not prejudice the client. | 8/2/1996 |
ABA-438
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| ABA Model Rule 1.8(g) provides specific rules for aggregate settlements. Such settlements are not defined in the Model Rules, but do not include certified class actions or derivative actions. Aggregate settlements occur "when two or more clients who are represented by the same lawyer together resolve their claims or defenses or pleas," even if all of the lawyer's clients do not face criminal charges, have the same claims or defenses, or "participate in the matter's resolution." Aggregate settlements may arise in connection with a joint representation in the same matter, but "they also may arise in separate cases" -- as with "claims for breach of warranties against a home builder brought by several home purchasers represented by the same lawyer, even though each claim is filed as a separate law suit and arises with respect to a different home, a different breach, and even a different subdivision." Similarly, aggregate settlements may "take a variety of forms." For instance, "a settlement offer may consist of a sum of money offered to or demanded by multiple clients with or without specifying the amount to be paid to or by each client," when "a claimant makes an offer to settle a claim for damages with two or more defendants," or when "a prosecutor accepts pleas from two or more criminal defendants as part of one agreement." Model Rule 1.8(g) "deters lawyers from favoring one client over another in settlement negotiations by requiring that lawyers reveal to all clients information relevant to the proposed settlement." Among other things, lawyers may not enter into agreements "that allow[] for a settlement based upon a 'majority vote' of the clients" the lawyer represents. "[B]est practices would include the details of the necessary disclosures in . . . writings signed by the clients." Information required to be disclosed under Model Rule 1.8(g) might be protected by Model Rule 1.6, which requires the clients' consent for disclosure to the other clients. "The best practice would be to obtain this consent at the outset of representation if possible, or at least to alert the clients that disclosure of confidential information might be necessary in order to effectuate an aggregate settlement or aggregated agreement." Lawyers should also advise their clients "of the risk that if the offer or demand requires the consent of all commonly represented litigants, the failure of one or a few members of the group to consent to the settlement may result in the withdrawal of the offer or demand." | 2/10/2006 |
ABA-381
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| ABA Model Rule 5.6(a) prohibits an offer or acceptance of an agreement "never to represent anyone against the corporation in the future" by: (1) an outside lawyer representing the corporation; or (2) an in-house lawyer employed by the corporation. Such agreements impermissibly "limit a lawyer's 'professional autonomy '" and "limit 'the freedom of clients to choose a lawyer.'"; "A lawyer may not ethically ask for nor may a lawyer agree to any further restriction [beyond that imposed by ABA Model Rule 1.9] unnecessarily compromising the strong policy in favor of providing the public with a free choice of counsel." | 5/9/1994 |
1857
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| Because of the inherent conflict, a criminal defense lawyer may not ethically advise a client to accept a plea agreement provision that "operates as a waiver of the client's right to claim ineffective assistance of counsel." Some states do not ever allow defense lawyers to advise clients about the issue, but here the defense lawyer was reacting to the prosecutor's proposed plea agreement. Prosecutors may not offer a plea agreement "containing a provision that has the intent and legal effect of waiving the defendant's right to claim ineffective assistance of counsel. | 7/21/2011 |
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 |
1730
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| Lawyers who represent judges may discount their fees as a professional courtesy if they would do the same for other friends and colleagues. A lawyer appearing before a judge that the lawyer is representing faces a conflict of interest [the Bar does not indicate how to resolve the conflict, but presumably the parties may consent to the judge's handling of the case upon full disclosure.] | 3/26/1999 |
1893
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| Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" - because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad !item's appointment or judicial approval of an infant settlement - and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend." | 4/12/2023 |
ABA-371
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| Rule 5.6's limits on lawyers' agreements to limit their practice restrict what lawyers may offer or agree to in settlement agreements, despite "[t]he pressure to find creative solutions to mass tort litigation" (in an opinion presumably critical of the settlement agreement in mass tort litigation against Merck arising from the Vioxx crisis). "[A] lawyer cannot agree to refrain from representing present or future clients against a defendant pursuant to a settlement agreement on behalf of current clients even in the mass tort, global settlement context." "Certainly that situation is presented here where among the lawyer's present clients are (a) individuals who wish to accept the present settlement, (b) individuals who wish to go on the deferred docket and might be perfectly happy to accept the predetermined amount established in the proposed settlement at a later date, and (c) individuals who either now or, after being on the deferred docket a period of time, wish to have their claims individually adjudicated. There may also be a conflict simply among the lawyer's clients in category (c)." "Thus, we conclude that ... the lawyer may not proceed with the settlement on behalf of his present clients unless he resolves this conflict among them by seeking an appropriate waiver, if that is possible, or securing, with the clients' consent, alternative counsel for those whose interests differ from those who wish to pursue that portion of the global settlement which provides predetermined settlement amounts." | 4/16/1993 |
ABA-364
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| Sexual relations with clients may violate the Model Rules and lawyers "would be well advised to refrain from such a relationship." The client's consent to such a relationship "will rarely be sufficient" to eliminate the ethical dangers, and a lawyer whose conduct has been challenged will be called upon to establish that the client consented after full disclosure and was not harmed by the relationship. | 7/6/1992 |
ABA-481
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| The Model Rules require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. The lawyer must so inform the client promptly under the circumstances. Whether notification is prompt is a case- and fact-specific inquiry. No similar duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation. Good business and risk management reasons may exist for lawyers to inform former clients of their material errors when they can do so in time to avoid or mitigate any potential harm or prejudice to the former client. An attorney-client relationship ends when: the engagement letter specifies such a time, the lawyer or the client explicitly end the relationship, "when overt acts inconsistent with the continuation of the attorney-client relationship indicate that the relationship has ended," or "when it would be objectively unreasonably to continue to bind the parties to each other." An "episodic" client might be a continuing client in the absence of any ongoing matter if the client periodically engaged the lawyer, and the client "reasonably expects that the professional relationship will span any [such] intervals and that the lawyer will be available when the client next needs representation." | 4/17/2018 |