The Law for Lawyers Today

The Law for Lawyers Today

Ethics, Professional Responsibility and More

Category Archives: Conflicts

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Bring third-party funders out of “the shadows,” U.S. Chamber asks federal rules committee

Posted in Conflicts, Fees, Law Practice Management
Litigation funding is in the news again, with the U.S. Chamber of Commerce spearheading a request to amend the Federal Rules of Civil Procedure to require initial disclosure of all third-party agreements for compensation that are “contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment or otherwise.” The Chamber joined… Continue Reading

How far does DQ extend? NY appeals court says not that far, reinstating co-counsel

Posted in Conflicts, Disqualification
When a conflict of interest crops up during a case, Ethics 101 tells us that the "taint" of that conflict can spread, and potentially knock out all the lawyers of the affected firm. Model Rule 1.10, "Imputation of Conflicts" explains the rule. But how far does that disqualification go? A New York appeals court examined this question in December, and reversed a DQ order in a personal injury suit.… Continue Reading

Batting clean-up on 2016: positional conflicts, settlements and your firm letterhead

Posted in Conflicts, How Not to Practice, Law Practice Management
You may have some holiday leftovers lurking in your fridge (potato latkes, Xmas goose, black-eyed peas, New Year’s Eve caviar), and we too have some interesting ethics topics that we didn’t have room for during 2016 — so here’s a potpourri, touching on positional conflicts, coercive settlements and maybe how not to use your firm’s… Continue Reading

Expressing your opinion via social media can create conflict, D.C. ethics opinion warns

Posted in Conflicts, Social Media and Internet
If you "like" a political Facebook post, or tweet a comment on a controversial legal topic, are you potentially creating an ethical conflict of interest with your clients who may have contrary interests? The District of Columbia bar ethics committee thinks so, and warns about the risk in its Opinion 370, issued late last month.… Continue Reading

Ethics opinion nixes use of verein names in TX, but firms say “Business as usual.”

Posted in Disqualification, Law Practice Management, Multi-jurisdictional practice, Unauthorized practice
As we've predicted before, the increasing globalization of high-level legal practice continues to create questions about forms of legal practice – in particular, vereins, a structure aimed at letting firms based in different countries operate under a unified brand. Mega-firms Fulbright & Jaworski and Dentons have faced motions to disqualify centered on structural issues, and now a Texas ethics opinion issued last month questions whether lawyers in the Lone Star state can use a verein name on pleadings.… Continue Reading

Hiring student law clerks and avoiding disqualification — two states weigh in

Posted in Conflicts, Ethical screens
It's common for law students to clerk for a couple different firms during their law-school years. When a student law clerk you hire has worked for a firm representing a party adverse to your client, what happens? Is the student disqualified from working on your matter? Is your whole firm disqualified? Can you screen the clerk and solve the problem? Two recent ethics opinions out of Texas and Ohio clarify the rules. … Continue Reading

Lawyer must reveal co-counsel’s error to client if it could raise malpractice claim

Posted in Communication, Conflicts, How Not to Practice, Malpractice
What should you do when you are co-counsel on a case or in a deal, and you become aware that the other lawyer has made an error? A new ethics opinion from the New York State Bar Association says that if you reasonably believe that your co-counsel has committed a significant error or omission that may give rise to a malpractice claim, you must disclose the information to the client.… Continue Reading

Violating confidentiality order results in lawyer’s DQ and referral to state ethics board

Posted in Confidentiality, Disqualification, How Not to Practice
Courts often analyze motions to disqualify by balancing the need to uphold professional standards against the rights of clients to choose their lawyers freely. The New Jersey court of appeals struck that balance earlier this month in upholding the disqualification of a lawyer who violated a confidentiality order, finding that the lawyer knowingly disobeyed a court order, among other violations.… Continue Reading

Privilege shields internal firm discussions about conflict, N.D. Cal. magistrate rules

Posted in Conflicts, In-house Counsel, Privilege
Internal discussions among Orrick's chief legal officer and other firm lawyers about a conflict of interest remain privileged under federal common law, a federal magistrate judge for the Northern District of California has held, in quashing a third-party subpoena directed to the firm -- even though the firm still represented the client at the time of the discussions. The opinion is the latest in the line of federal and state cases that have been developing a jurisprudence of law-firm privilege.… Continue Reading

Five legal ethics developments to watch in 2016

Posted in Competence, Conflicts, Law Practice Management, Multi-jurisdictional practice, Privilege, Social Media and Internet
What was the most important development in the legal ethics arena over the past five years?  I was honored to be asked by LexBlog, the folks who provide our blog platform, to share my views on this topic on the LXBN network, which has 8,000+ blog authors.  But of course, the invitation also made me think about… Continue Reading

Celgard DQ decision– sky is not falling, but representing economic competitors still merits caution

Posted in Conflicts, Disqualification
Celgard, LLC v. LG Chem, Ltd., a disqualification case decided by the Federal Circuit, continues to make waves.  Insightful commentary from Ronald Rotunda is here; he notes that typing the case name into Google yields more than 5,000 hits. Last December, when the opinion came out, there was concern (see here and here) that if read broadly, Celgard… Continue Reading

Lesson from the trenches: Playing ostrich is no option for general counsel

Posted in Conflicts, In-house Counsel, Law Practice Management
Every year, the Association of Corporate Counsel takes the temperature of inside counsel practice by surveying general counsel and chief legal officers across a wide number of sectors.  Unsurprisingly, the 2015 survey, with nearly 1,300 respondents, put ethics and compliance at the top of the list of chief legal officer concerns, together with data security,… Continue Reading

“Comprehensive” ethical screen fails to avoid disqualification from side-switching paralegal

Posted in Disqualification, Ethical screens
Small may be beautiful, but when it comes to law firms, small can signal disqualification troubles that a bigger firm might sometimes be able to avoid, according to the reasoning of a recent opinion. We’ve posted here before about screening non-lawyer personnel in order to avoid imputed disqualification when a secretary or paralegal arrives at your… Continue Reading

“Appearance of impropriety” is now dead in Kentucky

Posted in Disqualification
Although almost every U.S. jurisdiction now has some version of the ABA’s Model Rules of Professional Conduct, some of us who have been around awhile remember the old Disciplinary Rules, which governed lawyer conduct under the former Model Code of Professional Responsibility.  (Or maybe you remember the Disciplinary Rules because you practice in a state… Continue Reading

No disqualification, even where parent and subsidiary are unified, district court rules

Posted in Conflicts, Corporate Family Tree, Disqualification
Although a corporate parent and its subsidiary may be unified in structure, that may not be enough to disqualify a law firm that is involved in suing the subsidiary while representing the parent. That’s the message the U.S. District Court for the Southern District of New York recently sent via its decision in HLP Properties, LLC v.… Continue Reading

No inherent conflict in confessing judgment via cognovit note, Ohio Board says

Posted in Conflicts
Confessing judgment on behalf of a cognovit note debtor does not place a lawyer in an inherent conflict of interest, the Ohio Board of Commissioners on Grievances and Discipline has held in an advisory opinion. The Ohio Board’s opinion updates an older opinion issued under the state’s former Code of Professional Responsibility.  (Ohio adopted its… Continue Reading