A common situation faced by law firms – and especially larger law firms – is the potential conflicts and disqualifications posed by Model Rule 1.10(a)’s imputation of one lawyer’s conflicts to all lawyers in the firm.  This can become a substantial issue when different lawyers get initial calls from different parties to an event or transaction seeking counsel.  When different lawyers get confidential information from adverse parties, even without agreeing to be their lawyer, the end result is that the entire Firm can be disqualified from representing anyone

The American Bar Association Standing Committee on Ethics and Professional Responsibility (the “Committee”) in their recent Formal Opinion 510, issued late last month, focuses on how to avoid the imputation of conflicts in the context of prospective client interactions.  The Committee also provides lawyers with guidance on the reasonable measures they must take to avoid imputing conflicts to the entire law firm.

Under Model Rule 1.18, when a prospective client does not retain a lawyer after consultation, that lawyer is disqualified from representing a client adverse to the prospective client in the same or a substantially related matter if the prospective client shared “disqualifying information” with the lawyer. Disqualifying information is information that may be “significantly harmful to the prospective client in the matter.” Under Model Rule 1.10(a), a lawyer’s conflict is typically imputed to all other lawyers in the firm. This is consistent with Model Rule 1.18(c) in the context of prospective clients. However, representation can still be permissible if the conduct falls under Model Rule 1.18(d). There is no imputation when writen consent is provided by both the potential client and affected client, under Model Rule 1.18(d)(1). When consent is not provided, representaton can still be permissible under Model Rule 1.18(d)(2), so long reasonable measures are taken.

Reasonable measures

When consent is not provided, representation can still be permissible under Model Rule 1.18(d)(2) as long as 1) reasonable measures were taken to avoid learning more disqualifying information than reasonably necessary to determine whether to represent the client, 2) the lawyer is timely screened from participation and not apportioned any fees from the representation, and 3) prompt, written notice is provided to the prospective client. What measures are reasonable can depend on a host of facts, including the lawyer’s background and experience, the identity of the client, and the type of engagement.

Information necessary to assess whether to take on the representation

Lawyers may obtain two types of information during an initial consultation to aid in the determination of whether to accept a representation. The first relates to the lawyer’s professional responsibilities, such as the identity of parties needed to assess the permissibility of the representation under the applicable Rules of Professional Conduct.  The lawyer may also obtain information necessary for the lawyer to assess whether they are competent to handle the matter, whether the prospective client intends to use the lawyer’s services to perpetuate a crime or fraud, or to determine if the client’s claim was frivolous.

The second type of information relates to the lawyer’s business decisions—such as whether the lawyer wants to take on such representation. Information that would assist in this determination would include how time intensive the matter would be, how much income could be generated Modfrom taking on the matter, the probability of being fully compensated, the possible expenses associated with the representation, and whether taking on the matter is consistent with the lawyer’s law firm’s internal policies.

Lawyers are cautioned not to take their questioning too far – the Rule contemplates only obtaining the information reasonably necessary.  A line of questioning designed to or going beyond that necessary to obtain only the information truly needed to determine whether to accept the representation will still raise the possibility of disqualification. The Committee gives various examples, including extracting detailed information designed to convince the prospective client to retain the lawyer, offering strategic insight, or taking the opportunity to promote themselves.

Reasonably necessary inquiry

The Committee reminds lawyers that their line of questioning may be for legitimate or permissible purposes, but that does not mean the inquiry is “necessary” to the lawyer’s determination whether to represent the prospective client. For instance, Model Rule 3.1 prohibits lawyers from bringing or defending a frivolous proceeding. But during the initial consultation, a brief inquiry would generally be all that is required for a lawyer to determine whether a proposed lawsuit is frivolous and thus whether to take on the representation, but more than that would not be “reasonably necessary”. The more detailed inquiry into such facts and research of law would be undertaken during the representation to comply with Model Rule 3.1.

The bottom line is that once a lawyer has enough information to determine whether to take on the prospective representation, any further inquiry can no longer be deemed “necessary.” Once the lawyer determines he or she will decline the representation or is required to turn down the representation, stopping the inquiry completely will put the lawyer in the best position to avoid imputing the conflict to the whole firm.

You just figured out that the materials you got from opposing counsel include documents that may have been inadvertently included.  What should you do? Model Rule 4.4(b) provides a clear answer—promptly notify the sender. But what happens when you receive, through non-party discovery, a DropBox link that supplies you with live access to opposing party’s corporate file directory? A court in New York was recently presented with this novel question.

How did this happen?

Defendants subpoenaed documents from Plaintiff’s financial consultant. The production contained emails that contained links to a DropBox site. Plaintiff used the site in lieu of an in-house server to store its electronic files.  For about a week, Defendants’ counsel and the client used the links to download and review the Plaintiff’s unproduced documents before finally alerting Plaintiff’s counsel and warning of their intent to use the accessed materials.

Thinking beyond the Rule 

Similar to the Model Rules, New York’s Rule 4.4(b) requires lawyers to promptly notify the sender upon receiving documents related to the representation of the lawyer’s client when the lawyer knows or reasonably should know were inadvertently sent. In addressing the obligations, the Commercial Division referenced both Cmt.[2] and Cmt.[3] in its Decision. The court concluded that the Rule does not support the argument that Defendant’s counsel was allowed to download and examine Plaintiff’s electronically stored corporate files prior to notifying Plaintiff’s counsel.

Cmt.[2] in relevant part provides that “Although this Rule does not require that the receiving lawyer refrain from reading or continuing to read the document, a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion. Whether the lawyer or law firm is required to take additional steps, such as returning the document or other writing, is a matter of law beyond the scope of these Rules, as is the question whether the privileged status of a document or other writing has been waived.”

Cmt.[3] in relevant part provides that “Nevertheless, substantive law or procedural rules may require a lawyer to refrain from reading an inadvertently sent document or other writing, or to return the document or other writing to the sender or permanently delete electronically stored information, or both. Accordingly, in deciding whether to retain or use an inadvertently received document or other writing, some lawyers may take into account whether the attorney-client privilege would attach. But if applicable law or rules do not address the situation, decisions to refrain from reading such a document or other writing or instead to return them, or both, are matters of professional judgment reserved to the lawyer.”

A distinction should be drawn here

The court found that the difference between the issue being one of whether the review of and use of was permissible under the more typical situation under Rule 4.4(b) where one received inadvertently received individual privileged documents in discovery is that the corporate file directory was not actually produced. Instead, the corporate directory was secretly and continually accessed by Defendant and their counsel under circumstances that should have raised red flags and that were outside of the scope of discovery. Further, while Plaintiff should have taken greater precautions to secure its DropBox files, that still did not authorize Defendants to rummage through these electronically stored files without authorization. The Court found that the Defendant should have notified opposing counsel and/or requested direction from the court as to what use could be made from the documents accessed through the DropBox.   

The Decision

The court found that the cases provided did not suggest “that when an e-mail contains a link to an entire cloud-based file directory to facilitate the recipient’s provision of services (i.e., not as a link to specific documents referenced in the email), that automatically means that the producing party’s entire cloud-based file directory becomes fair game for discovery.”

Accordingly, the Defendants were ordered to return all documents from the DropBox that were not independently produced during discovery, destroy all notes and derivative work product flowing from such documents, and for Defendants (counsel and client) to pay plaintiff for the cost of bringing the motion for protective order and for attorneys’ fees—to the tune of $155,977.  The Decision has been appealed. Upon motion, the court denied Defendant’s challenge to the attorney fees award, but stayed the enforcement of the sanctions award pending appeal due to the novelty of the issue. 

Takeaway

While your jurisdiction’s ethics rules may or may not explicitly prohibit lawyers from reviewing inadvertently sent documents or links to document, do not just assume that you are allowed to keep reviewing the materials or that you can use the materials in any meaningful way, especially without researching the applicable substantive rules. While you may at first think you got a lucky break by seeing the materials, what you do afterward may cost your client and firm a substantial amount of money and harm.

Like it or not, artificial intelligence is not going away and it’s evolving—quickly.  While AI talk has been brewing for quite some time, many of us assumed AI’s direct effect on our business was still years off.  But over the last year the pace of development and use has accelerated exponentially and it is now obvious that lawyers must address numerous AI issues head on. Technological and societal changes often outpace the law, but lawyers remain ethically bound to stay abreast of changes in the law, including relevant technology. So, where do lawyers turn for ethical guidance when, as one authority has noted, “even for those who create generative AI products, there is a lack of clarity as to how it works?”

Recent guidance and resources

California’s Practical Guidance Executive Summary is one great resource. The Florida Bar Board of Governors’ Review Committee on Professional Ethics has issued Proposed Advisory Opinion 24-1. Also leading the charge, Michigan issued an ethics opinion, which confirms that judges have an ethical duty to understand artificial intelligence. Ethics counsel for the North Carolina State Bar also lists several ethics rules lawyers should be considering when using AI.

The American Bar Association recently created its Task Force on Law and Artificial Intelligence.  The New York State Bar Association created their own AI Task Force as well. Stay tuned for additional guidance from local and state bar associations.

Watch out for these ethics rules   

The Rules of Professional Conduct are written broadly enough to cover AI, even if the words “artificial intelligence” cannot be found in the rules or comments. While AI issues are easily found in several other rules, here are the most rules most often implicated:

  • 1.1 (Competence) Lawyers have a duty to provide competent representation. Do not overly rely on AI. Before using an AI tool, lawyers should have a reasonable degree of understanding.
  • 1.4 (Communication) Lawyers have an ethical duty to keep their clients reasonably informed, which will vary based on the circumstances and may include the use of AI.
  • 1.5 (Fees) Lawyers should not overcharge clients for time saved by using AI. Lawyers should be clear about who is paying for the costs associated with AI.
  • 1.6 (Confidentiality)  Lawyers must protect the confidential information of their client, including from inadvertent disclosure. This may necessitate working with IT and asking for client consent in advance.
  • 5.1 and 5.3 (Supervision) Lawyers must ensure proper training, supervision, and adherence to policies.  
  • 8.4 (Misconduct) AI systems may be trained on biased information. Lawyers must be watchful in identifying and addressing biases in AI tools to make certain they provide fair and unbiased legal services to their clients. Lawyers should continue learning about AI biases and their impact on the legal practice.

A few other practical tips

  • Start looking for changes in local rules and standing orders governing use of AI in the courtroom. For instance, the United States Court of Appeals for the Fifth Circuit has proposed to amend its rule to require lawyers and pro se parties alike to certify that no generative AI program was used to draft the document presented for filing, but if generative AI was used, that a human has reviewed the material for accuracy and approved it as well.
  • Always review documents and pleadings for accuracy before submitting to your client or the court!
  • AI for legal purposes is not cheap.  It can be priced many different ways that cost may increase over time.  So it is now the time to consider how AI will factor into the firm budget and pricing structures.  That also means that prudent lawyers will discuss he use of AI with their clients, including an understanding as to who is footing the bill.
  • Pay close attention to detect AI provisions in agreements, engagement letter, and outside counsel guidelines.
  • Watch out for Unauthorized Practice of Law (UPL) issues by leaving tasks that require legal judgment solely up to AI.

If you have not heard of the Corporate Transparency Act (CTA), now is the time to become familiar. Millions of companies will be affected by its reporting requirements. With the effective date being right around the corner, all lawyers need to be thinking about the CTA. The CTA, which Congress passed as a component of the Anti-Money Laundering Act of 2020, was created to enable the government to prevent, detect, and combat money laundering, the funding of terrorism, and other prohibited activity by requiring certain companies to report their beneficial ownership information to the Financial Crimes Enforcement Network division of the U.S. Department of the Treasury (“FinCEN”). There are still some moving parts with the CTA. For example, the reporting form is not yet available. However, the ethical implications inherent in CTA compliance must be considered now.

Reporting Companies & Beneficial Ownership

Companies that are deemed to be “Reporting Companies” are required to report beneficial ownership to FinCEN. There are two types of ”Reporting Companies”: Domestic Reporting Companies and Foreign Reporting Companies. There are currently twenty-three (23) exceptions that exempt entities that would otherwise be considered a Reporting Company. Lawyers and law firms alike will want to consider whether they intend to assist clients in ascertaining whether the client is a “Reporting Company.”

A beneficial owner is an individual who either directly or indirectly: (1) exercises substantial control over the reporting company, or (2) owns or controls at least 25% of the reporting company’s ownership interests. However, the Reporting Company does not have to report an individual as a beneficial owner to FinCEN should that individual fall under one of the five qualifying exceptions to the beneficial owner definition. Similarly, lawyers will want to consider whether they intend to assist clients in determining whether an individual qualifies as a beneficial owner.

Of specific interest to attorneys – the CTA also requires up to two “company applicants” to be identified for entities formed after January 1, 2024.  This may implicate law firms if they are involved in the preparation or filing or formation documents for clients.  The lawyers or paralegals providing those services would have the corresponding obligation under the CTA to register with FinCEN as a company applicant for the client.

Timing & Penalties

If an entity was formed before January 1, 2024, its report must be filed with FinCEN no later than January 1, 2025. Entities that are formed on or after January 1, 2024, have only ninety calendar days to file the report. Companies only have thirty days to report a change. Lawyers who intend to prepare and file CTA reports, monitor for changes in “Beneficial Owners” that would trigger an update, or otherwise dive into CTA related representations, must bear in mind that the CTA includes stiff civil fines and criminal penalties, such as potential imprisonment.  Failure to comply not only impacts clients but can lead to potential penalties for firms and for individual lawyers involved in violating its provisions.

Abundance of Ethical Considerations

The effect of the CTA is far reaching. Many practitioners will feel the impact it has on their practice, but all practitioners should know about it. Lawyers have a duty to stay abreast of changes to the law and the reporting requirements found in the CTA certainly qualify as a change. For example, the CTA likely implicates the provisions you want to include in employment agreements, shareholder agreements, or LLC operating agreements to require beneficial owners to provide the information needed by the entity to comply with the CTA’s reporting requirements.  In addition, due diligence for loans, mergers and acquisitions will likely need to include CTA compliance.   

Lawyers also have a duty to keep their current clients reasonably informed about the representation. While there is no duty to notify former clients, lawyers will want to be diligent in notifying current clients about the CTA. Now is the time to determine if the client is former or current.

Don’t wait until January to determine your firm’s capacity or desire to handle CTA related engagements and how it impacts various practice areas. Limitations on the scope of your representation will need to be clearly communicated with your clients. You will want to evaluate any third-party referrals for CTA filings and corporate formation filings.  If your firm will play a role in corporate formations and filings, you will want to consider who will be responsible for such filings and how to track and update FinCEN registration for those individuals.  Finally, you will want to start thinking of changes in firm policy and procedure that align with your level of involvement in CTA related representations, and ensure all staff are properly trained and supervised to comply accordingly.

Qualified non-lawyer support staff is a key component to the operation of many law firms and law offices across the country. Accordingly, the lawyers in those firms have a great interest in retaining exceptional nonlawyer staff.  But the Ohio Board of Professional Conduct (the “Board”), recently reminded lawyers of the ethical restrictions placed upon them when it comes to financially incentivizing these outstanding employees they seek to retain. Just last month, the Board issued Opinion 2023-11, which concludes that lawyers are prohibited from paying bonuses to nonlawyer staff when exclusively based on the staff member receiving a positive online review. While the opinion was addressed to a specific request regarding online reviews, the Board also explained why other similar arrangements are ethically impermissible.

Sharing of legal fees  

As with the Model Rule adopted in most states, lawyers in Ohio  are forbidden from sharing in legal fees with nonlawyers pursuant to Ohio’s Rule 5.4.  The Board clarified that non-lawyers may receive bonuses in several contexts, including retirement and other compensation plans like profit-sharing agreements and annual bonuses tied to the gross fees earned by the specific lawyer they are assigned to during the year.  But the Board concluded that lawyers fall out of bounds when nonlawyers participate in plans that tie the shared profits to specific clients or specific matters.

Structuring bonuses

Turning to Texas and Florida for guidance, the Board suggests that lawyers may permissibly consider the following factors when assessing whether to pay a bonus to nonlawyer staff: (1) revenue, (2) expenses, (3) profit, or (4) the exceptional efforts of a nonlegal staff member. But the Opinion cautions that the Rule may be broken when bonuses are: (1) reliant on the outcome of a case, (2) based on the number of clients worked with, (3) treated as a “commission” or “referral” payment for bringing clients to the firm, (4) solely based on number of hours billed by the nonlegal staff member, or (5) based on the percentage of fees earned on any particular case. The Board explained that a managerial lawyer’s duty to supervise staff under Ohio’s Rule 5.3 requires the lawyer to be aware of when a specific staff member is providing extraordinary service to firm clients. Even so, receiving a positive online review is not necessary in deciding whether a nonlawyer employee is providing excellent service.  Accordingly, the Board concluded that tying a bonus to whether the nonlawyer staff received a positive online review is prohibited as it ties the bonus to a specific client or matter.

Undue influence, intimidation, or overreaching

The Board also addressed the interplay with Ohio’s Rule 7.2(b), which prohibits giving something of value for recommending the lawyer’s services.   While tying a bonus to a positive online review may not necessarily result in a violation of 7.2(b), the potential for undue influence, intimidation, or overreaching certainly exists within that type of bonus structure.  For instance, if the nonlawyer staff notifies the client that their bonus is contingent upon the client posting a positive online review, the client may feel uneasy or pestered to provide the review especially if the request is made repeatedly or during the representation.   The client may also feel forced to leave a positive review for fear that the quality of the representation may suffer if they don’t leave a good review. The Opinion ends with the Board advising lawyers that while “the rules do not exhaust the moral and ethical considerations that should inform a lawyer”, lawyers should avoid bonus structures that cast doubt on whether the lawyer or their nonlawyer staff has exercised undue influence, intimidation, or overreaching to advance his or her own interests.

The ABA Standing Committee on Ethics and Professional Responsibility, (the Committee”) recently issued Formal Opinion 508—which highlights the differences between proper witness preparation and unethical “coaching.” The Opinion also sheds light on how remote platforms have paved the way for easier and less detectable means of improper coaching.

What is allowed?

Discussing testimony with your clients can become necessary to their representation, but a lawyer cannot seek to improperly influence the testimony—and there is no bright line rule to make the distinction.  You must be thorough in your witness preparation or else fall short of your duty of competence. It is always permissible for lawyers to remind their clients to tell the truth during witness preparation. Similarly, it is acceptable practice to remind your client that they are under oath, explain to them that a truthful answer could be “I do not recall,” suggest proper attire, decorum, and demeanor, explain the nature of the testimonial process and purpose of the deposition. It Is likewise proper for the lawyer to provide context for the witness’s testimony, to inquire into the witness’s probable testimony and recollection and even identify other testimony that is expected to be presented and explore the witness’s version of events considering that testimony.

Witness preparation conduct that crosses the ethical line

Interaction with witnesses before and during testimony can both raise ethical issues.  Model Rule 3.4(b) prohibits a lawyer from advising or assisting a witness in giving false testimony (and probably Model Rule 1.2(d) and Model Rule 3.3(a)(3) as well). The Committee points out that encouraging false testimony can occur even if a lawyer does not instruct the witness to lie—such as telling a witness to downplay facts (such as the number of times they met with the lawyer to prepare). Lawyers must be careful when suggesting words to use or avoid, making sure that the taking of such advice does not result in the delivery of false testimony. Likewise, allowing your client to testify to fabricated evidence is an ethical violation.  It is also unethical for lawyers to advise clients or witnesses to disobey a court order regulating discovery or the trial process, offering an unlawful inducement to a witness, or procuring a witness’s absence from a proceeding.

Conduct during witness testimony that crosses the ethical line

Refining witness testimony during trial or deposition can also present ethical considerations. Manipulating testimony that is actually in progress would generally violate Model Rule 8.4(d)—conduct prejudicial to the administration of justice. Model Rule 3.4(c) would also be violated by failing to adhere to a court order restricting coaching behavior.  Many jurisdictions, for example, have specific rules about the content of objections made during a deposition.  “Speaking” or “suggestive” objections go beyond stating the basis for the objection and are suspected of being intended to impede the deposing lawyer’s discovery. Objections should not be used to instruct a witness how respond to the questions. Lawyers must also avoid physically signaling to their witnesses during testimony.

Remote considerations

              Formal Opinion 508 also addresses the fact that remote platforms and other technology provide ample opportunity for lawyers to secretly tell witnesses what to say or signal what not to say during proceedings. With changes in the legal practice, it is not uncommon that a witness, lawyer, and adjudicative officer could be sitting in three different locations during a remote proceeding. Sitting “off camera” makes it relatively easy to signal a witness without being detected. While it is improper for a lawyer to text or otherwise message a witness in the middle of a proceeding, one can see how it is effortlessly accomplished.  Lawyers have a duty to maintain a degree of technological competence. Understanding the risks involved with coaching in remote settings will allow lawyers and adjudicative officers to structure remote proceedings in a way that will help to deter its occurrence and increase detection.

The Committee concludes by suggesting several approaches to systematically address such conduct, though it points out that the approaches are not required under the Model Rules. Suggested methods include skillful cross-examination (questioning the witness as to the extent of any coaching), court orders directing uninterrupted testimony, and inclusion of protocols in remote deposition orders, scheduling orders, and proposed discovery plans. 

Rule 1.8 addresses conflicts that can arise between a lawyer and client (as opposed conflicts between clients).  Prior to the adoption of Model Rule 1.8 in 1983, the ABA Model Code flatly prohibited agreements limiting liability. DR 6-102(A) provided that “A lawyer shall not attempt to exonerate himself from or limit his ability to his client for his personal malpractice.” This rule was in stark contrast to the rules governing many others, including large accounting firms and lawyers in Europe, who often had agreements limiting their liability to clients for their work on deals alongside American lawyers who could not limit their liability (which raised numerous problems with potential disproportionate liability for deals gone bad). 

Model Rule 1.8 (adopted in 1983) softened the complete ban, adding conditions to make such prospective agreements permissible, yet still protecting client’s best interests in requiring the advice of independent counsel.  The first part of the Rule would then read “A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement…” This amendment put some American lawyers on the same footing as colleagues here and abroad, but it was not widely adopted.

In 2002, the ABA again amended Model Rule 1.8(h), to eliminate the “unless permitted by law” requirement. The drafters supported the deletion by explaining that they were not aware of any such law.  Model Rule 1.8(h)(1) now states that “A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement”.

Today, some states have adopted the revised rule.  And many of the states that have amended their version of Rule 1.8 deviate from the language found in Model Rule 1.8, resulting in varied degrees of permissibility as to whether their lawyers may prospectively limit malpractice liability to clients.   Approximately 28 states have adopted the language in Model Rule 1.8(h)(1) entirely. Seven states have similar language to that of the Model Rule but have added the requirement that such agreement must also be “permitted by law”. Nine states still outright prohibit such prospective agreement. The seven remaining states have language that does not squarely  fit into any of the aforementioned categories. The reasons for wanting to limit your liability in any given situation are likely obvious, but whether or how you should pursue such endeavor is far less clear.  

 Choose your language wisely  

Attorneys licensed in multiple jurisdictions and law firms spanning across multiple states must be keenly aware of any differences in the applicable rules.  Even in jurisdictions that permit lawyers to prospectively limit malpractice liability, lawyers must be careful to stay within the confines of the rules when drafting.  Ohio reminds lawyers that (their) Rule 1.8 allows for the prospective waiver of malpractice claims under certain conditions, but such permissibility does not extend to disciplinary proceedings.  Limiting malpractice claims is not synonymous with limiting the client’s ability to file a disciplinary grievance. Using the wrong language could subject the lawyer to additional rule violations.  Requiring a current or former client to refrain from filing a disciplinary grievance constitutes conduct prejudicial to the administration of justice under Rule 8.4(d) and conduct adversely reflecting on fitness to practice law under Rule 8.4(h).  

In Illinois, the Rules do not permit lawyers to prospectively agree with their legal clients that advice given to such clients in connection with insurance or investment products is not intended to be and should not be deemed legal advice, even if such determination could be reliably made. The Committee opined that such agreement is effectively one that prospectively limiting the lawyer’s liability to the client. Such agreements are prohibited by Rule 1.8 unless the requisite conditions are satisfied.

Wide spectrum of issues

Merely refraining from plugging in prospective agreements into your engagement letters will not ensure Rule 1.8 compliance. Lawyers barred in jurisdictions like DC, where such agreements are forbidden, must still examine less obvious conduct that may constitute a Rule 1.8 violation. For instance, many attorneys sit on boards of various entities.  DC Opinion 382 reminds lawyers that while directors on boards can limit liability to an entity, a director may not do so, if he or she is a lawyer, otherwise it violates the rule. 

While New York similarly prohibits lawyers from prospectively limiting malpractice liability, one New York opinion found that 1.8(h) is not violated simply due to a lawyer advising a client to accept a plea deal that includes waiving an ineffective assistance of counsel claim on appeal.  The basis was that advising the client does not constitute “making an agreement” and the giving of such advice does not make the lawyer a party to such agreement.  Plus, the lawyer could still be sued for malpractice.

What about employment concerns? Georgia opined that in-house lawyers employed by corporations do not violate 1.8(h) by entering into agreements with their employers which hold the lawyer harmless for malpractice committed within the course of his or her employment, if the employer is exercising an informed business judgment in utilizing the “hold harmless” agreement in lieu of malpractice insurance on the advice of counsel and the agreement is permitted by law.  The position of the client as employer and the sophistication of those who employ in-house counsel satisfies the concerns of overreaching. Plus, such agreement does not limit liability to third parties affected by in-house counsel representation. 

How about the structure of the firm? Mississippi opined that changing the form of practice from a professional corporation or general partnership to a “Professional Limited Liability Company” does not equate an agreement to limit liability under M.R.C.P. 1.8(h).

More than meets the eye

Lawyers may falsely see a green light if their state allows for the prospective limitation of malpractice liability. Prospectively limiting malpractice liability is a conflict of interest and compliance requires satisfaction of the Rule 1.8 conditions. Lawyers must be careful in choosing which words should or shouldn’t be used in the agreement. Lawyers in all jurisdictions, including where such agreements are prohibited, must also look beneath the surface of their conduct, and ultimately contemplate whether such conduct indirectly violates Rule 1.8(h).

Multijurisdictional practice can make any lawyer’s head spin, especially for lawyers licensed in multiple jurisdictions. The ABA Standing Committee of Ethics and Professional Responsibility, (the “Committee”) recently issued Formal Opinion 504, which breaks down the choice-of-law rules found in Model Rule 8.5.

Litigation

Model Rule 8.5(b)(1) provides that, for conduct in connection with a matter pending before a tribunal[1], ethics rules of the jurisdiction in which the tribunal sits shall apply.

  • Scenario: State A allows firms to have nonlawyer partners. State B adopted Model Rule 5.4, prohibiting firms from having nonlawyer partners. Lawyer is only admitted in State A. Lawyer’s office is in State A. Lawyer will appear pro hac vice before a State B tribunal. Will ethics rules in State B prevent Lawyer from sharing fees earned on the case with nonlawyer partners?
  • Answer: The ethics rules of the tribunal (State B) would apply to conduct in that tribunal’s matter, including conduct in representing the client in the proceeding and in dealings with the tribunal, opposing counsel, and opposing party. However, law firm structure is not “conduct in connection with a matter pending before a tribunal.” Accordingly, Lawyer would conduct that analysis through Rule 8.5(b)(2), which is discussed in the next section.

Non-litigation

Model Rule 8.5(b)(2) provides that for any other conduct (i.e., not connected with a matter before a tribunal), ethics rules of the jurisdiction where the lawyer’s conduct occurred will govern. However, if the “predominant effect” is in a different jurisdiction than where the conduct occurs, the rules of that jurisdiction apply.  

  • Scenario: Lawyer is admitted and works out of State X, but is also admitted in State Y. Client lives in State X and hires Lawyer to file litigation in State Y. When drafting the fee agreement, which state’s ethics rules apply?
  • Answer: “Securing a fee agreement is “conduct in anticipation of a proceeding not yet pending before a tribunal” and, therefore, Rule 8.5(b)(2) applies.” The predominant effect would be in State X, so State X’s Rule 1.5 governs. 

The Opinion offers factors to determine where the “predominant effect” of the lawyer’s conduct occurs, including: (1) client’s location, residence, and/or principal place of business; (2) where the transaction may occur; (3) which jurisdiction’s substantive law applies to the transaction; (4) location of the lawyer’s principal office; (5) where the lawyer is admitted; (6) location of opposing party and relevant third parties (residence and/or principal place of business); and (7) jurisdiction with greatest interest in the lawyer’s conduct.

  • Scenario: Lawyer is licensed in State A and B. Lawyer’s office is in State A, which follows Model Rule 1.6. Conversely, State B does not follow Model Rule 1.6 and therefore requires a lawyer to disclose information relating to the representation to the extent the lawyer reasonably believes necessary “to prevent reasonably certain death or substantial bodily harm. State A permits but does not require the revelation of such information. Lawyer is representing Client/Buyer, who lives in State B, with the purchase of State A real estate. Negotiations occurred at Buyer’s place of business in State B. Client/Buyer threatened to seriously physically harm Seller at the next meeting if Seller won’t accept Buyer’s terms. Lawyer reasonably believes Client will act on his threat. 
  • Answer: This matter is not before a tribunal, and therefore Rule 8.5(b)(2) applies. Lawyer must look to the “rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction.” Lawyer must weigh the aforementioned factors. Both States are involved. But ethics rules from State B would likely govern as Client/Buyer resides in State B, the threat was made in State B, and the next meeting where the threat would be carried out would likely occur in State B, as that is where past meetings have been held.  

Safe Harbor

The Committee highlighted the safe-harbor provision in Model Rule 8.5(b)(2).  The last sentence provides “A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.”

Summary

While many states have adopted Model Rule 8.5, others have their own variations.  As the Committee points out, in reference to Massachusetts, variations of the Rule may lead to a different analysis. The ABA provides a state-by state guide simplifying Rule 8.5 distinctions. Be sure to check your jurisdiction(s) and think not just about what you are doing, but also where the predominant effect of your conduct may occur.


[1]  ABA Model Rule 1.0 (m): “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter”.

Your client has just been sentenced as a first-time DWI offender earlier this morning. Later in the afternoon, you are in another courthouse. Your same client is facing sentencing for another DWI. The driver’s abstract has not yet been updated to reflect that, based on the morning’s plea, your client is no longer a first-time offender.  You validate the factual inaccuracy to the judge and prosecutor by commenting that the abstract was just run that day.  Technically this is true, but you know it is no longer accurate. You and your client are the only ones in the courtroom that know. You believe it is your job to make sure your client gets the most favorable sentence possible, and you don’t want to be deemed “ineffective.” It works. Your affirmation misleads the court into believing that your client has never been convicted of a DWI, and he is sentenced as a first-time DWI offender – for the second time that day. Are you just zealously advocating for your client by failing to disclose the first DWI, or do your actions violate the rules of ethics? A New Jersey lawyer found himself in this situation and was censured.

Actual knowledge creates duty to correct court’s misinformation  

The lawyer did not believe at the time of the hearing that he had a duty to inform the court or the prosecutor of his client’s DWI conviction earlier that morning based on State v. Kane, 2015 N.J. Super. Unpub. LEXIS 277 (App. Div. Feb. 17, 2015). In Kane, the Appellate Division rejected the argument that a defense attorney was unethical in failing to disclose a newly enacted statute that his client’s conduct violated, in addition to the driving offense for which he was entering his plea. The court found that it was the prosecutor’s responsibility to have been aware of the statute’s potential applicability.   

New Jersey’s Disciplinary Review Board (“DRB”) found that Kane was inapplicable.  Kane dealt with constructive knowledge and legal facts, but this case addressed the lawyer’s actual knowledge and candor concerning material and operative facts. The duty of candor toward a tribunal created a duty to correct the court’s misundertsanding to avoid deceiving the court into imposing an improper sentence.

The DRB instead pointed to In re Seelig, 180 N.J. 234 (2004), where the Court found an attorney violated Rule 3.3(a)(5) by failing to reveal to the court that the person involved in his client’s automobile accident had died, hoping the court would accept his client’s plea to motor vehicle offenses and precluding the indictable changes based on double jeopardy. The DRB found that “The Court observed that RPC 3.3(a)(5) “compel[s] a lawyer to act affirmatively against his or her client’s interests even when the primary responsibility for informing the court does not (or may not) lie with the lawyer.” Seelig, 180 N.J. at 253. Moreover, RPC 3.3(a)(5) “impose[s] a duty to disclose in order to prevent errors in decision making by a tribunal that [. . .] has been misled because it lacks information about material facts.” Ibid.”

Misrepresentation is not a permissible litigation tactic

The DRB found that the lawyer’s breach of his duty of candor leading to the court’s improper sentencing and his dishonesty in responding to the court was conduct prejudicial to the administration of the justice system, violating Rules 8.4(c), 8.4(d), and 3.3(a)(5) of the Rules of Professional Conduct. The DRB further found that the lawyer failed to understand that “misrepresentation cannot serve as a permissible litigation tactic, even when carried out in the name of zealous advocacy.”

Zeal or no zeal?

Each jurisdiction has their own take on when ethical boundaries are crossed in the name of zealous representation. While ABA Model Rule 1.3, titled “Diligence,” itself imposes no duty of “zealous representation,” Comment [1] to ABA Model Rule 1.3 still, in part, provides that “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Some jurisdictions have started removing any requirement to act with zeal from their rules of professional conduct.  Ohio, for example,  removed the requirement to act “with zeal in advocacy upon the client’s behalf,” from its Comment [1], reasoning that “[z]ealous advocacy is often invoked as an excuse for unprofessional behavior.“ Likewise, New Jersey’s Rule 1.3 simply provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The word “zeal” does not appear. Conversely, Georgia’s Comment [1] still requires a lawyer to act with zeal in advocacy on the client’s behalf, although this would not suggest that Georgia lawyers may engage in conduct that is misleading to a tribunal.

Regardless of where your jurisdiction falls on the spectrum, always keep in mind that your desire to zealously represent your client should not come at the sake of violating your other ethical duties—particularly your duty of candor toward the tribunal.

Joint representations can present a host of ethical issues for lawyers to navigate including what to do with the clients’ file upon termination of the representation. The NYSBA’s Committee on Professional Ethics recently issued Opinion 1249 which explains that in a joint representation, the presumption is that the lawyer will share confidential information received from one client with the other co-client(s).  That presumption, however, does not extend to confidential information the lawyer received from a client prior to the start of the joint representation.  In general, when the joint representation terminates, the clients are entitled to receive copies of the confidential information exchanged with the lawyer during the joint representation but are not entitled to confidential information shared by one client prior to inception of the joint representation.    

A joint engagement       

The inquiry in the Opinion came from a lawyer whose longtime client requested the lawyer then also represent his Wife in their joint estate planning matters. The lawyer agreed and had them sign a joint engagement letter that included language explaining that, because the representation was a joint representation, no communication that either co-client had with the lawyer could be kept confidential from the other co-client.

Later, amidst the couple’s then impending divorce, the Husband terminated the representation.  He requested copies of all documents in the file, which would necessarily include the lawyer’s communications the Wife, as well as documents the Wife had provided. The Wife then also requested the copies of the file—which would include the lawyer’s communications the Husband and any documents he had provided. 

Should the lawyer turn over the file as requested?

New York Rules of Professional Conduct 1.15(c)(4) and 1.16(e) require lawyers to promptly deliver any property to which the client is entitled. The Committee previously opined that a presumption exists that lawyers will share material information disclosed by one co-client to the other in joint representations. The Committee had also opined that lawyers in a joint representation must share all material information relating to the representation with the co-clients, absent the co-clients consenting to an alternative agreement. The Husband and Wife in this inquiry did consent to disclosure – in the joint engagement letter. Accordingly, the Wife’s communications and documents in the file was to be turned over to the Husband.

But as to the Husband, the file produced to the Wife should only include communications and documents from the period after the joint representation commenced.  There is no presumption of sharing regarding communications made or documents provided by the Husband prior to the joint representation. The Committee opined that the presumption should not apply retroactively to separate and discrete information obtained from one client (in this instance, the Husband), who was not a co-client at the time of the communication.  Disclosing that information would be a violation of Rule 1.6 of the New York Rules of Professional Conduct, as the Husband did not consent to the disclosure of that confidential information. This is consistent with Ethics Opinion 970, insofar as “good cause” refusal to turn over certain documents in a client file exists where the document is the confidential information of another who has not given consent to disclosure.  

Takeaway

Lawyers may wish to undertake joint representations for a host of reasons, but these types of arrangements can create a wide range of ethical questions. As the inquiry in Opinion 1249 illustrates, circumstances amongst joint clients can change and there may be confusion about what to do with the file upon termination. It is crucial to include in your joint engagement letter which types of communications will be disclosed to each co-client, including how conflicts could arise, and what would happen in the event of a dispute between the co-clients. Your client needs to know what they are signing up for before they agree to a joint engagement—and so do you.  Before agreeing to take on any type of joint representation, you must familiarize yourself with how your jurisdiction views confidentiality in the joint representation context.