Category Archives: Ethics

Subpoenas and Ethical Duties to Clients

Subpoenas provide a means to obtain testimony or documents from a non-party. Many lawyers routinely issue subpoenas during the discovery or trial phases of litigation. But lawyers are sometimes on the receiving end of a subpoena. This is when things get a bit tricky.

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Social Media Ethical Considerations

You love blogging. Who doesn’t? For some professionals, blogging is an important part of education, outreach and networking. But, as we’ve discussed previously, blogs may be considered advertising and, if so, ethical considerations apply. The State Bar of California Standing Committee on Professional Responsibility recently circulated a proposed opinion for public comment that addresses the ethical implications of blogging by attorneys. The opinion considers when a communication subject to the Rules of Professional Conduct on attorney advertising.

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Partner? Associate? Of Counsel? Does it Matter for Conflict Purposes?

Pursuant to ABA Model Rule 1.10, a single attorney’s conflict of interest may be imputed to the entire law firm. The Rule provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so under the Rules. It is not uncommon for lawyers to have different associations with a particular firm—for example the term “of counsel” is often used to designate a role different from the traditional partner or associate positions. This may beg the question what level of involvement must an attorney have in order to be “associated with” a particular firm for conflicts purposes. A recent case out of the U.S. District Court of New Jersey involving a “seconded” attorney addressed just this issue.

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Gloves Off: Boxers’ Lawsuit Highlights Sanctionable Depo Misconduct

Manny and Floyd can't stop fighting. Recently, counsel for the promoter of Boxer Manny Pacquiao, Top Rank Inc., moved for another opportunity to depose an investment firm, as part of a $100 million antitrust lawsuit against the firm and Floyd Mayweather Jr.'s manager, saying its attorneys' “obstructionist behavior” barred proper questioning. According to Top Rank, counsel for the deponent obstructed the proceeding by instructing the witness not to answer several questions and by failing to prepare the representative for the line of questioning Top Rank advised that it tended to pursue. The result, per Top Rank, was a “sham deposition”. This dispute highlights what may happen when a party engages in misconduct during a deposition.

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Tech Talk : Conflicts of Interest in Patent Law

Conflicts of interest are always a potential pitfall in the realm of attorney malpractice. The issue becomes even more complicated when tech-based clients enter the scene. What happens when two tech clients who are not directly adverse, but instead are potential competitors, both approach you for assistance?

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Initial Consult Fee ≠ A/C Relationship

We recently addressed the ethical implications of the initial, would-be client interview. As we discussed, the lawyer owes certain duties to a potential client and those duties vary from those owed to former and current clients. Whether an attorney-client relationship is actually formed can dictate whether a lawyer has a conflict of interest down the road when representing a new client. A recent decision out of the North Dakota Supreme court illustrates this concept.

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Attorney Suspended for Online Spat with Clients

Many of us are perfectly comfortable publishing to an anonymous, online audience what we ate for dinner, our political views, relationship status, the argument we had with a cashier, or other personal details. This is not uncommon on various forms of social networking. But, when it comes to professional relationships, there are rules to follow. As a result, today's professionals must pause before airing dirty laundry concerning a client or former client. Doing so risks violating ethical duties to former clients of confidentiality and can impair reputations.

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The Ethics of Professional Crowdfunding

Starting up a successful professional practice requires ingenuity, business acumen, and a passion for the profession, but it also requires cash. In order to overcome financial barriers, some entrepreneurial professionals have looked to crowdfunding as an alternative method for raising capital. By utilizing social media and dedicated crowdfunding websites, professionals are now in a stronger position than ever to pitch their brand and solicit donations from large numbers of individuals in the general public. Crowdfunding offers the promise of a quick source of revenue, but may also implicate possible ethics concerns that could prove costly to professionals in the long term.

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Fired but Still on the Hook

Most attorneys don’t end their careers in the same place they started. Rather, many attorneys make a move or two which may require the transfer of files and clients. When an attorney transfers a file to a new firm, the prior firm must maintain certain ethical obligations. Model RPC 1.16 provides that a lawyer must provide notice when terminating a representation and take steps to the extent reasonably practicable to protect a client's interests. Therefore, professional obligations are not always terminated as soon as the client ends the relationship. The following example demonstrates how failure to timely withdraw from a case after the attorney-client relationship ended resulted in a claim of malpractice.

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Conflict Check for Would-be Clients?

Attorneys put food on the table by converting would-be clients into actual clients. However, the astute attorney knows which engagements are not worth pursuing and when to decline representation. The careful attorney knows that even the initial client interview will trigger ethical obligations. To be clear, an attorney’s ethical responsibilities kick even before there is an attorney-client relationship. While most attorneys probably are aware of this general principle, it’s less likely that most engage in best practices during the client intake process.

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