Category Archives: Ethics

A Caution against Threats of Disciplinary Action

The judicial process is adversarial by definition. That doesn't necessarily mean that every case is contentious but many are. In these cases, particularly when emotions are involved, attorneys and their clients often feel strongly that they have been wronged and search for opportunities to be vindicated. When an attorney believes that the other side is asserting a frivolous claim or acting with an improper purpose it may be tempting to raise the prospect of filing a disciplinary action against the opposing lawyer. However, attorneys must tread cautiously when threatening disciplinary action in litigation. Doing so could violate ethics rules and potentially result in disciplinary action against the attorney making the claim.

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In-House Counsel Fired for Compliance with Ethical Rules

Ever hear the joke about the in-house attorney who was fired for complying with the Rules of Professional Conduct? It’s no joke. Model Rule 1.13(b) provides that if in-house counsel knows that an employee is violating a law that may be imputed to the employer, the lawyer must proceed in the best interest of the employer. But, complying with that rule may result in backlash for the attorney. Take for example the following case, in which the Utah Supreme Court considered whether the rule creates a public policy exception to at-will employment to prevent companies from terminating in-house counsel for reporting illegal activity to management.

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Lessons from a Bravo Star’s Malpractice Suit

Clients will usually say “Bravo!” when you exhibit diligence, zealous advocacy, and candor in your legal representation. But what happens when a client makes a misrepresentation to you or engages in criminal or fraudulent conduct during the course of your representation? What are your duties with regard to assessing the validity of a client’s statements, or the legality of their actions? A recent legal malpractice lawsuit filed by imprisoned “Real Housewives of New Jersey” star Teresa Giudice has thrown these questions into the limelight.

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Client Communication: What’s Enough/Too Much?

The duty to communicate is essential to every aspect of the fiduciary duty a lawyer owes to the client. Proper communication ensures that we are identifying and serving our clients’ interests. It’s possible today to be technically “available” to clients 24-7. But how much availability is required, and where is the line? That’s the subject of a recent ethics case against a Texas attorney, resulting in sanctions for unreasonably ignoring a client.

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Ahoy! Attorney Sunk by File Transfer In Shipwreck Case

Much of our discussion at PLM revolves around duties to clients during the time of representation. However, your professional duties and ethical obligations to a client do not end when the engagement ceases. As illustrated by one recent swashbuckling tale, an attorney has a duty to provide a former client with that client’s file, and may not withhold these materials to leverage other benefits, regardless of the circumstances surrounding the end of the engagement.

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Attorneys Admonished for Settlement Posturing

Attorneys have a duty to act as zealous advocates for their clients. This duty is particularly important during settlement negotiations, where counsel’s strategy and negotiation skills play a significant role in achieving a favorable result. However, settlement statements that are intended to deceive one’s adversary can quickly cross the line from permissible posturing to unethical misrepresentations of fact.

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Failure to Keep Up with Technology Could Lead to Ethics Violation

Technology is rapidly changing the manner in which businesses operate. This is equally true for professionals, who must incorporate and adapt to technological advances in order to thrive in a competitive marketplace. However, keeping up to date with technology is not merely a matter of protecting the bottom line. Professionals who fail to stay on the cutting edge could violate ethics rules and jeopardize their client’s interests.

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99 Problems But A Conflict Ain’t One

Conflicts must always be at the forefront of an attorney’s mind throughout the life of an attorney-client relationship. An attorney’s first duty is to her client, but what happens when a witness in a case also seeks representation? Can you represent a party as well as a witness? Such a question creates the potential risk of disqualification, as illustrated by a recent lawsuit involving hip-hop mogul Jay-Z.

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Case Closed? Ethical Obligations Upon Termination of Representation

Under Model Rules of Professional Conduct 1.15 and 1.16, a lawyer must safeguard a client’s property and deliver it promptly to the client upon the client’s request and upon termination of representation a lawyer shall take whatever steps are reasonably practical to protect a client’s interest. The ABA recently issued a formal opinion clarifying and updating a lawyer’s ethical obligations under these Rules and addressing practical considerations regarding the application of these Rules to practice.

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The Ethical Implications of Legal Ghostwriting

Ghostwriting on behalf of pro se litigants has sparked an interesting debate. Although unrepresented parties may be at a bit of a disadvantage when presenting their position to a represented adversary, some may take advantage of an attorney lending assistance behind the scenes. Legal ghostwriting is one form of “limited-scope representation”, or the unbundling of legal services, a practice in which a client retains an attorney for limited tasks as opposed to the traditional handling of all aspects of a matter. Rules regarding this practice vary widely by jurisdiction; many federal courts do not allow it but many state courts do.

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