Category Archives: Ethics

Limitations on Local Counsel?

Attorneys often utilize local counsel to assist in a venue they are not licensed. The role of the local counsel will vary from case to case. Generally speaking, local counsel have a more limited role in the litigation. However, according to a recent NY ethics opinion, a limited role does not necessarily mean limited responsibilities or risks.

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Professionals Don’t Kiss and Tell

Professionals love to promote their success stories. Securing major victories can help attract new clients and help establish professional reputation. This is especially true of attorneys, who are often solicited to comment on public aspects of a case once it has concluded. However, post-case commentary could lead to a violation of the attorney’s duty of confidentiality—even when the information discussed concerns issues that are widely known or publicly available.

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Perusing Privileged Papers Prohibited

What to do? When reviewing discovery provided by your adversary you stumble upon a privileged document. It happens…sometimes privileged materials fall through the cracks and into the hands of opposing counsel. Do you read it, burn it, return it? According to a recent New Jersey decision, reading an inadvertently produced privileged document may be grounds for disqualification.

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“Name Calling” Warrants Mistrial in New Jersey

Attorneys are held to a reasonably well defined standard when it comes to professional conduct. Clearly, however, not all attorneys abide by this code. What an attorney may consider zealous advocacy can easily turn into unprofessional conduct if taken too far. Take for example the following case out of New Jersey where comments from the plaintiff's counsel were found to exceed the bounds of permissible advocacy and resulted in a mistrial, vacating a nearly $2.5 million judgment.

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Moonlighting: Perils of Working on the Side

Moonlighting is the practice of working for more than one employer or working for yourself while working for an employer. Professionals who moonlight may be asking for trouble. Many employers have policies forbidding the practice, some going so far as to deem it grounds for immediate termination. A recent case provides an extreme example of moonlighting at its worst.

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Use of Ethics Investigation in Legal Malpractice Suit

Ethics violations and legal malpractice are two distinct realms that often intersect. There are often unsettled lines between professional responsibility and professional liability and, accordingly, between attorney disciplinary systems and the civil justice system. Clients expect and deserve accountability, not only for professional negligence but also for their attorneys’ conduct. So what happens when a client initiates an ethics investigation, but also initiates a legal malpractice action? Can information from the former come into play in the latter?

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NY Ethics Opinion Provides Guidance for LinkedIn Users

LinkedIn is perhaps the go to social media site for professionals seeking to promote their achievements and build their brand. LinkedIn has carved a niche within the social media landscape by integrating networking capabilities with the specific needs of professionals hoping to build relationships. Of course, the site also allows users to “endorse” a connection for certain practice areas or to write recommendations as to the user’s skillset. It is this component of the site that has generated professional ethics issues and opinions. Moreover, the distinction between permissible networking and improper advertising is not always well defined. The NY County Lawyers Association Professional Ethics Committee recently published a formal ethics opinion that provides guidance to attorneys using sites such as LinkedIn.

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Play the Hand You’re Dealt

Professionals must play the hand they’re dealt. We can’t pull an ace from our sleeve. We can’t change the facts or the witnesses or the evidence. Many attorneys welcome the challenge of overcoming obstacles within the confines of the ethical code, which can make for a more satisfying result. (Moreover, there is a certain pressure in handling the slam-dunk case because a win is expected and a loss could be unforgivable). Unfortunately, however, some attorneys opt to break the rules when confronted with difficulty. Consider the following examples.

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“Friending” Leads to Ethics Complaint

An important aspect of litigation requires counsel to become investigator, to track leads, to turn every stone. Counsel seeks to better understand her adversary. Generally, this discovery process takes the form of formal document production, a long-standing and generally understood method of obtaining information. In this digital age, many attorneys also take to social media to gain additional information. However, unlike traditional paper discovery, using social media during litigation is fraught with peril.

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Friendly Reminder: Don’t Lie to Clients

Professional Liability Matters would have considerably less content to discuss but for professionals who break seemingly obvious rules. For example, some would think that it goes without saying that a professional can’t lie to clients. Yet, a recent New Jersey ethics decision is proof positive that professionals don’t always follow the rules, even the easy ones.

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