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 …
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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 …
Continue ReadingTech 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?
This scenario has come to life at the nexus of attorney malpractice and patent law, where a firm is charged with malpractice due to concurrent representation of two different clients, both of whom sought patent protection at the …
Continue ReadingInitial 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.
The case centered around a child custody dispute. The family law …
Continue ReadingAttorney 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 …
Continue ReadingThe 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 …
Continue ReadingFired 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 …
Continue ReadingConflict 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.
The New York …
Continue ReadingA 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 …
Continue ReadingIn-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 …
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