The Law for Lawyers Today

Ethics, Professional Responsibility and More

Picture this:   You’re travelling across U.S. borders, heading home from a client meeting abroad.  However, unlike other trips, this time a Customs and Border Protection agent requests that you unlock and hand over for inspection your computer and cell phone — full of client confidential information.  You’ve been concerned about this issue, and so you’ve had your IT department encrypt all of the sensitive data on your devices.  Will that protect you client’s information from…
In the aftermath of Hurricane Florence, which last month dumped up to 35 inches of rain on parts of the Carolinas, Virginia and Maryland, caused 48 deaths, and up to $22 billion in property damage, comes a timely new ABA opinion about our ethical obligations related to disasters. The hurricane did not spare lawyers and law firms.  Ahead of the 1,000-year storm, Law360.com reported that firms in Florence’s projected path shuttered offices, activated contingency plans,…
You can’t interview potential expert witnesses and share confidential information with them solely to taint them with a conflict that would prevent the experts from working for the other side, the Texas State Bar Professional Ethics Committee recently said in Opinion No. 676. “T’aint” ethical Lots of litigation requires expert testimony in order to support plaintiff’s allegations or to defend against them.  But if a lawyer shares confidential information with a prospective expert, the expert may be disqualified from working for the other…
Making big news this summer was the shut-down of Avvo Legal Services just a few months after it was acquired by Internet Brands.  (A couple of the many reports are here and here.)  Some speculated that the new corporate owner had no stomach to continue to fight for that portion of Avvo’s business model in the face of numerous state ethics opinions that found a wide variety of ethics problems with it. The flat-fee…
The New York City Bar Association recently found that common forms of third-party litigation funding for law firms violate New York’s Rule 5.4(a), which like the analogous Model Rule, bars fee-splitting with non-lawyers. In its Opinion 2018-5, the NYCBA’s Professional Ethics Committee advised that “a lawyer may not enter into a financing agreement with a litigation funder, a non-lawyer, under which the lawyer’s future payments to the funder are contingent on the lawyer’s…
In the movie “Goodfellas,” Robert De Niro famously advises that the two greatest life lessons are “Never rat on your friends, and always keep your mouth shut.”  Those are good rules if you’re in a crime syndicate.  But as most lawyers know, our Rules of Professional Conduct can actually require us to “rat out” our fellow lawyers, under some limited circumstances.  Model Rule 8.3(a), adopted in some version in almost all jurisdictions, says: “A…
In an unusual application of the lawyer-witness rule, a district court recently held that the rule would not prevent an assistant state attorney general from being on an open phone line along with the court and other party representatives during the execution of a death-row inmate — even though the assistant AG might have to testify as a fact witness during the execution. Open phone line The inmate, Robert Van Hook, was scheduled to be executed in Ohio for a 1985…
Confession:  I’m a lawyer who’s married to a lawyer.  If that’s your situation too, then you know some of the challenges — how life at home falls apart when you both have trials scheduled; the strain on the budget in those early days when you’re paying off two sets of law school loans; playing rock-paper-scissors to decide who takes the sick kid to the office with them. More than pillow talk Now, from my home state of Ohio’s Board of Professional Conduct,…
A Washington lawyer was disbarred last month by the state supreme court in a disciplinary case with an interesting array of issues:  the heavy penalties for using trust account money to “rob Peter to pay Paul;” the danger of treating the representation of a relative too casually; “compassion fatigue” as a potential mitigating factor in lawyer discipline; and the application of the Constitutional protection against double jeopardy in the disciplinary setting. Rob Peter, pay Paul The lawyer was a…
As the legal market continues to change, attorneys face more challenges when it comes to client relations. While the trend has been for clients to slash attorney’s fees by hiring third party auditors to review bills, or to aggressively seek discounts on fees, ethical considerations, and now the United States Court of Appeals for the 10th Circuit, make it clear that overbilling clients cannot be a solution for legal revenue woes. In a recent opinion,…