The Debate Finally Begins
	To Return Or Not To Return That Telephone Call?
	If You Did the Deal, You May Want To Refer Out The Litigation.
	Avoiding Conflicts With The Client’s Consent
	Links and Quick Takes

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Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

The Debate Finally Begins

ETHICS 2000: ABA House Debate on Model Rule Changes Starts

At a meeting in Chicago last week, the 532-member ABA House of Delegates began the debate on the final proposals of ABA Ethics 2000, the 13-member Commission (of which Lucian Pera is a member) that has labored for four years considering revisions to the ABA Model Rules of Professional Conduct.

The proposed amendments were, by and large, well received by the House, with many changes being tentatively approved without opposition. The House considered and tentatively approved all of the Commission’s proposed changes from the Preamble and Scope provisions through Model Rule 1.10, with significant debate on the following items:

Rule 1.5 - The House rejected the Commission’s proposal to require writings for most fee agreements, sticking with the "preferably in writing" language of the current Rule.

Rule 1.6 - By a six-vote margin, the House voted to approve E2K’s proposal to amend 1.6(b)(1) to permit disclosure of client confidences to prevent reasonably certain death or substantial bodily harm, broadening this grounds for disclosure under the Model Rule. By contrast, the House voted by a wide margin to defeat E2K’s proposed 1.6(b)(2), which would have permitted lawyers to disclose client confidences to prevent future crimes or frauds threatening substantial financial loss if the lawyer’s services had been used to perpetrate the crime or fraud. The repeated argument that 41 jurisdictions already have a form of proposed 1.6(b)(2), including many jurisdictions where opponents were licensed, was not at all persuasive. Sensing the direction of the House’s votes, the Commission withdrew its similar proposed 1.6(b)(3), which was similarly addressed to the prevention or mitigation of future harm from completed crimes or frauds involving the lawyer’s services.

Rules 1.7 and 1.9 - In addition to accepting an extensive rewrite of the black letter and Comment to the main conflicts rule, the House decisively rejected an attempt to delete the Commission’s proposal that all conflict waivers be in writing. At least one delegate distinguished the fee-agreement writing requirement and the conflict-waiver writing requirement, and the House clearly bought this distinction.

Rule 1.8(j) - Though the House came within six votes of relegating the prohibition to the Comments, the body subsequently overwhelmingly approved the Commission’s proposed ban on sex with clients.

Rule 1.10 - Confounding those who had suggested that the House was so heavily influenced by large law firms that E2K’s proposal to permit screening for lateral would sail through, the House flatly rejected lateral screening.

Scheduled to spend four hours of its two-day session on Ethics 2000, the House actually chose to spend more than five hours, clearly indicating its interest in the subject matter and its desire to work through the proposals without unneeded delay.

For the official version of the Chicago proceedings, see:

http://www.abanet.org/cpr/e2k-summary_2001.html

The House will take up the proposals again at its meeting in early February 2002 in Philadelphia, and the expected hot debate items include:

Rule 1.18 - E2K’s proposed new rule concerning duties to prospective clients is expected to raise afresh the issue of screening.

Rule 3.3 - More on confidentiality and candor.

Rule 4.2 - The controversy over E2K’s proposed addition of "or court order" to the Rule and tinkering with some comments.

Rule 5.5 - E2K’s attempt to make progress on the multi-jurisdictional practice front with a "safe-harbor" approach may be the hot number in Philly. Stay tuned to also hear from the ABA MJP Commission, whose preliminary report is due out in November.

The House’s procedures for consideration of the proposals will almost certainly permit reconsideration in Philadelphia of votes taken in Chicago last week. None of the Chicago votes are effective in changing the Model Rules until consideration of all of Ethics 2000’s proposals is complete, which now appears likely to occur in Philadelphia.

To Return Or Not To Return That Telephone Call?

CONFLICTS: Two Courts Struggle With Problems Arising from Initial Interviews

In Knigge v. Corvese, 2001 U.S. Dist. LEXIS 10254 (S.D.N.Y. July 23, 2001), the defendant attempted to hire a lawyer. He could never reach the lawyer directly, so he left several messages on the lawyer’s answering machine. The lawyer never responded to the messages and eventually turned up representing the plaintiff. The defendant moved to disqualify the lawyer. The court denied the motion, holding that the defendant never became a client and did not disclose confidential information in the voice messages.

Knigge v. Corvese, 2001 U.S. Dist. LEXIS 10254 (S.D.N.Y. July 23, 2001)

In Clark Capital Mgmt. Group v. Annuity Investors Life Ins. Co., 2001 U.S. Dist. LEXIS 9313 (E.D. Pa. July 6, 2001). The defendant’s lawyer contacted Biemer, a partner at Dilworth Paxson about becoming local counsel for the defendant. They had several telephone conversations about the facts and strategy. Dilworth was not hired. Friedman, another partner at Dilworth, later appeared as counsel for the plaintiff. Defendant moved to disqualify Dilworth. The district court denied the motion, finding that, because the defendant did not actually hire Dilworth, the defendant was not a "former client." The court noted in passing that, if defendant had been a former client, this was the "same" matter in which Dilworth would have represented the defendant, and Dilworth would have been disqualified. Nevertheless, the court was concerned that Biemer might have received confidential information from the defendant during the initial telephone conversations. The court ruled that Dilworth could stay in the case on the condition that it set up a screen between Biemer and the rest of the firm. Screening in this context is consistent with Section 15 of the Restatement Third, The Law Governing Lawyers, and this is also the approach taken in proposed Rule 1.18 offered by the ABA Ethics 2000 Commission. ABA Formal Opinion 90-358 would not allow screening to save the entire law firm from disqualification.

Clark Capital Mgmt. Group v. Annuity Investors Life Ins. Co., 2001 U.S. Dist. LEXIS 9313 (E.D. Pa. July 6, 2001)

If You Did the Deal, You May Want To Refer Out The Litigation.

MALPRACTICE: Litigating Disputes in Which the Lawyers Did Work

An Illinois appellate court recently offered a heart-breaking example of what Bill Freivogel refers to as the "underlying work syndrome," where a lawyer, now deceased, chose not to refer litigation arising from the firm’s prior transactional work. In NC Illinois Trust Co. v. First Illini Bancorp, Inc., 2001 Ill. App. LEXIS 441 (Ill. App. June 15, 2001), the lawyer advised a bank/trustee on selling a business partially owned by the trust. When the purchaser sued the bank/trustee for fraud for financial misrepresentations, the same lawyer defended the bank/trustee. He lost the case, and his estate has now been sued.

NC Illinois Trust Co. v. First Illini Bancorp, Inc., 2001 Ill. App. LEXIS 441 (Ill. App. June 15, 2001)

For more on this case and on the syndrome, see Bill’s site under "Underlying Work" at:

http://www.freivogelonconflicts.com

Avoiding Conflicts With The Client’s Consent

CONFLICTS: Permissible Limitations on the Scope of a Representation to Avoid Conflicts

Suppose you want to represent a client in litigation. You discuss with the client that it is possible that another firm client might need to be added to the litigation later. In a helpful recent opinion, the Association of the Bar of the City of New York, in Formal Opinion 2001-3, declares that a sophisticated client may agree that, in such event, you may continue in the case if another law firm is retained to handle issues relating to the other client. The opinion discusses a number of scenarios where such an agreement would be helpful. In passing, the committee makes the following statement:

If, for example, two businesses were competing for the same Government contract, and each engaged the same lawyer to prepare bids, Rule 1.7(a) would surely be applicable.

The Association of the Bar of the City of New York, Committee on Professional and Judicial Ethics, Formal Opinion 2001-3 (undated)

For more on this latter concept, see the section on "Zero Sum Games" at Bill’s site at:

http://www.freivogelonconflicts.com

LINKS AND QUICK TAKES

SECRET TAPING: ABA Issues New Opinion Reversing Its Long-Held Ban

On June 24, 2001, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 01-422, reversed its 1974 Opinion holding that secret tape recording by lawyers was deceitful and thus banned by the ethics rules. The Committee opined that "the mere act of secretly but lawfully recording a conversation inherently is not deceitful." Still, the opinion warns that many states have laws prohibiting such conduct, and that lawyer statements concerning taping (e.g., falsely denying that a conversation is being recorded) can still get a lawyer disciplined. The Committee split on the opinion’s applicability to client-lawyer conversations. Unfortunately, ABA opinions remain unavailable on the web.

INDEMNIFICATION: Lawyers May Seek and Receive Client Indemnity

Although both Oregon DR 6-102(A) and Model Rule 1.8(h) put severe limitations on the ability of lawyers to seek client agreements prospectively limiting lawyer liability to the client, a new Oregon ethics opinion helpfully identifies an area apparently not covered by the prohibition. The facts in this opinion were that a client had asked a law firm to investigate possible employee fraud, which could have lead an employees’s termination. Concerned that the terminated employee might sue the law firm, the firm asked the client to agree to indemnify the law firm from such a claim. The committee opined that, because the law firm was not seeking a release of claims by the client, the indemnification agreement was permissible.

Oregon State Bar Legal Ethics Committee Formal Opinion 2001-165 (June 2001).

GRAMM-LEACH-BLILEY ACT: It’s Not Going Away Quickly

This newly-effective federal privacy statute continues to provoke concern and controversy.

As reported in our last edition, most lawyers had no clue that the Act might apply to them until a few weeks (or days) before July 1, when significant notice provisions of the Act kicked in.

Now, the ABA and the New York State Bar Association have taken up the battle for lawyers, each recently asking the Federal Trade Commission to authoritatively interpret the Act to exempt lawyers:

http://www.abanet.org/poladv/letters/exec/privacy071001.html

http://www.nysba.org/media/newsreleases/2001/ftc.html

Also, one of the authors saw a new twist during a very recent hearing on a motion to disqualify. Under questioning on the stand, the former client of the law firm fighting the disqualification motion testified roughly as follows:

Q: So, Mr. Former Client, virtually all of the work that my partner performed for your company was concluded in 1998, with another hour or so of work done by him last year, all well before the facts that give rise to this lawsuit even happened, right?

A: I believe that’s correct. But apparently your firm still thinks we’re a client, since I just got some privacy notice from you the week before last addressed to the company as "Dear Client."

Well . . . . what can you say to that? All we can say is, file it away in the More-Things-To-Worry-About folder, and consider all ways you deal with former clients that may give them the impression (and suggest to a court) that you’re still their lawyer. And maybe that’s why so many firms send out newsletters and notices headed, "Dear Clients and Friends."

JUDICIAL ETHICS: Microsoft Plays the Judge Jackson Card Before the Supremes

In a little-noticed angle on the endless Microsoft litigation, the software behemoth is pursuing a fascinating U.S. Supreme Court strategy. On August 7, 2001, Microsoft petitioned the high court to accept certiorari, presenting only one question: "Whether the court of appeals erred in not disqualifying the district judge as of the date of his earliest known violation of 28 U.S.C. § 455(a) and the Code for Conduct of United States Judges, thus requiring that his findings of fact and conclusions of law be vacated." Judicial ethics and speech may now take center stage before the high court. For the petition, see:

http://www.microsoft.com/presspass/trial/appeals/08-07petition.asp

Ethics and Lawyering Today
Practical Information for Practicing Lawyers
http://www.ethicsandlawyering.com

Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

THE USUAL DISCLAIMERS

This newsletter and the related website are copyrighted by William Freivogel and Lucian Pera. Any reproduction of Ethics and Lawyering Today, portions of this newsletter, or the website is permitted for non-commercial purposes, provided the reproduction contains our copyright notice and correct attribution to us. Needless to say, this newsletter and the site are for informational purposes only, do not constitute legal advice, and are certainly not intended to create any attorney-client relationship of any kind. You’ve been warned.

SUBSCRIBING
To subscribe, visit: http://www.ethicsandlawyering.com/subscribe.htm

UNSUBSCRIBING
To unsubscribe, send an email with the words UNSUBSCRIBE ETHICS in the body of the message to: Requests@ethicsandlawyering.com

CONTACTING US

We value your input tremendously. Send us your comments, criticisms, ethics cases (published and unpublished), ethics opinions, questions, or anything else of interest:

Ethics and Lawyering Today
Brinkley Plaza
80 Monroe Avenue, Suite 700
Memphis, Tennessee 38103-2467
Email: authors@ethicsandlawyering.com

To reach the authors, contact:

William Freivogel
Email: william@freivogel.com
Website: http://www.freivogel.com

Lucian Pera
Email: lucian.pera@adamsandreese.com

Back To Top

©2001 William Freivogel and Lucian Pera

	Remarkably, The Same Rules Apply
	Any Lawyer Should Have Known . . .
	But, Your Honor, They Were Only an "Accommodation Client"!
	Defense Counsel, Watch Thy Back!
	Take Care During That Victory Lap
	Links and Quick Takes

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Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

Remarkably, The Same Rules Apply

ATTORNEY-CLIENT PRIVILEGE: Applying the Privilege in the Context of Health Care Auditors
Increasingly, today’s health care lawyers are involved in conducting compliance audits and fraud investigations of their clients and others. Too frequently, however, these lawyers make assumptions about the attorney-client privilege that are not correct. The fact that a health care lawyer possesses information about a client, including information obtained from others and given to the client, does not necessarily make that information immune from discovery. This was brought home in a recent case involving a health care-related audit, Schmidt, Long & Assoc., Inc. v. Aetna U.S. Healthcare, Inc., 2001 U.S. Dist. LEXIS 7145 (E.D. Pa. May 31, 2001). A discovery dispute had arisen in a suit between a health care audit firm and an insurer who allegedly tortiously interfered with the auditor’s relations with clients. The court reminded readers that only communications based upon confidential information passing from the client to the lawyer, and the lawyer’s advice to the client about that information, are protected. We highlight this case because, being one of those rare privilege cases arising in a health care context, health care lawyers may be more apt to "get it."

Schmidt, Long & Assoc., Inc. v. Aetna U.S. Healthcare, Inc.

Any Lawyer Should Have Known . . .

SEX WITH CLIENTS: Indiana Lawyer Disciplined for Sex with Divorce Client, Despite Lack of Explicit Rule or Client Harm

The respondent in this disciplinary case represented the client in several distinct domestic matters over several years, and had a consensual sexual relationship with her for several weeks shortly after the representation began. Despite the lack of any mention of sexual relations in the Indiana version of the Model Rules, or any explicit ban on client sex, and despite the fact that the respondent argued (apparently accurately) that there was no evidence of any impairment of his representation, the Indiana Supreme Court had no difficulty deciding that sexual relations with a client violates Rule 1.7(b). The court reminded lawyers that it had previously made similar holdings. The court then emphasized that ABA Op. 92-364 (1992) strongly discourages sexual relations with clients. Lastly, the court noted that the Ethics 2000 Commission has proposed a specific prohibition of sexual relations with clients at Rule 1.8(j). The lawyer was suspended for 30 days.

This case is, among other things, another example of the influence of the work (though unfinished) of the Ethics 2000 Commission. With the upcoming ABA debate on Ethics 2000’s proposal, and courts such as Indiana quite willing to hold that the Model Rules (which now say nothing on client sex) ban client sex, it’s time for lawyers and firms to start focusing on this issue, regardless of the outcome of the ABA debate.

In re Tsoutsouris

But, Your Honor, They Were Only an "Accommodation Client"!

CONFLICTS: Recent Cases Seem to Plow New Ground for Former-Client Conflicts

The conflict of interest rules relating to former clients are different, of course, from those relating to current clients. A lawyer may not be directly adverse to a current client without a waiver. That rule is based upon notions of loyalty and confidentiality. As to former clients, loyalty is less frequently an issue, but the lawyer’s duty of confidentiality remains important. If a lawyer attempts to be directly adverse to a former client, it must not be in a matter in which there is a risk that the lawyer will use confidences learned in the earlier representation. If there is such a risk, the matters may be deemed "substantially related," and the lawyer may not take on the later matter without the former client’s waiver.

A number of decisions, several of them quite recent, seem to have created an exception to the "substantial relationship" test, which goes something like this: A law firm has a longtime client, "A," and is defending A in a lawsuit. The law firm has been asked to represent another defendant "B" as an "accommodation" to B. The circumstances are that B has no expectation that any information it gives to the law firm will be kept confidential from A. Thus, B becomes an "accommodation client." Later, B sues A involving the same subject matter, and A wants to use its long-time law firm adverse to B.

In similar scenarios, representation of A adverse to B was permitted in two very recent cases, Skidmore v Warburg Dillon Read LLC, 2001 U.S. Dist. LEXIS 6101 (S.D.N.Y. May 11, 2001), and In re Rite Aid Corp. Securities Litigation v. Grass, 2001 U.S. Dist. LEXIS 4669 (D. Pa. April 17, 2001). Both opinions cite Allegaert v. Perot, 565 F.2d 246 (2d Dir. 1977), an early expression of the "accommodation client" concept. The Rite Aid decision is also based in part on consent given by one client to continued representation of another joint client if a conflict arises. This case law is also discussed at Restatement Section 132, Comment i.

In our opinion, prudent lawyers may well decide not to rely on this concept as a basis for going forward with a representation, but these cases may nevertheless signal a trend in the law or provide a basis for defending representations already well underway.

These two recent cases can be found at:

Skidmore v Warburg Dillon Read LLC

In re Rite Aid Corp. Securities Litigation v. Grass

Bill also discusses these cases in the "Former Clients" section of his site:

http://www.freivogelonconflicts.com

Defense Counsel, Watch Thy Back!

MALPRACTICE: Arizona Finds Insurer’s Not the Client, Yet Is Owed Duty

In Paradigm Ins. Co. v. The Langerman Law Offices, P.A., 2001 Ariz. LEXIS 87 (Ariz. June 13, 2001), the Arizona Supreme Court has joined a minority of jurisdictions in holding that a lawyer hired by an insurer to defend an insured is not thereby necessarily lawyer for the insurer. However, the court also held that, even though the insurer is not a client, the lawyer may have a duty of care to the insurer. One of the most interesting aspects of this opinion is the court’s heavy reliance on the Restatement. For example, as to when a lawyer-client relationship is formed, the court relies on Restatement Section 14. As to whether the lawyer for the insured is also the lawyer for the insurer, the court quotes from Comment f to Restatement Section 134. As to conflicts generally, the court cites Restatement Section 121. The court relies, in part, upon Restatement Section 51(3) to hold that the lawyer may owe a duty of care to the insurer, even though the insurer is not a client. The court remanded the case to the trial court to determine whether the lawyer did, in fact, violate his duty to the insurer.

Paradigm Ins. Co. v. The Langerman Law Offices, P.A.

Take Care During That Victory Lap

CONFIDENTIALITY: The Broad Scope of Confidentiality Under Model Rule 1.6

Have you ever won an important trial using advanced courtroom technology and then been asked to speak about it at a seminar? Glowing from your victory, you trot out the PowerPoint presentations, scanned images, bar-coded documents, and hardware that you used so successfully at the trial to show everybody how it’s done. But, wait…. Recall what Model Rule 1.6 (Confidentiality of Information) protects - "information relating to representation of a client." One could argue that the older Model Code formulation in DR 4-101 ("confidence or secret") might permit the demonstration. After all, you did show it to a public courtroom full of people. Model Rule 1.6, however, is broader in what it protects, and you should consider getting the client’s consent before such a demonstration. You may decide the least complicated course is to make up another presentation.

LINKS AND QUICK TAKES

New Ethics Rule: Ohio Requires Lawyers to Tell Clients About Lack of Malpractice Insurance

By a 5-2 vote, the Ohio Supreme Court has announced a new rule requiring all lawyers without malpractice insurance to notify their clients using a standard form. Lawyers must notify clients if they do not carry at least $100,000 per occurrence and $300,000 aggregate in limits, but corporate counsel and government lawyers are exempt. Only Alaska and South Dakota now require such notice, while only Oregon requires lawyers to carry malpractice insurance.

The Ohio court’s announcement

And the new rule

Two Essential Websites on Multi-Jurisdictional Practice Issues

As our regular readers know, "MJP" is fast becoming the hottest issue out there for those interested in lawyer ethics and regulation. With more lawyers and courts becoming sensitive to the issues and the ABA’s MJP Commission moving into high gear with recommendations due out in November, lawyers need to know that more resources than ever before are available on these important issues of cross-border practice, unauthorized practice of law, and the like. Two sites stand out on these issues. The first is CrossingTheBar.com, an excellent site developed and exhaustively maintained by George A. Riemer of Oregon, who also publishes an email newsletter on these subjects. The website contains all sorts of useful information on news in this area, admission rules and pro hac vice rules across the country, interviews with key players in this area, and numerous resources from all over. Check it out:

http://www.crossingthebar.com/

The other important site on this topic is the ABA MJP Commission’s official site, which includes not just information concerning the activities of the Commission (including meeting notices, hearing transcripts, and the like), as well as an excellent series of background papers related to the ABA symposium that spawned the Commission.

http://www.abanet.org/cpr/mjp-home.html

The Gramm-Leach-Bliley Act Kicks In

You know those inscrutable privacy notices we’re all getting from banks and brokerages? We hope and expect that you’ve heard by now, but the conventional wisdom is that many lawyers and law firms are required by that same new law, the Gramm-Leach-Bliley Act, to put out privacy notices, too. We hope you’ve heard about it by now, because the first notices were supposed to go out by July 1, 2001. Anyway, many of us have to live with the annual notice requirements now, and there are a few sites that might help. The following are a few resources sites, including one from the ABA, the Federal Trade Commission (the government agency charged with enforcing the law), a FindLaw resource page, a few law firm sites, and a commercial tax information site.

http://www.abanet.org/poladv/glbfactsheet.html

http://www.ftc.gov/privacy/glbact/index.html

http://library.lp.findlaw.com/bankingfinancelaw_1_18_1.html

http://www.cl-law.com/news/advisories/view.asp?ID=1043523142001

http://www.spsk.com/Articles/grammleach.cfm

http://www.taxtools.com/tax.htm

Ethics and Lawyering Today
Practical Information for Practicing Lawyers
http://www.ethicsandlawyering.com

Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

THE USUAL DISCLAIMERS

This newsletter and the related website are copyrighted by William Freivogel and Lucian Pera. Any reproduction of Ethics and Lawyering Today, portions of this newsletter, or the website is permitted for non-commercial purposes, provided the reproduction contains our copyright notice and correct attribution to us. Needless to say, this newsletter and the site are for informational purposes only, do not constitute legal advice, and are certainly not intended to create any attorney-client relationship of any kind. You’ve been warned.

SUBSCRIBING
To subscribe, visit: http://www.ethicsandlawyering.com/subscribe.htm

UNSUBSCRIBING
To unsubscribe, send an email with the words UNSUBSCRIBE ETHICS in the body of the message to: Requests@ethicsandlawyering.com

CONTACTING US

We value your input tremendously. Send us your comments, criticisms, ethics cases (published and unpublished), ethics opinions, questions, or anything else of interest:

Ethics and Lawyering Today
Brinkley Plaza
80 Monroe Avenue, Suite 700
Memphis, Tennessee 38103-2467
Email: authors@ethicsandlawyering.com

To reach the authors, contact:

William Freivogel
Email: william@freivogel.com
Website: http://www.freivogel.com

Lucian Pera
Email: lucian.pera@adamsandreese.com

Back To Top

©2001 William Freivogel and Lucian Pera

	Another Invitation From The Authors
	Another Win for Screening?
	MDP: ABA To Debate Lawyer Referral Agreements
	ETHICS 2000: Final Proposal for Model Rule Changes
	Links and Quick Takes
	Ask Your Ethics Partner: Revisited

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Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

ANOTHER INVITATION FROM THE AUTHORS

Welcome, friends, to the third issue of our newsletter. As you may recall, it’s free, only available by email or on the web, will come out about once a month, and is intended as a quick way for busy practicing lawyers to keep up with significant developments about ethics and lawyering. We try to stick with short blurbs about new cases, opinions, or developments, and we’ll give you links to the full text of the documents where we can. Just two things we would ask of you:

First, FORWARD THIS EMAIL to anyone you think might be interested.

Second, TALK TO US. Let us know what you think.

Bill Freivogel
Lucian Pera

Another Win for Screening?

CONFLICTS: Tennessee Supreme Court Approves Lateral Screening, But Disqualifies Firm.

In what can only be described as a mixed victory for screening of laterally-moving lawyers, the Tennessee Supreme Court, construed a version of the old ABA Code of Professional Responsibility and generally approved the use of screening devices to avoid the disqualification of laterally-moving litigators. Nevertheless, the Court disqualified the law firm involved in the case at bar under the Code’s "appearance of impropriety" standard. It was, however, undisputed that the screen was effective and that no confidential information has been disclosed. The Court noted that the Tennessee Bar Association has a petition pending with the Court seeking to have Tennessee adopt a set of ethics rules patterned after the Model Rules and specifically rejecting the "appearance of impropriety" standard.

Clinard v. Blackwood, 2001 Tenn. LEXIS 443 (Tenn. March 18, 2001).

http://ethicsandlawyering.com/Issues/files/clinard.pdf

Bill discusses this decision at his conflicts site, in the "What’s New" area:

http://www.freivogelonconflicts.com

MDP Redux?

MDP: ABA To Debate Lawyer Referral Agreements

Responding directly to the task delegated to it by the ABA House of Delegates’ August 2000 adoption of anti-MDP Resolution 10F, the ABA Standing Committee on Ethics and Professional Responsibility has just filed for debate by the House at its meeting this August proposed amendments to the comments to Model Rules 1.7 and to the text and comments of Model Rule 7.2. The proposed amendment appears to seeks to regulate actual agreements (as opposed to informal arrangements) between lawyers and other lawyers or non-lawyer professionals to refer clients. Hard to know if these amendments will be perceived as innocuous or as opening the old MDP wounds one more time. Tune in to the House in August!

http://ethicsandlawyering.com/Issues/files/housereport.pdf

The Final Battle Looms

ETHICS 2000: Final Proposal for Model Rule Changes Set for August ABA House Debate

After four years of debate and discussion, the ABA Ethics 2000 Commission, charged with updating the ABA Model Rules of Professional Conduct, has filed its final proposal for changes. As discussed last month in this space, these proposals span most of the Model Rules and are likely to be vigorously debated by the 532-member policymaking House of Delegates. Debate will begin during the House’s August 6-7, 2001, Chicago meeting, but will almost certainly continue at the House’s next meeting in Philadelphia in February 2002.

Some changes have been made by the Commission to its proposals since the release of its November 2000 initial report, including, for example, the broadening of screening for laterally- moving lawyers and the deletion of law firm discipline. By approximately June 11, 2001, the final report, including a line-by-line comparison of the proposal to the current Model Rules and a description of changes the Commission has made since its November report, will be posted on the Commission’s web site at:

http://www.abanet.org/cpr/ethics2k.html

LINKS AND QUICK TAKES

Real Online News: Model Rules Now Available on the Net

After years of requests, the ABA has posted the ABA Model Rules of Professional Conduct on its website. Hooray!

http://www.abanet.org/cpr/mrpc/mrpc_home.html

Beach Reading: The Restatement in Paperback

Last time, we told you about the new Restatement of the Law Governing Lawyers, and we told you how to get it. Turns out it’s now available in paperback (it’s still not available online) at the greatly reduced price of $75. To order, call the ALI at 1-800-253-6397, or go to:

http://www.ali.org/ali/NEWPRDS.HTM#lgl

New Frontiers in Advertising: St. Petersburg Lawyer Buys Every Phone Book Page

In a new turn of events for lawyer advertising, St. Petersburg lawyer Jeanette Secor’s smiling face graces a two-inch-square ad in the top outer corner of every page of the St. Petersburg, Florida, white pages, in all 324,000 copies. (Sorry for the long URL, but we don’t make this stuff up…)

http://pqasb.pqarchiver.com/sptimes/

And, Finally, a Contest Idea: How Long Was My Email Disclaimer?

A British website has announced the plethora of responses to its appeal to readers for the world’s longest email disclaimer. Surely, American lawyers can give these guys a run for their money: Send us your entries - either from your firm or from your competition! Winners get a free subscription . . . er, well, we’ll think of something for the "winners."

http://www.theregister.co.uk/35/19057.html

ASK YOUR ETHICS PARTNER: REVISITED

Last month, we considered whether there was any specific authority on the question of whether a law firm might ethically represent a bank as trustee, while at the same time acting adversely as to the bank on behalf of another client.

http://www.ethicsandlawyering.com/Issues/0401.htm

A few readers apparently slightly misunderstood our comments to suggest that we thought such conduct was OK. We obviously were not clear enough, meaning only by our citations to suggestion how little authority there was on this subject, but not meaning to suggest that we think such conduct is either ethically appropriate or risk-free. Please keep talking to us, so we know where we get off the tracks.

Ethics and Lawyering Today
Practical Information for Practicing Lawyers
http://www.ethicsandlawyering.com

Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

THE USUAL DISCLAIMERS

This newsletter and the related website are copyrighted by William Freivogel and Lucian Pera. Any reproduction of Ethics and Lawyering Today, portions of this newsletter, or the website is permitted for non-commercial purposes, provided the reproduction contains our copyright notice and correct attribution to us. Needless to say, this newsletter and the site are for informational purposes only, do not constitute legal advice, and are certainly not intended to create any attorney-client relationship of any kind. You’ve been warned.

SUBSCRIBING
To subscribe, visit: http://www.ethicsandlawyering.com/subscribe.htm

UNSUBSCRIBING
To unsubscribe, send an email with the words UNSUBSCRIBE ETHICS in the body of the message to: Requests@ethicsandlawyering.com

CONTACTING US

We value your input tremendously. Send us your comments, criticisms, ethics cases (published and unpublished), ethics opinions, questions, or anything else of interest:

Ethics and Lawyering Today
Brinkley Plaza
80 Monroe Avenue, Suite 700
Memphis, Tennessee 38103-2467
Email: authors@ethicsandlawyering.com

To reach the authors, contact:

William Freivogel
Email: william@freivogel.com
Website: http://www.freivogel.com

Lucian Pera
Email: lucian.pera@adamsandreese.com

Back To Top

©2001 William Freivogel and Lucian Pera

	Another Invitation From The Authors
	Last, But Certainly Not Least
	From the Folks Who Brought You the Restatement of Torts…
	Links and Quick Takes

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Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

ANOTHER INVITATION FROM THE AUTHORS

Welcome, friends, to the second issue of our newsletter.

If you HAVE subscribed, we appreciate it. If you HAVE NOT subscribed, this may be the last edition you see.

As you may recall, it’s free, only available by email or on the web, will come out about once a month, and is intended as a quick way for busy practicing lawyers to keep up with significant developments about ethics and lawyering. We try to stick with short blurbs about new cases, opinions, or developments, and we’ll give you links to the full text of the documents where we can. Just three things we would ask of you: First, SUBSCRIBE NOW! It’s VERY easy. Second, EMAIL this link to anyone you think might be interested. Third, talk to us. Let us know what you think.

Bill Freivogel
Lucian Pera

Last, But Certainly Not Least

INSURER GUIDELINES: ABA Issues Formal Opinion on Insurance Company Guidelines

In February, after several dozen states have now weighed in on the propriety of lawyers complying with insurance company "guidelines" and other directives concerning the representation of their insureds, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 01-421, largely siding with the majority of states and their protective view of lawyer independence in this area. (Unfortunately, no URL is available.)

ASK YOUR ETHICS PARTNER:

Can We Be Adverse to the Bank Whose Trust Department We Represent?

For years, one of the things we’ve done for our partners and other lawyers is to give them a quick head start in researching a reasonably well-defined ethics question. We sometimes give them an ethics opinion, or a leading case or two, or a good article, or just our quick analysis. We’re going to try to do the same here for you from time to time.

Today’s Query:

A law firm represents a bank on corporate and regulatory matters. The bank has a trust department. In its capacity as executor of a decedent’s estate, the bank sues a corporation, which is also a client of the law firm. May the law firm defend the corporation without the consent of the bank?

The authors were discussing this recently and noted the nearly total absence of authority on this issue. They are aware of only two sources expressing a view — or nearly doing so. One was Ex parte AmSouth Bank, N.A., 589 So. 2d 715 (Ala. 1991). The case was about the precise fact scenario above. When the suit was filed, the law firm, perceiving a conflict, "fired" the bank as a client, and attempted to defend the corporation. The bank then moved to disqualify the law firm from defending the corporation. Thus, the court did not rule on whether the law firm had a conflict in the first instance, but rather ruled that the law firm could continue in the suit.

A more direct expression is that of the American College of Trust and Estate Counsel ("ACTEC") in its Commentaries on the Model Rules of Professional Conduct. In its Commentary on Rule 1.7, ACTEC, citing no cases, has said:

"In the absence of a contrary agreement, a lawyer who represents a corporate fiduciary in connection with the administration of a fiduciary estate should not be treated as representing the fiduciary generally for purposes of applying Rule 1.7 with regard to a wholly unrelated matter. In particular, the representation of a corporate fiduciary in a representative capacity should not preclude the lawyer from representing an adverse party in connection with a wholly unrelated matter, such as a real estate transaction or labor negotiation or another estate or trust administration."

The ACTEC Commentary on Rule 1.7 is at:

http://www.actec.org/pubInfoArk/comm/mrpc17.html

A quick aside . . . . In addition to posting its Commentaries on the web, ACTEC has also posted on the web its "Engagement Letters: A Guide for Practitioners":

http://www.actec.org/pubInfoArk/comm/engltrtoc.htm

FURTHER READING: Bill discusses this issue at his conflicts Web site. Go to "Banks/Trust Departments" at the Table of Contents at:

http://www.freivogelonconflicts.com

From the Folks Who Brought You the Restatement of Torts . . .

RESTATEMENT: The ALI Publishes a Terrific Resource for Lawyers

As many readers know, the Restatement Third, The Law Governing Lawyers (that’s actually the way the Restatement says it should be cited) is now available after fifteen years in the making. It covers every conceivable topic dealing with lawyering. Important chapters cover lawyer liability, conflicts of interest, and confidentiality (including both ethics requirements and the attorney-client privilege). There is much, much more.

Each topic begins with a black letter statement, similar to that in the ABA Model Rules of Professional Conduct. The black letter is followed by a Comment, frequently containing illustrations. The Comment is followed by a Reporter’s Note, containing fulsome citations to cases, ethics opinions, treatises and law review articles.

As of the end of March 2001, the Restatement had been cited in 202 court opinions. This includes the United States Supreme Court (twice), various United States Courts of Appeals (28 times), and United States District Courts, Bankruptcy Courts, and state supreme, appellate and trial courts. Most of these citations occurred before the Restatement had been finally approved by the American Law Institute membership.

To order this two-volume set for $195.00, go to: http://www.ali.org/ali/NEWPRDS.HTM

Or call the ALI at 1-800-253-6397. Unfortunately, it’s not available online.

In future issues, we’ll discuss substantive highlights of the Restatement.

LINKS AND QUICK TAKES

May a Lawyer Ethically Include an Arbitration Clause in an Engagement Letter?

Texas ethics expert David Hricik has posted an excellent article thoroughly reviewing the authorities across the nation on whether a lawyer may ethically request such provisions in their agreements with clients.

http://www.hricik.com/eethics/1.2.html

Finding Stuff: Ethics Resources Are Everywhere on the Internet

The web has been a true blessing to the availability of materials on legal ethics. We’ll point you to some from time to time, but here are two very valuable "lists of lists," that will lead you in very useful directions:

The ABA Center for Professional Responsibility’s "Annotated Links to Other Legal Ethics and Professional Responsibility Pages" includes links to the ethics rules of 40 jurisdictions and ethics opinions of 41 jurisdictions:

http://www.abanet.org/cpr/links.html

Washington and Lee University School of Law Professor Brad Wendel’s "Legal Ethics Resources on the Web" includes short, useful descriptions of a number of vital sources of guidance on legal ethics:

http://home.wlu.edu/~wendelb/ethlinks.htm

And, Finally, Something New to Worry About . . .

Two computer geeks wander downtown San Francisco with a laptop, a wireless ethernet card, and a little software savvy, and walk almost effortlessly into corporate networks. Lawyers whose firm networks have wireless access should ask their techno-geeks how vulnerable they are.

http://www.sfgate.com/cgi

Ethics and Lawyering Today
Practical Information for Practicing Lawyers
http://www.ethicsandlawyering.com

Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

THE USUAL DISCLAIMERS

This newsletter and the related website are copyrighted by William Freivogel and Lucian Pera. Any reproduction of Ethics and Lawyering Today, portions of this newsletter, or the website is permitted for non-commercial purposes, provided the reproduction contains our copyright notice and correct attribution to us. Needless to say, this newsletter and the site are for informational purposes only, do not constitute legal advice, and are certainly not intended to create any attorney-client relationship of any kind. You’ve been warned.

SUBSCRIBING
To subscribe, visit: http://www.ethicsandlawyering.com/subscribe.htm

UNSUBSCRIBING
To unsubscribe, send an email with the words UNSUBSCRIBE ETHICS in the body of the message to: Requests@ethicsandlawyering.com

CONTACTING US

We value your input tremendously. Send us your comments, criticisms, ethics cases (published and unpublished), ethics opinions, questions, or anything else of interest:

Ethics and Lawyering Today
Brinkley Plaza
80 Monroe Avenue, Suite 700
Memphis, Tennessee 38103-2467
Email: authors@ethicsandlawyering.com

To reach the authors, contact:

William Freivogel
Email: william@freivogel.com
Website: http://www.freivogel.com

Lucian Pera
Email: lucian.pera@adamsandreese.com

Back To Top

©2001 William Freivogel and Lucian Pera

	AN INVITATION FROM THE AUTHORS
	DON’T LEAVE HOME WITHOUT IT?
	HAVING THEIR CAKE AND EATING IT TOO
	LINKS AND QUICK TAKES
	THOSE ABA MODEL RULES, THEY ARE A’ CHANGIN’

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Ethics and Lawyering Today, an email newsletter published by William Freivogel and Lucian Pera, delivers pithy, practical updates for lawyers on the many ethics rules and other laws that govern how lawyers practice today. Subscriptions are free, and you can visit our website to subscribe. Feel free to pass on this email to anyone you think might be interested.

AN INVITATION FROM THE AUTHORS

Welcome, friends, to the first issue of our newsletter. It’s free, only available by email or on the web, will come out about once a month, and is intended as a quick way for busy practicing lawyers to keep up with significant developments about ethics and lawyering. As you’ll see, we’ll try to stick with short blurbs about new cases, opinions, or developments, and we’ll give you links to the full text of the documents where we can. We ask only three things of you.

First, if you like it, go to our website and SUBSCRIBE NOW! It’s VERY easy.

Second, tell your friends and colleagues. Just FORWARD THIS EMAIL to everybody in your office and to other lawyers you know.

Third, talk to us. Let us know what you think and what we should write about.

Again, thanks and welcome. We hope to have a little fun and learn some things together.

Bill Freivogel
Lucian Pera

HAVING THEIR CAKE AND EATING IT TOO

CONFLICTS: Law Firm Allowed to Sue State While Representing it

Covington & Burling has represented New York State for 25 years, principally on social welfare program matters. In October 2000, Covington filed an action in the U.S. District Court for the Southern District of New York on behalf of Brown & Williamson Tobacco Company to enjoin enforcement of a New York law regulating the distribution of cigarettes. New York moved to disqualify Covington. The court denied the motion. The court cited Aerojet Properties, Inc. v. State of New York, 138 A.D.2d 39, 530 N.Y.S.2d 624 (N.Y. App. Div. 1998), which had approved a similar circumstance. The court distinguished two cases that had disqualified lawyers for attempting to be adverse to a government entity while representing the same entity in other matters, British Airways v. Port Authority, 862 F. Supp. 889 (E.D.N.Y. 1994), and Guthrie Aircraft, Inc. v. Genesee County, New York, 597 F. Supp. 1097 (W.D.N.Y. 1984).

Brown & Williamson Tobacco Corp. v. Pataki,
2001 U.S. Dist. LEXIS 1899 (S.D.N.Y. March 5, 2001).
http://ethicsandlawyering.com/Issues/files/brown-williamson.pdf

Further Reading:
Two other decisions consistent with this one are People v. Crawford Distributing Co., Inc., 382 N.E.2d 1223 (Ill. App. 1978), and State of Minnesota v. Philip Morris, Inc., 1998 WL 257214 (2d Jud. Dist., Ramsey Co., Minn. 1994) (unreported trial court decision). For an expanded discussion of the propriety of suing governmental clients, see Bill’s conflicts site at:

http://www.freivogelonconflicts.com/new_page_3.htm

DON’T LEAVE HOME WITHOUT IT?

MULTIJURISDICTIONAL PRACTICE: Colorado Forces Out-of-State Lawyer to Return Fees for In-State Work

A lawyer licensed in Wisconsin, but not in Colorado, must return the fee he received for preforming legal services in Colorado leading to a federal court lawsuit. In reaching this result, the Colorado Court of Appeals relied upon a state statute allowing clients to recover legal fees paid to an “unlicensed person.” The lawyer’s subsequent pro hac vice admission to the Colorado federal court where the client was ultimately sued on the same matter did not fix the problem, because the lawyer was hired initially to offer services concerning the client’s Colorado state law claims. Moreover, the client was aware of the lawyer’s licensure status, and the lawyer apparently tried to structure the relationship with the client to avoid unauthorized practice of law issues. And, oh, by the way, the client got a substantial recovery in the federal court action, paid the lawyer a fee, then sued to recover the funds. No good deed . . .

Koscove v. Bolte, No. 98CA1099 (Colo. Ct. App, Feb. 15, 2001)
http://ethicsandlawyering.com/Issues/files/koscove.pdf

THOSE ABA MODEL RULES, THEY ARE A’ CHANGIN’
ETHICS 2000: Conflicts

For the first time since the American Bar Association Model Rules of Professional Conduct were adopted in 1983, the ABA has been officially studying all the Rules with a view toward possible revisions. The project goes by the name “Ethics 2000″ (formally, the Commission on Evaluation of the Rules of Professional Conduct) and, in November 2000, its full report was issued, including changes in many of the Model Rules. Debate on the report before the ABA House of Delegates will begin this August. In each of the next few issues, we’ll point out a few of the more significant or controversial proposed changes.