Ethics and Lawyering Today - Volume 1, Number 2
April 2001
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 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:
The ACTEC Commentary on Rule 1.7 is at: 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": FURTHER READING: Bill discusses this issue at his conflicts Web site. Go to "Banks/Trust Departments" at the Table of Contents at: 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. 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. 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: 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: 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. Ethics and Lawyering Today 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 UNSUBSCRIBING 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 To reach the authors, contact: William Freivogel Lucian Pera |
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