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.