Ethics 101 - Conquering Ethical Dilemmas - ABA YLD 101 Practice Series

Presented at the American Bar Association Young Lawyers Division Baltimore, MD Fall 2006 Conference

The American Bar Association has compiled the Model Rules of Professional Conduct. These Model Rules are an excellent resource for information regarding ethical issues in the practice of law. Each state’s attorney licensing body sets the standards of professional responsibility and you should check with your state for the rules affecting practice in the state you are licensed. Most state’s rules vary in some fashion from the ABA Model Rules.

The following are a selection of hypotheticals involving a variety of ethical issues that you might face in the practice of law. The responses are based on the ABA Model Rules. They are not answers to the ethical dilemmas, and may not include all of the possible issues raised by the hypothetical. You should check to see whether the cited rules are different in your state. The responses provided are not to be construed as legal advice, nor should you rely on these hypotheticals or the responses when confronting an ethical issue. They are merely intended to increase your awareness of possible ethical issues and to serve as a starting point in evaluating a response to those issues. The hypothetical scenarios are provided by Lawrence Fox, former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, and partner of Drinker Biddle & Reath LLP.

Hypothetical 1:
Q: You meet with a prospective client to discuss a personal injury matter. You tell the person her claim is really weak, and you don’t think you will take it on. She leaves disappointed and two months later she calls asking how her case is going. You search your memory as to who she is, remember vaguely the conversation and suddenly realize the statute of limitations expired three weeks ago.

R: This hypothetical poses several issues related to the client-lawyer relationship. Model Rule 1.18 discusses duties to prospective clients and states, in part:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

Prospective clients do not receive the same protection afforded to clients. Comment 1 to Model Rule 1.18 reads: Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice. A lawyer's discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.

Telling a prospective client that “you don’t think you will take it on” is not clear. In this context, it would be important to make your intentions clear to the prospective client at the end of the consultation, and provide documentation of the same. Since a client may be relying on what you say, a letter to the prospective client explaining that you are not taking the case may also include a recommendation to seek another attorney and an explanation of the statute of limitations.

It may be prudent to follow the rules relating to terminating representation found at Model Rule1.16, which states in part:

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Hypothetical 2:
Q: Your colleague goes to a beauty contest to try to become counsel for a defendant accounting firm in a multi-defendant case. Before your colleague hears back from the accounting firm, one of the director defendants calls you and asks if you will represent her.

R: Issues raised by this hypothetical include, but are not limited to, direct contact with a prospective client, an organization as a client, and conflicts of interest. It is unclear from the hypothetical whether or not “your colleague” works with your firm or not. Regardless, going to a beauty pageant (or anywhere else) to solicit business may violate Model Rule 7.3, which regulates direct contact with prospective clients. The rule states, in part:

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

  1. is a lawyer; or
  2. has a family, close personal, or prior professional relationship with the lawyer.

Knowing more about "your colleague" is important for the imputation of conflicts of interest. Model Rule 1.10 reads, in part:

(a) 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 by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Representing an organization and or its directors should call to mind Model Rule 1.13, which states, in part:

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

(f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Hypothetical 3:
Q: An existing client of your firm (you did his will) calls up to arrange an appointment for two friends and himself. “We want to start a business,” he tells you. Two days later your friend shows up with the other two. Their new business will be funded by your friend. One of the other two is going to be the CEO, and the third is going to assign his patent rights to the new enterprise. How do you proceed?

R: Again, this hypothetical calls into question your relationship with each potential client, as well as your ability to handle the business. You did your friend’s will, but are you competent to form a business? See Model Rule 1.1, which states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

As a former client, you may have still have duties to your friend under Model Rule 1.9. Be aware of conflicts of interest. Rule 1.7 states, in part:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

  1. the representation of one client will be directly adverse to another client; or
  2. there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Additionally, be mindful of the rules for prospective clients and representing and organization found in Model Rules 1.18 and 1.13 respectively.

Hypothetical 4:
Q: Your client hands you some very damaging documents. In the course of document discovery you show them to the partner who says, “Where did they come from?” “From the client’s German subsidiary,” you answer. Partner turns to you and says, “File an objection to the request for the production of documents, telling them it is burdensome to look through our German facility.”

R: This hypothetical poses several issues both for you and your partner. We will only consider ethical issues affecting your part in this hypothetical. The first rule that this situation would appear to violate is Model Rule 3.4, which requires fairness to the opposing party and counsel. This rule states in part that a lawyer shall not:

(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party...

Complying with the partner’s direction would also appear to violate Model Rule 3.3. This rule requires candor toward the tribunal and states in part:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer...

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

In this hypothetical, though the firm partner has told you to engage in this behavior, you would still likely be held responsible for violating ethical rules based on Model Rule 5.2. This rule outlines the responsibilities of a subordinate lawyer and states, in part:

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person...

Some states, and the Model Rules also call for an attorney who knows that another attorney has violated the Rules of Professional Conduct to report that attorney to the appropriate professional authority. Model Rule 8.3 covers the reporting of professional misconduct and states, in part:

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority...

Hypothetical 5:
Q: While you are with your client, the other side calls up and asks for an additional ten days to respond to the complaint. You grant the extension. But when you hang up, the client tells you, “That is the last extension you are ever going to grant in my matter.”

R: Model Rule 2.1 spells out the role of the lawyer as advisor. This rule requires the lawyer to exercise independent professional judgment and render candid advice. And further states, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.”

Under Model Rule 1.2, the scope of representation and allocation of authority between client and lawyer and states:

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Hypothetical 6:
Q: You are preparing your client for a deposition. You ask him if he ever smoked marijuana. He asks, “What’s that got to do with the case?” You reply, “Nothing, but you may be asked that question.” Client admits that he smoked marijuana, but he never inhaled. The next day, at the deposition, your client is asked whether he ever smoked marijuana. His answer is, “Never.”

R: The confidentiality of information is explained in Model Rule 1.6 and should always be considered when evaluating you duties with regard to your client’s communications with you. The rule provides:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

  1. to prevent reasonably certain death or substantial bodily harm;
  2. to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
  3. to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
  4. to secure legal advice about the lawyer's compliance with these Rules;
  5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
  6. to comply with other law or a court order.

As worthy of consideration in this scenario is Model Rule 4.1 that focuses on the truthfulness in statements to others, and states, in part that:

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fal to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Lastly, you should also consult Model Rule 3.3 governing candor toward the tribunal. This rule provides, in part, that:

(a) A lawyer shall not knowingly:

  1. make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
  2. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
  3. offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6

The Model Rules of Professional Conduct are designed to assist lawyers conquer their ethical dilemmas. The current text of the Model Rules, complete with all amendments to date can be viewed on the web at http://www.abanet.org/cpr/mrpc/model_rules.html. You may also purchase a hard copy online or call the ABA Service Center at 800-285-2221 and ask for PC #2150016. Additional information is also available at http://www.abanet.org/cpr/home.html.

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