March 01, 2018

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith Fisher, Christina Houston

Professional Responsibility

Assigning Claims Against Clients for Fees Is Invalid

By Keith R. Fisher, National Center for State Courts

A Florida federal court recently ruled that a lawyer’s assigning a claim against a client for fees is void as against public policy because of the centrality of the ethical interest in preserving client confidentiality. A parallel rationale underlies a 2007 Florida Supreme Court decision invalidating clients assigning malpractice claims against their lawyers. Both decisions are consistent with the analysis in a 2000 D.C. Ethics Opinion. The key distinction is that while it is permissible to use a collection agency to recover fees owed, outright assignment of the claim abdicates control over the collection process and would allow collection efforts that are incompatible with a lawyer’s ethical requirements.

Covert E-mail Tracking Is Unethical

By Keith R. Fisher, National Center for State Courts

Covert e-mail trackers, also known as “web bugs,” follow receipt and distribution of messages sent to opposing counsel. Their use violates both Model Rule 4.4, by impermissibly intruding into the lawyer-client relationship of another, and Model Rule 8.4, by engaging in conduct involving dishonesty or deceit to obtain confidential client information of someone else’s client, protected by Model Rule 1.6. These conclusions were recently reached by an Illinois ethics opinion, which is consistent with prior opinions from Pennsylvania (2017) and Alaska (2016). An older New York ethics opinion (2001) reached the same conclusion under a slightly different rationale. Such conduct may also constitute a violation of 18 U.S.C. § 2511 (prohibiting interception of any wire, oral, or electronic communication). “Read receipts” are permissible, however, as they do not yield information about subsequent use of an e-mail and are merely the electronic equivalent of a certified mail return receipt.

Keith Fisher

Principal Consultant and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.