May 01, 2018

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith Fisher, Christina Houston

Professional Responsibility

Ethical Competence: Developments re: Litigation Financing Entities

By Keith R. Fisher

Business lawyers representing entities engaged in third-party litigation financing (TPLF), a/k/a Alternative Litigation Financing (ALF), should be (and should make their litigator colleagues) aware of disclosure requirements in some (though not all) federal and state courts around the country. A recent research memo included in the agenda book (starting at p. 209) for the April 10, 2018, meeting of the Advisory Committee on the Rules of Civil Procedure shows that nearly half of the federal circuit courts and roughly a quarter of federal district courts have local rules mandating disclosure (for judicial disqualification purposes) of TPLF funders. The memo also summarizes substantive regulation of TPLF by statute in eight states.

Duty to Disclose "Material Error" to Current Client but Not Former Client

By Keith R. Fisher

The Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 481, which states that a lawyer must inform a current client about any "material error" made by the lawyer in the representation. A "material error," according to the committee, exists where "a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice." The duty to disclose material errors derives from the requirement in Model Rule 1.4(a)(3) and (b) to keep a client "reasonably informed about the status of a matter" and "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." As that rule applies only to current clients, the duty to disclose material error does not extend to former clients.

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.