Suspicious Client Transactions: Duty of Inquiry
By Keith R. Fisher
A recent ethics opinion of the New York City Bar explores professional obligations when a lawyer has doubts about the lawfulness of a transaction for a client. Though acknowledging that the rules do not explicitly address this situation or expressly impose a duty of investigation, the opinion concludes that “competent” representation under N.Y. Rule 1.1 implies a duty of inquiry in some circumstances. This approach seeks to avoid violating N.Y. Rule 1.2(d) (knowingly assisting in unlawful conduct)—which is similar to Model Rule 1.2(d) but without the final clause—and “to render reasonable and candid advice to the client about whether to undertake the proposed conduct and the consequences of doing so.” The NYC opinion also cautions that, in making an inquiry, the lawyer must be mindful of other requirements, e.g., Rule 1.6 to preserve client confidences and Rule 1.4 to explain (notwithstanding Rule 1.4(a)(5)) to the client the lawyer’s doubts about the legality of the transaction.
Mentioning Contract in Email Waives Privilege
By Keith R. Fisher
A magistrate judge’s recent decision in the Northern District of Illinois in a fee dispute held that disclosure of an email trail that mentioned a draft of a contract between a foreign company that purchased the attorney’s former client (from which fees are being sought) waived the attorney-client privilege with respect to that contract. The court previously had to issue an order requiring production of documents, and counsel for the former client had failed, despite multiple opportunities, to list the draft contract in a privilege log or otherwise interpose a specific claim of privilege when producing the emails. Critical of “surreptitious” behavior by producing counsel, the court held that their production of the email chain mentioning the contract was “unwitting” but not “inadvertent” and constituted a waiver of privilege.