August 01, 2018

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith Fisher, Christina Houston

Professional Responsibility

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.

Keith Fisher

Principal Consultent 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.