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GPSLD Ethics Corner

By Wendy J. Muchman

This month, our ethics corner focuses on two recent opinions of the ABA Standing Committee on Ethics and Professional Responsibility. The first relates to guidance on when remote practice is allowed and when it might be considered the unauthorized practice of law. The second opinion will thrill all lawyers who have ever tried to determine the meaning of the words "materially adverse" in the former and prospective client Rules.

In this electronic world we live in, what's a lawyer to do? Don't want to spend the winter in your freezing state? Can you spend the winter in a sunny state and represent only your clients on the law of your freezing state?

ABA Formal Opinion 495, issued December 16, 2020, gives needed guidance on these issues. Lawyers may remotely practice the law of a jurisdiction in which they are licensed (freezing state) while physically present in another jurisdiction (sunny state) where they are not licensed, as long as that conduct is not the unauthorized practice of law in the latter jurisdiction (sunny state). A couple of caveats: the lawyer cannot hold out as licensed in the jurisdiction, have an office in the jurisdiction, advertise in that jurisdiction, or have business cards, letterhead, or a website listing the presence or provide legal services in the local jurisdiction.

If you have ever grappled with the language of Rules 1.9(a) and 1.18(c) regarding conflicts with "materially adverse" interests, you will appreciate the guidance of Formal Opinion 497 issued February 10, 2021. Rules 1.9(a) and 1.18(c) address representing a current client with interests that are "materially adverse" to the interests of a former client or prospective client on the same or substantially related matter. Neither rule specifies when clients' interests are "materially adverse". The Opinion assists in clarifying this term. Some situations are obvious, such as where a lawyer is directly adverse to a former client on the same or substantially related matter. But material adverseness can be present where direct adverseness is not. The Opinion gives examples of situations where "material adverseness" may be found including suing or negotiating against a former client, attacking lawyer's own prior work, and often where a lawyer is cross-examining a former client. "'Material adverseness' may exist when the former client is not a party or witness in the current matter if the former client can identify some specific material, legal, financial or other identifiable concrete detriment that would be caused by the current representation." "Generalized financial harm or a claimed detriment not accompanied by demonstrable and material harm or risk of harm to the former or prospective client's interests does not suffice."

Wendy J. Muchman

Harry B. Reese Professor of Practice

Wendy J. Muchman is the Harry B. Reese Professor of Practice at Northwestern University Pritzker School of Law.