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Ethics & Professionalism


In-depth looks into topics relevant to you. Find all of the Ethics & Professionalism Committee’s articles in this archive.


We Don’t Talk about “Speaker 2”: Following the Rules in Depositions
By Daniel Harrington – July 17, 2023
The wise lawyer will study—and follow—all of the rules that govern depositions in their jurisdiction.

War Stories, Lawyer-to-Lawyer Consultations, and Listservs: Great Tools or Ethical Traps?
By Michael H. Rubin and Timothy G. Byrd – February 9, 2023
Discussing current cases, exchanging war stories, or recounting past experiences on a listserv can have ethical ramifications.

Considerations for Communicating with Clients via Text Message
By Philip George – January 27, 2023
To fully comply with your duties under the ethics rules, think twice before texting about complicated or critical matters.


Hard Lessons about Hard Copies: Waiving the Privilege at the Front Desk
By Thomas G. Wilkinson and Deborah A. Winokur – December 22, 2022
Since even a partial waiver of the attorney-client privilege can harm a client’s case, lawyers should take steps to protect their clients—and themselves—from unintentional waivers of the privilege.

Ethics Implications of Dobbs for Law Firm Management and Client Counseling
By Richard M. Hunt – August 2, 2022
The Supreme Court’s decision raises important issues of professional responsibility for attorneys and firms whose conduct is perfectly legal in some states and arguably criminal in others.

When Can a Trial Lawyer Call a Lie a Lie?
By Zachary Winn – July 29, 2022
Whether it is proper to characterize testimony as “disinformation” or a “lie” varies from state to state.

ABA Formal Opinion 501: What You (Purposefully) Don’t Know Can Be Held Against You
By Deborah Winokur – June 7, 2022
A poignant reminder that as attorneys we are responsible for training and supervising non-lawyers working on our behalf.

No Duty to Correct False Deposition Testimony Says State Bar
By William H. Newman – April 14, 2022
Attorney does not violate ethics rules by remaining silent while client lies.

A Lawyer’s Guide to Russia-Related Sanctions
By Margaret Monihan Toohey – February 28, 2022
A brief primer on some of the obligations an attorney may have in light of the ongoing conflict in Ukraine.


A Refresher on Title III of the Americans with Disabilities Act as It Turns 31
By Richard M. Hunt – August 5, 2021
The ADA turned 31, and whether you serve the business community or want to expand a plaintiff’s practice, this a good time to review some of the basics—and some of the oddities—about litigating Title III claims.

Is it Time to Remove “Zeal” From the ABA Model Rules of Professional Conduct?
By Daniel Harrington and Stephanie K. Benecchi – May 26, 2021
Why the term “zeal” as used in the ABA Model Rules is misleading and potentially harmful, and why its removal will result in rules that clearly set out a lawyer’s ethical obligations while promoting the highest level of professionalism.

Conversation vs. Correspondence: New Jersey Ethics Opinion Goes Its Own Way on “Implied Consent”
By Daniel Harrington – May 6, 2021
A new ethics opinion from New Jersey turns the concept of “implied consent” under ABA Model Rule 4.2 on its head.

How Judges Increase Diversity in the Legal Profession
By Richard Johnson – March 29, 2021
Some judges increasingly promote professionalism by using their position to open doors for junior attorneys and attorneys from historically underrepresented groups in the profession.

Post-Election Litigation and Rule 3.6 Restrictions on Trial Publicity
By Daniel Harrington – March 29, 2021
As courts dismissed complaints challenging the outcome of the 2020 presidential election, a myriad of private individuals and bar associations filed disciplinary complaints against the lawyers crying fraud in public but not in court.

What the Story of a “Copyright Troll” Tells Us about Ethical Lawyering
By Alexander Prunka – March 29, 2021
A refresher on applicable rules and an appeal for lawyers to follow the rules to the letter in the interest of themselves, their clients, and our profession.

Decision Highlights Pitfalls of Ex Parte Witness Interviews
By Katherine G. Vazquez – March 23, 2021
Court permits interview of opponent’s ex-employee but orders disclosure of communications.

Forbidding Sexual Harassment in the Practice of Law: Who Needs ABA Model Rule 8.4(g)?
By Terra Castillo Laughton – March 12, 2021
While the debate about ABA Model Rule 8.4(g) continues, many state disciplinary authorities find that they already have the rules they need to regulate attorney misconduct when it involves sexual harassment.


Ethical Implications When Outsourcing Legal Work
By William E. Gericke and Thomas G. Wilkinson – December 10, 2020
As practices become more specialized and support options proliferate, even more activities traditionally handled by lawyers may come to be outsourced in the future.

Formal Opinion 494: Guidance about Personal Relationships
By Margaret Monihan Toohey – December 10, 2020
Ethical quandaries when your “friend in argument” is your friend in real life.

Ethics Issues for the Unelected Lawyer Spouse
By Margaret Monihan Toohey – December 10, 2020
What happens after political dreams come true?

Unauthorized Practice of Law: Rule 5.5 in the Age of COVID-19 and Beyond
By Richard J. Rosensweig – August 12, 2020
Lawyers increasingly practice law remotely or away from their main office. As a result they may unwittingly violate the rules prohibiting the unauthorized practice of law. This article explores the issues and options for travelling and remote lawyers to avoid violating those rules.

ABA Issues Guidance on Lawyers' Duties Regarding Clients' Fraudulent, Criminal Behavior
By Thomas G. Wilkinson Jr. and Douglas B. Fox – June 8, 2020
Actual knowledge of a client’s intended or ongoing criminal or fraudulent conduct could be viewed as an invitation to a lawyer to turn a blind eye toward the client’s improper conduct.

Practical Tips to Help You Master Video Hearings
By JoAnna J. Smith – May 1, 2020
Video hearings are becoming more common, so now is the time to learn how to excel at them.

Maintaining Remote Control: Six Common-Sense Tips for Telelawyers to Reduce Risk
By Margaret Monihan Toohey – April 8, 2020
Lawyers must remain engaged while avoiding ethical pitfalls posed by remote practice amid a pandemic.

Five Pointers for Practicing in a Pandemic
By Margaret Monihan Toohey – April 8, 2020
ABA Formal Opinion 482 provides guidance on legal ethics in the time of coronavirus.


Book Review: The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace
By Kathleen Balthrop Havener – May 29, 2019
Any person who is in a position of authority would benefit from a deep read of this valuable book.

Formal Opinion 485 Shows No Love to Judges Who Refuse to Perform Same-Sex Marriages
By Margaret Monihan Toohey – March 19, 2019
Refusing to perform same-sex marriages violates Model Code of Judicial Conduct.

Attorney Professionalism: Ever More Important in the Fake News Era
By Margaret Monihan Toohey – March 19, 2019
Illinois disciplinary complaint rejects lawyer’s allegation that “[t]he standards have changed."


Bumps in the Road: How to Share Setbacks with Your Client and Why You Must
By Kathleen Balthrop Havener – October 18, 2018
“Tell the truth faster.”

Changes in ABA Advertising Rules—Who Cares?
By Lynda C. Shely – October 3, 2018
If your jurisdiction's rules have changed, you need to become familiar with them.

The Uncertain Future of Virtual Law Practice in the Wake of Schoenefeld
By Kaitlin J. Kline and Jacqueline M. Pasek – February 12, 2018
How will Schoenefeld and other similarly situated nonresident New York-barred attorneys proceed in the face of the enduring roadblock of New York Judiciary Law Section 470?


Schoenefeld Seeks SCOTUS Review of Second Circuit's Decision
By Jacqueline M. Pasek – February 15, 2017
The federal appeals court had previously upheld New York's Nonresident attorney office requirement.


New York's Highest Court Clarifies Nonresident Attorney Office Requirement
By Kaitlin J. Kline – January 19, 2016
After Schoenefeld, New York will presumably, albeit grudgingly, move toward acceptance of VLOs, consistent with the realities of practicing law in a digital age.

California's New E-Competence Rule
By Lisa Sherman, Benjamin Rose, and Jim Carden – January 19, 2016
Even carefully crafted legal hold and preservation letters to custodian employees are insufficient defenses where relevant evidence goes missing.

"Maelstrom of Misconduct" Generates Bevy of Bench Slaps
By Kathryn Nadro – January 19, 2016
Incivility among attorneys may lead to discipline.


Ethics Opinion Clarifies Inconsistency in Sale-of-Law-Practice Rules
By Will Knight – March 31, 2015
Retiring solo practitioners can rest a little easier.

Ethics Considerations for Attorneys Serving on Nonprofit Boards
By Dan Ebner – March 31, 2015
Attorneys are often attractive candidates for nonprofit boards, but serving on a board has risks.

Ethical Fee Collection from a Former Client: Bringing Out the Big Guns
By Kathryn Nadro – March 31, 2015
There are risks in litigating a fee dispute or using a collection agency, while fee arbitration offers a somewhat underused, private alternative.

Confidentiality Clauses in Settlement Offers under Rules 5.6 and 3.4
By Larry Fox and Jenny Gu – March 31, 2015
The Indiana Legal Ethics Committee has taken a position contrary to the position taken by several other jurisdictions.

Ethical Issues Implicated by Lawyers' Use of Third-Party Cloud Services
By Amelia Toy Rudolph – February 23, 2015
Proceed with caution when entering the cloud.

Conflicts of Interest in Trust and Estate Litigation
By Daniel S. Ebner – February 6, 2015
An attorney's failure to understand conflicts of interest can result in discipline, disqualification, loss of fees, or a malpractice action.


An Update on the Schoenefeld Appeal
By Chad Jira – July 17, 2014
A non-dispositive opinion by Circuit Judge Peter W. Hall leaves the ultimate question of the appeal unanswered for now.

When Breaches of Professionalism Become Sanctionable
By Gregory R. Hanthorn – February 5, 2014
Courts are beginning to hold attorneys to a higher standard.

Ethical Fee Collection from a Former Client: Bringing Out the Big Guns
By John Martin and Kathryn Heinrichs – February 5, 2014
What to do after the love is gone.

Ethical Conundrums in Blawgs
By Anne-Marie Mitchell – February 5, 2014
Don't run afoul of attorney-advertising rules.

Ethical Issues in Communications with Proposed Class Members
By Arthur Owens – February 5, 2014
Practical considerations prior to establishing direct communication.


Recent Developments in the Causation Requirement for Legal-Malpractice Claims
By Rebecca Counts – November 19, 2013
The Encinias case out of New Mexico could be a sea change.

Lawyer Elevator Talk and Conflicts of Interest
By Stephen T. LaBriola – March 29, 2013
When does a consulting lawyer's informal discussions with another lawyer lead to ethical violations and/or disqualification?


Ethical Rules for Litigating in the Court of Public Opinion
By Michael Downey – July 18, 2012
Even Aaron Burr had a hard time getting a fair trial.

Duties of Local Counsel: More Expansive Than You Think?
By Stephen L. Miles – July 18, 2012
Don't be held responsible for the mistakes of national counsel.

Ethical Pitfalls When In-House Counsel Represent Pro Bono Clients
By Bruce Rubin and James Walker – July 18, 2012
Make sure you don't run afoul of state licensing and disciplinary rules.

Initial Ethics Considerations in Starting My Own Law Firm
By Arden B. Levy – July 18, 2012
Make sure you don't run afoul of state licensing and disciplinary rules.

Like Peanut Butter and Jelly, Ethics and Web Marketing Go Together
By By Lisa M. Vaughn – July 18, 2012
Good marketing and compliance with ethics standards are not like oil and water.


Counsel Disqualified after Arbitrator Discloses Panel Deliberations
By Thomas G. Wilkinson, Jr. and Michael P. Zabel – November 16, 2011
When ex parte communication leads to the disclosure of confidential panel deliberations to only one party, that party’s counsel runs the risk of disqualification from the proceedings.

State of New York Appeals Striking of Nonresident Office Requirement
By Chad A. Jira and Brian F. Toohey – November 4, 2011
Whether the plaintiff's favorable decision knocking out section 470’s office requirement will survive on appeal or perhaps prompt a legislative response remains to be seen.

Lawyer Websites: ABA Formal Opinion 10-457 and Beyond
By John C. Martin – October 18, 2011
A website revision is definitely in order, but can you accomplish it without running afoul of the ABA Model Rules of Professional Conduct or their state counterparts?

Loyalty under Attack: The Pernicious Prospective Waiver
By Lawrence J. Fox – October 18, 2011
Any prospective waiver should be subject to challenge by the affected client if the client can make a reasonable argument that the client's consent now turns out to be uninformed.

Contract Freedom, Advance Conflict Waivers: Fair Play for Consenting Adults
By Steven C. Krane – October 18, 2011
The following is a dramatization in three acts of a situation that, in words or substance, regularly occurs in the United States.

Accused of Bias, Judge Recuses Himself from 17 Ongoing Cases
By Thomas G. Wilkinson Jr. and Michael Zabel – October 18, 2011
Recent decisions enhance prosecutors' ability to conduct international investigations at a time when the DOJ is aggressively targeting international antitrust and FCPA violations.

Service During Disaster as a Form of Professionalism
By Larry D. Smith and Robert V. Goldsmith III – July 18, 2011
Recent weather-related disasters in the United States have heightened the importance of humility and assistance in the legal profession.

Ten Notable Conflict-of-Interest Rulings from the Last Year (or So)
By Nicholas B. Reuhs and Elizabeth H. Mykytiuk – July 14, 2011
A website revision is definitely in order, but can you accomplish it without running afoul of the ABA Model Rules of Professional Conduct or their state counterparts?

Allowing Lawyer Mobility: Why the ABA Should Adopt the Proposed Amendments to Model Rule 5.5(d)(3)
By Brian F. Toohey and Anne Marie Morris – July 13, 2011
This memorandum was submitted to the Ethics 20/20 commission in May 2011 by authors Brian Toohey and Anne Marie Morris.