Ethics Committee Highlights

2021

March

On March 10, the Standing Committee on Ethics and Professional Responsibility released Formal Ethics Opinion 498, Virtual Practice.

The opinion explains that the ABA Model Rules of Professional Conduct permit virtual practice and then defines virtual practice as “technologically enabled law practice beyond the traditional brick-and-mortar law firm.”

The opinion analyzes Model Rules 1.1, Competence; 1.3 Diligence; and 1.4, Communication. In compliance with the duty of confidentiality under Model Rule 1.6, the opinion notes that lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information. Finally, the opinion explores a lawyer’s duty of supervision under Model Rules 5.1 and 5.3 explaining that lawyers must make reasonable efforts to ensure compliance by subordinate lawyers and nonlawyer assistants with the Rules of Professional Conduct.

February

On February 10, the Standing Committee on Ethics and Professional Responsibility released Formal Ethics Opinion 497, Conflicts Involving Materially Adverse Interests.

In this new opinion, the Committee analyzes ABA Model Rules of Professional Conduct 1.9(a) and 1.18(c) addressing conflicts involving representing a current client with interests that are “materially adverse” to the interests of a former client or prospective client on the same or a substantially related matter.

Neither Rule specifies when the interests of a current client are “materially adverse” to those of a former client or prospective client. The opinion reviews a number of hypothetical situations including some that are typically clear, such as, negotiating or litigating against a former or prospective client on the same or a substantially related matter, attacking the work done for a former client on behalf of a current client, or, in many but not all instances, cross-examining a former or prospective client.

In other situations, the Committee suggests that “material adverseness” may exist when the former client is not a party or a 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. However, neither generalized financial harm nor a claimed detriment that is not accompanied by demonstrable and material harm or risk of such harm to the former or prospective client’s interests suffices.

January

On January 13, the Standing Committee on Ethics and Professional Responsibility released Formal Ethics Opinion 496, Responding to Online Criticism. The opinion explores Model Rule of Professional Conduct 1.6(a) which prohibits lawyers from disclosing information relating to a client’s representation or information that could reasonably lead to the discovery of confidential information by another.

The Committee finds that a negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule.

The opinion provides tips on best practices recommending that lawyers consider not responding to a negative post or review because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. And a lawyer who chooses to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.