Articles

Predicting the Future: Can You Ethically Obtain an Advance Waiver of Actual Conflicts of Interest?

We all know of lawyers who are so proficient at their craft, who are such artists in their specialties, and who have such an incredible track record that they are acknowledged to be superstars in their given area of practice. Where a client is convinced that such a lawyer is the absolute best person to represent the client, and that no other will suffice, should the duty of loyalty prevent the lawyer from accepting the client, even where the client provided informed and intentional agreement that the lawyer may later concurrently represent an adversary of the client in an unrelated case or matter? The author, founding partner of the Southern California law firm Pansky Markle Ham LLP, provides answers to this question by presenting a detailed analysis of California case law, including Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., which is currently pending on review before the California Supreme Court.

The New Battle Over Conflicts of Interest: Should Professional Regulators—or Clients—Decide What Is a Conflict?

The authors, partners in the Lawyers for the Profession® practice group at Hinshaw & Culbertson LLP, argue that lawyers’ independence is under attack and that outside counsel’s independence has been significantly limited by the ability of corporate clients to expand the definition of conflicts of interest. This article examines the different ways that clients have sought to expand the definition of conflicts of interest, and reveals how, in doing so, they are not only seriously undermining the ability of law firms to operate, but also how, in the long run, clients are acting contrary to their own best interests. The authors propose one solution to this problem, to amend ABA Model Rule 5.6(b), Restrictions on Right to Practice, in order to prohibit lawyers and law firms from agreeing to any and all outside counsel guideline provisions that have the effect of limiting their ability to represent other clients beyond what is already encompassed in the Model Rules generally, and in the conflicts provisions specifically.

The Future of Latinos in the United States: Law, Mobility, and Opportunity (A Project of the American Bar Foundation)

The Latino population has grown rapidly and soon will be the second largest racial or ethnic group in the nation. As part of its commitment to studying diversity and law and to connecting cutting-edge research to today’s most pressing issues of law and policy, the American Bar Foundation (ABF) has launched a major initiative on “The Future of Latinos in the United States: Law, Opportunity, and Mobility.” This project supports research, teaching, and community outreach to address the needs and concerns of the rapidly expanding Latino population. In this article, the authors describe the origins of the project, the mission it serves, and the initial activities they have organized. They conclude with a brief discussion of the next phases of the project and an invitation to practicing lawyers to get involved in this effort.

You Can’t Make Me Tell—Or Can You? Can Observing Mentee- and Mentor-Lawyers Be Compelled to Testify About Confidential Client Information?

Associate Dean of Students and Professionalism at Western Michigan University Thomas M. Cooley Law School and Vice Chair of the National Legal Mentoring Consortium, Amy Timmer, highlights an ethical dilemma that can arise when an observing mentor or mentee learns confidential client information during a mentoring session. Without an effective method to preserve client confidences, mentoring programs, and therefore young lawyer development, may be impeded. State bars have experimented with a variety of ways to protect the confidential information obtained by an observing lawyer from discovery. The author describes some of the approaches tried and proposed by state mentoring programs, and urges state Supreme Courts to fashion rules that would protect the attorney-client privilege, while allowing for mentoring observations.

Corporate Outside Counsel Policies—Who Do You and Who Can You Represent?

In response to the downturn of the economy and increased competition for corporate clients in the late 2000s, corporate clients developed “corporate outside counsel policies” to manage and trim fees for legal services. Over time, these policies have become increasingly comprehensive and restrictive. They now address a wide range of subjects, including ownership of the client file, the level of skill required for attorneys providing services, and even the number of attorneys who can attend a single meeting. This article provides sample policy provisions, analyzes how courts have treated the issues and conflicts associated with outside counsel policies, discusses the practical implications of provisions for law firms, and examines in detail who benefits from these outside counsel policies. The authors also provide recommendations for law firms on how to manage the requirements of these policies, and tips on how to interact with corporate clients.

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