Monday, February 27, 2012

Legal Ethics News & Developments

Ethical issues raised about nonlawyer law firm CEOs:
  • "Drinker Biddle & Reath partner Lawrence J. Fox, former chair of the American Bar Association’s standing committee on ethics and professional responsibility, thinks Scott Green's appointment marks the first breach of professional independence for lawyers."
  • "'It raises all sorts of questions and trivializes the basic tenant of professional independence — lawyers report to lawyers... The problem I see is those who want to own a law firm now have an argument for doing so. If you have a nonlawyer CEO, why shouldn’t the next step be Goldman Sachs or Walmart owning law firms.'"
Recent Ethics Opinions:
  • New York State Bar Opinion 903 (1/30/12) -- "When a lawyer jointly represents two co-defendants pursuant to a validly obtained consent to the dual representation and to any future conflicts that might arise between the joint clients, and one of the clients later revokes consent, whether the lawyer may continue to represent the non-revoking client depends upon the circumstances, unless an advance agreement specifies what happens upon revocation of consent."
  • New York State Bar Opinion 905 (1/30/12) -- "Rules 1.9 and 1.10 do not apply to a lawyer who acquired confidential information while acting solely as a paralegal or legal assistant. A law firm that hires a lawyer who acquired confidential information while acting as a paralegal or legal assistant has an obligation to make reasonable efforts to ensure that the lawyer does not reveal the confidential information. A law firm should instruct the newly hired lawyer not to divulge confidential information. The firm should also perform a conflicts check reasonable under the circumstances. If the lawyer acquired confidential information in a matter while working as a paralegal or legal assistant, the lawyer ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that the firm has a duty to protect."
  • New Hampshire Ethics Committee Advisory Opinion #2011-12/5 -- Outsourcing Legal and Non-legal Support Services – "Such engagement of support services does not of itself violate the Rules of Professional Conduct. The New Hampshire attorney must ensure that the individuals or companies providing the services maintain client confidences (Rule 1.6) and do not create conflicts of interest (Rule 1.7). The New Hampshire attorney must also ensure that the charges for these services do not result in an unreasonable fee or unreasonable expenses (Rule 1.5), and must not share fees with non-attorneys (Rule 5.4). The New Hampshire attorney must notify the client of the engagement of such services (Rules 1.2 and 2.1), must be competent (Rule 1.1) to review the services provided (Rules 5.1 and 5.3), and must avoid the assistance of the unauthorized practice of law (Rule 5.5)."

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