Tuesday, May 13, 2014

Client Care, Conflicts and Compliance

Hat tip to Bill Freivogel for pointing out an excellent article in the latest ABA/BNA Lawyers' Manual on Professional Conduct (Multiple Representation - 30 Law. Man. Prof. Conduct 303) [subscription required].

He notes: "This excellent article discusses various aspects of lawyers representing entities and constituents of entities in the same matters. It contains cites to various ABA ethics opinions, Restatement sections (including relevant comments), and court cases. Among aspects discussed are discipline, malpractice exposure, fee forfeitures, consents (including who may consent for an entity), and representation agreements." --
  • "Rules of professional conduct governing representation of corporations and other entity clients recognize that it is not inherently unethical for an attorney or law firm to represent the organization and one or more of its constituents in the same matter."
  • "At the same time, ethics standards make clear that, before heading into this situation, the lawyer must carefully assess conflicts of interest that exist or could arise among the multiple clients, and deal with them appropriately. This includes obtaining informed consent from all affected clients—if the perceived conflicts are not unwaivable."
  • "In this Special Report, legal editor Joan Rogers explains the general rule allowing joint representation, the risks posed by representation of multiple clients in the corporate context and what steps the attorney should undertake to obtain the clients' effective and fully informed consent."
BNA's newsletter also reports on a recent California ethics opinion (No. 2014-190) : "All Lawyers in Dissolving Firm Must Take ‘Reasonable Steps’ to Guard Clients’ Interests" --
  • "When a law firm breaks up every lawyer in it must take “reasonable steps” to safeguard the interests of the firm's clients from foreseeable harm, according to a recent opinion from the California bar's ethics committee."
  • "'The opinion applies Rule 3-700(A)(2) of the California Rules of Professional Conduct which, similar to ABA Model Rule 1.16(d), prohibits bar members from withdrawing from a representation until they have taken “reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client.'"
  • "The committee said that whether or not a dissolution committee or similar mechanism is in place, the actions required of each attorney depend on the totality of the circumstances. One salient factor, it said, is the lawyer's prior relationship with a client... Another factor is the particular lawyer's ability to act for the firm, the committee said... A third factor the opinion identifies is the lawyer's competence to perform services for the client..."

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