Monday, February 27, 2017

Recursive Conflicts? (Conflicts within Conflicts? Conflicts Inception?)




"It's OK to Consult an Ethics Committee as Long as You Inform Your Client if There Is a Conflict" --
  • "Our firm has an ethics committee. I wish to consult with the ethics committee about issues arising out of my representation of a client of a firm. Can I do so without creating a conflict with the client, or do I have to notify the client? Would your answer change if my consultation was not with the in-house ethics committee, but I sought the advice of outside ethics counsel?"
  • "The question is an interesting one. Does receiving internal ethical advice and seeking the advice of outside ethics counsel create a conflict between the lawyer and the client or the law firm and the client. The fact that one goes to in-house counsel or one goes to outside counsel would not seem to make a difference in the ethical analysis."
  • "The seeking of the advice itself would not seem to creating a conflict with the client... But, if after seeking advice and the advice does suggest there is a conflict or there is something wrong, then it would appear the lawyer has a duty to advise the client because, at that point, a conflict could arise between the lawyer and the client. There doesn't appear to be any reported decisions by the Pennsylvania Supreme Court on this issue. There also doesn't appear to be any written Pennsylvania ethics opinions on this issue. Some other states have attempted to deal with this question."
  • "But, common sense would demonstrate that if a lawyer as part of the representation reaches a conclusion that there is a conflict between the lawyer and the client or conflict between what the client wants the lawyer to do, then the lawyer has to bring that to the client's attention under Rule 1.7 of the Rules of Professional Conduct. Under that rule there is a concurrent conflict of interest if the lawyer's interest may differ from the client's. If there is a conflict on an ethical issue which is determined to be wrong, then it's in the lawyer's interest to take certain steps. To do so, the client has to be fully and properly informed and given a chance to change his or her behavior."
  • "Therefore, conclusions of conflicts or misconduct or wrongdoing or ethical problems have to be disclosed to the client once those conclusions are reached. But, the initial consultation either with outside counsel or an in-house committee, would appear not be one where a client would have to consent or even be informed of."

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