Who Wants To Be AN ETHICAL LAWYER?

Who Wants To Be AN ETHICAL LAWYER?

April 2017

HYPOTHETICAL 1 John is a lawyer licensed to practice law in Washington DC John just relocated to Michigan as in-house counsel of ABC Utility John never plans to return to DC, and ABC Utility does not conduct business there Does John need to pay his DC Bar dues?

WHAT HAPPENS IF JOHN DOESN T PAY HIS DC BAR DUES? A: Nothing, they ll never find him in Michigan B: He could lose his license, and his job. C: DC will be mad, but they ll get over it D: He doesn t need to be licensed to be in-house What s your final answer?

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April 2017

MULTIJURISDICTIONAL PRACTICE OF LAW Model Rules of Professional Conduct (MRPC) 5.5 A.K.A. - In-House Counsel Rule (d) A lawyer admitted in another United States jurisdiction... and not disbarred or suspended from practice in any jurisdiction... may provide legal services through an office or other systematic and continuous presence in this jurisdiction that : (1) are provided to the lawyer s employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission... (Emphasis added)

MULTIJURISDICTIONAL PRACTICE OF LAW MRPC 5.5(d)(1) Pro hac vice admission Check the RPC in your jurisdiction Generally, a lawyer cannot appear before a court, administrative tribunal or agency or an arbitrator unless licensed in that state or admitted pro hac vice Some states also limit the number of times a year a lawyer can be admitted pro hac vice.

HYPOTHETICAL 2 John paid his dues! Thanks for helping him. Now, his boss Amy is getting divorced Amy asks John to be her lawyer Is John allowed to represent Amy?

April 2017

DO THE MJP RULES ALLOW JOHN TO REPRESENT AMY? A: Not really, but no one will ever know B: Yes, it s a blanket exemption for any work done in the jurisdiction C: No, the exemption is limited to work for his employer D: Family law isn t that hard, he doesn t need a license What s your final answer?

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April 2017

MULTIJURISDICTIONAL PRACTICE OF LAW Comment to MRPC 5.5(d)(1): This paragraph does not authorize the provision of personal legal services to the employer s officers or employees. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. (Emphasis added) In-house counsel can represent officers or employees related to work for the employer.

HYPOTHETICAL 3 Anytown Water and a department manager, Ted, are jointly accused of sexual harassment in an EEOC charge Sue is general counsel for Anytown Water An internal investigation substantiates the allegations Ted asks Sue for advice about the allegations and wants to know if he has anything to worry about

CAN SUE ADVISE TED ABOUT THE SEXUAL HARASSMENT CLAIM? A: Yes, these types of claims usually aren t very controversial B: No, Sue s client is Anytown Water, and representing Ted would be a conflict of interest C: Conflicts be damned! Sue can handle representing everyone. She should also try to represent the claimant. D: Yes, if she wants to. The rules allow her to choose who she likes better. What s your final answer?

CAN SUE ADVISE TED ABOUT THE SEXUAL HARASSMENT CLAIM? B: No, Sue s client is Anytown Water, and representing Ted would be a conflict of interest C: Conflicts be damned! Sue can handle representing everyone. She should also try to represent the claimant. What s your final answer?

CORRECT ANSWER:

April 2017

WHO S THE CLIENT? MRPC 1.13 Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. * * * (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

WHO S THE CLIENT? Corporate Upjohn / Miranda Warning MRPC 1.13(f) creates a duty for the lawyer representing the organization to explain that the lawyer represents the organization, not the individual constituents Most common during internal investigations Applies to in-house counsel and outside counsel

WHO S THE CLIENT? MRPC 1.13(g) (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

HYPOTHETICAL 4 Pamela is a well-known CWA lawyer and author. During congressional hearings on CWA reform, Pamela testified to her personal belief and expert opinion on the pending reform package. She failed to disclose in her testimony that she was being paid well by a private client for her appearance. In her testimony, Pamela took the position favored by her client, but the position was one that Pamela believed was in the public interest. Was it proper for her to present this testimony without identifying her private client?

WAS PAMELA REQUIRED TO REVEAL THAT SHE WAS BEING PAID FOR HER TESTIMONY? A: No, because she believed that the position was in the public interest. B: No, Congress doesn t need to know who is paying a witness. C: Yes, a lawyer may not accept a fee for trying to influence legislative action. D: Yes, a lawyer who appears in a legislative hearing must identify the capacity in which she appears. What s your final answer?

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April 2017

RULE 3.9 APPEARANCE BEFORE A NONADJUDICATIVE BODY A lawyer representing a client before a legislative or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity.... Rule 3.9 goes on to provide that when a lawyer is representing a client in nonadjudicative legislative or administrative proceedings, the lawyer: [S]hall conform to the provisions of Rules 3.3(a) through (c) [which deal with truthfulness and candor to a tribunal], 3.4(a) through (c) [which deal with concealment, destruction, or falsification of evidence and compliance with rules of a tribunal], and 3.5 [which deals with impermissible communications with a tribunal or juror].

APPEARING BEFORE NONADJUDICATIVE BODY In addition to the provisions of Rule 3.9, representation of a client before a legislative or administrative body may implicate other disclosure requirements, such a lobbyist registration and reporting. Note that Rule 3.7, which limits when a lawyer may act as both advocate and witness, applies only to trials in adjudicatory proceedings, and not to nonadjudicative proceedings.

HYPOTHETICAL 5 Mr. Mustard is a citizen of Anytown, USA. He constantly protests outside of Anytown Utility Department (AUD) and submits public records requests that send AUD employees on wild goose chases. Now Mr. Mustard is suing AUD over an alleged sewer backup. AUD has retained Larry, a local attorney. AUD s Executive Director told Larry not to grant any delays or courtesies to Mr. Mustard or his lawyer, and asked him to insist on every technicality. Larry has served Mr. Mustard s lawyer, Jones, with written discovery. Jones, because of the illness of her secretary, has asked Larry for a five-day extension of time within which to answer them.

IS LARRY SUBJECT TO DISCIPLINE IF HE GRANTS JONES S REQUEST FOR A FIVE- DAY EXTENSION? A: Yes, because Larry is acting contrary to his client s instructions. B: Yes, unless Larry first informs AUD of the request and obtains AUD s consent to grant it. C: No, unless granting the extension would prejudice AUD s rights. D: No, because Larry was not at fault in causing the delay. What s your final answer?

IS LARRY SUBJECT TO DISCIPLINE IF HE GRANTS JONES S REQUEST FOR A FIVE- DAY EXTENSION? A: Yes, because Larry is acting contrary to his client s instructions. C: No, unless granting the extension would prejudice AUD s rights. What s your final answer?

CORRECT ANSWER:

April 2017

WHO CHOOSES THE MEANS Rules of Professional Conduct, Rule 1.2 [A] lawyer shall abide by a client s decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. Comment 2 acknowledges that clients and lawyers may disagree about the means that are appropriate to use.

HYPOTHETICAL 6 Susan Sunshine is a CWA lawyer at a law firm, and she focuses on defending clients in litigation. Her practice is growing, and she has developed a strong network on LinkedIn and other social media platforms. Susan s Aunt Frannie is retired and just signed up for a LinkedIn account to connect with friends and family. Aunt Frannie is so proud of Susan! When LinkedIn asked her to endorse Susan for a variety of skills like corporate law, transactions, real estate, and antitrust, she of course clicked yes. Do Aunt Frannie s endorsements create an ethical issue for Susan? If so, what should she do?

WHAT SHOULD SUSAN DO ABOUT AUNT FRANNIE S ENDORSEMENTS? A: Nothing. LinkedIn profiles are not advertising. B: Talk to her aunt more often to make sure she knows what her actual skills are. C: Regularly monitor her LinkedIn account to make sure endorsements are accurate. D: Leave LinkedIn forever to avoid ethical pitfalls. What s your final answer?

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April 2017

LINKEDIN AS ADVERTISING? Model Rules do Not Regulate Advertising Some states are more strict than others NYC Bar Opinion (2016) Profile must meet five criteria to meet the definition of a lawyer advertisement to be subject to content restrictions and requirements. Profiles can be used for a variety of purposes (job searches, networking etc.) that may not be specifically targeted at developing new clients

LINKEDIN AS ADVERTISING? California Rule of Professional Conduct 1-400 A communication is regulated by Rule 1-400 if it (1) is made by or on behalf of a California attorney; (2) concerns the attorney s availability for professional employment; and (3) is directed to a former, present, or prospective client. Rule 1-400 prohibits communications that are false, deceptive, or tend to confuse, deceive, or mislead the public.

QUESTIONS?