Risk Update

Law Firm Ethics Updates — Ethical Ethics Consultation, Conveyancing Conflicts, Pleading Plagiarism & Technology Implied

New California Ethics Opinion Addresses Whether There is a Duty to Disclose Ethics Consultation to Clients” —

  • California State Bar Formal Opinion No. 2019-197
  • “The Committee determined that when attorneys have questions regarding their ethical obligations, they should seek advice and counsel, and doing so does not create an ethical conflict with a client. If, through the advice and counsel, an attorney learns of an ethical conflict with the client, that conflict must be disclosed.”
  • “However, the fact that the attorney may have learned that information from a consultation with another attorney does not always need to be disclosed and depends on whether the facts cause such consultation to be a material development requiring disclosure under California Rule of Professional Conduct (“Rule”) 1.4(a)(3). This same rule applies to in-house counsel at a law firm.”
  • ” This opinion provides an in-depth analysis of California’s new Rules of Professional Conduct related to communication with and loyalty to clients. It confirms that attorneys can—and should—seek ethical guidance from outside counsel and in-house counsel, to investigate concerns or potential errors and learn how to best proceed. The opinion also provides an endorsement of law firm in-house counsel and their ability to provide ethical advice to law firm attorneys without creating a conflict of interest with firm clients.”

Advisory Opinions From Ohio Board Of Professional Conduct”

  • Advisory Opinion 2019-02 replaces a 2002 advisory opinion and provides further guidance to lawyers considering the transfer of his or her interests or shares in a law firm to a revocable trust. The board concludes that a lawyer may not title his or her interests or shares as transfer-on-death to a trust due to rules that prohibit a lawyer from practicing in a law firm if a non-lawyer has an ownership interest in the firm. Because a transfer-on-death of shares in a law firm to a trust may eventually lead to an heir of a non-lawyer holding an ownership interest, remaining lawyers in the firm would be unable to maintain compliance with either rule. This opinion withdraws Adv. Op. 2002-12.

The Law Society’s Conveyancing Quality Scheme Is Changing” —

  • “Practices will now be required to have a set process on the handling of conflicts. This must include steps to follow when a conflict has been identified; or a policy for an assessment of a potential risk of conflict, when representing both sides of a transaction. The scope of this requirement reaches much further, however. It also seeks an assurance that any information, which may affect the lending decision, will be brought to the lender’s attention, provided consent to disclose it has been obtained from the client. In the absence of such consent from the client, the lender must be advised that a conflict of interest has arisen preventing the firm from continuing to act for the lender.”

State bar opinion guides lawyers on technology” —

  • “Now the Louisiana State Bar Association has weighed in, releasing a public ethics opinion in February that highlights state rules of professional conduct implicated in incorporating technology and adopting innovations in the practice of law.”
  • Louisiana’s rules do not include a technology component, but Grodsky [LSBA president] says that ‘technological competence is implicit’ in its competent representation rule and another that lawyers ‘should act with reasonable diligence and promptness’ when representing clients.”
  • “They include duties to not disclose information related to a client inadvertently or without authorization and to reasonably safeguard client information, as well as a rule that managing lawyers adopt measures and make reasonable efforts to ensure that other lawyers and non-lawyers, including vendors, are conducting themselves in ways compatible with legal professional conduct.”

And a fascinating one sent in by risk consultant Patrice Kennard: “Copying in Brief Writing: Where Is the Line?” — 

  • “Are the rules about copying different in brief writing than elsewhere? To some extent, yes. But litigators should not mistake that for a license to copy freely. The accepted practices may be different, but there are limits.”
  • “But copying in brief writing can go too far. Because courts have found that legal briefs are subject to copyright protection, large scale copying of another lawyer’s brief may be actionable as infringement. See Newegg v. Ezra Sutton, P.A., 2016 WL 6747629 (C.D. Cal. Sept. 13, 2016); accord White v. West Publishing, 29 F. Supp.3d 396 (S.D.N.Y. 2014) (upholding a fair use defense). Moreover, plagiarism in legal briefs can lead to sanctions.”
  • “It appears, however, that to be truly sanctionable plagiarism in a legal brief must be not only extensive, but also accompanied by something more. In Lohan, the offending submission was so heavily copied that it failed to address the “salient points” in the case, and the copying was aggravated by other misrepresentations to the court.”
  • “Exactly where is the line? The New York City Bar Association’s Committee on Professional Ethics grappled with this issue last summer in Formal Opinion Number 2018-3… At first blush, the Committee’s conclusion—that copying someone else’s work without attribution does not in itself appear to violate the ethics rules, but that its view on this might change and that such copying might meanwhile subject lawyers to sanctions—seems unsatisfying”
  • “The Committee’s conclusion is, in essence, that copying someone else’s work without attribution probably does not violate the rules if that is all the lawyer does (that is, if the conduct is not accompanied by other misdeeds such as an attempt to charge for work the lawyer did not actually do, or a failure to ‘tailor the brief to the situation before the court’), but it should be avoided.”