Risk Update

Lawyer Rules & Ethics — Advisory Opinion on Government Works Conflicts, “No Extensions” Policy Under Ethics Analysis, Colorado Countenances Paraprofessionals

Disciplinary Commission issues advisory opinion on navigating conflicts of interests for government workers” —

  • “The Indiana Supreme Court Disciplinary Commission issued a nonbinding advisory opinion Thursday discussing when a lawyer who is a current or former government worker should decline to accept a legal matter due to a conflict of interest. The advisory opinion is focused on Rules of Professional Conduct 1.9, 1.10 and 1.11.”
  • “In short, the commission said a lawyer should not participate in a legal matter if the lawyer was ‘personally and substantially’ involved in the matter as part of their government role; if the lawyer learned “damaging confidential information” about a person involved in the matter; and if the representation would involve revealing information that all attorneys are prohibited from disclosing under rules regarding duties to former clients.”
  • “The commission noted in its advisory opinion that the duty of loyalty in an attorney-client relationship requires the protection of information related to the representation. ‘However,’ the commission wrote, ‘because the conduct of government employees implicates public interest in a way that private practice usually does not, there are nuances to the conflict analysis.'”
  • “For lawyers who are former government employees and are deciding whether a conflict exists, the commission said they should first examine whether the matters at issue are the same.”
  • “The lawyer should next examine whether they learned confidential information about a person through their role as a government employee that could be used to damage the person in the new matter.”
  • “If the answers to those questions are ‘no,’ the commission said the lawyer “likely is free” to represent the client, assuming other factors under the customary Rule 1.9 analysis don’t apply.”
  • “The commission also recommended a screening process for partners at law firms who want to avoid ‘having imputed to them’ the conflicts of a colleague who is a former government employee.”

Colorado Supreme Court approves licensing of paraprofessionals to perform limited legal services” —

  • “The rules become effective on July 1, 2023. The new rules will permit the licensed paraprofessionals to complete and file standard pleadings, represent clients in mediation, accompany clients to court proceedings, and respond to a court’s factual questions. The rules will prohibit paraprofessionals from presenting oral arguments and examining witnesses in a hearing.”
  • “According to the press release, the goal of the new rules is to make legal representation more widely available and more affordable in certain domestic relations matter.”
  • “To obtain a license, the paraprofessional will be required to pass a written licensed legal paraprofessionals exam, submit to a character and fitness review, pass an ethics class, and pass a professional conduct exam. They will also have to complete 1,500 hours of law-related practical experience, including 500 hours of experience in Colorado family law. The rules provide for a disciplinary process which is similar to the process for Colorado lawyers.”
  • “Bottom line: Colorado joins Arizona, Minnesota, Oregon, and Utah in authorizing paraprofessionals to provide limited legal services.”

This ‘No extensions’ Policy Won’t Last Long” —

  • “…the announcement (though it was more a leak of an internal email memo) that Morgan and Morgan will not be letting its lawyers grant any extensions or courtesies to insurance defense lawyers as a reaction to the latest tort reform initiative down in Florida. Here if you haven’t seen it is the screenshot of the internal email that Above the Law first publicized.”
  • “The reaction within the defense bar, at least online in places like Twitter, was pretty heated. In addition to folks decrying this as contrary to tenets of civility and professionalism, some folks started tossing around assertions that this kind of policy was inherently unethical.”
  • “I think this is not a smart policy. If it isn’t dropped before it starts, it will make many, many judges upset when they have to adjudicate motions for routine extensions. It also might lead to an influx of new clients for a while who think they want this kind of hard-nosed lawyering, but it will likely come back to bite a few clients when they find themselves in need of additional time and salty defense lawyers end up declining to grant a courtesy if only on a ‘tit for tat’ basis.”
  • “Also, in any jurisdiction where some sort of ‘guidelines’ involving civility or professionalism or courtesy are adopted by reference as part of ethical rules for a particular court, then the ethical analysis is entirely different from what I offer below.”
  • “When you talk about the role of lawyers in agreeing to things that delay litigation, most of the ethics rules are drafted with an eye towards trying to address whether lawyers have any latitude to be courteous and agree to extensions over any objections of their own clients. Not surprisingly, none of those rules are violated when a lawyer refuses to agree to proposed delays.”
  • “Model Rule 3.2 for example actually makes it the ethical duty of lawyers to ‘make reasonable efforts to expedite litigation.’ Model Rule 1.3 requires lawyers to ‘act with reasonable diligence and promptness in representing a client.'”
  • “That leaves us with Model Rule 4.4(a). This rule ‘might’ be the one that an opposing party or counsel could seize upon for arguing that implementation of this policy would be unethical. That rule prohibits a lawyer from using ‘means that have no substantial purpose other than to embarrass, delay, or burden a third person.'”

‘No extensions’ – Part 2” —

  • “Unlike opposing counsel, a lawyer within the firm attempting to live under this policy will at all times have to live with two ethics rules that can create real problems. The first is one that is rarely talked about: Model Rule 2.1. The first sentence of that rule reads: ‘In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.'”
  • “The duty to exercise independent professional judgment means that every time a situation comes up in which the lawyer is being asked by the other side for the extension of a deadline that the lawyer is supposed to use their own independent professional judgment, in consultation with the client, about what should be done.”
  • “Slavishly applying the firm policy as the basis for action would always run the risk of technically violating Model Rule 2.1, but firms have lots of less publicized and less controversial policies that also arguably encroach on the independent professional judgment of lawyer employees.”
  • “Now, of course, almost all of the above is largely academic because (a) one would hope the first time this comes up in reality that the firm will reexamine the situation and refine its stance to let their lawyers practice law as appropriate to each situation; and (b) even if they do not, lawyers who are not fans of the policy will more likely find other pastures rather than ever go down a path of filing a grievance against the powers-that-be in their own firm.”
  • “Ironically, I think that the powers-that-be at M&M would be able to understand immediately that an insurance company could not demand through counsel guidelines that the lawyers it hires must refuse all extensions to opposing counsel because Model Rule 1.8 and 5.4 make certain that a lawyer can only accept payment of fees from someone other than their client if that third-party does not interfere with the lawyer’s independent professional judgment.”