Tag: legalethics

Conflict Cautions: What Might the New Rules Require in a Conflict Check System

By Edward McIntyre

Sara ushered two young women into Macbeth’s office.

“My friends, Samantha and Fiona, are opening their own firm.”

“Congratulations. A great adventure. Let’s move to the conference table.”

When all were seated, Macbeth asked, “How can we help?”

Fiona started. “We’ve been at large firms. Took things for granted. Now we have to be sure our firm does stuff right.”

Samantha joined. “There’s so much at the start. We’re grateful Sara suggested we meet you.”

“We’re happy to help. Let’s start at the beginning — new clients.”

Fiona laughed. “Best place to start.”

“You’re aware of the new rules?”

Both nodded.

“Let’s look at rule 1.7 — conflicts. It affects every new client. Each new matter.”

Macbeth opened his rules booklet and handed copies to Fiona and Samantha.

“Rule 1.7 (a) doesn’t change much. We can’t represent a client with interests directly adverse to another client without the informed written consent of each. Whether in the same or unrelated matters.”

Macbeth continued. “Now look at 1.7 (b). It requires informed written consent of each client if my responsibility to, or relationship with,” he started to tick the items off on separate fingers, “another client, a former client, a third person — or my own interests — will materially limit my representation of that client.”

Samantha looked up. “I’ve puzzled over that since I first read it.”

Macbeth set his booklet down. “We can talk about examples in a bit. First, how does a lawyer determine whether any such responsibility or relationship even exists? It starts with a practical problem.”

Fiona sighed. “A conflict check system. Something the firm always did. Our general counsel reviewed all new matters.”

Samantha shrugged. “We’re our general counsel now.”

Macbeth smiled. “Precisely. I can’t consider whether responsibility to someone, or a relationship, will materially limit representation of a new client — or a new matter for an existing client — until I identify the responsibilities and relationships each lawyer has.”

“Each lawyer?”

“Yes. If one lawyer has a conflict, it’s imputed to each firm lawyer.”

“Glad we’re only two. We can talk.”

“I suggest setting up your system from the beginning. Then, as you grow, it’ll be there for you.”

Sara added. “And save you from a world of hurt with disabling conflicts.”

Samantha opened a tablet and looked toward Macbeth. “ OK. Conflict check system.”

“Let’s start with the obvious. All current clients.”

Both nodded.

“Then, all clients you represented in the past. At your former firms. I suggest not only corporate, partnership and other entity names, but also fictitious business names. Also names of principal officers, directors and partners. Members of LLPs and LLCs. Then parent and subsidiary corporations — to determine if those relationships create a conflict.”

Fiona and Samantha both took notes.

“Be prepared to pick up corporate and partnership name changes. Entity clients sometimes merge. Get acquired. When you represent individuals, be aware of spouse or partner name changes after marriage or divorce. We also include names of insurers involved in any case.”

Fiona looked up. “Insurers?”

“Remember the tripartite relationship — if you represent an insured based on a contract of insurance, each is a client.”

“Right. Forgot. The firm didn’t do much of that.”

“You may not at your new firm. But I’d have a place for the information — if you do.”

Samantha spoke. “I can see an artificial intelligence-aided system really helping.”

Sara nodded. “ That’s what we have. Interactive. Fully automated.” Read More

When is Presenting False Testimony Permitted Under the Ethics Rules?

By Gary W. Schons

You are a young prosecutor preparing for your first domestic violence trial. Fortunately it’s “only” a misdemeanor charge—domestic battery—Penal Code § 243 (c)(1)—because the injuries to your victim, a young single mother of 2 small girls who was assaulted by the children’s father, were not serious, some minor contusions to the face where the defendant struck her. Read More

Candor’s Complications

By Edward McIntyre

Macbeth introduced Michelle Gold to Sara and Duncan.

“Michelle’s a former student. She has an issue every trial lawyer — practice long enough — will likely face.”

Macbeth gestured to his guest to start.

“I’m in the middle of a trial. Yesterday I called an expert witness. He’s a computer scientist. Also a lawyer. Testified quite well. Did excellent on cross. Jury seemed impressed. Even Judge Howell liked him.”

Duncan nodded. “Good day for the home team.”

“Until we got back to my office. He sat down. Looked real smug. Said: ‘Well, we pulled that off.’ I froze.”

Macbeth intervened. “What happened?”

“He admitted all the tests he testified he’d done — never did them. Basically made up the results. Said if he’d done the work, he’s sure he’d have gotten those conclusions. But he was too busy. So he just wrote his report with findings he manufactured.”

Sara interrupted, “I’d have strangled him.”

“I almost did. When I told him he had to correct his report and testimony, he used a few expletives. Then left for the airport. We’re dark today. I talked with our managing partner. She said talk to you. So here I am.”
Sara replied, “This happened yesterday? California’s new Rules of Professional Conduct apply.”

“Which I haven’t had time to study. I’ve been too busy preparing for this trial.”

Macbeth opened his copy. “Rule 3.3 addresses candor to the court. Let’s start there. First, the rule prohibits a lawyer making a false statement of fact or law to a tribunal, or failing to correct a previous false statement. Not surprising. But not our facts.”

“Right, I didn’t make any false statement.”

“The rule does address our situation. If a lawyer, the client or a witness the lawyer called has provided material evidence, and the lawyer learns after the fact the evidence was false, the lawyer has to take ’reasonable remedial measures.’”

“What’s that mean?”

“The only guidance the rule itself gives is, ‘if necessary, disclosure to the tribunal,’ unless 6068(e)(1) and rule 1.6 — our client confidentiality obligation — prohibits disclosure.”

Sara interjected, “Since the client didn’t testify, I don’t see how 6068(e)(1) applies.”

Macbeth nodded. “I agree. The untruthful client presents a different range of issues. Let’s stay focused on this expert. I assume his testimony is material?”

“Critical to the case. Judge Howell even allowed his report into evidence as an exhibit. Over objection.”

“Does your client know — yet?”

“Not yet. I wanted some advice.”

“Well, rule 1.4 requires that you tell your client. This is certainly a significant development relating to the representation.”

“I agree. But I want to present a plan of action. Not just engage in a, ‘Houston, we have a problem,’ conversation.”

“Wise move. Let’s talk about solutions. First, the report that’s in evidence. What do you think?” Read More

Although California’s New Rules of Professional Conduct Align More Closely to ABA Model Rules, Do Not Forget About the Duty of Confidentiality Codified in Business & Professions Code section 6068(e)(1)

By Andrew A. Servais 

As most know, on November 1, 2018, 69 new California Rules of Professional Conduct replaced 46 current Rules of Professional Conduct in an effort to bring the California Rules in closer alignment with ABA Model Rules.  Read More

Apples and Oranges: Disqualification and the Rules of Professional Conduct

By David C. Carr

The California Rules of Professional Conduct (Rules) are intended to provide standards for the imposition of professional discipline on lawyers in California (Rule 1.0.1.) But in practice the Rules are applied in other contexts, such as legal malpractice, fee disputes and disqualification of counsel in court, a reality acknowledged by Comment 1 to Rule 1.0.1: Read More