Category Archives: ABA formal opinions

ABA Formal Opinion 481 states that lawyers have an obligation to inform current clients of material errors

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 481, which addresses a lawyer’s obligation to promptly inform a current client if the lawyer believes that he or she has made a material error.  ABA Formal 481 Opinion is here: http://www.abajournal.com/files/Formal_Opinion_481_FINAL_formatted_04_16_2018(2).pdf

The formal opinion states ABA Model Rules of Professional Conduct Rule 1.4 governs a lawyer’s duty of communication and requires lawyers to promptly inform clients of any decision or circumstance for which a client’s informed consent is needed and also requires a lawyer to “reasonably consult” with the client about the means of achieving the client’s goals during representation and keep the client “reasonably informed” about the progress of the case.

The formal opinion further states that an error is material if “a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice” and if there has been such a material error, the attorney must inform the client promptly. Whether an attorney can correct the error before telling the client depends on the individual facts.

According to the opinion, there is no duty to inform former clients since “(n)owhere does Model Rule 1.4 impose on lawyers a duty to communicate with former clients (and)  (h)ad the drafters of the Model Rule intended Rule 1.4 to apply to former clients, they presumably would have referred to former clients in the language of the rule or in the comments to the rule.”

The formal opinion concludes:

“The Model Rules require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation. Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. The lawyer must so inform the client promptly under the circumstances. Whether notification is prompt is a case and fact specific inquiry.

No similar duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation.”

Bottom line:  This ABA opinion may be the first to address a lawyer’s affirmative obligation to tell a current client when he or she has made a material error, which the opinion states is one which is “(a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”

Be careful out there.

Disclaimer:  this Ethics Alert blog is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

Advertisements

Leave a comment

Filed under ABA Formal Ethics Opinion 481- advising clients of material errors, ABA formal opinions, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer required to advise client of material errors

ABA Formal Opinion 479 addresses when lawyers may use “generally known” information related to a former client

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 479, which was published on December 15, 2017 and addresses when a lawyer may use information related to the representation of a former client which is to the actual or potential disadvantage of the former client when the information has become “generally known”.  The ABA opinion is here: ABA Formal Opinion 479

ABA Model Rule 1.9(c)(1) provides that a lawyer “shall not use information relating to former client’s representation to the disadvantage of the former client except as (the Model) Rule would permit or require with respect to a [current] client, or when the information has become generally known.”

The opinion also states that the “generally-known” exception to Rule 1.9 was first included in the 1983 ABA Model Rules; however, there is no consensus regarding when information is “generally known.” New York, Massachusetts, and Illinois Bar opinions and ethics commentators agree that “generally known” means “more than publicly available or accessible. It means that the information has already received widespread publicity.”

According to the opinion, the “generally known” exception to the obligations related to former-client confidentiality is limited to the following:

(1) use of the former client information, not the disclosure or revelation of the information,

(2) use of the information only if the information has become widely recognized by the public in the relevant geographic area or widely recognized in the former client’s industry.

The opinion quotes an ethics commentator:

“[T]he phrase “generally known” means much more than publicly available or accessible. It means that the information has already received widespread publicity. For example, a lawyer working on a merger with a Fortune 500 company could not whisper a word about it during the pre-offer stages, but once the offer is made—for example, once AOL and Time Warner have announced their merger, and the Wall Street Journal has reported it on the front page, and the client has become a former client—then the lawyer may tell the world. After all, most of the world already knows. . ..[O]nly if an event gained considerable public notoriety should information about it ordinarily be considered “generally known.”

The fact that information has been discussed in court or may be accessible in public records does not necessarily make the information widely recognized (and “generally known”) under Model Rule 1.9(c) since information that is publicly available is not necessarily widely recognized and, if a search of court records or library shelves is required to find the information, it would not be  widely recognized.

Bottom line: This ABA opinion provides guidance on important ethics issues related to when a lawyer is permitted to use information that is detrimental to a former client when it has become “generally known” and provides guidance.  Although the opinion (and most state Bar rules) permit lawyers to use, but not disclose, “generally known” information even if it disadvantages a former client, lawyers should always carefully consider whether this would be prudent and, if the lawyer decides to do so, obtain the client’s consent in advance.

This ABA opinion is not binding and the analysis is applicable in most, if not all jurisdictions, including Florida; however, lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

Leave a comment

Filed under ABA Formal Opinion 479 former client confidentiality, ABA Formal Opinion former client confidentiality information that is generally known, ABA formal opinions, Attorney Ethics, Confidentiality, Confidentiality and privilege, Former client confidentiality, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions

ABA Formal Opinion 480 addresses lawyer/client confidentiality obligations related to lawyer blogs and other public commentary

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 480, which was released on March 6, 2018 and addresses lawyer ethics and confidentiality obligations when engaging in blogging and other public commentary.  The ABA Formal Opinion is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_480.authcheckdam.pdf

The opinion initially sets forth the various types of lawyer public communications and commentary, including online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that ‘followers’ (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively ‘public commentary’).”

The opinion provides important information regarding the broad scope of lawyer/client confidentiality under the rule, the limited exceptions to the rule, and whether a lawyer can pose a “hypothetical” to avoid violating the rule.  The information is below with relevant portions in bold:

This confidentiality rule “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”  In other words, the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information.

Unless one of the exceptions to Rule 1.6(a) is applicable, a lawyer is prohibited from commenting publicly about any information related to a representation. Even client identity is protected under Model Rule 1.6.  Rule 1.6(b) provides other exceptions to Rule 1.6(a).  However, because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.

Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.  The duty of confidentiality extends generally to information related to a representation whatever its source and without regard to the fact that other may be aware of or have access to such knowledge.

A violation of Rule 1.6(a) is not avoided by describing public commentary as “hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.  Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.

The opinion concludes that “(l)awyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”

Bottom line:  This ABA opinion addresses the ethics issues related to lawyer blogs and public commentary and client confidentiality and provides guidance.  The opinion is not binding; however, it provides important information and the analysis is applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

Leave a comment

Filed under ABA formal opinions, ABA Opinion 480- guidance re confidentiality when lawyers blog or engage in public commentary, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer blogs, Lawyer communication over internet- confidentiality, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism

ABA revises recent Formal Opinion 477, which addresses lawyer ethics issues when transmitting confidential information over the internet

Hello everyone and welcome to this Ethics Alert update which will discuss Revised ABA Formal Opinion 477, which was issued on May 22, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  According to the ABA, Formal Opinion 477 was revised to clarify that the opinion does not alter Formal Ethics Opinion 11-459 and to note that the change in Model Rule 1.6(c) supported 11-459. There are no substantive changes to the opinion.  The revised Formal Opinion is here: Revised ABA Formal Opinion 477.

ABA Formal Opinion 477 states:  “In Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.” (emphasis supplied).`

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”  (emphasis supplied).

Bottom line:  The now revised ABA formal opinion addresses the important ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under ABA formal opinions, ABA opinion 477- communication with client over internet, Attorney Ethics, Confidentiality, joe corsmeier, Joseph Corsmeier, Lawyer communication over internet- confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions

ABA Formal Opinion 477 addresses lawyer ethical duties when transmitting client information over the internet

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 477, which was issued on May 11, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  The Formal Opinion is here: ABA Formal Opinion 477.

ABA Formal Opinion 477 is an update opinion which specifically addresses “securing communication of protected client information” over the internet.

The Formal Opinion states:  “(i)n Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.”

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”

Bottom line:  This ABA opinion addresses the ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules of Professional Conduct and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this ethics alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under ABA formal opinions, Attorney/client confidentiality, Confidentiality, Confidentiality and privilege, lawyer confidentiality, Lawyer ethical duties when sending confidential information over the internet, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

ABA Formal Opinion 477 addresses lawyer ethical duties when transmitting client information over the internet

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 477, which was issued on May 11, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  The Formal Opinion is here: ABA Formal Opinion 477.

ABA Formal Opinion 477 is an update opinion which specifically addresses “securing communication of protected client information” over the internet.

The Formal Opinion states:  “(i)n Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.”

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”

Bottom line:  This ABA opinion addresses the ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules of Professional Conduct and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this ethics alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under ABA Formal Opinion- securing confidentiality over internet, ABA formal opinions, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer revealing client confidential information on internet, Lawyer technology competence

Lawyer ethics and positional conflicts of interest

Hello everyone and welcome to this Ethics Alert which will discuss lawyer ethics and positional conflicts.   Although this may not be common in a typical lawyer’s practice, all lawyers should be aware of the potential ethical issues which may arise from taking opposing legal positions on behalf of 2 or more clients.

ABA Formal Opinion 93-377

ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 93-377- Positional Conflicts (issued in 1993) reviewed ethical issues when a lawyer represents one client in a matter in which the client’s interests regarding a substantive legal issue are directly adverse to a position the lawyer (or law firm) is advocating on behalf of another client on the same or similar issue.  Formal Opinion 93-377 is attached.

The opinion states that “…(a)rguing a position on behalf of one client that is adverse to a position that the lawyer, or her firm, is arguing on behalf of another current client raises a number of concerns. For example, if both cases are being argued in the same court, will the impact of the lawyer’s advocacy be diluted in the eyes of the judge(s)?  Will the first decision rendered be persuasive (or even binding) precedent with respect to the other case, thus impairing the lawyer’s effectiveness–and, if so, can the lawyer (or firm) avoid favoring one client over the other in the ‘race’ to be first? And will one or the other of the clients become concerned that the law firm it has employed may have divided loyalties?”

The opinion also reviewed the 1993 Model Rule 1.7 Conflict of Interest: General Rule as it existed before the ABA Ethics 2000 Commission recommended revisions to the Model Rules.  The opinion refers to paragraph (9) of the Comment to Rule 1.7 which stated as follows:

“A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.”

The opinion noted that representing two clients in different trial courts while advocating opposing sides of the same issue could also be a conflict of interest under Rule 1.7 just as if both matters were pending in the same appeals court.  A decision in a trial court could influence the outcome of a second matter in another trial court, and a decision in an appeals court could have an adverse effect on a matter pending in a trial court matter.

With regard to matters pending in the same jurisdiction, the opinion stated:

“The Committee is therefore of the opinion that if the two matters are being litigated in the same jurisdiction, and there is a substantial risk that the law firm’s representation of one client will create a legal precedent, even if not binding, which is likely materially to undercut the legal position being urged on behalf of the other client, the lawyer should either refuse to accept the second representation or (if otherwise permissible) withdraw from the first, unless both clients consent after full disclosure of the potential ramifications of the lawyer continuing to handle both matters.” (footnote omitted).

If the matters are not being litigated in the same jurisdiction, the opinion provides several questions a lawyer should consider, including the relative importance of the positional conflict issue and the likelihood that it may affect the outcome of one or both of the cases, the extent to which a decision in one case might influence the decision in the other and the extent to which the lawyer ‘s independent professional judgment may be affected if he or she changes advocacy or tactics in one case to minimize any adverse effects on the client in the other case.

The ABA Ethics 2000 Commission deleted paragraph (9) to the comments to Rule 1.7, and replaced it with current paragraph (24) which states:

“Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case…Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.”

The Restatement of the Law Governing Lawyers also considered this issue and, in comment f §128 (2000), states that a lawyer “ordinarily may take inconsistent legal positions in different courts at different times”; however, “a conflict is presented when there is a substantial risk that a lawyer’s action in (one matter) will materially and adversely affect another client in (a second matter).”

Florida Bar Rules 

The Florida Bar has not issued an ethics opinion addressing positional conflicts; however, the Comment to Florida Bar Rule 4-1.7 is identical to the 1993 paragraph 9 of the Comment to Model Rule 1.7 and states as follows:

Conflicts in litigation 

A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.

State Bar Rules and Ethics Opinions 

Some state ethics opinions have considered this issue.

Oregon Ethics Opinion 2007-177 (2007) states that a lawyer may not represent a client in a matter requiring the lawyer to contend for something that he or she must contend against on behalf of another client in another matter if the outcome of one matter is highly likely to affect the outcome of the other.  The ethics opinion is here:  https://www.osbar.org/_docs/ethics/2007-177.pdf

Maine Ethics Opinion 155 (1997) – Arguing Different Sides of Same Legal Issue in Unrelated Cases addresses that state’s conflicts of interest rules in its analysis.  The ethics opinion is here:  http://www.mebaroverseers.org/attorney_services/opinion.html?id=89688

“…Although we conclude that an “issue conflict” standing alone is not a conflict within the meaning of Bar Rule 3.4(b), we note that counsel has an obligation to both clients under Rule 3.6(a)(1) to employ “reasonable care and skill” and to “employ the lawyer’s best judgment” in the representation of her clients. In light of this rule, an attorney must be mindful of the possibility that contemporaneously arguing opposite sides of the same issue before the same judge or panel of judges could impair her effectiveness on behalf of both clients, thereby arguably violating Rule 3.6(a)(1). It is not possible to define all the circumstances in which this rule might be implicated, since it will depend on the particular facts and circumstances.”

The Maine Rules of Professional Conduct were revised in 2009 and that state’s version Comment to Rule 1.7 is now similar to ABA paragraph 24.

District of Columbia Ethics Opinion 265 (1996) states:  “When a lawyer is asked to represent an entity that takes positions on matters of law in a subject area in which the lawyer practices regularly on behalf of other clients, the lawyer may not, without the informed consent of all affected parties, accept simultaneous representation of both clients where such representation creates a substantial risk that representation of one client will adversely affect the representation of the other.” The ethics opinion is here:  https://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion265.cfm

Bottom line:  If the lawyer is considering taking a position for one client which is directly adverse to a position the lawyer (or law firm) is taking for another client on the same or similar issue, the lawyer must consider the potential conflict of interest and act accordingly.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under ABA formal opinions, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer conflict of interest, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics positional conflicts of interest, positional conflicts