Sunday, March 10, 2013
The New Hampshire Bar Association Ethics Committee has recently issued an opinion on cloud computing.
The internet has changed the practice of law in many ways, including how data is stored and accessed. "Cloud computing" can be an economical and efficient way to store and use data. However, a lawyer who uses cloud computing must be aware of its effect on the lawyer's professional responsibilities. The NHBA Ethics Committee adopts the consensus among states that a lawyer may use cloud computing consistent with his or her ethical obligations, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential.
The New Hampshire Ethics Committee concurs with the consensus among states that a lawyer may use cloud computing in a manner consistent with his or her ethical duties by taking reasonable steps to protect client data. Granted, a lawyer may not find a provider of cloud computing services whose terms of service address all of the issues addressed in this opinion], but it bears repeating, that while a lawyer need not become an expert in data storage, a lawyer must remain aware of how and where data is stored and what the service agreement says. Although the New Hampshire Rules of Professional Conduct do not impose a strict liability standard, the duties of confidentiality and competence are ongoing and not delegable. The requirement of competence means that even when storing data in the cloud, a lawyer must take reasonable steps to protect client information and cannot allow the storage and retrieval of data to become nebulous.
Wednesday, March 6, 2013
From the web page of the Ohio Supreme Court:
The Ninth District Court of Appeals has ruled that the Medina County Court of Common Pleas cannot issue a lifelong ban to a Florida man from entering the state of Ohio.
According to court documents, George Mose, of Bradenton, Florida, drove to Brunswick, Ohio with plans to kill a woman he was previously involved with. Acting on a tip, police later found Mose in a motel room with incriminating evidence. He was charged with two counts of attempted murder and one count of attempted aggravated burglary.
As part of a plea agreement, Mose pleaded guilty to all three counts and “agreed never to return to the State of Ohio during his lifetime other than for parole requirements.” The trial court accepted the agreement and sentenced Mose to three years of prison with credit for time served.
Mose then filed an application for a delayed appeal and said the common pleas court erred by “not providing [Mr. Mose] with the proper post release control terms in the sentence.” He also said the trial court “lacked subject matter jurisdiction to accept his guilty pleas because his actions did not constitute an ‘attempt’ to commit murder or burglary.”
Judge Carla Moore wrote the appeals court’s unanimous decision and said: “We agree that Mr. Mose’s lifelong banishment from the State of Ohio is contrary to law … While we understand that Mr. Mose agreed to this sanction, the trial court was without authority to impose a punishment which is not authorized by statute. As such, we must vacate only that portion of Mr. Mose’s sentence.”
Judges Beth Whitmore and Donna Carr concurred in the February 25 opinion that vacated only the portion of the judgment banishing Mose from the State of Ohio, and affirmed the remainder of judgment of the Medina County Court of Common Pleas.
Thursday, February 28, 2013
The New York Appellate Division for the First Judicial Department has affirmed the dismissal of legal malpractice claims involving the handling and distribution of insurance payments for a business that was located in the World Trade Center on September 11, 2001.
The attorneys had initiated a chapter 11 proceeding on behalf of the business in August 2011.
The defendant attorneys had, by the time of the payment, moved their practice to the Marc Dreier firm.
This complicated things.
Defendants could not release the escrowed funds to their clients until the bankruptcy case was formally dismissed. They sought a "structured dismissal" of the case, negotiating with the creditors' committee and the U.S. trustee as to when and how the various interested parties would be paid by the estate. Defendants had advised plaintiffs that winding up the estate could "take some time." On September 26, 2008, after agreement with all of the necessary parties had been reached, Fox submitted a motion to the bankruptcy court to approve the voluntary dismissal of the bankruptcy proceeding. The bankruptcy court approved the dismissal in an order dated October 30, 2008. The order provided, in relevant part, for distribution of the cash held for plaintiffs within 15 days, with U.S. trustee fees being paid first, administrative expenses in the amount of $61,972.94 second, and all remaining cash to be paid to the secured creditors in partial satisfaction of the secured claim.
Following the bankruptcy dismissal order, Fox distributed $61,972.94 from a
TBF escrow account to pay the administrative fees, which largely consisted of its own legal fees. On December 2, 2008, after reconciliation of outstanding accounts with the U.S. trustee had been finalized, $3,475 was paid out of the TBF escrow account to the U.S. trustee in full satisfaction of fees. The remaining cash in the TBF escrow account belonged to plaintiffs, and was paid to them. Onthe same date, Fox sent an internal email to Dreier LLP accounting personnel requesting that a check payable to plaintiffs for $350,000 be drawn from the 5966 account and forwarded to Fox for delivery to plaintiffs.
Unfortunately and coincidentally, Marc Dreier was arrested the next day. Upon learning of the arrest, Traub immediately repeated his demand that Dreier LLP transfer funds being held in the 5966 account to the TBF escrow account. Dreier LLP acceded to this request, and the next day wired $441,145.58 to the TBF escrow account. These monies included the settlement payment to plaintiffs, as well as funds belonging to other clients of defendants. After the monies were transferred, Fox and Traub resigned from Dreier LLP and returned to TBF. On December 10, 2008, a federal district judge appointed a receiver for Dreier LLP and restrained the firm's assets. On December 16, 2008, Dreier LLP filed for bankruptcy.
The court found no basis for malpractice liability:
What separates this case from the cases cited by plaintiffs is the nature of the escrow account in which the subject funds were placed. Because the 5966 account had been used by Marc Dreier to operate his Ponzi scheme, the settlement funds became part of the pool to be distributed on a pro rata basis with the victims of the fraud (see Securities & Exch. Comm. v Credit Bancorp., 290 F3d at 89-90). Accordingly, the analysis performed in Carlson and OPM Leasing Servs. as to when the funds became the property of the intended beneficiary of the funds is irrelevant. Further, contrary to plaintiffs' argument, it makes no difference that when defendants transferred the funds to the Dreier LLP bankruptcy trustee they had been transferred to the TBF escrow account and were no longer in the escrow account which Marc Dreier had used to perpetrate his Ponzi scheme. Plaintiffs do not dispute defendants' position that the funds were transferred into the TBF escrow account with the understanding that they would not be released to plaintiffs without prior approval by whoever was ultimately assigned the tasks of sorting out the various claims which were sure to be made against the Dreier LLP bankruptcy estate.
Wednesday, February 27, 2013
The Winter 2013 (Vol. XXVI, No. 1) of the Georgetown Journal of Legal Ethics has just been released.
The volume has the following:
What If Legal Ethics Can't Be Reduced To A Maxim? by Andrew B. Ayers
Achieving Procedural Goals Through Indirection: The Use Of Ethics Doctrine To Justify Contingency Fee Caps In MDL Aggregate Settlements by Morris A. Ratner
Supreme Court Recusal From Marberry To Modern Day by James Sample
Law Firm Ethics In The Shadow Of Corporate Social Responsibility by Christopher J. Whelan and Neta Ziv
Kudos to the journal editors for their fine work.
Disclosure: I am (along with my colleague Mitt Regan) co-faculty advisor to the journal. (Mike Frisch)
An attorney represented an organization in defense of several employment matters from 2002-2004. The relationship ended when the client sued the attorney for malpractice.
The organization moved for disqualification in a pending case in which the attorney represented a plaintiff suing it in an employment matter. The trial court denied a motion to disqualify.
The South Carolina Supreme Court held that interlocutory appeal of the denial is not an available remedy. The issue can be addressed on appeal of the judgment. (Mike Frisch)
Friday, February 22, 2013
The New Jersey Appellate Division has rejected an asserted Second Amendment violation in a case that involves the denial of a permit to carry a firearm outside his home.
The applicant sought to establish his justifiable need to carry because he received substantial cash payments in connection with his landscaping business. The trial court rejected his contention regarding his justifiable need.
Both trial and appellate court rejected the constitutional claim, as stated by the Appellate Division:
...given the presumption of constitutionality, the lack of clarity that the Supreme Court in Heller intended the extend the Second Amendment right to a state regulation of the right to carry outside the home, and the Second Circuit's explicit affirmation of a law similar to ours, we affirm [the trial court's] determination that [applicant's] rights were not infringed.
The State had appealed a police chief's decision to issue a permit to the applicant. (Mike Frisch)
Friday, December 21, 2012
The question of the day comes from the Iowa Supreme Court:
Can a male employer terminate a female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?
...we ultimately conclude the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act.
The employee was hired in 1999 as a dental assistent in the employer's dental office. She worked there capably for over 10 1/2 years. However, the employer had complained that she dressed in a "too tight" and revealing manner.
During the last six months of her tenure, they "started texting each other on both work and personal matters outside the workplace." The employee denied that she flirted with the employer although there was some sexual banter between them.
When the employer was with his children for a Colorado Christmas, Mrs. Employer found the text messages.
There ensued a confrontation between them and pastoral counseling. As a result of the perceived ongoing threat to the marriage, the employee was terminated.
The court concluded:
...the issue is not whether [employer] treated [employee] badly. We are asked to decide only if a genuine fact issue exists as to whether [employer] engaged in unlawful gender discrimination when he fired [employee] at the request of his wife....we believe that this conduct did not amount to unlawful discrimination...
Tuesday, December 18, 2012
The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a claim brought against the Administrative Office of the United States Court ("the central administrative support organization for the federal judiciary" ) by a rejected applicant for an attorney position.
The plaintiff is an attorney who resides in Kentucky. She applied online for a position as an Attorney-Advisor. Her application did not meet a job requirement that she live and work in the D.C. area. She received an automated rejection letter because of her Kentucky home.
She then sued AO, arguing that the geographic limitation was unconstitutional.
The district court granted dismissal for both lack of subject matter jurisdiction and failure to state a claim due to sovereign immunity.
The remand directs the district court to explain its conclusion that the plaintiff had failed to state a claim. (Mike Frisch)
Thursday, December 13, 2012
Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns. It may be said that such forums are the newest form of the town meeting. We recognize that, although they are engaging in debate, persons posting to these sites assume aliases that conceal their identities or "blog profiles." Nonetheless, falsity remains a necessary element in a defamation claim and, accordingly, "only statements alleging facts can properly be the subject of a defamation action Within this ambit, the Supreme Court correctly determined that the accusation on the newspaper site that the plaintiff was a "terrorist" was not actionable. Such a statement was likely to be perceived as "rhetorical hyperbole, a vigorous epithet." This conclusion is especially apt in the digital age, where it has been commented that readers give less credence to allegedly defamatory Internet communications than they would to statements made in other milieus. Accordingly, we conclude that this statement constitued an expression of opinion, and, as such, is nonactionable.
Turning to the other posting described in the fourth cause of action, it is not clear on the face of the posting whom the poster was accusing of dumping a horse head in Gail Soro's pool, as the posting is essentially just a cross-reference to the Wawayandafirst blogspot. Since the statements contained on the Wawayandafirst blogspot form the basis of the first and second causes of action, the mere reference to those statements is duplicative of those causes of action.Therefore, the Supreme Court correctly granted that branch of the Skinner defendants' motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against them. (citations omitted)
The horse head allegation was actionable on this basis:
The published allegation that the plaintiff put a severed horse head in a Town Board member's swimming pool constituted defamation per se under this standard and, therefore, did not require the plaintiff to plead special damages. Moreover, the accusation that the plaintiff placed a
horse head in a political rival's pool, if true, describes conduct that would constitute serious crimes. A false published allegation that a person committed a serious crime is also a ground for asserting a cause of action to recover damages for defamation per se, thus relieving the plaintiff from pleading special damages. (citation omitted)
Tuesday, December 11, 2012
In a case of first impression, the New Mexico Supreme Court has held that disqualification is mandatory when an associate who played a 'substantial role" in litigation and possesses confidential information moves to a firm involved in the litigation against her former client.
Both the moving associate and her new firm are barred from further representation.
The court noted that it had adopted a more restricted version of Rule 1.11than the ABA Model Rule, and that its rule does not permit screening to prevent imputed disqualification.
While the rule may have a chilling consequence for lawyer mobility, the court emphasized that the public policy considerations that underpin the loyalty to clients justifies the result:
In the practice of law, there is no higher duty than one's loyalty to a client.
Thursday, October 25, 2012
A recently-issued opinion of the District of Columbia Bar Legal Ethics Committee concludes:
An in–house lawyer may not disclose or use her employer/client’s confidences or secrets in support of the lawyer’s claim against the employer/client for employment discrimination or retaliatory discharge unless expressly authorized by Rule 1.6. If the employer/client puts the lawyer’s conduct in issue, however (e.g., by lodging an affirmative defense or a counterclaim), the lawyer may disclose or use the employer’s confidences or secrets insofar as reasonably
necessary to respond to the employer/client’s contention. An in–house lawyer is not prohibited from bringing such a claim against her employer/client merely because the employer/client may find it necessary or helpful to disclose its confidences or secrets in defending against the lawyer’s claim.
Sunday, September 30, 2012
A recent decision of the Kentucky Supreme Court turned on the interpretation of the phrase "living in adultery" in determing the disposition of an estate.
The phrase comes from the Statute of Westminster (1285) as adopted by Kentucky in 1796 and most recently codified in 1942.
The deceased was killed in a work-related accident. The only significant asset of his estate was the workers' compensation claim.
At the time of his death, he had been married for four months. His wife (the claimant here) sought a civil protection order and had filed for divorce. They were living apart.
The proofs at trial established that she had engaged in sexual intercourse the night before her husband died.
The trial court found that the single act established that the wife was "living in adultery" and awarded the estate to the deceased's mother.
Both the Court of Appeals and the Supreme Court disagreed, holding that the wife's single act did not constitute "living in adultery."
There are two dissents. Justice Cunningham stated the issue as whether the estate should go to the deceased "loving, nurturing mother" or the "adulterous and absent wife" and said: "Let's be sensible." The dissenters would hold that the marriage was clearly over.
The majority and dissents also disagree over the significance of the wife's post-widow continuing relationship with the person she had slept with on the night before her husband's death.
The majority found that the widow could no longer engage in adultery after her husband's death. The evidence thus was irrelevant. The dissenters would consider the evidence as proof that the marriage was over. (Mike Frisch)
Thursday, August 23, 2012
The Maryland Court of Appeals has held that an injured former Washington Redskins football player is a "covered employee" entitled to workers compensation because he was regularly employed in Maryland.
The Redskins practice in Virginia but play their home games in Landover, Maryland. The court held that this fact establishes the employee's regular employment in the State:
...practice time is incidental to playing football games.
In a separate matter, the court yesterday held that a Redskins player (a punter) who was injured while warming up for a game suffered a compensable injury under workers compensation law.
Thursday, July 12, 2012
The New York Appellate Division for the Second Judicial Department has affirmed the dismissal of a legal malpractice counterclaim under the following circumstances:
... it is undisputed that the defendant did not disclose, in a bankruptcy petition
that he filed in September 2007, the existence of the causes of action he now
asserts as counterclaims. The plaintiff showed, prima facie, that at the time of
the filing of that petition the defendant knew or should have known of the
existence of those causes of action, and the defendant failed to raise a triable
issue of fact in opposition to that prima facie showing. Further, under the
circumstances of this case, the fact that the defendant's bankruptcy petition
was later dismissed does not change this result. Moreover, although the defendant stated in his opposition to the plaintiff's motion that, in 2010, he filed a second bankruptcy
petition in which he did disclose his malpractice cause of action, in support of
that claim he submitted only a single page of the Schedule of Assets from that
petition. He also submitted no evidence as to the ultimate disposition of the
second bankruptcy petition. He therefore failed to raise a triable issue of fact
as to whether he regained his capacity to assert his legal malpractice claims
against the plaintiff by filing the second bankruptcy petition. (citations omitted)
Monday, July 9, 2012
A recent opinion of the D.C. Bar Legal Ethics Committee:
Discovery service vendors, such as e–discovery vendors, cannot both practice law
within the District of Columbia and be partially or entirely owned by passive
non–lawyer investors consistent with D.C. Rule 5.4(b). This Committee's
jurisdiction does not include the definition of the practice of law, but the
Committee on Unauthorized Practice of Law has recently issued a detailed opinion
explaining what activities by these vendors constitute the practice of law.
The Rules of Professional Conduct do not reach non–lawyer owners of discovery
service organizations; they are not subject to bar discipline. The Rules do
reach lawyers who co–own or manage such vendors with or on behalf of non–lawyer
passive investors. The Rules also could reach lawyer employees of such vendors
who know of facts that constitute a violation of Rule 5.4(b) or lawyers who,
with similar knowledge, retain such vendors.
In addition, lawyers who own, manage, work for or retain a discovery service
vendor that engages in the practice of law in the District of Columbia and has
passive non–lawyer investment may violate the prohibition in Rule 5.5(b) against
assisting others in the unauthorized practice of law.
Friday, March 23, 2012
The Kansas Court of Appeals has affirmed the dismissal of a declaratory judgment action brought by a national law firm located in Maryland.
The law firm (and Kansas attorneys that it employs) offer debt relief services. They are the subject of complaints from several Kansas clients. The complaints triggered an investigation by the state banking commissioner that the lawyers possibly have engaged in unregistered credit and debt management services.
They responded by filing the declaratory judgment action, contending that only the Kansas Supreme Court had the the authority to regulate the conduct of lawyers and law firms.
The court here agreed with the lower court that the law firm had failed to exhaust administrative remedies. (Mike Frisch)
Monday, March 19, 2012
A Delaware Superior Court judge imposed a $500 sanction on an attorney who sent an associate to conduct a deposition in a Delaware action prior to the pro hac vice admission of the associate.
The action involves allegations arising out of the death of an undergraduate who had attended a college fraternity function and died of acute alcohol poisening.
There have been numerous depositions. The deposition at issue had been difficult to schedule. The partner (who was admitted for the case) had a conflicting obligation to appear before the Department of Homeland Security. The associate went in his stead.
The judge found that the associate could not properly participate without first being admitted. The court had "little doubt" that a timely motion for admission would have been granted and found no prejudice from the associate's participation.
The sanction was imposed on the supervising partner. The court declined to strike the associate's examination of the witness and closed with this thought:
On the off chance that counsel for any of the moving defendants wish to pursue this [unauthorized practice] issue, they should file an appropriate complaint with the Office of Disciplinary Counsel.
A decision from the New York Appellate Division for the First Judicial Department:
In this article 78 proceeding, we are called upon to judge the legality, not the wisdom or the prudence, of the City of New York's proposed revisions to its Indigent Defense Plan with respect to the assignment of counsel in cases in which the initial provider at arraignment is unable to represent the indigent person due to a conflict of interest. Upon our review of the record and relevant statutes, we conclude that the City's revised plan,and its proposed implementation pursuant to Chapter 13 of Title 43 of the Rules of the City of New York (43 RCNY 13-01 et seq.), is not arbitrary and capricious or irrational (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 ), does not require the consent of the county bar associations (the County Bars), and does not violate section 722 of article 18-B of the County Law (as amended by L 2010, ch 56, pt E, § 3) or Municipal Home Rule Law § 11(1)(e).
The revised plan is a lawful "combination" plan under County Law § 722(4), providing indigent representation under the "private legal aid bureau or society" option of § 722(2), which, contrary to petitioner's contention, is not restricted to primary assignments, and the "plan of a bar association" option of § 722(3), which, contrary to petitioner's contention, does not give the County Bars the exclusive right to provide "conflict counsel." Although the revised plan provides for the assignment of conflict cases to institutional providers under § 722(2), it continues to permit the assignment of conflict cases to private counsel serving on Criminal Defense Panels (see 43 RCNY 13-03) created under the authority of Executive Order 178 of 1965 and pursuant to the 1965 "Bar Plan," to be administered in accordance with the rules of the Appellate Division, First and Second Departments (Executive Order 136 of 2010), and does not improperly usurp the role of the County Bars. Nor does the plan either eliminate the judiciary's right under County Law § 722(4) to assign counsel when a conflict of interest prevents assignment pursuant to the plan or displace the judiciary's role in authorizing the appointment of experts (see 43 RCNY 13-05).
There is a dissent:
This proceeding challenges the plan of respondents Mayor Bloomberg, his Criminal Justice Coordinator (CJC) and the City of New York to make changes to the indigent defense system in New York City that has been in place since 1965. The core of the dispute is the manner in which the City proposes to assign so-called "conflict cases" - cases in which the primary provider at arraignment (The Legal Aid Society or another legal aid organization) is unable to accept representation due to a conflict of interest. Until recently, conflict defense counsel have been appointed through panels of individual attorneys created and administered by the County Bar Associations, Assigned Counsel Panels commonly referred to as 18-B Panels. However, in January 2010, the City revised Title 43 of the Rules of the City of New York by adding Chapter 13, which provides that in the case of a conflict, counsel may be appointed from either Assigned Counsel Panels or from one of the legal aid providers.
Subsequent to the commencement of this proceeding, through discovery and representations made at oral argument, it has become evident that the City's ultimate goal is to have Legal Aid serve as the primary provider of conflict defense counsel. Petitioners claim that the City's new plan violates County Law § 722 and Municipal Home Rule Law § 11(1)(e). I agree.
Wednesday, March 14, 2012
A decision issued today from the Massachusetts Supreme Judicial Court:
On May 2, 2011, as part of a pilot project it has named "OpenCourt," WBUR-FM, a National Public Radio station in Boston, began to broadcast live by "streaming" over the Internet video and audio recordings of certain proceedings taking place in the Quincy Division of the District Court Department (Quincy District Court). We consider here three petitions for relief under G.L. c. 211, § 3, that relate to the OpenCourt project and were reported to this court by a single justice. Each petition challenges one or more orders of a judge in the Quincy District Court concerning the broadcasts and online posting of particular proceedings in two different criminal cases. In the first case, the Commonwealth appealed from the judge's order permitting OpenCourt to "post" to its public, online archives an audio and video recording of a criminal dangerousness hearing conducted pursuant to G.L. c. 276, § 58A. The Commonwealth argues that the judge abused his discretion and failed to protect the alleged minor victim's privacy. OpenCourt has brought a separate petition for relief in the Barnes case, challenging the judge's orders that required OpenCourt to redact the alleged victim's name from the recording and to stay temporarily public access to the online archive. As explained infra, OpenCourt has an internal policy prohibiting publication of the names of minor victims of sexual assault and does not wish to publish the name, but objects to the court order; OpenCourt's argument is that any restriction on its right to publish the recordings constitutes a prior restraint that violates the First Amendment to the United States Constitution.
Charles Diorio brought the third petition for relief. He appeals from orders permitting the broadcasting and public online archiving of both his July 5, 2011, arraignment in the Quincy District Court, and a motion hearing held on July 25. Diorio contends that the judge abused his discretion and prejudiced Diorio's constitutional right to a fair trial by allowing the hearings to be broadcast and by not requiring the recordings to be removed from OpenCourt's online archives.
We conclude that any order restricting OpenCourt's ability to publish--by "streaming live" over the Internet, publicly archiving on the Web site or otherwise--existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.
In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge's order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor's privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. Finally, we exercise our discretion pursuant to G.L. c. 211, § 3, to request that the Supreme Judicial Court's judiciary-media committee submit for this court's approval a set of guidelines for the operation of the OpenCourt pilot project.
The case is Commonwealth v. Barnes. (Mike Frisch)
Tuesday, March 13, 2012
From the web page of the Pennsylvania Disciplinary Board:
The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Professional Guidance Committee of the Philadelphia Bar Association have collaborated to produce Joint Formal Opinion 2011-100, regarding limited scope arrangements.
The Committees define “limited scope arrangements” to include two kinds of activities – unbundled legal services, in which a lawyer is engaged only to perform particular activities rather than undertake comprehensive representation of the client, and undisclosed representation, commonly referred to as “ghostwriting,” in which a lawyer prepares legal material for the client’s use but does not undertake direct representation of the client with a court or opposing party.
The opinion notes that limited scope arrangements are generally permissible under the Rules of Professional Conduct, and indeed are specifically contemplated in many of the rules.
The opinion notes that the comment to RPC 1.2 states that a limitation on representation must be reasonable under the circumstances. The fact that the representation is limited does not relieve the lawyer of the normal duty of competence and preparation under RPC 1.1. Second, the lawyer must be sure that the client has exercised informed consent to the limitation on representation. Informed consent is defined in RPC 1.0(e) as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” From the Restatement of the Law Governing Lawyers, the Committees drew five safeguards:
- a client must be informed of any significant problems a limitation might entail, and the client must consent;
- any contract limiting the representation is construed from the standpoint of a reasonable client;
- the fee charged by the lawyer must remain reasonable;
- any change made, an unreasonably long time after the representation begins must meet the more stringent test for post inception contracts or modifications; and
- the terms of the limitation must be reasonable under the circumstances.
The Committees provide a list of Rules of Professional Conduct which the lawyer entering into a limited scope engagement should consider:
- competent representation (RPC 1.1);
- diligence (RPC 1.2);
- communication (RPC 1.4);
- representation agreements (RPC 1.5);
- confidentiality (RPCs 1.6 and 1.9); and
- avoidance of conflicts of interest (RPCs 1.7, 1.8, 1.9, 1.10, 1.11, 1.12).
Finally, after an extensive examination of rules, court decisions, and ethics opinions nationwide, the Committees conclude that the lawyer engaged in limited scope representation is not under an obligation to disclose his or her role to either opposing parties or to a tribunal. The Committees note that there is quite a bit of divergent thought on these issues.
This short summary is no substitute for reading the 31-page analysis through which the Committees reach their conclusion, and the lawyer considering such employment would be wise to study the opinion firsthand.