Oregon State Bar Bulletin JULY 2015
Mentoring New Lawyers:
Top Ethics Questions
By Amber Hollister & Emilee Preble
Since its inception, over 700 lawyers have successfully completed the Oregon State Bar New Lawyer Mentoring Program; more than 1,200 lawyers have volunteered as mentors. All new lawyers admitted to the bar who actively practice law in Oregon are required to participate in the program, by order of the Oregon Supreme Court. Typically, new lawyers meet monthly with their mentors over the course of a year to complete the mentoring curriculum, which is designed to welcome new lawyers into the legal profession and to help them develop the practical skills and judgment required to establish a law practice.
The program could not exist without the dedicated service of experienced volunteer mentors, who are appointed by the Oregon Supreme Court. To qualify for appointment, program mentors must be OSB members in good standing, with at least five years of experience and a reputation for competence, ethical conduct and professionalism.1 In recognition of their work, mentors receive continuing legal education credits upon completion of the program.
From time to time, new lawyers and mentors have questions about how to complete program requirements while honoring their ethical obligations. Questions may be more pressing when a new lawyer and mentor work at different firms, or are engaged, respectively, in private and public practice. These same questions commonly arise in informal mentoring relationships between colleagues.
A discussion of the top ethics questions mentors and new lawyers ask of general counsel’s office follows.
May a new lawyer sit in on a mentor’s meeting with a client, if the new lawyer is not part of the mentor’s firm?
Only with the client’s informed consent. RPC 1.6(a).
New lawyers benefit from watching experienced lawyers interact with clients. But mentors owe their clients a duty of confidentiality. RPC 1.6(a). That duty is not lessened by participation in the New Lawyer Mentoring Program. Rule 1.6 requires lawyers to keep confidential all information learned during the course of representing a client. That includes information that is attorney-client privileged, as well as information learned during the course of representation that a client has asked the lawyer to keep secret, information which would likely be detrimental to a client if disclosed and information that would be embarrassing to a client if disclosed. RPC 1.0(f).
Because of this robust duty of confidentiality, a mentor may only invite a new lawyer who is not a member of the mentor’s firm to attend a client meeting if the client gives informed consent. RPC 1.6(a). When requesting informed consent from a client, a mentor should explain the nature of the new lawyer’s participation and outline whether there are any risks that the mentor’s presence could negatively impact the client’s case. RPC 1.0(g). Mentors should take special care to advise their clients whether a new lawyer’s presence at a meeting could cause a waiver of the attorney-client privilege. See OSB Formal Ethics Op No 2011-184.
May a new lawyer ask a mentor at another firm for practical advice that relates to a pending client matter?
Yes, but both lawyers should be careful to preserve client confidences. RPC 1.6(a).
Often new lawyers will ask for practical advice that is related to a client matter without revealing any client confidences. For example, a new lawyer may ask about case law, statutes or procedural rules relating to a subject relevant to a client matter without disclosing any confidential information. Such generalized inquiries are unlikely to implicate RPC 1.6. New lawyers should be careful, however, to avoid framing a hypothetical question with facts that are so detailed and unique that a mentor could easily determine a client’s identity or other confidential information. See OSB Formal Ethics Op No 2011-184.
In limited circumstances, a new lawyer may conclude that disclosing limited information to another lawyer is “impliedly authorized to carry out the representation” of a client. RPC 1.6(a). This might be the case if the lawyer concludes that a conversation with an experienced mentor would be advantageous to the client. See ABA Formal Ethics Op 98-411, Ethical Issues in Lawyer-to-Lawyer Consultation (interpreting identical language in Model Rule 1.6 “to allow disclosures of client information to lawyers outside the firm when the consulting lawyer reasonably believes the disclosure will further the representation by obtaining the consulted lawyer’s experience or expertise for the benefit of the consulting lawyer’s client”). Lawyers should tread carefully, however, when relying on implied authorization and remember that exceptions to a lawyer’s duty of confidentiality have been narrowly construed.2
Consultations about pending matters can, in limited circumstances, can lead to problems if it turns out the mentor and new lawyer represent opposing parties. The next question addresses this issue.
Should a mentor run a conflicts check before discussing a case with a new lawyer who is at a different firm?
When a new lawyer’s questions are related to a specific client matter, a mentor must be careful not to provide advice that could harm the mentor’s own clients. For this reason, in OSB Formal Ethics Opinion No 2011-184, the Legal Ethics Committee recommends that a lawyer avoid consulting with another lawyer who is likely to be or to become counsel for an adverse party in the matter. Realistically, there is no way to know if a mentor and new lawyer’s clients are adverse without running a conflicts check.
In a worst-case scenario, if a mentor gives a new lawyer advice on a client matter and later learns that the mentor’s firm represents (or wishes to represent) an adverse party, the mentor’s firm would be faced with a dilemma. The Legal Ethics Committee notes that under such circumstances, the mentor would have an obligation to inform the firm client about the consultation with the new lawyer and its possible consequences. RPC 1.4. Practically speaking, giving advice to a new lawyer without running a conflicts check could lead to allegations of negligence or ethical misconduct, or a damaged relationship with the firm client.
Should mentor pairs who work at different firms enter into an agreement not disclose each other’s client confidences?
Perhaps. Mentors and new lawyers are encouraged to discuss whether it is appropriate to enter into an agreement that a mentor and new lawyer will not disclose each other’s client confidences. As noted by the Legal Ethics Committee, “[i]n the absence of an agreement to the contrary, [a mentor] does not assume any obligation to the [new lawyer’s] client by simply participating in the consultation.” Id. Entering into a formal or informal agreement to maintain the confidentiality of information disclosed may allow the consulting lawyer to avoid the risk of disclosure. OSB Formal Ethics Op No 2011-184.
Lawyers should be aware, however, that entering into a confidentiality agreement could give rise to a conflict, if at any point there is a significant risk that a lawyer’s obligation of confidentiality under the agreement would materially limit the lawyer’s ability to represent a client. RPC 1.7(a)(2).
May a new lawyer attend a mentor’s hearing, if the new lawyer is not part of the same firm?
Yes, assuming the hearing is open to the public.
Observation is a powerful learning tool. Many new lawyers value the chance to watch a real life proceeding unfold. If a hearing is open to the public, a new lawyer may attend. If the hearing is of a sensitive nature, the mentor should consider whether to seek the client’s permission before inviting a new lawyer to attend.
If a hearing is closed to the public (e.g., a private arbitration), the mentor should look to the rules of the tribunal to determine whether it is necessary to seek permission from the decision maker or parties prior to extending an invitation to a new lawyer. RPC 3.4(c). In any event, as discussed above, mentors should be careful not to disclose confidential information about the hearing without the client’s consent. RPC 1.6(a).
May a new lawyer work as a contract lawyer for a mentor?
Yes, presuming he or she has addressed any issues relating to Professional Liability Fund coverage.
A new lawyer working on a contract basis for a mentor might participate in PLF coverage (for example, if he or she does other private practice legal work outside of the contract work), or the new lawyer might claim an exemption from PLF coverage.
If, in the role as a contract lawyer, the mentee is doing work that is similar to a law clerk or paralegal and he or she is under the supervision of a PLF-covered attorney, then that lawyer could claim an exemption from PLF coverage.
New lawyers should keep these guidelines in mind if working as a contract lawyer while maintaining an exemption from PLF coverage:
- You may not make any strategy or case decisions.
- You may not hold yourself out as an attorney to any client or represent any party.
- You may not sign any pleadings or briefs.
- You may not attend any depositions as the attorney of record.
- You may not make any court appearances as the attorney of record.
- You may not use the title “attorney,” “attorney at law” or “lawyer” on any correspondence or documents.
- You may not be listed in the firm name or firm letterhead as an attorney or firm member.
See PLF Policy 3.150(G)(7) for more information.
May a new lawyer and mentor agree to jointly accept a pro bono case from a certified pro bono program?
Yes; in fact, the two lawyers may work on a case together from a certified pro bono program even if one of them claims an exemption from PLF coverage. The Oregon State Bar and Professional Liability Fund jointly certify a number of pro bono programs across the state that focus on aiding underserved populations. Through the joint certification process, these programs are able to provide malpractice coverage to volunteer attorneys who are otherwise exempt from PLF coverage. If a new lawyer or mentor claims exemption from PLF coverage, the certified pro bono program’s coverage would cover them in the event of a claim for legal malpractice. Visit www.osbar.org/probono for more information and a full list of the certified pro bono programs.
May a mentor share war stories about lessons learned with the person being mentored?
Yes, as long as the stories are shared in a manner that does not disclose client confidences. RPC 1.6. Often mentors can share a court opinion or tell a story about a hotly contested trial without divulging client confidences. When mentors want to speak about experiences that involve client confidences, they should be careful to tell the story in a manner that does not allow a new lawyer to easily determine a client’s identity and learn confidential information. See OSB Formal Ethics Op No 2011-184.
What should a mentor do if he or she learns that a new lawyer has made a mistake?
First, the mentor should assure the new lawyer that this is a perfectly normal situation and not the end of a new lawyer’s career. Next, the mentor should take that opportunity to educate the new lawyer about the Professional Liability Fund and encourage him or her to reach out to the PLF about the potential malpractice issue, if he or she has not done so already.
Professional mistakes can be unsettling to anyone, particularly new lawyers. It should be comforting to know that a majority of Oregon lawyers in private practice will interact with the PLF claims department in some way during their careers. If the new lawyer has made a mistake, the first call should be to the PLF claims department. The PLF has 12 claims attorneys on staff who are all committed to helping lawyers navigate the issues surrounding professional liability.
The duties of the claims attorney flow to the covered lawyer, and conversations between the covered lawyer and the PLF are strictly confidential. The claims attorney will work with the new lawyer on what malpractice issues, if any, exist, and help develop a strategy for resolution. Claims attorneys will also assist in determining what disclosures might need to be made to the new lawyer’s clients and make them aware of any other resources that might be helpful to them.
A mentor should take the time to educate each mentee about the role of the PLF in the legal community, and let him or her know that the PLF is there to provide coverage to Oregon lawyers. New lawyers should understand that reaching out to the PLF early in the event of a mistake is in everyone’s best interest and will only help moving forward.
May I serve as a mentor if I don’t have PLF coverage, and what limitations could this present?
Yes, a mentor is not required to have PLF coverage; however, mentors must take care to not engage in the “private practice of law.” Though this concept can seem nebulous, the crux of what to avoid is dispensing legal advice to a private party who might consider the mentor to be his or her attorney.
Working through hypothetical legal scenarios with the new lawyer can be very helpful. The practical skills component of the program does not require a new lawyer to work on active cases. It is entirely permissible for a mentor to ask a new lawyer to complete an activity that will not be used by a client. For instance, a mentor could suggest that a new lawyer draft a hypothetical answer to a complaint where an answer was previously filed or draft a response to a motion that was already decided by the court. Alternatively, mentors can ask a new lawyer to research a trending issue of law and apply a hypothetical set of facts to gain a deeper understanding of an issue. If a mentor does not participate in PLF coverage, keep the discussions generic, and do not meet with the mentee’s clients.
If particular questions arise about what activities are permissible while claiming a PLF exemption, contact the PLF and speak with one of the coverage attorneys.
If I am a government lawyer and much of my work involves confidential materials and proceedings, how can I best approach the “practical skills” curriculum requirements for my new lawyer?
Government lawyers owe the same duty of confidentiality to their government entity clients. RPC 1.6. In addition, government lawyers have a responsibility not to use confidential governmental information to assist in representing private clients. RPC 1.11(d)(iv). Confidential governmental information includes information that “has been obtained under governmental authority and which the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.” RPC 1.11(c). Because of this restriction, government lawyers should be careful not to disclose confidential information to new lawyers they mentor, even if that information is not about the government entity they represent.
As noted in the discussion above, mentors can always seek informed consent to allow a new lawyer to gain access to client confidences. RPC 1.6(a). But if a government entity declines to give consent, a government lawyer can focus a new lawyer’s practical skills component on matters that are already public knowledge or are hypothetical in nature.
If the mentor and new lawyer are working together on any current matters for the mentor’s government entity, the mentor must be sure have an understanding of his or her employer’s position on coverage for any malpractice issues.
Through the devoted service of Oregon lawyers, the New Lawyer Mentoring Program is building our legal community and improving the skills of new lawyers. When giving or seeking advice, lawyers should first consider their ethical obligations to clients.
1. Mentors may not have any current disciplinary prosecutions pending.
2. For a more in-depth discussion of the issue of maintaining client confidences in a mentoring relationship see “Duty of Loyalty: The Many Faces of Mentoring,” by Helen Hierschbiel (OSB Bulletin, June 2011).
ABOUT THE AUTHORS
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free at (800) 452-8260, ext. 312, or by email at ahollister @osbar.org. Emilee Preble is a staff attorney and the excess program administrator at the OSB Professional Liability Fund. She can be reached at (503) 639-6911, or toll-free in Oregon at (800) 452-1639, ext. 413, or by email at email@example.com.
© 2015 Amber Hollister & Emilee Preble