A Year-End Ethics Audit
By Amber Hollister
During the holiday season, lawyers are busy juggling work and family commitments. Hearings, holiday parties, client meetings and family gatherings all vie for time on the calendar. Brushing up on your ethical obligations may not make it onto your seasonal to-do list. But traditionally, the year’s end is a time to step back and take account.
This pop quiz is designed to give you a quick snapshot of your level of ethics compliance and help you flag areas for further contemplation. What ethics rules do you know well? What rules should you review in the new year?
Pull out your pen, dust off your rules, and answer the questions below. Then turn to the answer key for the correct answers and a discussion of the issues.
1. You recently withdrew from representing Nick in civil litigation. He left a message asking for a copy of his file, which consists of 10 bankers boxes of documents including a few of his original documents. Nick has an outstanding bill of over $10,000. Do you have to provide a copy?
A. No, as long as you previously gave Nick copies of all pleadings and correspondence.
B. No, because Nick has failed to pay his bill in full.
C. Yes, but you do not need to copy your informal notes about the case or internal firm emails.
D. None of the above.
2. Late last night, you received an email from opposing counsel, Blitzen, in a contentious real estate dispute demanding that you provide him privileged documents. He copied his client Comet. Can you hit “reply all” and respond with your righteous refusal?
A. Yes, it’s only courteous to reply to all parties on the email string.
B. No, because Comet is represented by Blitzen.
C. Yes, because it’s important that Comet knows how difficult and unreasonable Blitzen is.
3. Last week you chatted with a woman named Dancer on the phone. She was looking for a lawyer to handle her divorce, but she never called you back. You did not give her any legal advice. Do you owe Dancer any duties?
A. No, because Dancer is not a client you owe her nothing.
B. Yes, you owe Dancer duties as a prospective client.
C. Yes, you owe Dancer a duty of confidentiality, but because she never hired you, the consultation cannot create a conflict of interest.
4. Opposing counsel calls you and makes a terrific offer to settle a personal injury case but says that the deal is only open for 24 hours. You think that your client Prancer would be elated with the offer, but you are unable to reach her by phone. Can you accept the offer?
A. No, because only Prancer can accept the offer.
B. Yes, but only if the offer is for the full amount of the prayer.
C. Yes, but only if the offer includes attorney fees.
5. After having a long conversation with the Professional Liability Fund, you believe you have committed malpractice by failing to file a timely notice of appeal. Your client Rudolph thinks the case is proceeding as normal. What do you do?
A. Stop speaking to Rudolph, and send a letter referring him to another attorney.
B. Explain to Rudolph he has lost on appeal.
C. Ask Rudolph to sign an agreement not to pursue a bar complaint against you.
D. None of the above.
6. Donner, an elderly gentleman, comes into your office for estate planning help. He explains that he has been experiencing mild dementia and other health problems, and he is worried that his children are taking advantage of him and stealing his money. Donner is adamant that none of his children serve in a fiduciary capacity in his estate plan. You start to draft a trust and durable power of attorney. After the initial meeting, you read Donner’s obituary in the local newspaper. Two weeks later, Donner’s son Vixen asks for your help in opening a probate. He wants to have himself appointed as personal representative. Can you represent Vixen?
A. Yes, because Donner never signed a fee agreement and is not your client.
B. Yes, because Donner is deceased.
C. No, because you have a conflict of interest.
7. You have been appointed to represent Cupid in a high-profile felony case. When reviewing police reports, you realize that Dasher, another client who is facing unrelated misdemeanor hit-and-run charges, was the only eyewitness to the alleged crime and would likely be called to testify against Cupid. What do you do?
A. Tell Cupid that Dasher is unlikely to cooperate because he has fled Oregon.
B. Move to withdraw as counsel.
C. Call Dasher and find out what he remembers.
8. Your client Redcorp has repeatedly refused to provide documents and made frivolous objections in response to Green LLC’s Requests for Production. You believe that Redcorp is merely dragging its feet and seeking to increase the costs of litigation for Green LLC. You inform Redcorp you are ending the representation. What information should you disclose when moving to withdraw?
A. Outline Redcorp’s unreasonable attempts to stonewall discovery requests in your declaration. After all, the court needs to know why the case is still on the calendar.
B. Ask to speak to the judge in camera and explain your concerns about Redcorp’s unreasonable discovery stance.
C. Do not unilaterally provide information to the court about the reason for your withdrawal.
1. Answer: D. None of the above.
When withdrawing from representing a client, attorneys have a duty to promptly return all property and papers to which the client is entitled in order to protect the client’s interests. RPC 1.16(d); 1.15-1(d). For this reason, absent valid attorney liens, attorneys should give the client a full copy of the file and return all client originals. See OSB Formal Ethics Op No 2005-125. A full copy of the file is defined broadly to include all papers and property that the client provided to the lawyer; litigation materials, including pleadings, memoranda and discovery materials; all correspondence including emails; all items that the lawyer has obtained from others, including expert opinions, medical or business records and witness statements; and lawyer notes or internal memoranda that may constitute attorney-work product. Id. There is no duty to return documents the client is not entitled to receive, however, such as documents subject to a protective order or documents that were prepared for other clients and contain client confidences. Id. For information about who pays for the copy of the file, see OSB Formal Ethics Op No 2005-125.
But what about Nick’s failure to pay his bill? With one important caveat, attorneys who have a valid possessory lien over client property may refuse to provide a copy of the file until their bill is paid. ORS 87.430. Attorneys must inform clients of any lien so that clients may elect to provide a bond to secure release of the file or otherwise challenge the lien. See ORS 87.435 et seq. Attorneys may not withhold a file based on a theoretical right to exercise a lien. (The facts do not state that you have exercised a lien over Nick’s file.) But now for the caveat: If a client does not have sufficient resources to pay the lawyer and surrender of the file is necessary to avoid foreseeable prejudice to the client, the attorney must provide a copy of the file upon payment of whatever amount the client can afford to pay. OSB Formal Ethics Op No 2005-90.
2. Answer: B. No, because Comet is represented by Blitzen.
RPC 4.2 prohibits a lawyer from communicating with a person whom the lawyer knows is represented by counsel on the subject of the representation. There is no “email exception” to RPC 4.2. Instead, Oregon courts have interpreted the rule broadly, finding a violation even if the lawyer is ignorant of the prohibition, In re Venn, 235 Or 73 (1963), or is merely negligent, In re McCaffrey, 275 Or 23 (1976), or impulsive, In re Lewelling, 296 Or 702 (1984). The fact that the communication with a represented party was brief or was not likely to cause serious harm is no excuse. In re Hedrick, 312 Or 442 (1991).
3. Answer: B. Yes, you owe Dancer duties as a prospective client.
Dancer is a prospective client because you consulted with her about the possibility of forming a client-lawyer relationship, but she did not retain you. RPC 1.18(a). Lawyers owe prospective clients the same duty of confidentiality that they owe to full-fledged clients. Consultations with prospective clients, however, only create conflicts in narrow situations. Under RPC 1.18(c), a consultation with a prospective client will prevent a lawyer from representing a client adverse to the prospective client in the same or substantially related matter only if the lawyer received information from the prospective client that could be significantly harmful to the prospective client in that matter. See OSB Formal Ethics Op No 2005-138 and Stevens, “Prospective Clients: Effective Use of RPC 1.18,” OSB Bulletin February/March 2010. If a consultation with a prospective client creates a conflict of interest, you may be able to resolve the conflict through screening or by obtaining the informed consent of the prospective client and affected client. RPC 1.18(d).
4. Answer: A. No, because only Prancer can accept the offer.
The client is the only one who can decide whether to accept a settlement offer. RPC 1.2(a). Because the lawyer is the client’s agent, the lawyer cannot exceed the client’s authority. OSB Formal Op No 2005-33. Even if an attorney believes that a settlement offer is the best possible outcome for a client, she is not allowed to supplant the decision of the client. See In re Bailey, 25 DB Rptr 19 (2011). Instead, the lawyer must diligently attempt to communicate the settlement offer to the client while it is still open. RPC 1.3; 1.4. If the lawyer is unable to communicate with the client, the lawyer must reply that she is without authority to accept the offer (or seek additional time to respond).
5. Answer: D. None of the above.
You may have a self-interest conflict based on your likely malpractice. Self-interest conflicts can be hard to identify because they require assessing both your own subjective personal interests and whether such interests might reasonably limit your ability to represent your client. See RPC 1.7(a)(2); OSB Formal Ethics Op No 2005-61 and 2005-182; In re Knappenberger, 337 Or 15 (2004). Even if you determine a self-interest conflict exists, you may be able to continue representation with informed consent from the client, confirmed in writing, as long as you can provide diligent and competent representation going forward. See RPC 1.7(b) and 1.0(g). In any event, you have a duty to communicate with the client truthfully about the status of the case, even if you are relaying bad news. RPC 1.4(a); RPC 8.4(a)(3). Under no circumstances should you ask the client to sign an agreement not to file a bar complaint — such agreements are strictly prohibited. RPC 1.8(h)(4).
6. Answer: C. No, because you have a conflict of interest.
Because Donner is your former client, you should analyze this question under RPC 1.9(a). There is adversity between Donner and Vixen because Vixen wants to take action (be appointed as personal representative) that you know Donner would have opposed. You also know that Donner feared that his children would take unfair advantage of him and were stealing his money. The two matters are substantially related because your representation of Vixen will injure or damage Donner in connection with the same transaction or legal dispute in which you previously represented Donner. RPC 1.9(d). The fact that Donner has died does not resolve the conflict of interest. In re Hostetter, 348 Or 574, 584-85 (2013) (holding “an attorney is prohibited from engaging in a former-client conflict of interest even when the former client is deceased, as long as the former client’s interests survive his or her death and are adverse to the current client during the subsequent representation”).
7. Answer: B. Move to withdraw as counsel.
You have a current client conflict of interest based on your representation of Dasher and Cupid. You believe Dasher will be called to testify as an adverse witness and your clients will be directly adverse to each other. RPC 1.7(a)(1). In addition, there is a significant risk that your responsibilities to Dasher will materially limit your ability to represent Cupid if he decides to cooperate with law enforcement. RPC 1.7(a)(2). You will not be able to assist Dasher to negotiate a plea deal in return for his testimony against Cupid. Informed consent will not resolve the conflict because it is unlikely you will be able to provide diligent and competent representation to both clients, and you may be obligated to contend for something on behalf of one client you have a duty to oppose on behalf of another client. RPC 1.7(b). When withdrawing as counsel, you must comply with RPC 1.16(c) and (d).
8. Answer: C. Do not unilaterally provide information to the court about the reason for your withdrawal.
While you have a discretionary ground to withdraw under RPC 1.16(b)(4), you still have a duty not to disclose Redcorp’s confidences in your motion to withdraw. OSB Formal Op No 2011-185. Confidential information includes attorney-client privileged information, as well as information that Redcorp has asked you not to share, and information that would likely be detrimental or embarrassing to Redcorp if disclosed. RPC 1.6(a), 1.0(f). Because Redcorp’s unreasonable refusal to respond to discovery requests could subject it to sanctions if revealed, you should treat that information as confidential and should not reveal your basis for withdrawal to the court unless permitted by one of the narrow exceptions listed in RPC 1.6(b). If the court asks for an explanation, you can explain that professional considerations require termination of the representation. If the court orders you to provide more information, you may disclose information you reasonably believe is necessary to comply with the court’s order. RPC 1.6(b)(5). The fact that you disagree with Redcorp’s discovery posture is not a “controversy between the lawyer and client” as contemplated by RPC 1.6(b)(4) that would allow you to disclose Redcorp’s confidences.
ABOUT THE AUTHOR
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 312, or by email at email@example.com.
© 2013 Amber Hollister