The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
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14 B&B; • 1.15 INTRODUCTION Every law firm needs a designated ethics partner. If you are in solo practice, this means you, assisted by trusted lawyers/mentors in your community or out in the state. On the other hand, in a mid-sized firm, this work is centered on one partner generally consulting with other members of his/her firm, perhaps with an associate back up. A large multi-office firm might have an expanded committee as a resource when the ethics partner(s) needs additional help. Several of the members of the expanded committee might be particularly adroit at running physical and electronic ethical screens when circumstances call for one. One partner, generally based in the firm's home office, might serve as the firm's general counsel and take on the direct dealings with the firm's malpractice carrier and the firm's management. For all of us, it means getting those annual ethics credits, paying attention to the Kentucky Rules of Professional Conduct and the comments to them, seeking guidance from KBA Ethics opinions, and obtaining rulings from the KBA Ethics Hotline when still in doubt. What follows are issues fielded over the course of a recent one-month period by a typical ethics partner (the author). This will give you an idea of ethical issues that confront all of us regardless of whether one practices in a large, mid-sized, or small firm or as a solo practitioner. There is no rhyme or reason to the issues covered below. It is a scattershot rendition, and yet a realistic one. CONFLICTS The bulk of questions arise from conflict issues for current clients and involve whether the conflict is indeed a conflict, and if so, whether it can be waived by both sides. Here is where we look to Rule 1.7, "Conflict of Interest: Current Clients." Is the conflict a concurrent one involving representation of one client directly adverse to another? Is there a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person, or the lawyer's personal interest? These are grey areas of concern. They are factually intensive. And yes, to a large extent, the cross examination of one's partners (or oneself if practicing solo) is critical. Rule 1.7 (b) provides the circumstances under which a lawyer may represent a client notwithstanding a concurrent conflict. Is the lawyer able to render competent and diligent representation to each affected client? Is the representation not prohibited by law? Does the representation not involve the assertion of a claim by one client against another client represented by the lawyer or the lawyer's firm in the same litigation? And has each client given informed consent, based on an explanation of the facts and ramifications, confirmed in writing? A majority of state and federal courts hold that oral and written communications with a firm's ethics partner are privileged under the attorney client privilege and the work product doctrine. Frequently, the ethics partner should ask the affected lawyers to outline in writing the facts and circumstances about which they inquire, even if they've already explained it orally. Often the answers may be given orally in response to calls or meetings in the office, many of which arise in the context of real emergency. It is good practice, however, to give a written response or to keep notes and a record of the particular ruling. The ethics partner should get copies of the conflicts letters that go out and the signed returns. Frequently, the firm will have a template, and in some instances the ethics partner will actually do the first draft if that is more efficient. As to determinations, many are informal. Some, however, should be codified for future use if there are unusual issues involved, or where the conflicts arise among firm lawyers practic- ing in different practice areas or offices. CORPORATE AFFILIATE CONFLICTS What happens if one lawyer in the firm represents a corporation, while another is asked to represent a constituent or affiliated organization, such as a subsidiary, when the representation is adverse? See comment 34 "Organizational Clients" to KRCP 1.7. The bottom line is that such representation is not barred, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, or there is an understanding that the lawyer won't represent affiliates, or the lawyer's obligations to one other client could materially limit her representation of the other. This dilemma seems to arise with increasing frequency. The answer often lies in the degree of relationship and the amount of control exercised by one client o ver the other within the corporate umbrella. JOINT REPRESENTATIONS AND WAIVERS Over the years of a lawyer's practice, he or she may be called upon to represent more than one client in the same litigation. Conflicts can easily arise, many foreseeable and some not so. This can cause problems for the unwary. For example, a litigator represents a corporate client and during the course of the litigation is asked to defend an employee whose negligence contributed to the claim. A settlement conference looms on the horizon. The corporation makes it clear that it wants to settle, but the employee says she will not. This places the litigator in an insuperable position, especially if settling for the corporation will leave the employee dangling like a participle. A carefully crafted joint representation letter should make it clear in advance that if the corporation takes one position and the individual client another, the lawyer has the right to withdraw from representing the individual but to continue with the representation of the corporation. Absent such an agreed upon right to withdraw, the lawyer may find himself in the uncomfortable position of having to withdraw for both clients. This problem is also particularly acute in representation of aggregate or class plaintiffs, as addressed in KRCP 1.7, Comments 29-33 "Special Considerations in Common Representation." JOINT DEFENSE AGREEMENTS Joint defense agreements are used among plaintiffs in a multi-plaintiff case, among co-defendants in business or tort litigation, or among defendants in securities or white collar crime cases. They can be very useful in helping develop a case by way of exchanging information, building facts, sharing discovery responses, or strategizing a trial. They also should include waiver/non-disqualification provisions so that if a defendant leaves the litigation through settlement, or simply wants to opt out of the joint defense agreement, the other parties to the agreement will not be prejudiced. For example, a group of defendants in a trust dispute enter into a joint defense agreement in order to discuss litigation strategy, share documents, and divide up the labor on briefing. For one reason or another, one of the defendants opts out of the agreement. His counsel learned things in the meetings that were A MONTH IN THE LIFE OF AN ETHICS PARTNER By: Richard H.C. Clay F E AT U R E : E T H I C S