Bench & Bar

JAN 2015

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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15 B&B; • 1.15 subject to the attorney client privilege and t he work product doctrines. His client wants to use them at trial against the other defendants in order to prevail on an a pportionment instruction. Fortunately for those remaining in the joint defense arrangement, the client leaving the joint d efense agreed to the privilege as part of the joint defense agreement and won't be able to use the documents. The other d efendants remaining in the agreement consider moving to disqualify the departing counsel from representing his client b ecause they claim he is conflicted based on what he learned while under the tent. In the absence of a provision in the agreement waiving such a future conflict, they may be on solid ground. These are simply examples of why joint defense agreements, while sometimes useful, need to be carefully considered and written with the future twists and turns of litigation in mind. DUTIES TO PROSPECTIVE CLIENT KRCP 1.18 "Duties to Prospective Client" can be a trap for the unwary. A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client, regardless of whether a relationship ensues. Consequently, the confidentiality provisions of KRCP 1.6 "Confidentiality of Information" apply, and must be adhered to scrupulously. Additionally, subsections (c) and (d) deal with the issue of whether if the attorney-client relationship is not consummated, another lawyer in the firm can represent a client with interests which are clearly adverse. The answer distills down to whether the lawyer being interviewed by the prospective client received disqualifying information, as defined in the rule. To protect himself and his firm, the lawyer should first run a conflicts check before interviewing the prospective client or even obtaining any information in the initial call other than what is necessary to run the conflicts check. The last thing in the world that he wants to confront is a disqualification motion of his firm brought by the prospective client because of his representation of an existing client in the same matter. Additionally, in the meeting it is important to set guidelines/parameters and learn only enough to determine whether to represent the potential client. If there is a conflict that prevents him from representing the prospective client, a timely physical and electronic screen is in order. Nor is he permitted to be apportioned any part of the fee in the event the firm takes representation of another client under these circumstances. DUTIES TO FORMER CLIENTS F irst, is the client a former client as defined in KRCP 1.9 "Duties to Former Clients?" This is why a disengagement letter is f requently as important as an engagement letter. While an engagement letter sets forth the parameters of the engagement, t he disengagement letter frees the lawyer from a continuing obligation once the matter is completed. For example, a will is w ritten containing a generation skipping trust. No disengagement letter is sent to the elderly client. Over the years, Congress c hanges the GST exemption in such a manner that the testator's intent may suddenly have been wiped out by the increased exemption, so that suddenly one group of beneficiaries is cut out in favor of a younger generation. While this example is extreme, it could happen. In the absence of a disengagement letter, does the lawyer have a continuing obligation to contact the elderly client and advise him of the effect of the changes? More than likely, the answer is yes. Second, in the event a conflict arises for a new client with reference to something that was handled for a former client by another member of the firm, two issues arise. Is the matter "the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client?" If so, will the former client sign a written waiver? Under those circumstances a waiver is mandatory. The more difficult issue is whether it is a substantially related representation. The determination is factually intensive. If it is not substantially related, then no waiver letter is necessary. Under all circumstances, of course, the duty of confidentiality enunciated in KRCP 1.6 applies. LATERALS, MERGERS AND IMPUTATION OF CONFLICTS A significant proportion of an ethics partner's time is spent reviewing the work of lawyers or groups of lawyers considering joining her firm. She should do very thorough conflicts checks in advance of making a decision; however, very thorough checks can't be done by computer alone – although it is essential. A great deal of conversation in the form of poking and probing needs to take place – not just for actual or potential client conflicts, but also for the more esoteric issues conflicts. For example, has the lawyer or the group represented clients traditionally hostile to a firm's existing clients, or argued key issues that are antithetical to issues currently being handled by the firm? Under KRCP 1.10 "Imputation of Conflicts of Interest: G eneral Rule," conflicts are imputed to an entire firm. The avoidance of conflicts is key. Clients hate disqualification motions. S o do the lawyers currently handling a matter. DISQUALIFICATION MOTIONS The first question that arises when confronting a disqualification motion is whether it is a mere litigation tactic. If that is the case, and if there is a genuine absence of a conflict or even a grey area that weighs against disqualification, trial courts generally are loath to grant such motions on the presumption that a client is entitled to choose and keep its own counsel. Defenses typically include absence of a conflict and waiver. It is common to see disqualification motions filed after discovery in a case that has been well under way, and even while substantive motions are under review. About all one can do is address the issues raised methodically, carefully and calmly and hope that the court understands. There are times when disqualification motions are necessary, but they are not something in which a lawyer striving to be great should specialize. CONFIDENTIALITY AND ETHICAL SCREENS Ethical screens should be deployed with a high degree of frequency, and used in areas of doubt, even if the clients have not insisted upon them. The confidentiality of information provided by a client is sacrosanct. There are exceptions outlined in KRCP 1.6 (1)-(4) "Confidentiality of Information" pertaining to the prevention of certain death or substantial bodily harm (see also KRCP 1.14 Clients with Diminished Capacity); to obtain legal advice about a lawyer's compliance with the Rules of Professional Conduct; to establish a claim or defense to a criminal charge or a civil claim against the lawyer in which the client is involved; or to comply with other law or court order. The comments flesh these exceptions out. Frequently screens are utilized to preserve confidentiality in the event of a conflict that has been waived by both clients, either if circumstances require, if the clients – after being informed – request, or if it simply makes sense as a precaution – regardless of whether the clients request it. Screens are both physical and electronic. The lawyers and staff involved should be instructed in writing not to discuss. Screens are used with both current client conflicts, as well as with past clients where there is a danger that confidential communications in a

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