Recent story makes me wonder if this is an example of a violation of the hot potato doctrine

NPR has a long story that reminded me of the "hot potato doctrine."  In case you don't remember, this is the doctrine that says that it is misconduct to dump a current client ("like a hot potato") in order to "convert" that client into a former client to clear the way to accept the representation of a new client with an interest adverse to that of the (now) former client.

The story in a nutshell is that a big law firm had been representing, pro-bono, a non-profit organization for several months.  At one point during that representation, the non-profit sought help from the firm because a government agency was trying to eliminate its only source of funding.  In response to the agency's threat, lawyers from the firm met with the non-profit organization's board and president to discuss a potential lawsuit against a federal agency.  

Later, however, the firm decided they did not want to get involved in the case because “the case might be too political” and withdrew from representation.  

Ok, nothing wrong there, I suppose.  The firm has a right to decided whether it wants to represent a client.  

But then, eight weeks later, the firm agreed to represent the Agency threatening to take away the nonprofit's money for the year.  And all this without ever asking for consent or even informing the (now) former client.

The general counsel for the non-profit organization is quoted in the story as saying "I was speechless." . . . "I had no idea that they would ever turn around and represent our actual adversary in a lawsuit, after an attorney in their practice had spoken to our board about our strategy and asked me for internal documents to help frame up the theory of our case."

Once the firm undertook the new representation, the lawyer and several staffers who had been representing the non-profit organization left the firm.  The firm continued to represent the agency and, according to the story, made well over $2 million dollars over the next five months.

Does this sound like a violation of the hot potato doctrine to you?   

You can read the full story here.

ABA issues new formal opinion on Model Rule 1.18 and the duties owed to prospective clients

A couple of days ago, the ABA Standing Committee on Ethics and Professional Responsibility issued formal opinion 492 in which it discusses the duties owed to prospective clients under MR 1.18.  I don't think it says anything we did not know already.  Here is the summary:

A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter. Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).

You download or read the opinion here.

The ABA Journal has a story here.

Discipline for attempting to violate the rule on sex with clients

Model Rule 8.4, which is the basis of Rule 8.4 in most, if not all states, holds that it is professional misconduct for a lawyer to "violate or attempt to violate" the Rules of Professional Conduct.  Yet, you rarely see cases imposing discipline for an attempted violation of the rules.

This makes Lawyer Disciplinary Board v. Sayre interesting.  In this case, the Virginia Supreme Court imposed discipline on an attorney for a number of offenses and one of them involved an attempt to violate the rule against sex with clients.  The lawyer admitted that he knowingly engaged in inappropriate and sexually suggestive communications with the intent of initiating a sexual relationship with a client. Because his attempt was unsuccessful, the Court ruled the conduct was not a violation of rule 1.8, but it was a violation of rule 8.4.

The Legal Profession blog has a summary here.

Can a law firm file competing amicus briefs in one same case?

A couple of weeks ago, the New York State Bar Association issued an ethics opinion with an answer to this interesting question:  can the same law firm file amicus briefs on both sides of a Supreme Court case?

And the answer is, as it so often is,... "it depends."

The question originated when a law firm asked its lawyers if any of them would be interested in preparing an amicus brief for filing with the Court.  The problem was that some lawyers wanted to argue one side of the issue, while others wanted to argue the opposite side. 

Given the division of opinions, the firm management decided to create two separate teams to work on their respective positions and then to ask the NY State Bar Association Ethics Committee if they could file both briefs.

In it opinion (Opinion 1174), the Committee concludes that the firm can't file either brief if two clients ask the firm to submit amicus briefs on opposing sides of an issue because New York’s Rule 1.7 bars a lawyer from representing clients on both sides of the same litigation. 

However, in this case the interest in filing the briefs did not come from a client request.  Here, the lawyers were to appear pro se.  Thus, as long as the attorneys appeared in their own name, rather than in the firm's name, the Committee found no ethical reason why attorneys may not file amici briefs on opposing sides of a question before the Court.

You can read the opinion here.  The Law For Lawyers Today has a post on the opinion here.

Meanwhile, over at Faughnan on Ethics, Brian Faughnan argues that it is not clear what the answer would be if one lawyer from the firm was filing on behalf of a client and then another lawyer in the same law firm wanted to file an opposing brief pro se.  If it is true that lawyers are "as free as anyone" to file pro se briefs in any cases, it would seem that the answer is that the pro se lawyer would be allowed to file the amicus brief.  Yet, this situation would look too similar to having an attorney from a firm arguing on both sides of the "v." in a litigation matter. 

The Ohio Board of Professional Conduct's recent advisory opinion on conflicts of interest

The Ohio Board of Professional Conduct has issued an advisory opinion which reiterates three basic and uncontroversial principles on conflicts of interest.  The opinion is Advisory Opinion 2019-01 and you can read it in full here. 

The opinion makes three points:

First, the opinion states that, absent informed consent, a lawyer may not undertake representation of an adverse party in an unrelated matter when the lawyer represents current clients with claims pending against the adverse party.  This conclusion should not be surprising.  It is just the basic principle against concurrent conflicts of interest expressed in Model Rule 1.7.

Second, the opinion states that a lawyer may not withdraw from the representation of a current client in order to undertake representation of an adverse party, even if the matters are unrelated.  This is another way of saying that the Board would apply the so-called "hot potato doctrine" which prevents a lawyer from trying to dump a client in order to "convert" the client from a current client into a former client before taking on a new client in a matter adverse to the interests of the converted former client.  I can't say how many jurisdictions have formally adopted the doctrine, but it is pretty well known so I am not surprised by the opinion's position on this.

Third, the opinion states that absent informed consent, a lawyer may not represent a former adverse party in a new matter against a former client if the new matter is the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.  Again, this is not news since it is simply stating the basic principle regarding successive conflicts of interests expressed in Model Rule 1.9. 

The grades you don't want as a student and basic duties owed to clients, or the basic principles of ethical lawyering

Years ago, I wrote a short essay on whether we could reduce the professional conduct rules to just a few basic principles.  I concluded that, although we need the rules for guidance on specific issues, we can use a few general principles to define the notion of professional responsibility upon which all rules are generally based.

Along the same lines, a few weeks ago, Brian Faughnan posted a comment on “A recipe for ethical lawyering?” in which he expressed a similar idea by referring to the 5 Cs of lawyering:

Be COMPETENT at what you do
Recognize and respect your obligations of CONFIDENTIALITY
COMMUNICATE appropriately with your clients (and others) both as to content and frequency
Employ CANDOR in all situations in your practice [If you absolutely cannot be 100% truthful, and can’t simply stay silent, then don’t be false.]
Avoid CONFLICTS for which you don’t have, or cannot get, consent.

A few days later, Michael Kennedy followed up with his own commentary on the 5 Cs.

There is little to add to these two fine comments, but I will mention my own take on the 5 Cs, which is this: to try to get my students to remember the basic duties attorneys owe their clients, I tell them to think about the grades the do NOT want to get this semester: 1 F, 1 D and 4 Cs:

The F is for the Fiduciary duty owed to clients which in fact includes most, if not all, the others.

The D is for Diligence.

The Cs are for Competence, Confidentiality, Communication and Conflicts.

There are a couple of problems with my little word game for my students,* but it works for its purpose, I guess.... I hope...


*Note that “Conflicts” is, of course, not a duty – the duty is loyalty – but I needed a “C” to make the saying work!  Also note that I did not mention candor because, technically, the rule on candor says candor is owed to the tribunal, and my lesson was on duties owed to the client.  The equivalent of candor owed to the client would be Honesty, which I mention separately.  It is covered in the "catch-a;;" Rule 8.4 but can also be included in the notion of a fiduciary duty.

Was Michael Cohen’s Secret Taping of his Then-Client Donald Trump Improper?

Bernie Burk (Campbell) offers some thoughts on the question here.

Pennsylvania Superior Court rules lawyer can't serve as guardian ad litem and as lawyer for a child at the same time

Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it.  I also published a law review article on the subject, available here.

Since then, the Court did review a case on the issue and decided that attempting to serve as a lawyer and as a guardian at the same time constituted an impermissible conflict of interest.  I wrote an article about the case (here).

Unfortunately, the practice of appointing lawyers to serve as lawyers and guardians simultaneously is still common in many jurisdictions, including, oddly, in Illinois.  (The ruling in Illinois banned the practice in delinquency cases but not in family law matters.)

I am writing about this again today because I just read that the Pennsylvania Superior Court issued a ruling in a case called In re J'K.M., 2018 BL 226337, Pa. Super. Ct., No. 1390 WDA 2017, 6/26/18, holding that an attorney appointed as a teen's guardian ad litem and as her lawyer in a neglect proceeding can't continue the dual roles because a divergence between what the child wants and what is best for them creates a conflict of interest.

Given my history on this issue, you will not be surprised to hear that I think this is definitely the correct decision. 

3M settles case filed by state of Minnesota

3M has agreed to pay $850 million to settle a long-standing lawsuit filed by Minnesota, over the company’s disposal of perfluorochemicals used in Scotchgard and other products, which the state says polluted drinking water sources.  Go here for more details.

Why is this relevant?  Because this was the case in which the law firm Covington & Burling was disqualified for allegedly violating the "hot potato doctrine."  Go here, here, here and here for my original posts on the case.  The disqualification order was later remanded for further proceedings.

ABA issues new ethics opinion on the duty not to use confidential information related to former client; OK, but ...

Two weeks ago, the ABA Standing Committee on Ethics and Professional Responsibility issued a short opinion on the meaning of the phrase "generally known" in reference to the duty of an attorney not to use confidential information related to a former client.  (See Formal Opinion No. 479.) The opinion is short and straightforward and doesn't really say much we did not know (or at least assumed) already.  Yet, I have to say I don't like a little detail on how the issue was framed.  I understand why the drafters expressed the idea the way they did, and I may just be too picky, but I thought I would mention it.

But first things first.  Let's start with the basics.  Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation “to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become generally known."

What the opinion does is attempt to clarify how to consider that a certain piece of information has become "generally known."  Using a variety of sources, the Committee concludes as follows:

[T]he Committee’s view is that information is generally known within the meaning of Model Rule 1.9(c)(1) if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade. Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media. With respect to category (b), information should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public. For example, if a former client is in the insurance industry, information about the former client that is widely recognized by others in the insurance industry should be considered generally known within the meaning of Model Rule 1.9(c)(1) even if the public at large is unaware of the information.

Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes. Information that is publicly available is not necessarily generally known. Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).

There is still some vagueness in this approach but that is inevitable when the standard is based on a notion of reasonableness.  In other words, there will always be some level of interpretation needed to evaluate whether the information should be considered to be generally known, but these paragraphs do a good job of explaining the proper approach to the question.

Now, what is it I did not like?  The opinion starts (from its very title) talking about the generally known "exception" to the rule.  And I understand why the drafters did that:  the way the rule is written it can be interpreted to say there is a duty to not use the information unless it is generally known, and the use of the word "unless" suggests that what comes after it is an exception to the statement of the duty that preceded it.

The problem is that this is wrong.  If the information is generally known, it is not confidential. Period.  By definition.  Thus, there is no duty to keep it secret.  There is no such thing as an exception to the duty.  There is no duty.

In other words, one has to determine if the information is generally known to determine if there is a duty; not to determine if there is an exception to the duty.

You can read the full opinion here (It is only 6 pages long.)

The Law For Lawyers Today has a short comment on the opinion here.

UPDATE (12-31-17):  First of all, Happy New Year to everyone.  Second, someone asked me what difference does it make whether we consider the notion of "generally known" as a exception to the duty.  Well, here is one way in which it makes a difference:

Assume a former client sues a lawyer for damages alleging a breach of a fiduciary duty based on the attorney's use of information.  In such a case, the plaintiff has the burden to support the argument of duty, and therefore, will have to prove that the information is not generally known.  If, on the other hand, we take the position that there is an exception to the duty, the defendant-lawyer would have the burden to show that the information is generally known in support of a defense.  Depending on the evidence available to support the arguments, who has the burden of proof can make a difference.

UPDATE (March 2018):   A new Formal Opinion (No. 480), which is available here, repeats the notion that information that is in the public record can still be confidential and that disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule).  This opinion was met with criticism by some who argue that it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.

I know of only one case that has held this (Hunter v Virginia State Bar).  Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.

I wrote about Opinion No 480 here.

Georgia issues opinion on conflict of interest when serving as attorney for a minor and guardian ad litem at the same time

Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it. I stated that the way courts justified the practice "displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible." Later I wrote a law review article on the subject (available here) in which I made a long argument in support of my position.  The Illinois Supreme Court eventually decided, as I had suggested, that the dual appointment constituted a conflict, and I wrote another article commenting on the case (available here.)

That case, however, was limited to the practice in juvenile delinquency proceedings, and I found out later that Illinois courts continue to assign lawyers the dual role of attorney and guardian in family law matters.  In my opinion, the fact the are of the law is different does not make a difference and it is disturbing that the practice continues.

Today I found out, however, that earlier this month the Georgia Supreme Court approved an ethics opinion about the subject finding that it is a conflict of interest to serve as both a child's lawyer and guardian ad litem in a termination of parental rights proceeding when the child's wishes and best interests conflict.

The new opinion, which was issued by the Georgia State Bar's Formal Opinion Advisory Board, is attached as an appendix to the court's per curiam opinion approving it (In re Formal Advisory Opinion No. 16-2, 2017 BL 444895, Ga., No. S17U0553, 12/11/17).

The opinion concludes that when an irreconcilable conflict of interest develops between the child's wishes and the lawyer's view of the child's best interests, the lawyer must withdraw from the role of guardian ad litem, and may seek to withdraw entirely if the conflict is severe.

Illinois Supreme Court hears oral argument on whether a Public Defender should be held in contempt for refusing to represent a defendant when doing so would result in a confict of interest

About two weeks ago, the Illinois Supreme Court heard oral arguments in a very interesting case that started last year when a trial judge appointed Cook County Public Defender Amy P. Campanelli to represent a defendant in a murder case.  The Public Defender refused to do so arguing that accepting the representation would constitute a concurrent conflict of interest.  She also told the judge she could not divulge more information because doing that would constitute a violation of the duty of confidentiality to her other clients.  The judge held the Public Defender in civil contempt and fined $250 per day.

In Holloway v Arkansas, the US Supreme Court held that reversal of a conviction should be automatic if the attorney for the defendant had been denied a request for separate counsel for a client based on a conflict of interest at trial.  Denying the request would force a defendant to be represented by an attorney with a conflict of interest in violation of the 6th Amendment to the Constitution.  Since then, most courts have held that an attorney's request for independent counsel should be granted because the attorney is in the best position to determine if there is a conflict.

Based on this case law, it would seem like the contempt conviction should be reversed.

The state argued the conviction should be affirmed because all the judge wanted was for the attorney to provide the basis for the objection to the representation rather than a vague and unsubstantiated claim of possible conflict.

You can listen to the oral argument here.  You can also download a video of the oral argument by going to this page and scrolling down to September 12.  The case is People v. Cole.

California opinion on the "insurance triangle"

Back in April, the Los Angeles County Bar Association issued an ethics opinion on whether a lawyer hired by an insurance company to represent an insured can disclose certain information to the insurance company to the detriment of the insured.   It concludes that

When an attorney engaged by an insurance carrier to defend the interests of an insured obtains information that could provide a basis for the insurance carrier to deny coverage, the attorney is ethically prohibited from disclosing that information to the insurance carrier.  In such a situation, the attorney must withdraw from the representation.

Up to the last sentence, the conclusion is not surprising and, as far as I know, the generally accepted view on this issue everywhere.  But the last sentence (the duty to withdraw) only makes sense in jurisdictions that hold that an attorney hired by a person to represent another actually has two clients.  In jurisdictions where the attorney in such circumstances only has one client (the insured, in this example), there should be no duty to withdraw. 

Also, as pointed out by Faughnan on Ethics, what happens when the attorney in California withdraws and a new attorney is appointed to the representation of the insured.  The same thing will happen again, and that new attorney will have to withdraw.

You can read the opinion here.

Hot potato doctrine applied in Mississippi

The Law for Lawyers Today blog is reporting on a recent case applying the "hot potato doctrine" in Mississippi.  You can read the story here.  The case does not seem to add much to what we already know about the doctrine other than the fact that the case did not quite involve the typical scenario in which the doctrine applies.

Typically the hot potato doctrine applies when a lawyer drops a current client in order to take on a new client.  In the Mississippi case, the lawyer took on the new client and then dropped the current client.   Thus, in this case what the lawyer did was enter into a concurrent conflict for a short period of time and then tried to resolve it by dropping one of the two concurrent clients.  In other words, the doctrine is usually applied when a lawyer drops a client in order to avoid entering into a conflict, while here the lawyer dropped a client in order to remedy a conflict he was in already.

Another court abandons the use of "appearance of impropriety" as a disciplinary standard

The Supreme Court of Kentucky, like many other jurisdictions, has used the notion of "appearance of impropriety" as a basis to disqualify attorneys in conflict of interest cases.  Recently, however, the court decided to abandon its adherence to this standard concluding that "in deciding disqualification questions, trial courts should apply the standard that is currently in the Rules of Professional Conduct, which at this time requires a showing of an actual conflict of interest.” The case is called Marcum v. Scorsone (also available here).  The Legal Profession blog has more here.

This is a good result.  I have never liked the use of a standard based on an appearance of impropriety which is such a vague and subjective standard.  Now, if we could only convince courts to stop talking about the "image of the profession"!  But that is another story.

In terms of the appearance of impropriety, now there are essentially three approaches:  some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own. 

The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to a standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite.  See Rotunda and Dzienkowski, Professional Responsibility, A Student's Guide (2012-13), p. 20, stating that charges based on allegations of appearance of impropriety have increased at a rapid rate.


 

When Does Advice to a Client Violate an Attorney’s Ethical Obligations?

"Many attorneys have experienced situations in which a client has sought advice about proposed actions which “push the legal limit” or are even clearly illegal. How far—if at all—may attorneys go in assisting a client to engage in questionable activity?"

This is the introduction to an excellent short comment published in the most recent New York Legal Ethics Reporter.  Go here to read the full article.

Minnesota Supreme Court has remanded the order disqualifying Covington & Burling in a case I have been writing about for almost 2 years

Back in August of 2012 I first reported on a complaint filed by 3M Corp. against the law firm Covington & Burling alleging that the firm had dropped 3M like a hot potato in order to represent the state of Minnesota in a case against 3M.  Covington argued that it was no longer representing 3M by the time it agreed to represent the state.  I posted my comments on that claim here. 

Meanwhile, aside from that lawsuit, 3M moved to disqualify Covington in the case in which it was representing the state against 3M.  I posted my comments on that here.  Although 3M claimed a violation of the hot potato doctrine as the basis for its motion, the court decided it on different grounds.  The court agreed with Covington that 3M was a past client, rather than a current one, thus making the hot potato doctrine irrelvant, but agreed with 3M that Covington should be disqualified for violating the rule against conflicts of interest as they relate to former clients (rule 1.9).   I commented on the disqualification order here.

Covington and its client then appealed the disqualification order and I wrote my thoughts on their arguments here.  I argued that once the court finds that the past representation of 3M and the current representation of the state against 3M are substantially related, Covington's arguments are relatively weak. 

In July 2013, the court of appeals affirmed the disqualification order, but Covington then appealed to the Minnesota Supreme Court.  For my post on this go here, which has a link to the opinion itself.

Now, almost two years after the affair began, the Minnesota Supreme Court has reversed and remanded the case holding that the lower court did not make enough findings to support its conclusion that the cases were substantially related.  This does not mean that Covington will not be disqualified; only that the court needs to make further findings to determine if it is justified to disqualify the firm.  However, the opinion suggests some of the factors it things should be considered and, in my opinion - for the reasons I argued in my post on the appeal to the appellate court - those factors will support Covington's position more than 3M's motion.

The Legal Profession blog has a note on the decision here.  Thanks to the Legal Ethics Forum, you can download the opinion here.

Book review and discussion of lawyers' roles

JOTWELL has a good book review of W. Bradley Wendel's Lawyers and Fidelity to Law (Princeton University Press, 2010).  I have not read the book, but enjoyed the short review which summarizes the philosophical debate about the justification of the duties of lawyers toward their clients.  As the review explains, "several moral philosophers, and a few lawyers, characterized legal representation as comprising two overarching principles.  The principle of neutrality, they said, demanded that lawyers represent clients or causes they may disagree with morally. The principle of partisanship demanded that they fulfill their client’s wishes to the limits of the law. Provided they fulfill these tasks faithfully, they were morally absolved on the grounds that the role they perform is itself good. . . . Despite some spirited justifications, and more nuanced rejoinders, the balance of debate moved on to the consequences of such a conclusion and the steps that should follow."  

Wendel's book revises the issue of the standard conception of the lawyer’s role.  According to the review, his position is that the message that lawyers are slaves to clients’ wishes is not one that anyone concerned with the integrity of professional values wants to convey, while admitting that the profession's underlying rationale has to be the autonomy of clients.  To reconcile the conflicting views, Wendel argues the proposition that it is not fidelity to clients that is the underlying justification of the lawyer’s role, but fidelity to law itself.

Go here to read the full review.

Court affirms disqualification of Covington & Burling

Last year I posted a few comments about a case in which 3M Corporation sued the law firm Covington and Burling arguing that the law firm violated its duties to the client by operating under a conflict of interest.  See my initial post on the case here.  The lawsuit alleged that the firm had decided to represent the State of Minnesota against 3M in a case that was substantially related to the representation of 3M in another case.  3M also filed to disqualify the firm from representing the state in that case.  I commented on the allegations here and here.  Eventually, the court granted the motion to disqualify and the firm and the state appealed.  That appeal was decided last week when the Court of Appeals affirmed.  You can read the opinion here.  (Thanks to the Legal Ethics Forum for the link).  You can read a comment on the case here.

Advice against public policy

As everyone knows, it would be unethical for an attorney to assist or advise a client to commit a crime or a fraud.  But did you know it may be unethical to assist the client engage in conduct that a court might consider against public policy?  This is the conclusion of a recent case from Indiana in which the Indiana Supreme Court held lawyers could not assist or advise clients in negotiating away parenting time as a means to elimate the obligation to pay child support.  The court found such notion to be "repugnant and contrary to public policy" and held that attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. The case is Perkinson v. Perkinson and it is available here.

Thanks to the Legal Profession blog for the link.