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Ethics for In-House Lawyers: Part I

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Ethics for In-House Lawyers: Part I

In-house lawyers are subject to the same ethics rules that govern all attorneys, but some attorneys become in-house counsel with the mistaken belief that legal ethics rules will be less problematic for them. This may be because they only represent one company and thus have few clients, or they act in a capacity other than a lawyer, for example, as vice president of a company. This program will introduce important ethics principles and rules that in-house counsel should be aware of. It will cover the Rule 1 series of the ABA Model Rules of Professional Conduct.

Transcript

Hi, my name is Jack Tanner. I'm a lawyer with Fairfield and Woods in Denver, Colorado. I've been on the Colorado Bar Association Ethics Committee for about 25 years now, and I'm a past chair of the Ethics Committee. In my day job, I'm a complex commercial litigator here in Denver at a full service firm. But this is what I do regarding ethics. I find it very interesting. I particularly focus on ethics for in-house lawyers, and I started speaking and writing about ethics for in-house lawyers more than 20 years ago. And it displayed to me a bias I have, which I always disclose at the beginning of my presentations. And that's this. Most of the speakers on ethics have what call are called a professional responsibility practice. They defend grievances, they defend malpractice actions. And when things get really sticky, they defend criminal actions against lawyers. And I don't do any of that. I'm a commercial litigator. I find ethics interesting. I'm on the Ethics Committee. I give clues about it. And that's about it. So what I noticed when I started giving presentations, especially panel presentations, I noticed that I was giving much more conservative advice than the other people. The other 3 or 4 members of the panel would be talking about something being in a gray area and multi-factor tests and very complicated issues. And and I was kind of sitting at the end of the table waving my hands, saying, no, no, no, don't do it. You cannot do this. And after about the second or third time this happened, I pulled one of my panelists aside and said, What? What do you mean gray area? This you can't do whatever it was. And I'll never forget this. He said, No, no, no, Jack, you don't understand. Next week or next month or next year, I'm going to get hired by somebody who did exactly that. And I have to argue the conduct is in a gray area or I've given up my defenses. So that's when the the bulb went on over my head. And I realized that because I don't have a professional responsibility practice, I can be a lot more kind of objective about some of these issues. So my goal is to try to give you a bright line that if you stay north of it, you will be fine. I don't I'm not going to defend you if you get if you get in a sticky ethical situation. I don't do professional responsibility defense. So this is kind of a disclaimer I do at the beginning because my advice will be more conservative than you hear from some other people. Okay. So today we're going to talk about ethics for in-house lawyers Part one. And this is just the introduction scope and the rule one series. There's going to be a second there is a second part to this, which covers rules two through the end. But today we're going to start with the beginning through Rule One. Now the ethical rules are state by state. We're going to use the ABA model rules for today. But for any particular issue, if something catches you and causes some concern or piques your interest, go look at your own state rules because I don't think any state has adopted the ABA model rules in their entirety without making any changes. Every state makes at least a few changes, so don't. If you hear something, don't necessarily panic. Um. Check your own state rules. So we're going to give you a little bit of history of in house counsel, and this has happened during my career. I started practicing law in 1987. Um. And I'd only practiced a few years before I went on the Colorado Ethics Committee. But the numbers of in House counsel are really just growing astronomically. It used to be in house counsel was a job, a sort of a senior corporate lawyer went into near the end of usually his career, maybe became the general counsel and secretary of a company, kept track of the minutes of the company. Main job was probably liaisoning with outside counsel. In 2020, there were over 115,000 in-house attorneys in the US, and that's a three fold increase since 1997 when I first started lecturing on on this kind of stuff, which was in about this period of time, I think about 1996 is when I started. The first year when I was trying to give a seminar on this, it was really a bit of a challenge. I did a all states, all federal search looking for ethical issues or malpractice issues for in-house lawyers. And I think I only found 12 in the entire country. The first case involving an ethics issue for an in-house lawyer was from 1989. And this was a case involving unethical conduct by outside counsel. So it didn't really involve the in-house counsel's ethical issues. The first case I could find that involved an in-house counsel's ethical issue was from 1991, but that was after he'd left his in-house job and regarded the scope of his conflict when he was now outside counsel again. The first case I could find involving an ethical issue for an in-house lawyer was in 1995. The first malpractice case I could find against an in-house lawyer was in 1998. Now, keep in mind today, if you go on Westlaw or Lexus, there are hundreds or thousands of conflict of conflict, ethical and malpractice cases involving in-house lawyers. This is an area of law that is growing very, very quickly. One thing to keep in mind when you're in house counsel is that you wear two hats. You need to know the rules of ethical of ethics as they apply to you because you're a lawyer and you have to abide by the rules of ethics, but you're also often a client representative. And it's no secret one of the reasons I do this is to meet in-house lawyers, and maybe they'll hire me for something, some litigation sometime. But you're often the the client constituent that the outside lawyer deals with. So you should be aware of what what the outside counsel, the rules that apply to the outside counsel are. Okay. Now to the actual rules, preamble and scope. Now, traditionally, the the rules of professional conduct and before that the code of professional responsibility expressly stated they did not set a standard of conduct and they were only admissible in ethical matters. They were not admissible in any kind of private action, such as, for example, a malpractice case. Well, that changed with the Ethics 2000 set of rule changes. Comment 20in. The preamble to Scope says. Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyer's violation of a rule may be viewed as may be evidence of a breach of the applicable standard of conduct. So most commentators agree what this means is the rules of professional conduct can be directly admissible in, for example, a malpractice case in, for example, a shareholder derivative suit against an in-house lawyer, whereas before the rules were not directly admissible. So to argue that a violation of the rules constituted a violation of the standard of conduct, basically the plaintiff had to bring in an expert witness, and the expert witness would opine that the conduct was in violation of the applicable standard of care. And one of the bits of evidence the expert would point to is, well, this was a violation of the rules or the former code, but now violation of the rules can be directly admissible in other cases, including malpractice case. So the bottom line for this is the stakes just went way up. Whereas before, if your own client didn't grieve you, no matter what you did, you were probably okay. That's not necessarily true now. Okay, Now we're going to talk about rule one, which is terminology. The. The definition of firm includes an in-house legal department. This is expressly included in Rule 1.0, and we're going to talk later. Actually not. Well, actually, it is later today. Still part of rule one. We're going to talk about, though, there's only one substantive place in the rules that refers to in-house counsel, but it echoes this definition that for purposes of the rules of professional conduct, a firm includes an in-house legal department. A second definition Informed consent. Informed consent denotes the agreement by a person to oppose course of action after the lawyer has communicated adequate information and explanation about the material risks and available alternatives. Now, this is a very big change in the Ethics 2000 rule changes. Prior to this, the term used here was consent after consultation, and I was actually on the subcommittee in Denver that updated some of our prior opinions with the rule changes to decide if if consent after consultation was materially different than informed consent. Did we have to change some of our opinions? And I was actually a little surprised at what a huge change this was. The prior term consent after consultation was a pretty low bar and basically the lawyer just was allowed to tell the client enough to get a yes and then stop. And that's what happened a lot with conflict waiver situations. Informed consent is a much higher bar and specifically informed consent. Was based on an Securities Exchange Commission model where in retrospect, after everything goes bad and the SEC comes back to look at a stock offering, they say, well. Was everything that a reasonable investor would want to know disclosed, and this is viewed in 2020 hindsight. And it can be very bad for the person that wrote the offering memo memorandum. That's the model that was used to come up with the the definition of informed consent. So what it specifically requires is adequate information and explanation about the material risks and the reasonably available alternatives. So if you're trying to get a conflict waiver, which we'll talk about later, there's actually a good bit of conflict issues that relate to. In-house lawyers. When you have to get informed consent from a client, perhaps from a prior client also, it's a it's a higher bar now than it used to be. So you really need to be aware of this. Okay. The definition of partner. It isn't just somebody who has an equity ownership in the firm, which typically would exclude in-house lawyers, because even if you have stock in the company you represent, you probably don't have stock in the per se legal department. Um, but. It. It includes. Parties for the definitions that matter here, for the rules that matter for this one. It includes someone who has comparable level of authority. So even though you would say I don't fit under this definition of partner, not today, but in part two, when we're talking about the Rule five series, um, the supervisory duties of a partner. It can apply to you if you're at a senior level and you supervise others. Okay with all that throat clearing out of the way, we're going to talk about the rules themselves. The first rule is you have to be competent. If you don't know what to do and you don't know how to do it, you there's no one available to train you to do it. You should probably pass on the engagement and you may want to use this on pushback sometimes from your bosses. One of the biggest complaints I hear from in-house lawyers is they think, because I'm a lawyer, I can do everything from antitrust to zoning A to Z. I have to know how to do a securities offering. I have to know how to go litigate. I have to go how to do a real estate deal. And that's just probably not possible for most lawyers. And so if you've got to push back to the the owners or your bosses and you're in house, this is the rule you want to start with is 1.1 is, you know, it's kind of an ethical violation, what you're asking me to do because I don't know how to do a securities offering. I need to hire outside counsel. I don't know how to do this piece of litigation. I need to hire outside counsel. And this is the first there's a reason this rule is is the first rule. I'm going to tell you about an ethics opinion from 2007 that actually involved outside counsel but is very applicable to in-house lawyers. Essentially, this was a two person real estate firm in San Diego, and by coincidence, they had a client who got sued in a patent litigation matter. And they asked this. The client asked this two person real estate firm if if they could help with the patent litigation matter and being good lawyers, of course, they said, sure, we can help with that. And they essentially outsourced the case to India, to a an Indian patent litigation support firm. In case you don't know, India has more unemployed lawyers, engineers, I'm sorry, unemployed engineers than the United States has engineers total. And a lot of those engineers work and do patent litigation support. English is their native language. They're engineers. And there are hundreds of companies in India that this is what they do. So this two person real estate firm outsourced the entire case to India. The Indian patent litigation firm drafted the answer. They drafted the Rule 26 disclosures. They drafted the written discovery When they got the answers to the written discovery back. They outlined the deposition that needed to be taken. Now, one of the American lawyers took the deposition, and then when the Indian law firm got the transcript back, they drafted a summary judgment motion that won. So they they won the case on summary judgment. This two person real estate firm won the patent litigation case on summary judgment. Um, according to the opinion, literally at the celebration dinner, the client said, Hey, how'd you come up with that theory that won the case? And it was then that the. Uh, that the lawyers kind of confessed that they had outsourced the case to India. They had hired this Indian law firm to do all that work. Well, the client, which had just won the case on summary judgment, grieved them, and they were suspended from the practice of law for two months. I think one was suspended for two months and one was suspended for three months. Um. And he and the the grounds for the suspension were multiple. But the main one was that they weren't competent. They were in no position to know if the Indian company was giving them good advice. It turned out it was good, but they could have easily hired somebody who was not competent in this area. They wouldn't have known that they were making bad arguments. They could have lost the case just as easy. And because they knew nothing about patent litigation as real estate lawyers, that violated Rule 0.1. Point one, they were not competent again, even though they won. So the way this applies to in-house counsel, it seems to me, is pretty plain, is again, if you're a if you are a real estate lawyer in private practice and you went in-house with a big company and the boss comes to you and says, hey, you're a lawyer, do this patent litigation case or whatever. You get to push back and say, I can't. I'm not competent in this area. We need to hire somebody on a temporary or permanent basis or I need to hire outside counsel because I am not competent in this area of the law. And, you know, there's a reason this is rule one. Point one. This is important. And again, the two lawyers involved in this real case had had won. They won the case and they were still suspended from the practice of law. Hey, rule 1.2 Scope. As a general rule, the client decides the goals. The lawyer decides the means and methods. That's why you. If the other side calls up and asks for an extension of time, you can say yes without talking to the client. I've had a case where the lawyer on the other side called me up and said, you know, literally, I have cancer and I've got to get treatments. We need to delay trial. I called the the client and they said, No, you can't agree to that. And I said, Well, I did it anyway because I said, the judge is going to grant it and we'll look like idiots for opposing it. And that's kind of a means and methods. That's not a goal. The goal is to win and this is the way to do it. A second part of the scope rule is you cannot advise a client to commit a crime, nor help a client commit a crime. Now, there's an exception for this regarding marijuana. In some states such as Colorado, this kind of blew up in Colorado's face as soon as we this the state constitution was amended by a popular referendum to allow marijuana. The Ethics Committee came out with an opinion and said because it's still a federal offense, a lawyer cannot be involved. And the opinion said, you know, not only can you not advise a client how to buy or sell marijuana, but one of the examples we use in the opinion was as a you can't advise a landlord who's renting to a marijuana dispensary as a tenant. Just advising the landlord is is actually a federal crime, so you can't do it at all. So shortly thereafter, the Colorado Supreme Court amended the ethical rules in Colorado as an exception for marijuana. But as a general rule, you cannot advise a client to commit a crime nor help the client do so. And I'm going to note I'm going to compare this to Rule 8.4, which is criminal conduct by the lawyer. This is a much broader rule. Under 8.4 criminal conduct by the lawyer is only also an ethical violation if it is, they used to say, involves moral turpitude. It affects on the lawyer's honesty, trustworthiness or fitness to practice law. Rule 1.2 A prohibition. You cannot advise a client to commit any crime, period. Okay. Diligence and communication. You have to keep after a matter and you have to prize the clients as to the material developments in the in the matter. This is something else. This was a lesser important reason that the San Diego firm got suspended from the practice of law. But it's mentioned in the opinion is that g outsourcing the whole case to India is a material development. And you should have told the client that that's what you were doing. And that was another thing that got this Indian law. I mean, the San Diego law firm in trouble is the fact that it didn't tell the client of a material development in the case. Okay. These and conflicts of interest under rule 1.5 and we're going to jump to 1.8 and talk about these two rules together. Um, 1.5 says a lawyer shall not make an agreement for charge or collect an unreasonable fee. Now rule 0.81.8 has to do with conflicts of interest and prohibited transactions. But it used to be called prohibited transactions. It's now called special circumstances. I think certain circumstances and what 1.8 says is a lawyer shall not enter into a business transaction with a client or acquire an ownership, possessory security or other pecuniary interest in a client, unless there are some exceptions. And one is the transaction is fair and reasonable. Two is the client is advised in writing and given time to have independent counsel review the the matter. And then third, the client gives informed consent confirmed in writing. So we're going to give you a hypothetical. Give me a bunch of hypotheticals we talk about today. But and this is just really a for you to start thinking about what I'm saying instead of just having to listen to me, I'm going to make you think for a bit. Okay. So here's the first hypothetical for people want to form a new company. One of those people is a lawyer. The lawyer says, I'll do the legal work and I'll take a 10% stock in lieu of my fees. The everybody else says, Great, what a great idea. We don't have to pay you. And the lawyer says, Hey, make sure you get your own lawyers to review this transaction before I'm done. So does this raise any ethical issues? And the answer is yes. The lawyer did not advise the client in writing to have another lawyer review the transaction. The rule specifically says that this advice has to be given in writing. And there's this case right on point. Otis against Cognitive Corp, which is a case out of California. Although the lawyer involved was in Minnesota, the deal was in California. Um, and in that case, it was pretty much like the, the facts I gave. Um, there was no question that. The lawyer told orally the other members to get their own lawyer to review the transaction. That was undisputed at trial. Nevertheless, the court held the lawyer's interest in the company void for violation of Rule 1.8 because he didn't advise the clients in writing to. I have another lawyer look at the deal. So the lawyer did all his work, and then they didn't give him his share and he sued to get his share of the company and it was found he could not get it because he had violated, uh, rule 1.8 by not advising the client in writing to have another lawyer review the transaction. Okay. We're going to do a second hypothetical here. Let's assume that for whatever reason, the lawyer went ahead with this transaction and he did a little work. And as a result, he you know, the company hits big. And for doing his little work, his stock is worth $4 trillion. And not not that I'm bitter as a litigator when I see transactional lawyers get getting these kind of fees. But that's that's the hypothetical. So the question is, is this an unreasonable fee? Under rule 1.5, and is this transaction fair and reasonable to the client under rule 1.8? So how do you approach it as to whether, you know, when he did this work? It was probably worthless. He's getting 10% interest in a company that hasn't even formed yet. That's worthless. Later on, it's worth a lot. So rule 1.5. Typically the analysis under Rule 1.5 looks at reasonableness at the time the agreement is made, just like other contracts. This is why, you know, a contingency fee lawyer can get 33, 40, 45% of recovery. And, you know, it may well be the lawyer only sends a couple letters and gets a big settlement. And that's generally considered reasonable because it could have been the lawyer had to take the whole case to trial and got nothing. So you look at the analysis at the time the agreement is made. So the argument would be that the lawyer trying to keep his fee is 10% of zero is zero, and therefore I was a reasonable fee. Now, the problem with this argument is rule 1.5. Again, the rule on fees lists specific factors that a court is supposed to look at and considering whether the fee is reasonable. And those specific factors can often only be viewed in hindsight. For example, one of the factors is time and labor required. The novelty and difficulty of the questions involved the likelihood that the lawyer had to give up other work to take this. What are the fees customarily charged for in the legal community for similar services? What about the results obtained? All of these things can only be looked at. After the fact. So although in theory, you look at the reasonableness. Be at the time the fee is entered into. The fee agreement is entered into. If you look at rule 1.5. The factors that are listed are a lot of them cannot be judged until after the case is over. So going back to our hypothetical, somebody does some formation work, maybe registers some trademarks or copyrights or patents which end up being extremely lucrative and the company hits it big and his stock is worth a bundle. Was that an ethical violation? Was it an unreasonable fee under Rule 1.5, or was the transaction fair and reasonable to the client? You can't really tell This would be this would be, I think, an open question. Obviously, with my absurd hypothetical of $4 trillion, that would be an excessive fee. But the argument is there and it can be made both ways that you look at the value of a. Stock interest in a company at the time. Uh, it's granted, which may be much less than later on once the legal work is done. Um, okay, we're going to vary the last hypothetical just a little and say instead of doing the formation work, the lawyer is already in house with the client and the client says, Hey, you know, we've been doing this startup and I really appreciate your help. And we've we've hit a bump in the road. We didn't get the angel level financing we thought we were going to get. And I just don't have the cash to pay you the salary you're supposed to be getting. Um, but I'll tell you what I'll do if you hang around and finish that work you've been doing. I'll give you 10% of the company. And the lawyer says, Sure, that sounds like fair. I'll give that a shot. Sign here. Does that change any of the ethical issues we've already talked about? Really not. The fact that the lawyer is already in house at the time he gets offered the equity interest in the company versus somebody outside being formed the. Being asked to form the company does not change the analysis. There is no exception under Rule 1.8. For a lawyer that's already in house. And I will tell you, this case against Rosefield is my favorite case in the history of the world. And here's why. Again, when I first started doing these talks, it was probably probably in the the late 1990s. And I would try to educate lawyers in house lawyers and say, you've got to be aware of these issues because these could come back to bite you. Please be careful. Um, and I would get considerable pushback from lawyers that would say, no, it's just different because I'm in house. Those rules don't apply to me. Um, and I'd say, well, show me where in the rule it says, because you're in house, it doesn't apply. Well, we're just different. It doesn't apply. Also in 2013, that argument was made in the case against Rosefielde case. Um, and it. It really changed things. Just the or I should say it made my presentations a lot easier because the cake said exactly what I'd been saying. Essentially, in this case, Mr. K was a Wheeler dealer who was constantly forming and dissolving and creating companies and trusts. And Rosefield was his lawyer. Who was. Constantly doing those things. He's forming the company, He's forming the trust. He's acting as a trustee. He's dissolving the company. He's doing all this stuff at the direction of Mr. K, and in one case, Mr. Rosefield had formed a company and given himself a 5% interest in the company. Now, this was not a surprise to Mr. K. That is what Rosefield had done before and at the time K was fine with it. K said it was okay that he did that. Later, K and Rosefield had a falling out and there's, you know, massive litigation between them. And it comes out that Rosefield did not advise Mr. K in writing to have another lawyer look at the transaction before he gave himself 5% and he did not. Uh, give Mr. K time to have another lawyer look at it. And he made these arguments at trial, as he said, Wait a minute, I'm in house. It's just different for being in house that that regular rule doesn't apply to me. And the beloved New Jersey Superior Court Appellate Division later affirmed, by the way, by the New Jersey Supreme Court, said there is no rational basis to make that argument. Of course, Rule 1.8 applies to in-house lawyers. Okay. And Kay is now not the only case applying fee related rules to in-house lawyers. In Missakian case here cited from California in 2021, a lawyer was in-house. The company was locked in a giant piece of litigation, and the lawyer and the company struck a deal that, depending on the outcome of the litigation, his bonus would vary with the basically the outcome of the litigation. They ended up doing very well at the trial. Uh, and but then the company didn't want to pay the lawyer his fee that had been agreed to by the company and. The lawyer sued to collect that percentage fee. The lawyer lost. The court held that because it was a percentage, it was a bonus based on a percentage recovery that was technically a contingency fee, and it had to be in writing. Most states require that that contingency fee agreements have to be in writing. And again, the lawyer argued because he was in house, somehow that rule did not apply and the lawyer lost. So just because you're in house does not mean these rules, especially 1.5 and 1.8, do not apply to you. They apply to you. Okay. So we're going to vary our hypothetical a little further. Um, this is where the company. This is the start up company that's running out of money. They offer it to the lawyer and the lawyer before he signs the stock agreement to get 10%. He advised the client in writing to have another lawyer look at the transaction and waited a week. But the client never got that second opinion. Does this change the ethical analysis if you give the client time to get the second opinion, but they don't. And the answer is it doesn't change the procedural analysis. He gave the client written notice and gave the client time to get a second opinion. The fact that client chose not to follow that advice. Does not reflect badly on the lawyer. You can't make a client get a second opinion so procedurally. The lawyer is protected. Now, this could be a substantive violation because, again, we don't know whether this is a not unreasonable fee or a reasonable fee. So the client's failure to get a second opinion won't affect the reasonableness analysis, but it does affect the procedural analysis that at least the lawyer went through the right steps. Okay. So we're going to vary this. Hypothetical a little further and say instead of being offered stock, the lawyer is just offered stock options. So. Does that change the analysis? So what we're going to assume for this hypothetical is that this is a publicly traded company and the stock options are at the current trading price, which means they're technically worthless. Right. Because if the stock is trading on the New York Stock Exchange at $500 a share and anybody can go out and buy that stock for $500 a share offering the lawyer. Uh, a stock option at $500 a share is technically worthless. But like a lot of times, these options vest over time. Let's say the company did really well. By the time the options vest, the stocks are trading at three times that price. Does that make the fee more or less proper? Um, and there's no clear answer to this one. Again, it's the same. Was it reasonable at the time made versus at the time collected the ethics 2000 rule changes. Rule 1.5 Change from a lawyer's fee shall be reasonable. That was the old terminology. The new terminology is a lawyer shall not. I think it's agreed to charge or collect an unreasonable fee. So under the ethics 2000 rule changes, there's a much better argument that if you get stock options, they. They're viewed at the time they vest. They're valued at the time they vest rather than at the time they're granted. Although, again, this is not clear. Now, the danger here is generally not a grievance from the lawyer that did the deal, I mean, from the management that did the deal. Typically, the management is going to stand behind the deal. They did, although both the case and the missakian cases, it looks like the the owners went back on their word. But that's that's going to be a rarity. The real danger is a shareholder derivative suit from a disgruntled shareholder, because if the lawyer, you know, lawyer and other management people cash out some stock or stock options just before the company tanks. Against all the management. The shareholder derivative plaintiff can say they acted unethically, but against the lawyer they can specifically say and he violated the rules of professional conduct because he took an unreasonable fee or because he didn't comply with the steps of 1.8. So this is the weird advice I'm giving you. If you're in in-house lawyers, if you get offered stock or stock options just as part of your year end bonus or whatever, they were really happy with you. Here's some stock or here's some stock options. You need to understand that that is a business transaction with the client under Rule 1.8. And what you need to do is advise the client in writing, Hey, thanks for that big bonus. Before I accept it, I'm going to tell you, you should have another lawyer look at it and make sure it's okay. Wait a week. They're not going to change your mind. You'll still get it. And you're protected against this extreme downside. If the wheels fall off later, there's a shareholder derivative suit. You can say, I complied with Rule 1.8. I advise the client in writing to have another lawyer look at the deal and gave him time to do so before I accepted that equity in the company. Um. As as I noted before this comment 20 suggests that the rules of professional conduct can be directly admissible in things other than disciplinary proceedings, and that include this shareholder derivative suit. Another aspect of rule 1.5 is a lawyer shall not charge an unreasonable amount for expenses. And this is what I'm going to go You're going to go inside baseball on where this came from. I remember being a clerk for the state Supreme Court in 1986 and reading the American Lawyer magazines, newspapers down in the basement law library at the Colorado Supreme Court. And I remember reading this article. It was called Economics, and it was talking about the practice of a law firm that not only charged its clients for the donuts and bagels that it delivered to meetings, but but marked up those donuts and bagels by 60%. And over time, this led to the first ever rule on cost. Prior to this, there had not been a rule on costs. And basically you can mark up costs a small amount or your clients, if you're in house counsel, your clients can mark up a small amount for cost, but it has to be an approximation of what's reasonable. If you've still got clients that charge you for photocopies and it costs them $0.19 to make a photocopy and they charge you 20, that's fine if it costs them $0.19 to make a photocopy. And they charge you a dollar. That's not fine. Okay. Rule 1.6 confidentiality. Okay. This is the most important rule in the rules of professional conduct. And it's also the most violated rule in the rules of professional conduct. You have to keep client information confidential. You're not allowed to talk about client information. Period. This is much broader than the old code of professional conduct. Code of professional responsibility that used the phrase confidences and secrets. And sometimes you still hear older lawyers talk about confidences and secrets. That terminology does not appear in the rules of professional conduct, with very few exceptions. And without client consent, you cannot talk about client business. It doesn't matter if it's already known to the public. This is a rule for lawyers. You cannot talk about client business. This can be avoided by informed consent. It can does not have to be confirmed in writing. If the client gives you consent to talk about client matters, to disclose client matters, and it rises to the level of informed consent, you don't have to confirm it in writing. You're okay orally on this one. There are some exceptions, and these are all generally permissive. There's only two places in the rules where you're required to disclose client information. So these are generally all permissive. One is. To prevent reasonably certain death or substantial bodily harm to is to prevent the client from committing a crime that's going to result in substantial injury where the client used your services. If you know the client is thinking about committing a crime that does not involve your services, that does not give you license under 1.62 to disclose that information. It's only if your services were used in the commission of the crime. Uh, to prevent, mitigate or rectify substantial injury to the financial interests of another. Now, this grew out of Enron hearings, and I don't know, of course, how many of you remember the Enron hearings, but I remember watching some of them on T.V. and there was a time these were hearings. And I think in front of the house, um, that they brought in some of the lawyers for Enron who stood up and raised their right hand and swore to tell the truth. And one of the questions is, where did all the money go? There was billions missing from the pension funds. Where did the money go? And those lawyers said, I cannot tell you because under rule 1.6, I the whatever crime has occurred has already occurred. So I will not be preventing a crime if I tell you where the money went. So I can't tell you. And in fact, they were right at that time. So this exception was added as part of the post Enron hearings, where it says to mitigate it or rectify financial injury, where the client, again, where the lawyer's services were used. So this this grew out of Enron. To secure legal advice about the lawyer's compliance with these rules. This is a great new ad also, because until the ethics 2000 rule changes, there was no exception for a lawyer to go get their own legal advice. Now, if you're at a big firm or you're in a big in-house department, there's probably somebody down the hall you can walk down and chat about with. And that's fine. That's not an ethical violation because the firm, of course. As an entity represents the client and you're not disclosing information when you talk to somebody else at your own firm. But if you're in a small in-house department, you are really in trouble. You probably had to go and give some goofy hypothetical to somebody, which of course, they'd see right through because you're an in-house lawyer, so they know the client you're talking about because you only have one client. So this exception for is a very good development exception. Five. Is to establish a claim and defense if there's a controversy between the lawyer and the client. So this has been this has been a rule for a while. This is not a new development. What is interesting right now, this is a hot issue as to what exactly is a controversy between the lawyer and the client. The the hot issue is what happens when and this happens to in-house lawyers as well. Some disgruntled client goes online and says, you're the worst lawyer ever. Um, and you know, makes false statements, statements about you. Can you respond without violating rule 1.6 is is being talked smack about online a, quote, controversy, close quote, under the meaning of rule 1.6. The majority rule is it is not. And you have to just take it essentially. You can't respond. Colorado, I'm pleased to say, follows the minority rule, which says, well, yeah, that's a controversy. If you think you did a good job and the client is publicly saying you did a lousy job, that's a controversy and you're allowed to defend yourself, but you can only defend yourself with absolutely required to correct the record. So you can't say, you know, I did a good job on that contract case. The client doesn't know what he's talking about. And besides, the client secretly drinks too much. That would be a violation regardless, because it's not needed to respond to the allegation. You did a lousy job on a contract. Another exception to Rule 1.6 is to comply with court order. Now, this is an interesting one because it turns many of these permissive exceptions we've been talking about into sort of mandatory exceptions, because the way it'll rise is this you're in court or you're at some hearing when you're under oath. And. The like the the lawyers in Enron, they said, I'm sorry, I cannot tell you because the ethical rules say I can't. But now there's an exception for a lawful court order which includes a subpoena. Um, so when the judge says, I hereby order you to answer that question, you cannot get out of that by saying it would violate the ethical rules because. The exception six says you have to talk to comply with the. Uh, with the rules of professional conduct. So this was a this was a, again, an exception that was added after Enron. One other change to to comment on Rule 1.6. Another exception is what we call the big firm associate exception. You're now allowed to. Run conflicts had a new firm you're thinking about moving to. It's not considered a violation of rule 1.6. And this is this really allows greater mobility of particularly associates is who it really matters to. Um but as a. Client putting on your client hat. You can override this if you if you expressly tell your lawyers that they are not authorized to use your name when they're shopping for a new job, that would override this exception to 1.6. It would not be an ethical violation. Um. Well. An express client direction would override this permissive exception. Guess is the way I'll phrase it. Okay. Want to talk about conflicts of interest. I know a lot of you went in house thinking you'd never have to worry about conflicts of interest again. You are wrong. It comes up all the time for in-house lawyers, and you probably need to think about it more than you do. Two types of conflicts directly adverse and material limitation. Now directly adverse clients are I'm sorry, directly adverse conflicts are rare for in-house counsel, but it has happened. Often happens when a lawyer does work for multiple related companies that are not all jointly owned. They don't have a common parent or where a lawyer does work for officers and directors of a company which is separate apart from the work for the company. Once you do legal work for somebody, that somebody is your client and doesn't matter. You don't get paid. Doesn't matter if you don't get an engagement letter, If you do legal work for somebody, that somebody is your client. Okay, Hypothetical number six. You do work for a parent and subsidiaries. They are mainly the subsidiaries are 90% owned by the parent, but not 100% owned. There's a new proposed deal that can be structured where the profit comes in at either the parent level or the subsidiary level. The CEO asks your advice on how to structure the deal. You've got a conflict problem because your counsel for both the parent and the subsidiary who are not, they don't have a uniformity of interest. You've got to go through the same conflict analysis that you would have gone through in private practice. If you have a conflict, which you probably do. You'd have to get written consent from both parties. Okay, hypothetical number seven. You do work for a company, an employee of that company, because their interests are aligned on a one off matter. For some reason, the lawyer and the I'm sorry, the employee and the company's interests are aligned. You do work for both later. The interests are no longer aligned on that matter. What do you have to do? Do you withdraw from representing the company? Do you withdraw from representing the employee? Do you withdraw from both or can you do nothing? This is based on a real case. You have to withdraw from both. And this is another this is a wonderful case with fabulous facts that could have been on a law school exam. So here's a situation. Uh, there's an accident on a factory floor. Mr. Ibanez witnesses the accident. The company does an investigation. Mr. Ibanez says, you know, it was the guy that got hurt. Fault. The company did nothing wrong. The guy that got hurt sued the company. And named Mr. Inez as a witness. The company lawyer, Mr. Plummer, went to Mr. Inez and said, Hey, do you want you got to be deposed and do you want a lawyer? At that deposition, the company will let me be your lawyer to defend that deposition. And of course Mr. Venus said, Sure, I'd like you to be my lawyer. So now Mr. Inez is Mr. Plummer's lawyer. Mr. Plummer is also representing the company because their interests are aligned. Literally in the hallway on the way to the deposition. Mr. Ennis says, You know how I said it wasn't the company's fault and the guy that got hurt, it was all his fault. That wasn't really right. And what is right is it was much worse for the company than I said initially. Mr. Plummer says to Mr. Ian is Don't worry, just tell the truth. You will be fine. Now, you would not think normally that would get a lawyer in trouble for giving advice like that. Just tell the truth. But but the way it happened was, at his deposition, in fact, Mr. Inez changed his story from what he said in the initial investigation, said it was the company's fault. Based on that sworn testimony, the company reopened. The DEP reopened the investigation and fired Mr. Irons for lying during the initial investigation. So Mr. Irons sued the company, of course, and sued Mr. Plumber and Mr. Plumber tried to get the matter dismissed, saying he wasn't my client. And the court said, No, no, no, he was your client. You agreed to represent him at the deposition. It doesn't matter that he wasn't paying you, that the company was paying you. It doesn't matter that you didn't have a formal engagement letter. You agreed to represent him. He was your client. And basically the takeaway message here is. As soon as Mr. Ian has changed his testimony and he was no longer saying the interests of the witness and the interests of the company were aligned. Mr. Plummer had a conflict then and what he had to do was to say, okay, I cannot be your lawyer. I cannot be the company's lawyer. He goes to the deposition and says, We have to continue this deposition. Mr. Yanez needs to get separate counsel. The company needs to get separate counsel. I have a conflict and I have to withdraw. That's what he should have done and that's what he got in trouble for not doing. Similar kind of conflict arose in the all first case out of the Third Circuit. This is one where. The in-house lawyer gave legal advice to the officers about a personal matter. Once he did that, he owed them fiduciary duties like any lawyer owes a client. Once you give somebody legal advice, they're your client. So Later. Um, Mr. Dinger decided the advice he'd gotten was bad. He sued both the company and the lawyer. Um, the company and the lawyer won on summary judgment on the merits of the case. The court said the advice had been good. Um, but it was clear from the opinion. That a duty was owed. So this is another way you can get a conflict of interest as an in-house counsel is when the officers, the owners ask you for legal advice. It's not technically the advice to the company. So be aware of that when people ask you questions like that. Um, you also need to be sensitive to the other kind of conflict, which is a material limitation. Conflict. Material limitation, conflict. Exactly what it sounds like something is going to materially limit your ability to give candid advice to your client. You know, a great example might be, Hey, the lawyer on the other side is my brother. I'm not going to be adverse to my brother. Um, that would be a material limitation advice. It might be, uh, you know, a hot, hot button political issue. There's all kinds of litigation going on now involving politics, and there are lots of lawyers that would not take, you know, one side or the other in some of the litigation pending because they feel strongly about the underlying issue. Those are examples of material limitation conflicts. So let's go back to the idea of. You've got stock options, companies considering two courses of action. One, the stock will spike in the short run, but it's risky in the long run. The other is sort of slow and steady wins the race, but there's no spike. You've got stock options. The company comes to you for advice on which course of action to take. Does this give you a conflict of interest? And the answer is yes, if those concerns are material. This is a classic conflict of a classic material limitation conflict. So if you own stock in a company, be aware that this this can raise. Material limitation conflicts for you and material limitation conflicts are just like directly adverse conflicts. They're real conflicts. You got to go through the same steps. You've got to get informed consent from the client and it must be confirmed in writing. So in this hypothetical, you might say, um, you know, boss, you want my opinion on which of these courses to take, I'm going to disclose to you that I've got a bunch of stock and I want to retire next year. So I really want that spike because it's going to spike and. When it spikes, I'm going to sell out. And so my advice might not be good because I want this bike. You disclose that and the client waves it, you're okay, but you got to disclose it. Um, consent. They no longer use the term waiver. We now say consent. Consent confirmed in writing means one of two things. Either the client sends a writing to you, email is fine, text is fine. Anything that you can track down later? Yes, I consent. Um, a second confirmed in writing is you have an oral conversation with the client and then within a reasonable time afterward you send the confirming email, say, Yeah, Bob, we just talked about this and you consented to my representation under these circumstances. Confirmed in writing does not mean what I call the assumptive email where the the lawyer sends to the client an email that says, Hey, we've worked together for a while and I don't think you'll see a problem with this. So I'm going to go ahead, let me know if I'm wrong. That is not consent confirmed in writing because you're not confirming anything. You're just assuming things. Okay. Rule 1.9 Duties to former clients are basically the same duties to current clients. If the matter is, quote, substantially related, close quote to work from a. To work you did for the former client. You still need to get a waiver confirmed in writing. If the two matters are not substantially related and it's a former client, then you're good to go. You don't have to do anything. And in fact, you shouldn't disclose about your prior work for a different client. Um. You can use but not disclose information of a former client. If the information has become generally known and the client is not disadvantaged by it. This is not disclosure. This is just use. So here's a hypothetical While representing company A, you work on a contract with company B, Company B, some press, they hire you and hire you in-house. Later, there's a litigation between Company A and Company B over the very contract you worked on for company A while you were there. Okay. Remember, we've talked about the definition of firm included in the House department. Okay. This is the only substantive definition. I'm sorry. This is the only substantive rule that talks about in House lawyers. And it says it reminds you that the definition of firm. Includes an in-house department. So not only is the attorney that worked on the matter for Company A and now works for Company B, not only is he disqualified, but the entire in-house department is disqualified. Now a confidentiality wall can work under some circumstances, especially if you're moving from government work into private practice. It's got to be timely. It's best to put it up before you even start work. Organization is client. This is where we all live. Our clients are generally businesses. The rule says if the client. I'm sorry. Yeah, the client constituent gets confused and start thinking you're the client's lawyer or the constituents lawyer. You've got to explain it to them. Um, so that is, uh, back to Mr. Dinger's problem. Actually, Ginger was the client representative. The lawyer should have said, you know, I'll give you this legal advice, but I'm not your lawyer. Um. And he didn't do that. And that's what led to that problem with giving advice to the officer situation. Okay. Rule 1.13 requires up the ladder reporting if you are. If the client is engaged in an unlawful course of action or if the constituent you deal with is violating its duties to the client, then you've got to report it up the ladder. And it says if that doesn't result in change conduct, you've got to keep going up to the highest authority within the organisation if the conduct continues. That's generally viewed to be the board of directors. If at the latter reporting does not work, you may report outside the organization. If you think it's necessary to prevent substantial injury to the organization, it's permissive. It's not mandatory. So this ties back to 1.6. If you do this, you'll almost certainly get sued. So make sure it's worth it. If you get fired for up the ladder reporting, you got to report that up the ladder, which I think is kind of weird. But you do. I will say in Texas, you don't. This is one of the rules. In Texas, they said if you get fired for reporting up the ladder, you can head to the bar and have a drink. You are done. You have no more obligations to that client. Okay. If you get fired for up the ladder reporting or any of this, do you have any recourse? So we're really talking about being a whistleblower. Um, numerous federal cases allow whistleblowers to sue for monetary damages, but not reinstatement regardless of the ethical rules. This is under standard. Supremacy Clause analysis. The federal laws protecting whistleblowers trump the state laws on ethics. Now, in state law, it's a lot more complicated because you've got a state law protecting whistleblowers and state laws of ethics. So it's up for the to the court probably to decide to the extent those conflict. Who has the stronger public policy. One case here, the case out of Utah held that an in house lawyer fired for internal whistleblowing had no claim because the public policy favoring the client's absolute right to choice of counsel was stronger than the public policy in the statute that protected whistleblowers. But that's just Utah. That was what Utah decided. Based on Utah policy, any state might look at this differently. So if you get fired, you know, you think you get fired and you have a whistleblower claim, you want to try to bring that as a federal claim because the federal law is going to trump your state ethics rules. If you bring it as a state law claim, you may get no relief, just like Mr. Pang didn't get any relief. Okay. Tied to this is an issue about malpractice against in-house lawyers. As I said, the growth in in-house counsel in during my career during the last 35 years has been astronomical. Many lawyers rely on the company's directors and officers policy to provide them some kind of malpractice protection. The bad news is. Um, most well, I shouldn't say most. Many policies exclude professional services and exclusion and express exclusion for professional services. And courts have upheld those exclusions and said there is no coverage for professional services when there's such an exclusion. The good news is you may be able to get a rider for next to nothing. I actually had a client that was involved in this, and these numbers are a little dated now. This is about 15 years ago. But he said he was able to get for his six person in-house department. He was able to get $5 Million in coverage for like $1,000 a year or something. I mean, it was it was nothing. It was de minimis because. Malpractice cases against in-house lawyers are on the rise, but they're still really, really low compared to other areas of malpractice. So you can you may be able to get a rider on your organization's policy that covers in-house, and I'd urge you to look at that. Okay client with a diminished capacity, especially those of you in small departments where there's really one owner. This can this can come up and I've actually had clients call me about this, um, under rule 1.14. What you're supposed to do is try to keep the relationship as normal as possible. But if things get really bad, you can disclose rule 1.6 information to try to get help for the client. So if you know, in the typical situation, if it's the husband that owns the company and he's five years older than the wife, maybe the wife is still functioning better and you can bring her involved. Maybe you can get a doctor involved if there's a medical issues, especially regarding memory and diminished capacity. Maybe if both parents are up there in age, you want to get the children involved. Now you've got to be careful about it. For example, if the reason you think the. Your client is got diminished capacity because they keep changing who they want to be the recipient of their will. You can't really bring in any of the contesting beneficiaries regarding that. So you've got to be a little discreet about it. But if you've got a client with diminished capacity, you can try to get them help when things get bad. Okay. Duties to prospective clients. You owe most of the same duties to a prospective client that you owe to an actual client. There is kind of a cocktail party exception, but generally, before even having the briefest conversation with somebody about a new matter, you should run the conflict check. Don't be offended. Again, wearing your client hat. If you call about your outside lawyer and he says, Don't tell me anything except the parties. Let me run a conflict check. Don't be offended because you don't want to end up like the ginger case where you sort of got this accidental client that you didn't intend to have by giving legal advice to an officer of a company. So so be aware of that. Let me just say, as I said, I really enjoy this. This is what I do in the area of ethics. If you've got a question, feel free to call me. I typically don't charge if I can answer it in 5 or 10 minutes, and I almost always can. Um, so I shouldn't say I typically don't. I do not charge if I can answer it in the first phone call, which almost always can. Um, shoot me an email here. I really do find this stuff interesting, and I like helping people. Uh, also, please join us. There's a part two of this program which covers rules two through eight. So thank you very much for your attention today.

Presenter(s)

JT
Jack Tanner
Director
Fairfield and Woods P.C.

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                                                                                                                                • 1.0 ethics
                                                                                                                                Available until

                                                                                                                                August 22, 2025 at 11:59PM HST

                                                                                                                                Status
                                                                                                                                Available
                                                                                                                                Credits
                                                                                                                                  Available until
                                                                                                                                  Status
                                                                                                                                  Not Eligible
                                                                                                                                  Credits
                                                                                                                                  • 1.0 ethics
                                                                                                                                  Available until

                                                                                                                                  August 22, 2025 at 11:59PM HST

                                                                                                                                  Status
                                                                                                                                  Available
                                                                                                                                  Credits
                                                                                                                                    Available until
                                                                                                                                    Status
                                                                                                                                    Pending
                                                                                                                                    Credits
                                                                                                                                      Available until
                                                                                                                                      Status
                                                                                                                                      Not Eligible
                                                                                                                                      Credits
                                                                                                                                        Available until
                                                                                                                                        Status
                                                                                                                                        Not Eligible
                                                                                                                                        Credits
                                                                                                                                          Available until
                                                                                                                                          Status
                                                                                                                                          Pending

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