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Ethics for In-House Lawyers: Part II

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Ethics for In-House Lawyers: Part II

The ethics rules are applicable to all attorneys, but there are some special considerations for in-house lawyers. In house counsel often wears two hats: they are a lawyer and a client representative, so they need to understand how the rules apply to outside counsel at the same time. In this program, ethics expert Jack Tanner will cover Rules 2-8 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'm a civil litigator, but I've been on the Colorado Bar Association Ethics Committee for about 25 years. I'm a past chairman of the Ethics Committee, and it's been kind of my focus as a member of the Ethics Committee to talk about ethics for in-house counsel. So that's what we're going to talk about today. This is the second part of this presentation. The first part covered rules, the introduction into scope, the definitions, and rule one. If you've not watched that, I'd urge you to for a couple of reasons. One is it's really good information. And second is some of the definitions and concepts that I used in part one will show up here in part two as well. And so you'll you'll get a little more out of this if you've already looked at part one, if you have looked at part one or even if you haven't, you might know that I always start with a disclosure of my bias, and that's as follows. I am a commercial litigator, but I don't really do professional responsibility as part of my practice. I don't defend grievances. I don't defend malpractice actions. Um, and as a result, uh, the point of view, I have maybe a little bit more conservative than you hear from other speakers. Most speakers in the area of ethics really know their stuff, but they do have professional responsibility practices. And when I started focusing in this area, I'd be on these panels with 2 or 3 other folks, and an issue would come up and the other people on the panel would be talking about something being in a gray area or, you know, a multi-factor test and a really hard analysis. And I'd kind of be sitting at the end of the table waving my hand saying, no, no, you can't do it. Just don't do it. And the second or third time this happened, I went and talk to one of my co-presenters and said, What do you mean gray area? You can't do that. And he said, 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 be able to argue that it's in the gray area. It's not clearly a violation or I have given up one of my defenses. So that light bulb went on in my head and I said, aha, I don't have a professional responsibility practice, so I can sort of give you a bright line that if you stay north of it, you should be fine. So, um, this, this may be a little more conservative than you hear from other speakers. And that's why I'm a little biased toward not crossing the line, because I'm not going to defend you if you do cross the line. Okay. The ethical rules are state by state. For today's talk, we're going to mainly rely on the ABA model rules. Now, almost every state when they adopt the ABA model rules varies them a little. Virtually no state just adopts the rules in toto and leaves them as is. So if anything catches your ear today and you think, Oh wow, that that's that's a problem for me or Oh, I can do that. Check your own state rules because it may vary from what the ABA model rules are. Okay. We're going to talk about ethics for in-house lawyers and. One thing that I've noticed about in-house lawyers, and I'm sure most of you listening are in-house lawyers and you've noticed it as well, is that you kind of wear two hats. You need to know the ethical rules as they apply to you. But to some extent, you also need to know the ethical rules as they apply to the lawyer, the outside lawyer representing you, because you are often the client representative. So some of these rules that we'll talk about today may not seem directly applicable to you as in-house lawyer, but they might be applicable to you in your role as client representative supervising outside counsel. Okay. As I said, there's a different presentation that goes through the scope, the introduction, the definitions and rule, the rule one point series. So we're going to start with rule 2.1. Um, a lawyer must exercise independent judgment and give candid advice. Um. This can be a problem if you're in house and what's called a blended legal department or blended department. There's been a push lately in some companies to combine, for example, the legal department, the compliance department and HR all into one big department. And the problem with that, when it comes to independent judgment can be this is if you're a junior lawyer and you're reporting to somebody who's not a lawyer and not the client, that that can be a problem with this rule in terms of exercising independent judgment. For example, if there's a blended department in your company and you've got a junior lawyer that's reporting maybe to an HR manager that's not a lawyer, but also not up to the C level to be considered the actual client. But this could be a problem because we'll talk in another rule later. It makes it even more clear that you're not supposed to be influenced by people who aren't other lawyers and aren't the client essentially. So the job under Rule 2.1 is to give candid legal advice. Okay. Rule 3.1 regards meritorious claims and you're only supposed to present meritorious claims. And the reason I've left this one in here, even though generally in-house lawyers don't present claims, you typically hire outside lawyers to do litigation, although currently now there's a trend where more in-house lawyers are doing companies own litigation. Um, but this has been my observation is, you know, I get pressure from clients as an outside lawyer to see the world their way. And I'm, I'm an agent for a principal and I'm supposed to make the arguments, but at some point it reaches the edge where you say, I just can't make this argument. And that can be very uncomfortable with the client. But the fact is I've got lots of clients. Um, and so if I get ethically crosswise with one of those clients, I'll, you know, maybe have to withdraw. Maybe they get mad at me and they go find another lawyer. Um, but, but those stakes are a lot higher for you as an in-house lawyer because you've really only got one client. And so it can be difficult. I know. Pushing back on your own client when they're trying to advance a position, trying to get you to advance a position that that you don't think is supported by the law. And I'll give you an example. This really this this is a real life example happened to me. I was dealing with an in-house lawyer. This was probably 20 years ago. And the law was clearly on my side. And I, I pointed out to her, I told her where the statute was that basically said I was right and she was wrong in the dispute we were having. And I heard her this was just a statute from a statute book most lawyers would have. And we're on the phone and I actually heard her pull a book down and flip some pages. And I heard, you know, silence while she read the statute. I pointed out to her and her response was, well, that's not in my client's best interest. And this was a great example. I mean, I don't think I knew it at the time that that was a kind of a 3.1 violation. But come on. Um, the statute says right, what it says. But I know she felt incredible pressure and a lot of you that are in house do feel incredible pressure, um, to make the argument your client wants to make because this is your one and only client. So just be aware that rule 3.1, uh, requires you to only. Present meritorious claims and defenses. And so, you know, if the pressure gets too big from your client or too too strong, you might want to say, you know, in addition to this being a bad argument, because it's going to lose because the statute says exactly to the contrary of what we're arguing, it's also an ethical violation for you. And that may be something you need to inform your client about. Okay. On a similar topic is three rule 3.3 candidate tribunal. You cannot make false statements to the tribunal. Of course, under numerous ethical rules, but neither can witnesses, including your client. So rule 3.3 is triggered if the client makes well, if any witness makes a false statement to the tribunal. But the real problem is, if it's the client, that that's where you've got a real problem is when your client makes a false statement to the tribunal. Um. What you have to do is first try to get the client to recant and say, Oops, that was wrong. In fact, the light was red when I said the light was green. Um, but if the client won't. You have an obligation to disclose to the tribunal that the client's testimony was false. Now, this is one of only two rules that trumps rule 1.6, which is the, of course, the client confidentiality rule. There's only two ethical rules that Trump 1.6, and this is one of them. If if a witness, including your client, makes a false statement on the stand. Now, what you have to do is you tell the client, I'm sorry, you tell the court that the client's testimony was false. You don't tell the court what the true testimony is. You are not under oath. Your only job is to say what the client said was wrong. Now, of course, if you're talking about red light, green light, the court will figure it out what the true testimony is. But most testimony is has a lot more analog than that. And it's not just two choices. So normally when you tell the court that testimony is false, the court won't necessarily know what the true testimony is, but that's a rule. Now, one of the collateral effects of this is this will probably create a conflict of interest for you with the client, because if you told the client, you know, that testimony you gave was false, you have to correct it. And the client says, No, I'm not correcting it. Now you've probably got a conflict of interest under Rule 1.7 and have to withdraw, But that's just sort of collateral damage. Again, this is one of only two rules that supersedes. Rule 1.6. So be aware of this. If your client is on the stand and not telling the truth. Okay. Rule 3.4 Fairness to an opponent. You cannot obstruct another's access to information. The really hot area in this is electronically stored information. Esi. Over the last 20 years, of course, this has just exploded as a piece in litigation where. Parties were sanctioned for not coming fully clean in discovery, especially regarding electronically stored information. And I'm going to talk about a couple of cases in a minute where the sanctions imposed by the court, the court made clear that the sanctions were higher because in-house counsel was involved. And the way that kind of. Came about is. Is this. In the olden days or when when in-house counsel is not involved, we'll just say what happens is. If some discovery doesn't get produced and maybe the other side asks for sanctions, the way it usually breaks down is the client is the one who knows where the information is. We'll call them documents, but the client doesn't necessarily know the rules of civil procedure and know the obligations. The lawyer knows the rules of civil procedure and knows the obligations regarding discovery. But the lawyer may not know all the facts about the client's when, for example, where the documents are. And this really happened to me a long time ago in my career where I was a bystander watching this discovery dispute. But I was involved in the case. And what came out was the lawyer said, I told the client repeatedly to produce all the documents and the client. When it finally came out, what was missing? The client said, Oh, wait, you mean I got to produce the documents on the fifth floor, too? Um, because in the client's mind, the fifth floor was some, you know, warehouse or whatever and wasn't really part of that client's job. So the client didn't understand the documents on the fifth floor had to be produced. So when the sanctions hearing came, the court did not impose sanctions. And the court basically said there was a disconnect between the lawyer's understanding of the rules of civil procedure and the ethical requirement under Rule 3.4 and the client's understanding of what the rules really were. So when the in-house lawyer is involved in litigation, that disconnect should not happen because the in-house lawyer should both know the law and know the client's business. So here are a couple of cases. Um, this Haggar against Goodyear Tire and Rubber Company. I mean this Goodyear got really hammered for not producing some, uh, test results. And in the opinion where Goodyear got hammered with serious sanctions, the court specifically said and this is worse because in-house counsel was involved in the discovery process. So when the the, the in-house counsel reviewed the discovery responses that didn't mention documents which the company had, uh, it was really bad. And the court specifically said in-house counsel was involved with this sort of no excuse. The same thing in the Eaton Corp against Frisbee case. Uh, Eaton got hammered and got serious sanctions against it. And again, the court mentioned because in-house counsel had been involved, the sanctions are stiffer than they might have been otherwise. The Sun River Energy case from right across the street in the 10th Circuit. Um. This is how the the the trial court ruled. Regardless of the price of mens rea of general and outside counsel in failing to investigate. There must be viewed as significantly culpable. In this case, it was a failure to make a claim under insurance. They actually denied that insurance existed, covering a counter claim. And Nelson, the defendant slash counter plaintiff, knew that that insurance existed because he had used to work for the company. He had purchased it. So he knew there was insurance cover in the matter. But the company denied that it existed, threatened sanctions if he asked for it again. And by the time they finally figured out it did exist, the policy had lapsed. So there was no insurance covering the counter claim. And so Sun River Energy got significantly penalized in this case, again, the court said. In-house counsel knew about this. In-house counsel was involved in the discovery process. So there's really no excuse. So the stakes are a little higher now for in-house counsel. And by the way, speaking of stakes being higher, this is something I talk about in the part one of this. One of the recent changes to the rules makes them applicable beyond disciplinary proceedings until the. Ethics 2000 rule changes. The rule specifically said they were only applicable to disciplinary disciplinary proceedings. Now they've been changed to say they can be used in other appropriate cases. And everybody seems to agree that this means perhaps in malpractice cases. So the stakes, again, are much higher than they used to be. Hey, rule 3.7 again, Lawyers witness Probably not going to apply to you too much as in-house lawyers, but one thing to think about is one of the exceptions is when disqualification of the lawyer would work an undue hardship on the client. So if you're the in-house lawyer that's been working on a case from the beginning and then, you know, it gets to be time to exchange witness lists for trial and you see yourself listed by the other side as a witness. Uh, typically that would that would be a discouraging thing. However, if it would work an undue hardship on the client, the disqualification would work an undue hardship on the client. And that can be an exception to the prohibition on the lawyer against Witness. Again, harkening back to the definitions and the imputed disqualification rule from part one of this talk, a legal department is defined as a firm under the rules. So when you talk about an entire firm being disqualified, that would be an entire in-house department. This rule does not result in the entire firm being disqualified. Even if the court says they're going to make the lawyer testify, other people from the in-house department can participate in a case just because just the same as other people from the department participating. In a case are not disqualified. Rule 4.1, truthfulness with others. This is this is kind of a funny rule. We're going to talk near the end about Rule 8.4 and the absolute prohibition on deceitful conduct as you're going to hear, the prohibition on deceitful conduct applies 24 over seven, even to stuff that has nothing to do with the practice of law. However, Rule 4.1 makes the same point but makes it slightly differently. And the comments say that it's not a rule violation basically to to not quite tell the truth when no one believes you anyway, such as in negotiation. So an example might be if you're negotiating on behalf of your client and you say, hey, I think this as far as my client's going to go and in fact, you know, you're not at the end of the day and the client is either willing to accept less or take more or provide more. That's not considered an ethical violation under the circumstances. If the way it's phrased is basically no one's. No one's going to believe you anyway. That's not considered a untruthful statement. Uh, rule 4.2 communications with represented persons. This is something that comes up a lot for in-house lawyers because a lot of times you're dealing with somebody on the other side who may not be a lawyer. Maybe the the company you're dealing with doesn't have in-house counsel, so you're just dealing with the business person. Um, so this is something you should be aware of as an in-house lawyer. Uh, you cannot communicate with a person known to be represented in a matter it's matter specific. Knowing that a person is is represented can be inferred from the circumstances. Um, it does not matter who initiates the communication. This is something that comes up all the time where it's the other side calls you, goes around their own lawyer to call you. You still cannot. Work on that call. You got to say, until your lawyer tells me it's okay, I cannot talk to you. Okay. This is hypothetical number ten. And as you probably guessed, the reason, hypothetical number ten, as I did hypotheticals one through nine in part one. So I've just left this as ten. So let's say you're negotiating a contract with a business person on the other side, and the business person on the other side says, before we finalize this, I'll have to run the warranty issue, pass legal. The question is, does that create a rule 4.2 situation where you have to cease talking to the business person on the other side? And the answer is no without more. Rule 4.2 is on a matter by matter basis. What this person said was, before we finalize this, I'll have to run it past Monte. So it's a mean run. The warranty issue pass legal. So he's talking about in the future. So at this point you don't know within the meaning of the rules that the other company is currently represented on that matter by a lawyer. So you can continue that conversation. You don't have to stop right then. And then hypothetical 11. Similar situation. You're negotiating a contract with the business person on the other side and the business person on the other side says, I was discussing this with Ms.. Smith and Legal last night and she had some thoughts about the warranty. Do you have to cease communicating? So now the answer is yes, because now, assuming Miss Smith's a lawyer, she's in the legal department, so we're going to assume she's a lawyer. Now you have to stop. So there's a current issue going and there's a. Split authority on this on a re email reply to all and it comes like this. The lawyer on the other side sends you an email and copies their own client and you without maybe thinking about it, hit reply to all. Now wait a minute. You have just replied to the other side's client without getting express permission from the lawyer on the other side to do so. Is that an ethical violation? A few years ago, the the lead the majority rule was yes, it is. It's up to you. And you've got to you know, and the analysis, the analogy was made to like a letter. If you got a letter that from the other side that indicated the client had been secede, you would not take that as permission to write back to the. Klein on the other side and go around the lawyer that that view is no longer the majority view in the rising view, which I think is the correct view, is that if you copy your own client on an email, you've implicitly given consent to the other side to reply to all. And you know, just for purposes of that email, not for all other matters, but for purposes of that email hitting reply to all should not be an ethical violation. And that that seems to be the view that's winning the day, as in my view, I really think it should. Okay. 4.3 Communications with unrepresented persons. Hypothetical number 12. Your negotiated contract with an unrepresented person. And he says, Hey, what is this warranty provision mean in our draft contract? Can you answer? It's a very bad idea to do so. You may be giving legal advice and putting yourself in a conflict situation. Again, in part one, we talked about all you've got to do to create a legal relationship with a client is be asking for legal advice and give it. You don't have to have an engagement letter. You don't have to get paid. If somebody asks you for legal advice and you give it, you're probably their lawyer. So previously this, this was a pretty bright line. And. What? The only thing you were allowed to say was, I'm not your lawyer. I'm not going to give you legal advice. You need to get your own lawyer for that. That was a very safe thing to do. That's still the safest thing to do is not give somebody else legal advice, somebody who's not your client. Under the current rules, what you're allowed to do is say, look, I'm not your lawyer. I'm not representing you, I'm not giving you legal advice. But here's what that provision means to me. That is not if you do that, that is not considered an ethical violation. If you're going to do that, though, please do that in writing, because I guarantee you, six months now from now, when everything blows up, if you did that orally, the person either side is not going to remember your disclaimer where you said, I'm not your lawyer and I don't represent you, they're going to forget all about that. They're just going to say that that person gave me legal advice, told me what the warranty meant. They've got a conflict of interest. They didn't disclose it. I'm going to sue them for malpractice, blah, blah, blah, blah, blah. It's very bad. So if you're going to go this route and and explain what a legal provision means to you. Do it in writing. So that disclaimer. We'll hang on forever. Um, here's a relatively recent case. It's just from last year out of the Southern District of New York. Um, and this was an interesting one. In-house attorneys negotiated with benefactors regarding the ownership of art, and the court held the in-house counsel did not violate the ethical rules, even though the in-house counsel basically gave legal advice to the to these benefactors. And I would just say this about this case. I think if it were not a not for profit university, I just get the feeling the result would be different, because if you read this case, what the lawyers did it. It sure looks like stuff lawyers shouldn't be doing. Um, in terms of giving legal advice to somebody, not their client, somebody on the other side. And I think they may have caught a break because they were, you know, working for a university, a, you know, a non non for profit. If you're in house with a for profit company. B, I would not do what the lawyers did here. Uh, and expect not to get some kind of blowback from it. Rule 4.4 Respect for Rights of Third Persons. The hot issue on this, of course, is the inadvertently produced document. Back in the day when we had paper documents instead of electronic documents. This was relatively rare, actually. People would, you know, review files and get most of the documents. Every once in a while they'd miss something. And what would often happen and this happened to me in the beginning of my legal career is somebody would call and say, hey, you know, we produced that box of documents the other day and this one slipped through. Would you just pull it out? That we shouldn't have produced that. Please throw it away. And you generally the ethical view was, you know, you comply with that request and then people start thinking about this more deeply. And the argument came up, Well, wait, wait a minute. So the other side screwed up. The other lawyer on the other side screwed up and sent me a document which might really, really help my client. Why am I throwing this away instead of using it to help my client? Um, that doesn't make a lot of sense. We're, you know, protecting the other side's lawyer from malpractice rather than trying to represent my own client to the, you know, to the best of my abilities. This wasn't my screw up. And this would put the receiving lawyer in an ethical bind where you didn't know what to do. So now the current trend is. The receiving lawyer's only duty is disclosure. So if you call if you get documents and it looks like some stuff is attorney client privilege and was sent to you accidentally, maybe it's a reply to all situation. Maybe it's a big electronic document production, maybe it's still paper document production, but you get a document that looks like you shouldn't have gotten it. Your only duty is to notify the sender and say, Hey, you sent me this document. I don't think it was intended to me, intended for me. That's all you have to do. If they say, please throw it away, you can ignore that instruction and comply with your ethical rules. Um. The exception to that. This new trend is if you get the instructions before you actually receive the documents. So if there's documents being mailed and you get a call like, Hey, uh, my I emailed you the wrong letter yesterday, please throw it away without reading it that you still need to do because you haven't actually looked at it yet. But once you get it and see it, your only duty is to notify the sender. And after that you're done. Now, I will say this if you're the sender, this really presents a problem. And what you need to do is run, not walk to court and maybe try to get an order. Um. Regarding that document, maybe getting an order that it be distorted, destroyed, or at least not used or something like that. This happened to me. A while ago and you'll know it was a while ago because it involved a fax machine. Where. Somebody, another party to a case put a document on the public record that was that shouldn't have been put on the public record. Um. And I filed a motion asking it be sealed, and they filed a response where they again attach the same document. So I literally went down to the courthouse with an ex-parte motion, which the court granted and sent out the order by fax, telling everybody who was still this is before electronic, this is before email. So the court sent an order out by fax to all the parties and there was like 30 parties in the case. Don't open your don't open your response brief filed by this other guy. Throw it away. And they ordered the other guy to refile it without attaching this document, which was the subject of the the motion to suppress in the first place. So this is a better rule. It puts the receiving. It puts the receiving lawyer out of danger. The the party that's on the hot seat is the lawyer that's screwed up. So if you get such a document, you just have to notify the sender. Okay. There's a rule 4.5 in Colorado and some other states. It was formerly under the old code seven 105. It is not part of the ABA model rules, but a lot of states still have it. And basically you cannot threaten prosecution or grievance to gain advantage in a civil case. You can notify another lawyer if you think their conduct violates the rules, but. You can't threaten, say, hey, if you don't do whatever I'm saying, I'm going to grieve you. Um, that is a rule 4.5 violation for those states that have it. It's okay. Remember that this is a rule for lawyers and not clients. So if the client wants to threaten prosecution or the client wants to threaten a grievance, they can do that. This is just an ethical rule for lawyers. Okay. The five Series regards the duties of supervising and supervised lawyers. So the first thing to remember is, again, a in-house department of a company is considered a firm for purposes of the ethical rules. So generally, a senior's lawyer obligation is to make sure the junior lawyers and subordinates act consistently with the rules. You have to put procedures and protocols in place. Now, you can't. You're not the policeman for everybody that works for you, but you're supposed to have procedures and protocols in place. And the important things are what I call the three C's confidentiality conflicts and concerns about confidentiality. A confidential way to do that. So this is basically rule 1.6, rule 1.7, and ethical violations. If you're in an in-house department and you're a senior lawyer, you need to make sure your department has these protocols in place. The obligation of junior lawyers is to follow the rules. And this is what Rule 5.2 plainly says. And so please be aware of this rule. A junior lawyer that violates the rules cannot just say, you know, the boss told me to, whether it's a senior lawyer or the client or whatever. Um, junior lawyers are expected to follow the rules of professional conduct. And just saying the boss told me to is not a defense. So you should be aware of that. A professional independence. A lawyer shall not permit a person who recommends, employs or pays a lawyer to regulate the lawyer's judgment. For another, in the context of this rule means somebody who is not the client. So you you can only basically be guided by other lawyers or the client. Nobody else should be affecting your judgment. We talked about this a little with rule 2.1 a while ago, and we're going to again go back to the example of an in House situation where it could be a problem, might be the integrated department where and this has been a big push lately in some bigger companies to combine the legal department, the HR department and compliance all in one big department. And the problem could come up. Let's imagine you're a junior employment lawyer and you're in this integrated department and you're reporting to mid management who's like an HR director, let's say. But this HR director is not high enough to really be considered the client. The HR director can't unilaterally set policy for the entire company, not in the in the control group, as they used to say. So this this could really. Be a problem, I think for a junior lawyer because you're to exercise independent judgment, that basically means you're you're only supposed to be influenced by either other lawyers or the client. And this this integrated department actually could present a problem. And so if you're in this situation, I'd urge you to be careful about. How much influence this gets pressed on you, because, of course, if this is the boss you're reporting to, I mean, he or she's going to recommend you for raises or for discipline promotions, and that will definitely influence your conduct. So you might use 5.4 to say this is a at least, you know, try to set up some alternative supervision, say, okay, I understand. I'm reporting to this HR manager who's not a lawyer, but can I also have a parallel report to a lawyer? So when I've got questions about what's going on, I can go to the lawyer for advice. So this is something to be careful of. Okay. Rule 5.5, the unauthorized practice of law. Basically says you can't engage in the unauthorized practice of law, nor can you assist someone else in engaging in the unauthorized practice of law. And this is a hot area for many in-house lawyers. I spend a good bit of time talking to in-house lawyers that are not licensed in the state where they actually practice. Um, and you know, you're working in one state and you get hired in house and you go maybe to another state to take that job and you're not licensed in the state that you're actually practicing in. And this, this could be considered the unauthorized practice of law. Now, the good news is many states have what they call single client rules that say if you're just working for one client and this includes a group of related clients, if you're just working for one client, then you don't need to be licensed in this state as long as you're licensed in another state and current on your claims. The repercussions for engaging the practice of law can be severe. They vary state to state, but in many states, the unauthorized practice of law is a crime. So even if you're licensed. Great. But what if you've got a colleague that's not licensed? Now you're assisting in the unauthorized practice of law, and that's a crime for you. It's an ethical violation in the state where you are licensed. So if you're practicing law in one state but licensed in another, you're probably violating the ethical rules in the state where you are licensed. Again and it can get your colleagues in trouble. For the other author, because you're practicing law without a license and they're supposed to report you and maybe they're not. So they get in trouble for assisting the unauthorized practice of law. So this can be a really bad thing and there's more repercussions we'll talk about in a minute. But there's there's a case out of Tennessee is my recollection, where the general counsel, in-house counsel for a company was licensed in another state, but not in Tennessee. And. A junior lawyer found out about it and repeatedly asked the general counsel to get licensed in Tennessee. The general counsel didn't. The junior lawyer went and got her own legal advice and was told, you have to report this as an ethical requirement. So the junior lawyer did report her own boss for the practice of law. And surprise, surprise, she got fired. Surprise, surprise. She sued for being a whistleblower. And it just and now the dirty laundry of this come. Of this company is all over the the Southern reporter So. Just get get licensed in the state you're practicing. And I will say this, this has gotten even easier post Covid because now so many people are practicing remotely. It was easy before. I think it's even easier now. So be aware of this. The other significant issue of unauthorized practice of law is it can really mess up the attorney client privilege. There are multiple cases and multiple states saying that the attorney client privilege only works with licensed attorneys. And so if you are not a licensed attorney in the state where you're practicing law, there is no attorney client privilege for your communications with the client. You can imagine what a nightmare that will be if you're in house and all of a sudden it comes out that your communications with your client are not privileged. There's a series of cases out of the Southern District of New York and a nasty trademark case involving I think it's Guess and Gucci, I can't recall. In that case, the magistrate judge. Initially said no attorney client privilege for communications with the general counsel who had been licensed in California, had moved to New York, but even his California license had lapsed. He had never been licensed in New York. The district court reversed that ruling, but only because, like six of the sea level officers gave affidavits that said we thought he was licensed. We didn't know he wasn't licensed and that. Um, that worked. I doubt that would work today because today, of course, all the license information for every state is available online and in 10s you can find out. If a lawyer working in an in-house department has a license or not. So I doubt that that that that defense of the sea level officers saying we didn't know the general counsel wasn't licensed would work again. So. Get licensed. If you're not get licensed in the state where you practice. Okay. Rule 5.6 Restrictions on the right to practice plainly says plainly says it's unethical to sign a covenant, not to compete. Multiple states and local ethics opinions say this rule means exactly what it says and it applies to in-house counsel as written. So if you're an in-house lawyer, you shouldn't be signing a covenant not to compete. Nor should you be asking anybody else that's a lawyer to sign a covenant, not to compete. Now, the interesting issue is that there are multiple court cases, including one here in Denver, that says it doesn't apply to in-house counsel, as I put here mockingly, because reasons mean and those opinions are not terribly thought out, they basically tend to say, well, in-house lawyers are just different and that that is not the majority view of in-house counsel. So this is something you need to check out if you get presented with a covenant not to compete. Now, another. Aspect for in-house lawyers is you often in-house lawyers also have a different job. Like traditionally the in-house lawyer was almost all the general counsel was almost always a secretary of a company, kept the minutes of the board meetings and such, so a secretary would be an appropriate person to sign a covenant, not to compete. So what if you're a general counsel and secretary and you get signed, asked to sign a covenant to compete? I think you could sign one in your capacity as secretary. You could not Again, it would not apply. You should say it doesn't apply to me working as a lawyer. Um, but there's not a lot of clarity on this. There will be more litigation about this coming soon because this, this ties to the growth of in-house lawyers. There was a time when it was a fairly rare thing. Um, actually, as part of part one of this, I went through some numbers and since 1997, between 1997 and 2020, the number of in-house lawyers in the United States has tripled from 35,000 to 115,000. So this is going to come up a lot more often. And you should again, if you get asked to sign a covenant, not to compete, you should check your state's ethical rules and you should check if there's any, uh, law on that subject. Okay. Rule 5.7 law related services. This is a relatively new rule. And basically what it says is if you're a lawyer but you're engaged to something that kind of touches on the practice of law but is not the practice of law. And you don't really advise the customer that you're not practicing as a law. If what you're doing is not distinct from legal services, then the rule, then the rules regarding legal services generally apply. So in Rule 5.7, there's actually a non-exhaustive list, like a social worker and accountant and estate planning and things that look kind of like the practice of law but really aren't. So if that applies to you and it applies to a lot of in-house lawyers that aren't really practicing law, a lot of you went in-house because you were sick of practicing law and you want to get in on the business side and thank you for doing that. But. What you need to do is kind of opt out. And what you do is you advise the so somebody comes and asks you for or your job involves something that's not really the practice of law, but it's close. And the customer, not a client, you're not practicing law comes to you and asks for some kind of advice. What you need to do is say, Hey, I will give you this advice. I'm not acting as a lawyer. The attorney client privilege does not apply. And you still want me to answer your question? So, you know, kind of put it back in the customers the customer's decision making tree. Now, you got to be careful about this because there are times when whether the communication would be privileged or not. It really is in a gray area and it goes a lot to expectation of the customer slash client as to whether the communication is privileged. So. If you say, Hey, this communication is not privileged, then it's not going to be privileged because it could be no expectation of confidentiality. Even if had you not said that, it would have been privileged. So this is something you got to think about. Um. Many in-house lawyers are often asked to give a business advice. And this this ties to this rule 5.7. So you're not it's not a law related service. But but let's say it's it's just straight business advice. The attorney client privilege does not apply even if your only job is being a lawyer. But what you're asked for is business advice. The attorney client privilege does not apply. Um, there are numerous cases where in-house lawyers and clients are required to testify about communications because the conversation was about business issues, not legal issues. In fact, in Texas, there's a whole line of cases that actually sets out different standards in discovery. It's really interesting what what these line of cases says is in in discovery. If you're not if you're withholding documents on the ground of privilege, the the party that's not producing those documents produces what's called a privilege log. And you kind of log these communications and say, we're not producing these because they're attorney client privilege. And what this this line of cases in Texas says is. When you're dealing with outside counsel, when the business is talking to outside lawyers, then basically the standard for what goes into privilege law can be pretty low because they assume you're not paying hundreds of dollars an hour to talk to an outside lawyer except to get legal advice. So you still have to do the privilege log, but the standard of what you have to put in it to prove that the conversation was privileged is pretty low. However, this line of cases from Texas says if the conversations with in-house counsel, the burden is much higher on the party not producing the documents on the grounds of privilege, because so often the communications between the in-house lawyer and the company are in fact business communications, not legal communications. So they're not. Privileged. So this line of cases from Texas says basically it's a whole different standard for what you have to put in a privileged log, depending on if you're talking to an outside lawyer or inside lawyer. So. It's a good idea. It's not technically ethically required. If a client is asking business advice to let the client know the conversation may not be privileged just so the client doesn't have an expectation. Because there are clients, there are lawyers for that matter, that think, you know, once a lawyer is involved in the conversation, the old cone of silence from Get Smart comes down and everything is privileged, which isn't true. And I always like that simile because if you recall from the old get Smart TV show, the Cone of Silence never really worked. And that's what happens on this. When someone thinks just because a lawyer is involved, the the conversation is privileged. I actually have a client that came to me. He had been in-house counsel at a big company and he got transferred. And he became head of procurement. So he was still negotiating contracts, but he was not considered part of the legal department of the company. He was in procurement. And what he said is that the people who worked at the company found him a lot more accessible than the in-house department. So they would come and they knew he was a lawyer, so they'd come ask him legal questions because he was easier to access as head of procurement than the legal department was. So what he started doing, he said, I've got this office where I'm head of procurement and I sit behind a desk and somebody comes in and they ask me a procurement question. I answer them sitting at my desk. But if they actually ask me a legal question, I get up and I move to one of the other guest chairs in my office as a reminder to me that I've put on my lawyers hat. I'm not sitting behind the procurement desk. I'm now a lawyer and I'm giving legal advice. And so he would say that that's my reminder. So somebody asked me at that conversation, I will visualize where I had it. And that's that's one indication to me whether I was giving legal advice or business advice. On a similar note about law related services. When you're an in-house lawyer and you also do something else, like, for example, you're the secretary. The ethical rules probably still apply to what you do. A case I talked about again in more detail in part one is this case against Rosefield case, which is a delightful case, which said that there was no rational basis to believe that the ethical rules did not apply to in-house counsel. One of the arguments that. The in house lawyer who got in trouble in that case Mr. Rosenfield made was that he for some of this stuff, he wasn't acting as a lawyer. He was acting as a trustee or he had some other roles with the company. And the court shot that down also and said that the rules applied to him under those circumstances. So the takeaway for in-house counsel, this is a really dicey area between privilege and law related activities. You need to be really careful about what kind of advice you're giving, what kind of disclaimers you're making regarding that advice to the clients, because you can end up on the hot seat, because if you gave, for example, business advice, that's not privileged and the client thought it was privileged that that can create a lot of problems down the road. Oh, okay. Rule six and seven series. Okay. Voluntary pro bono work under Rule six is voluntary and aspirational. This is a very long and complicated rule about how lawyers are supposed to give back by doing pro bono work. And I'll just let you read that it's still aspirational. It's not required, but there is a section in this on how in-house counsel deal with it. Um, rule seven advertising. This is the one rule I think we can really ignore for purposes of this presentation, because if you're in-house counsel, you're probably not really involved in advertising. Essentially, the the new rule is that as long as your advertising is truthful, it's probably okay. There used to be a whole lot of limits on. What lawyers could do in regarding advertising and those fell under the First Amendment is they should have. And so now lawyers are allowed to advertise, but you still generally have to be truthful. Okay. Rule 8.1 Bar admission and discipline. This is yet another rule that says you always have to be truthful. And it specifically says regarding applications or disciplinary matters. Important to note it's not limited to your application or your disciplinary matter. So if you get depending on how your state does bar admissions and if you get called to be a reference for somebody or involved in a disciplinary matter for somebody, you specifically have to tell the truth. Um, there is an exception to this. If you learned of a lawyer's misconduct as part of an approved lawyers assistance program, I'm in one of those. I'm on what we call the calling committee or the Hotline committee of the Colorado Bar Association. People can call me up with an ethical question, and I am not required to file a grievance against them if they tell me something that otherwise would be a mandatory grievance because I fit under this exception. Um, under eight. Under 8.1. If I learned of their conduct as part of an approved lawyers assistance program. Okay. I am on this calling committee. And I will tell you, the most common call I get is from a lawyer that says, you know, the litigator on the other side did this and this and this, and I've got to grieve him, don't I? I have to grieve him. And they are always crestfallen when I say this. It's probably not because what they wanted to do is grieve the guy. And then when the next time they run into him say sorry, sorry you had to grieve you. But I called Jack and he said I had to. It was ethically required. And they're usually crestfallen when I tell them No, you don't actually very often have to report misconduct. You only have to report it when it when the conduct raises substantial questions as to the lawyer's honesty, trustworthiness or fitness to practice law. Now, again, this is the second rule after rule 3.3 that we talked about earlier. That trumps rule 1.6 and can require disclosure of client information. So, for example, if you're working on a matter for a client and you find out another lawyer working on the matter did something that would be a mandatory grievance, normally rule 1.6 would prevent you from doing that. Say, Oh, it's client information, I can't disclose it. This rule trumps 1.6. Now, what is conduct? That raises substantial question as to the lawyer's honesty, trustworthiness or fitness to practice law? It generally falls into one of three categories a serious crime. Misuse of client funds or substance abuse. If it's not one of those three things, it's probably not a mandatory grievance. And that's when, again, when I get these calling calls, calling committee calls, the the caller is crestfallen when I say no. Just being a jerk and violating a bunch of other rules is not a mandatory grievance. This this is the categories we've got here. So we're going to compare this rule misconduct. Well, this is the misconduct rule 8.4. Um. Ethical violations. Not all ethical. Not all crimes are ethical violations. A crime is only an ethical violation. Again, if it reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law. So an example I give is driving 85in a 65 is a crime, but it's not an ethical violation. Driving 85in a school zone probably is an ethical violation because that would reflect on the lawyer's trustworthiness. If your judgment is that bad. Now, we're going to compare this to rule 1.2, which we talked about in part one. 1.2 prohibits advising a client to commit any crime. It doesn't have to be one that reflects on honesty, trustworthiness or fitness to practice law. So advising a client to drive 85in a 65 would be an ethical violation because you're advising a client to commit a crime, even though a lawyer engaged in that conduct. Himself or herself would not be an ethical violation. Um, another, uh, prohibition is deceitful conduct which is prohibited 24 over seven. Lawyers have been disbarred for deceitful conduct that had nothing to do with the practice of law. There is a, uh, a recent change in the Colorado rules, which is very interesting the way this arose. Um, a suburb of Denver. The next county west, is Jefferson County. Jefferson County. The. All the lawyers in the child, the child pornography division of the state attorney general or of the I guess it was the county, the county attorney office. They all resigned because they said to do our job, we have to impersonate people. And that's deceitful conduct. And there's no excuses for that. So we all quit. So the Colorado Supreme Court came up with an exception to Rule 8.4 deceitful conduct prohibition for legitimate investigative activities. Now, we don't know exactly what that means yet. This is a recent rule change. But but it's interesting to think about it. Actually. The exception is only supervising others because a lawyer himself or herself still cannot directly engage in deceitful conduct, but they're at least allowed to supervise others, which before that was why the Jeffco attorneys resigned, is because they had law enforcement officers that were reporting to them that were engaged in this deceitful conduct. Um, other misconduct is harassment based on. There's a laundry list here. Uh. But it's got to be connection with the practice of law in your private life. You can engage in this harassment, and it's not without more a per se ethical violation. This limitation on discrimination based on these things does not apply to client selection. So you can, for example, refuse to take a client for any of these reasons. Okay. So let me just imagine we're wrapping up now and you think I've said something today that you can't do, but you have a good reason to do it. You've got a really good reason for violating the ethical rules. Let me tell you about Mr. Potter. Um, this this case arose 20 years ago here in Colorado. There was a suspect who is now still on death row. I believe he had killed three people by brutally beating, beating them to death. I mean, it was just horrific. He had raped two people. He had taken three hostages. He was at large 2 a.m. in the morning. He calls the police station and says, I want to surrender. He was on some kind of drug fueled rampage. He was coming down off his drug fueled rampage. I want to surrender. But I want to talk to a lawyer first because it's 2 a.m. in the morning. The police called the public defender's office. Surprise, surprise. Nobody answered. It's 2 a.m., So there was an assistant DA who was already working on the case, and he said, I'll pretend to be a public defender and answer this guy's questions. The when when he got put on the phone with the the suspect who later convicted the perpetrator, um, he answered a few innocuous questions about procedure. He didn't try to trick the guy into confessing or anything. He just answered the guy's questions. The guy ends up surrendering without further incident. Um, later it was uncovered because when he went to the public defender, when the public defender got assigned to him, he said, Oh wait, I've already got a lawyer. That guy I talked to, Mr. Butler. Um, so this came out, it was deceitful conduct and Mr. Butler was charged with an ethical violation. And his defense was, You're damn right I did it. It was literally life and death. He had there were three dead bodies. He had three hostages. I would have said anything to get that guy to confess. Well, he was suspended. From the practice of law for 60 days. The opinion says no excuse is good enough to violate specifically the prohibition on deceitful conduct. So the bottom line here is if you think you've got a good reason to violate the ethical rules, think about three dead bodies, think about three live hostages, and realize if that wasn't a good enough excuse, I don't know what you're thinking your excuse is, but it is not going to be good enough to violate the ethical rules. Okay. If you've got questions about this, please reach out to me. I can answer most ethical questions in 10 or 15 minutes. I don't charge it if I do it. In case you can't tell from this presentation, I find this stuff really interesting. It's not really a major part of my practice. I just enjoy thinking about it. It's kind of like being in law school again where I get to think about what's the right answer without worrying about how much it's going to cost to get to the right answer or getting an answer that the client wants. I can just kind of be objective and think about it until I get the right answer. So if you've got any questions, feel free to reach out to me. Thank you very much.

Presenter(s)

JT
Jack Tanner
Director
Fairfield and Woods P.C.

Course materials

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