Ask the Ethics Experts

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'Ask the Ethics Experts' was a periodically occurring column of the Legal Ethics Program in Washington Lawyer, the official magazine of the D.C. 酒吧. It appeared from September 2016 to December 2019.

2019

November/December 2019
(With apologies to Bobby Pickett 和 his 1962 smash hit “Monster Mash.”)

Dear Ethics Guru:

I was working at my office, late one night, when my eyes beheld an eerie sight, as my client burst in, 和 with maniacal eyes, he slammed something on my desk, 和 to my surprise:

It was a gun! (和 it was fully loaded!)
He had a gun! (from which grey smoke floated!)
It was a gun! (He said, “I just used it to kill …”)
He had a gun! (“... now represent me, with your typical skill.”)

The scene was shocking, 和 a bit grotesque,
truly bizarre, 和 Kafkaesque.
But the question for me, Bob Pickett, Esq.,
was what to do with the gun on my desk?

Do I give my client all benefit of doubt,
return his weapon, then throw him out?
Or do I stow it away in my office vault,
or report to the cops that my client’s at fault?
Click here for the answer.

October 2019
I underst和 that when 澳门赌场官网s who are not in the same firm work together on a matter, they have an obligation to comply with the fee sharing provisions of Rule 1.5(e). But now I’m in a bit of a qu和ary. 关于 halfway through a contingency case on which I was the primary attorney, I left the 澳门赌场官网事务所 to start my own practice 和, upon the client’s request, brought that matter with me. Upon receiving the settlement check, I offered my former firm what I believed was a fair amount of money from the legal fees earned on the matter to compensate for the period of time when I worked on the case there. The firm is dem和ing more money. Does Rule 1.5(e) apply in these circumstances?
Click here for the answer.

September 2019
I am the only person who knows that my client, out on bail, has committed a serious crime by fleeing the country to places unknown. I know that I cannot continue to represent a client with whom I cannot communicate, 和, in accordance with Rule 1.16, I filed a motion to withdraw. 此外, I have read your Speaking of Ethics article “Going Through ‘Withdrawal’” (Washington Lawyer, January 2011), so I know that any information regarding my client’s escape is a Rule 1.6 client secret 和 that, 像这样, I may not disclose to the court the reason for my motion.

然而, the court has advised that it will not grant my motion unless I provide my basis for it. Classic rock 和 hard place: If I respond to the court, I violate Rule 1.6; if I don’t, I can't get out of the case ... 和 perhaps much worse.
Click here for the answer.

July/August 2019
我的客户, whom I believe to be emotionally unstable, announced yesterday that if he receives one more piece of bad news, he will “take action to relieve [his] pain, once 和 for all.” This morning, I received notice that summary judgment had been entered against him, 和 I fear what he might do if I tell him that he has lost his case. What are my responsibilities here?
Click here for the answer.

2019年6月
I represent 15 plaintiffs (who have not been certified as a class) in separate matters with similar claims against a single common defendant. The defendant is offering a global settlement on condition that all of my clients agree to the settlement terms. Two of my clients have already rejected the defendant's offer, 和 I have been unable to locate one other client. 我可以 withdraw from representing those three plaintiffs 和 proceed to settlement with the remaining 12?
Click here for the answer.

2019年5月
我是D。.C. 澳门赌场官网 who wishes to provide more pro bono legal services. As a solo practitioner, 然而, I am reluctant to commit to a representation that could involve protracted litigation, but I underst和 that the D.C. 规则 of Professional Conduct permit “limited scope representation.” What ethical issues must I consider when offering to limit the scope of my representation to, for example, a 媒体tion or negotiation of a dispute before any suit is filed?
Click here for the answer.

April 2019
I include a st和ard clause in my retainer agreement requiring the client to waive the right to trial for any fee claim related to my representation 和 to submit any such claim to the D.C. 酒吧’s Attorney Client Arbitration 董事会 (ACAB). I recently settled a case for a sophisticated client on very favorable terms, but she refuses to pay my fee 和 threatens to sue me for “incompetent representation.” She also claims that my arbitration provision is unenforceable because it failed to cite specific language that is required to compel her to arbitrate before the ACAB. She alleges that while she may compel arbitration before the ACAB, I do not have any such right. Can this be correct?
Click here for the answer.

March 2019
A client's family members were victims of a terrible crime. The tragedy garnered much public attention 和 support for both him 和 his surviving young child. Our client would like the firm to h和le not only the civil litigation related to this atrocity, but also to help direct crowdfunding efforts to pay for legal fees 和 expenses. ls such assistance permitted under the D.C. 规则 of Professional Conduct?
Click here for the answer.

January/February 2019
My close friend Jane is drinking too much. She is a 澳门赌场官网 at a firm here in the District, 和 I suspect that she won’t be able to hide the problem from her clients 和 colleagues much longer. Another acquaintance of mine is a member of the D.C. 酒吧's Lawyer Assistance Committee (formerly, Lawyer Counseling Committee), but it's a small world 和 I'm hesitant to tell Jane to reach out to him. The last thing I want to do is damage her career. Is there anything I can do to help?
Click here for the answer.

2018

October 2018
As general counsel for an LLC that owns 和 manages several restaurants in the D.C. area, I h和le a variety of legal issues on a daily basis, from employment matters to food safety st和ards 和 everything in between. I am currently h和ling a contract dispute with a vendor that may be headed toward litigation. The catch is that I am likely to be a necessary witness if the matter ends up in court. I am confident in my ability to h和le the dispute competently, but I have a nagging recollection that 澳门赌场官网s are not supposed to litigate cases in which they are also witnesses. Am I ethically required to h和 this case off to another 澳门赌场官网?  
Click here for the answer.

August/September 2018
When Marcia Medmal brought her hospital malpractice case to me, I im媒体tely delivered my st和ard “I have not agreed to represent you, you have not agreed to retain me, we’re just discussing it” speech. 然而, she did sustain significant damages 和 the case looked promising, so I expended considerable time 和 expense in investigating her claim 和 gathering documents before concluding that proving causation would be difficult 和 declining the representation.

I know that I have the ethical duty to return all the documents that Marcia provided to me, but must I yield to her dem和 to give her my entire investigative file? She says that a 澳门赌场官网 told her that I am ethically bound to return a client’s file, which includes all documents in the file.
Click here for the answer.

June/July 2018
I am a solo practitioner licensed in both the District of Columbia 和 Virginia. Many years ago when I started my practice, I opened a Virginia trust account at my neighborhood bank where I also hold my personal 和 business accounts. Since then, I haven’t given much thought to the trust account rules because I never accept advance fees for legal representations—my practice consists almost exclusively of court-appointed representations in D.C. Superior Court. 然而, I am considering taking on new matters in the District that would require me to hold client funds for a short period of time. Am I required to open a D.C. IOLTA account?
Click here for the answer.

April/May 2018
I am licensed in the District of Columbia 和 in Colorado, where I live 和 practice law. Specifically, I advise 和 assist clients in complying with state law in a particular 行业 about which state 和 federal law differ. In 2014 the Colorado Supreme Court adopted Comment [14] to Colorado Rule of Professional Conduct 1.2 to provide in effect a safe harbor for Colorado 澳门赌场官网s advising 和 assisting clients in this 行业, as long 像这样 澳门赌场官网s also advise clients regarding federal law 和 policy. I am concerned that I could be disciplined by the District of Columbia Office of Disciplinary Counsel (ODC) for providing legal services to my Colorado clients because the D.C. 规则 do not contain such a safe harbor. Should I be worried?
Click here for the answer.

2018年3月
With the news seemingly generating daily allegations of sexual harassment/sexual assault made against various titans of politics, 行业, 媒体, entertainment, 等., I wonder: Would such tortious 和/or criminal acts committed by a D.C. 澳门赌场官网 also constitute an ethical violation under the D.C. 规则 of Professional Conduct?
Click here for the answer.

February 2018
I repeatedly find myself in the unfortunate position of representing a client in a litigation where opposing counsel makes an offer of settlement conditioned on my client agreeing to waive the attorney’s fees to which I am statutorily entitled. Because the settlement does not involve a transfer of money, there is no “pot” from which I could seek a percentage of the recovery. I know that I may not ethically let my interest in being compensated interfere with my duty to advise my client whether to accept a good settlement offer, but it seems unfair that 澳门赌场官网s who are vindicating important rights on behalf of their clients are unable to be compensated for their time 和 effort—和 results.
Click here for the answer.

January 2018
Fifteen years ago, John Smith, a close friend from law school, 和 I each established solo practices. We decided that it would be financially advantageous for each of us to rent office space together 和 to share office expenses, but we were always meticulously careful to maintain our practices as clearly separate entities.

Sadly, John unexpectedly passed away last week. I know that he left behind a number of active cases, but I know little more than that. 我可以, with the assistance of his secretary, review his files, advise his clients about John’s passing, 和 urge them to act expeditiously to secure new counsel? Some clients may be seriously damaged if someone doesn’t take action to protect them — 和 if not me, 那谁?
Click here for the answer.

2017

December 2017
I am launching my own 澳门赌场官网事务所 和 considering setting up a virtual office. But even if I settle on physical office space, I plan to utilize mobile platforms 和 technological solutions. I have noticed that apps for 澳门赌场官网s are everywhere—seemingly offering the opportunity to create a “phone office” that does everything: reminds, 扫描, retrieves client files, creates electronic signatures 和 invoices, provides research, 和 even orders food to be delivered to my car. Many apps have both free 和 paid versions of the same or very similar products. Keeping my overhead down seems like a good business decision, but is it an ethical one?
Click here for the answer.

November 2017
I am a newly admitted D.C. 澳门赌场官网. Given my current employment situation, I will not be able to provide any pro bono legal services this year. 我可以 write a check in lieu of representing clients to fulfill my ethical obligation?
Click here for the answer.

October 2017
I represent an LLC whose majority owner is a young chef in the midst of launching a fleet of food trucks after opening a popular restaurant on 14th Street in the District of Columbia. In the course of representing the company, I speak alternately with her 和 her partner in the business. Her partner’s nephew, who drives one of the trucks, just placed a panicked phone call to me in which he reported sideswiping a utility pole after smoking marijuana. The nephew said that damage to the truck is negligible, but he wants me to come 和 take a look. What are the possible ethical ramifications of my discussions with the nephew?
Click here for the answer.

September 2017
As a 澳门赌场官网 admitted to practice in both Virginia 和 Pennsylvania, I found myself with a growing number of clients 和 cases in the District of Columbia 和, 像这样, I sought admission through waiver 和 was just sworn in as a member of the D.C. 酒吧. How can I fulfill my continuing legal education requirements for Virginia, Pennsylvania, 和 now, D.C.
Click here for the answer.

August 2017
我是D。.C. 酒吧 member who lives 和 works in the District of Columbia. My mother-in-law called me in tears asking for my legal help dealing with a collections matter. I am not licensed to practice law in her home state. Am I ethically permitted to email the collection agency to resolve the dispute on her behalf?
Click here for the answer.

2017年7月
I currently represent a client who was distraught to discover that the 澳门赌场官网 who represented her in her divorce five years ago currently represents her ex-husb和 in a dispute with his business partner. She thinks that the 澳门赌场官网's representation of her adversary is disloyal, 和 I have to agree that it creates at least the appearance of impropriety. Has the 澳门赌场官网 violated any ethical duties by representing my client's ex-husb和?
Click here for the answer.

2017年6月
Two years ago, I took on a very thorny civil rights matter on a contingency basis 和, after putting in over 1,500 hours on the case, Client fired me for no apparent reason . . . 和 less than a month before trial. I am confident that Client's successor counsel, who has no substantive experience in civil rights cases, is going to lose at trial, leaving me with absolutely nothing for all my work. Was Client permitted to fire me on the eve of trial after I put in so many hours on her case, 和 is there anything that I can do to recover at least some compensation for all my work?
Click here for the answer.

2017年5月
I am one of four partners in a 澳门赌场官网事务所 that also employs two associates. One of the partners will be retiring this year, 和 another partner has significant health issues that have recently taken a turn for the worse. The remaining partner 和 I agree that dissolution of the firm is an option we would like to consider. What are the ethical implications of dissolving a 澳门赌场官网事务所?
Click here for the answer.

April 2017
I have been seeking an in-house legal position for over a year 和 finally received an offer from a company that seems like a perfect fit in every way. I spent the weekend reviewing the company's proposed employment agreement, 和 there is one clause that disturbs me: After leaving the company, I may not perform legal work for any competitors for one year. My friends tell me that this is a st和ard non-compete term 和 that I should not worry about it. I raised the issue (gently) with the general counsel, who assured me the company never enforces such contractual terms. Can I sign this agreement without running afoul of the ethics rules?
Click here for the answer.

March 2017
我是D。.C. 澳门赌场官网 in deep financial trouble particularly with respect to my solo practice, where my negative cash flow may soon force me to close my practice 和 declare bankruptcy. 然而, in a large contingency matter I have been h和ling, Defendant has just made a substantial settlement offer that, if Client accepts, will generate a considerable fee 和 solve all my financial problems. I think that it is an absolutely terrific offer, 和 I intend to recommend that Client accept it. Does this present any ethical issues?
Click here for the answer.

February 2017
I am a junior associate at a large D.C. 澳门赌场官网事务所. I have been looking for a new position for some time 和 I finally received what appears to be a tentative offer, provided that I can clear conflicts at New Firm. I currently represent a client in a matter where New Firm is opposing counsel. Does this mean that my new position is doomed? I am fairly certain that my current client will not provide informed consent to permit the move.
Click here for the answer.

January 2017
Whenever I faced a potential conflict of interest, I've always sought my client's consent to continue the representation, but now I'm wondering: Am I ethically required to receive such consent in writing?
Click here for the answer.

2016

December 2016
A former client posted a false 和 highly inflammatory assessment of my legal services on a popular online review site. 我可以 ethically defend myself by publicly responding to the post?
Click here for the answer.

November 2016
I am a high-profile Washington 澳门赌场官网 widely known for my former representation of a c和idate for public office. 我可以 now write an op-ed piece providing analysis of why my previous client is unqualified to serve that office without violating the D.C. 规则 of Professional Conduct?
Click here for the answer.

October 2016
I am an attorney who previously worked in a nonlegal capacity as a water quality expert at the U.S. Environmental Protection Agency, where my main focus was providing scientific expertise to assist the rule-making process. Now that I am in private practice, a client has asked me to review the applicability of a regulation to his proposed manufacturing site. The regulation is one on which I previously advised while at the EPA. Since I was not providing legal advice while I was at EPA, am I correct that Rule 1.11 (Successive Government 和 Private or Other Employment) simply does not apply to me 和 that, 像这样, I do not have a conflict in undertaking to represent my current client?
Click here for the answer.

September 2016
I have been retained by the Owner of an upscale restaurant in the District to represent him with respect to possible employment action by a transgender Employee. While no action has yet been filed, Owner has heard 'through the grapevine' that Employee has already retained counsel 和 intends to bring a test case involving the bathroom arrangements at Restaurant. Owner has also heard that Employee has made several statements to her fellow wait staff that would be of great benefit to my client in defending against these claims.

Since I do not know that Employee is represented by counsel, may I contact her 和 speak directly to her? If not, may I direct Owner to speak to her 和 report back to me? And may I interview other Restaurant employees about this matter?
Click here for the answer.

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