Ask the Ethics Experts

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

2019

November/December 2019
(With apologies to Bobby Pickett and 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, and with maniacal eyes, he slammed something on my desk, and to my surprise:

It was a gun! (and 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, and a bit grotesque,
truly bizarre, and 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 understand that when lawyers 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 quandary. About halfway through a contingency case on which I was the primary attorney, I left the law firm to start my own practice and, 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 demanding 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, and, in accordance with Rule 1.16, I filed a motion to withdraw. Moreover, 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 and that, as such, I may not disclose to the court the reason for my motion.

However, the court has advised that it will not grant my motion unless I provide my basis for it. Classic rock and 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 ... and perhaps much worse.
Click here for the answer.

July/August 2019
My client, 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 and for all.” This morning, I received notice that summary judgment had been entered against him, and 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.

June 2019
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, and I have been unable to locate one other client. May I withdraw from representing those three plaintiffs and proceed to settlement with the remaining 12?
Click here for the answer.

May 2019
I am a D.C. lawyer who wishes to provide more pro bono legal services. As a solo practitioner, however, I am reluctant to commit to a representation that could involve protracted litigation, but I understand that the D.C. Rules 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 mediation or negotiation of a dispute before any suit is filed?
Click here for the answer.

April 2019
I include a standard clause in my retainer agreement requiring the client to waive the right to trial for any fee claim related to my representation and to submit any such claim to the D.C. Bar’s Attorney Client Arbitration Board (ACAB). I recently settled a case for a sophisticated client on very favorable terms, but she refuses to pay my fee and 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 and support for both him and his surviving young child. Our client would like the firm to handle not only the civil litigation related to this atrocity, but also to help direct crowdfunding efforts to pay for legal fees and expenses. ls such assistance permitted under the D.C. Rules of Professional Conduct?
Click here for the answer.

January/February 2019
My close friend Jane is drinking too much. She is a lawyer at a firm here in the District, and I suspect that she won’t be able to hide the problem from her clients and colleagues much longer. Another acquaintance of mine is a member of the D.C. Bar's Lawyer Assistance Committee (formerly, Lawyer Counseling Committee), but it's a small world and 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 and manages several restaurants in the D.C. area, I handle a variety of legal issues on a daily basis, from employment matters to food safety standards and everything in between. I am currently handling 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 handle the dispute competently, but I have a nagging recollection that lawyers are not supposed to litigate cases in which they are also witnesses. Am I ethically required to hand this case off to another lawyer?  
Click here for the answer.

August/September 2018
When Marcia Medmal brought her hospital malpractice case to me, I immediately delivered my standard “I have not agreed to represent you, you have not agreed to retain me, we’re just discussing it” speech. However, she did sustain significant damages and the case looked promising, so I expended considerable time and expense in investigating her claim and gathering documents before concluding that proving causation would be difficult and 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 demand to give her my entire investigative file? She says that a lawyer 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 and 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 and 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. However, 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 and in Colorado, where I live and practice law. Specifically, I advise and assist clients in complying with state law in a particular industry about which state and 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 lawyers advising and assisting clients in this industry, as long as such lawyers also advise clients regarding federal law and 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. Rules do not contain such a safe harbor. Should I be worried?
Click here for the answer.

March 2018
With the news seemingly generating daily allegations of sexual harassment/sexual assault made against various titans of politics, industry, media, entertainment, etc., I wonder: Would such tortious and/or criminal acts committed by a D.C. lawyer also constitute an ethical violation under the D.C. Rules 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 lawyers who are vindicating important rights on behalf of their clients are unable to be compensated for their time and effort—and results.
Click here for the answer.

January 2018
Fifteen years ago, John Smith, a close friend from law school, and I each established solo practices. We decided that it would be financially advantageous for each of us to rent office space together and 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. May I, with the assistance of his secretary, review his files, advise his clients about John’s passing, and urge them to act expeditiously to secure new counsel? Some clients may be seriously damaged if someone doesn’t take action to protect them — and if not me, then who?
Click here for the answer.

2017

December 2017
I am launching my own law firm and considering setting up a virtual office. But even if I settle on physical office space, I plan to utilize mobile platforms and technological solutions. I have noticed that apps for lawyers are everywhere—seemingly offering the opportunity to create a “phone office” that does everything: reminds, scans, retrieves client files, creates electronic signatures and invoices, provides research, and even orders food to be delivered to my car. Many apps have both free and 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. lawyer. Given my current employment situation, I will not be able to provide any pro bono legal services this year. May I 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 and 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 and take a look. What are the possible ethical ramifications of my discussions with the nephew?
Click here for the answer.

September 2017
As a lawyer admitted to practice in both Virginia and Pennsylvania, I found myself with a growing number of clients and cases in the District of Columbia and, as such, I sought admission through waiver and was just sworn in as a member of the D.C. Bar. How can I fulfill my continuing legal education requirements for Virginia, Pennsylvania, and now, D.C.
Click here for the answer.

August 2017
I am a D.C. Bar member who lives and 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.

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

June 2017
Two years ago, I took on a very thorny civil rights matter on a contingency basis and, after putting in over 1,500 hours on the case, Client fired me for no apparent reason . . . and 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, and is there anything that I can do to recover at least some compensation for all my work?
Click here for the answer.

May 2017
I am one of four partners in a law firm that also employs two associates. One of the partners will be retiring this year, and another partner has significant health issues that have recently taken a turn for the worse. The remaining partner and I agree that dissolution of the firm is an option we would like to consider. What are the ethical implications of dissolving a law firm?
Click here for the answer.

April 2017
I have been seeking an in-house legal position for over a year and 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, and 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 standard non-compete term and 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
I am a D.C. lawyer in deep financial trouble particularly with respect to my solo practice, where my negative cash flow may soon force me to close my practice and declare bankruptcy. However, in a large contingency matter I have been handling, Defendant has just made a substantial settlement offer that, if Client accepts, will generate a considerable fee and solve all my financial problems. I think that it is an absolutely terrific offer, and 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. law firm. I have been looking for a new position for some time and 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 and highly inflammatory assessment of my legal services on a popular online review site. May I ethically defend myself by publicly responding to the post?
Click here for the answer.

November 2016
I am a high-profile Washington lawyer widely known for my former representation of a candidate for public office. May I now write an op-ed piece providing analysis of why my previous client is unqualified to serve that office without violating the D.C. Rules 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 and Private or Other Employment) simply does not apply to me and that, as such, 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 and 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 and speak directly to her? If not, may I direct Owner to speak to her and report back to me? And may I interview other Restaurant employees about this matter?
Click here for the answer.