ETHICSearch
ABA Ethics Research Service
Ten Typical Questions Posed To ETHICSearch
Please note that the responses to the following 10 questions are based on the ABA Model Rules of Professional Conduct and ABA ethics opinions. The ABA Model Rules of Professional Conduct and ethics opinions are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result. The responses given are not intended as legal advice.
Question 1 involves: Billing for Travel Time
Question 2 involves: Confidentiality of Client Files
Question 3 involves: 900 Telephone Numbers
Question 4 involves: Disclosure of Client Lists
Question 5 involves: In-house Counsel Sharing Legal Fees
Question 6 involves: Government Lawyer Supervised by Non-lawyer
Question 7 involves: Professional Designation of Former Judge
Question 8 involves: Subpoena for Confidential Information
Question 9 involves: Employment Agreement Restricting Lawyer's Right to Practice
Question 10 involves: Lawyer Representing Executor Engaging in Fraud
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Question 1: A lawyer is flying across the country on a business trip for client A. He has brought along client B's file, and intends to work on client B's matter while on the plane. If the plane trip is four hours, and he works on the client B's matter for four hours, can he bill both clients for four hours of his time?
Response: No. Model Rule 1.5 states that a lawyer's fees shall be reasonable. In Formal Opinion 93-379 (1993), the ABA Ethics Committee opined that under the circumstances described above, a lawyer should not bill client A for four hours of his time. The opinion stated: "Rather than looking to profit from the fortuity of coincidental scheduling...the lawyer who has agreed to bill solely on the basis of time spent is obliged to pass the benefits of these economies on to the client."
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Question 2: A law firm is considering purchasing a new computer network. Office files would be stored in a central compute~ at the firm; all members of the firm would have access to the computer from terminals at their desks.
In order to reduce maintenance costs, the computer company that has installed the system proposes to install a terminal at its place of business so that it can have access to the firm's main computer database (including client files) and software at its location. In this way, the computer company can troubleshoot and maintain the firm's system at its location rather that having to come to the firm every time there is a problem. Can the firm agree to such an arrangement? What if any safeguards must it have in place to protect client confidences?
Response: ABA Formal Opinion 95-398 (1995) addresses this issue. The opinion states that lawyers in the firm must take steps to ensure that the computer company protects the firm's client's confidences. The computer technicians would be considered to be non-lawyer assistants under Model Rule 5.3. Rule 5.3 states that lawyers have an obligation to ensure that the conduct of the nonlawyer employees they employ, retain or become associated with is compatible with the professional obligations of the lawyer. The opinion stated further that should a significant breach of confidentiality occur, the lawyer may be obligated to disclose it to the client.
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Question 3: A law firm is considering establishing a 900 number for legal services. Callers would be billed according to how long they consulted with the lawyers on the phone. Can the firm do so?
Response: There have been several state and local bar association ethics opinions issued on this topic. See, e.g. Alabama State Bar Opinion RO-91-24 (1991), Kansas Bar Association Opinion 92-06 (1993), Supreme Court of Ohio Board of Commissioners on Grievances and Discipline opinion 93-1 (1993). These opinions state that use of the 900 number is permissible but that all of the duties that a lawyer traditionally owes a client apply. Therefore, lawyers using 900 numbers must be careful to protect client confidences, check for conflicts of interest and provide competent representation.
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Question 4: A law firm is being investigated by a government agency that it currently represents. The agency has demanded that the firm disclose to the identity of all clients it currently represents or has represented in the past while it represented the agency in order to determine if the firm had any conflicts when it represented the agency. Must the firm comply with the agency's request?
Response: The firm should resist the agency's efforts to obtain client lists. Several ABA opinions state that client identity can be a client confidence and should not be disclosed without client consent. See, e.g., ABA Formal Opinion 334 (1974) Informal Opinions 1002 (1968), 1081 (1969), 1137 (1970), 1287 (1974), 1399 (1977) and 1493 (1979).
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Question 5: A corporation has in-house counsel. The corporation wants to use make its in-house legal staff available to its corporate business affiliates for representation in various legal matters. The corporation's in-house counsel is concerned about the corporation improperly sharing legal fees with the corporate legal staff. Under what circumstances would such an arrangement be proper?
Response: Under Model Rule 5.4, lawyers may not share legal fees with non-lawyers. The ABA Ethics Committee recently issued opinion 95-392 (1995) on this topic. The Opinion stated that a lawyer would violate Rule 5.4(a) if he were to give the corporation any fees that exceeded the corporation's actual cost of employing the lawyer. There are also several state and local bar opinions on this issue. See, e.g. Colorado Opinion 72 (1991), Indiana Opinion (1991) and State Bar of Texas Opinion 490 (1993).
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Question 6: A Lawyer works in a government elder care office that has a non-lawyer as a supervisor. The supervisor has recently requested that the legal staff make its client files available to him so that he can collect demographic information about the clients the agency lawyers represent. Can the lawyers allow the non-lawyer to look over their client files?
Response: See ABA Formal Opinion 95-393 (1995) for a discussion of this issue. The opinion states that a lawyer may make the files available to the non-lawyer supervisor so long as such disclosure would help to carry out the client's representation as for example where the supervisor's active involvement with third parties would benefit the client. If the disclosure is not necessary to carry out the representation, then the lawyer may disclose the information only if the lawyer has obtained the client's consent.
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Question 7: Can a former judge who is now in private practice use the term "Judge" or "The Honorable" on letterhead, correspondence or pleadings?
Response: No. The use of the term, "Judge" by a former judge who is now practicing law may be misleading to the public in that it may suggest that the former judge has some special influence on the legal system. See, ABA Formal Opinion 95-391 (1995).
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Question 8: A government agency has subpoenaed some of the lawyers' client files. Must the lawyer produce them?
Response: See ABA Formal Opinion 94-385 (1994) (Subpoenas of a lawyer's Files), which addressed this question. Since the client files contain client confidences, the lawyer should seek to limit the subpoena on any legitimate grounds, i.e. attorney client privilege, work product, etc. so as to protect documents that are deemed confidential under Rule 1.6. However, once the court has ordered production of the files, and the lawyer's efforts to protect them are unsuccessful, the lawyer must turn them over.
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Question 9: Can in-house counsel for a corporation make an offer of employment to outside counsel that is contingent on the outside counsel's agreement never to represent anyone against the corporation in the future?
Response: No. Model Rule 5.6(a) states that a lawyer shall not participate in offering or making a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship. See ABA Formal Opinion 94-381 (1994), which addressed this question.
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Question 10: A lawyer represents the executor of an estate. The heirs of the estate suspect that the executor has been mishandling the estate funds, and have contacted the lawyer regarding their concerns. What if any obligations does the lawyer have to the heirs of the estate?
Response: ABA Formal Opinion 94-380 (1994) (Counseling the Fiduciary) stated that lawyers who represent fiduciaries are bound by the same rules of professional conduct that apply to all other lawyers. Therefore, in the above situation, the lawyer would be bound under Rule 1.6 not to disclose client confidences. However, if the fiduciary insists on a course of fraudulent or criminal conduct, the lawyer may be required to withdraw from representation. Note: Some states' versions of Rule 1.6 permit disclosure where the client intends to commit any crime or any fraudulent act. Check the applicable rules in your jurisdiction.
