Conflicted? Representing Criminal Defendants When Your Partner Becomes The District Attorney

Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a lawyer may represent clients in a criminal defense case being prosecuted by the district attorney who was once a partner at the lawyer’s firm given that two conditions are met. The first is that the district attorney must have severed all ties with the firm. The second is that a reasonable lawyer would not conclude there is a significant risk that the lawyer’s professional judgment on behalf of the clients will be adversely affected by the former relationship with the district attorney.

New York Rule 1.7(a)(2) governs the inquiring attorney in this matter. It prohibits a lawyer from representing a client if “a reasonable lawyer would conclude that … there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s … personal interests,” unless, under Rule 1.7(b), the conflict is consentable and the lawyer has obtained consent, confirmed in writing.

The district attorney in this inquiry, as a public official, is governed by Rule 1.11(d)(1), which states, “[e]xcept as law may otherwise expressly provide, a lawyer currently serving as a public officer or employee shall not … participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter.”

The committee found that the inquirer must determine whether a reasonable lawyer would conclude that the attorney’s personal relationship with the district attorney would adversely affect the representation of clients in criminal matters for which the district attorney’s office is responsible. The committee reasoned that if the inquirer knows that the district attorney participated personally and substantially in a case while in private practice, the inquirer may explore the provisions of applicable law and may have an obligation to report such information to the tribunal.

To read the entire opinion, click here.


Public Defenders and Part-time Judges: Duties under the Misconduct Rule

Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a public defender may not represent a client in the court where another public defender is a part-time judge because to do so would violate the public defender’s duties under Rule 8.4(f)—Misconduct.

Rule 8.4(f) prohibits a lawyer from causing a judge to violate his or her own ethical obligations under the Rules of Judicial Conduct not to “permit his or her partners or associates to practice law in the court in which he or she is a judge.”

In the inquiry before the N.Y.S.B.A., the attorney was a member of a public defender office and lived in an area where City Court judges serve on a part-time basis. These part-time judges are also permitted to practice law. Another member of the public defender office was a part-time judge in the City Court.

In reaching its opinion, the Committee reasoned that if the associated part-time City Court judge does not take steps to prevent other lawyers who are part of the same public defender’s office from practicing before the City Court, then the other public defenders—on their own initiative—must decline to make appearances or withdraw altogether.

To read the entire opinion, click here.

Hey “Darling,” There’s No More “Honey” In The Courtroom

The American Bar Association (ABA) House of Delegates passed Resolution 109, which states that it is a violation of professional responsibility to discriminate or harass in conduct related to the practice of law.

So, the use of “honey,” “darling,” and other remarks and gestures is now considered professional misconduct.

Although the discussion focused mainly on harassment and discrimination of women, the Resolution amends Model Rule 8.4 so that it now prohibits conduct that an attorney knows or should reasonably know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

Proponents of the Resolution assert that without an overt prohibition on this type of conduct, the use of demeaning and misogynistic terms and actions to undermine opposing counsel and others will continue without repercussion.

However, whether this Resolution and amendment to Model Rule 8.4 will have the desired effect remains to be seen as it is within the province of each state bar to determine whether to adopt the amendment and if adopted, how to enforce it.

New Social Media Opinions: West Virginia and Colorado

Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.

In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships. The Board concluded in part that attorneys may not make statements on social media that the attorney knows or reasonably knows will be disseminated publicly and will have “a substantial likelihood of materially prejudicing an adjudicative proceeding,” subject to certain exceptions listed in the rule on trial publicity. Additionally, the Board opined that attorneys may accept client reviews but must monitor the reviews for accuracy. Regarding advising clients on their social media presence, the Board concluded that attorneys may advice their clients to change the privacy settings of their social media pages, but attorneys may not instruct their clients to “destroy, alter, or conceal any relevant content on their social media pages.” Instead, attorneys must take the appropriate steps to preserve the information in the event that it is discoverable or relevant to the clients’ cases.

Also in September 2015, the Colorado Bar Association Ethics Committee issued its opinion titled “Use of Social Media for Investigative Purposes.” The Committee concluded that investigation of public profiles and posts is always permitted. Limits apply, however, when permission is requested to view restricted or private content. The opinion addresses ethical issues that arise when lawyers, either directly or indirectly, use social media to obtain information regarding witnesses, jurors, opposing parties, opposing counsel, and judges.

Both West Virginia and Colorado came to the following conclusions, among others: Regarding attorneys reviewing jurors’ Internet presence, attorneys may review public sections of a juror’s social networking presence, but may not attempt to access private sections of a juror’s social media page or use the assistance of a third party to do so. Moreover, attorneys may not seek to communicate ex parte with a judge through social media concerning a matter or issue pending before the judge. The Colorado opinion further states that attorneys may not request permission to view restricted portions of a judge’s social media profile while the judge is presiding over a case in which the lawyer is involved as counsel or as a party.

In a nutshell, both opinions conclude that lawyers must comply with the ethics rules when using social media just as when using other forms of communication.

To read the full West Virginia opinion, click here. To read the full Colorado opinion, click here.

Duty To Notify Clients When Their Files Are Accidentally Destroyed

Accidents happen. However, when an unforeseen disaster or accident results in the destruction of client files, an attorney may have an ethical obligation to notify current and former clients according to the Association of the Bar of the City of New York Committee on Professional Ethics. In September 2015, the Committee opined that “[w]here the destruction of a client file compromises the lawyer’s ability to provide competent and diligent representation to the client, the lawyer must take reasonable steps to reconstruct the file sufficiently to allow the lawyer to provide such competent and diligent representation or must notify the client if he is unable to do so.” Additionally, the lawyer must “notify the current or former client if an accident or disaster compromises the security of confidential information.”

According to the committee, “[t]here is no bright line rule to determine whether the inadvertent destruction of a document triggers a duty to notify the client or former client.” The committee grouped client documents into three categories of importance. For “Category 1” documents (i.e., documents with intrinsic value, such as wills, deeds and negotiable instruments, that directly affect property rights), the lawyer has an affirmative obligation to take reasonable steps to notify the client or former client, unless there is an agreement to the contrary. For “Category 3” documents (i.e., documents that have no useful purpose in serving the client’s present needs for legal advice), the lawyer has no affirmative duty to notify their client of the inadvertent destruction, unless the lawyer and client agreed otherwise. However, if the client asks about the files, the lawyer has a duty under New York Rule of Professional Conduct 1.4 (communication) to inform the client.

As for “Category 2” documents (i.e., documents that may still be necessary or useful), the lawyer must make a case-by-case analysis. If the client’s matter is still active, the lawyer must take reasonable steps to notify the client. However, if the client’s matter is closed, the lawyer must evaluate whether the “client foreseeably may need” the documents. If a document relates to a fully resolved matter, the lawyer need not notify the client of its destruction. Nevertheless, if there are open issues, the lawyer should take reasonable steps to alert the client of the file’s loss.  Other factors to consider for “Category 2” documents include: the amount of time that has passed since the matter was closed; whether the firm previously gave the client reasonable notice that the files were available to be collected or delivered and whether the client responded to such notice; whether the firm delivered copies of the files to the client at the conclusion of the matter or the client received copies of the files while the matter was ongoing; whether the firm has previously made unsuccessful attempts to contact the client; and whether the contents of the file can be reconstructed from other sources.

To read the opinion, click here.