Required to Report a Client’s Drug Addiction? Illinois Says Not Necessarily…

A recent Illinois ethics opinion, advised that although a lawyer is obligated to reveal confidential information about a client if is deemed reasonably necessary to prevent certain death or substantial bodily harm, a client’s addiction to heroin or opioid drugs will not trigger that obligation, absent more specific factual details that indicate the risk is not simply remote and uncertain.

This opinion responded to an attorney’s inquiry about a client, who appeared severely impaired during court hearings and had been unable to stop consuming heroin in violation of bond conditions. Illinois Rule 1.6 departs from ABA Model Rule 1.6 and requires mandatory reporting of life-threatening, dangerous information (rather than discretionary reporting).

The opinion acknowledged that this kind of drug addiction is serious and poses a danger to the client’s safety and wellbeing, but could not conclude that the mere knowledge of such an addiction triggers the mandatory obligation. Though the risk need not be immediate, Comment [6] to Illinois Rule 1.6 states that there must at least be a present and substantial threat that the person will suffer such harm at a later date if the lawyer takes no action to eliminate the threat.

Here, the opinion states that even though this client’s drug addiction presents a future risk, “such danger is sufficiently remote in time and uncertain of occurrence as to render us unable to say that it presents the present and foreseeable threat … as would be required to call the Rule into play.” Therefore, under the circumstances, disclosure was not required.

The opinion made clear that this analysis is “intensely fact-sensitive” and that there could be a factual scenario where a drug addiction requires mandatory reporting—such as a client with a history of attempted suicide or self-inflicted bodily harm. Furthermore, the opinion offered an alternative to Rule 1.6, suggesting that Rule 1.14, which discusses clients with diminished capacity, allows for an attorney to take protective actions such as consulting with necessary entities or appointing a guardian, if necessary, without violating confidentiality. These are all avenues that an attorney should consider if confronted with a similar situation.

OK for Lawyer to Refuse Case Against His Own Church? Maybe.

The New York State Bar Association recently wrote that a lawyer is under no obligation to accept every client—but the ethics committee stopped short of deciding if a particular refusal amounted to discrimination.

The lawyer at issue had been approached about representing a person who wished to sue a church for childhood sexual misconduct. The lawyer is the same religion as the institution against which the claim was to be made, and for that reason, the lawyer was unwilling to represent the claimant.

Hoping his decision would not violate New York’s anti-discrimination ethics rule, the lawyer submitted an inquiry to the Committee on Professional Ethics to decide the matter.

In its opinion, the committee detailed the long-standing principle of law that “a lawyer is under no obligation to act as advisor or advocate for every person who may wish to become a client.” It cited several cases that show the right to deny employment has been affirmed ad nauseam.  However, the committee acknowledged that this right is still subject to federal, state, and local anti-discrimination statutes. Rule 8.4(g) of the ABA Rules of Professional Conduct, for example, limits the lawyer’s freedom to decline representation, “stating that a lawyer or law firm ‘shall not . . .  unlawfully discriminate in the practice of law . . . on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. . . .’”

Accordingly, does a refusal to represent someone who seeks to sue a church of your religion violate this rule? The committee wrote it lacked jurisdiction to say, instead of writing that it would not opine on whether the refusal at hand constituted “unlawful discrimination.”

Perhaps a body with jurisdiction may resolve this question one day. In the meantime, lawyers should be aware that their reasons for denying a case could still be scrutinized, and maybe even deemed discriminatory.

To read the full opinion, click here.

Feuding Directors Can Access Privileged Communications Under Delaware Law

A company’s directors have the right under Delaware law to access all corporate attorney-client communications originated during their terms as directors—even if their interests in the current suit are adverse to the company itself.

The communications at issue in Del Giudice v. Harlan were emails exchanged between members of the board of directors and the company’s counsel. The plaintiffs, who were current directors of the company, expected these emails to assist them in challenging certain distributions paid under the operating agreement. However, the decision, made by a federal magistrate judge in Manhattan, has even broader implications. The order hints that where a discord arises among directors in a company regarding management or control, none of them should expect any of their communications with corporate counsel to be kept confidential in accordance with the privilege.

The defendants argued that the plaintiffs should not be able to gain access to the privileged emails because the plaintiffs’ interests in the suit were adverse to the company and they only sued to enforce their individual interests.

However, Delaware case law does not make distinctions when addressing a director’s right to legal advice provided to the corporation during the director’s term. Therefore, it does not matter that the plaintiffs were serving their own interests when bringing a suit versus serving the interests of the company.

The defendants rejected this argument, urging the court to follow New York law instead of Delaware because New York differs materially and might have generated a different outcome. The judge disagreed and concluded that Delaware law controls due to a choice of law provision in the operating agreement.

To read the full opinion, click here.

Good Old Fashioned Rivalry: NY Bar Allows Attorneys to Represent Direct Competitors of Former Clients

A lawyer may represent a new client who is a direct competitor of a former client in an unrelated action against a third party, even where it would be in the former client’s best interest for the new client to lose the suit.

This representation would be in accordance with the New York State Bar Association’s recent opinion stating that economic adversity between two corporations does not necessarily mean there is a “material adversity” that would violate Rule 1.9 governing duties to former clients.

The rule currently states that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

The rivalry between the two companies itself is not enough to be “materially adverse.” Therefore, mere competition between the companies is not a current client conflict or a former client conflict under the rules. This holds true for companies in the same industry and same geographic area that provide services to the same customer base.

However, the opinion also went one step further. It concluded that even if the former client is threatening to sue the new client in the matter, representation of the new client is still proper—so long as the previous and current matter aren’t substantially related.

Click here to read the opinion.