Course Materials May 13, 2016 Noon-1 p.m. 9519W

Top 10 Ways to Get into Ethical Problems and Tips for Avoiding Them

Amelia C. Kittredge, Esq.

Office of Disciplinary Counsel, District II

Amy Kittredge is a 1971 cum laude graduate of Barnard College, and a 1974 graduate of

Georgetown University Law Center, where she was an Associate Editor of the American

Criminal Law Review. She began her career as an Assistant District Attorney in Manhattan and

was Of Counsel at the Firm of Morgan Lewis & Bockius LLP in Philadelphia, where she was a

litigator for 14 years and co-founded the Product Liability and Toxic Tort Practice Group. She

has also served as a law clerk to state trial and appellate judges in Pennsylvania. From 2000

through 2005 she was a Corporate Counsel at E.I. duPont de Nemours and Company, in

Wilmington, Delaware, managing complex product liability and toxic tort litigation. Since 2006,

Amy has been a Disciplinary Counsel at the Office of Disciplinary Counsel of the Supreme Court

of Pennsylvania. In 2015, she taught Professional Responsibility at the Law School of the

University of Pennsylvania.

© 2016 Pennsylvania Bar Institute. All rights reserved.

THE TOP TEN WAYS TO GET INTO ETHICAL PROBLEMS –

AND TIPS FOR AVOIDING THEM

AMELIA C. KIT TREDGE, ESQUIRE DISCIPLINARY COUNSEL OFFICE OF DISCIPLINARY COUNSEL , DISTRICT I I

1. The “Hot Potato” Problem

Problem: Can I drop the longstanding client (albeit with no pending matters) like a “hot potato” and bring suit against longstanding client on behalf of a new client?

1. The “Hot Potato” Problem

Problem: Can I drop the longstanding client (albeit with no pending matters) like a “hot potato” and bring suit against longstanding client on behalf of a new client? Danger: A concurrent conflict of interest under PA Rule of Professional Conduct 1.7(a)(1) or (2), and likely disqualification.

1. The “Hot Potato” Problem

Solution: If you can fulfill the requisites under RPC 1.7(b), including informed consent from both clients, you may avoid the conflict. “Informed consent” is a defined term under RPC 1.0 (“Terminology”), defined as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

2. Business Transactions with Clients: Opportunity & Risk Problem: Can you invest in Client A’s fledgling business where Client B operates a successful business in the same industry?

2. Business Transactions with Clients: Opportunity & Risk Problem: Can you invest in Client A’s fledgling business where Client B operates a successful business in the same industry?

Danger: Conflict of interest issues under RPCs 1.7(a)(2) (personal interest conflict), and confidentiality concerns under RPCs 1.8(b) and 1.6.

2. Business Transactions with Clients: Opportunity & Risk

Solution: Waiver from both clients under (RPC 1.7(b)1-4), and compliance with the requirements of RPC 1.8(a)(“Conflict of Interest: Current Clients; Specific Rules”).

3. Current Client Named as an Expert for Opposing Counsel

Problem: You represent Dr. X in his divorce, and Dr. X appears on a list of expert witnesses in a personal injury case in which you are opposing counsel.

3. Current Client Named as an Expert for Opposing Counsel

Problem: You represent Dr. X in his divorce, and Dr. X appears on a list of expert witnesses in a personal injury case in which you are opposing counsel.

Danger: Will you have to withdraw from the lucrative personal injury case because you have a conflict of interest and cannot cross-examine your own client? (RPC 1.7, Comment 6).

3. Current Client Named as an Expert for Opposing Counsel

Solution: Limit the scope of the representation under RPC 1.2(c), whereby, with client consent, a “conflicts counsel” is retained by the personal injury client for the purpose of cross-examining the expert.

4. What Do You Do If You Make a Mistake? Problem: Client threatens malpractice suit when deal you negotiated goes sour

4. What Do You Do If You Make a Mistake? Problem: Client threatens malpractice suit when deal you negotiated goes sour;

Danger: Prolonged litigation with the client, higher malpractice insurance premiums and distraction from your practice.

4. What Do You Do If You Make a Mistake? Solution: Settlement which fulfills the requirements of RPC 1.8(h)(2).

5. Prospective Client Issues

Problem: Prospective client interviews you, but you are subsequently engaged by opposing party.

5. Prospective Client Issues

Problem: Prospective client interviews you, but you are subsequently engaged by opposing party. Danger: Conflict of interest and disqualification under RPC 1.18 (“Duties to Prospective Clients”).

5. Prospective Client Issues

Solution: Guidance from Comments [2] – [5] to RPC 1.18.

Problem: How do I deal with my aging or elderly client?

6. Navigating the Minefields of the Aging Client

Problem: How do I deal with my aging or elderly client? Danger: The lawyer may breach his duty of loyalty to client, reveal client confidences unnecessarily.

6. Navigating the Minefields of the Aging Client

Solution: RPC 1.14 (“Client with Diminished Capacity”). Must maintain normal client-lawyer relationship if reasonably possible. May only seek guardianship under extreme conditions set forth in RPC 1.14(b). Must maintain RPC 1.6 confidentiality unless “implied authorization” to disclose under RPC 1.14(b).

6. Navigating the Minefields of the Aging Client

7. The “Well-Meaning” Breach of Confidentiality

Problem: Lawyer gives substitute lawyer his client’s file to prepare for hearing.

7. The “Well-Meaning” Breach of Confidentiality

Problem: Lawyer gives substitute lawyer his client’s file to prepare for hearing. Danger: Obvious breach of confidentiality.

7. The “Well-Meaning” Breach of Confidentiality

Solution: RPC 1.6(d)

Lawyer can only disclose confidential information as enumerated in RPC 1.6(a),(b),(c); Duty of confidentiality continues even after

client-lawyer relationship has terminated. RPC 1.6(e)

8. The Unrepresented Opponent

Problem: What are the guidelines and requirements for dealing with an unrepresented opponent?

8. The Unrepresented Opponent

Problem: What are the guidelines and requirements for dealing with an unrepresented opponent? Danger: Lawyer may be accused of overreaching and disqualified.

8. The Unrepresented Opponent Solution: RPC 4.3 (Dealing with Unrepresented Person) Know limitation on advice or guidance lawyer can

give to opponent . RPC 4.3(b) & (c) Guidance from Comments: Lawyer can negotiate

the terms of a settlement or transaction and can prepare documents, but has limits and requirements in final resolution of the matter. (Comment[2]).

9. Failure to “Fire” the Client Problem: Lawyer completes a matter for a client – a business transaction, litigation, a negotiation or mediation, but when problems in the underlying transaction or settlement occur, client believes lawyer is under a duty to take care of it.

9. Failure to “Fire” the Client Problem: Lawyer completes a matter for a client – a business transaction, litigation, a negotiation or mediation, but when problems in the underlying transaction or settlement occur, client believes lawyer is under a duty to take care of it. Danger: Ambiguity breeds trouble and a client who thinks lawyer is negligent and has abandoned him.

9. Failure to “Fire” the Client Solution: Advisable, under RPC 1.16(d), to send client a letter when representation is completed.

10. When is it Mandatory to Decline or Withdraw From a Representation? Problem: How does a lawyer know when he can’t accept or continue a representation and what are his responsibilities when he does terminate a representation?

10. When is it Mandatory to Decline or Withdraw From a Representation? Problem:How does a lawyer know when he can’t accept or continue a representation and what are his responsibilities when he does terminate a representation? Danger: Unauthorized or improper representation.

10. When is it Mandatory to Decline or Withdraw From a Representation? Solution: Lawyer must decline or withdraw under three circumstances. RPC 1.16(a)(1-3) Caveat: Under RPC 1.16(c), “notwithstanding

good cause” for terminating the representation, lawyer must continue.

Thank you for participating!

Amelia C. Kittredge, Esquire

Disciplinary Counsel

Office of Disciplinary Counsel, District II