1995 ADVISORY ETHICS OPINIONS

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95-22 An attorney who was once, but is no longer, actively involved in representation of a public corporation in matters such as public offerings, annual meetings, and takeover defense planning may not, without the consent of the corporation, properly represent the company’s former president/board chairman, who is a significant shareholder in the company, in connection with exercising his rights as a shareholder, including efforts to promote the sale of the company to outside interests.

95-21 An attorney who is insured and is currently being defended in litigation by an insurance carrier may pursue an unrelated claim against that same insurance carrier for a client only if the client consents after full disclosure of the relationship and the potential for conflict.

95-20 No Opinion.

95-19 Where an attorney learns through a client confidence that one of several jointly represented clients has committed a fiduciary crime against one of the other joint clients, the attorney may not breach the confidence by alerting law enforcement authorities or third parties or by alerting the other clients, but the attorney must immediately withdraw from further representation of any of the clients.

95-18 The Professional Responsibility Committee will not evaluate or comment on the conduct of a non-requesting attorney.

95-17
A lawyer may not interview administrative officers of a client’s local governmental employer concerning their knowledge of facts concerning the client’s injury while on the employer’s property without the consent of the attorney for the employer’s workers compensation insurer, where the lawyer has brought suit against individual co-employees and other but does not seek to hold the employer liable for the client’s injuries. The lawyer is not required to obtain the consent of the attorneys for the co-employee defendants in the lawsuit.

95-16 An attorney may not disclose a client’s confidences or secrets even after the representation has terminated, and a client’s prior grant of limited authority to discuss a case with an adverse party in the course of investigation does not constitute a consent to disclose confidences and secrets with the adverse party after termination of the representation.

95-15 An attorney is permitted to share office space with a nonlawyer with whom the attorney maintains an ongoing business relationship in addition to the attorney’s separate and ongoing practice of law provided the arrangements and relationship are such that client confidences and secrets are preserved, improper solicitation and fee splitting are avoided, and proper care is taken to maintain the exercise of independent professional judgment on behalf of the client, to avoid misleading the public and to avoid the appearance of impropriety in the arrangement.

95-14 The individual attorneys in two professional corporations practicing in the same community may enter into a partnership with each other for the sole purpose of owning an office building and converting it into two condominium units, each of which will then be sold to one of the two professional corporations. This is true even though the two professional corporations have occasion to oppose each other on behalf of their respective clients.

95-13
A lawyer may represent the wife against her husband in a contested divorce even though the lawyer had previously represented the husband in a criminal matter several years earlier, where there is no substantial relationship between the issues in the divorce and the former representation and the lawyer did not learn or retain any confidences or secrets from the husband that would work to his disadvantage in the divorce.

95-12 An attorney may enter into a contingent fee agreement with the custodial spouse for collection of delinquent child support and spousal maintenance payments. The details of the contingent fee agreement must be made known to the court from which the appropriate order issues. Such agreements based on the value of future payments are not categorically prohibited by the Disciplinary Rules but should be limited to a reasonable percentage of the payments when they are received by the client.

95-11 A restriction on the right of plaintiff’s attorney to represent future claimants against a defendant as part of a settlement of the attorney’s existing client’s claims against that same defendant represents an impermissible restriction on the right to practice which may not be demanded or accepted without violating DR 2-108(B).

95-10 One of two attorneys in a dispute resolution and legal services clinic may properly perform case evaluations for matters which will be mediated by the second attorney. Paralegals employed by the clinic may gather information and prepare such documents as pleadings and affidavits, provided they are subjected to attorney supervision. The clinic should exercise caution in determining whether it is appropriate, in any given case, to draft settlement agreements for the parties, even where the parties have independently arrived at such an agreement. The appropriate course of practice is to recommend that each of the parties secure their own independent legal review of the agreement prior to executing it.

95-09 An attorney who, either directly or indirectly, performs legal services on behalf of a bank/lender in the closing of a residential real estate transaction, does so at his/her peril when the borrower is not represented by counsel. The attorney must exercise caution to avoid any suggestion that he/she acts on behalf of the borrower. The need to exercise caution is particularly strong with respect to loan packages which provide significant savings to a borrower who chooses to proceed to closing without his/her own attorney.

95-08
When an attorney representing a client in a social security disability benefit hearing obtains medical opinion evidence which is not consistent with this client’s claim, such evidence need not be disclosed, provided that: (1) there is reasonable justification for rejecting the opinion and accepting another; and (2) that no direct request for production of such materials has been made by the Administrative Law Judge.

95-07 Where a client knowingly testifies falsely regarding a material matter and where the case remains pending before the court for decision when the client’s attorney learns that the client testified falsely, the attorney has a duty to call upon the client to reveal the false testimony to the court prior to the court’s decision, and if the client refuses, the attorney must make the disclosure.

95-06 Not Published.

95-05 Upon the death of a client, a lawyer, upon request, is ethically bound to turn over the client’s papers and property only to the Executrix of the client’s estate, but to no other person.

95-04 An attorney may not recommend that a client enter into a plea agreement in a criminal case that contains provisions waiving post-conviction rights or remedies that would be based on allegations of ineffective assistance of counsel or prosecutorial misconduct.

95-03 An attorney may not simultaneously represent a borrower and act as closing agent for a mortgage lending company in the same transaction. For additional information, see Professional Responsibility Opinions 90-8 and 94-8.

95-02 Participation in a for-profit lawyer referral service without payment of a fee to the service does not violate the Code of Professional Responsibility.

95-01 In the absence of an enforceable lien, properly perfected, or in agreement consented to by the client, an attorney does not violate the Code of Professional Responsibility by failing to forward funds obtained in settlement of litigation to parties who provided medical care to the plaintiff.



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