AttorneysEd Center

Tom Mason of Zuckerman Spaeder discusses whether a lawyer can be part of multiple firms and the ethical consequences of multiple affiliations. Topics include: • Those states which permit multiple affiliations and those states which do not, see, e.g. ABA Formal Opinion 90-357; DC Legal Ethics Opinion 338); • The impact on conflict-checking procedures when a lawyer is affiliated with more than one firm (New York State Ethics Op. 793 and 876); • Confidentiality issues in conflicts checks among firms with affiliated lawyers (ABA Model Rule 1.6(b)(7); • The issue of which cases a lawyer brings to which firms and the potential for disputes when a lawyer takes a lucrative case to one firm rather than another; and • The issue of fee-splitting and whether the rules for fee division between different firms apply when a lawyer is affiliated with multiple firms (Ohio Supreme Court Ethics Op. 2008-1; California Formal Ethics Op. 1986-88).

Tom Mason of Zuckerman Spaeder discusses the “no-contact” rule which prohibits a lawyer from contacting represented persons without the permission of the person’s attorney. Topics include: • How to handle contacts initiated by the represented person; • With represented organizations, who can be contacted without pre-clearance from the organization’s attorney; • Contacts for the purpose of replacing the represented person’s current lawyer; • Contacts with in-house counsel of a represented organization; • Client-to-client contacts and the lawyer’s role in advising the client about such contacts; • Contacts with non-lawyer government officials in matters involving the government; and • Conflicts of laws: which ethics rules apply.

Ed Fishman of K&L Gates highlights ethical challenges that are often faced by in-house counsel and outside counsel when conducting internal investigations relating to conduct that has occurred outside the U.S. Such cross-border investigations have become critical for multinational companies that may be subject to a wide range of laws with extraterritorial application, including securities, anti-corruption, export control and international trade laws. However, investigative counsel must be aware of various ethical challenges that can arise when conducting cross-border investigations. The topics covered include the differences between attorney-client privilege rules in the U.S., the E.U. and other jurisdictions; evidence collection challenges as a result of the E.U. Directive on Data Privacy; local employment law considerations when considering disciplinary action against employees outside the U.S.; and the tension that can arise in joint representation situations between Model Rule of Professional Conduct 1.4 (the duty to communicate with

Jean Pawlow and Kevin Spencer, McDermott Will & Emery LLP, discuss the ethical pitfalls that can confront tax practitioners, and how such pitfalls can be avoided. Topics covered: • Errors on tax returns (including amended returns) • Errors made during IRS examination and appeals • Disclosing information to the IRS • Disclosure of privileged information and waiver • Paying fact witnesses during litigation • Spoliation and duty to preserve evidence • Candor before a tribunal and the IRS • Backdating of documents • Levels of tax opinions Specific Ethics Rules and other authorities discussed are ABA Model Rules and Opinions, Circular 230, AICPA Rules, Internal Revenue Code and Treasury Regulations, and case law, including U.S. Supreme Court decisions.

Witnesses need guidance to help them understand the process of testimony and become aware of the essential issues in a case, but how far can an attorney ethically take the preparation process? Steve Bennett of Jones Day examines some of the common problems involved in witness preparation, including: protection of privilege, candor toward the tribunal, and "coaching." Ethics Rules covered include Model Rules of Professional Responsibility 3.3(a)(4) (duty to tribunal to avoid offering false evidence) and 3.4(b) (duty to avoid assisting a witness in testifying falsely).

Ed Fishman of K&L Gates highlights ethical issues that must be considered by internal and external counsel when conducting internal corporate investigations. The importance of conducting internal corporate investigations continues to increase as a result of U.S. government enforcement initiatives (including Sarbanes-Oxley and the Dodd Frank Act) and civil litigation trends. Companies can obtain very significant benefits by properly and effectively conducting an internal investigation. However, investigative counsel must be aware of common ethical challenges that may arise when conducting such investigations. The topics covered in this program include conflict of interest issues (including the potential hazards of joint representation under Model Rule 1.13(g)), attorney-client privilege issues (including the importance of providing an "Upjohn" warning and the consequences of privilege waiver), cooperation credit and remediation considerations (under the U.S. Sentencing Guidelines, the DOJ Principles on Federal Prosecution of Business Organizations and the SEC Seaboard Report), and data

Tom Mason of Zuckerman Spaeder discusses when a lawyer must withdraw from a representation and when a lawyer may withdraw from a representation under the ABA Model Rules (e.g., ABA Model Rules 1.16, 1.2, 1.8, 3.3) and various state Rules. Topics include: • how the ethics rules interact with court rules regarding the entry of a lawyer’s appearance and the withdrawal of that appearance; • the steps a lawyer must or should take with respect to files, client property and client funds after withdrawal; and • the steps a lawyer must or should take with respect to cooperation with successor counsel.

Tom Mason of Zuckerman Spaeder addresses the lawyer’s duty of confidentiality under the ABA Model Rules and various state Rules. Topics include: how and when the duty is triggered; when the obligation ends; what conduct is covered by the obligation of confidentiality; to whom the duty of confidentiality is owed and what type of information is covered; how the ethics rules governing confidentiality relate to the attorney-client privilege; and a review of those exceptions or instances where information covered by the confidentiality rules may be revealed. Our presenter covers scenarios where a lawyer reveals confidential information with client consent, to collect a fee, to address criminal or fraudulent conduct by the client, to comply with court order and other law, and to defend against allegations against the lawyer.

In October of 2012, the USPTO issued a notice of proposed rule-making proposing to replace the current USPTO ethics rules, which are based on the ABA Model Code, with a version of the ABA Model Rules. Join Michael Kasdan for a discussion of the differences between the newly proposed rules and the present regime as well as other ethical issues pertaining to practice before the USPTO.

Jones Day attorneys Irene Fiorentinos and Mark DeMonte discuss how recent cases such as Chin v. Port Authority and Apple v. Samsung fit into a rule of reasonable document preservation and address the ethical challenges that in-house corporate counsel and outside counsel face, consistent with such ABA Model Rules as Model Rule 1.1 (competence) and Model Rule 3.3 (duty to court), when issuing and monitoring litigation holds. NOTE: This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 1 credit hours will apply to legal ethics/professional responsibility credit.