Ethical Considerations for
In-House Counsel: Rules vs. Reality
May 4, 2012
Presented by
Peter L. Blacklock, Esq.
Elliot A. Hallak, Esq.
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Ethical Considerations for
In-House Counsel: Rules vs. Reality
Fox Rothschild LLP
A Full-Service National Law Firm with
Offices in:
ATLANTIC CITY, NJ
BLUE BELL, PA
EXTON, PA
LAS VEGAS, NV
LOS ANGELES, CA
NEW YORK, NY
PHILADELPHIA, PA
PITTSBURGH, PA
PRINCETON, NJ
ROSELAND, NJ
SAN FRANCISCO, CA
STANFORD, CT
WARRINGTON, PA
WASHINGTON, D.C.
WEST PALM BEACH, FL
WILMINGTON, DE
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Ethical Considerations for
In-House Counsel: Rules vs. Reality
Agenda
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Admissions / Licensing
Internal Investigations
Privilege
Social Media
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Admissions/Licensing
ABA Model Rules of Professional Conduct
Rule 5.5 Unauthorized Practice of Law;
Multi-jurisdictional Practice of Law
(d) A lawyer admitted in another United States
jurisdiction, and not disbarred or suspended from
practice in any jurisdiction, may provide legal
services in this jurisdiction that:
(1) are provided to the lawyer’s employer or its
organizational affiliates and are not services for
which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by
federal law or other law of this jurisdiction.
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Admissions/Licensing
Rules Regulating The Florida Bar
Rule 17 - Authorized House Counsel Rule
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Admissions/Licensing
Florida Rule 17-1.3 Activities
a) Authorized Activities. An authorized house counsel, as an employee of a
business organization, may provide legal services in the state of Florida to
the business organization for which a registration pursuant to rule 17-1.4 is
effective, provided, however, that such activities shall be limited to:
(1) the giving of legal advice to the directors, officers, employees, and agents of the business
organization with respect to its business and affairs;
(2) negotiating and documenting all matters for the business organization; and
(3) representation of the business organization in its dealings with any administrative agency or
commission having jurisdiction; provided however, authorized house counsel shall not be
permitted to make appearances as counsel in any court, administrative tribunal, agency, or
commission situated in the state of Florida unless the rules governing such court or body shall
otherwise authorize, or the attorney is specially admitted by such court or body in a case.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Admissions/Licensing
Florida Rule 17-1.3 Activities
(b) Disclosure. In any communication with individuals/organizations outside
of the business organization, authorized house counsel shall disclose
that they are not licensed to practice law in the state of Florida. If the
communication is in writing, authorized house counsel shall disclose in
writing the name of the business organization, their title or function, and
that they are not licensed to practice law in the state of Florida. For
example, the disclosure may state "J. Doe, XYZ Corporation, Authorized
House Counsel, member …..(name of other state bar).…. only or not a
member of The Florida Bar." In performing activities under this
subdivision, authorized house counsel shall not represent themselves to
be members of The Florida Bar licensed to practice law in this state.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Admissions/Licensing
Florida Rule 17-1.4
(a) Filing with The Florida Bar. The following shall be filed with The Florida
Bar by an individual seeking to be certified as authorized house counsel:
(1) A certificate from an entity governing the practice of law in all United
States jurisdictions in which the registrant is licensed to practice law
certifying that the registrant is in active status and is a member in good
standing; or is in inactive status. If in inactive status, the certificate must
certify that the registrant is in voluntary inactive status and was not placed
on inactive status involuntarily. If available, the registrant must provide a
certificate of good standing in addition to the certificate regarding the
registrant's inactive status.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Admissions/Licensing
Florida Rule 17-1.4 (a) (continued)
(2) a sworn statement by the registrant that the registrant:
(A) has read and is familiar with chapters 4 and 17 of the Rules Regulating The Florida Bar as adopted by
the Supreme Court of Florida and will abide by the provisions thereof;
(B) submits to the jurisdiction of the Supreme Court of Florida for disciplinary purposes, as defined in
chapter 3 of the Rules Regulating The Florida Bar and rule 17-1.6 herein, and authorizes notification
to or from the entity governing the practice of law of each state, territory, or the District of Columbia in
which the registrant is licensed to practice law of any disciplinary action taken against the registrant;
and
(C) is not subject to a disciplinary proceeding or outstanding order of reprimand, censure, or disbarment,
permanent or temporary, for professional misconduct by the bar or courts of any jurisdiction and has
not been permanently denied admission to practice before the bar of any jurisdiction based upon such
person’s character or fitness
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Admissions/Licensing
Florida Rule 17-1.4
(b) Filing with The Florida Bar (continued)
(3) a certificate from a business organization certifying that: it is qualified as set forth in
subdivision (b) of rule 17-1.2; that it is aware that the registrant is not licensed to
practice in Florida; and it is not relying upon The Florida Bar in any manner in
employing the authorized house counsel;
(4) an appropriate registration application to The Florida Bar as promulgated by the
executive director of The Florida Bar; and
(5) an appropriate remittance of a filing fee prescribed and set by the executive director
of The Florida Bar in an amount not to exceed the amount applicable for admission
to the bar examination for an attorney licensed in a state other than Florida.
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Admissions/Licensing
ABA Rule 5.5(a-b)
Unauthorized Practice Of Law;
Multijurisdictional Practice Of Law
(a) A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another in
doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law;
or
(2) hold out to the public or otherwise represent that the lawyer is admitted to
practice law in this jurisdiction.
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Admissions/Licensing
Florida Rule 4-5.5
Unauthorized Practice Of Law;
Multijurisdictional Practice Of Law
(a) Practice of Law. A lawyer shall not practice law in a jurisdiction other
than the lawyer’s home state, in violation of the regulation of the legal
profession in that jurisdiction, or in violation of the regulation of the legal
profession in the lawyer’s home state or assist another in doing so.
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Admissions/Licensing
Florida Rule 4-5.5
(b) Prohibited Conduct. A lawyer who is not admitted to practice in
Florida shall not:
(1) except as authorized by other law, establish an office or other regular
presence in Florida for the practice of law;
(2) hold out to the public or otherwise represent that the lawyer is admitted to
practice law in Florida; or
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Admissions/Licensing
Florida Rule 4-5.5
(b) Prohibited Conduct (continued).
A lawyer who is not admitted to practice in Florida shall not:
3) appear in court, before an administrative agency, or before any other
tribunal unless authorized to do so by the court, administrative agency, or
tribunal pursuant to the applicable rules of the court, administrative agency,
or tribunal.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Admissions/Licensing
Gucci America, Inc. v. Guess?, Inc., 2010 U.S. Dist.
LEXIS 65871 (S.D.N.Y. June 29, 2010)
“An essential element of the attorney-client privilege, under any standard, is that
an attorney participates in the communication. An attorney is one who is
‘admitted to the bar of a state or federal court.’ Moreover, the ‘[bar] membership
must be of a type that licenses one to practice law.’ Thus, the attorney-client
privilege contemplates that the client communicate with an individual who is not
simply trained in the law, but actually authorized to engage in the practice of
law.” [citations omitted]
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Admissions/Licensing
Georgia-Pacific Plywood Company v. United States Plywood Corporation, 18 F.R.D. 463
(S.D.N.Y. 1956) (corporate general counsel officed in NY, but licensed in PA and D.C., was a
lawyer for privilege purposes)
Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442 (D. Del. 1982) (privilege upheld
in communication with in-house counsel in France even where such communications would
not be privileged in France)
Florida Marlins Baseball Club, LLC v. Certain Underwriters at Lloyd's, 900 a) So. 2d 720 (Fla.
3d DCA 2005) (active membership in MO, sufficient to maintain privilege)
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Admissions/Licensing
Attorney 1 – G.C. of Subsidiary “B”
Subsidiary “B”
Attorney’s 2 – G.C. of Parent “A”
Parent “A”
Acquisition Candidate “C”
Subsidiary “B” – DE LLC
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Proliferation of Claims
 By Government
 By Receivers and Trustees
 By Aggressive Plaintiffs’ Bar
Ethical Considerations for In-House Counsel: Rules vs. Reality
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The Internal Investigation
 When do you initiate an internal
investigation?
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When you have a credible violation of the
law or company policy that has or can cause
substantial injury to the corporation
 Err on the side of caution
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If you think an investigation might be
necessary, it probably is
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Who Conducts Investigation
 Inside counsel vs. outside counsel
 Combination of both
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Independence Is Key
 In-house counsel may be perceived as being
less independent
 In-house counsel generally perceived as more
motivated to try to protect the company
 Having outside counsel generally ensures that
people doing the investigating are not the same
people involved in the wrongdoing
 In-house counsel have own biases
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Advantages of In-House Counsel
 In-house counsel know the people,
industry, and business
 Greater confidentiality
 In-house counsel can command more
cooperation from employees
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Selecting Outside Counsel
 Outside counsel should have sufficient
trial and interviewing experience
 Must be independent
 Must be able to give unbiased
assessment
 Must be able to stand up to company
management
 Must be able to establish good rapport
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Timing and Resources
 Thoroughness
 Poor investigation worse than none at all
 Poor Investigations may:
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Expose the company to bad publicity
Give perception that the company does not
take claims of misconduct seriously
Harsher treatment from
government/regulators
Increase likelihood of civil actions
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Timing
 Need to act swiftly
 Goal is to immediately identify, stop, and
correct any misconduct
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Cost
 Internal investigations are expensive,
particularly if outside counsel are used
 However, may be cheaper in the long run
-
Seaboard Doctrine: Credit for self-policing
and self-reporting
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Scope of Investigation
 Outline the scope of the investigation from
the outset
 Be flexible and prepared to adapt to
change
 Identify witnesses and preserve documents
 Issue preservation memorandums to
witnesses to preserve all records,
particularly electronically stored information
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Interviews
 Interviewer must give Corporate
Miranda/Upjohn Warnings:
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Counsel is conducting an investigation on behalf of
entity
Purpose of investigation to provide legal advice to
entity
Counsel represents the entity and not any individual
employee
The employee may seek independent representation
Any information disclosed to counsel may not be
protected by the attorney-client privilege and may be
disclosed to the corporation or to third parties at the
entity's discretion
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Interviews
 Have a second person at interview
 Immediately write interview
memorandums
 Avoid taping the interview
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Document Preservation
 Electronically Stored Information (ESI)
 Lawyers today must be competent in
lawyering and in computer technology
 Paper discovery is a thing of the past
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Spoliation
 Companies need effective document
retention policies
 Halt destruction of any relevant evidence
as soon as you receive notice of a
potential claim
 Have written agreements in place with
outside vendors regarding preservation
and confidentiality of data
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Outside Vendor Agreements
 Agreement with outside vendor should
cover:
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Handling of confidential client information
Retrieval of Data
Security policies regarding access to
confidential information
The Vendor’s backup procedures
Destruction of documents
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Consequences for Spoliation
 If you are party to a lawsuit:
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Monetary sanctions
Striking of pleadings
Evidence preclusion
Adverse inference jury instruction
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Third-Party Cause of Action for
Spoliation of Evidence
 Third-Party cause of action exists in
Florida for spoliation of evidence
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The Plaintiff need not prove that he would
have won the case if the evidence were
preserved, but only that the destruction of
evidence cost him or her an opportunity to
prove his or her lawsuit.
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Avoiding Crisis
 Be proactive
 Have adequate written policies in place to
ensure that employees are encouraged
to and do raise concerns through
appropriate channels
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Company Policies
 Policies should consider:
-
To whom concerns should be raised
Provide alternate person to raise concerns to if primary person
is the person accused of committing the wrongdoing
Form of the communication – written v. oral
Actions that will be taken if retaliation against reporting
employee
Consequences of false reporting
Confidentiality/Anonymous reporting
How to handle reports that become public (e.g. – person
wants to remain confidential/anonymous, but needs to testify
in court)
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Preserving Privilege in Investigation
 Guard privilege closely from the outset
 Want disclosure on your terms
 Use attorneys in investigation. No
attorney = no attorney-client privilege
 Use a separate engagement letter for
outside counsel – investigation to discover
facts and for legal advice
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Safeguarding Privilege for In-House
Counsel Communications
 In-House counsel have dual roles to give
business advice and legal advice
 Only legal advice privileged
 Only include necessary people in
communications
 Expressly state that the communication is
for purposes of legal advice
 Avoid “Reply to All” or sending string emails
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Disclosing the Investigation Report
 Strategic decision to waive privilege as to
investigative report
 Considerations:
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Severity of findings
Company success in addressing misconduct
Will the conduct come to light anyways
(whistleblowers, leaks to media, etc…)
Is the report likely to prevent action against
the company or to invite adverse action
against the company
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Waiver of Privilege
 Selective waiver generally not
permissible
 Report may be discoverable by additional
parties if disclosed
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Ethics Rules for General Counsel
 ABA Model Rule 1.13 - Organization as
Client
 Florida Rules of Professional Conduct 41.13 – Organization as Client
Ethical Considerations for In-House Counsel: Rules vs. Reality
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ABA Model Rule 1.13(a)
 A lawyer employed or retained by an
organization represents the organization
acting through its duly authorized
constituents
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Florida Rule 4-1.13(a)
 Representation of Organization. A
lawyer employed or retained by an
organization represents the organization
acting through its duly authorized
constituents.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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ABA Model Rule 1.13 (b)
 If a lawyer for an organization knows that an officer, employee or
other person associated with the organization is engaged in
action, intends to act or refuses to act in a matter related to the
representation that is a violation of a legal obligation to the
organization, or a violation of law that reasonably might be
imputed to the organization, and that is likely to result in
substantial injury to the organization, then the lawyer shall
proceed as is reasonably necessary in the best interest of the
organization. Unless the lawyer reasonably believes that it is not
necessary in the best interest of the organization to do so, the
lawyer shall refer the matter to higher authority in the organization,
including, if warranted by the circumstances to the highest
authority that can act on behalf of the organization as determined
by applicable law.
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Florida Rule 4-1.13(b)
 Violations by Officers or Employees of Organization. If a lawyer
for an organization knows that an officer, employee, or other person
associated with the organization is engaged in action, intends to act,
or refuses to act in a matter related to the representation that is a
violation of a legal obligation to the organization or a violation of law
that reasonably might be imputed to the organization and is likely to
result in substantial injury to the organization, the lawyer shall
proceed as is reasonably necessary in the best interest of the
organization. In determining how to proceed, the lawyer shall
give due consideration to the seriousness of the violation and
its consequences, the scope and nature of the lawyer's
representation, the responsibility in the organization and the
apparent motivation of the person involved, the policies of the
organization concerning such matters, and any other relevant
considerations. Any measures taken shall be designed to
minimize disruption of the organization and the risk of revealing
information relating to the representation to persons outside the
organization.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Florida Rule 4-1.13(b)(cont.)
 Such measures may include among
others:
-
-
(1) asking reconsideration of the matter;
(2) advising that a separate legal opinion on
the matter be sought for presentation to
appropriate authority in the organization; and
(3) referring the matter to higher authority in
the organization, including, if warranted by
the seriousness of the matter, referral to the
highest authority that can act in behalf of the
organization as determined by applicable
law.
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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ABA Model Rule 1.13(c)
 Except as provided in paragraph (d), if
-
-
(1) despite the lawyer's efforts in accordance with
paragraph (b) the highest authority that can act on
behalf of the organization insists upon or fails to
address in a timely and appropriate manner an action,
or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is
reasonably certain to result in substantial injury to the
organization, then the lawyer may reveal information
relating to the representation whether or not Rule 1.6
permits such disclosure, but only if and to the extent
the lawyer reasonably believes necessary to prevent
substantial injury to the organization.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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ABA Model Rule 1.13(d)
 Paragraph (c) shall not apply with respect
to information relating to a lawyer's
representation of an organization to
investigate an alleged violation of law, or
to defend the organization or an officer,
employee or other constituent associated
with the organization against a claim
arising out of an alleged violation of law.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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ABA Model Rule 1.13(e)
 A lawyer who reasonably believes that he or she
has been discharged because of the lawyer's
actions taken pursuant to paragraphs (b) or (c),
or who withdraws under circumstances that
require or permit the lawyer to take action under
either of those paragraphs, shall proceed as the
lawyer reasonably believes necessary to assure
that the organization's highest authority is
informed of the lawyer's discharge or withdrawal.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Florida Rule 4-1.13(c)
 Resignation as Counsel for Organization.
If, despite the lawyer's efforts in accordance with
subdivision (b), the highest authority that can act
on behalf of the organization insists upon action,
or a refusal to act, that is clearly a violation of law
and is likely to result in substantial injury to the
organization, the lawyer may resign in accordance
with rule 4-1.16.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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ABA Model Rule 1.13(f)
 (f) In dealing with an organization's directors,
officers, employees, members, shareholders or
other constituents, a lawyer shall explain the
identity of the client when the lawyer knows or
reasonably should know that the organization's
interests are adverse to those of the
constituents with whom the lawyer is dealing.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Florida Rule 4-1.13(d)
 Identification of Client. In dealing with an
organization's directors, officers, employees,
members, shareholders, or other constituents,
a lawyer shall explain the identity of the client
when the lawyer knows or reasonably should
know that the organization's interests are
adverse to those of the constituents with whom
the lawyer is dealing.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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ABA Model Rule 1.13(g)
 A lawyer representing an organization may also
represent any of its directors, officers,
employees, members, shareholders or other
constituents, subject to the provisions of Rule
1.7. If the organization's consent to the dual
representation is required by Rule 1.7, the
consent shall be given by an appropriate
official of the organization other than the
individual who is to be represented, or by the
shareholders.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Florida Rule 4-1.13(e)
 (e) Representing Directors, Officers, Employees,
Members, Shareholders, or Other Constituents of
Organization. A lawyer representing an organization
may also represent any of its directors, officers,
employees, members, shareholders, or other
constituents, subject to the provisions of rule 4-1.7 If the
organization's consent to the dual representation is
required by rule 4-1.7, the consent shall be given by an
appropriate official of the organization other than the
individual who is to be represented, or by the
shareholders
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Parent/Subsidiary Representation
 When Interests Aligned
 General Rule - Common and entirely
ethical to represent both.
 Privilege generally extends to
communications with representatives of
entire corporate family
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Diverging Interests
 Potential scenarios
-
Sale or bankruptcy of poorly performing
subsidiary
Liability issues with subsidiary
Subsidiary claiming that parent is not
meeting obligations
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Privilege Between Disputing
Parent/Subsidiary
 Who owns/controls the privilege
 What is discoverable
 Can counsel continue to represent
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Social Media
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Social Media
Ethical Considerations for In-House Counsel: Rules vs. Reality
© 2012 Fox Rothschild LLP
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Social Media
1.
2.
3.
4.
5.
6.
7.
8.
DEFAMATION
HARASSMENT/DISCRIMINATION ISSUES
CRIMINAL ACTIVITY
IP INFRINGEMENT (TRADEMARK,
COPYRIGHT)
BANDWIDTH CONSIDERATIONS
LOSS OF PRODUCTIVITY
EXPOSURE TO VIRUSES
UNITENTIONAL DISCLOSURE OF
PROPRIETARY AND CONFIDENTIAL
INFORMATION
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Social Media
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Stored Communications Act
Electronic Communications Privacy Act
Computer Fraud & Abuse Act
Patriot Act
Identity Theft Enforcement Act
Occupational Safety & Health Act
Anti-Discrimination Laws (Title VII of Civil Rights Act, ADA, ADEA, etc.)
Sarbanes Oxley
National Labor Relations Act
Securities Law of 1933
Common Laws Claims (defamation, invasion of privacy, etc.)
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Social Media
ABA Model Rules of Professional Conduct
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Social Media
Florida Rule 4-1.1
Perhaps the most fundamental legal skill consists of determining what kind of
legal problems a situation may involve, a skill that necessarily transcends any
particular specialized knowledge. A lawyer can provide adequate
representation in a wholly novel field through necessary study.
Competent handling of a particular matter includes inquiry into and analysis of
the factual and legal elements of the problem, and use of methods and
procedures meeting the standards of competent practitioners. It also includes
adequate preparation.
Ethical Considerations for In-House Counsel: Rules vs. Reality
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Social Media
Recent Decisions Regarding Attorneys’ Ethical
Obligations to Maintain Technological Competence:
Seven Seas Cruises S. DE R.I. v. V Ships Leisure Sam, 2011 U.S. Dist.
LEXIS 19465 (S.D. Fla. 2011)
Pension Comm. of the Univ. of Montreal Pension Plan v. Banc. Of Am. Sec., LLC,
685 F. Supp. 2d 456 (S.D.N.Y. 2010)
Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal 2008)
Ethical Considerations for In-House Counsel: Rules vs. Reality
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ABA Model Rules of Professional Conduct
Rule 1.18 Duties To Prospective Client
(a) A person who discusses with a lawyer the possibility of forming a
client-lawyer relationship with respect to a matter is a prospective
client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had
discussions with a prospective client shall not use or reveal
information learned in the consultation, except as Rule 1.9 would
permit with respect to information of a former client.
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FLORIDA SUPREME COURT - Judicial Ethics Advisory Committee
Opinion Number: 2009-20
Date of Issue: November 17, 2009
ISSUE:
Whether a judge may add lawyers who may appear before the judge
as "friends" on a social networking site, and permit such lawyers to
add the judge as their "friend.“
ANSWER:
No.
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ABA Model Rules of Professional Conduct
Rule 3.5 Impartiality And Decorum Of The Tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official
by means prohibited by law;
(b) communicate ex parte with such a person during the
proceeding unless authorized to do so by law or court
order
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ABA Model Rules of Professional Conduct
Rule 3.5 Impartiality And Decorum Of The Tribunal
A lawyer shall not:
(c) communicate with a juror or prospective juror after discharge of
the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to
communicate; or
(3) the communication involves misrepresentation, coercion,
duress or harassment.
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ABA Model Rules of Professional Conduct
Rule 3.6 Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or
litigation of a matter shall not make an extrajudicial statement that the
lawyer knows or reasonably should know will be disseminated by
means of public communication and will have a substantial likelihood
of materially prejudicing an adjudicative proceeding in the matter.
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ABA Model Rules of Professional Conduct
Rule 3.6 Trial Publicity
(c) Notwithstanding paragraph (a), a lawyer may make a statement
that a reasonable lawyer would believe is required to protect a
client from the substantial undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyer's client. A
statement made pursuant to this paragraph shall be limited to
such information as is necessary to mitigate the recent adverse
publicity.
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ABA Rule 3.6
 Stroble v. California, 343 U.S. 181, 195 (1952)
 D.L v. Slattery, Case No. 10-61902-Civ-Moore
(S.D. Fla. March 31, 2011)
 E.I. Dupont de Nemours & Co. v. Aquamar, S.A,
33 So.3d 839 (Fla. 4th DCA 2010)
 Rodriguez ex rel. Posso-Rodriguez v. Feinstein,
734 So.2d 1162 (Fla. 3d DCA 1999)
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ABA Model Rules of Professional Conduct
Rule 4.1 Truthfulness In Statements To Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person
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PHILADELPHIA BAR ASSOCIATION
Professional Guidance Committee
Opinion Number: 2009-02
Date of Issue: March, 2009
ISSUE:
Whether employing a third party to “friend” an unrepresented, non-party
witness to gain access to her account for impeachment purposes would be
permissible.
ANSWER:
No.
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ABA Model Rules of Professional Conduct
Rule 5.5 Unauthorized Practice Of Law;
Multijurisdictional Practice Of Law
(b) A lawyer who is not admitted to practice in this jurisdiction shall
not:
(1) except as authorized by these Rules or other law, establish an office
or other systematic and continuous presence in this jurisdiction for the
practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is
admitted to practice law in this jurisdiction.
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Florida Rule 4-5.5
(b) Prohibited Conduct. A lawyer who is not admitted to practice in
Florida shall not:
(1) except as authorized by other law, establish an office or other regular
presence in Florida for the practice of law;
(2) hold out to the public or otherwise represent that the lawyer is admitted to
practice law in Florida; or
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ABA Model Rules of Professional Conduct
Rule 7.1 Communications Concerning A Lawyer's Services
A lawyer shall not make a false or misleading communication about the
lawyer or the lawyer's services. A communication is false or misleading if
it contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially
misleading.
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ABA Model Rules of Professional Conduct
Rule 7.4 Communication of Fields of Practice and
Specialization
(d) A lawyer shall not state or imply that a lawyer is certified as a
specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been
approved by an appropriate state authority or that has been accredited by the
American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
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Florida Rule 4-7.2
Communications Concerning a Lawyer’s Services
(6) Communication of Fields of Practice. A lawyer may communicate the fact that the lawyer does or does
not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is "certified,"
"board certified," a "specialist," or an "expert" except as follows:
(A) Florida Bar Certified Lawyers. A lawyer who complies with the Florida certification plan as set forth in chapter 6,
Rules Regulating The Florida Bar, may inform the public and other lawyers of the lawyer’s certified areas of legal
practice. Such communications should identify The Florida Bar as the certifying organization and may state that the
lawyer is "certified," "board certified," a "specialist in (area of certification)," or an "expert in (area of certification)."
B) Lawyers Certified by Organizations Other Than The Florida Bar or Another State Bar. A lawyer certified by an
organization other than The Florida Bar or another state bar may inform the public and other lawyers of the lawyer’s
certified area(s) of legal practice by stating that the lawyer is "certified," "board certified," a "specialist in (area of
certification)," or an "expert in (area of certification)" if: (i) the organization’s program has been accredited by The
Florida Bar as provided elsewhere in these Rules Regulating The Florida Bar; and,(ii) the member includes the full
name of the organization in all communications pertaining to such certification.
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ABA Model Rules of Professional Conduct
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice
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Resources
 Published Ethics
Opinions
Resources
http://www.floridabar.org/tfb/TFBETOpin.nsf/EthicsIndex?OpenForm
 Rules Regulating The Florida Bar
http://www.floridabar.org/divexe/rrtfb.nsf/WContents?OpenView
 ABA Center for Professional Responsibility
http://www.abanet.org/cpr/ethics
 Informal Advisory Opinion
Florida Bar’s Ethics Department – (800)235-8619
(M-F, 9:00 a.m. – 5:00 p.m.)
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Disclaimer
The information contained in this presentation was
designed to provide a BASIC understanding of some of
the ethical aspects corporate counsel must consider in
the performance of their duties.
The foregoing information has been summarized for
the purpose of this seminar and should not be
construed as a complete analysis of the Rules
Regulating the Florida Bar or the ABA Model Rules of
Professional Conduct.
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Questions/
Discussion
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Contact Information
Peter L. Blacklock, Esq.
561.804.4457
pblacklock@foxrothschild.com
Elliot A. Hallak, Esq.
561.804.4439
ehallak@foxrothschild.com
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