Legal Ethics & Malpractice Reporter, Vol. 2, No. 9

Published: 29 September 2021 | 12:00PM

                    LEMR Vol. 2 No. 9

Welcome to the September edition of the Legal Ethics & Malpractice Reporter. In this edition you will find:

  • Featured Topic: ABA Formal Opinion 499: New Guidance on Attorney Investment in Alternative Business Structures
  • New Authority: NYSBA Ethics Opinion 1229: A Plaintiff’s Lawyer’s Rights and Obligations After a Client’s Death
  • Ethics & Malpractice Research Tip: New Articles Drawn from the Current Index of Legal Periodicals
  • A Blast from the Past: The Lawyer’s Regard for Professional Rules

We hope you will find these resources timely and useful to your practice.


Professor Mike Hoeflich, Editor


The ABA Formal Opinion 499 and What You Should Know

On September 8, 2021, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 499 on lawyer investments in what have come to be called “Alternate Business Structures”—entities in which lawyers and non-lawyers share fees and profits as owners or investors in a firm that provides legal services. This opinion marks a somewhat radical departure from existing beliefs about such investments and opens up significant new financial and investment possibilities for lawyers. [READ MORE]


NYSBA Ethics Opinion 1229: A Plaintiff’s Lawyer’s Rights and Obligations After a Client’s Death

This month, the New York State Bar Association issued Ethics Opinion 1229, which discusses what a lawyer should do when she has been presented with a settlement offer but discovers that the client has died before being able to accept the offer.

The opinion came to be precisely because a New York lawyer ended up in this predicament without precedential guidance. The lawyer represented a client in litigation arising from a “vehicular accident.” According to counsel for both parties, the client had a weak case. As a result, the insurance carrier initially offered a relatively small settlement, which the lawyer’s client rejected. After some time, the lawyer and the insurance carrier negotiated a larger settlement. Unfortunately, when the lawyer sought the client’s agreement to the terms of the larger settlement, he discovered that the client had died. The client had died intestate and with few assets. Furthermore, the lawyer was unable to discover any living relatives or a death certificate. And, because there was no death certificate, the lawyer was barred from filing a motion in the New York Probate Court. [READ MORE]


New Articles Drawn from the Current Index of Legal Periodicals 

This month on offer is a mixed bag of fascinating articles that deal with everything from Roman law to climate change. Enjoy!

  1. B.L. Tolman, Deterring Prosecutors from Abusive Behavior: A Former Federal Prosecutor’s View. Criminal Justice Reform in the Commonwealth—2019 Symposium. 58 U. LOUISVILLE L. REV. 415–434 (2020). 

Alas, this is a subject far too relevant to criminal practice today.

  1. V.B. Flatt, Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change. 2020 UTAH L. REV. 569–626 (2020).

How many of us actually think of climate change in conjunction with professional responsibility?

  1. N. Hamilton, Book review. The Formation of Professional Identity: The Path from Student to Lawyer, by Patrick Emery Longan, Daisy Hurst Floyd, Timothy W. Floyd. 69 J. LEG. ED. 224–236 (2019). 

As a longtime teacher of professional responsibility, I have become convinced that law schools play a critical role in achieving a high degree of professional responsibility in the practicing Bar.

  1. K.A. Dauphinais, Quintilian’s Curriculum. Symposium: Classical Rhetoric as a Lens for Contemporary Legal Praxis. 20 NEV. L. Jl 917–934 (2020).

Most of us don’t think of Roman lawyers and orators as sources for current legal practice. Quintilian (ca. 35–100 A.D) was the author of the Institutes of Oratory, a handbook for would-be lawyers that became the ancient equivalent of Blackstone’s and Kent’s Commentaries. While not directly dealing with professional responsibility. Dauphinais’ article reminds us that we are all the children of the Romans and influenced by Roman law and Roman ideas of how lawyers should behave.


The Lawyer’s Regard for Professional Rules

The lawyer shuns their opinion who regard the professors of the law as an order whose interests are at variance with those of society at large, and therefore to be protected by walls and bulwarks raised in self defence. Lawyers were appointed to live for society, not society framed for them to live by. Hence in those rules which they make for their conduct towards one another and towards their fellow citizens, the lawyer regards those as of no binding force which clash with the welfare of society at large: and though to the other rules of his order he pays that deference which courtesy toward his fellow labourers in the work of justice demands, he ever remembers the good of society and the principles of equity whereby to relax their rigour… In all such matters the lawyer looks to the intent of the rule; and so the abatements he makes from the rigour of it be made in honour, with a clean conscience, without left-handed designs of self-interest or avarice, he cares not what censure he may incur from those who, considering the privileges of their order as of more value than the good of society for which alone that order exists, however wise they be in their own eyes, to others resemble the fool who arrogantly thought he played on the organ when he only blew the bellows.

Edward O’Brien, The Lawyer, His Character and Holy Rule of Life: After the Manner of George Herbert’s Country Parson (Philadelphia: Carey & Hart 1843)

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