EDITED BY: Professor Mike Hoeflich
PUBLISHED BY: Joseph, Hollander & Craft LLC
March 29, 2024
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 3
FEATURE ARTICLE: ABA Opinion 509: Conflict Rules for Government Lawyers
The ABA Committee on Ethics and Professional Responsibility Issued Formal Opinion 509 this past month. The Opinion details the responsibilities of government lawyers when representing “private clients” both when they have left government service and when they remain in government service but also have private practices. It centers on the proper interpretation of Rule 1.11.
Model Rule of Professional Responsibility 1.11(c) reads:
Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
Kansas Rule of Professional Conduct 1.11(b) reads:
Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
The Opinion begins by noting that, while the general conflict rules apply to government lawyers, they are also subject to the special rule of 1.11. Among the most important pieces of advice the Opinion gives is clarifying what information and which government employees are covered by the Rule…
QUIZ: Test Your Legal Ethics Aptitude!
This month, instead of the column on new authority, we offer a few questions from the midterm examination taken by Professor Hoeflich’s Professional Responsibility class at The University of Kansas School of Law. See how well you can do. We will provide the answers in next month’s LEMR.
- In Kansas, a court in a disciplinary proceeding must follow ABA Formal Ethics Advisory opinions, but not advisory opinions from other states.
- True
- False
- The following are all concerns that a lawyer must have to protect client privacy under KRPC 1.6. Mark all true choices.
- A lawyer must always use encrypted email when communicating with a client.
- A lawyer may only use a fax machine to communicate non-sensitive client data.
- Lawyers who want to discuss client data at a restaurant may do so as long as they speak quietly.
- Lawyers may release client confidential data to a court when the court orders such a release.
- A lawyer may discuss a client’s confidential data with a spouse so long as the spouse agrees to keep it confidential.
- A lawyer is contacted by a celebrity to represent her in a criminal case in which she is a defendant. She explains to the lawyer that she cannot pay the lawyer her regular fee, but is willing to pay the lawyer a percentage of the fee she will receive from a movie production company that is going to make a documentary of the trial. She also mentions that the production company will want to advise the lawyer on “trial tactics” to ensure that the film succeeds. Can the lawyer accept this fee?
- Yes
- No
ETHICS & MALPRACTICE RESEARCH TIP: New Article from St. Mary’s Journal on Legal Malpractice and Ethics
This month, we highlight only one new article because of its excellence. It was written by Nick Badgerow, the “dean” of Kansas and Missouri legal ethicists. Nick has devoted his professional life to the study and implementation of legal ethics rules and is a regular presenter in Joseph, Hollander & Craft’s ethics CLEs. He has now published a new article in St. Mary’s Journal on Legal Malpractice and Ethics that provides a brilliant overview of the subject that every lawyer should read:
- Nick Badgerow, The Ethical Lawyer: Beyond the Rules, 14 St. Mary’s J. on Legal Malpractice & Ethics 2 (2024), available online.
A BLAST FROM THE PAST: 19th Century Lawyer Advertisement
The following advertisement for prominent New York lawyer, John Livingston, illustrates the common form of advertising in newspapers and legal directories in the mid-nineteenth century.
—Trow’s New York City directory 581 (H. Wilson ed., 1866)
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 3
About Joseph, Hollander & Craft LLC
Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 25 attorneys covers a lot of ground, both geographically and professionally.
We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.
When your business, freedom, property, or career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless — Ready for Anything, come what may. At JHC, we pride ourselves on offering outstanding legal counsel and representation with the personal attention and professionalism our clients deserve. Learn more about our attorneys and their areas of practice, and locate a JHC office near you.