October 3, 2016
During the course of representing clients, lawyers often encounter ethical conundrums not easily solved without analyzing the rules governing the practice of law in their jurisdiction. There is a continuum of the means by which lawyers seek such advice. On one end, they confer informally with their partners or co-counsel. On the other end, lawyers retain ethics specialists from outside their firms. In the middle, firms formally designate an “in-house” counsel responsible for advising the firm’s lawyers on ethics and other issues that may create liability for the firm. From the perspective of maintaining privilege over these types of communications, casual conversations are extremely risky. Consulting outside counsel is the safest route, but for financial reasons and for convenience, many lawyers may believe that the best course of action is consulting their firm’s formally designated “in-house” counsel. However, the dangers of this approach were highlighted with the decision by a New York trial judge in December 2014 ordering the disclosure of ethics advice given to three attorneys by their firm’s in-house general counsel. Although that decision has been reversed by the Appellate Division, First Department, a review of both decisions is instructive for attorneys deciding when and how to seek advice on the course of action to take to comply with their ethical obligations. [...]