1993

  • Opinion No. 93-7
    Summary: If two lawyers have served as co-counsel on a matter and a fee dispute develops between the client and one of the lawyers, the second lawyer is prohibited by DR 4-101 from voluntarily disclosing to the first lawyer statements about fees owed to the first lawyer made by the client and her husband. Even if the first lawyer has already learned about the statements, the prohibition in DR 7-101(A)(3) against prejudicing or damaging a client prevents the second lawyer from voluntarily providing the first lawyer with an affidavit about those statements. Under the circumstances of this inquiry, the information provided by the husband about fees owed by him to the first lawyer in connection with this and other matters is a secret of the wife.
    Whether the second lawyer may be compelled to testify about such statements in litigation between client and the first lawyer depends on the applicability of the attorney-client privilege, a matter for a court and not this committee.
  • Opinion No. 93-6
    Summary: Where a minor client instructs her lawyer to pursue a course of action in a care and protection proceeding which is not in accordance with the opinion of the lawyer and other professionals as to what is in the minor's best interests, the lawyer must follow the minor client's direction unless he determines that she is incapable of making a considered judgment on her own behalf, and therefore "incompetent." If the lawyer believes his client to be competent but he is unable to zealously represent his client's stated position, the lawyer may also attempt to withdraw from the representation. If the lawyer determines that the client's lack of maturity reaches a level of "incompetence," he may make some decisions on behalf of the client. The lawyer should make these decisions, however, on the basis of what the child would desire if she were competent to understand her options and express her wishes. Alternatively, a lawyer may seek the appointment of a guardian ad litem for the child but should first discuss the appointment with the child.
  • Opinion No. 93-5
    Summary: DR 2-103 prohibits a lawyer representing a single client from telephoning potential co-plaintiffs to suggest that they join the litigation. DR 2-103 requires that any written communication for such purpose be labeled "advertising" in accordance with the rule. It also prohibits a lawyer from suggesting to his client that the client call prospective co-plaintiffs to hire the lawyer to represent them in the litigation. Nevertheless, the legislative history of DR 2-103 also suggests that if the proposed litigation is in the nature of a class action, the rule is not intended to prohibit forms of contacting prospective plaintiffs permitted under applicable class action law.
  • Opinion No. 93-4
    Summary: A lawyer is not required by the confidentiality obligation to restrain his employee who believes that a client stole money from her purse at the office from revealing the client's identity to the police.
    Facts: Money was stolen from the purse of an employee in a lawyer's office. The police want to know whom the employee suspects. The employee believes that two clients (or one of them) who were in the office are most likely the thieves and she wishes to reveal their names. The lawyer has inquired whether he and his employee are forbidden by the confidentiality obligation from revealing the clients' names. The employee will follow his advice.
  • Opinion No. 93-3
    Summary: A trustee's lawyer who discovers apparent misappropriation of trust property by the trustee must decide whether it is "reasonably likely" that the client intends the commission of a future crime. A lawyer who so concludes has discretion to reveal the client's intention to the beneficiaries or the court or both. Usually, but not always, the lawyer should have a personal discussion with the client before exercising the discretion to disclose.
    If the fraud occurred during the course of the lawyer's representation and if there is no constitutional inhibition, the lawyer may also have a mandatory obligation to reveal the fraud if the client refuses to rectify the situation. Finally, there is a substantive law question, which the committee may not address, whether the lawyer has enough of a fiduciary relationship to the beneficiaries of the trust to trigger an independent obligation to disclose any conclusion of misappropriation of trust assets to them.
  • Opinion No. 93-2
    Summary: The mandatory obligation of a lawyer imposed by DR 7-102(B)(1) to disclose fraud committed by a client during the course of representation when the client refuses to rectify it does not apply when the information available to the lawyer does not clearly establish the fraud or when the information is protected as a privileged communication. On the facts of this inquiry, the information does not clearly establish fraud and it is also protected as a privileged communication. Prior opinions of the committee are distinguished on the ground that they all involved situations where the exception for privileged communications might not apply because of the lawyer's knowledge of the client's intention to commit a future crime closely related to the completed fraud.
    The lawyer's obligation to keep the confidences and secrets of a client under DR 4-101 is considerably broader than the attorney-client privilege, and it is therefore possible that a lawyer may be required to testify about matters covered by DR 4-101. However, a lawyer subpoenaed to testify should refuse to do so if the lawyer has any doubt about the applicability of the attorney-client privilege until the client consents or until a court rules that the attorney-client privilege is not applicable.
    DR 7-104(A)(1), which forbids a lawyer to communicate on the subject of the representation with a party known to be represented by counsel, does not preclude a lawyer from sending to a former client documents relating to the former representation even though the subject matter of the former representation has some relation to the client's current litigation and even though the client's present counsel has instructed the client not to communicate with the lawyer.
  • Opinion No. 93-1
    Summary: A lawyer is not necessarily prohibited from selling a parcel of real estate to a client that the lawyer is concurrently representing in a matrimonial matter, if the client has other counsel in the real estate transaction, counsel for the other spouse in the matrimonial matter approves, and the lawyer's interest in selling the real estate does not affect his advice to his client in the matrimonial case.
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