Amy Gore, Senior Attorney, National Legal Research Group, Inc.

    Like so many others in today’s society, lawyers are dependent upon electronic forms of communication, including email. The use of electronic communications has raised a plethora of ethical concerns for practitioners. Now, in addition to the previous ethical concerns, the dreaded “Reply All” is added to the list that practitioners must oversee.

     In Formal Opinion 503 (2023), the ABA Standing Committee on Ethics and Professional Responsibility cautions lawyers to not copy their clients on electronic communications to opposing counsel, unless the intended result is a “reply all” response. The Committee cited Model Rule 4.2 which cautions that an attorney, in representing a client, may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication. When an attorney sends a communication to opposing counsel and includes the client on the email communication, the receiving attorney is likely going to reply all. This would result in opposing counsel communicating with a represented person, and possibly without the consent of the client’s attorney

Amy Gore—Senior Attorney, National Legal Research Group

            As the world’s efforts to combat COVID-19 continue, most practitioners have adapted their practice by virtual hearings and meetings. Virtual law practice was clearly contemplated before the pandemic, but health concerns and court closures have dragged many practitioners further into the future than may have been contemplated even five years earlier. These adaptations have permitted attorneys to keep their lights on their virtual practices while providing clients with continued access to legal representation. The ever increasing reliance on technology to deliver legal services, however, carries its own set of ethical concerns that must not be overlooked.

            The traditional ethical obligation of competence set forth in Model Rules of Professional Conduct Rule 1.1 includes the obligation to remain competent in changes in the law and its practice, including the benefits and risks associated with relevant technology. The ethical obligation of communication, usually applied in apprising the client of any developments in representation, includes with it the ethical duty relating to disasters. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 482 (Sept. 19, 2018).

The Lawletter Vol 42 No 4

Amy Gore, Senior Attorney, National Legal Research Group

     Most attorneys encounter situations in which a client does not pay the legal fees due and owing. There may, or may not, be a dispute over services rendered. Every state bar association has some form of fee dispute resolution program, yet some clients do not participate, leaving the attorney few options. At some point it becomes evident that the attorney-client relationship has terminated and the relationship with the prior client becomes adversarial in nature. The question thus arises: If the attorney pursues an action against the client to recover the fee, and obtains a judgement against a former client, may the attorney disclose confidential information obtained during the course of the representation while seeking to execute on that judgment?