Legal Ethics Presentation presented for the Law Library Association in St. Louis on June 1, 2016.

1. © 2016 Downey Law Group LLC. For educaƟonal purposes only.
Legal
Ethics
Update:
Recent
Developments
in
Missouri
and
Illinois
Lawyer
Regulation
Michael
Downey
Downey
Law
Group
LLC
June
2016

2. General
Motors
Ignition
Switch
Scandal
2

3. General
Motors
litigation
• Defective
autos
– Ignition
switch
could
shift
into
“accessory”
mode
– Shift
disengaged
air
bags,
power
steering,
and
power
brakes
• 124
people
killed,
300+
cases
settled
• $900M
in
criminal
sanctions
plus
$4B
plus
in
other
charges
3

4. 1.
Client/Constituent
Perjury
• GM
Engineer
testified
he
never
approved
a
modification
of
ignition
switch
• Documents
revealed
engineer
had
personally
approved
changes
4

5. Candor
– Rule
4-­‐3.3(a)
A
lawyer
shall
not
knowingly:
(1) make
a
false
statement
of
fact
or
law
to
a
tribunal
or
fail
to
correct
a
false
statement
of
material
fact
or
law
previously
made
to
the
tribunal
by
the
lawyer;
(2) fail
to
disclose
to
the
tribunal
legal
authority
in
the
controlling
jurisdiction
known
to
the
lawyer
to
be
directly
adverse
to
the
position
of
the
client
and
not
disclosed
by
opposing
counsel;
or
(3) offer
evidence
that
the
lawyer
knows
to
be
false.
If
a
lawyer,
the
lawyer’s
client,
or
a
witness
called
by
the
lawyer,
has
offered
material
evidence
and
the
lawyer
comes
to
know
of
its
falsity,
the
lawyer
shall
take
reasonable
remedial
measures,
including,
if
necessary,
disclosure
to
the
tribunal.
A
lawyer
may
refuse
to
offer
evidence,
other
than
the
testimony
of
a
defendant
in
a
criminal
matter,
that
the
lawyer
reasonably
believes
is
false.
5

6. Remediation
– Rule
4-­‐3.3(b)
&
(c)
b) A
lawyer
who
represents
a
client
in
an
adjudicative
proceeding
and
who
knows
that
a
person
intends
to
engage,
is
engaging
or
has
engaged
in
criminal
or
fraudulent
conduct
related
to
the
proceeding
shall
take
reasonable
remedial
measures,
including,
if
necessary,
disclosure
to
the
tribunal.
c) The
duties
stated
in
paragraphs
(a)
and
(b)
continue
to
the
conclusion
of
the
proceeding,
and
apply
even
if
compliance
requires
disclosure
of
information
otherwise
protected
by
Rule
1.6.
6

7. In
re
Krigel (Mo.
1/26/2016)
• Mother
wants
to
place
child
up
for
adoption,
Father
does
not
• Krigel represents
mother
at
hearing
and
elicits
testimony
– Mother
consulted
with
birth
father
at
length
– Birth
father
had
not
stepped
forward
since
birth
to
claim
parental
rights
• Krigel had
spoken
to
Father’s
lawyer
and
knew
Father
had
been
deceived
about
when
child
was
born
.
.
.
and
did
not
know
about
hearing
7

8. Consequences
in
Krigel
• Krigel had
violated
Rule
4-­‐3.3
by
soliciting
false
testimony,
in
that
Krigel knew
the
testimony
omitted
essential
information
• Krigel received
a
one-­‐year
“stayed
suspension
with
two
years
of
probation
8

9. 2.
Confidential
Settlements
• In-­‐house
counsel
and
outside
counsel
settled
more
than
300
cases
• Counsel
may
have
known
of
defect
as
of
2005
9

10. Reporting
Up
(and
Out?)
MO
Rule
4-­‐1.13(c) If,
despite
the
lawyer's
efforts
in
accordance
with
Rule
4-­‐1.13(b),
the
highest
authority
that
can
act
on
behalf
of
the
organization
insists
upon
action,
or
a
refusal
to
act,
that
is
clearly
a
violation
of
law
and
is
likely
to
result
in
substantial
injury
to
the
organization,
the
lawyer
may
resign
in
accordance
with
Rule
4-­‐1.16.
Up
Out
10

11. Reporting
Up
and
Out
– Model
Model
(Illinois)
Rule
1.13(c)
Except
as
provided
in
paragraph
(d),
if
(1) despite
the
lawyer's
efforts
in
accordance
with
paragraph
(b)
the
highest
authority
that
can
act
on
behalf
of
the
organization
insists
upon
or
fails
to
address in
a
timely
and
appropriate
manner
an
action,
or
a
refusal
to
act,
that
is
clearly
a
violation
of
law,
an
(2) the
lawyer
reasonably
believes
that
the
violation
is
reasonably
certain
to
result
in
substantial
injury
to
the
organization,
then
the
lawyer
may
reveal
information
relating
to
the
representation
whether
or
not
Rule
1.6
permits
such
disclosure,
but
only
if
and
to
the
extent
the
lawyer
reasonably
believes
necessary
to
prevent
substantial
injury
to
the
organization.
Up
Out
11

12. Model
Confidentiality
Exceptions
–
Model
Rule
1.6
(1) to
prevent
reasonably
certain
death
or
substantial
bodily
harm;
(2) to
prevent
the
client
from
committing
a
crime
or
fraud
that
is
reasonably
certain
to
result
in
substantial
injury
to
the
financial
interests
or
property
of
another
and
in
furtherance
of
which
the
client
has
used
or
is
using
the
lawyer's
services;
(3) to
prevent,
mitigate
or
rectify
substantial
injury
to
the
financial
interests
or
property
of
another
that
is
reasonably
certain
to
result
or
has
resulted
from
the
client's
commission
of
a
crime
or
fraud
in
furtherance
of
which
the
client
has
used
the
lawyer's
services;
(4) to
secure
legal
advice
about
the
lawyer's
compliance
with
these
Rules;
(5) to
establish
a
claim
or
defense
on
behalf
of
the
lawyer
in
a
controversy
between
the
lawyer
and
the
client,
to
establish
a
defense
to
a
criminal
charge
or
civil
claim
against
the
lawyer
based
upon
conduct
in
which
the
client
was
involved,
or
to
respond
to
allegations
in
any
proceeding
concerning
the
lawyer's
representation
of
the
client;
(6) to
comply
with
other
law
or
a
court
order;
or
(7) to
detect
and
resolve
conflicts
of
interest
arising
from
the
lawyer’s
change
of
employment
or
from
changes
in
the
composition
or
ownership
of
a
firm,
but
only
if
the
revealed
information
would
not
compromise
the
attorney-­‐client
privilege
or
otherwise
prejudice
the
client.
12

13. Client
Wrong-­‐Doing
(1)to
prevent
reasonably
certain
death
or substantial
bodily
harm;
(2)to
prevent the
client
from
committing
a
crime
or
fraud
that
is
reasonably
certain
to
result
in
substantial
injury
to
the
financial
interests
or
property
of
another
and
in
furtherance
of
which
the
client
has
used
or
is
using
the
lawyer's
services;
(3)to
prevent,
mitigate
or
rectify
substantial
injury
to
the
financial
interests
or
property
of
another
that
is
reasonably
certain
to
result
or
has
resulted
from
the
client's
commission
of
a
crime
or
fraud
in
furtherance
of
which
the
client
has
used
the
lawyer's
services;
…
13

14. 3.
Conflicts
of
Interest
• Jenner
&
Block
conducts
internal
investigation
relating
to
failures
surrounding
ignition
switch
problems
• Jenner
&
Block
has
financial
interest
in
maintaining
representation
14

15. “Concurrent
Conflicts”
– Rule
1.7
• Except
as
provided
in
Rule
1.7(b),
a
lawyer
shall
not
represent
a
client
if
the
representation
involves
a
concurrent
conflict
of
interest.
A
concurrent
conflict
of
interest
exists
if:
(1) the
representation
of
one
client
will
be
directly
adverse
to
another
client;
or
(2) there
is
a
significant
risk
that
the
representation
of
one
or
more
clients
will
be
materially
limited
by
the
lawyer's
responsibilities
to
another
client,
a
former
client,
or
a
third
person
or
by
a
personal
interest
of
the
lawyer.
15

16. Amended
Illinois
Rules
of
Professional
Conduct
16

17. 1.
Associating
with
Co-­‐Counsel
17

18. Rule
1.1
– Co-­‐Counsel
Arrangements
• Retaining
Or
Contracting
With
Other
Lawyers
• [6]
Before
a
lawyer
retains
or
contracts
with
other
lawyers
outside
the
lawyer’s
own
firm
to
provide
or
assist
in
the
provision
of
legal
services
to
a
client,
the
lawyer
should
ordinarily
obtain
informed
consent
from
the
client
and
must
reasonably
believe
that
the
other
lawyers’
services
will
contribute
to
the
competent
and
ethical
representation
of
the
client.
See
also
Rules
1.2(e)
and
Comment
[15],
1.4,
1.5(e),
1.6,
and
5.5(a).
The
reasonableness
of
the
decision
to
retain
or
contract
with
other
lawyers
outside
the
lawyer’s
own
firm
will
depend
upon
the
circumstances,
including
the
education,
experience
and
reputation
of
the
nonfirm
lawyers;
the
nature
of
the
services
assigned
to
the
nonfirm
lawyers;
and
the
legal
protections,
professional
conduct
rules,
and
ethical
environments
of
the
jurisdictions
in
which
the
services
will
be
performed,
particularly
relating
to
confidential
information.
• [7]
When
lawyers
from
more
than
one
law
firm
are
providing
legal
services
to
the
client
on
a
particular
matter,
the
lawyers
ordinarily
should
consult
with
each
other
and
the
client
about
the
scope
of
their
respective
representations and
the
allocation
of
responsibility
among
them.
See
Rule
1.2.
When
making
allocations
of
responsibility
in
a
matter
pending
before
a
tribunal,
lawyers
and
parties
may
have
additional
obligations
that
are
a
matter
of
law
beyond
the
scope
of
these
Rules.
18

19. 2.
Competence
and
Technology
19

20. Rule
1.1
– Technology
Competence
• [8]
To
maintain
the
requisite
knowledge
and
skill,
a
lawyer
should
keep
abreast
of
changes
in
the
law
and
its
practice,
including
the
benefits
and
risks
associated
with
relevant
technology,
engage
in
continuing
study
and
education
and
comply
with
all
continuing
legal
education
requirements
to
which
the
lawyer
is
subject
20

21. 3.
Marijuana
Counsel
21

22. Rule
1.2(d)
– Advising
on
Unlawful
Action
• A
lawyer
shall
not
counsel
a
client
to
engage,
or
assist
a
client,
in
conduct
that
the
lawyer
knows
is
criminal
or
fraudulent,
but
a
lawyer
may
(3)
counsel
or
assist
a
client
in
conduct
expressly
permitted
by
Illinois
law
that
may
violate
or
conflict
with
federal
or
other
law,
as
long
as
the
lawyer
advises
the
client
about
that
federal
or
other
law
and
its
potential
consequences.
22

23. Explanation
of
Marijuana
Counsel
Issue
• [10]
Paragraph
(d)(3)
was
adopted
to
address
the
dilemma
facing
a
lawyer
in
Illinois
after
the
passage
of
the
Illinois
Compassionate
Use
of
Medical
Cannabis
Pilot
Program
Act
effective
January
1,
2014.
The
Act
expressly
permits
the
cultivation,
distribution,
and
use
of
marijuana
for
medical
purposes
under
the
conditions
stated
in
the
Act.
Conduct
permitted
by
the
Act
may
be
prohibited
by
the
federal
Controlled
Substances
Act,
21
U.S.C.
§§801-­‐904
and
other
law.
The
conflict
between
state
and
federal
law
makes
it
particularly
important
to
allow
a
lawyer
to
provide
legal
advice
and
assistance
to
a
client
seeking
to
engage
in
conduct
permitted
by
Illinois
law.
In
providing
such
advice
and
assistance,
a
lawyer
shall
also
advise
the
client
about
related
federal
law
and
policy.
Paragraph
(d)(3)
is
not
restricted
in
its
application
to
the
marijuana
law
conflict.
A
lawyer
should
be
especially
careful
about
counseling
or
assisting
a
client
in
other
contexts
in
conduct
that
may
violate
or
conflict
with
federal,
state,
or
local
law.
23

24. 4.
Disclosing
Info
to
Avoid
Conflicts
24

25. Rule
1.6(b)
– Disclosures
to
Resolve
Conflicts
A
lawyer
may
reveal
information
relating
to
the
representation
of
a
client
to
the
extent
the
lawyer
reasonably
believes
necessary:
.
.
.
(7)
to
detect
and
resolve
conflicts
of
interest
if
the
revealed
information
would
not
prejudice
the
client.
25

26. 5.
Protecting
Client
Information
26

27. Rule
1.6(e)
– Protecting
Client
Information
• A
lawyer
shall
make
reasonable
efforts
to
prevent
the
inadvertent
or
unauthorized
disclosure of,
or
unauthorized
access to,
information
relating
to
the
representation
of
a
client.
27

28. What
Are
"Reasonable"
Precautions
28

29. Evaluation
of
Safeguards
• Factors
to
be
considered
in
determining
the
reasonableness
of
the
lawyer’s
efforts
include,
but
are
not
limited
to,
– the
sensitivity
of
the
information
– the
likelihood
of
disclosure
if
additional
safeguards
are
not
employed
– the
cost
of
employing
additional
safeguards
– the
difficulty
of
implementing
the
safeguards (and)
– the
extent
to
which
the
safeguards
adversely
affect
the
lawyer’s
ability
to
represent
clients
(e.g.,
by
making
a
device
or
important
piece
of
software
excessively
difficult
to
use)
29

30. Two
Additional
Caveats
• A
client
may
require
the
lawyer
to
implement
special
security
measures
not
required
by
this
Rule
or
may
give
informed
consent
to
forgo
security
measures
that
would
otherwise
be
required
by
this
Rule.
• Whether
a
lawyer
may
be
required
to
take
additional
steps
to
safeguard
a
client’s
information
in
order
to
comply
with
other
law,
such
as
state
and
federal
laws
that
govern
data
privacy
or
that
impose
notification
requirements
upon
the
loss
of,
or
unauthorized
access
to,
electronic
information,
is
beyond
the
scope
of
these
Rules.
30

31. In
re
Eisenstein (Mo.
4/5/2016)
• Eisenstein
represented
Husband
in
divorce
• Husband
accessed
Wife’s
email
without
permission,
and
gave
Eisenstein
documents
including
questions
Wife’s
attorney
had
prepared
for
direct
examination
• Eisenstein
did
not
produce
the
documents
received
from
Wife’s
email,
until
giving
them
to
opposing
counsel
as
exhibits
during
trial
31

32. Consequences
in
Eisenstein
• Eisenstein
was
found
to
have
used
improperly
obtained
information
(violating
Rule
4-­‐4.4)
and
concealing
documents
with
evidentiary
value
(violating
Rule
4-­‐3.4)
• Eisenstein
received
an
indefinite
(minimum
6
month)
suspension
32

33. 6.
Discouraging
“Taint”
Shopping
33

34. Rule
1.18(a)
– “Prospective
Client”
• A
person
who
discusses consults
with
a
lawyer
about
the
possibility
of
forming
a
client-­‐ lawyer
relationship
with
respect
to
a
matter
is
a
prospective
client.
34

35. Explanation
of
“Consultation”
• Not
all
persons
who
communicate
information
to
a
lawyer
are
prospective
clients.
A
person
becomes
a
prospective
client
by
consulting
with
a
lawyer
about
the
possibility
of
forming
a
client-­‐lawyer
relationship
with
respect
to
a
matter.
Whether
communications,
including
written,
oral,
or
electronic
communications,
constitute
a
consultation
depends
on
the
circumstances.
For
example,
a
consultation
is
likely
to
have
occurred
if
a
lawyer,
either
in
person
or
through
the
lawyer’s
advertising
in
any
medium,
specifically
requests
or
invites
the
submission
of
information
about
a
potential
representation
without
clear
and
reasonably
understandable
warnings
and
cautionary
statements
that
limit
the
lawyer’s
obligations,
and
a
person
provides
information
in
response.
See
also
Comment
[4].
In
contrast,
a
consultation
does
not
occur
if
a
person
provides
information
to
a
lawyer
in
response
to
advertising
that
merely
describes
the
lawyer’s
education,
experience,
areas
of
practice,
and
contact
information,
or
provides
legal
information
of
general
interest.
35

36. No
“Taint
Shopping”
• Moreover,
a
person
who
communicates
with
a
lawyer
for
the
purpose
of
disqualifying
the
lawyer
is
not
a
“prospective
client.”
36

37. Protection
from
Prospects
• Client
– may
create
disqualifying
conflict
• Declined
prospect
– may
create
disqualifying
conflict
only
if disqualifying
confidences
received
• Limit
information
during
initial
conversation,
until
conflict
check
is
performed
37

38. 7.
Prosecutors
and
Exculpatory
Evidence
38

39. Rule
3.8(g)-­‐(i)
– Prosecutors
and
Exculpatory
Evidence
(g)
When
a
prosecutor
knows
of
new,
credible
and
material
evidence
creating
a
reasonable
likelihood
that
a
convicted
defendant
did
not
commit
an
offense
of
which
the
defendant
was
convicted,
the
prosecutor
shall:
(1)
promptly
disclose
that
evidence
to
an
appropriate
court or
authority,
and
(2)
if
the
conviction
was
obtained
in
the
prosecutor’s
jurisdiction,
(i)
promptly
disclose
that
evidence
to
the
defendant unless
a
court
authorizes
delay,
and
(ii)
undertake
further
reasonable
investigation,
or
make
reasonable
efforts
to
cause
an
investigation,
to
determine
whether
the
defendant
was
convicted
of
an
offense
that
the
defendant
did
not
commit.
(h) When
a
prosecutor
knows
of
clear
and
convincing
evidence
establishing
that
a
defendant
in
the
prosecutor’s
jurisdiction
was
convicted
of
an
offense
that
the
defendant
did
not
commit,
the
prosecutor
shall
seek
to
remedy
the
conviction.
(i) A
prosecutor’s
judgment,
made
in
good
faith,
that
evidence
does
not
rise
to
the
standards
stated
in
paragraphs
(g)
or
(h),
though
subsequently
determined
to
have
been
erroneous,
does
not
constitute
a
violation
of
this
rule.
39

40. Rule
4.4(b)
– Another’s
Inadvertent
Disclosure
• A
lawyer
who
receives
a
document
or
electronically
stored
information relating
to
the
representation
of
the
lawyer’s
client
and
knows
that
the
document
or
electronically
stored
information
was
inadvertently
sent
shall
promptly
notify
the
sender.
40

41. 8.
Supervising
Non-­‐Firm
Nonlawyers
41

42. Rule
5.3
– Supervising
Non-­‐Firm
Non-­‐Lawyers
[3]
A
lawyer
may
use
nonlawyers
outside
the
firm
to
assist
the
lawyer
in
rendering
legal
services
to
the
client.
Examples
include
the
retention
of
an
investigative
or
paraprofessional
service,
hiring
a
document
management
company
to
create
and
maintain
a
database
for
complex
litigation,
sending
client
documents
to
a
third
party
for
printing
or
scanning,
and
using
an
Internet-­‐based
service
to
store
client
information.
When
using
such
services
outside
the
firm,
a
lawyer
must
make
reasonable
efforts
to
ensure
that
the
services
are
provided
in
a
manner
that
is
compatible
with
the
lawyer’s
professional
obligations.
The
extent
of
this
obligation
will
depend
upon
the
circumstances,
including
the
education,
experience
and
reputation
of
the
nonlawyer;
the
nature
of
the
services
involved;
the
terms
of
any
arrangements
concerning
the
protection
of
client
information;
and
the
legal
and
ethical
environments
of
the
jurisdictions
in
which
the
services
will
be
performed,
particularly
with
regard
to
confidentiality.
See
also
Rules
1.1,
1.2,
1.4,
1.6,
5.4(a),
and
5.5(a).
When
retaining
or
directing
a
nonlawyer
outside
the
firm,
a
lawyer
should
communicate
directions
appropriate
under
the
circumstances
to
give
reasonable
assurance
that
the
nonlawyer’s
conduct
is
compatible
with
the
professional
obligations
of
the
lawyer.
42

43. Client
Selection
– Rule
5.3
cmt
[4]
• Where
the
client
directs
the
selection
of
a
particular
nonlawyer
service
provider
outside
the
firm,
the
lawyer
ordinarily
should
agree with
the
client
concerning
the
allocation
of
responsibility
for
monitoring
as
between
the
client
and
the
lawyer.
See
Rule
1.2.
When
making
such
an
allocation
in
a
matter
pending
before
a
tribunal,
lawyers
and
parties
may
have
additional
obligations
that
are
a
matter
of
law
beyond
the
scope
of
these
Rules.
43

44. Rule
7.3
– Client “Solicitation”
• [1]
A
solicitation
is
a
targeted
communication
initiated
by
the
lawyer
that
is
directed
to
a
specific
person
and
that
offers
to
provide,
or
can
reasonably
be
understood
as
offering
to
provide,
legal
services.
In
contrast,
a
lawyer’s
communication
typically
does
not
constitute
a
solicitation
if
it
is
directed
to
the
general
public,
such
as
through
a
billboard,
an
Internet
banner
advertisement,
a
website
or
a
television
commercial,
or
if
it
is
in
response
to
a
request
for
information
or
is
automatically
generated
in
response
to
Internet
searches.
44

45. 9.
Choosing
Ethics
Law
(for
Conflicts)
45

46. Rule 8.5
– Choice
of
(Ethics)
Law
• With
respect
to
conflicts
of
interest,
in
determining
a
lawyer’s
reasonable
belief
under
paragraph
(b)(2),
a
written
agreement
between
the
lawyer
and
client
that
reasonably
specifies
a
particular
jurisdiction
as
within
the
scope
of
that
paragraph
may
be
considered if
the
agreement
was
obtained
with
the
client’s
informed
consent
confirmed
in
writing.
46

47. 10.
Easing
Bar
Admissions
47

48. Rule
705
– Admission
on
Motion
• Now
available
if
– Applicant
has
been
admitted
at
least
three
years
in
another
jurisdiction
– Applicant
was
engaged
in
the
active,
continuous
lawful
practice
of
law
for
3
of
5
years
preceding
application
48

49. Rule
716
– (Foreign)
In-­‐House
Counsel
• Limited
Admission
of
House
Counsel
available
to
lawyers
from
foreign
jurisdictions
if
– They
have
not
been
disciplined
in
their
foreign
jurisdiction
– They
complete
an
ethics
class
approved
for
foreign
lawyers
49

50. Michael
Downey
Downey
Law
Group
LLC
(314)
961-­‐6644
(844)
961-­‐6644
toll
free
mdowney@DowneyLawGroup.com
Thank
You