Ethics and Professionalism Committee
Welcome to the Ethics and Professionalism Committee. The purpose of our committee is to examine issues of ethics and professionalism through the particular lens of litigation practice. The mission is to be: (1) proactive, in identifying potential changes to the Model Rules of Professional Conduct to accommodate the unique experiences of litigators; (2) reactive, in commenting on proposed rule changes initiated by others; and (3) instructive, in continuously striving to educate litigators about the boundaries within which they are required to navigate their practices. The committee also promotes professionalism in litigation, which the Model Rules do not address. The committee pursues this mission, stewarded by its chairs and subcommittee leadership, through a combination of programming (often in conjunction with other Section committees, which we encourage to incorporate ethics and professionalism issues into their other programming), publication of a newsletter, and website/email communications with our membership.
This recent Roundtable, presented by the Ethics and Professionalism Committee was held Thursday, April 28, 2016. Participants included as speakers committee cochair Scott Reiser, Professor James Milles of the University at Buffalo School of Law, and committee associate editor Jay Minga, and as moderator Sam Alba, of Friedman & Ranzenhofer, P.C. The participants discussed the recent several recent decisions regarding attorney-client privilege and some practical steps attorneys can take to protect attorney-client privilege and avoid conflicts of interest when faced with potential attorney-client relationships, especially among friends and family.
Recent Roundtable: Ethical Implications of the 2015 Amendments to the Federal Rules of Civil Procedure for Class Action Attorneys
This recent Roundtable, presented and cosponsored by the Class Action & Derivative Suits Committee along with the Ethics & Professionalism Committee took place Thursday, March 31, 2016. Participants included as speakers committee cochair Scott Reiser and Andrew J. McGuiness of Ann Arbor, Michigan, and as moderator Tonna Farrar, of Bonnett, Fairbourn, Friedman & Balint, PC. Watch this space for more information about ethical issues for class action practitioners arising from the recent amendments to the Federal Rules of Civil Procedure, including concerns relating to discovery practice and settlement.
This recent Roundtable, presented by the Securities Litigation Committee and cosponsored by the Ethics & Professionalism, Pretrial Practice & Discovery, and Commercial & Business Litigation Committees, occurred Thursday, March 31, 2016. Participants included as speakers committee cochair Irwin Warren, and Jason Halper, of Orrick, Herrington & Sutcliffe in New York, NY, and as moderator Tiago Duarte-Silva, of Charles River Associates in Boston, MA. Keep a lookout for more information here regarding interactions between lawyers and expert witnesses, and the ethical questions these encounters are bound to pose, such as selection and engagement of an expert, witness preparation, ex parte contacts, discovery of expert materials, fee arrangements, conflicts, rules of conduct, or even reasons to sanction or disqualify experts or to exclude their evidence.
Watch this space for the latest in our Practice Points series to hone your skillset and stay up-to-date in a wide range of practical ethics issues. Practice Points can also be found in the "More Information" box in the right column of this website. Come back often as we publish new advice reflecting the latest developments.
Our latest Practice Points address the pitfalls of threatening non-parties with contempt for failing to comply with subpoenas, threatening attorney adversaries with disciplinary charges, the hazards and real-world problems in getting advance waivers of client conflicts, and what job titles law firm nonlawyer employees may be given or offered.
Please email Web Editor John Mastando or Associate Editor Jay Minga with any Practice Points you would like to offer. Pointers on Practice Points (really, a section of the Section of Litigation for committee content) are available on the committee’s Related Resources.
Share your insight.
Now accepting articles due June 15, 2016.
Please see the Guidelines or email the committee chairs for details.
E&P at the 2016 Section of Litigation Annual CLE Conference: "Getting Clients, Keeping Clients—and Keeping Your Good Name, Too?"
The E&P Committee recently participated in the April 15–17, 2016 Section Annual Conference at the Ritz-Carlton and Four Seasons in Chicago. The Ethics and Professionalism Committee presented a CLE program entitled, “Getting Clients, Keeping Clients—and Keeping Your Good Name, Too?,” that looked at these issues from all angles, including inside, outside, and state bar counsel, as well as judicial perspectives. The panel featured Irwin Warren, Larry Fox, and Ghenete Wright Muir, of the E&P Committee, as well as Judge Virginia Kendall (N.D. Ill.) and Lynn McCreary, Chief Legal Officer and Chief Ethics and Compliance Officer and Corporate Secretary of Fiserv, Inc. The committee also hosted an informal committee dinner and outings during the conference.
August 3–6 at the Palace Hotel in San Francisco, the ABA will host its Annual Meeting.
Former Ethics and Professionalism Committee cochair Gregory Hanthorn will anchor a program entitled “Thou Vile Hunchbacked Toad: The Ethics of Insults,” which has been selected as a Section of Litigation CLE program at the ABA Annual Meeting in San Francisco, on Friday, August 5, 2016, 9:00–10:15 a.m.
Irwin H. Warren and Scott E. Reiser, the Ethics & Professionalism Committee’s cochairs, were quoted in a Winter 2016 issue of Litigation News article by Kelso L. Anderson, “Doing Business with Clients Could Result in No Legal Fees.” Reflecting on the North Carolina Court of Appeals’ decision in Priest v. Coch, Warren emphasizes that the Section of Litigation advises attorneys to pay careful attention to the ethics rules when conducting business with clients. Warren further points attorneys to a report from the ABA’s Task Force on the Independent Lawyer, which elaborates on many of the legal conflicts and ethics rules potentially implicated by business between attorneys and clients. Reiser expressed similar sentiments and offered his cautionary observation that the North Carolina Court of Appeals honed in on North Carolina’s Rule 1.8(a). That rule requires not only a writing when an attorney wishes to conduct business with a client, but also the client’s signature. In the case of Priest, even though the client acknowledged the terms of the parties’ contract, the court denied the attorney quantum meruit because the attorney failed to produce a copy of such a writing with the client’s signature.
Message from the Chairs
Welcome to the Ethics and Professionalism Committee’s website. The Ethics and Professionalism Committee continues to focus on the substantive body of ethical rules governing lawyers’ conduct, as well as broader issues of professionalism. In the past, we have conducted telephonic roundtables, CLE programs, Sound Advice podcasts, and informational newsletters. We are and will be continuing in those areas, including: both our newsletter and “Practice Points” that can be linked on this website; upcoming CLE programs organized by the committee at the April Section Annual Conference and at the ABA Annual Meeting in August; two upcoming Roundtables in March, in conjunction with the Class Actions and Derivative Suits Committee and the Securities Litigation Committee; and monthly committee teleconferences to discuss new case law, ethics opinions, and other matters of interest to our members.
Upcoming Committee Teleconference
We have scheduled our next teleconference for Monday, May 23, at 12:30 p.m. ET [US Toll-Free Dial-In: 1-888-235-7501 -- Conference Code: 2123108378].
We are always looking for submissions for the next newsletter: Topics could either address broad issues (in 750–2,500 word articles) or shorter (100–750 words) “news and developments” pieces. If you are interested in writing, please contact Irwin Warren or Scott Reiser.
John Mastando has serves as editor of the committee’s website. The website provides another opportunity for you to learn about the committee and ongoing programs of interest and recent developments; and working on the website is a great way to become involved in the committee. If you are interested in writing for, or working on, the website, please contact John at email@example.com.
We are proud to announce that former committee cochair Gregory Hanthorn will be anchoring “Thou Vile Hunchbacked Toad’: The Ethics of Insults”, which has been selected as a Section of Litigation CLE program at the ABA Annual Meeting in San Francisco, August 3–6, 2016.
We hope to speak with you on May 23, and to see you in San Francisco.
As always, please keep your programming and teleconference ideas coming to us. We look forward to hearing from you
Cochairs, ABA Section of Litigation Ethics and Professionalism Committee
Our active subcommittees include:
- Attorney Advertising
- Conflicts of Interest
- Corporate Counsel
- Government and NGOs
- Legislation and Rules
- Multi-Jurisdictional Practice
- Website (editors)
Find contact information for committee and subcommittee chairs: