This month we discuss another trend in law firm management that arises out of our increasingly complex legal environment: the in-house ethics counsel. More midsized and large firms have designated a specific partner or group of partners to provide ethics advice to firm attorneys. Ethics counsel can respond to attorneys’ specific questions, review firm policies, organize continuing legal education classes and foster an atmosphere supportive of ethical decision-making. In-house counsel’s office can be a place to talk through problems in a zone of safety and privacy. But before you get to feeling too cozy, you need to ask yourself: Is in-house counsel the law firm’s lawyer or also, perhaps, your own? This question raises some potentially thorny issues concerning confidentiality, conflicts of interest and the attorney-client privilege. The American Bar Association’s standing committee on ethics and professional responsibility recently addressed some of these issues in Formal Opinion 08-453, issued Oct. 17. (The Formal Opinion is available for review at http://www.abanet.org/cpr/08-453.pdf.)
The following hypothetical illustrates some of the potential pitfalls discussed by the standing committee: Attorney Jane, a senior associate at law firm A, discloses to ethics counsel that she blew the statute of limitations on an important matter for a new client, X Corp. Jane explains that she sent the necessary verification to the client two weeks prior to the running of the statute. Despite repeatedly reminding the client that the verification had to be returned as soon as possible, the client failed to return the verification until a day after the statute had run. Jane filed the complaint the same day she received the verification. Opposing counsel has since filed what Jane believes is a very strong motion for summary judgment based upon the running of the statute. Jane has not yet notified the client of these issues.
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