ABA’s take on the topic

In December 2025. the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 519.  Opinion 519 explains that, absent client consent, an explicit exception, a court order, or other applicable law, lawyers are prohibited under Rule 1.6 from revealing “information relating to the representation” in support of a withdrawal motion.

The Committee opined that, consistent with other exceptions in Rule 1.6(b), even when permissible, disclosure of confidential information must be strictly limited to what is “reasonably necessary” using the most protective measures. That’s not a problem for lawyers practicing before courts willing to grant bare-bones motions to withdraw. But many judges don’t like Motions to Withdraw (which can often delay cases).  Some are unwilling to grant these motions without getting enough detail to justify the basis for withdrawal.

The need to withdraw can arise in many situations.  Sometimes it is as simple as a client that doesn’t pay.  But other times the reasons are more complicated.  Often, withdrawal is mandated by the Rules, including emerging or thrust upon conflicts. Or a client that has perjured himself and refuses to recant.  In those cases, compliance with Rule 1.6 can become a very tricky balancing act.  The Committee reminds us that courts have disciplined lawyers for voluntarily disclosing information related to the representation in their withdrawal motions, as such disclosures violate Rule 1.6 when they are unnecessary or broader than necessary.

Pointing to NYSBA Op. 1057, the Committee explains that ethics opinions in various states caution lawyers not to volunteer information protected by Rule 1.6 for the purposes of bolstering their motions to withdraw. Same with CA Formal Op. 2015-192.  Of course, the lawyer can just seek the client’s consent.   But again, in some situations the Court may not accept even a stipulated withdrawal.

The Committee suggests a step-by-step approach.  First, file a “professional considerations” or “irreconcilable differences” motion.  If the court requests further information, try to persuade the court to rule on the motion without disclosing confidential client information asserting claims of confidentiality and for protection of the attorney-client privilege.  If that doesn’t work and the court orders the submission of additional information (thus invoking the “complying with Court Order” exception in Rule 1.6(b)(6)), the lawyer may still only disclose information to the extent “reasonably necessary” to satisfy the court’s order.  And even then, only by the most restrictive means available, such as in camera review or under seal.  If the court does not enter an order but states that the motion to withdraw will be denied absent the lawyer providing additional information, the lawyer is bound by their duty of confidentiality. The lawyer should tell the judge that unless there is a court order, Rule 1.6 obligates the lawyer to maintain the confidentiality of the information. The lawyer should request that, if the court orders disclosure, that the court require the lawyer to disclose only so much information as is essential and allow the lawyer to make the disclosures in camera or under seal.

Other states are on the same page

Arizona advises its lawyers that motions to withdraw must be “quiet” stating only that “Professional considerations require termination of the representation.”  Michigan attorneys should invoke Rule 1.6 when pressed by the court to disclose confidential information, and, if ordered to reveal such information, to do so only to the extent necessary. Missouri offers attorneys some language that complies with Rule 1.6—”Professional considerations require termination of the representation” and “There has been a break-down in the attorney-client relationship.” Likewise, New Hampshire attorneys are reminded that they are often going to be limited to using the “professional considerations” explanation in motions to withdraw.  Iowa’s confidentiality rule—similar to the Model Rule’s version—makes “noisy withdrawals” problematic for its attorneys too.  Wisconsin lawyers are also reminded that in Wisconsin all information related to the representation is presumed confidential absent client consent or applicable exception. While New York cautions its attorneys not to volunteer unnecessary information, it is noteworthy that their Rule does not protect non-privileged information unless it’s disclosure would be embarrassing or detrimental to the client or the client asks the information be kept confidential.

The bottom line

Keep your motion to withdraw brief. Using phrases like “professional considerations” is your best bet. If the court presses on, reveal only what you absolutely must disclose to comply under the most protective means possible.

A groundbreaking ruling out of New York just changed the game for anyone using AI tools to discuss legal matters. In United States v. Bradley Heppner, No. 25 Cr. 503 (S.D.N.Y.), Judge Rakoff of the Southern District of New York said out loud what we’ve all been thinking: your chats with public AI platforms aren’t protected by attorney-client privilege—and they can absolutely be used against you.

What Happened?

Bradley Heppner found himself in hot water facing federal securities fraud charges. Like many of us, he turned to AI for help—specifically, Anthropic’s Claude. He used it to think through his legal exposure, explore defense strategies, and work through arguments for his case.

Bad move.

When the FBI searched his home, they seized 31 documents capturing his conversations with the AI. Heppner tried to claim privilege, arguing he’d used information from his lawyers and intended to share the AI outputs with counsel.

The court wasn’t buying it.

Why Privilege Failed

Judge Rakoff broke it down simply. Attorney-client privilege requires three things: a communication between attorney and client, an expectation of confidentiality, and the purpose of getting legal advice.

Heppner’s AI chats didn’t make the cut.

Claude isn’t a lawyer. This might seem obvious, but it matters. Privilege protects that special “trusting human relationship” with a licensed professional who owes you fiduciary duties. An AI chatbot? It doesn’t qualify.

There’s no confidentiality with public AI. Here’s the kicker: Anthropic’s privacy policy explicitly states they collect your inputs, use them for training, and can share data with third parties—including government agencies, no subpoena required. When you click “agree,” you’re essentially consenting to disclosure. Any privilege you might have had? Waived the moment you hit enter.

It wasn’t really about getting legal advice. Heppner claimed he was preparing to talk to his lawyers, but his counsel never told him to use Claude. That distinction matters. If your attorney directs you to use an AI tool as part of their work, there’s an argument it functions like an agent. Acting on your own with no direction from a lawyer? You’re just having a chat with a bot.

The work product doctrine didn’t save him either. Since Heppner used Claude independently and the conversations didn’t reveal his lawyers’ actual strategy, the protection didn’t apply.

What This Means for Lawyers and Clients

AI tools are incredibly useful. They can help you brainstorm, organize your thoughts, and even draft documents. But this ruling makes clear that convenience comes with risk.

If you’re using public AI platforms to discuss anything sensitive—legal strategy, business disputes, regulatory concerns—you need to assume it’s discoverable. That “private” conversation could end up as Exhibit A.

Here’s the practical takeaway:

Read the fine print. Before uploading sensitive information to any AI platform, understand the data policies. If they can train on your inputs or share with third parties, confidentiality is already compromised.

Get lawyer buy-in. If your attorney specifically directs you to use an AI tool as part of their work, you have a stronger argument for protection. Going rogue means going unprotected.

Treat public AI like public space. Whatever you type could potentially be seen by others. Draft accordingly.

This case is a first—but it won’t be the last. As AI becomes ubiquitous in legal work, courts will continue wrestling with these questions. For now, the message is clear: public AI tools are powerful, but they’re not your attorney, and they’re definitely not your confidante.

Use them wisely.

What’s worse than having a client go elsewhere, and then ask you to spend time helping your replacement? Yesterday (January 21, 2026), the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 520, clarifying the extent to which Model Rule 1.16(d) requires attorneys to convey information to a former client or successor counsel after representation ends. The opinion addresses the limited but important duty to provide unrecorded information that is necessary to protect a former client’s interests, where doing so is reasonably practicable.

What the opinion says

Opinion 520 notes that surrendering the client’s file and refunding unearned fees usually fulfills a lawyer’s obligations upon termination.  But there are circumstances in which a lawyer must also respond to targeted requests for information not memorialized in the file. This duty arises when the information was acquired during the representation, is not available from other sources, and is important to the former client’s interests in the same matter.

The Committee builds on prior guidance, including Formal Opinion 471 on surrendering papers and property and its discussion of circumstances requiring disclosure of certain internally generated materials, as well as Formal Opinion 481 distinguishing post-representation duties under Rule 1.4. These authorities frame the limited, necessity-driven nature of the post-termination information duty under Rule 1.16(d).

The opinion recognizes professional norms and select authorities that expect cooperation with successor counsel, particularly in criminal matters, and notes analogs in the Restatement (Third) of the Law Governing Lawyers §33(c) and agency law. These underscore that material communications and relevant unrecorded information may need to be conveyed post-termination to protect client interests.

Rest assured, there are limits!

The Opinion helpfully outlines what lawyers are not required to do.  For example, memory limits matter—if you do not recall something, there is no duty to refresh your recollection. Likewise, lawyers need not acquire new information, generate written materials or responses, provide legal advice, prepare affidavits, or perform time-consuming tasks beyond what is reasonably practicable. Nor must they respond if the request seeks readily accessible information or would require educating the former client on the law. 

The Opinion also provides helpful illustrations. For example, trial counsel must field limited questions from post-conviction counsel about strategy in the same criminal matter but need not draft statements or review materials beforehand.  In addition, no response is required to requests concerning different matters.  That includes the specific example that a lawyer in a completed transaction has no duty to answer questions aimed at a potential malpractice suit.

When triggered, the duty encompasses unrecorded facts, reasons for strategic choices, impressions of witness credibility, or unmemorialized client communications—so long as they were acquired in the representation and are necessary to protect the client’s interests in that matter.

Practical implications

Firms should maintain well-organized files and adopt procedures for prompt, reasonable responses to successor counsel, paired with clear communications to unrepresented former clients that no further representation is being provided absent agreement. Requests should be evaluated for necessity, practicability, and matter-relatedness, and conditioned on appropriate Rule 1.9(c) consent where successor counsel is involved. Depending on the circumstances and where you are located (for example, compare Michigan versus Wisconsin), attorneys may not be able to charge the client for their time or expenses incurred. Most states, such as Ohio, require  lawyers to bear the costs of turning over a client’s file, including  copying costs.

At bottom, Formal Opinion 520 refines the protective scope of Rule 1.16(d); when unrecorded, matter-specific information is both necessary and feasible to share, the lawyer must convey it–nothing more, nothing less.

New Technology, Same Ethics Rules

Technology is changing the practice of law, but attorneys must remember that no matter how much technology changes how we (or our clients) work, the ethics rules still apply to what we do (or don’t do). 

The Opinion emphasizes what many commentators have already noted:  Rule 1.1’s competence requirement means that attorneys should review any recordings, transcripts or summaries prepared by AI tools for accuracy and that attorneys must acquire an understanding of the technical features of AI tools that they and their clients use.  This includes familiarity with terms of service, data storage practices, and how to disable default recording features.  The Opinion also emphasizes that under Rules 5.1 and 5.3, attorneys have supervisory duties to ensure that subordinate lawyers and staff receive adequate training on AI tools and related ethical obligations. 

Attorneys must also remember Rule 8.4’s proscription against dishonesty, fraud, deceit, or misrepresentation, which the Opinion says prohibits secretly recording conversations (including via AI).  Even in one-party consent jurisdictions like New York where recording without the other party’s knowledge is legal for most people, attorneys are generally prohibited from doing so because it is fundamentally deceptive.  Most clients and others expect lawyers to take notes and summarize conversations.  But knowing (or not knowing) that there will be a verbatim voice recording goes significantly further and might change how participants speak or the dynamic of the conversation entirely.  An undisclosed recording deprives individuals of the ability to choose their words carefully.

Finally, Rule 1.6 is implicated as attorneys have a duty to safeguard all records of client communications and must understand the risks of preserving recordings.  AI-generated transcripts and summaries may be discoverable in litigation, and privileged communications could be inadvertently compromised.  The Opinion advises attorneys to consider where data is stored, whether the AI tool uses recordings for training purposes, and whether there is a right to have data deleted.

What To Do When Clients Use Their Own AI Tools

One of the most challenging scenarios addressed by the Opinion is when clients-rather than attorneys-choose to use their own AI recording tools.  In these situations, the attorney loses control over the security, accuracy, and storage of the resulting records, putting both the attorney and client at risk.  The opinion offers several practical recommendations for managing this situation: attorneys may ask that conversations not be recorded at all and engagement letters should include provisions stating that AI-generated recordings or summaries will not be deemed binding (or accurate) unless promptly provided to the attorney for independent review.  If clients insist on using their own tools, attorneys should advise them of the risks to confidentiality and privilege and communicate that an independent review of the output is needed or affirmatively disclaim responsibility for unreviewed AI-generated summaries.

Can You Hear Me Now?  Real Risk Depending On Jurisdiction

Although New York, Ohio and many other states are one-party consent states, attorneys must remember that 11 other states – including California and Illinois – require all parties to the call to consent before it can be lawfully recorded.  When communicating with clients or others located in different jurisdictions, attorneys must ensure compliance with the applicable recording laws to avoid potential civil or criminal liability.  Lawsuits are popping up related to AI recordings – a class action was filed in Illinois last year alleging a violation of the Federal Wiretap Act based on claims that a dental practice used a third-party service to record and perform AI analysis on calls without patient consent.

Modern AI transcription tools do more than simply record audio.  Some use voice recognition technology to attribute statements to individual speakers while creating summaries and highlighting key points.  But the act of creating “voiceprints” based on a person’s voice raises ethical considerations that go beyond traditional recording concerns.  Some states like Illinois have enacted biometric data protection laws covering voiceprints, and attorneys must be mindful of these requirements when selecting and deploying AI tools.  A class action filed in December 2025 alleges violations of the Illinois Biometric Information Privacy Act (BIPA) [i]which requires written notice and consent before collecting biometric identifiers, including voiceprints, by creating transcriptions without proper disclosure or consent.  

Key Takeaways

If you are considering using AI recording and transcription tools, you need to plan ahead and be ready to spend time before and after your client call to comply with your ethical obligations.  Formal Opinion 2025-6 makes clear that all attorneys (not just NY) should understand the technology, make sure records of client communications are safeguarded and carefully consider whether recording is tactically well-advised, given the potential confidentiality and privilege implications.  If you conclude that it is, you must obtain client consent before recording the call.  After the call, attorneys will need to review the AI-generated outputs for accuracy – regardless of who or what made the recording – particularly if these transcriptions or summaries may be preserved or relied upon.

[i] For more information about the BIPA, review the article linked here.   

Ethics Opinions Issued in 2025

In Texas Ethics Opinion 701, the Professional Ethics Committee concluded that an attorney practicing in Texas could not join a D.C. law firm in which a nonlawyer is a partner. Our takeaway is that lawyers cannot pick and choose which rules to follow based on the rules that are the most favorable to their situation. Lawyers or firms licensed or operating in multiple states must be cognizant of the jurisdictional differences in ethics rules or risk ethics violations.

In ABA Opinion 516, the Standing Committee on Ethics and Professional Responsibility clarified that while Rule 1.16(b)(1) is not a free pass and dropping a client like a hot potato might not be the best look, it does not automatically equate to a Rules’ violation. Our takeaway is that lawyers should always carefully analyze whether there would be an adverse material effect before terminating any representation. Still, lawyers must be aware that withdrawing from a representation in this manner might risk disqualification anyway.

The Board of Professional Responsibility of the Supreme Court of Tennessee opined that it would be ethically improper for a lawyer to agree (as a party to a client’s settlement agreement) to terms that would prohibit the lawyer from “taking any action or making any statements, verbal or written, to any third party that disparage or defame” the opposing party as a condition of settlement by the opposing party. Our takeaway is that lawyers must be mindful of Rule 5.6(b) when entering into any settlement agreements.

Social Media Guidance

Litigators have to be especially careful on social media. Our takeaway is that running afoul of ethical guidelines can lead to disciplinary problems for the lawyer, but it can also be damaging to your client’s interests if it happens in the midst of litigation. An Illinois appellate court, guided by Rule 3.6, set aside a $43 million dollar  verdict for the plaintiff and ordered a new trial due to the plaintiff’s attorney’s blog and social media posts about jurors during the trial. The posts, titled “What Jurors Should Know But Don’t,” talked about the case and other matters that they claimed were hidden from the jury during trial.

Even when just using social media for business development, ethics rules still apply to lawyer conduct. Our takeaway is that lawyers are not any less susceptible to discipline for ethics violations just because their conduct takes place on social media instead of in the courtroom.

Think twice before you respond to online reviews. Confidentiality rules can be broken when addressing online criticism with client information.

Be mindful of Rule 8.2, when criticizing judges online. Impugning a judge’s integrity or qualifications can lead to disciplinary suspensions.

Multijurisdictional practice and the authorized practice of law

Pay attention to State and Local Court Rules when appearing in Federal Courts. Many require state bar licensure and failure to adhere risks engaging in UPL and being suspended from practicing in the federal court. P.S., pay your bar dues.  If you’ve decided you no longer need your license in a certain state, simply not paying your bar dues is not the proper way to remove yourself from the roll of attorneys. It usually results in suspension, and that creates a lot of complications there and elsewhere.

And remember electing to go to “inactive status,” generally means no legal activity. If you are not eligible to practice law in that state, you are precluded from doing any legal work, including sending demand letters to out-of-state businesses on behalf of out-of-state residents.

Honesty is Required at All Times

Lawyers are always required to be honest. Dishonesty can carry severe consequences.

If you miss a deadline or fail to complete a filing for your client—just be honest about it upfront. There may be consequences, but compounding the issue with dishonesty makes things worse.  Trying to avoid consequences by forging a judge’s signature?  Not a great plan.  It can lead to disbarment and land you in prison.

Just because you are trying to help your client doesn’t mean dishonest conduct is permissible. Allowing your assistant to complete a court-mandated course intended for your client  is dishonest, and for one attorney lead to disciplinary hot water (and wasn’t great for the client either).

Don’t take money intended for your law firm. Fees earned through firm resources generally belong to the firm. If you feel you are not being compensated, then it might be time to move on, but it is never time to steal. The consequences for doing so can lead to disbarment and jail time.

Lawyers also need to watch out for dishonest clients—unworthy clients can cause law firms millions of dollars in litigation and trigger disciplinary issues for the lawyers entangled in the web of deceit.

What about AI in 2026?

2025 saw an incredible expansion of the use of AI by attorneys for a variety of tasks.  And notwithstanding a lot of publicized incidents and escalating sanctions, the number of attorneys that used AI to write briefs that included hallucinated citations (and got caught) also increased.  According to one source, there had been at least 90 such incidents by mid-2025 and that number is surely growing dramatically.  Lawyers give many reasons for why they used AI and ended up with false citations. The excuses are varied, as are the sanctions, but it is clear that the role of AI in the industry is expanding as fast as in other industries.  But unlike other industries, those using it without care are putting their pocketbooks and maybe their livelihoods at risk.  Sanctions are escalating and it won’t be long before attorneys are sanctioned, suspended or even disbarred for lack of care.  When using AI check all citations to law or fact.

Have a safe and healthy 2026!  

Conflicts of interest for current or future matters adverse to the government
Under Rule 1.7, lawyers must avoid representing clients where their professional judgment may be adversely affected by responsibilities to or interests in a third party. Conflicts don’t always arise from direct adversity to other firm clients. They can also come from personal or financial interests. While “personal interest” conflicts are normally not imputed to other firm lawyers, if all of the other firm lawyers are affected by the personal conflict too, then the conflict must be imputed to those lawyers as well. Opinion 391 explains that a lawyer with a personal interest conflict must reasonably and objectively believe that she can provide competent and diligent representation to each client affected by the conflict. And if so, the lawyer still must inform the affected client of the existence and nature of the conflict and the potentially adverse consequences of the intended representation and obtain the client’s consent. Conflict with one government agency does not necessarily always equate to a conflict with all government agencies. However, DOJ has taken the position that a private lawyer’s adversity to any element of the federal government does constitute a conflict of interest with the executive branch.

A firm that enters into an agreement that limits or shapes the firm’s practice must be aware of when a current or future matter involves a client’s position directly adverse to a program or policy in which the government has a strong interest. In sum, firms can (1) seek conflict waivers upon a reasonable belief that the conflict won’t impair the representation of that client, (2) decline or withdraw or (3) remove the cause of the conflict. When law firms don’t know which actions may trigger adverse government action, the firm might not meet be able to give “full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation.” Accordingly, clients would be unable to provide the informed consent required to produce a valid conflict waiver. If the exact nature and breadth of the commitments made by a firm are uncertain or are subject to unilateral change, the firm cannot be assured of its ability to remove the cause of the conflict. Regardless, any lawyer or firm considering entering into an arrangement of this nature must analyze whether the arrangement would allow for a conflict-free representation to its existing and potential clients who are adverse to the relevant government.

Restricting the right to practice
Opinion 391 reminds lawyers that agreements limiting or shaping a lawyer’s right practice may also implicate Rule 5.6(b). This rule prohibits lawyers from entering into agreements that restrict their right to practice as part of the settlement of a controversy. This prohibition has been broadly interpreted. Agreements with such restrictions are also void as against public policy. Rule 5.6(b) applies to lawyers on both sides of the negotiation, not just the lawyer who agrees to limit their practice. Plus, lawyers who induce or assist in such violation could also be subject to discipline.

Professional Independence
Lawyers must take care not to allow third parties to direct or regulate their professional judgment in providing legal services per Rule 5.4(c). Opinion 391 references an Ohio ethics opinion, which asserts that this rule prohibits lawyers from acceding to a third party’s direction as to the legal services that will be provided and also from taking third-party direction as to whether to accept or turn away a potential client. The Opinion cautions that an advance agreement to provide legal services to unidentified clients with unknown legal needs constitutes an improper limitation on a lawyer’s independent professional judgment as to the clients they will accept and as to the specific legal services be rendered. Thus, this rule must be closely examined upon receiving a similar type of direction.

In sum
Lawyers often have competing interests. They have to balance ethical concerns, time restraints, zealous advocacy concerns, personal interests, financial interests and many other considerations when deciding to take on a new representation, decline a potential client, or withdraw from a case. These ethical rules should always be considered regardless of the context.

1. Trial Publicity

Rule 3.6 is violated when lawyers participating in litigation or investigation of a matter make extrajudicial statements they should know will be disseminated publicly and are likely to materially prejudice an adjudicative proceeding. An Illinois appellate court recently set aside a $43 million dollar Plaintiffs’ verdict and ordered a new trial due to the plaintiff’s attorneys blog and social media posts about jurors during the trial.  The posts, titled “What Jurors Should Know But Don’t,” talked about the case and other matters that they claimed were hidden from the jury.

2. Communications with Jurors

Lawyers must also understand the parameters of permissible jury interaction. Model Rule 3.5 generally prohibits lawyers from having ex parte communications with jurors or prospective jurors. Lawyers are subject to restrictions even after the juror has been discharged. Colorado warns that communications can be prohibited even if initiated by the juror.

What about indirect communications? A lawyer may want to view a juror’s internet presence both before and during trial to ascertain attitudes that may not come out during voir dire. The ABA opines that such research is permitted. However, a lawyer must avoid other direct or indirect communications with the juror. A lawyer is prohibited from requesting access to information the juror has not made available to the public – that includes making a friend request. Yet, the ABA says that Rule 3.5 would not be violated merely because the juror was notified by the platform’s network that the lawyer was looking at his or her information. Such network notification would not be deemed a “communication” under the Rule.

D.C. shares the same view. But New York lawyers may need to be more cautious when viewing a juror’s social media. A  New York ethics opinion concludes that if a lawyer knew the juror would be notified when the lawyer viewed their online presence (even if no friend request was made), and the lawyer viewed the jury’s profile anyway, Rule 3.5 would be violated.

3. Truth!

Lawyers are prohibited from making false statements of material fact or law to third persons under Rule 4.1. This includes using trickery or deceit on social media. And doing so to obtain evidence, even if done by a nonlawyer agent, can violate this Rule.  Numerous courts have excluded evidence obtained through dishonesty, and many states have identified the additional ethical concerns, including New York. Lawyers are advised to be straightforward when making the friend request or simply use formal discovery channels.

4. No contact with represented parties

Rule 4.2 generally prohibits lawyers from communicating about the subject of the representation with a represented person in that matter. DC advised that lawyers are permitted to review a represented person’s public social media, because viewing does not equate to a communication. Conversely, requesting access to private information, such as “friend requesting” a represented person, does constitute a communication and thus violates the Rule. Similarly, West Virginia has opined that lawyers may not friend request represented individuals.

Rule 4.2 (and Rule 4.3) would be violated in New Hampshire where a lawyer, their investigator, or nonlawyer assistant sought a witness’s permission to view non-public social media information unless the witness was not represented by counsel and the request identifies the lawyer and the lawyer’s involvement in the matter. Colorado concluded that lawyers can advise clients on permissible social media communications the client may have with another represented party. However, the lawyer may not use the client to communicate with a represented party to bypass Rule 4.2.

5. Contacting Unrepresented Individuals

Lawyers must be wary of Rule 4.3 when contacting unrepresented individuals, especially adverse parties. DC notes that this Rule applies in social media investigations. While viewing an individual’s publicly available social media accounts is not a communication and consequently falls out of the Rule, DC warns lawyers that requesting private social media information triggers Rule 4.3. In this context, lawyers must say who they are, state that they’re lawyers, and name their client and the matter.

Oregon permits its lawyers to view public and private social media information of an unrepresented party, but lawyers are cautioned not to state or imply they are disinterested. Lawyers must also correct any misunderstanding as to the lawyer’s role. Simply “friend requesting” an unrepresented person does not suggest the lawyer is disinterested.

West Virginia allows its lawyers to contact unrepresented individuals through social media, but the line is crossed where the lawyer uses a pretextual basis for viewing the unrepresented person’s non-public social media. Accordingly, lawyers who use third parties to view an unrepresented person’s privately restricted social media accounts could violate this Rule, as such friend request would be considered “pretextual”. 

6. Misconduct

Lawyers engaging in deceitful or dishonest conduct will also run afoul of Rule 8.4, including when the conduct takes place over social media. Lawyers representing  clients in a pending litigation, and who have access to the publicly accessible social media of another party, may review that party’s pages to look for potential impeachment material, says New York. But lawyers must not “friend request” that party or ask another person to do so.

Likewise, New York lawyers are cautioned that lawyers who “friend request” a person on social media under false pretenses to obtain evidence are in violation of Rule 8.4. Lawyers trying to circumvent the rule by asking an agent or investigator to do their dirty work will still be in violation of the Rule and will also be in violation of Rule 5.3.

1. Competence

Like everything we do, our first obligation when using social media is competence. As noted in DC Bar Ethics Opinion 370, lawyers must understand how the social media site operates—including privacy policies. Understanding whether posts are private or public is a must under Rule 1.1. And, keeping up with changes in how the social media platforms work is part of keeping up with your duty to stay apprised of relevant technology—see cmt. 8 to Model Rule 1.1.

2. Confidentiality

The American Bar Association Standing Committee on Ethics and Professional Responsibility reminds lawyers that they generally cannot reveal information relating to the representation of a client, even including information found in public records. See ABA Formal Opinion 480. The NYSBA points out in Ethics Opinion 1088 that even revealing the name of your client can be a violation of Rule 1.6 unless the client has given consent to such disclosure.

3. Duties to Former Clients

A lawyer who has formerly represented a client in a matter (or whose firm has formerly represented a client in a matter) cannot subsequently use information relating to the representation to their former client’s disadvantage. Likewise, absent an exception, lawyers cannot reveal information relating to the past representation. This rule holds firm even when a client makes case information known to the public.

A Colorado attorney was tasked with writing an investigative report pertaining to election expenses for a town council. A council member released the report to the media. After a series of events, the lawyer believed his character, work and reputation were under attack. To defend himself and disclose what he had learned about the public officials (something he thought was part of his civic duty), he took to social media. In doing so, he violated Rule 1.9 because some of his posts were derived from information he learned during the course of his former representation.

4. Duties to Prospective Clients

Lawyers regularly taking to social media to post about the law need to be careful not to provide legal advice. A court could determine that a prospective client was reasonable in their belief that an attorney-client relationship was formed due to the lawyer providing such advice. Then, all liabilities and duties would kick in under Rule 1.18—including malpractice. Disclaimers are particularly helpful here, but they may not be sufficient depending on the circumstances of the online interaction. Example disclaimers include “The information on this page is not legal advice” and “Visiting this page does not establish an attorney-client relationship”.

5. Unauthorized Practice of Law

One of the benefits to social media is that it can be efficient and far-reaching. But that can create pitfalls too because the flip side of being far-reaching is that lawyers do not know where the person they are communicating with over social media is sitting. Lawyers posting about general legal principles in one jurisdiction may be giving erroneous advice if applied to the law in another jurisdiction. There are no jurisdictional limitations on interactions. Not to mention that your post may be accurate in one jurisdiction but contrary to the law in another. Giving bad advice has many obvious downsides, but if you are using your post to solicit clients, those might include a charge that you engaged in the unauthorized practice of law. That violates Rule 5.5 in most states – and constitutes a felony in some states). Make sure that you disclose where you are licensed and where you are not licensed. Disclaimers on jurisdictional limitations can go a long way.

6. Communications Concerning a Lawyer’s Services

Lawyers must also be wary of post anything false or misleading about their services, lest they risk being disciplined for violating Rule 7.1. Obviously lying is wrong, but the threshold is much lower to violate this rule. Even omitting a fact could be a rule violation if such omission makes the statement misleading as a whole. As the Ohio Board of Professional Conduct asserts in Opinion 2016-08, lawyers should avoid nonverifiable communications about their legal services.

Depending on what lawyers post, the post could be considered legal advertising. See NYSBA Ethics Opinion 1251 and New York County Lawyers Association Professional Ethics Committee Formal Opinion 748. There are certainly jurisdictional differences for when a lawyer’s posting subjects them to their states Rules of Professional Conduct. See California Formal Opinion 2016-196. Lawyers should always be leery about using the words “expert” or stating that they specialize in a certain field. Many states have rules against using these terms unless the proper certification has been obtained.

7. Misconduct

The type of conduct that may not fall under other ethics rules but still may subject lawyers to discipline is found in Rule 8.4. Even when lawyers are not providing legal services, their general misconduct can land them in hot water. Examples include dishonesty, deceitfulness, or misrepresentation. Don’t pretend to be someone you’re not—especially to gain information for another client. See Colorado Ethics Opinion 127, which lays out the ethical parameters for lawyers seeking to use social media for investigatory purposes. Likewise, posts that are discriminatory or harassing in nature could be deemed ethical misconduct.

A Scrivener’s Error?

The facts – as related in the Order – are slightly hard to follow.  What they suggest is that a Florida lawyer and local NC counsel filed PHV Motions seeking permission to participate in two different class action cases.  Both were accompanied by the required supporting declarations and both also represented that the Florida lawyer regularly practices in Florida and had not been admitted PHV in North Carolina in the last five years.

But the declarations – which were examined by two different judges, contained several inconsistencies.  One listed a different Florida bar number in the declaration than what was listed on the PHV motion itself.  And one declaration contained a different list of states where the out of state lawyer practiced than the other. 

The Judge in the first case granted the Motion.  But two hours before the scheduled hearing in the second case, the lawyer filed a revised declaration whereby he retracted his previous assertion that he is licensed and regularly practices in the State of Colorado.  As it turns out, he was not licensed in Colorado according to the judge, who looked it up on the Colorado Attorney Registration website.   

When the Judge asked him why he signed a document with a misrepresentation as to his state of licensure to practice law, the lawyer said it was the result of a “scrivener’s error.”  Then the Court also discovered that, contrary to his representation, the lawyer has been admitted pro hac in at least two other matters in North Carolina in the last five years.

The Judge was not amused.  He said the lawyer’s explanations were “alarming” and denied the Motion.  And when he did, no one updated the lawyer’s statements in the Motion filed in the first case.    

PHV Reconsidered

Three weeks later, the Judge in the first case learned of the denial in the second case and sua sponte noticed a hearing to determine whether reconsideration of his pro hac vice status was warranted.

On the Friday before the scheduled hearing), the lawyer and his local counsel filed an Amended Pro Hac Motion the lawyer disclosed that he had been admitted to practice pro hac vice in at least five other cases within the past five years – not zero as he had represented.

Duty of Candor to the Court

Noting that PHV admission into NC is a discretionary privilege and not a right, the Court found that the lawyer violated his duty of candor imposed under N.C. R. Pro. Conduct 3.3(a)(1), (“a lawyer shall not knowingly make a false statement of material fact or law to  tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”). The court also pointed to Comment 3 to the Rule, which explains that any statement proclaiming to be based on the lawyer’s own knowledge, including statements made in a lawyer’s affidavit or in court, is only properly made when the “lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry”. 

Comedy of Errors

When asked how he could list the wrong Florida bar number and how he wouldn’t have known he appeared in at least five North Carolina cases though PHV admission, the Florida lawyer explained that it was a “comedy of errors” due to circumstances surrounding the case and firm staffing issues. The court found that even if there was no nefarious intent or attempt to withhold information, as the Florida lawyer claimed, his conduct still amounted to gross negligence in keeping past PHV records and in making representations to the court. The court found it even more troublesome that the Florida lawyer failed to notify it of the order in the second data breach case denying the PHV motion. The court emphasized that is difficult to understand how the Florida lawyer did not find it necessary to examine the PHV filings in this case to determine if they contained the same inaccuracies contained in the PHV filings in the other case. Based on the affirmative misrepresentations he made to the court and the fact that the Florida lawyer failed to notify this court of the adverse ruling in the other breach case, the court found there was sufficient basis to revoke his PHV admission.

The court explained that the duty of candor requires lawyers to correct their false factual or legal statements previously made to the tribunal even in circumstances where the lawyer believed the statement to be true when the statement was made. But the court found that merely revoking the PHV status was not enough to protect the court’s integrity and the administration of justice. Accordingly, the court barred the Florida lawyer from practicing in North Carolina courts for a year (though North Carolina law allows courts to suspend attorneys for up to 5 years for violating a rule of professional conduct).

Local Counsel is Not Off of the Hook

Local counsel was also admonished by the court, underscoring the responsibility of local counsel to ensure compliance with court rules and to act as a conduit for the court’s oversight of out-of-state attorneys. Though the court noted local counsel was not as culpable, his conduct was nonetheless inexcusable. The court found that while local counsel may not have been aware of the inaccuracies in the PHV filings, once he had actual notice of the adverse order in the other case, as local counsel, he had a duty to bring it to the court’s attention.

The Client

The firm’s client was an individual financial advisor associated with an investment company. The individual client had initially asked the firm to conduct due diligence on the investment company. After spending 20k in legal fees, the client told the attorney he did not wish to pay for any additional investigation—and so the attorney stopped its due diligence investigation. Had the lawyer continued to investigate—he might not be entangled in the mess that still remains today.

The client later became heavily involved with the investment company, including raising $100,000,000 from investors. The client advertised to investors pointing to how reputable the attorney and law firm were—effectively using the firm to vouch for the integrity of their investment. More details emerged as the representation continued, and they weren’t good. The Company’s founder had been released from prison right before he started the company. He had served time for money-laundering. He apparently had created several fake names for himself, and hired a “reputation manager” to obfuscate his criminal convictions online.

But information about the founder’s past criminal history, his role in the company, and the company’s default rate, profitability and underwriting process wasn’t disclosed to the investors. Investments continued to be solicited until the company was placed in receivership. The resulting fraud loss was over $400,000,000. The founder eventually pleaded guilty to a RICO charge, securities fraud, tax crimes, and perjury and was sentenced to serve many years in prison.

Allegations

Unsurprisingly, a class action was filed against the Firm for its alleged role in the underlying scheme. The Plaintiffs claim the Firm aided and abetted the Company’s fraud by advising agent funds used to solicit investors in the company’s merchant cash advance loans, creating false and misleading offering documents that were disseminated to investors, and effectively performing as investment underwriters. The law firm denied liability but agreed to pay 38 million dollars in potential damages to settle—avoiding additional and very complex litigation.

The lawyer against whom the allegations were targeted not only faced issues with the SEC but is also currently fighting disciplinary charges related to his entanglement with this client.  The disciplinary petition included violations of Rules 1.1 (competence), 1.3 (diligence), 1.7 (conflicts), 4.3 (dealing with unrepresented persons), and 8.4 (misconduct) of the Pennsylvania Rules of Professional Conduct. It did not mention but could have also included violation of Rule 1.16 (failing to withdraw from a representation that results in a violation of law).

Smoke and Mirrors

Unworthy clients often use others, including their law firms, as pawns in their schemes. And just like the others, the clients often need to deceive their lawyers as well as their victims to accomplish their fraudulent goals. And they’re good at what they do. That is why lawyers need an objective list of signs or “red flags” that will help them spot when a client is unworthy. Lawyers who ignore these signs in favor of the urge to take on another lucrative client are bound to get burnt. Law firms must implement “red flag” policies and put the processes in place to enforce them otherwise they will be on the hook too.  

The bottom line is that lawyers need to learn and pay attention to who they are working with. Do your own research on the client until you are satisfied one way or the other. If the representation feels wrong, it probably is. If there is any uncertainty, discuss the potential representation with those in charge at the firm. There will always be more clients, but you’re never guaranteed another law license (or job).

Not only should the red flag list be considered during the business intake process, but it should also be considered throughout the course of any representation as new facts or circumstances reveal themselves. But you must know what you’re looking for—which signs to spot.

Know the Flags

If a deal seems like it is simply too great to be true, it probably is. Some flags– like fraud or other criminal charges—are easy.  But there are many others.  Is this client experienced in what they want to do?  Properly capitalized?  Does it appear the client has a substantial and reliable plan to do anything besides raising money? Have they failed at these or other endeavors?

Financial red flags include: (1) prior business failures (2) unusual source of funds (3) no justifiable reason for using multiple or foreign bank accounts (4) valuable assets located in high-risk country (5) unusual growth in revenue with no explanation (6) client spends extravagantly on lavish items that appear to be beyond their financial means (7) client will not pay the retainer or has refused to pay past professionals (8) offshore companies and (9) avoidance of SEC registration without justification or reason.

History tends to repeat itself. Examine the client’s past interactions with others.  Past dealing red flags include: (1) client has been fired by past lawyers (2) client frequently changes retained professionals such as accountants or planners (3) overly litigious clients who have repeatedly sued past business partners, lawyers, or customers  (4) past firms have declined to give an opinion yet they are seeking an opinion from you and (5) past executive left suddenly company and without warning or explanation.

Research should be direct and indirect. Ask the client and do your own research. If the client refuses to provide documentation or continuously provide excuses for why they haven’t or can’t provide the requested information, be wary. And stay wary. If a client provides misinformation or inconsistent responses to informational requests, watch out. If a client outright lies to you: run!  Someday that client will expect you to lie for them and will blame you when they get caught lying.

Don’t overlook the client’s inconsistencies even if they seem small or insignificant. They just might add up to a disaster.

Remember Lawyers have a duty to provide competent representation and that is hard to do if you don’t really know who you are representing. Lawyers must inquire into the facts and circumstances of every representation to determine whether they can accept or continue a representation. Lawyers are prohibited from counseling or assisting clients in conduct they know to be criminal or fraudulent. It is misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.