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Cash, Confidentiality and Caring for Clients:
Questions and Answers for Alaska Bar Ethics Update CLE

by Peter R. Jarvis **

 

Generally speaking, there are four requirements for the application of attorney-client privilege: (i) a current or prospective client, (ii) a lawyer or someone whom the client reasonably believes to be a lawyer, (iii) a communication about a legal matter and (iv) a reasonable expectation of confidentiality. Cf. Restatement (Third) of the Law Governing Lawyers § 68 (2000) ("Restatement"). When it comes to assessing the availability of attorney-client privilege with respect to communications by cordless phone, cell phone or unencrypted e-mail, the first three requirements are unaffected. It is only the reasonable expectation of confidentiality that is potentially at issue.

A reasonable expectation of confidentiality does not mean the same thing as an absolute guarantee. Even with old-fashioned "snail mail," for example, there is a possibility that it could be misdirected or that a thief could break into a lawyer’s or client’s office and steal the communications. Similarly, a disgruntled employee of a courier or express mail service could conceivably rip open an envelope intended for someone else and reveal its contents. Such possibilities do not, however, prevent the existence of the privilege. Similarly, the presence of an unexpected eavesdropper does not, without more, defeat a claim of privilege although holding an attorney-client conversation in an elevator full of third parties clearly would. Cf. Peter R. Jarvis & Bradley F. Tellam, "Competence and Confidentiality in the Context of Cellular Telephone, Cordless Telephone, and E-Mail communications," 33 Willamette L Rev 467 (1997).

As applied to attorney-client privilege and communications by cordless phone, cell phone and unencrypted e-mail, the question boils down to this: notwithstanding that there is some risk of interception, can a reasonable expectation of confidentiality still be said to exist? Fortunately the answer is "yes." On the one hand, we know from experience that most of our communications by these means are not intercepted, just as most of our letters or faxes arrive safely at their intended designations. On the other hand, there are substantial federal and state prohibitions against the intentional interception and misuse of such communications. See ABA Formal Ethics Op No. 99-413; Alaska Bar Op No. 98-2.

This does not mean, however, that it will always be wise or appropriate to use these means of communications with regard to a client’s most precious secrets. The lawyer’s duty to protect client information is at times broader than the duty to protect the privilege per se. In addition, lawyers owe their clients a duty of competent representation. For particularly sensitive information, therefore, a lawyer would be well advised to consider using the most secure means of communications available and to consider discussing with a client the potential risk of using a less secure means. Similarly, standards of care may change over time. Although most e-mail today is sent unencrypted, there may come a time in the future when the use of encryption will become a normal part of a lawyer’s standard of care when communicating with clients.

 

The primary rules applicable to this set of questions are ARPC 1.7 with regard to current-client conflicts and ARPC 1.9 with regard to former-client conflicts. Turning first to current client Able’s sale of the assets or stock of a business to current client Baker, it is clear that a single lawyer or law firm can represent either Able or Baker if both Able and Baker consent after full disclosure. What is not clear, however, is whether or under what circumstances a single lawyer or law firm can represent both Able and Baker even if they both consent. There is presently no Alaska authority on point, and the standards in other jurisdictions are not consistent. See, e.g., In re Johnson, 300 Or 52, 707 P2d 573 (1985) (Oregon attorneys cannot represent buyers and sellers); Baldasarre v. Butler, 625 A2d 458 (NJ 1993) (New Jersey attorneys may do so only if clients consent and transaction is not complex); NYC Bar Ethics Op 2001-2 (it depends). In addition, and even if a lawyer who represents both sides of a fixed-sum game such as this can avoid discipline, there is an increased risk of civil liability due to, for example, claims of breach of fiduciary duty if one client comes to believe that it was treated less favorably than the other. At a minimum, therefore, great caution is urged. This is true even if the lawyer or firm seeks to qualify their conduct under ARPC 2.2, which governs intermediaries, rather than under ARPC 1.7.

A different situation is present, however, when Able and Baker wish to go into business together as partners or fellow shareholders. In such a case, more for one does not necessarily mean less for the other, because their common objective is to create something new that leaves them all better off. Because of this, the conflicts rules are applied in a somewhat more relaxed manner. Even those jurisdictions that prohibit the simultaneous representation of buyer and seller will typically permit the simultaneous representation of multiple would-be partners and incorporators if all clients consent after full disclosure unless their interests are strongly antagonistic. See, e.g., Peter R. Jarvis & Bradley F. Tellam, "When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law," 33 Willamette L Rev 145 (1997).

One way to think of multiple-client conflicts waivers is in terms of veto power. Current clients always have veto power over the ability of their lawyers to oppose them and thus the consent of current clients must always be obtained before any adverse work is undertaken. In fact, and as is noted above, there are also some current-client conflicts that cannot even be waived. Restatement §§ 128-130. Former clients, on the other hand, can always waive conflicts, and they have veto power only in two sets of circumstances: when the prior representation of the former client provided the lawyer with confidential client information that the lawyer could use adversely to the client in the new matter (sometimes called an information-specific conflict) or when the prior representation was in the same matter in which the lawyer previously represented the client or a significantly related or overlapping matter (sometimes called a matter-specific conflict). Restatement § 132. When a party to be opposed is a former client and neither an information-specific nor a matter-specific conflict is present, a lawyer can proceed against that party without obtaining any conflicts waivers.

With regard to drawing the line between current and former clients and a lawyer’s inability to drop one current client in mid-matter "like a hot potato" in order to act adversely to that client over that client’s protest. See, e.g., Santacroce v. Neff, 134 F Supp 2d 366 (D NJ 2001); Schuff v. A.T. Klemens & Son, 16 P3d 1002 (Mont 2000).

NOTE: AS A MATTER OF CLIENT AND LAWYER PROTECTION, ALL CONFLICTS WAIVERS SHOULD BE REDUCED TO A CONTEMPORARY WRITING. The lawyer should also bear in mind that the conflicts-waiver letter may well constitute Exhibit A in a subsequent disciplinary or civil-damage complaint against the lawyer.

Although circumstances vary, conflicts-waiver letters should, as a general proposition, typically contain the following:

  • A clear statement of what the lawyer has been asked to do.
  • A clear statement of who will, and who will not, be the lawyer’s client in the matter or matters for which consent is requested.
  • A clear delineation of the scope of the waiver: whether, for example, it covers both litigation and negotiation or what will happen if the facts turn out to be different than assumed or if jointly represented clients have a subsequent falling-out.
  • A clear statement of the factual circumstances in which the waiver is sought and of any related client representations about those circumstances.
  • A discussion of the pros and cons of giving the consent; for example, whether a current client on Matter A ought to be concerned that granting consent to being opposed in Matter B will place any of that client’s confidential information at risk or will create the risk that the lawyer will be less zealous or eager when representing the client on Matter A because of the opposition on Matter B.
  • When simultaneous current representations are involved, a discussion of the effect on individual privilege claims of multiple parties using a single lawyer.
  • A recommendation that the clients review this matter with care and, ideally, that they consider consulting independent counsel before reaching a decision. For example, the letter might say: "Although I believe that the risks of your granting consent are not great, I recommend that you consider these questions for yourself. In fact, I recommend as a matter of prudence that you consult independent counsel before reaching a decision on this matter. You are not obligated to consult other counsel if you do not wish to do so, however. The choice is yours."
  • A request that the client confirm the consent in writing. For example: "If you are willing to consent after such review as you deem appropriate, please sign the enclosed extra copy of this letter and return it to me for my files."

 

It is easiest to answer the second part of this question first. If you seek to withdraw from a representation on the ground that a conflict exists but the court prohibits you from withdrawing, no discipline should result from continuing with the matter and refusing to commit a contempt of court. Cf. In re Lasswell, 296 Or 121, 673 P2d 855 (1983). On the other hand, that does not mean that you would not potentially be subject to discipline for having gotten yourself into a conflict situation to begin with.

When considering the representation of multiple plaintiffs or defendants, the following factors can be important:

  • The extent to which the present positions and interests of the multiple clients are or appear, after reasonable inquiry, to be consistent. It is a bad idea, for example, to represent multiple plaintiffs or defendants who ought to be making cross-claims against each other. It is also a bad idea to represent multiple plaintiffs with unliquidated claims against a defendant who does not have sufficient assets to pay all claimants.
     
  • The extent to which the future positions and interests of the multiple clients appear likely to remain consistent or to diverge.
     
  • The potential, if any, of limiting or eliminating conflicts by expressly reducing the scope of the agreed-upon work, for example, by agreeing to represent a group of clients on common issues A and B but not on issue C as to which they diverge.
     
  • Whether the clients are sophisticated enough to be able to appreciate the consequences of their consent.
     
  • The potential benefits (usually cost savings and the ability to present a united front) versus the potential costs (loss of individual privilege claims from joint representation and the risk of having to change counsel at a later time).

See generally Restatement § 128.

 

This set of problems arises because it is a violation of ARPC 5.5(a) for an Alaska lawyer to engage in the unauthorized practice of law in another jurisdiction and because California (like many states) has for its own purposes broadly defined what constitutes the practice of law.

As a general proposition, however, an out-of-state lawyer who wishes to represent a client in a litigation or arbitration in California can be admitted pro hac vice. In light of the availability of pro hac vice admission, it seems likely that preliminary steps before filing (e.g., reviewing documents or interviewing witnesses in California) may safely be undertaken by a lawyer who anticipates pro hac vice admission.

Suppose, however, that the matter at issue is not litigation but a business transaction. In this case, pro hac vice admission is not presently available, and few states have black-letter "temporary/transitory lawyer" exceptions to their unauthorized-practice rules. Nevertheless, it seems fairly clear that an Alaska lawyer can represent an Alaska client on a California business matter in California. Whether the same approach would be applied to the representation in California on a California matter of a California client with whom the lawyer also happened to have an attorney-client relationship in Alaska is less clear.

The whole issue of multijurisdictional practice is presently very much in the news, and it is not unlikely that the rules will be significantly liberalized in the years ahead. Oregon, Washington and Idaho, for example, recently agreed that a member in good standing in one of the states could become a member in the other two states without the need to take another bar exam. And a committee of the Washington State Bar recently recommended the adoption of a black-letter temporary/transitory lawyer rule.

5. You are negotiating a contract. You ask for terms that the other side agrees to only because the other side’s lawyer is a fool. Under what circumstances, if any, may you say or do anything to redress the imbalance? What if the other side’s lawyer pulls you aside and thanks you for not taking unfair advantage since this is the lawyer’s very first negotiation? What if you agree with the other side’s lawyer that a term can be added to the contract but the other side then forgets to add the term and your client wants to sign the contract as presented?

For a general discussion of the standards applicable to negotiation ethics, see Peter R. Jarvis & Bradley F. Tellam, "A Negotiation Ethics Primer for Lawyers," 31 Gonz L Rev 549 (1995/96). For the rules most likely to be applicable to negotiation ethics, see ARPC 3.4 and 8.4(c).

The fact that the other side’s lawyer is a fool does not reduce a competent lawyer’s own duty to accomplish what he or she can for his or her client’s benefit. Although the competent lawyer in this situation is free to recommend that his or her own client not seek a deal that is so one-sided that it will only provoke future problems or challenges, that is as far as he or she can go.

The same result holds if the foolish opposing lawyer thanks the competent lawyer for being fair. The competent lawyer must be careful, however, to avoid saying anything in reply that would constitute "dishonesty, fraud, deceit or misrepresentation" within the meaning of ARPC 8.4(c). Cf. In re Williams, 314 Or 530, 840 P2d 1280 (1992).

With regard to the last portion of this hypothetical situation, ABA Informal Ethics Op No. 86-1518 holds that the lawyer who receives the contract with the missing agreed-upon term may not have his or her client sign the contract without first revealing that this term is missing. Cf. Peter R. Jarvis & Bradley F. Tellam, "The Dishonesty Rule?A Rule with a Future," 74 Or L Rev 665 (1995).

6. You are still negotiating a contract, but this time the other side is pro se. The other side asks you whether he or she would be protected in the event that Situation X arises. The truthful answer to that question is "yes," but you know that a competent lawyer on the other side would have asked about Situation Y instead of Situation X and that the answer to that question is "no." What options, if any, do you have?

In this situation, it is likely that the lawyer would have a duty either to refrain from saying anything at all or to answer both the asked and the apparently mistakenly unasked parts of the question. See, e.g., Bohn v. Cody, 119 Washn 2d 357, 832 P2d 71 (1992); ARPC 8.4(c). The only other option would appear to be to resign.

7. You are either a government (or private-practice) lawyer who is concerned about possible illegal activities by officers or employees of XYZ Corporation. Under what circumstances, if any, can you use a government (or private) investigator to go undercover and ferret out the truth if doing so will necessarily involve the investigator in the making of misrepresentations? What if you are a criminal-defense lawyer and your client asks you whether he or she should gather information from his or her bosses in order to have something to trade with the government as a part of a plea bargain?

No one would suggest that it is acceptable to advise clients to violate substantive criminal law or to commit actionable torts against others. On the other hand, most undercover investigations are neither crimes nor torts. Although the matter is not entirely free from doubt (especially in Oregon), it appears that most of the jurisdictions that have reached this question would allow both government and private lawyers to engage in reasonable noncriminal and nontortious evidence gathering if other alternative sources of information are unavailable. Compare Apple Corps Ltd. v. International Collectors Soc., 15 F Supp 2d 456 (D NJ 1998) with In re Gatti, 330 Or 517, 8 P3d 966 (2000). See also Jarvis & Tellam, "The Dishonesty Rule?A Rule with a Future," supra; David B. Isabell & Lucantonio N. Salvi, "Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation Under the Model Rules of Professional Conduct," 8 Geo L J Legal Ethics 791 (1995). (Note: This answer does not address communication with represented parties issues under ARPC 4.2; please see question 13 below.)

8. What does this all mean for the ability to bluff or puff? What does it mean for misrepresentations made in a nonlawyer capacity?

The limits on permissible puffing are probably shrinking. And whatever these limits are, the prohibition in ARPC 8.4(c) against "conduct involving dishonesty, fraud, deceit or misrepresentation" applies to private conduct by lawyers as well as to conduct in a professional capacity. Cf. Jarvis & Tellam, supra, The Dishonesty Rule?A Rule with a Future, supra.

9. While you are representing ABC Corporation in a criminal matter, the corporate president calls you up and starts to tell you that he or she has indeed violated the law in conducting corporate business. When you tell the president that you will have to tell the Board chair what you have learned, he or she informs you that you may not do so because he or she was speaking to you in confidence. What are your options? What might you have done differently? Can the crime or fraud exception to the attorney-client privilege apply even if you were unaware of the crime or fraud at the time that it was taking place?

Since ABA Corporation is your client, you are free to go above the president’s head to the Board chair. See, e.g., ARPC 1.13. This is not a matter of privilege waiver. It is simply a matter of going to a higher representative of the client.

Under the facts as stated here, it is highly unlikely that the president could make a successful claim of personal attorney-client privilege. On the other hand, ARPC 4.3 requires a lawyer to avoid misleading a nonclient about the lawyer’s role. If the lawyer does not intend that the president become an additional client, it would certainly be a good idea for the lawyer to say so even in the absence of any apparent confusion on the lawyer’s part.

The crime or fraud exception is dependent upon the client’s knowledge of the crime or fraud. Thus the exception can be applied even if the attorney was wholly unaware of the client’s criminal or fraudulent intentions. U.S. v. Chen, 99 F3d 1495 (9th Cir 1996); see also Restatement § 82.

10. Your firm has a Web site. Advertising and solicitation rules differ to a degree from state to state. What do the Alaska Rules of Professional Conduct say about the content of your Web site? Under what circumstances, if any, may you be subject to discipline in states other than Alaska due to the content of your Web site? Are disclaimers worthwhile?

Alaska presently has no disciplinary rules that expressly address Web sites. The rules that apply to attorney advertising and solicitation generally are ARPC 7.1-7.5.

The prevailing view among ethics experts seems to be that lawyers may be subject to the advertising rules of jurisdictions in which they are not admitted only when they start to accept clients from those jurisdictions. For this reason if no other, it may be desirable to identify on a firm Web site any jurisdictional limitations that may apply to the firm’s practice. Doing so may also help discourage inquiries from entities or individuals whom the firm would have no interest in representing.

11. Under what circumstances, if any, is it OK to practice law by way of the Internet with clients whom you never meet? With clients for whom you handle only small parts of larger issues? With clients who demand immediate answers to complex problems?

This is largely a question of old wine in new bottles. The technologies may have changed, but the basic questions and answers remain the same. For example, it has been and is acceptable to represent a client whom one has only "met" by phone, fax or even first-class mail. There is, therefore, no reason in principle why one cannot ethically meet and converse with a client exclusively via the Internet. Cf. Cal Ethics Op No. 2001-155.

On the other hand, the duty of competent representation that is required by ARPC 1.1 and by common-law obligations of agent to principal requires, among other things, that the lawyer act with reasonable care toward the client. This will sometimes mean second-guessing or seeking clarification of client instructions. Consequently, a lawyer who agrees to work on only a small part of a much larger matter needs, among other things, to be sure that the lawyer’s responsibilities are appropriately delineated and that the lawyer’s own part makes sense, both in and of itself and in the context of a larger whole.

Clients who demand an immediate answer to complex problems are an increasing part of legal life in the early twenty-first century. Although modern technologies make it easier for clients to pursue their lawyers everywhere and with greater speed, it seems likely that our own emphasis on "client service" encourages clients to do so. It may well be that civil rather than disciplinary risk is the largest risk of giving immediate answers to complex problems. Whatever the risk, though, lawyers should consider the following:

  • Whether it is really necessary to answer the question immediately or whether the client is more or less trying to see how high the lawyer is willing to jump.
  • Whether the client and the circumstance are worth going out on a limb for.
  • The risk of being sued not only by clients, but also by third parties.
  • If a decision is made to proceed, written documentation of the client’s immediate request and of the lawyer’s caveat that the advice given is being given under pressure and may therefore prove to be inaccurate or incomplete in whole or in part.
  • Analysis of whether risks can be reduced after the fact by subsequent research to fill in any gaps. If so, and this often will be possible, such steps should be taken.

 

Pursuant to ARPC 1.8(a), a lawyer may do business with a client if, inter alia, the client consents after full disclosure and the terms of the transaction are sufficiently fair. If the transaction is important enough, the lawyer may also want to insist that the client retain separate counsel for the matter. This should reduce the amount of second-guessing, and second-guessing in such circumstances can be severe.

Pursuant to ABA Formal Ethics Op No. 00-418, permissible business deals with clients can include the receipt of client equity as part or all of the lawyer’s fee. In such circumstances, the importance of fairness and of an excellent conflicts-waiver letter will obviously be great. In addition, the lawyer may want to bear in mind the possibility of an after-the-fact assertion by a client that the fee was unreasonable within the meaning of ARPC 1.5.

A word of caution may also be appropriate. Many instances of lawyer-client business seem to result in discipline or civil liability. Just because something can be done does not mean that it necessarily should be done. Here, as elsewhere, discretion will sometimes be the better part of valor.

13. You are engaged in negotiations with another party who is represented by counsel, but the negotiations have bogged down. Your client asks you what to do to get things back on track. May you advise your client to go talk to his or her opposite number on the other side and see if he or she can get things moving again? May you give your client final documents to take to the other side for signing? What are some of the other options that you may wish to consider?

This question raises issues under ARPC 4.2, which generally prohibits communications by a lawyer with someone who is represented by another lawyer unless the communication is authorized by law (e.g., serving a complaint on a party and not on that party’s counsel) or unless the lawyer has the consent of the other lawyer to make the communication. On the other hand, ARPC 4.2 does not apply directly to nonlawyer clients and does not prohibit one lawyer’s client from seeking to speak to another lawyer’s client without the consent of either lawyer.

There is some division of opinion on whether a lawyer can recommend that a client speak to another represented party and can tell the client what to say or not to say. ABA Formal Ethics Op No. 92-362 allows such conduct, however, and reaches what this author believes to be the appropriate result. The Comment to ARPC 4.2 also appears to allow this. On the other hand, arming a client with final documents to take to the other side for signing behind the lawyer’s back seems inadvisable and quite possibly counterproductive.

Other options that can be considered when negotiations bog down include:

  • Communicating directly with the ostensibly nonresponsive counsel in writing about the need for progress or even suggesting that the counsel may be setting himself or herself up for a possible damage action by the counsel’s own client if the transaction falls through due to neglect.
  • Communicating directly with another lawyer in the nonresponsive counsel’s firm about the problems or with in-house counsel if the opposing entity has in-house counsel.
  • Scheduling a meeting or a conference call that will necessarily involve attorneys and clients.
  • If the negotiation is a part of litigation, scheduling a deposition or the like.

One other question that is sometimes asked about ARPC 4.2 is which representatives of an entity client are or are not off limits. See, e.g., ABA Formal Ethics Op No. 95-396, 92-362. The majority view is that all former officers or employees of a represented entity and lower-level nonmanagerial employees who are merely fact witnesses are not off limits but that a lawyer who speaks to such individuals must not deceive them about the purpose of the communication or use the communication to invade the entity’s attorney-client privilege. At the other end of the spectrum, current members of an entity’s management are clearly off limits. Whether lower-level nonmanagerial employees whose conduct is sought to be imputed to the represented entity for liability purposes are off limits (e.g., the truck driver who ran through the red light and hit the plaintiff) is less clear. The Comment to ARPC 4.2 places newly arriving employees off limits but does not speak to the truck driver category. By contrast, ABA Formal Ethics Op No. 95-396 expressly places both of these categories off limits.

14. You are handling a case that has received a lot of media attention. Your instinct tells you to stay above the fray, but your client pleads with you to get involved in order to help avoid a defeat in the all-important battle for public opinion. Under what circumstances, if any, may you get involved and what should you say or refrain from saying?

There are many reasons why lawyers should speak to the media with great caution if at all. For example, we are not trained in public relations, and we cannot be sure that even the most faithful and diligent of reporters will necessarily report what we said as we said it. In addition, we obviously have no control over what others may say after we have spoken. Nevertheless, there are times when it is appropriate for lawyers to speak out on their clients’ behalf. If nothing else, a client who has no one speaking for him or her when the media spotlight is on him or her and when he or she is being tried in the court of public opinion may find that the media is not interested in telling his or her side of the story after he or she has been acquitted.

ARPC 3.7 contains the Alaska rule on pretrial publicity. Due to First Amendment free-speech protections, pretrial publicity cannot be the subject of discipline unless it creates a significant likelihood of a prejudicial effect on an upcoming trial. Gentile v. State Bar of Nevada, 501 US 1030, 111 S Ct 2720, 115 L Ed 2d 888 (1991). Although no unambiguous line can be drawn that will cover all situations, several practical considerations are clear. For example, statements to the press long before a trial will occur are less likely to have the required negative effect. Similarly, statements that are limited to matters already in the public record or to matters on which admissible evidence will be adduced at trial are less likely to have the required negative effect. It is also questionable whether, in a nonjury trial setting, any pretrial publicity can have the required negative effect since judges are trained to and regularly do disregard irrelevant matters in deciding the matters before them. Cf. Peter R. Jarvis, "Legal Ethics Limitations on Pretrial Publicity and the Case of Ron Hoevet," 31 Willamette L Rev 1 (1995).

 

Alaska’s limitations on in-person and telephone contact are contained in ARPC 7.3. In person and telephone solicitation for the purpose of the lawyer’s economic gain is prohibited. On the other hand, in-person and telephone solicitation is permitted if the target of the solicitation is a relative of the lawyer or someone with whom the lawyer has or had a prior professional relationship. In-person and telephone solicitation is also permitted if the lawyer’s motive is not personal economic gain (because, for example, the lawyer is doing pro bono work for the poor). By contrast, written solicitation is permitted across the board, subject to the limitations of ARPC 7.3(c).

Alaska’s rules do not speak directly to e-mail solicitation. It would seem, however, that the sending of e-mail is closer to the sending of letters than to live in-person or telephone conversations.


**Peter Jarvis: B.A., Harvard University (1972); M.A. (economics), J.D., Yale University (1976); member of the Oregon State Bar since 1976 and the Washington State Bar since 1981; partner, Stoel Rives LLP, Portland; former member, Oregon State Bar Legal Ethics Committee, Washington State Bar Rules of Professional Conduct Committee. Mr. Jarvis is chair of the Stoel Rives Professional Responsibility practice group. He is a frequent writer and speaker on legal ethics issues, and his practice includes advising attorneys with legal ethics questions and defending attorneys accused of legal ethics violations. Mr. Jarvis is a member of the American Law Institute and is also 2000-2002 chair of the ABA Center for Professional Responsibility Conference Planning Committee. In 1993, Mr. Jarvis received the Harrison Tweed Special Merit Award from ALI-ABA for his ethics CLE work.

Caveat: Mr. Jarvis is not yet (though he hopes soon to be) a member of the Alaska Bar. In addition, these answers are solely his opinions and are not binding on the Alaska Bar.

15. You learn through nonconfidential sources that a person down the street is about to be sued. Under what circumstances, if any, may you contact that person in person, by telephone, by e-mail, by regular mail or through a third party and offer your services?

12. Under what circumstances, if any, is it OK to take a part of your fee in the form of client stock? Under what circumstances, if any, is it OK to do business with a client at all?

4. You are a litigator or business lawyer admitted only in Alaska. You have a longtime client who lives in Alaska and another longtime client who lives in California for whom you have performed various projects in Alaska that turn on Alaska law. As it happens, both clients want you to go to California and look into the filing of litigation or arbitration proceedings against a California defendant or negotiate a contract with a California party. Under what circumstances, if any, may you do so?

3. You are a litigator who is asked to represent multiple plaintiffs or multiple defendants in a matter. What considerations do you need to keep in mind? What if you determine that a conflict exists and seek leave from the court to withdraw but the court informs you that you may not withdraw?

2. You are a business lawyer. Able and Baker are current clients of yours who wish to engage in a transaction in which Able will sell all of the stock or assets of a business to Baker. Under what circumstances, if any, can you represent both Able and Baker in the transaction? One and not the other? Would the answer be the same if Able or Baker were a former client or if they wished to form a partnership or corporation instead of engaging in a purchase and sale transaction? If you use conflicts-waiver letters, what should they say?

1. You have clients who wish to communicate with you by cordless phone, cell phone or unencrypted e-mail. Is attorney-client privilege available for such communications? Whether privilege is available or not, should you take any special precautions?

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