KINGS COUNTY CRIMINAL BAR ASSOCIATION

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1 KINGS COUNTY CRIMINAL BAR ASSOCIATION PRESENTS: PROFESSIONAL RESPONSIBILITY UPDATE A CONTINUING LEGAL EDUCATION COURSE MARCH 29, 2012 BROOKLYN BAR ASSOCIATION 123 REMSEN STREET BROOKLYN, NEW YORK ETHICS MONOGRAPH PREPARED BY: LAW OFFICES OF MICHAEL S. ROSS ND 60 EAST 42 STREET FORTY-SEVENTH FLOOR NEW YORK, NEW YORK (212) COPYRIGHT 2012 BY

2 TABLE OF CONTENTS PAGE A. CONFLICTS OF INTEREST AND DISQUALIFICATION MOTIONS...1 B. NO CONTACT RULE (RULE 4.2)...6 C. RIGHT TO COUNSEL OF CHOICE...10 D. INEFFECTIVE ASSISTANCE OF COUNSEL...11 E. CRIMINAL LAW...21 F. PRIVILEGE AGAINST SELF-INCRIMINATION ACT OF PRODUCTION DOCTRINE...23 G. ATTORNEY-CLIENT PRIVILEGE...24 H. CONFIDENTIALITY (RULE 1.6) DISCLOSURE OF CONFIDENTIAL INFORMATION IN ORDER TO PREVENT A CRIME...28 I. DISCIPLINARY PROCESS...29 J. ATTORNEY WITHDRAWAL FROM REPRESENTATION...29 K. TRIAL CONDUCT IMPROPER CROSS-EXAMINATION AND INFLAMMATORY SUMMATION...31 L. PUBLISHING CRITICISM OF ANOTHER LAWYER S PROFESSIONAL CONDUCT IN AN INTERNET BLOG...32 M. REPORTING MISCONDUCT OF ANOTHER LAWYER TO THE AUTHORITIES (RULE 8.3)...32 N. MENTAL PROCESSES PRIVILEGE FOR A QUASI-JUDICIAL OFFICER...33 O. DISGORGEMENT OF ATTORNEYS FEES CONFLICT OF INTEREST BREACH OF FIDUCIARY DUTY...33 P. LAWYER ADVERTISING CERTIFICATION AS A SPECIALIST CONSTITUTIONAL LIMITS ON REGULATION...35

3 Q. CONSTITUTIONALITY OF LAW REQUIRING ADMITTED LAWYERS WHO LIVE IN ANOTHER STATE TO MAINTAIN AN OFFICE IN NEW YORK...35 R. CONSIDERATION OF POSSIBLE ETHICAL VIOLATIONS BY PROSECUTOR IN CONNECTION WITH A MOTION TO SUPPRESS...36 S. GHOSTWRITING PRO SE SUBMISSIONS...36 T. UNDERCOVER STING BY CRIMINAL DEFENSE COUNSEL...37 U. UNAUTHORIZED PRACTICE OF LAW PERMISSIBLE SCOPE OF WORK BY PARALEGALS...37 V. LAWYER WEB SITES...38 ii

4 KINGS COUNTY CRIMINAL BAR ASSOCIATION PRESENTS: PROFESSIONAL RESPONSIBILITY UPDATE " A CONTINUING LEGAL EDUCATION COURSE MARCH 29, 2012 BROOKLYN BAR ASSOCIATION 123 REMSEN STREET BROOKLYN, NEW YORK ETHICS MONOGRAPH PREPARED BY: A. CONFLICTS OF INTEREST AND DISQUALIFICATION MOTIONS. The New York State Bar Association s Committee on Professional Ethics recently issued an advisory ethics opinion, Opinion 901 (Dec. 28, 2011), which addressed an important question relating to representation of companies: when can a lawyer or law firm simultaneously represent a company and an individual director, officer or shareholder of the company? The Opinion noted that simultaneously representing a company and a director, officer or shareholder can create conflicts. (Emphasis added.) However, the Opinion determined that such conflicts can be cured if: 1) the conflict is consentable; and 2) the lawyer or law firm receives informed consent from each affected 1 client, and the consent is confirmed in writing. Although the Opinion did not break new ground in its analysis of the question, it does provide practitioners with a helpful summary of the rules which govern this frequently arising issue. Opinion 901 addressed this issue in the context of an inquiry from an officer of a privately held company, who had been represented by a lawyer in a number of matters over the previous few years. One of these matters involved negotiations between the officer and the company concerning the officer s employment relationship and minority ownership interest in the company. After these negotiations were concluded, the company expressed interest in retaining the lawyer to represent the company in future matters. The officer told the lawyer that even if the lawyer was retained by the company, he (the officer) would like the lawyer to represent him on future matters unrelated to his 1 The Committee did note that some conflicts are not consentable, meaning that a lawyer cannot undertake the representation even if all affected clients consent to the representation. The best-known example of a non-consentable conflict is that a lawyer cannot represent opposing parties in a litigation.

5 employment by or ownership interest in the company if the lawyer could do so without violating New York ethics rules. The Opinion first observed that New York Rule of Professional Conduct ( Rule ) 1.13(d) specifically addresses this question. Rule 1.13(d) provides, in part: [a] lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. Thus, there is no per se prohibition on simultaneous representation of a company and its directors, officers and shareholders. However, the Opinion observed that any such simultaneous representation must be consistent with Rule 1.7, which governs conflicts of interest between a lawyer s current clients. As Opinion 901 noted, the portion of Rule 1.7 which is relevant to the question it was considering is Rule 1.7(a)(1). Rule 1.7(a)(1) provides that a lawyer has a concurrent client conflict if the representation will involve a lawyer in representing differing interests, i.e, interests which are conflicting, inconsistent or diverse. Typical examples of this type of conflict include suing a current client or engaging in contentious negotiations with a current client. The Opinion then stated that whether or not the lawyer would face a conflict in simultaneously representing the officer and the company in different matters would depend on the specific matters in which the company and the officer sought to be represented by the lawyer. Although this type of analysis is fact-intensive and fact-driven, the Opinion, in an effort to provide some general guidance, examined potential officer-company conflicts in three different types of situations. The first was a situation where: 1) the lawyer represents the officer in a transaction (e.g., buying a summer house) in which the company has no interest; and 2) the company asks lawyer to defend it in a personal injury suit which has nothing to do with the officer. Opinion 901 stated that there are no differing interests and no conflict in this situation. Because there is simply no conflict, the lawyer can simultaneously undertake both representations without seeking or obtaining consent from either client. The second situation represented the opposite extreme from the first. The lawyer, as in the first hypothetical, represents the officer in a matter in which the company had no interest. However, the company then asks the lawyer to represent it in litigation against the officer, e.g., a suit by the company accusing the officer of stealing a corporate opportunity, or a suit by the officer against the company alleging that the company had breached a contract with the officer. Opinion 901 stated that this circumstance plainly presents a conflict of interest, and the lawyer cannot take on the representation of the company against the officer, unless the lawyer can satisfy the requirements established by Rule 1.7(b) i.e., the lawyer must first reasonably believe that she can provide diligent and competent representation to each client in the matters in which she is COPYRIGHT 2012 BY Page 2 of 38

6 representing them. In other words, the lawyer must reasonably conclude that she can diligently represent the company in the suit against the officer, notwithstanding the fact that the lawyer is currently representing the officer in another, although unrelated, matter; and the lawyer must reasonably conclude that she can competently represent the officer, even though she would be simultaneously suing him on behalf of the company. If the lawyer can reasonably conclude that competent representation of both clients is possible, the lawyer must then obtain informed consent from each client, confirmed in writing. The third type of situation falls in between the extremes of the first two situations. The lawyer, again, represents the officer in a transaction in which the company has no interest. The company then approaches the lawyer and asks her to advise it on structural issues, such as revising the by-laws, compensation structure or management system of the company. Although this assignment would not create as stark a conflict as would the lawyer representing the company in litigation against the officer, there is still a strong possibility that there will be a conflict. Since the officer is an officer and shareholder of the company, structural corporate changes could adversely affect his interests, e.g., by lowering his salary. And it is possible that the lawyer (or a reasonable lawyer in her position) might be reluctant to give the company advice that might injure another client. Opinion 901, accordingly, concluded that the lawyer cannot undertake the proposed representation of the company unless the lawyer obtains informed consent, confirmed in writing, from both clients. The New York State Bar Association s Committee on Professional Ethics recently issued an ethics opinion, Opinion 903 (Jan. 30, 2012), which addressed an important question which frequently confronts lawyers jointly representing co-defendants pursuant to a consent to the dual representation and a waiver of future conflicts which may arise between the joint clients. The Opinion addressed the question of, in such circumstances of joint representation, if one of the clients revokes consent, can the lawyer continue to represent the non-revoking client? Opinion 903 provided general guidelines for analyzing specific circumstances, and concluded that the question of whether the lawyer can continue to represent the non-revoking party depends on the circumstances, unless there is an advance agreement which specifies what happens upon revocation of consent. Opinion 903 first noted that, in cases where the clients have not agreed in advance on the consequences of a revocation of consent, when a party revokes a consent to a dual representation, that revocation is clearly valid, under Rule 1.16 of the New York Rules of Professional Conduct, to terminate the lawyer s representation of the revoking client. The difficult question is whether the lawyer can continue to represent the non-revoking client under such circumstances. The Opinion determined that the factors which must be weighed in deciding this question are stated in Comment 21 to Rule 1.7, which provides: COPYRIGHT 2012 BY Page 3 of 38

7 A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer s representation at any time. Whether revoking consent to the client s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other clients, and whether material detriment to the other clients or the lawyer would result. (Emphasis added.) The Opinion went on to observe that Comment [29A] to Rule 1.7 explains what typically happens when a common representation fails due to conflicts: Ordinarily, absent the informed consent of all clients, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. See Rule 1.9(a)... (Emphasis added.) The Opinion then noted that, in certain circumstances, the lawyer can continue to represent the non-revoking client, even though Rule 1.9 ordinarily would prevent the lawyer from representing an adverse party against a former client in the same or a substantially related matter. The Opinion explained that if the revoking client lacks valid reasons for the revocation of consent, then whether the lawyer may continue representing a non-revoking client depends on whether material detriment to the other client or lawyer would result and, accordingly, whether the reasonable expectations of those persons would be defeated. (Emphasis added; quoting Restatement [Third] of the Law Governing Lawyers, Section 122, Comment f. ) However, in many cases where consent to a dual representation has been revoked, the consent of a client to be represented concurrently with another normally presupposes that the client-clients will not develop seriously antagonistic positions. If such antagonism develops, it might warrant revoking consent. And the Opinion noted that if the decision by one of the joint clients to revoke that client s prior consent to the conflict is appropriate (e.g., because of a change in circumstances), the lawyer who had previously represented both joint clients may be ethically prohibited from further representation of either client. In United States v. Eldridge, 2012 U.S. Dist. LEXIS (W.D.N.Y. Jan. 31, 2012), the United States District Court for the Western District of New York (Arcara, J.) ruled that a motion by two of the defendants to disqualify an Assistant United States Attorney ( AUSA ) from further participation in his prosecution on the grounds that the defendant might call the AUSA as a trial witness was premature because: 1) the defendants asserted need to call the AUSA was tenuous (2012 U.S. Dist. LEXIS 11580, at *7); and 2) because ongoing discovery and possible changes in trial strategy by both the prosecution and the defense might eliminate the possibility that the defendants would call the AUSA as a witness. The court stated: the probability that [the AUSA] would taint any eventual trial by becoming a witness, while not zero, is too low right now for the COPYRIGHT 2012 BY Page 4 of 38

8 aggressive remedy of disqualification. Id. at *8. The court, however, made the denial of the disqualification without prejudice to renewal should future events increase the need for [the AUSA] s testimony. Id. at *9. In United States v. Curanovic, 2011 WL (S.D.N.Y. Apr. 1, 2011), the District Court disqualified a defense attorney from representing a defendant in an organized crime case because the government believed that the lawyer might be a co-conspirator and unsworn witness in the case. The defendant was provided with counsel to independently assist him in the decision concerning whether to waive the conflict and waived the conflict at a hearing held before the District Court. The Government was of the view that the conflict was waivable. However, the District Court refused to accept the defendant s conflict waiver, finding that the lawyer himself might arguably have an interest in cooperating with the Government to help himself, and this type of concurrent, self-interest driven conflict, is not waivable. In addition, the Court cited to Wheat v. United States, 486 U.S. 153 (1988), which held that there is an independent interest in ensuring that criminal trial s are conducted with the ethical standards of the profession and that legal proceedings appear fair to all who observe them. The court believed that the jury would figure out that evidence at the trial referenced the attorney for the defendant and the necessary disclosure of the conflict to the public would leave that appearance of impropriety exposed. In Kopp v. United States, 2011 WL (W.D.N.Y. Jul. 27, 2001), the district court refused to grant a convicted murderer habeas relief on the supposed ground that he had improperly been denied counsel of his choice. The court found that his counsel had been properly disqualified because he was simultaneously representing defendants who were charged with obstructing justice and harboring the murderer and aiding and abetting his fugitive status. In fact, at trial the attorney would have had to call one of his clients as a character witness for the murderer or as part of the justification defense even though this conduct would have jeopardized plea negotiations for the witness-client. The court held that this conflict was unwaivable and that disqualification was thus required as a matter of law. In Mercado v. City of New York, 2010 WL (S.D.N.Y. Sept. 30, 2010), Magistrate Judge Pitman considered a claim by the plaintiff that defense counsel should be disqualified because they were representing multiple clients who had conflicting interests. The estate of an incarcerated prisoner sued the Department of Correction and other agencies and employees for civil rights claims based upon a prisoner s death while in custody. Noting the importance of the right to select counsel, the Magistrate Judge considered the claim of a concurrent conflict under Rule 1.7 of the Rules of Professional Conduct between the City and individual defendants and the inherent possibility of finger pointing and mutual blaming. The court noted that inasmuch as the City would indemnify the individual defendants for the conduct alleged, the court found no real conflict nor the did the court believe that the individual defendants would blame the City for failure to train them concerning their duties; and the court found that even if the individual defendants had slightly different versions of COPYRIGHT 2012 BY Page 5 of 38

9 the events which exonerated them individually, the court noted that the individual defendants had submitted written waivers of the potential conflicts. B. NO CONTACT RULE (RULE 4.2). In Opinion 884 (Nov. 14, 2011), the New York State Bar Association s Committee on Professional Ethics expressed the view that a lawyer who represents a party in a criminal proceeding may, consistent with New York Rule of Professional Conduct 4.2 the so-called no contact rule interview a non-party witness in that criminal case, who is a defendant in a related prosecution and is represented by a lawyer in that case, without seeking or obtaining the consent of the witness lawyer in the separate prosecution. Rule 4.2(a) provides that, [i]n representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law. (Emphasis added.) The Opinion stated that, in the context of criminal proceedings, the fact that the Administrative Board of the Appellate Divisions had drafted Rule 4.2(a) to prohibit a lawyer from having unconsented to communications with a represented party (as opposed to with a represented person ), led to the conclusion that a non-party witness in a criminal matter is not protected by Rule 4.2. The Opinion, however, explicitly stated that its conclusion does not extend to civil matters and left open the question of whether a non-party witness in a civil matter is protected by the no contact rule. Finally, the Opinion stated that, even though Rule 4.2(a) does not require the lawyer for a party in a criminal case to obtain the consent of counsel for a non-party witness before communicating with the witness, the witness lawyer can, consistent with the ethics rules, advise the witness not to speak with anyone about the facts of the case in which s/he will be a witness outside of the presence of the witness s lawyer. 2 In Opinion 904 (Jan. 30, 2012), the New York Bar Association s Committee on Professional Ethics expressed the view that a lawyer who represents the victim of a financial crime with respect to a potential claim for restitution against the person responsible for the financial crime cannot, consistent with New York Rule of Professional Responsibility 4.2(a) the so-called no-contact rule directly contact the alleged perpetrator if the lawyer for the victim knows that the alleged perpetrator is represented by counsel in a criminal investigation of the same conduct. The Opinion stated that the no-contact rule, prohibits a lawyer who represents a party in a matter from directly contacting a party the lawyer knows is represented in that matter without the consent of that person s lawyer, applies in these circumstances because: 1) the lawyer for the victim knows that the 2 Author s Note: See discussion, infra, of New York State Bar Association Opinion 904, which also discussed the meaning of the term party as it is used in Rule 4.2(a) and which, I suggest, is inconsistent with the narrow interpretation of the term party in criminal matters which was adopted by the Second Circuit in Grievance Committee v. Simels, 48 F.3d 640 (2d Cir. 1995). COPYRIGHT 2012 BY Page 6 of 38

10 perpetrator is represented by counsel in the ongoing criminal investigation; 2) the potential restitution action against the perpetrator and the criminal investigation are closely related and potential negotiations concerning the restitution claim can have a direct impact on the criminal case; and 3) under the circumstances, the lawyer for the victim has reasonable grounds to believe that the lawyer for the perpetrator in the criminal investigation also represents the perpetrator with respect to the potential restitution claim. The Opinion expressed the view that the proper course for the victim s lawyer would be to contact the lawyer for the perpetrator in the criminal case and to ask the lawyer whether s/he represents the alleged perpetrator with respect to the potential restitution claim. If the lawyer for the perpetrator states that s/he does not represent the perpetrator with respect to the restitution claim, the no-contact rule does not apply and the victim s lawyer can directly contact the alleged perpetrator with respect to the restitution claim. But if the lawyer states that s/he does represent the perpetrator with respect to the potential restitution claim, as well as in the criminal investigation, the no-contact rule applies and the victim s lawyer cannot communicate with the alleged perpetrator without the consent of the perpetrator s lawyer. Opinion 904 certainly does not have the force of law. Previously, New York s former Disciplinary Rule ( D.R. ) 7-104(A) now Rule 4.2 had been interpreted not to apply to attorneys in criminal cases based upon the language of D.R (A), which prohibits contacting a representing party, not person. See, e.g., Grievance Committee for Southern District v. Simels, 48 F.3d 640 (2d Cir. 1995); People v. Kabir, 13 Misc.3d 920 (Sup. Ct. Bronx Co. 2006). Other ethics opinions suggest that in civil cases, the former Rule would be applied broadly to persons. See, e.g., New York State Bar Assoc. Op. 735 (2001); New York State Bar Assoc. Op. 656 (1993) ( we have [previously] described DR s scope as applicable to represented persons, not merely technical parties ). But there has not been any definitive court ruling applying the person gloss to either former D.R or to Rule 4.2. Indeed, courts continue to express what appears to be a view otherwise. For example, in In re Amgen, Inc., 2011 WL (E.D.N.Y. Apr. 6, 2011), the Court considered a request by a corporation to take steps to prevent what the corporation claimed was violations of Rule 4.2 by government prosecutors. The corporation was the subject of a grand jury investigation and qui tam False Claim Act ( FCA ) lawsuits. The corporation claimed that the government had improperly sought to interview current and former corporate employees and it sought a protective order from the district court which would have required the government to coordinate with the corporation s lawyers concerning any contact with current and former corporate employees. The court in Amgen first expressed the view that it did not have free-standing authority or supervisory authority to direct how the government conducts investigations merely because qui tam lawsuits are conducted under the courts aegis pursuant to the FCA ; nor did the court have COPYRIGHT 2012 BY Page 7 of 38

11 authority to control the executive branch of government merely because the prosecutor s investigation was being conducted pursuant to the grand jury s powers, and district courts, in turn, supervise grand juries. In particular, the court found that courts do not prescribe the modes of grand jury procedures. As to the ethical issues surrounding the arguments made with respect to Rule 4.2, the court made a number of findings. First, the court found that the record supported the view that the prosecutors had ratified the conduct of federal agents by allowing the agents to continue their practices even in the face of objections by the corporation and that, accordingly, the prosecutors were responsible for the conduct of the agents under Rule 5.3(b)(1), which states that a lawyer is responsible for the conduct of a non-lawyer, including an investigator, if he or she orders or directs the specific conduct, or with knowledge of the specific conduct, ratifies it. (The court also noted that in the adoption of the Rules of Professional Conduct, the definition of party had remained unchanged, and thus Rule 4.2(a) did not intentionally use the broader term of person WL , at *18-21.) The court noted that in evaluating the ethical conduct of prosecutors, a court would have to consider New York ethical rules and, under the McDade Act, prosecutors would have to follow the welter of ethical rules, not only the set of rules adopted by the particular federal court in which she practices [i.e., the New York Rules]. Id. at *19. Thus, under these principles and the Second Circuit s narrow view of the term party as expressed in Simels, federal prosecutors were not a party to the qui tam actions and the corporation was not a party to the grand jury investigation, and, therefore, the court declined to apply Rule 4.2. (The court, however, rejected an argument by the government, that it was authorized by law to ignore Rule 4.2 based upon general language in a number of other criminal statutes.) Finally, the Amgen court found that while prosecutors were ethically bound to follow New York ethical rules, that did not mean that courts had the authority to issue protective orders against the Government. The American Bar Association s Standing Committee on Ethics and Professional Responsibility has issued an advisory opinion, Op. No (Aug. 4, 2011), which addressed a significant issue which frequently arises in practice: whether and to what extent a lawyer may, consistent with Model Rule 4.2 (the so-called no-contact rule), advise and assist a client with respect to a direct communication with a represented adverse party which the lawyer s client proposes to initiate. A common example is when a client wishes directly to approach its adversary in an effort to settle litigation, particularly to break an impasse in negotiations conducted by each party s lawyers. Opinion No expresses the view that a lawyer is permitted, consistent with the no-contact rule, to give substantial assistance to a client regarding a substantive communication with a represented adversary. The lawyer may advise the client as to the subjects or topics to be addressed in the direct communication, issues to be raised, and strategies to be used. The lawyer may also provide the client with a script for the direct communication, as well as proposed COPYRIGHT 2012 BY Page 8 of 38

12 documents, e.g., a proposed agreement, to present to the represented adversary. The Opinion also concluded that a lawyer is permitted to assist and advise the client concerning direct party-to-party communications, even if it is the lawyer who suggests to the client that a direct contact with the adverse party is a good idea. Finally, Opinion cautioned that a lawyer s ability to assist and advise a client with respect to party - to - party communications is not unlimited. The Opinion stated that lawyers cannot use their ability to assist clients with respect to direct communications with an adverse party to engage in overreaching, and stated that [p]rime examples of overreaching include assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel. Opinion No is significant because it is the first time the ABA Committee stated that a lawyer is permitted to advise and assist a client with respect to a proposed client communication with a represented adverse party. The Opinion, however, is less significant for lawyers in New York than for lawyers in other jurisdictions, for two reasons. First, the New York City Bar Association issued an opinion in 2002, Opinion No (May 2002), which stated that New York lawyers could, consistent with New York s version of the no contact rule, advise and assist a client with respect to a party-to-party communication which the client has proposed to undertake. Thus, with respect to client communications with represented adverse parties suggested by the client, ABA Opinion does not break new ground; in fact, it adopts a conclusion which the New York City Bar Association adopted nearly a decade ago. Second, Opinion 's conclusion that a lawyer is permitted to advise and assist a client with respect to a party-to party communication which the lawyer has suggested to the client is not wholly consistent with New York law. New York s version of the no contact rule contains a provision not included in the Model Rules, New York Rule 4.2(b) which directly addresses party - to - party communications which the lawyer suggests to the client. Rule 4.2(b) requires a lawyer to give opposing counsel reasonable advance notice that the lawyer s client will contact the adverse party, whereas ABA Opinion and Model Rule 4.2 do not place that pre-condition on party - to - party communications suggested by a lawyer. Thus, a New York lawyer could stumble into an ethics violation if he or she would assume that Opinion fully applies to New York lawyers, and suggest that a client communicate directly with the adverse party without giving opposing counsel reasonable advance notice of the contact. that pre-condition on party - to - party communications suggested by a lawyer. Thus, a New York lawyer could stumble into an ethics violation if he or she would assume that Opinion fully applies to New York lawyers, and suggest that a client communicate directly with the adverse party without giving opposing counsel reasonable advance notice of the contact. A.B.A Opinion No has proven to be unusually controversial. As a comment appearing in the on line version of the A.B.A. Journal has observed, Formal Opinion has been a rare exception to [the usual pattern, in which new A.B.A. Ethics Opinions create little, if any comment when they are released.] Comments questioning a key element of the opinion were posted COPYRIGHT 2012 BY Page 9 of 38

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