CURRENT MONTH (February 2018)

Professional Responsibility

Assigning Claims Against Clients for Fees Is Invalid

By Keith R. Fisher, National Center for State Courts

A Florida federal court recently ruled that a lawyer’s assigning a claim against a client for fees is void as against public policy because of the centrality of the ethical interest in preserving client confidentiality. A parallel rationale underlies a 2007 Florida Supreme Court decision invalidating clients assigning malpractice claims against their lawyers. Both decisions are consistent with the analysis in a 2000 D.C. Ethics Opinion. The key distinction is that while it is permissible to use a collection agency to recover fees owed, outright assignment of the claim abdicates control over the collection process and would allow collection efforts that are incompatible with a lawyer’s ethical requirements.

Covert E-mail Tracking Is Unethical

By Keith R. Fisher, National Center for State Courts

Covert e-mail trackers, also known as “web bugs,” follow receipt and distribution of messages sent to opposing counsel. Their use violates both Model Rule 4.4, by impermissibly intruding into the lawyer-client relationship of another, and Model Rule 8.4, by engaging in conduct involving dishonesty or deceit to obtain confidential client information of someone else’s client, protected by Model Rule 1.6. These conclusions were recently reached by an Illinois ethics opinion, which is consistent with prior opinions from Pennsylvania (2017) and Alaska (2016). An older New York ethics opinion (2001) reached the same conclusion under a slightly different rationale. Such conduct may also constitute a violation of 18 U.S.C. § 2511 (prohibiting interception of any wire, oral, or electronic communication). “Read receipts” are permissible, however, as they do not yield information about subsequent use of an e-mail and are merely the electronic equivalent of a certified mail return receipt.



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