This article is part of a continuing series of interviews between Rajiv S. Khanna and leading practitioners across the country, designed to provide personal and professional insights into various areas of the law.
Rajiv S. Khanna: Good morning, Devika. Let’s begin with a brief introduction.
Devika Kewalramani: Good morning, and thank you, Rajiv, for this opportunity. I’m what you might call a “lawyer’s lawyer.” As an ethics lawyer at a midsize law firm in New York City, my practice is focused on serving as outside ethics counsel to law firm and lawyer clients who need advice on ethical or professional responsibility matters. As law is a highly regulated profession, law firms and lawyers often seek counsel on ethical troubles before they turn into disciplinary problems. Ethical issues for a firm or a lawyer could arise in their law practices or private lives and can stem from their professional or personal conduct involving clients, adversaries, opposing counsel, colleagues, the court system, regulators, or even the public. My ethics practice focuses on ethics in the legal profession, but its subject matter reach is well beyond the profession itself, for example, how use of technology impacts a lawyer’s ethical duties. As a partner and leader of Moses Singer’s Law Firm Industry practice, I have practiced in this somewhat unusual yet dynamic field for almost two decades and it has been an extremely interesting and rewarding experience.
What are the typical situations in which other law firms need an outside ethics advisor?
Generally, law firms either have their own in-house general counsel or they do not. Most larger US and international law firms have internal ethics counsel who may also act in a dual capacity as their general counsel. While each firm does things differently, there are situations where firms will look outside their firms to obtain independent and objective advice on highly sensitive or serious ethics or professional responsibility matters that need to be resolved effectively and expeditiously. Some firms and practitioners may establish ongoing relationships with outside ethics counsel with the expectation that they can literally “pick up the phone” to seek ethics advice on issues they are grappling with.
The kinds of scenarios where firms may involve outside ethics counsel can vary in scope, scale and depth—it may depend on the firm’s practice setting, fields of work, size, structure, or culture. Legal ethics is an expansive and evolving practice area that raises a multitude of nuanced issues surrounding a lawyer’s obligations, especially in today’s changing legal landscape. Common and recurring examples of ethical issues include competence, conflicts of interest, client confidentiality, attorney-client privilege, unauthorized practice of law, client communication, engagement letters, and escrow account management. Firms often seek advice on how to address mistakes, client disclosure obligations, structuring arrangements with other law firms or non-lawyers, lawyer departures, use of new forms of technology, licensing and admissions, reporting obligations, mergers and acquisitions, and much more. In fact, a firm’s or lawyer’s use of social media, cloud computing, cyber-security, and artificial intelligence can raise difficult and complex legal ethics issues that can easily keep lawyers up at night.
These are just some of the types of situations that can implicate ethical or professional responsibility concerns. Some scenarios could involve clients, opposing parties, adverse counsel, the courts or third parties. Other situations could involve firm lawyers or other non-legal employees. The ethics issues that come up are rarely alike or easy, and firms or lawyers who seek outside ethics advice do so to be able to comply with the rules of professional conduct that govern their professional conduct.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
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