Ethics Index

The Committee has compiled an Index of Ethics Opinions from 1978-2009 to facilitate your research.

NOTE: In 2002 and 2005, no Ethics Opinions were issued.

 

Opinion 2011-1: Rules Discussed: 1.7(a)(2), 1.8(e), and 1.15

Opinion 2011-1: Rules Discussed: 1.7(a)(2), 1.8(e), and 1.15

The inquirer, a Delaware attorney, seeks guidance on the issue of whether, during settlement of a matter, it is ethical for a lawyer to propose, demand, or agree, to personally indemnify or satisfy any and all claims by third persons as to settlement funds. The Committee is of the opinion that any agreement by a lawyer to personally satisfy of indemnify any claims to the settlement funds made by a third party is made in violation of Rules 1.7(a)(2) and 1.8(e) of the Delaware Lawyers’ Rules of Professional Conduct (“DLRPC”).

Opinion 2009-2: Rules Discussed: 1.5

Opinion 2009-2: Rules Discussed: 1.5

The inquirer, a Delaware attorney (hereinafter “Attorney”, seeks guidance on the following issue: Would it be ethically permissable to include a provision in a client engagement letter or retainer agreement which would say something to the effect that “in the event of default in payment, Client will pay reasonable attorney’s fees and costs incurred in collecting said amount which may be due?”

Opinion 2009-1: Rules Discussed: 5.4 and 7.2

Opinion 2009-1: Rules Discussed: 5.4 and 7.2

Compensation of a Law Firm’s marketing professional may not be based upon a percentage formula based on total revenues received from new or old clients, or revenues specifically obtained through the efforts of a marketing professional.

Opinion 2008-3: Rules Discussed: 1.7

Opinion 2008-3: Rules Discussed: 1.7

The inquirer is a Delaware attorney (hereinafter “Attorney”) who is employed by the City of WIlmington (the “City”) as an Assistant City Solicitor. The Attorney has commenced a lawsuit against the City and two individuals who he claims have engaged in discriminatory and/or retaliatory conduct as a result of his filing an age discrimination charge with the Delaware Department of Labor. The Attorney seeks an opinion as to whether his continued employment by the City as an Assistant City Solicitor, while simultaneously pursing the lawsuit, violates Rule 1.7 of the Delaware Lawyers’ Rules of Professional Conduct (“DLRPC”). The Committee is of the opinion that Attorney’s continued employment by the City as an Assistant City Solicitor does not constitute a violation of DLRPC 1.7.

Opinion 2008-2: Rules Discussed: 7.1, 7.2, and 7.3

Opinion 2008-2: Rules Discussed: 7.1, 7.2, and 7.3

The inquirer seeks guidance as to whether it is permissible under the Delaware Lawyers’ Rules of Professional Conduct to include on a lawyer’s website or in an email solicitation or newsletter that the lawyer has been designated “Super Lawyer” or “Best Lawyer” in a particular practice area.

Opinion 2008-1: Rules Discussed: 1.5

Opinion 2008-1: Rules Discussed: 1.5

The inquirer is a Delaware attorney (hereinafter “Attorney”) who seeks to represent individuals or entities in negotiations or litigation, against insurance carriers for insurance coverage claims. The law firm would utilize non-attorney “experts” to determine the value of claims on behalf of the insured, and paralegals to assist with litigation. Attorney would be the supervising attorney in this practice. Non-Delaware attorneys would possibly be involved in this practice. Attorney wishes to charge a fee of 50% of any amount obtained on behalf of an insured (the client), in excess of the amount previously offered to the insured (the client) by the insurance company and prior to the retention of Attorney. Attorney seeks guidance as to whether this fee arrangement would be reasonable under the circumstances, and in light of the Delaware Lawyers’ Rule of Professional Conduct (hereinafter “DLRPC”).

Opinion 2007-1: Rules discussed: 1.5, 5.4

Opinion 2007-1: Rules discussed: 1.5, 5.4
A partner of a PA LLP inquires whether the LLP (which is completely owned by attorneys) may be the sole ownership interest in a PA LLC which would qualify as a foreign LLC and engage in the practice of law in Delaware. The Committee determined that this arrangement would not violate DLRPC if the fees charged by the LLC to its clients are reasonable and the clients are advised in writing that the fees may be shared with a different entity. This would, of course, assume that the entire arrangement would comply with Delaware Supreme Court Rule 12(d).

Opinion 2006-2: Rules discussed 1.2(d), 1.6, 1.7(a)(2), 1.8, and 2.3

Opinion 2006-2: Rules discussed 1.2(d), 1.6, 1.7(a)(2), 1.8, and 2.3
Attorney inquires whether he may provide information to a litigation loan financing company requesting information about a client’s case at the request of the client. The company is designed to advance funds to clients who anticipate the success of a pending lawsuit. Upon the success of the suit, advanced monies must be repaid at a very high interest rate, and Attorney believes that this may not be in his client’s best interest. The committee determined that Attorney may provide information to the company after obtaining informed consent from the client and advising the client about the possible consequences. In addition, the Committee determined that the Attorney should not provide the lending institution an opinion on the value of the case, co-sign or guarantee the loan, have any interest in the company, or allow the company to control the course of litigation.

Opinion 2006-1; Rules 1.2, 1.3, and 1.16 considered.

Opinion 2006-1; Rules 1.2, 1.3, and 1.16 considered.
An Attorney desires to enter into a retention agreement to represent a client solely for divorce, and not ancillary matters. The retainer agreement and information letter to the client would specifically limit the scope of the representation in such fashion. The Attorney inquires whether she nonetheless may be required to represent the Client beyond the original limited scope. The Commitee concludes that the Attorney may need to obtain Court approval for a withdrawal, and may be required by the Court to perform beyond the terms of the retention agreement.

Opinion 2004-1: Rules Discussed: 7.1, 7.2, 7.4, and 7.5

Opinion 2004-1: Rules Discussed: 7.1, 7.2, 7.4, and 7.5

The inquirer, a Delaware attorney, requests this Committee’s opinion on whether he may state, in an advertisement, firm stationery, or other communication that otherwise conforms with the Delaware Rules of Professional Conduct (“DLRPC”) that the attorney is a Certified Public Accountant (“C.P.A.”) if the use of the term C.P.A. conforms with other applicable Delaware law, rules or regulations concerning use of such term.

Opinion 2003-3; Rules Discussed: Rule 3.4

Opinion 2003-3; Rules Discussed: Rule 3.4
The inquiring attorney requested an opinion concerning the compensation and reimbursement of expenses by his Client Company of two Witnesses in connection with preparation and testifying at a Delaware Trial. The Committee analyzed the new Rule 3.4(b) (effective July 1, 2003), and concluded as follows: Witness B is retired from another unrelated company and currently operates an independent consulting business. Witness B may be reimbursed for his out of pocket expenses, and for the reasonable value of his lost time based upon his current rate of compensation in connection with his consulting business. Witness A is a retired former employee of the Client Company, has been retired for over three years and one half years and is presently unemployed. Witness A may be reimbursed for his out of pocket expenses. However, insufficient facts have been presented to the Committee to conclude that Witness A may be compensated for the loss of his time or to determine what rate of compensation would be appropriate under the circumstances.

Opinion 2003-2; Rules Discussed: 1.12(a), Rule 1.11(a), Rule 1.11(b)

Opinion 2003-2; Rules Discussed: 1.12(a), Rule 1.11(a), Rule 1.11(b)
Lawyer A formerly served as a law clerk to a Delaware state court judge, and in that capacity, participated personally and substantially in a civil matter. Lawyer A is now a Deputy Attorney General, and wishes to prosecute an administrative matter on behalf of the State of Delaware, when the target of that prosecution is a litigant that came before the Inquiring Attorney when she served as a state court judicial law clerk. The Committee considers whether the civil action and the administrative prosecution are the same matter within the meaning of Rule 1.12(a), and concludes in the negative. The Committee also concludes that a violation of Rule 1.12(b) will not occur by the representation. Finally, the Committee alternatively concludes that the administrative prosecution would not create an appearance of impropriety. One member of the Committee dissents from the analysis and conclusion of this Opinion (the “ Dissent ”).

Opinion 2003-1; Rules 1.10; 1.7; 1.6; 3.5

Opinion 2003-1; Rules 1.10; 1.7; 1.6; 3.5
Lawyer A, employed by the Office of the Wilmington City Solicitor, sometimes represents the City of Wilmington Police Trial Board, which serves as the adjudicative body in police officer discipline cases. Lawyer B, also employed by the Office of the Wilmington City Solicitor, sometimes represents the City of Wilmington Office of Professional Standards, which serves as the prosecutorial body in police officer discipline cases. The issue presented is whether Attorneys A and B may, consistent with the rules of professional responsibility, represent their respective clients in the same disciplinary hearing. The Committee concludes that the Office of the Wilmington City Solicitor is a firm within the meaning of Rule 1.10,, and therefore Lawyers A and B may not engage in the dual representation unless a single lawyer could do so under Rule 1.7. The Committee concludes Rule 1.7(b) would prohibit a single lawyer from representing both agencies in the same proceeding. The conflict cannot be cured by obtaining a waiver from the clients. The Opinion contains related discussion of the application of Rules 1.6 and 3.5 to the presented facts.

Opinion 2001-2; Rules 1.6(a)

Opinion 2001-2; Rules 1.6(a)
An attorney asked the Committee about the ethical propriety of transmitting confidential client information via e-mail and mobile (or cell) phone. The Committee opined that the transmission of confidential client information by way of e-mail or mobile (or cell) phone, absent extraordinary circumstances, does not violate Rule 1.6(a). The Committee opined that, for the most part, lawyers can communicate by way of e-mail and mobile (or cell) phone while secure in the knowledge that the transmission of client information will remain private and will be received only by the intended recipient(s).

Opinion 2001-1; Rules 1.2, 1.6, Rule 3.7

Opinion 2001-1; Rules 1.2, 1.6, Rule 3.7
Whether a lawyer who is appointed an attorney guardian ad litem can comply with the corresponding statutory duties and responsibilities outlined in the legislation creating the Office of the Child Advocate, 29 Del. C. Ch. 90A without violating the Delaware Lawyers Rules of Professional Responsibility.

Opinion 2000-1; Rule 1.9

Opinion 2000-1; Rule 1.9
Attorney represents the plaintiff in litigation in Delaware. The defendant in the case is the Attorney’s former client and is a corporation with employees in Delaware. The former client is the plaintiff’s former employer. The Attorney’s Firm is not required to withdraw as counsel for Plaintiff under the Delaware Lawyers’ Rules of Professional Responsibility. Rule 1.9 does not require counsel to withdraw because of the mere duration of the prior representation. Rather, the facts or issues in the prior representation must be substantially related to those in the current litigation or confidences must have been likely or actually disclosed that could be detrimental to the former client in the present litigation.

Opinion 1999-2; Rules 1.10; 3.5; 8.4(e); 8.4(f)

Opinion 1999-2; Rules 1.10; 3.5; 8.4(e); 8.4(f)
The wife of a partner of a law firm is a judge in State Court. The partner concedes that he may not appear before her, but asks if other partners and members of the partner’s firm may do so. The Committee cannot opine on what is appropriate under the Delaware Judges’ Code of Judicial Conduct. Under the Rules of Professional Responsibility, however, the other attorneys of the partner’s firm may appear before the partner’s wife. Rule 3.5 prevents the partner from communicating with his wife about any matter in which his firm is involved that is or might be pending before her. Rule 8.4(e) prohibits the partner or others in the partner’s firm from stating or implying that they have an ability to influence her. Rule 8.4(f), read in conjunction with Judicial Canon 3.C(1)(d)(ii), prohibits the partner from appearing before his wife, but does not prevent other attorneys in the partner’s firm from doing so. The partner’s conflict is not imputed to others in his firm by virtue of Rule 1.10.

Opinion 1999-1; Rule 1.2

Opinion 1999-1; Rule 1.2
Where an attorney represents a second wife of a decedent and has no prior or current relationship with the adult children of the decedent, and where the client has instructed the lawyer that she wants the wrongful death action to be brought in her name only, Rule 1.2 provides that the attorney has no independent legal or ethical obligation to inform the children of their potential cause of action, even if it their claim will be barred by the second wife’s suit. The Comment to Rule 1.2 provides that the “client has unlimited authority to determine the purpose to be served by legal representation” assuming the objectives are not unethical or illegal. Thus, a client has the right to limit an action brought on the client’s behalf to the client alone, even if other parties might have legitimate claims under the same theory.

Opinion 1998-2; Rules 1.11(a); 1.11(b); 3.7(a)

Opinion 1998-2; Rules 1.11(a); 1.11(b); 3.7(a)
An attorney who formerly worked for the Attorney General’s Office was appointed to represent a criminal defendant charged with the murder of “Mr. Smith.” After commencement of discovery, the attorney remembered that he had provided substantial assistance in a 1993 prosecution of Mr. Smith and recalled that Mr. Smith had a reputation as a fearless and dangerous criminal. The attorney intends to use this reputation evidence in his defense of his current client. The Court asked the Committee to advise whether Rules 1.11(a), 1.11(b) or 3.7(a) barred the attorney from representing the client.

The Committee advised that Rule 1.11(a) does not prohibit the attorney from continuing to represent the client because the prosecution of Mr. Smith in 1993 and the current prosecution of the client for the murder of Mr. Smith are not the same matter. Rule 1.11(b) does not preclude the representation because the information the attorney obtained about Mr. Smith while a government attorney is not confidential. To be confidential: the information must have been obtained under governmental authority, the government must be prohibited from disclosing it or have legal privilege it can asset to prevent disclosure, and the information must not otherwise have been made public. In this case, the issue is whether the government can assert a privilege to prevent disclosure of the information. The informant privilege does not survive Mr. Smith’s death. Therefore, Rule 1.11(b) does not require that the attorney withdraw from representing the client. Moreover, even if the information was confidential, it cannot be used against Mr. Smith to his material disadvantage. The term “person” in the rule does not include a former government client, but refers only to third parties whom the former government lawyer may oppose on behalf of a private party after leaving government service. Therefore, even if the information were confidential, the Rule does not apply.

Rule 3.7(a) will not prevent the attorney from representing the client where the attorney has stated that there is no scenario under which he would testify. Moreover, a police detective has a recollection of Mr. Smith that is not inconsistent with the attorney’s recollection. Therefore, it is unlikely that the attorney would be a necessary witness.

Opinion 1998-1; Rules 1.7; 1.9; 1.11

Opinion 1998-1; Rules 1.7; 1.9; 1.11
An attorney, formerly employed as a deputy attorney general, at times represented the Department of Correction in suits brought by prisoners for alleged civil rights violations. Currently, the attorney is employed by a different department within the State. Prior to commencing this employment, the attorney began representing a prisoner in a civil rights action against a former correctional officer. If the client prevails, there is a chance that the State will have to pay damages. Both the client and the department employing the attorney have been informed of the potential conflict and have consented to the continued representation. Based on the facts presented, the attorney’s employer should be considered to be the department, rather than the State. Therefore, Rule 1.7 does not prohibit the representation, so long as the attorney believes that the representation of the client will not adversely affect the attorney’s relationship with the department and that the attorney’s employment with the department will not adversely affect the attorney’s representation of the client. Rule 1.11(a), not Rule 1.9(a), governs the activity of a former government attorney. The attorney can undertake the representation so long as the attorney did not have personal and substantial involvement in the client’s claims against the defendant while employed as a deputy attorney general. Rule 1.9(b) and Rule 1.11(b) are implicated if the attorney obtained any confidential information during the attorney’s employment with the Attorney General’s Office that would be relevant to the claims against the defendant in the client’s civil rights claim. If the attorney obtained any such information, Rule 1.11(b) absolutely bars the attorney from representing the client.

Opinion 1997-5; Rules 1.9(b); 1.16(d); 3.4; 4.4

Opinion 1997-5; Rules 1.9(b); 1.16(d); 3.4; 4.4
Attorneys A and B, each representing a criminal defendant, entered into a joint defense agreement, which provided, among other things, that each was to keep the information obtained pursuant to the agreement confidential and each was to return the information to the other in the event that the representation was terminated. Attorney A’s representation was terminated and the new attorney for Attorney A’s former client, Attorney C, requested that all the information, including the information obtained pursuant to the joint defense agreement, be provided to Attorney C. Attorney B objected to the production of the joint defense materials to Attorney C. The Committee advised that Rule 1.9(b) did not require that Attorney A turn over the joint defense materials to Attorney C, as Attorney A was not using the materials in a manner contemplated by the rules. Rule 1.16(d) did not require Attorney A to turn over the materials because the joint defense materials were not “papers and property to which the client is entitled.” Finally, production of the materials under these circumstances could prejudice Attorney B’s client and constitute a violation of Rule 3.4 (addressing fairness to opposing party in litigation) and/or Rule 4.4(prohibiting a lawyer from using methods of obtaining evidence that would violate the rights of third parties including adverse parties in litigation).

Opinion 1997-4; Rule 1.9

Opinion 1997-4; Rule 1.9
A law firm was retained as common counsel for ten officers and directors of a company to advise them regarding the effects a proposed merger would have on their employment agreements. The merger was not consummated and later the law firm was retained by the company in connection with the termination of the employment of one of the directors for cause. The director objected to the law firm’s representation of the company. Based on the stipulated facts provided to the Committee, the Committee advised that Rule 1.9 did not preclude the law firm from representing the company. Based on the scope of the prior representation and the limited contact between the director and the law firm, there was no indication that the director ever provided or had any occasion to disclose confidential information to the law firm which could now be used against the director. Because there was no conflict, the Committee need not consider whether the waiver letter obtained from the director was sufficient to resolve the conflict.

Opinion 1997-3; Rule 1.11

Opinion 1997-3; Rule 1.11
A lawyer formerly employed by the Office of Disciplinary Counsel (the “ODC”) may represent another lawyer in proceedings before the ODC, even though the former ODC lawyer worked on a matter while employed at the ODC that resulted in the client lawyer receiving a private admonition from the ODC. The ODC did not consent to the representation and argued that Rule 1.11 disqualified the former ODC lawyer because the previous private admonition would be a factor in connection with the discipline, if any, to be received by the client lawyer. The Committee advised that because the private admonition occurred six years earlier, and because the only relationship between the earlier private admonition and the current investigation was the degree of current discipline that might be imposed, the two matters were independent. Since the two investigations were not a single matter, Rule 1.11 did not prohibit the former ODC attorney from representing the client lawyer.

Opinion 1997-2; Rules 1.11; 3.7

Opinion 1997-2; Rules 1.11; 3.7
Rule 3.7 provides that a firm may represent a client in litigation adverse to a defendant, where a partner in the firm is the chairman of a public agency that regulates the defendant, even though the partner may become a witness in the matter, provided that the partner does not act as an advocate and provided that Rules 1.7 and 1.9 are followed. Rule 1.11, which the Committee construes as governing concurrent as well as consecutive representation of the government and private parties, does not work a disqualification of the firm so long as the chairman recuses himself from all future participation in any of the agency’s actions regarding the matter, whether formal or informal. If the chairman has already personally and substantially participated in actions of the agency regarding the litigation, the chairman must also gain the agency’s approval of the firm’s continued representation of the client, and must take steps to insure that the chairman receives no part of the fee earned by the firm for the matter. The chairman should provide written notice to the agency of the matter so that the agency can determine if it believes that the chairman has participated in the matter. Finally, the chairman must not disclose to the firm or to the clients any confidential information he learned regarding the matter by virtue of his position with the agency; the firm should impose a “cone of silence” on the chairman.

Opinion 1997-1; Rules 1.4(b); 1.7

Opinion 1997-1; Rules 1.4(b); 1.7
Rule 1.7(a) is inapplicable in considering whether a lawyer of Law Firm A must obtain the consent of Law Firm A’s clients to act as an expert witness on behalf of Law Firm B in a malpractice action against Law Firm B, where Law Firm B represents clients adverse to Law Firm A’s clients in unrelated matters; Law Firm B is not a client of Law Firm A, since the lawyer would be retained as an expert witness not as counsel. Rule 1.7(b), however, requires that the lawyer consider whether acting as an expert witness for Law Firm B would materially limit the representation of Law Firm A’s clients. In conducting this analysis, the relevant factors include: the relative importance of the matter to the represented lawyer; the relative size of the fee expected by the representing lawyer; the relative importance to each lawyer and to his or her clients of the matters involving the clients; the sensitivity of each matter; the similarity between the subject matter or issues of the matters; and, the nature of the relationship of one lawyer to the other and of each lawyer to his or her respective clients. The role of an expert witness is much more limited than that of counsel and therefore the personal financial interest of an expert witness is typically less than that of a representing lawyer, unless the lawyer harbors an expectation of future employment as an expert by Law Firm B. In considering Rule 1.7 in Delaware, the small size of the Delaware Bar should be taken into account to avoid too broad a construction of conflict. Otherwise, it may be impossible for Delaware lawyers to obtain counsel or experts. As long as the lawyer and Law Firm A reasonably believe that the lawyer’s engagement as an expert on behalf of Law Firm B will not constrain Law Firm A’s representation of it clients, Law Firm A need not obtain the consent of its clients involved in matters adverse to clients of Law Firm B before the lawyer agrees to act as an expert. Under these circumstances, Rule 1.4(b) does not require that the clients be notified of the representation.

Opinion 1995-2; Rules 3.1; 4.1; 4.4; 8.4

Opinion 1995-2; Rules 3.1; 4.1; 4.4; 8.4
An attorney may threaten to press criminal charges against an opposing party in an attempt to gain relief for the attorney’s client in a civil matter if: the civil matter is related to the client’s civil claim; the attorney has a well founded belief that both the civil claim and the criminal charges are warranted under Delaware law and the facts; the attorney is not attempting to exert, nor suggesting the exertion of, improper influence over the criminal process; and the attorney and/or the client actually intend to proceed with presenting the criminal charges if the civil claim is not satisfied. Additionally, the attorney and/or the client may agree to refrain from reporting criminal charges in return for satisfaction of the client’s civil claim.

Former Disciplinary Rule 7-105(a) provided an absolute bar to an attorney presenting, participating in presenting, or threatening to present criminal charges solely to obtain an advantage for a client in a civil matter. The Rules of Professional Conduct, adopted in 1985, contain no such prohibition. The issue implicates the following rules: 3.1 (prohibiting assertion of frivolous claims); 4.1 (duty to be truthful in statements to others); 4.1 (use of means that have no substantial purpose other than to embarrass, delay or burden); and 8.4 (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness). While the attorney’s conduct could constitute crime of extortion 11 Del. C. § 846(4), it is an affirmative defense to this crime if the attorney believes the threatened criminal charge is true and his or her only purpose is to make right the wrong. 11 Del. C. § 847(b). Similarly, the attorney’s conduct could constitute compounding a crime, in violation of 11 Del. C. § 1246(l). It is a defense to compounding a crime, however, if the benefit obtained does not exceed the amount the attorney believes to be due as restitution or indemnification for the harm caused by the underlying crime. 11 Del. C. § 1247. Therefore, it is unlikely that the attorney will violate the law or Rule 8.4 if the attorney seeks from the opposing party no more than the attorney believes is due the client as a result of the underlying crime.

Neither the current Rules nor the predecessor code prohibit an attorney from agreeing to refrain from reporting an opposing party’s criminal violations as part of the settlement of a client’s civil claim. An attorney who agrees to do this, however, risks compounding a crime in violation of 11 Del. C. § 1246(l). As discussed above, it is a defense to this crime if the benefit received by the client does not exceed the amount the client and the lawyer believe is due as restitution and/or indemnification for the harm caused by the crime. Therefore, provided that the attorney does not violate the law of Delaware, it is not a violation of the Rules of Professional Responsibility to agree to refrain from reporting the opposing party’s potentially criminal conduct as part of a settlement of the client’s civil claim.

Opinion 1995-1; Rule 1.16(b)

Opinion 1995-1; Rule 1.16(b)
Rule 1.16(b) permits a lawyer to withdraw from representing a buyer of real estate where, due to an error, the original deed conveyed more property than what the parties had agreed would be transferred, and after the buyer and seller had executed deeds correcting the mistake, the buyer contacted the attorney and directed that the corrective deeds should not be recorded. The attorney was justified in refusing the seller’s request that the corrective deeds be recorded; because the buyer had directed that the attorney not record the deeds, the attorney no longer had authority to record them. Even though the seller appeared to be sophisticated, to avoid any ambiguity with respect to the attorney’s obligation to the seller, the attorney should suggest that the seller retain counsel. The attorney’s role now appeared to be one of stake holder with respect to the deeds until the disagreement was resolved by judicial action or subsequent agreement of the parties.

Opinion 1994-3; Rule 1.8(e)

Opinion 1994-3; Rule 1.8(e)
Rule 1.8(e) prevents an attorney from providing financial aid, in this case a loan, to a client “in connection with pending or contemplated litigation.” Two of the purposes of the rule are to prohibit practices such as champerty and maintenance and to preserve the lawyer’s independent judgment regarding the litigation. A loan is considered ‘in connection with” the litigation where the only connection between the attorney and the client is the litigation and the repayment of the loan is expected to come from the settlement proceeds. The litigation is no longer pending when it has been terminated under the rules of the tribunal hearing the matter. When a claim is settled, the litigation would not be pending if the last act required by the tribunal to terminate the litigation has been completed.

Opinion 1994-2; Rules 1.2(c); 8.4(c)

Opinion 1994-2; Rules 1.2(c); 8.4(c)
Rule 1.2(c) provides that an attorney may provide legal services to a client on a limited basis as long as the client is fully informed of the limited scope of the representation and agrees to receive services on that basis. If the attorney provides significant assistance to a pro se litigant, the attorney must disclose this assistance and the limited scope of the representation in a letter to opposing counsel and the court. Assistance is deemed to be substantial if the representation “goes further than merely helping a litigant fill out an initial pleading, and/or providing initial general advice and information.” (emphasis in original) Failure to make such a disclosure misleads the court and opposing counsel in violation of Rule 8.4(c).

Opinion 1994-1; Rule 3.4(b)

Opinion 1994-1; Rule 3.4(b)
An attorney representing a plaintiff who has noticed a deposition of a former employee of the defendant may advise the plaintiff to pay the reasonable expenses (including the attorney’s fees) of the former employee, without violating Rule 3.4(b) where: the former employee has indicated he is reluctant to testify without being represented by independent counsel; there is no agreement making the payment of such fees and expenses in any way contingent on the outcome of the former employee’s testimony; and, the attorney neither knows or has reason to believe that the testimony is in any way contingent upon the payment and retention of fees. Additionally, the attorney’s invitation to the defendant to share in the costs of the former employee’s counsel further reduces any risk to the integrity of the testimony by virtue of the proposed payments.

Opinion 1993-2; Rules 1.7, 1.11

Opinion 1993-2; Rules 1.7, 1.11
An attorney may, without violating Rule 1.7, represent a county official who is the subject of a State Attorney General’s Office criminal investigation even though the attorney’s partner is a member of the governing body of the county. The attorney’s partner does not act in his capacity as an attorney for the county; thus, there is no issue of a direct conflict between the interests of two clients. The attorney must also reasonably believe that his representation of the client will not be adversely affected and the client must consent to the representation after being informed of the partner’s position with the county government. Where the partner was approached by a former employee of the county regarding alleged improprieties proceeding the criminal investigation and the partner referred the matter to the Attorney General, Rule 1.11(e) does not preclude the attorney from representing the client if the partner is screened from any participation in the defense of the client and if the partner is not apportioned any part of the fee from the representation. Additionally, if the partner believes his participation in the matter was “personal and substantial,” the attorney must give written notice of the representation to the county. Moreover, the attorney should not represent any client in any proceeding before the governing body of the county.

Opinion 1993-1; Rules 7.1(b)(1), 5.4(a)

Opinion 1993-1; Rules 7.1(b)(1), 5.4(a)
A lawyer’s advertisement stating “$400.00 flat fee for attorney’s work” relating to “any residential real-estate settlement” and containing the required disclaimer set forth in Rule 7.1(b)(3)((b) violated Rule 7.1(b)(3)(a) because it did not identify with sufficient particularity the services to which the fee applied. Advertisement which provided that $50 of the $400 fee would be donated to a charity did not violate Rule 5.4(a) where: the donation derives from the lawyer’s profit such that the clients are not being charged for the donation; there is no express agreement or de facto fee-sharing between the lawyer and the charity in exchange for the referral of clients; and copies of the advertisement are not placed on the premises of the charity.

Opinion 1992-3

Opinion 1992-3
With the consent and knowledge of the client, an attorney can properly execute an agreement which provides that payment for health-care services rendered to the attorney’s client be made to the client’s physician by the attorney from any funds obtained on behalf of the client. The attorney has a duty to provide his client with a full explanation of the practical and legal ramifications of such an agreement. As long as the client gives informed consent, then the ethical obligations addressed in Opinion 1981-3 are no bar to the agreement.

Opinion 1992-2; Rules 1.9; 3.7; 1.6; 1.16

Opinion 1992-2; Rules 1.9; 3.7; 1.6; 1.16
An attorney may be disqualified from representing a decedent’s estate where he reasonably believes the original administratrix has embezzled most of the estate assets. The attorney had previously represented the original administratrix in a minor personal injury action and this would almost assuredly involve a conflict of interest. Also, the attorney would likely be required to act as advocate at a trial in which he would be a necessary witness. The attorney may avoid disqualification if he retains outside counsel to prosecute a civil action against the original administratrix. The attorney may not report the original administratrix’s embezzlement to criminal authorities but could give all confidential estate documents to the lawyer who he refers the matter to.

Opinion 1992-1; Rules 1.7; 1.9; 1.16

Opinion 1992-1; Rules 1.7; 1.9; 1.16
A firm can continue to represent a party when another attorney in the same firm agreed to represent the other adverse party, but terminated the relationship when the dual representation was recognized, if both parties consent. The consent would only be effective upon full disclosure to both clients. Even though the attorney-client relationship has been terminated with the first client, Rule 1.16 must still be followed and a Chinese Wall should be built around first client’s lawyer.

Opinion 1991-4; Rule 1.7

Opinion 1991-4; Rule 1.7
Attorney is advised not to represent a client in a malpractice suit against a second attorney, where attorney may also be subject to a malpractice claim as a result of the alleged negligence of second attorney. Although the attorney is not Per se disqualified from representing the client, he is advised against it because there is a substantial likelihood that the attorney will not be able to zealously represent the interests of the client in such an action, or that a conflict will later arise that would make such representation improper.

Opinion 1991-3; Rules 8.3(a); 8.3(c); 1.6

Opinion 1991-3; Rules 8.3(a); 8.3(c); 1.6
Attorney’s obligation under Rule 8.3(a) of the Rules of Professional Conduct to report possible misconduct by a fellow Delaware attorney becomes exempt under Rule 8.3(c) if the disclosure made is an attorney-client communication.

Opinion 1991-2; Rule 1.7

Opinion 1991-2; Rule 1.7
Delaware Lawyers’ Rules of Professional Conduct do not prohibit attorneys in the criminal division of the City Law Dept. from prosecuting an individual who is a member of City Council for violations of city and state criminal ordinances.

Opinion 1991-1; Rules 1.7 (b); 3.8; 1.10 (a) & (d); 1.11;

Opinion 1991-1; Rules 1.7 (b); 3.8; 1.10 (a) & (d); 1.11;
ABA Standards of Criminal Justice Relating to Prosecution Function (1986) A Firm, but not the associate, may accept a malpractice case where the associate is presently under contract with the City of Wilmington to pursue several criminal prosecutions and civil actions against the defendant, provided the prospective client and City give informed consent in light of a possible conflict of interest. The attorney must maintain a code of silence concerning his representation of the City.

Opinion 1990-2; Rules 1.16, 3.1

Opinion 1990-2; Rules 1.16, 3.1
If a client insists that an attorney pursue a claim which is meritless under Rule 3.1, Rule 1.16 requires that the attorney seek to withdraw from the representation.

Opinion 1990-1; Rules 1.6, 1.9, 1.8 (b)

Opinion 1990-1; Rules 1.6, 1.9, 1.8 (b)
A firm may not signal its client to expedite its work on a project for another client of the Firm who is considering suing the first client because of its delay on the project.

Opinion 1989-6

Opinion 1989-6
The Register of Wills is a judicial officer; the Delaware Judges’ Code of Judicial Conduct unequivocally prohibits the practice of law by a judicial officer; and therefore the Prospective Employee may not be hired.

Opinion 1989-5: Rule 1.8(i)

Opinion 1989-5: Rule 1.8(i)
An attorney will not be prohibited from representing criminal defendants while her husband is a prosecutor with the state Attorney General’s office (and he is not involved in cases in which she is representing criminal defendants) as long as adequate safeguards are implemented.

Opinion 1989-4; D.R. 1.7

Opinion 1989-4; D.R. 1.7
There is no conflict of interest between representation of the executor as such and representation of the executor in his or her individual capacity. The term “estate” refers to the aggregate property interests of a decedent and is not a separate legal entity with its own legally cognizable interests. An estate cannot be a “client” as the term is used under Rule 1.7. An attorney does not serve as an “attorney for the estate” but rather as an attorney for the executor in that person’s dealings concerning the estate of the decedent.

Opinion 1989-3; Rules 4.1, 4.3, 4.4; DR 7-108(D); DRE 606(b)

Opinion 1989-3; Rules 4.1, 4.3, 4.4; DR 7-108(D); DRE 606(b)
An attorney may contact jurors following trial in an effort to obtain evidence for a criminal defendant’s use in a post-conviction relief proceeding if the attorney proceeds with the sensitivity for the juror’s rights required by Rule 4.4 and confines his inquiry to a determination of whether the juror was exposed to extraneous prejudicial information or improper outside influence during his service as a juror.

Opinion 1989-2; Rule 7.1 (h) (1) (b)

Opinion 1989-2; Rule 7.1 (h) (1) (b)
Proposed mailing by attorney is prohibited by Rule 7.1(h)(1)(b) of Delaware Lawyers Rules of Professional Conduct because it is intended to be “distributed at a time calculated to relate to events in the personal life of the recipient” even though that Rule might be unconstitutional.

Opinion 1989-1; Rule 7.1 (b) (l)

Opinion 1989-1; Rule 7.1 (b) (l)
Delaware State Bar Association may list “AREAS OF PRACTICE” in its legal directory.

Opinion 1988-2; Rule 1.6

Opinion 1988-2; Rule 1.6
Lawyer has right under Rule 1.6 not to disclose fact that his partner’s client, who lives with lawyer’s client, has AIDS.

Opinion 1988-1; Rules 1.13, 1.16

Opinion 1988-1; Rules 1.13, 1.16
Law firm should withdraw from case if Board of Elders of Church continues to fail to cooperate. Law firm should seek approval of Board of Elders before sending damaging (to Board of Elders) deposition transcripts to insurance carriers.

Opinion 1987

Opinion 1987
It is a violation of Rules of Professional Conduct 1.7(a) and Rule 3.7 for an attorney or any other attorney in his firm to represent any of the defendants or the third party in the pending litigation.

Opinion 1986-4; Rules 1.16 (a) (1); 1.4

Opinion 1986-4; Rules 1.16 (a) (1); 1.4
An attorney must seek to withdraw from representation of a corporate client if communication cannot be made with any person authorized to act or speak on behalf of the corporation.

Opinion 1986-3; Rules 1.9; 1.11, 3.7

Opinion 1986-3; Rules 1.9; 1.11, 3.7
An attorney who previously worked for a government agency that rendered legal advice to the defendant, may now privately represent the defendant, as long as the agency consents.

Opinion 1986-2; DR 1.7; Rules 1.7, 1.10, 3.7

Opinion 1986-2; DR 1.7; Rules 1.7, 1.10, 3.7
Where an attorney in the Public Defender’s Office is required to withdraw in an earlier phase of the case, because of ineffective assistance of counsel, the Public Defender’s Office is not then later barred from participating in the appeal, as long as the issue is not one of the withdrawing attorney’s competency, and as long as said attorney does not personally participate. Dissent: When public defender represents a defendant at trial and is later required to withdraw because of ineffective assistance of counsel, the Public Defender’s Office cannot subsequently appeal the conviction of that defendant. Note: The Supreme Court adopted the dissent by Order of October 29, 1986.

Opinion 1986-1; Canon 4; Rules 1.6, 1.9, 1.10, 1.11

Opinion 1986-1; Canon 4; Rules 1.6, 1.9, 1.10, 1.11
A law student who clerked for the prosecution firm while in law school who later took a position with the defense firm would not be disqualified from defending cases prosecuted by the plaintiff’s firm even though those cases may have been active during the law student’s tenure as a law clerk with plaintiff’s firm, so long as the law clerk had no meaningful contact with any such cases. The defense firm will be disqualified if law clerk-associate directly participated on a case at prosecution’s firm in which defendant firm is now involved, unless defendant’s firm insulates the law student for the defense of those cases.

Opinion 1985-3; DR3-101 (A); Canon 9

Opinion 1985-3; DR3-101 (A); Canon 9
It would be unethical to allow a paralegal employed by a lawyer or an insurance adjuster, who was employed by a worker’s compensation insurance carrier, to appear before the industrial accident board to conduct a pre-trial conference after a petition for worker’s compensation has been filed.

Opinion 1985-2; DR4-101 (B); DR5-105 (A); DR 9-101 (B)

Opinion 1985-2; DR4-101 (B); DR5-105 (A); DR 9-101 (B)
An attorney who was formerly employed by the legislative branch of one government entity, A, may represent his current employer, a second government entity, in litigation against entity A in the matter upon which the attorney was briefed pursuant to his employment by entity A, as long as no secrets or confidences of entity A, relative to the dispute were conveyed to him when he was briefed on the matter. Dissent: An attorney may not represent B in its dispute with entity A, because, having participated in briefing sessions with the attorney handling the litigation for entity A, he will be presumed to have received secrets or confidences of entity A relative to the dispute.

Opinion 1985-1; DR4-101 (B); Canon 9

Opinion 1985-1; DR4-101 (B); Canon 9
An attorney formerly in private practice may not represent a governmental entity in matters where the entity’s interests are adverse to those of the lawyer’s former clients or his former firm unless the former client consents thereto. If an attorney must withdraw from the representation of a public entity because of his previous involvement in the matter, or one substantially related to it, his law department should also withdraw unless the attorney has adequately “screened” himself and the rest of his law department with respect to that particular matter.

Opinion 1983-3; DR5-102 (B)

Opinion 1983-3; DR5-102 (B)
Where a public defender represents A and an assistant public defender represents B, and the State has announced that it may call as a prosecution witness against A, the Assistant Public Defender of that testimony may be prejudicial to A, then the Public Defender’s Office must withdraw from representation of defendant A.

Opinion 1983-2; DR2-102 (C)

Opinion 1983-2; DR2-102 (C)

The name of an associate in a law firm partnership may not appear in the name of the firm.

Opinion 1983-1; July 7, 1983; DR3-101 (A); DR3-103 (A)

Opinion 1983-1; July 7, 1983; DR3-101 (A); DR3-103 (A)
For a lawyer to undertake employment with a financial planning firm and perform duties incident to the sale of life insurance and estate planning packages without violating his professional ethical obligations under the Code, the lawyer should withdraw from the active practice of law, and in his new occupation, refrain from holding himself out as a lawyer for the customers of the financial planning firm engaging in activities constituting the practice of law.

Opinion 1982-5, August 6 1982; DR8-101 (A); DR5-015 (d)

Opinion 1982-5, August 6 1982; DR8-101 (A); DR5-015 (d)

  1. A lawyer-legislator is not prohibited from representing a state agency, county government, municipal corporation, school board, school district or other political subdivision.
  2. There is no absolute ethical bar to a lawyer-legislator representing private clients against the State or its agencies. There is no per se ethical bar to a lawyer-legislator representing persons accused of criminal or traffic offenses as long as he does not use his position to repeal or amend existing law for a client’s benefit.
  3. There are no ethical strictures which would bar a lawyer-senator from carrying out the constitutionally established role in the appointment process of the judiciary and the executive branch.
  4. If a lawyer, acting in his or her official capacity as a legislator, is contacted by a constituent for reasons related to legislative matters, the lawyer may not generate or seek to generate private legal business from the constituent.
  5. There is no blanket prohibition against a lawyer-legislator supporting legislation which affects the client’s interest, so long as he or she does not confine legislative initiative to favorably affect his or her clients.
  6. If a lawyer-legislator is disqualified in a given instance, law partners and associates are similarly disqualified. Informal letter of opinion dated August 31, 1982 Letter from Rodman Ward, Jr., August 31, 1982 Lawyer had no obligation to assist client in fraud and was under no obligation to disclose the fraud to the court.

Opinion 1982-4, March 5, 1982; Canon 4; Canon 7

Opinion 1982-4, March 5, 1982; Canon 4; Canon 7
An attorney having once represented a bank in a debt collection matter cannot then defend the debtor in the proceeding by the bank’s assignee to execute on a judgment based on the debtor’s obligation to the bank without the full informed consent of the bank.

Opinion 1982-3, March 18,1982; Canon 2; DR2-103 (C) (D): DR2-105

Opinion 1982-3, March 18,1982; Canon 2; DR2-103 (C) (D): DR2-105
The American Academy of Matrimonial Lawyers (“AAML”) cannot list themselves in the classified section of the local telephone book or participate in the referral service, unless they have been certified as a specialist group by the Delaware Supreme Court.

Opinion 1982-2, February 1, 1982; DR3-101 (A); DR3-103 (A); DR2-102 (A) (1)

Opinion 1982-2, February 1, 1982; DR3-101 (A); DR3-103 (A); DR2-102 (A) (1)
An attorney may not list a private investigator on his calling card, but if the investigator exclusively works for the attorney, the investigator may list the attorney on his calling card, with the attorney now taking full responsibility for the investigator’s actions.

Opinion 1982-1, January 19, 1983; Model Rule of Professional Conduct 1.9

Opinion 1982-1, January 19, 1983; Model Rule of Professional Conduct 1.9
A law firm, who is asked by a bank to do a title search and obtain insurance on a piece of property for a mortgage transaction, where the attorney’s fees were paid to the law firm by the bank, who were subsequently reimbursed by the debtor, may later represent the bank in a foreclosure action against said debtor where no other attorney client relationship existed between the firm and the debtor.

Opinion 1981-6: June 12. 1981; DR 5-105 (c)

Opinion 1981-6: June 12. 1981; DR 5-105 (c)
It is proper for an insurance carrier’s attorney, while prosecuting a declaratory judgment action on coverage, to appear for the insured in a tort action as “co-counsel” in association with an attorney selected by the insured, if, and only if, the insured gives consent to this procedure.

Opinion 1981-5

Opinion 1981-5
A lawyer may represent an interest adverse to that of a former client in matters not substantially related to the former representation, unless facts not generally and publicly available were accessible to the lawyer in his former representation and are relevant to the pending litigation. Informal letter of opinion dated June 10, 1981 Letter from Rodman Ward, Jr., June 10, 1981. When the father of the accused gives the stolen goods to the accused attorney, the attorney has a duty to deliver the goods to the authorities, but should not testify as to the surrounding circumstances unless ordered by the Court.

Opinion 1981-4

Opinion 1981-4
In connection with the cross examination of a former client as a witness in an unrelated proceeding, it is ethical to cross examine the former client by reference to his publicly disclosed criminal record so long as the lawyer reveals no confidences or secrets reposed in him by his former client in connection with his former representation.

Opinion 1981-3

Opinion 1981-3
An attorney should try to persuade his personal injury client to pay the client’s medical expenses, but the attorney has no responsibility to demand his client pay such medical expenses from funds received in settlement or by judgment, and the attorney is prohibited from forcing such payment against his client’s wishes.

Opinion 1981-2, DR5-103 (B)

Opinion 1981-2, DR5-103 (B)
When an attorney requests medical-legal services of a physician, the Rules of Legal Ethics warrant the physician’s reliance on the proposition that (i) the attorney will guarantee the payment of the reasonable fee; or (ii) the attorney will make clear to the physician in writing prior to using such services that only the client-patient will be responsible for the fees.

Opinion 1981-1; Canons 5, 6; DR4-101 (B) (C); DR5-105 (A) (B)

Opinion 1981-1; Canons 5, 6; DR4-101 (B) (C); DR5-105 (A) (B)
Where a lawyer has been retained by an insurer to defend its insured in a personal injury action and at the same time has been retained by the insurer in a separate action against the insured seeking a declaratory judgment that the personal injury claim is not covered by the insured’s policy, the lawyer has conflicting interest and must withdraw from representation of the insurance company unless both clients consent to the multiple representation after full disclosure.

Opinion 1980-7; DR2-103 (A) (D)

Opinion 1980-7; DR2-103 (A) (D)
A lawyer may participate in the founding of the Delaware Injured Workers Association even though it is probable injured workers might learn of the lawyer’s identity, interest and expertise in the area of workmen’s compensation law, so long as the lawyer complies with DR 103 (D).Opinion 1980-6

Opinion 1980-6

Opinion 1980-6
An attorney representing an estate may ethically purchase stock in the estate from a beneficiary after proper distribution of the bequest to the beneficiary and after full disclosure of all material facts known to the attorney with regard to the stock.

Opinion 1980-5; DR2-107; DR2-110 (A); DR2-110 (C) (2)

Opinion 1980-5; DR2-107; DR2-110 (A); DR2-110 (C) (2)
A forwarding attorney is not entitled to a percentage of the fee of the working attorney unless and except to the extent that the forwarding attorney retains the attorney-client relationship and retains ultimate responsibility to the client both as to communications and performance of legal services required. Where a forwarding firm charges a referral or administrative fee, the working firm should withdraw from representation of clients involved in such fee arrangement.

Opinion 1980-4: DR9-101

Opinion 1980-4: DR9-101
With respect to a lawyer’s ability to practice law following his election as lieutenant governor of Delaware the committee provided the following guidelines:

  1. Generally, there are no absolute prohibitions from practice, nor would he or any firm with which he is associated be restricted from representing an agency of the State.
  2. The lawyer or a member of the firm with which he is associated may not represent parties in an action against the State.
  3. The lawyer and any member of the firm with which he is associated may not represent defendants in criminal cases.

Opinion 1980-3; DR5-105 (D); DR9-101 (B)

Opinion 1980-3; DR5-105 (D); DR9-101 (B)
A firm may not continue to represent a client in an administrative proceeding or related litigation with the state after hiring an associate who as a former government attorney has substantial responsibility in the matter unless the government and other parties specifically consent to the firm’s representation of the client and to the screening procedures proposed by the firm to preclude the associate’s participation in the litigation.

Opinion 1980-2; DR1-103; DR1-102 (A) (5); DR4-101 (C) (3); DR4-101 (D) (3)

Opinion 1980-2; DR1-103; DR1-102 (A) (5); DR4-101 (C) (3); DR4-101 (D) (3)
Even if a lawyer’s knowledge of past criminal conduct is acquired through non-privileged sources, the lawyer is under no ethical duty to make disclosure of such evidence independent of the duty imposed upon him by the substantive criminal law. However, if the evidence discloses an intention to engage in future criminal conduct, disclosure to proper authorities is required.

Opinion 1980-1; Canon 7; DR2-101, 102 (A) (4); DR7-107 (G) ED-733; EC8-6

Opinion 1980-1; Canon 7; DR2-101, 102 (A) (4); DR7-107 (G) ED-733; EC8-6
While litigation is pending, a lawyer appearing in the action is not prohibited from appearing on a television program to discuss the pending proceeding so long as his comments conform to the limitations imposed by DR7-107 (G).

Opinion 1979-4; DR2-104 (A) (4); EC2-2. EC2-5

Opinion 1979-4; DR2-104 (A) (4); EC2-2. EC2-5
A lawyer may write a periodic column in a newspaper of general circulation which is either a “question and answer format, in which readers are invited to submit general questions of law, or the presentation of a hypothetical situation and the solution or an explanation of general legal procedures in various courts in Delaware, or a combination thereof.”

Opinion 1979-3; DR3-102; DR3-103

Opinion 1979-3; DR3-102; DR3-103
A law firm may share the rental of office space with a CPA if the firms maintain total separation of identity and employment of the offices.