American Bar Association Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the American Bar Association, with full citations and source links on every page.
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Do the ethics rules make a lawyer a 'gatekeeper' who must report a client suspected of money laundering?
No. The opinion concludes the Model Rules neither require nor permit a lawyer to act as a mandatory-reporting gatekeeper, but it is prudent for lawyers to perform risk-based client due diligence to av…
Can a judge use Facebook and other social media, and can a judge be friends online with lawyers who appear before the judge?
A judge may use electronic social media but must comply with the Code of Judicial Conduct: avoid ex parte communications, avoid endorsing candidates, and evaluate any online connection with a lawyer o…
Must a lawyer who receives a party's private emails with their own counsel notify opposing counsel?
Not under the Model Rules. The opinion concludes that emails an employer retrieved from an employee's workplace computer were not 'inadvertently sent,' so Rule 4.4(b) does not apply and no Model Rule …
Do the ethics rules limit what I can put on my law firm website, and can a website inquiry create duties to a prospective client?
Yes. Website content is a communication about the lawyer's services subject to Rules 7.1, 8.4(c), and 4.1(a), so it must not be false or misleading. A website that invites inquiries can create a prosp…
If a lawyer consults their firm's in-house ethics counsel about their own conduct, is that confidential and what must be disclosed?
The opinion concludes that ethics consultations within a firm create a separate client-lawyer relationship, that consulting is impliedly authorized and needs no client consent, and that firm ethics co…
Can a judge raise private money or donations to fund a drug court or other problem-solving court?
A judge may help fund a therapeutic or problem-solving court only within the limits of Model Code Rule 3.7(A): the judge may seek grants and recommend funding but may directly solicit contributions on…
Can a lawyer outsource legal or nonlegal work, including to overseas providers, and what duties apply?
Yes. The opinion concludes a lawyer may outsource legal or nonlegal support services if the lawyer remains ultimately responsible for competent representation under Rule 1.1 and supervises the provide…
If a lawyer represents two clients in the same matter, can the lawyer share one client's confidential information with the other?
Not without informed consent. The opinion concludes that Rule 1.6 protects each client's information separately, so a lawyer may not reveal one client's confidential information to a co-client where i…
Does a court-appointed lawyer owe the usual duties to a competent defendant who refuses to be represented?
No. The opinion concludes the client-lawyer relationship is consensual, so a lawyer appointed over a competent defendant's objection has no client and owes none of the Rules' client-relationship dutie…
Can a lawyer represent a client in a collaborative law process that requires the lawyer to withdraw if the case goes to litigation?
Yes, with informed consent. The opinion concludes that collaborative law practice is a permissible limited-scope representation under Rule 1.2(c), and that the four-way agreement requiring the lawyer …
Can a lawyer ghostwrite court papers for a self-represented litigant without disclosing that help to the court?
Yes. The opinion concludes a lawyer may give behind-the-scenes assistance to a pro se litigant, including drafting filings, without disclosing the fact or extent of that help to the court, because the…
Before a class is certified, can the lawyers on either side contact people who might become class members?
Yes. The opinion concludes that putative class members are not represented before certification, so Rules 4.2 and 7.3 do not generally bar either side from contacting them; both sides must follow Rule…
Can a law firm condition a partner's retirement benefits on the partner agreeing not to keep practicing law?
Yes, but only for genuine retirement benefits. The opinion concludes Rule 5.6(a) permits a non-compete restriction tied to retirement benefits only where the benefit is available solely to a lawyer wh…
Can a lawyer contact an opposing organization's in-house counsel directly when outside counsel represents the organization in the matter?
Generally yes. The opinion concludes Rule 4.2 does not bar a lawyer from communicating with an organization's inside counsel about the matter without the consent of its outside counsel, because inside…
Can a lawyer ethically search for and use the metadata hidden in electronic documents sent by opposing counsel?
Yes. The opinion concludes the Model Rules contain no specific prohibition against reviewing and using metadata embedded in documents received from an opposing party or counsel, and that a sending law…
What must a public defender or appointed lawyer do when their caseload is too high to represent every client competently?
Stop taking cases and seek relief. The opinion concludes a lawyer whose workload prevents competent, diligent representation must decline new appointments and move to withdraw from existing cases, and…
If a lawyer receives an adverse party's privileged documents from someone not authorized to send them, must the lawyer stop reading and notify the other side?
Not under the Model Rules. The opinion withdraws Formal Opinion 94-382, concluding that when the disclosure is not the result of the sender's inadvertence, Rule 4.4(b) does not apply and the Rules do …
Can a lawyer bluff about a client's bottom line in a settlement negotiation or mediation without violating the ethics rules?
Within limits. The opinion concludes Rule 4.1 bars false statements of material fact in negotiation, including caucused mediation, but statements about a party's negotiating goals or willingness to co…
What must a lawyer disclose to multiple clients before settling their claims together in an aggregate settlement?
A lot, and not in advance. The opinion concludes Rule 1.8(g) requires the lawyer to tell each client the total settlement, every client's claims and share, the lawyer's fees and costs, and how costs a…
What must a lawyer do after receiving a document the other side sent by mistake?
Just notify the sender. The opinion concludes that under amended Rule 4.4(b) a lawyer who receives an inadvertently sent document need only promptly notify the sender, and need not refrain from readin…
Can a lawyer get a client to consent in advance to future conflicts of interest, and when does that waiver actually hold up?
Yes, more broadly than before. The opinion concludes amended Rule 1.7 lets a lawyer obtain informed consent to a wider range of future conflicts, and that open-ended consent is most likely effective f…
Can a lawyer who represents a liability insurer also represent a plaintiff suing one of that insurer's policyholders?
Usually, unless the insurer is a party or information is at stake. The opinion concludes the simultaneous representation is not directly adverse to the insurer unless the insurer is a named party, but…
Can a lawyer draft a will disinheriting someone the lawyer represents on other, unrelated matters?
Usually yes. The opinion concludes there is ordinarily no conflict in drafting an instrument disinheriting a beneficiary the lawyer represents elsewhere, because a beneficiary has only an expectancy a…
Does a lawyer have to report another lawyer's misconduct when that other lawyer is licensed but does not practice law?
Yes. The opinion concludes that Rule 8.3 requires reporting a licensed lawyer's misconduct, even conduct entirely removed from law practice, when it raises a substantial question about honesty, trustw…
Can a criminal defense lawyer post bail, or arrange a bond, for their own client?
Only rarely. The opinion concludes there is no per se ban, but posting or guaranteeing a client's bond usually creates a personal-interest conflict under Rule 1.7 that bars the representation unless t…
Do I have to report another lawyer, not in my firm, whose mental impairment is hurting their clients?
Yes, in limited circumstances. The opinion concludes that a lawyer who knows another lawyer's mental condition is materially impairing her representation of clients, and who knows she keeps representi…
Can a liability insurer's salaried staff lawyers represent both the insurer and its insureds, and what may that staff-counsel office call itself?
Yes, with disclosure. The opinion concludes insurance staff counsel may represent both the insurer and its insureds if they tell each insured they are insurer employees and exercise independent profes…
What do a firm's partners and supervisors have to do when a lawyer in the firm is mentally impaired?
The opinion concludes that when a firm's partners or supervisors know of a lawyer's mental impairment, they must take reasonable steps to assure it will not cause rule violations; if it already has ca…
Can a lawyer draft a will for someone referred by an existing client who stands to inherit under that will?
Yes, with safeguards. The opinion concludes a lawyer may draft a testator's will on the recommendation of a potential beneficiary who is also a client, as long as the lawyer does not let the recommend…
Can a lawyer take a mortgage or other security interest in a client's property to make sure the fee gets paid?
Yes, with safeguards. The opinion concludes a lawyer may take a contractual security interest in a client's property to secure a fee if the lawyer complies with Rule 1.8(a)'s business-transaction prot…
Can a lawyer who drafts a client's will or trust serve as the executor or trustee, hire their own firm as the estate's counsel, and be paid for both roles?
Yes, with conditions. The opinion concluded that a lawyer may accept appointment as a personal representative or trustee named in an instrument the lawyer prepares and may appoint himself or his firm …
Can a lawyer put a binding-arbitration clause for fee disputes and malpractice claims in a retainer agreement?
Yes, with informed consent. The opinion concludes a retainer may require binding arbitration of fee disputes and malpractice claims if the client is fully told the advantages and disadvantages and con…
Can a former in-house lawyer sue her former employer for wrongful or retaliatory discharge without breaching client confidentiality?
Yes, within limits. The opinion concluded the Model Rules did not bar a former in-house lawyer from suing her employer-client for retaliatory discharge, treating the suit as a 'claim' under Rule 1.6(b…
Can a U.S. law firm make a foreign-licensed lawyer a partner without violating the rule against partnering with nonlawyers?
Yes, if the foreign lawyer belongs to a recognized legal profession. The opinion concluded U.S. lawyers could form partnerships in which foreign lawyers are partners or owners, treating qualified fore…
Is it ethical for a lawyer to secretly record a conversation without telling the other party?
Not necessarily improper. The opinion rejected the flat ban of Formal Opinion 337 and concluded that secretly but lawfully recording a conversation did not by itself violate the Model Rules, though a …
Must a defense lawyer hired by an insurer follow the insurer's litigation guidelines, and can the lawyer send the insured's billing details to the insurer or an outside auditor?
The opinion concluded that a lawyer must not let an insurer's guidelines materially impair independent professional judgment for the insured, may disclose billing and work information to the insurer w…
Can a lawyer charge the client more for a contract lawyer's work than the lawyer paid for it?
It depends on how it is billed. The opinion concluded a lawyer could add a surcharge (profit) when a contract lawyer's work was billed as legal services, so long as the total fee was reasonable under …
Can a lawyer let clients pay their legal fees with a credit card?
Yes. The opinion withdrew four older opinions that had restricted credit-card payment of legal fees, concluding that the advertising provisions of the 1983 Model Rules left lawyers free to permit or e…
Can a lawyer take stock or another ownership interest in a client company in exchange for, or alongside, legal fees?
The opinion concluded that the Model Rules did not prohibit a lawyer from acquiring an ownership interest in a client, in lieu of or in addition to a cash fee, so long as the lawyer complied with Rule…
Can a lawyer agree to a settlement term barring future use of information learned in the case against the same opponent?
Partly. The opinion concluded a lawyer could agree not to disclose information about a settled matter, since confidentiality rules already require that, but could not agree to a term barring future us…
Can a lawyer buy a client's accounts receivable and collect on them?
Yes, with safeguards. The opinion concluded a lawyer could purchase a client's accounts receivable if the transaction met Rule 1.8(a) (fair terms, written disclosure, written consent, and a chance to …
Can a former in-house lawyer or their new firm take a matter against the lawyer's old employer?
Only with limits. The opinion concluded a former in-house lawyer was disqualified from a matter adverse to the former employer only where the lawyer personally handled the same or a substantially rela…
When I leave my law firm, can I notify clients and ask them to come with me, and which clients can I contact before I resign?
Both the departing lawyer and the firm's responsible members had to give current clients prompt, fair notice of the departure and of the client's right to choose counsel. The opinion concluded that no…
Can a lawyer send confidential client information by unencrypted email over the Internet, or do the ethics rules require encryption or client consent?
The opinion concluded that a lawyer may transmit information relating to a client's representation by unencrypted Internet email without violating Model Rule 1.6, because email affords a reasonable ex…
If I learn my client violated a court order during litigation, do I have to tell the judge or can I just withdraw?
It depends. The opinion concluded the lawyer had to correct any affirmative misrepresentation she had made to the court, and had to disclose the client's conduct or withdraw if continued representatio…
Can a lawyer discuss a client's case with another lawyer outside the firm without breaching confidentiality?
Yes, carefully. The opinion concluded a lawyer could consult an outside lawyer and was impliedly authorized under Rule 1.6 to disclose information to further the representation, but could not reveal p…
May a lawyer serve on the board of directors of a corporation while also acting as its legal counsel, and what conflict and privilege problems does the dual role create?
The opinion concluded that the Model Rules do not prohibit a lawyer from simultaneously serving as director and counsel of a corporation, but the lawyer should make sure management and the board under…
After a lawyer leaves a government agency, which matters is she barred from handling for private clients, and can her new firm screen her so the rest of the firm can take the work?
The opinion concluded that Rule 1.11, not Rule 1.9(a) and (b), governs a former government lawyer's conflicts: she is disqualified only from particular matters in which she participated personally and…
When a private party is in a dispute with a government agency that has its own counsel, may the party's lawyer talk directly to government officials, or must she always go through the agency's lawyer?
The opinion concluded that Rule 4.2 generally protects a represented government entity from unconsented contacts the same way it protects a private organization, but the constitutional right to petiti…
Can a lawyer represent another lawyer in one matter while the two of them are on opposite sides for other clients, and does that conflict spread to their firms?
The opinion concluded that two lawyers may have a lawyer-client relationship while opposing each other for third-party clients only if neither lawyer's representation of his own client would be materi…
If a lawyer represents one government agency, can she or her firm also represent a private client against a different agency of the same government in an unrelated matter?
The opinion concluded that a lawyer may not simultaneously oppose her own government client without informed consent, but she may represent a private party against another government entity in the sam…
When a client becomes mentally incompetent during a representation, can the lawyer petition for a guardian or take other protective action, and may the lawyer recommend a guardian who will then hire the lawyer?
The opinion concluded that a lawyer who reasonably believed a client could no longer adequately act in the client's own interest could take protective action under Model Rule 1.14(b), including petiti…
When an insurance company hires a lawyer to defend its insured and the policy lets the insurer settle within limits in its sole discretion, can the lawyer settle the case if the insured objects?
The opinion concluded that, after disclosing the limited nature of the representation and the insurer's control of the defense, the lawyer may settle at the insurer's direction, but if the lawyer know…
Can a lawyer pay a fact witness (not an expert) for the time the witness spends attending a deposition or trial, or meeting with the lawyer to prepare to testify?
The opinion concluded that a lawyer may compensate a non-expert occurrence witness for the reasonable value of time lost in attending or preparing to testify, so long as the payment is not conditioned…
When a lawyer is exploring a job with the firm or party he is opposing in a matter, when must he tell his client and get consent, and does the conflict disqualify his whole firm?
The opinion concluded that a lawyer's pursuit of employment with an adverse firm or party may materially limit his representation under Rule 1.7(b), so he must consult the client and obtain consent be…
When a lawyer gives an outside vendor, like a computer maintenance company, access to client files, what must the lawyer do to protect client confidentiality, and must a breach be reported to the client?
The opinion concluded that a lawyer who gives an outside service provider access to client files must make reasonable efforts under Model Rule 5.3 to ensure the provider has, or will put in place, rea…
When may a lawyer contact someone she knows is represented by another lawyer, and does the no-contact rule reach criminal investigations, a corporation's employees, and contacts the represented person starts herself?
The opinion concluded that Rule 4.2 bars a lawyer from communicating about the matter with any person she knows to be represented in it, in both civil and criminal cases, without that person's lawyer'…
Can a lawyer accept a settlement with a government agency that requires the lawyer not to represent other, similar clients against that agency in the future?
The opinion concluded that Rule 5.6(b)'s bar on settlement terms that restrict a lawyer's right to practice applies even when one party is a government agency, so the lawyer may not agree to such a co…
Can a government legal-aid lawyer let a nonlawyer supervisor have free access to client files so the supervisor can collect demographic data about the clients the office serves?
The opinion concluded that a lawyer may disclose client-file information to a nonlawyer supervisor when the disclosure helps carry out the representation, but if it does not, disclosure requires the c…
Can a corporation rent out its in-house lawyers to other clients at a markup, or take a cut of a statutory fee award won by its in-house counsel, above what the lawyer cost the company?
The opinion concluded that an in-house lawyer who provides services to third parties for a fee, or who recovers a statutory fee award, violates Model Rule 5.4(a) by turning over to the corporate emplo…
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Legal ethics opinions from the American Bar Association interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.