CBA Releases Two New Formal Opinions - 142 and 143

September 15, 2021

By: John M. Tanner

The CBA has just released two new formal opinions. 
Opinion 142 
This opinion regards an attorneys’ duty to inquire when a client may be involved in criminal or fraudulent activity. You can find that opinion here. Rule 1.2(d) prohibits an attorney from counseling a client to participate in conduct the lawyer knows to be criminal or fraudulent, or assisting the client in doing the same. Opinion 142, on the heels of ABA Formal Opinion 491 on the same topic, addresses duties where a lawyer suspects, but does not “know” as defined in the Rules, that the client may be engaged in such conduct. In essence, the opinion concludes that “knowledge” includes “willful blindness.” If the facts are sufficiently suspicious, the lawyer is on a duty to inquire.

Opinion 143 
This opinion is an epic 32 pages entitled “Foundations of a Fee Agreement.” You can find it here. While you are unlikely to need a detailed fee agreement for your services as in-house counsel, wearing your “client representative” hat, you should probably review this opinion to see what your outside counsel may and should ask of you. This opinion is rare, if not unique, among CBA formal opinions because it addresses not only the requirements of the ethical rules, but also “best practices” in this area. Specific topics include fee structure (hourly, flat-fee, or contingency fee); client identity; scope of representation (including limited representation, sometimes called “unbundling”); communication; file retention and destruction; termination; and third-party considerations. It even has a form fee agreement at the back.