Michael Sussmann and Rule 4.3

In 2012 I created a program I named The 5 Most Dangerous Rules of Professional Conduct, parts of which I have used as topics for this blog over the years. In 2013 I wrote about Prospective Clients and the risk they pose to a lawyer who is consulted but not engaged. In 2015 I compiled An Informed Consent Concordance, cataloging all the Rules of Professional Conduct that require an attorney to provide a client with “adequate information and explanation about the material risks of and reasonably available alternatives to [a] proposed course of conduct.” Early in the pandemic, I wrote about the most dangerous rule, the duty of confidentiality under Rule 1.6 – a piece I titled And We Really Mean It.

This spring I was invited by the Pueblo County Bar Association to present an in-person CLE, my first since the pandemic began. The program they asked for was The 5 Most Dangerous Rules.  In updating my written materials I considered whether my ranking of “most dangerous rules” had held up over the last decade. As explained in an earlier blog, in selecting finalists I employ two criteria: the risk of inadvertent violation, and the potential for professional discipline to result therefrom.

Disclaimer: This article was written before Michael Sussman was found not guilty of lying to the FBI, however, the legal ethics discussion still applies.

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