Legal Ethics Counsel
I advise lawyers and law firms on the Pennsylvania Rules of Professional Conduct.
Most of this work is prospective: a question answered on a Tuesday afternoon that never becomes a disciplinary complaint, a malpractice claim, a disqualification motion, or a problem with a client.
Sometimes the question is, “Can I do this?”
Sometimes it is, “I already did this. What do I do now?”
Both are good reasons to call.
I also serve as an expert witness and consultant on legal ethics, professional responsibility, and the standard of care in legal malpractice matters.
Conflicts of Interest
Conflicts are the largest single category of ethics questions I receive, and they are an area in which getting part of the analysis right can be just as dangerous as getting it wrong.
Not every adversity is a conflict. Not every conflict is consentable. Not every conflict is imputed. And not every waiver will work merely because the client signed it.
I advise lawyers and firms on:
- Current-client conflicts under Rule 1.7, including direct adversity and material-limitation conflicts
- Positional and issue conflicts — and when taking inconsistent legal positions for different clients actually creates a Rule 1.7 problem
- Former-client conflicts and the same-or-substantially-related-matter analysis
- Imputation of conflicts within firms
- Screening and when Pennsylvania permits a screen to avoid firmwide disqualification
- Lateral lawyers and conflict checking, including what information may be exchanged during the hiring process without violating confidentiality
- Former government lawyers, judges, law clerks, arbitrators, mediators, and other third-party neutrals
- Joint and multiple representation
- Common-interest and joint-defense arrangements
- Advance conflict waivers and whether the consent is sufficiently informed to be effective when the future conflict actually arises
- Business transactions with clients
- Conflicts created by the lawyer’s own financial, professional, business, or personal interests
- Prospective clients and consultations that can create a conflict before an engagement ever begins
Conflict analysis is often less about finding the Rule than identifying who the clients actually are, what duties are owed to each of them, what information the lawyer possesses, and whether the lawyer can continue to exercise independent professional judgment.
Trust Accounting and IOLTA
Trust accounting is one of the areas in which a bookkeeping problem can become an ethics problem very quickly.
Not every trust-account issue involves theft or intentional conversion. Problems frequently begin with inadequate records, a missed reconciliation, an old outstanding check, a mistaken transfer, a fee taken before it was earned, unidentified funds, or a system that worked until suddenly it did not.
Pennsylvania’s recordkeeping requirements are detailed. Lawyers must maintain individual client ledgers and other specified records, maintain a regular trial balance, and perform the reconciliations required by Rule 1.15.
I advise lawyers and law firms on:
- IOLTA and other trust-account compliance
- Client ledgers, control records, trial balances, and reconciliation
- Handling disputed funds under Rule 1.15(f)
- Advance fees and expenses
- Flat fees
- Nonrefundable and purported “earned-on-receipt” fee arrangements
- Moving earned fees from trust to operating accounts
- Credit-card payments and processing fees
- Electronic transfers and third-party payment platforms
- Trust-account authority and supervision of staff
- Old, unidentified, or unclaimed balances
- Closing trust accounts
- Responding to overdraft notices
- Reconstructing inadequate trust-account records
- What to do when a reconciliation reveals a shortage
If you discover a trust-account shortfall, the answer is not simply to move money into the account and hope the problem disappears.
The first questions are what happened, whose money is affected, how much is involved, how long the condition existed, what the records show, and what corrective obligations now apply. The account needs to be brought into compliance, but it also needs to be done in a way that preserves the ability to determine and explain what occurred.
That is a good time to call before taking corrective steps that cannot easily be undone.
Firm Transitions, Lawyer Departures, and Dissolutions
Lawyer departures are where professional responsibility, fiduciary duties, client choice, money, and human relationships all meet at once.
I advise departing lawyers, remaining firms, and firms planning transitions on issues including:
- When clients should be notified of a lawyer’s departure
- Whether the notice should be joint or separate
- What the communication may and may not say
- The client’s right to decide who will continue the representation
- Access to and transfer of client files
- What must be surrendered when representation ends
- Confidentiality during the departure process
- Conflict information that may be exchanged before a lateral move
- Solicitation of clients before and after departure
- Communications with firm employees
- Ethical and fiduciary obligations owed to the existing firm
- Division of contingent and other fees between predecessor and successor counsel
- Responsibility for ongoing matters during the transition
- Firm dissolution and winding up
- Restrictions contained in partnership, shareholder, operating, and employment agreements
- Provisions that may conflict with Rule 5.6’s protection of a lawyer’s right to practice and the client’s freedom to choose counsel
The fact that a lawyer has decided to leave does not mean the clients leave with the lawyer.
It also does not mean the firm owns the clients.
The clients decide.
The transition needs to be structured around that principle.
Practice Management, Succession, and Closing a Practice
Ethics advice is not limited to individual Rules violations. Much of professional responsibility is building systems that prevent problems before they occur.
I counsel lawyers and firms on:
- Succession and emergency planning
- Designating a lawyer or law firm to assist if the lawyer dies or becomes incapacitated
- Sale of a law practice under Rule 1.17
- Retirement and planned closure of a practice
- Closing a practice following disability or the death of a lawyer
- Client notification and transition
- File retention, storage, return, and destruction
- Disposition of closed-client files
- Trust-account closure and disposition of remaining funds
- Engagement agreements
- Non-engagement and disengagement letters
- Scope-of-representation provisions
- Fee agreements, including hourly, contingent, flat-fee, and hybrid arrangements
- Supervisory responsibilities over lawyers and nonlawyers
- Contract lawyers, virtual assistants, vendors, and outsourced services
- Professional liability insurance disclosure requirements
- Technology, cybersecurity, cloud services, and protection of confidential information
- Ethical use of artificial intelligence and generative AI
Pennsylvania presently does not require every private lawyer to designate a successor. But the Disciplinary Board strongly encourages succession planning, and Rule 1.3’s commentary recognizes the need to plan for the protection of clients if a sole practitioner dies or becomes disabled.
For a solo lawyer in particular, succession planning is not simply about what happens to the business. It is about who has access to the calendar, the client list, the files, the trust account, and the information needed to protect clients when the lawyer suddenly cannot.
Artificial Intelligence, Technology, and Confidentiality
AI is now part of legal ethics advice.
The ethical questions are not answered simply by asking whether a lawyer is “allowed” to use artificial intelligence. The relevant questions arise under the Rules that already govern lawyers: competence, confidentiality, supervision, candor, communication, fees, and professional judgment.
I advise lawyers and firms on:
- Whether confidential client information may be entered into a particular AI platform
- Evaluating AI vendors and privacy terms
- Supervision of AI-generated work
- Verification of cases, quotations, citations, and legal propositions
- Use of AI for drafting, research, summaries, document review, and discovery
- Whether and when use of AI should be disclosed to a client
- Billing for work performed with AI assistance
- Internal firm AI policies
- Training and supervision of lawyers and staff using AI tools
- Avoiding hallucinated authority and inaccurate pinpoint citations
- Protecting client information in cloud-based and other technology systems
The Pennsylvania Bar Association and Philadelphia Bar Association have issued Joint Formal Opinion 2024-200 addressing lawyers’ use of artificial intelligence. Its central lesson is straightforward: the technology may change, but the lawyer’s professional responsibilities do not.
AI can assist the lawyer.
It cannot replace the lawyer’s judgment.
The Rest of the Rules
Not every ethics problem fits neatly into a practice category.
I also advise on:
- Confidentiality and the exceptions to Rule 1.6
- Candor to tribunals
- False evidence and remedial obligations
- Communications with represented persons under Rule 4.2
- Communications with unrepresented persons
- Witness contacts
- Withdrawal from representation
- The client who will not pay
- Terminating a representation without prejudicing the client
- Prospective clients
- Advertising and solicitation
- Lawyer websites and social media
- Fee sharing and referral arrangements
- Unauthorized and multijurisdictional practice
- Supervisory responsibility
- Lawyers working remotely across state lines
- Reporting professional misconduct under Rule 8.3
- The specific circumstances in which a Pennsylvania lawyer must report something about the lawyer’s own status or conduct
- Responding when another lawyer in the firm may have violated the Rules
- Obligations involving impaired lawyers
- Duties owed to organizational clients
Frequently, the question is not simply, “What does the Rule say?”
It is: What do I do now?
That is where ethics counsel is most useful.
When a Lawyer Thinks a Mistake Has Been Made
One of the hardest calls for a lawyer to make is the call that begins:
“I think I made a mistake.”
The first task is determining whether there actually was an error, whether it is material, whether it can be corrected, whether the client must be told, and whether the lawyer’s personal interests now create a conflict with the client.
Rule 1.4 requires lawyers to provide clients with the information reasonably necessary to make informed decisions about the representation. A significant error may therefore require disclosure to a current client. A material error can also create a personal-interest conflict under Rule 1.7 because the lawyer’s interest in avoiding embarrassment, a claim, or professional consequences may diverge from the client’s interests.
But “tell the client immediately” is not the end of the analysis.
The lawyer may first need to determine exactly what occurred, whether corrective action remains available, whether professional liability counsel or the carrier should be consulted, whether continued representation is permissible, and how to communicate accurately without giving the client legal advice about a potential claim against the lawyer.
Call before sending the email.
Reporting Other Lawyers — and Reporting Yourself
Rule 8.3 requires a lawyer who has actual knowledge that another lawyer has committed professional misconduct raising a substantial question about that lawyer’s honesty, trustworthiness, or fitness to report it to the appropriate professional authority, subject to the confidentiality protections of Rule 1.6 and the other exceptions in the Rule.
Not every Rules violation triggers mandatory reporting.
And Rule 8.3 is not a general requirement that lawyers report their own violations of the Rules of Professional Conduct.
Pennsylvania does, however, impose specific self-reporting duties in particular circumstances. For example, the Rules of Disciplinary Enforcement require lawyers to report certain criminal convictions and certain discipline, license actions, or disability-inactive transfers imposed in other jurisdictions.
The correct question is therefore not simply, “Do I have to report myself?”
It is: What happened, and is there a Rule or Enforcement Rule that requires a report?
Get that answer before making one.
Expert Witness and Consulting
I serve as an expert witness and consultant in matters involving legal ethics, professional responsibility, and the standard of care.
My work includes:
- Legal malpractice cases
- Breach-of-fiduciary-duty claims involving lawyers
- Conflicts of interest
- Disqualification motions
- Fee disputes
- Engagement and fee-agreement issues
- Law-firm departures and transitions
- Professional responsibility issues arising in underlying litigation
- Review of lawyer conduct against the applicable standard of care and Rules of Professional Conduct
I accept engagements for plaintiffs and defendants.
The Rules of Professional Conduct do not themselves create civil liability or establish a cause of action. But the ethical rules, professional standards, substantive law, practice standards, and circumstances surrounding the representation can all be relevant to an analysis of a lawyer’s conduct.
That distinction matters in expert work.
Why Lawyers Call Me
I have focused my practice on professional responsibility and legal ethics for more than three decades.
I co-chair the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee. I am a former chair and current Duty Officer of the Allegheny County Bar Association Professional Ethics Committee, where I have spent years answering lawyers’ ethics questions.
I served as President of the Allegheny County Bar Association, and I teach and write about professional responsibility and legal ethics throughout Pennsylvania.
I also defend lawyers in disciplinary proceedings.
That changes the way I give prospective ethics advice.
I have seen what happens after the engagement letter was unclear, the conflict was missed, the trust-account problem was handled incorrectly, the departing lawyer sent the wrong email, or the lawyer tried to solve a mistake before asking whether the proposed solution created another one.
The objective of ethics advice is not simply to identify the Rule.
It is to help the lawyer get to the other side of the problem without creating the next one.
Frequently Asked Questions
Is my call confidential?
When you engage me as ethics counsel, our relationship is an attorney-client relationship and carries the confidentiality protections that come with it.
Pennsylvania Rule 1.6 specifically recognizes that a lawyer may disclose information relating to a client’s representation to the extent reasonably necessary to obtain legal advice concerning the lawyer’s own compliance with the Rules of Professional Conduct.
Even an initial consultation can create duties concerning information received from a prospective client under Rule 1.18.
That is very different from asking three colleagues over lunch what they think you should do.
I think I made a mistake. Do I have to report myself to ODC?
There is no general Rule requiring a lawyer to report every violation the lawyer may have committed.
Rule 8.3 principally addresses reporting misconduct by another lawyer or a judge. Pennsylvania does impose specific self-reporting duties in particular situations, including certain criminal convictions and discipline or disability status imposed elsewhere.
Whether a report is required depends on what happened and which Rule applies.
Do not assume either that you must report or that you do not.
Do I have to tell my client that I made an error?
A material error affecting a current representation may have to be disclosed so that the client has the information necessary to make informed decisions under Rule 1.4. The error may also create a conflict under Rule 1.7 if the lawyer’s personal interests materially limit the representation.
Not every mistake is material, and the precise obligations depend on the circumstances.
The timing and wording matter. So does determining whether the error can be corrected and whether the lawyer can continue the representation.
Can I talk to you about a client’s matter without violating confidentiality?
Yes, subject to the limitations of Rule 1.6.
Rule 1.6 expressly permits disclosure to the extent the lawyer reasonably believes necessary to secure legal advice concerning the lawyer’s compliance with the Rules. The disclosure should still be no broader than reasonably necessary for the consultation.
Can you advise my whole firm, or only me?
Both, depending on the circumstances.
At the beginning of an engagement, it is important to identify who the client is. Sometimes I represent the law firm. Sometimes I represent an individual lawyer. Sometimes the interests are aligned initially but later diverge.
If the interests of the firm and an individual lawyer create a conflict that prevents me from representing both, I will identify that issue rather than pretending it does not exist.
Do you provide written ethics opinions?
Yes.
I provide written legal ethics opinions and analyses to lawyers and law firms when a written record of the advice is useful — for example, when a firm is making a significant conflict decision, developing a policy, responding to an internal issue, or addressing a question that may later need to be explained.
A legal opinion I provide as counsel is different from a formal or informal advisory opinion issued by a bar association ethics committee.
Do you help with IOLTA and trust accounting even if no complaint has been filed?
Yes.
In fact, that is an excellent time to call.
I work with lawyers to review trust-account procedures, understand Pennsylvania’s recordkeeping requirements, identify and correct deficiencies, reconstruct records where necessary, and address shortages or other problems before they become disciplinary matters.
Do you help lawyers retire and close their practices?
Yes.
I advise lawyers on retirement, sale or closure of the practice, client notification, file disposition, trust accounts, outstanding fees, succession planning, and the practical and ethical obligations involved in winding down a law practice.
Is a succession plan mandatory in Pennsylvania?
Not presently.
The Disciplinary Board strongly encourages succession planning and asks lawyers about succession arrangements during annual registration, but failure to designate a successor is not presently a violation of the Pennsylvania Rules of Professional Conduct or Rules of Disciplinary Enforcement.
That does not make it unimportant — particularly for solo practitioners.
Do you serve as an expert witness?
Yes.
I serve as an expert and consultant on professional responsibility, legal ethics, and the standard of care in matters involving lawyers. I accept engagements for plaintiffs and defendants.
Do you advise on artificial intelligence?
Yes.
AI questions are professional responsibility questions. I advise on confidentiality, competence, verification of AI-generated work, candor, supervision, billing, client communication, vendor selection, and internal firm AI policies.
Do you work outside Allegheny County?
Yes. I advise lawyers and law firms throughout Pennsylvania.
Contact
Call before you act.
And if you already acted, call before you try to fix it.
Amy J. Coco, Esquire
Law Office of Amy J. Coco, PLLC
429 Fourth Avenue, Suite 300
Law & Finance Building
Pittsburgh, PA 15219
412.763.1349