Ethics opinion would bless eyes-only agreements

A proposed ethics opinion would permit lawyers to accept an opposing counsel’s offer to view certain documents subject to an “attorney eyes only” disclosure restriction without their client’s consent.

Proposed 2019 Formal Ethics Opinion 7, published by the North Carolina State Bar Council’s ethics committee at its most recent meeting on Oct. 24, would let lawyers agree to receive information under certain restrictions such as an “attorney eyes only” condition if the lawyer determines that doing so is in the client’s best interest and is in accordance with applicable law.

The inquiry that prompted the opinion involved a case where an employer’s counsel offered to produce certain requested materials only if the attorney agreed to the eyes-only provision, meaning that the sensitive information in the documents couldn’t be disclosed to the attorney’s client, who was pursuing a wrongful discharge action. The lawyer felt that the information was needed to effectively represent the client and feared that refusal to accept the offer would cause opposing counsel to try to block a discovery request or secure a protective order, possibly successfully.

The proposed opinion would permit attorneys to accept such offers, on the grounds that lawyers may exercise their professional judgment to waive or fail to assert a right or position of the client. As such, if a lawyer concludes, in their professional judgement, that such a restriction is reasonably necessary to effectively represent a client, they can receive the information pursuant to the restrictive conditions (but should consider negotiating for the least restrictive disclosure requirement).

The opinion does warn that attorneys should proceed with caution when evaluating an “attorney eyes only” agreement, however, because they can create a conflict of interest for the lawyer, especially in a criminal case.

The ethics committee welcomes comments on the proposed opinion before it is considered at the committee’s next meeting in January.

The State Bar Council also adopted three new formal opinions at the October meeting. 2019 Formal Ethics Opinion 5, “Receipt of Virtual Currency in Law Practice,” allows lawyers to accept payment in any of the hundreds of cryptocurrencies available for trade over the internet, provided the fee is not clearly excessive and all other rules are satisfied. But lawyers may not accept virtual currency as entrusted funds to be billed against or to be held for the benefit of the lawyer, the client, or any third party.

2018 Formal Ethics Opinion 8, “Advertising Inclusion in Self-Laudatory List or Organization,” allows attorneys to advertise their inclusion in a list or membership in an organization that bestows a laudatory designation like “best,” “super,” or “distinction,” subject to certain conditions. It replaces 2007 Formal Ethics Opinion 14.

2019 Formal Ethics Opinion 6, “Offering Incentive to Engage with Law Practice’s Social Networking Sites,” rules that offering people an incentive to engage with a law practice’s social media account—by making them eligible to win a prize if they like the firm on Facebook or Twitter, for instance—is misleading and constitutes an improper exchange for a recommendation of the law practice’s services.

Follow David Donovan on Twitter @NCLWDonovan