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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

1.8 Rule 1.8 Conflict of Interest: Prohibited Transactions

1.8:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 1.8
  • Background References: ABA Model Rule 1.8, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

1.8:101   Model Rule Comparison

ARPC 1.8(e)(3) allows a lawyer to assist the client financially without fear of repercussion, so long as the employment of the lawyer was not contingent upon an advance of money and that the employment took place prior to advancement of financial help. ARPC 1.8(e)(4) allows the lawyer to recover court costs provided it is specified in the employment agreement, when providing financial assistance to a client. ARPC 1.8(f)(1) specifically includes the appointment of a lawyer pursuant to an insurance contract as an exception to the rule precluding a lawyer from accepting compensation for representing a client from one other than the client. ARPC 1.8(k) prohibits a lawyer from representing both parties in a divorce, domestic relations matter, or child custody matter, whether contested or not. However, if any of these proceedings are uncontested, a lawyer can contact an unrepresented party, who can then execute a document stating (1) the lawyer does not appear for the unrepresented party; (2) the lawyer represents one client and will use his best efforts for that client; (3) the unrepresented party has a right to counsel and has been informed that separate representation is advisable; and (4) the unrepresented party requests the lawyer to prepare appropriate pleadings and agreements.

1.8:102   Model Code Comparison

Inapplicable.

1.8:200 Lawyer's Personal Interest Affecting Relationship

  • Primary Alabama References: AL Rule 1.8(a)
  • Background References: ABA Model Rule 1.8(a), Other Jurisdictions
  • Commentary: ABA/BNA § 51:501 et seq., ALI-LGL § 126, Wolfram §§ 7.6, 8.11
  • Alabama Commentary:

1.8:210   Sexual Relations with Clients

1.8:220   Business Transactions with Clients

In Neelley v. State, 642 So.2d 494 (Ala. Crim. App. 1993), the Court discussed possible violations of ARPC Rule 1.8(d) by the signing of an agreement giving an attorney certain media rights based on legal representation. On appeal, a defendant convicted of murder argued that her attorney had a conflict of interest because of a publicity contract they had signed that she alleged effected his ability to represent her. Id. at 500. The publicity contract involved a 50/50 split on the profits between the attorney and the client from any publicity about the case, and the contract was not executed until three months after the trial had ended. Id. at 500-01. The Court, after reviewing case law from various other jurisdictions on conflicts of interest created by publicity contracts, held that although a potential conflict of interest existed as a result of the contract, it never ripened into an actual conflict of interest because the contract was not signed until after the trial was over. Id. at 504. The Court noted that if the contract possibly did create a conflict of interest, the evidence in the record made it clear that the "attorney zealously and whole heartedly represented the interests of the appellant, and earnestly participated in all aspects of the proceedings." Id. at 504.

1.8:300 Lawyer's Use of Client Information

  • Primary Alabama References: AL Rule 1.8(b)
  • Background References: ABA Model Rule 1.8(b), Other Jurisdictions
  • Commentary: ABA/BNA §§ 55:501-55:2001 , ALI-LGL §§ 61-66, Wolfram § 6.7
  • Alabama Commentary:

See Section 1.6:210 et seq.

1.8:400 Client Gifts to Lawyer

  • Primary Alabama References: AL Rule 1.8(c)
  • Background References: ABA Model Rule 1.8(c), Other Jurisdictions
  • Commentary: ABA/BNA § 51:601, ALI-LGL § 127, Wolfram § 8.12
  • Alabama Commentary:

Inapplicable.

1.8:500 Literary or Media Rights Relating to Representation

  • Primary Alabama References: AL Rule 1.8(d)
  • Background References: ABA Model Rule 1.8(d), Other Jurisdictions
  • Commentary: ABA/BNA § 51:701, ALI-LGL § 36, Wolfram § 9.3.3
  • Alabama Commentary:

See Section 1.8:220.

1.8:600 Financing Litigation

  • Primary Alabama References: AL Rule 1.8(e)
  • Background References: ABA Model Rule 1.8(e), Other Jurisdictions
  • Commentary: ABA/BNA § 51:801, ALI-LGL § 36, Wolfram § 9.2.3
  • Alabama Commentary:

A lawyer may agree to advance the costs of litigation with repayment contingent on the outcome.

1.8:610   Litigation Expenses

ARPC 1.8 allows a lawyer to pay certain expenses of litigation and court costs for the client if the lawyer's fees are to be paid as a certain percentage of the recovery. Ethics Opinion RO-97-02 addresses ARPC Rule 1.8(e) and the fees an attorney may pay to witnesses. A lawyer may not pay a lay witness anything in exchange for his testimony, but a lawyer may pay an expert witness a reasonable fee for his time and services as long as the fee is not contingent on the results of the case. A lawyer may pay a lay witness for actual expenses such as loss of time or income that were incurred as a result of being a witness in the trial or deposition.

1.8:620   Living and Medical Expenses

ARPC Rule 1.8 allows an attorney to assist a client financially in emergency situations as long as the repayment of the money is not dependent on the success of the legal matter.

1.8:700 Payment of Lawyer's Fee by Third Person

  • Primary Alabama References: AL Rule 1.8(f)
  • Background References: ABA Model Rule 1.8(f), Other Jurisdictions
  • Commentary: ABA/BNA § 51:901, ALI-LGL §§ 134, 135, Wolfram § 8.8
  • Alabama Commentary:

1.8:710   Compensation and Direction by Third Person

ARPC Rule 1.8 specifically provides the additional exception of insurance contracts to the list of circumstances in which a lawyer may accept compensation from a third party for the representation of a client. The comments to Rule 1.8 note that: "in the normal insurance defense relationship where, for example, there are no coverage issues, appointed counsel has two clients, the insured and the insurer. Hence the insurer is not a third party."

1.8:720   Insured-Insurer Conflicts [see also 1.7:315]

Ethics Opinion RO-98-02 addresses certain restrictions placed on attorneys by insurance companies in their representation of policy holders. The opinion expresses concern that many restrictions such as limits on discovery, travel and time spent on research could cause "interference with the lawyer's independence of professional judgment and with the lawyer-client relationship" in violation of Rule 1.8(f)(2).

1.8:730   Lawyer with Fiduciary Obligation to Third Persons [see 1.13:520]

1.8:800 Aggregate Settlements

  • Primary Alabama References: AL Rule 1.8(g)
  • Background References: ABA Model Rule 1.8(g), Other Jurisdictions
  • Commentary: ABA/BNA § 51:375, ALI-LGL § 128, Wolfram § 8.15
  • Alabama Commentary:

A lawyer cannot enter into an aggregate settlement unless each represented client consents.

1.8:900 Agreements Involving Lawyer's Malpractice Liability

  • Primary Alabama References: AL Rule 1.8(h)
  • Background References: ABA Model Rule 1.8(h), Other Jurisdictions
  • Commentary: ABA/BNA § 51:110l, ALI-LGL § 54, Wolfram § 5.6.7
  • Alabama Commentary:

1.8:910   Prospective Limitation of Malpractice Liability

A lawyer cannot enter into an agreement that prospectively limits malpractice liability.

1.8:920   Settlement of Legal Malpractice Claim

A lawyer should consider the impact of Rule 1.8(a).

1.8:1000 Opposing a Lawyer Relative

  • Primary Alabama References: AL Rule 1.8(i)
  • Background References: ABA Model Rule 1.8(i), Other Jurisdictions
  • Commentary: ABA/BNA § 51:1301, ALI-LGL § 123, Wolfram § 7.6.6
  • Alabama Commentary:

A lawyer should not oppose a parent, child, sibling or spouse without consent.

1.8:1100 Lawyer's Proprietary Interest in Subject Matter of Representation

  • Primary Alabama References: AL Rule 1.8(j)
  • Background References: ABA Model Rule 1.8(j), Other Jurisdictions
  • Commentary: ABA/BNA § , ALI-LGL §§ 35, 41, 43, Wolfram §§ 8.13, 9.6.3
  • Alabama Commentary:

1.8:1110   Acquiring an Interest in Subject Matter of Representation

A lawyer should not acquire such an interest except as to a contingent fee agreement or as to the lawyer's lien.

1.8:1120   Contingent Fees [see also 1.5:600]

See 1.5:600. "In some cases, it is appropriate to begin with a consideration of the number of hours expended, the so-called 'lodestar.' In others, particularly where the efforts of the plaintiffs' counsel have produced a common fund for the benefit of all members of the class, a percentage of the fund should be the starting point." Edelman & Combs v. Law, 663 So.2d 957, 959 (Ala. 1995).

1.8:1130   Lawyer Liens

See Section 1.5:230.

1.8:1140   Retention of Files to Collect Fees

See Section 1.5:230.