drew potts - kirby, mathews & walrath, pllckmwenergylaw.com/assets/presentations/approved/15...

Drew Potts

AAPL Code of Ethics Section 1

It shall be the duty of the Land Professional at all times topromote and, in a fair and honest manner, represent theindustry to the public at large with the view of establishingand maintaining goodwill between the industry and thepublic and among industry parties.

The Land Professional, in his dealings with landowners,industry parties, and others outside his industry, shallconduct himself in a manner consistent with fairness andhonesty, such as to maintain the respect of the public.

AAPL Code of Ethics Section 2

Competition among those engaged in the mineral andenergy industries shall be kept at a high level withcareful adherence to established rules of honesty andcourtesy.

A Land Professional shall not betray his partner’s,employer’s, or client’s trust by directly turningconfidential information to personal gain.

AAPL Code of Ethics Section 2 (Cont.)

The Land Professional shall exercise the utmost good faithand loyalty to his employer (or client) and shall not actadversely or engage in any enterprise in conflict with theinterest of his employer (or client). Further, he shall act ingood faith in his dealings with the industry associates.

The Land Professional shall represent others only in his areasof expertise and shall not represent himself to be skilled inprofessional areas in which he is not professionally qualified.

The Rules in Action

Although the Code of Ethics only contains two (2)rules, it covers a broad range of topics and situations.

The Standards of Practice contain fifteen (15)provisions and expand upon the Code of Ethics.

In order to illustrate some possible real-worldscenarios, today’s presentation will follow the(fictional) story of Landman extraordinaire, DwightSchrute.

Additional Rules for Attorney/Landmen

In addition to the AAPL’s Code of Ethics, a landmanwho is also a licensed attorney is subject to the StateBar Rules, which are defined in the Texas DisciplinaryRules of Professional Conduct.

State Bar Rules Texas Disciplinary Rules of Professional Conduct

Section I – Client-Lawyer Relationship A lawyer owes the client(s) a responsibility in being

competent, keeping the client(s) informed, keepinginformation exchanged confidential and completely carryingout any legal matter the lawyer accepts or continuesemployment.

Section II – Counselor In advising or otherwise representing a client, a lawyer shall

exercise independent professional judgment and rendercandid advice.

Section III – Advocate As an advocate, a lawyer owes a responsibility to adjudicate

meritorious claims zealously, impartially, and efficiently.


Section IV – Non-Client Relationship Aside from owing a duty to client(s), a lawyer owes a duty to

make truthful statements to others, communicate clearly tothose represented and unrepresented by counsel, and respectthe rights of third persons.

Section V – Law Firms & Associations A lawyer can be subjected to discipline because of another

lawyer or non-lawyer assistant’s violation of the rules ofprofessional conduct.

Section VI – Public Service A lawyer shall not seek to avoid appointment by a tribunal to

represent a person except for good cause.


Section VII – Information About Legal Services Information, communication, and advertisements of legal

services are limited to the guidelines of the rule ofprofessional conduct.

Section VIII – Maintaining the Integrity of theProfession Lawyers must maintain the integrity of the profession by

committing to reporting professional misconduct andcomplying with standards set forth concerning disciplinarymatters.

Section IX – Severability of Rules If any provision of these rules or any application of these rules

to any person or circumstances is held invalid, the provisionsof these rules are severable.

A little about Dwight...

Dwight K. Schrute is an avid fan of hunting, antique weaponry, andGoju-Ryu karate.

Dwight vacations in Iceland each year, where he hunts werewolveswith a medieval crossbow, while dressed as a ninja.

He was a volunteer Sheriff ’s deputy…until he wasn’t.

He proudly drives a 1987 Pontiac Trans Am.

For many years, Dwight has lived on a beet farm, where he livesalone in a nine bedroom farmhouse, which includes an indoorcrossbow range.


After a lackluster career as a paper products salesman, Dwight

has decided to start a new career in the energy industry.

Dwight’s 3rd cousin, Mose, works as a rig hand for a local

operator, Scranton Oil. With the help of an embellished

recommendation from Mose, Dwight is granted an interview

with Michael Scarn, the regional land manager of Scranton Oil.


During his interview, Dwight is asked about his experience in the

energy industry. Despite a total lack of experience or knowledge,

Dwight sincerely believes his mastery of karate and the Bo staff

grant him the skills to perform any task.

Accordingly, Dwight informs Michael that he is well-versed in

“everything.” As evidence, Dwight performs a demonstration of

his karate skills, cut short when a flying kick destroys a lamp,

and punches a hole in the wall.


In awe of Dwight’s martial arts prowess, Michael agrees to hire

Dwight as an inhouse landman with Scranton Oil, but only if

Dwight will accept Michael as a student, and tutor him in karate

during their lunch hour each day. Dwight agrees, with the

stipulation that his title be “Assistant Regional Land Manager.”

After much negotiation, Michael agrees Dwight’s job title will be

“Assistant (to the) Regional Land Manager,” and welcomes

Dwight to Scranton Oil.


Dwight is promptly escorted to meet Tobey, the HR manager at

Scranton Oil. Tobey provides Dwight with an AAPL application, and

informs Dwight that Scranton Oil requires all landmen to be members

in good standing with the AAPL.

Dwight submits his application, but does not complete any of the other

necessary requirements for membership, nor does he read the AAPL’s

Code of Ethics or Standards of Practice for landmen. Although his

application should have been rejected, a fluke computer glitch occurs,

and Dwight is accidentally accepted into the AAPL as a landman.

Ethical Violations?

Based solely on the preceding facts, has Dwightcommitted any ethical violations?

Failure to become educated in profession?

AAPL Standard of Practice 1

(State Bar Rule 1.01)

AAPL Standards of Practice

Standard 1

In justice to those who place their interests in his care, aland professional shall be informed regarding laws,proposed legislation, governmental regulations, publicpolicies, and current market conditions in his area ofrepresented expertise, in order to be in a position toadvise his employer or client properly.

State Bar Rules

Rule 1.01 – Competent and Diligent Representation

(a) A lawyer shall not accept or continue employment ina legal matter which the lawyer knows or should know isbeyond the lawyer’s competence…

What Dwight Did Wrong

Failure to Become Educated

Dwight has clearly violated Standard of Practice 1, as hehas made no attempt to familiarize himself with thestandards applicable to his new profession as aLandman.

More about Dwight...

On his first day at Scranton Oil, Dwight is assigned adesk located directly adjacent to Jim Halpert’s desk.Jim is a seasoned land professional, and is responsiblefor the “Lackawanna Play,” a new prospect beingdeveloped by Scranton Oil.

Dwight notices that Jim has business cards with thetitle “CPL” after his name. Dwight has no idea whatany of the titles on Jim’s business card indicate, butwants to appear professional, and decides to have hisown business cards made.


Dwight has business cards printed that read as follows:

Scranton Oil

Dwight K. Schrute, CPL/RPL/BlackbeltAssistant (to the) Regional Land Manager

Elite Landman

Ethical Violations?


Use of CPL and/or RPL?

“Elite Landman”?

AAPL Standards of Practice 13 & 14



Standard 13

The land professional shall at all times present anaccurate representation in his advertising anddisclosures to the public.


Standard 14

The land professional shall not aid or abet theunauthorized use of the title “Certified ProfessionalLandman (CPL),” “Registered Professional Landman(RPL),” “Registered Landman (RL), “P.Land” (Canadiandesignation) and “CPL/ESA.”

State Bar Rules Rule 7.02 – Communications Concerning a Lawyer’s

Services

(a) A Lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm.

(c) A Lawyer shall not advertise in the public media or state in a solicitation communication that the Lawyer is a specialist, except as permitted by Rule 7.04.


CPL/RPL

Although Dwight was accidentally accepted into the AAPL, heis neither a CPL nor a RPL. His use of either of these titles isstrictly prohibited by Standard of Practice 14.

“Elite Landman”

Dwight has yet to finish his first day as a Landman. He is bydefinition inexperienced. Including “elite” on his businesscard is not an accurate representation, and violates Standardof Practice 13.


Jim explains to Dwight that Scranton Oil leased most of themineral owners in the Lackawanna Play a few years ago, butmany of the leases are about to expire. Dwight is given a listof mineral owners to call, and instructed to negotiateextensions.

Dwight’s first call is to Oscar Martinez. Dwightimmediately notices Oscar’s accent, and inquires as toOscar’s ethnic origins. Oscar is surprised by the question,but politely answers that he was born in Mexico, but hasbeen a U.S. citizen for over twenty years. Before Oscar caninquire as to the reason for the phone call, Dwightinterrupts and asks, “Is there a term besides ‘Mexican’ thatyou prefer? Something less offensive?”


Oscar is insulted, but remains silent. Oblivious to the offense he has caused,Dwight launches into an unsolicited dialogue regarding his fabled lineage toDavey Crockett, and his desire to someday live in the Alamo.

By the time Dwight reveals the actual purpose of his call, Oscar is fuming, andinforms Dwight that he does not appreciate his inflammatory comments.Dwight believes Oscar is overreacting, and offers to send him a free copy of thecollected works of Selena if he will calm down.

As Oscar begins to protest, Dwight curtly remarks “I’m sorry, we only dobusiness with real Americans, and I don’t speak Spanish,” and hangs up onOscar.

Still trembling with anger, Oscar immediately calls his local news station.Oscar’s experience is broadcast on the nightly news, and included in MichaelMoore’s latest documentary, “Crude Humor: The Racist World of Oil & Gas.”

Ethical Violations?


Equal Professional Services?

AAPL Standards of Practice 2, 3 & 5



Standard 5

The land professional shall not deny equal professionalservices to any person for reasons of race, creed, sex orcountry of national origin. The land professional shallnot be a party to any plan or agreement to discriminateagainst a person or persons on the basis of race, creed,sex or country of national origin.


Standard 2

It is the duty of the land professional to protect themembers of the public with whom he deals againstfraud, misrepresentation, and unethical practices. Heshall eliminate any practices which could be damagingto the public or bring discredit to the petroleum, miningor environmental industries.


Standard 3

In accepting employment, the land professional pledgeshimself to protect and promote the interests of hisemployer or client. This obligation of absolute fidelity tothe employer’s or client’s interest is primary but it doesnot relieve the land professional of his obligation to treatfairly all parties to any transaction, or act in an ethicalmanner.

State Bar Rules Rule 5.08 – Prohibited Discriminatory Activities

(a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.

(b) Paragraph (a) does not apply to a lawyer’s decision whether to represent a particular person in connection with an adjudicatory proceeding…


Failure to Provide Equal Professional Services

Dwight failed to provide Oscar with equal professionalservices, a direct violation of Standard of Practice 5.

Dwight failed to protect the interests of his employer,Scranton Oil, by refusing to allow Oscar to sign a leaseextension, thereby violating Standard of Practice 3.

Furthermore, Dwight’s actions have served to discredit theenergy industry, a violation of Standard of Practice 2.


Incredibly, news of Dwight’s conversation with Oscarnever reaches Scranton Oil, and Dwight continues hisleasing efforts.

Dwight next calls Pam Beasley. Since leasing toScranton Oil, Pam has become an active member ofthe Sierra Club, and now fears surface operations willpermanently damage the land’s natural beauty andtranquility.


Although Dwight is unaware of the proposed surface locationswithin the Lackawanna Play, he is determined to convince Pamto extend her lease.

Without hesitation, Dwight informs Mrs. Beasley that as aformer paper products salesman, he is also a forensic arborist,and assures Pam that her property is largely populated by an“endangered” species of trees protected by federal law, which willprohibit surface operations.

In reality, Dwight’s only knowledge of trees was obtained duringa childhood camping trip in a National Park, where hediscovered that combining professional-grade fireworks with adensely wooded area produces a massive forest fire.

Ethical Violations?


“Forensic Arborist”? (Whatever that means…)



Standard 6

A land professional shall provide a level of competentservice in keeping with the standards of practice in thosefields in which a land professional customarily engages.The land professional shall not represent himself to beskilled in nor shall he engage in professional areas inwhich he is not qualified such as the practice of law,geology, engineering or other disciplines.


Arborist

Dwight has represented himself as someone with anexpertise in identifying and caring for trees, a professionin which Dwight is not skilled or qualified. Byrepresenting himself as an arborist, Dwight has violatedStandard of Practice 6.

Note that Mrs. Beasley’s reliance on Dwight’srepresentations is not determinative; Dwight’srepresentation of skill is a violation on its own.


Dwight next calls Todd Packer. During the lease extensionnegotiation, Todd emphatically states he “won’t take lessthan $1000 an acre.”

Scranton Oil has authorized Dwight to pay up to $2000 anacre bonus, but expressly prohibited him from amendingthe terms of any lease.

Dwight agrees to $1000 an acre, but only if Todd also agreesto include a new lease provision granting Dwight theexclusive right to hunt werewolves on the leased property.


Todd hesitantly agrees, and the lease is extended withthe inclusion of an exclusive hunting provision.

Dwight is overjoyed, and begins watching the movie“Predator” on his work computer in preparation for hisupcoming hunt.

Dwight never tells Scranton Oil about the new leaseprovision.

Ethical Violations?


“Exclusive Hunting Rights”?

AAPL Standard of Practice 10.



Standard 10

The land professional shall not accept any commission,rebate, interest, overriding royalty or other profit ontransactions made for an employer or client without theemployer’s or client’s knowledge and consent.

State Bar Rules Rule 1.08 – Conflict of Interests: Prohibited Transactions

(a) A lawyer shall not enter into a business transaction with a client unless:

(1) The transaction and terms on which the lawyer acquires theinterest are fair and reasonable to the client and are fullydisclosed in a manner which can be reasonably understood bythe client.

(2) The client is given a reasonable opportunity to seek theadvice of independent counsel in the transaction; and

(3) The client consents in writing thereto.


“Exclusive Hunting Rights”

The extension of Todd’s lease has resulted in Dwightobtaining hunting rights he would not otherwise beentitled to. Although the dollar value of a hunting leaselimited to werewolves is debatable, Dwight hasobtained a (perceived) personal benefit on a transactionmade for his employer, without his employer’s consent.

Dwight has violated Standard of Practice 10.


Before calling the last mineral owner on his list, Angela Martin, Dwightreceives a phone call from Jan Levinson, president of Dunder-MifflinExploration.

Dwight is aware that Dunder-Mifflin is a local competitor to Scranton Oil, butis unaware that Jan formerly dated Dwight’s boss, Michael Scarn, or that sincethe relationship ended, Jan has attempted to sabotage Scranton’s operationswhenever possible.

Jan tells Dwight she is aware he is working on obtaining lease extensions in theLackawanna Play, and casually proposes that Dwight should attempt topurchase Angela Martin’s mineral interest on behalf of Dunder-MifflinExploration prior to obtaining a lease extension.

Jan promises Dwight a senior level land position with Dunder-Mifflin if he issuccessful. Dwight carefully considers the proposition, weighing it against hispersonal mantra…


Having determined that an “idiot” would reject Jan’s offer,Dwight happily accepts.

Shortly thereafter, Dwight calls Angela Martin, makes nomention of extending her lease, and convinces Angela toexecute a mineral deed in favor of Dunder-MifflinExploration.

Afterwards, Dwight informs his co-worker, Jim Halpert,that he was unable to secure an extension of Angela’s lease,as her mineral interest had been purchased by Dunder-Mifflin Exploration before he could close the deal.

Ethical Violations?


Purchasing minerals for Dunder-Mifflin?


(State Bar Rules 1.06 & 1.12)


Standard 8

The land professional shall not acquire for himself or othersan interest in property which he is called upon to purchasefor his principal, employer or client without the consent ofsaid principal, employer or client. He shall disclose hisinterest in the area which might be in conflict with hisprincipal, employer or client. In leasing any property ornegotiating for the sale of any block of leases, including landsowned by himself or in which he has any interest, a landprofessional shall reveal the facts of his ownership or interestto the potential buyer.

State Bar Rules Rule 1.06 – Conflict of Interest: General Rule

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:

(1) involves a substantially related matter in which thatperson’s interest are materially and directly adverse to theinterests of another client of the lawyer or the lawyer's firm; or

(2) reasonably appears to be or become adversely limited bythe lawyer’s or law firm’s responsibilities to another client or to athird person or by the lawyer’s or law firm’s own interests.

State Bar Rules Rule 1.12 – Organization as a Client

(a) A lawyer employed or retained by an organization represents the entity, while the lawyer in the ordinary course of working relationships may report to, and accept direction from, an entity’s duly authorized constituents, in the situations described in paragraph (b) the lawyer shall proceed as reasonably necessary in the best interest of the organization without involving unreasonable risks of disrupting the organization and of revealing information relating to the representation to persons outside the organization.


Purchase for Dunder-Mifflin

Although Scranton Oil was only seeking an extended lease,and Dunder-Mifflin was seeking the fee mineral interest,both companies were attempting to obtain an interest in thesame property.

By helping Dunder-Mifflin purchase Angela’s mineralinterest, Dwight has hindered Scranton’s chances at obtaininga lease extension on the property.



Dwight’s boss is furious when he discovers Dwightfailed to extend Angela Martin’s lease. As punishment,Dwight is banned from ever contacting anothermineral owner, stripped of his “Assistant (to the)Regional Land Manager” title, and banished to thebasement, where Scranton Oil maintains an in-houseabstract plant.

Dwight is instructed to begin running title for thePapermill Play, a new prospect that Scranton Oil hasjust begun to lease.


A few days later, Dwight received another call from JanLevinson at Dunder-Mifflin Exploration. Jan againpromises to hire Dwight as the Regional Land Managerwith Dunder-Mifflin, but requests he prove his loyalty toher once more, this time by sending her copies of thecompleted abstracts Dwight is creating. As a bonus, Janpromises to pay Dwight $500 cash for every runsheetprovided.

Dwight gleefully agrees, seeing this as an opportunity to getback at his boss, Michael, for banishing him to thebasement and stripping him of his title.

Ethical Violations?


Runsheets for Scranton and Dunder-Mifflin?




Standard 4

The land professional shall not accept compensationfrom more than one principal for providing the sameservice, nor accept compensation from more than oneparty to a transaction, without the full knowledge of allprincipals or parties to the transaction.

State Bar Rules Rule 1.04 – Fees

(a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.


Runsheets for Scranton and Dunder-Mifflin

Dwight was providing identical services to twoprincipals and being paid by each of them for that work.



Dwight continues running title in the basement, andeventually discovers that his great-grandfather, ManheimSchrute, owned a mineral interest in one of the tracts in thePapermill prospect, but died forty years ago. Dwightinvestigates and learns his great-grandfather died intestate,and Dwight is his sole heir. Dwight realizes he hasinherited the mineral interest, even though his interest isnot reflected in record title.

Without disclosing his discovery to either Scranton Oil orDunder-Mifflin Exploration, Dwight continues to preparean abstract for the tract in which he inherited a mineralinterest, and sends completed runsheets to bothcompanies.

Ethical Violations?


Services on Lands Personally Owned?




Standard 7

The land professional shall not undertake to provideprofessional services concerning a property or atransaction where he has a present or contemplatedinterest, unless such interest is specifically disclosed toall affected parties.

State Bar Rules Rule 1.06 – Conflict of Interest: General Rule

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:

(1) involves a substantially related matter in which thatperson’s interest are materially and directly adverse to theinterests of another client of the lawyer or the lawyer's firm; or

(2) reasonably appears to be or become adversely limited bythe lawyer’s or law firm’s responsibilities to another client or to athird person or by the lawyer’s or law firm’s own interests.


Failure to Disclose Ownership

Under the Standards of Practice, Dwight had a duty todisclose his ownership interest in the tract as soon as hebecame aware of his ownership interest.

Because Dwight continued providing professionalservices regarding the tract without disclosing hisownership interest to Scranton or Dunder-Mifflin,Dwight has violated Standard of Practice 7.


A few weeks pass, and Scranton Oil begins to receivephone calls from the mineral owners that dealt withDwight, inquiring when they would receive theirbonus checks.

This was a great surprise to Scranton Oil, as it hadprovided Dwight with a number of blank, signedchecks, which Dwight had been instructed to fill-outand mail to each mineral owner who executed a leaseextension.


After investigation, Scranton Oil discovered Dwighthad personally cashed each check and “invested” themoney in hundreds of individual Powerball lotterytickets.

Dwight explains that his mastery of Goju-Ryu karategrants him the ability to predict the future, includingthe winning Powerball numbers. He promises eachmineral owner will receive a much larger sum ofmoney in the near future as a result of his “investment”made on their behalf.

Ethical Violations?


“Investing” Mineral Owners’ Bonus Payments?



Standard 11

The land professional shall assure that monies cominginto his possession in trust for other persons, such asescrows, advances for expenses, fee advances, and otherlike items, are properly accounted for and administeredin a manner approved by his employer or client.


“Investing” Bonus Payments

Dwight did not obtain permission from either hisemployer, Scranton Oil, or any of the mineral ownersentitled to payment before he decided to “invest” theirbonus payments.

Absent permission from Scranton Oil and each mineralowner, Dwight has violated Standard of Practice 11.


While chastising Dwight about his “investment” scheme,Michael notices a large package on Dwight’s desk, addressed toDunder-Mifflin Exploration. Michael opens the package andfinds copies of numerous runsheets Dwight has created forScranton Oil, using Scranton’s in-house abstract plant.

Michael is irate, immediately terminates Dwight’s employmentwith Scranton Oil, and reports all of Dwight’s ethical violationsto the AAPL.

The AAPL contacts Dwight and asks him to submit a writtenstatement confirming or denying the ethical violations he isaccused of committing. Dwight refuses to comply.

Ethical Violations?


Presentation of Evidence?




Standard 9

If a land professional is charged with unethical practiceor is asked to present evidence in any disciplinaryproceeding or investigation, or has direct knowledge ofapparent unethical misconduct of another member, heshall place all pertinent facts before the proper authorityof the American Association of Professional Landmen.

State Bar Rules Rule 8.03 – Reporting Professional Misconduct

(a) Except as permitted in paragraphs (c) and (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.

State Bar Rules Rule 8.04 – Misconduct

(a) A lawyer shall not:

(4) Failure to timely furnish to the Chief DisciplinaryCounsel’s office or a district grievance committee aresponse or other information as required by the TexasRules of Disciplinary Procedure, unless he or she in goodfaith timely asserts a privilege or other legal ground forfailure to do so.


Refusal to Present Evidence

Dwight is breaking the rules while breaking the rules.While being charged with multiple violations of theStandards of Practice, Dwight has managed to violateyet another Standard by refusing to provide evidenceregarding his alleged violations.



Now unemployed, Dwight calls Jan to collect on herpromise of employment with Dunder-Mifflin. Notsurprisingly, Jan has changed her mind, and withdraws heroffer of employment.

In a feeble effort to gain Jan’s favor, Dwight offers to give Janthe last runsheets he created while employed by ScrantonOil, and smuggled out in his briefcase after being fired.

Jan is touched by Dwight’s continued sabotage of ScrantonOil, and agrees to accept the runsheets in return for aposition with Dunder-Mifflin Exploration.

Ethical Violations?


Conflicting Business Activity?




Standard 12

The land professional shall avoid business activity whichmay conflict with the interest of his employer or client orresult in the unauthorized disclosure or misuse ofconfidential information.

State Bar Rules Rule 1.05 – Confidentiality of Information

(a) “Confidential information” includes both “privileged information” and “unprivileged client information”. “Privileged information” refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

State Bar Rules Rule 1.05 – Confidentiality of Information

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a formerclient to:

(i) a person that the client has instructed is not to receivethe information; or

(ii) anyone else, other than the client, the client’srepresentatives, or the members, associates, or employees of thelawyer’s law firm.

State Bar Rules Rule 1.05 (contd.)

(2) Use confidential information of a client to the disadvantageof the client unless the client consents after consultation;

(3) Use confidential information of a former client to thedisadvantage of the former client after the representation isconcluded unless the former client consents after consultationor the confidential information has become generally known.

(4) Use privileged information of a client for the advantage ofthe lawyer or of a third person, unless the client consents afterconsultation.


Conflicting Business Activity

Dwight has provided a competitor to his former employerwith confidential information (identity of unleased mineralowners).

Even though Dwight was not employed by Scranton Oil whenhis actions occurred, Dwight has not waited a reasonableamount of time before acting on information he acquiredwhile working for Scranton Oil or acquired a waiver fromScranton Oil regarding this information.



As agreed, Dwight is hired by Dunder-Mifflin Exploration. However, his constantremarks about his former boss, Michael, are quickly becoming more than Jan cantolerate. Unwilling to hear another word about Michael, Jan fires Dwight withoutexplanation.

Feeling betrayed, Dwight sits alone in his farm house, drinking a milk jug filled with hishome-brewed beet beer (a Schrute family delicacy). After much musing, Dwightconcludes that Jan is responsible for his troubles.

Filled with anger and beet beer, Dwight grabs his trusty crossbow and drives to Dunder-Mifflin’s headquarters, where he intends to vandalize the building by shooting bolts(“arrows” to non-crossbow’ers) through the building’s windows. Unfortunately, one ofDwight’s arrows flies through a window, and directly into the office break room, piercinga toaster. An electrical fire is started, and the building burns to the ground.

Dwight is charged with and convicted of “Negligent Destruction of a CommercialBuilding,” a felony in Dwight’s state.

Ethical Violations?


Felonies & Other Serious Crimes?




Standard 15

The land professional shall not participate in conductwhich causes him to be convicted, adjudged or otherwiserecorded as guilty by any court of competent jurisdictionof any felony, any offense involving fraud as an essentialelement, or any other serious crime.

State Bar Rules Rule 8.04 – Misconduct

(a) A lawyer shall not:

(1) Violate these rules, knowingly assist or induce anotherto do so, or do so through the acts of another, whether ornot such violation occurred in the course of a client-lawyerrelationship;

(2) Commit a serious crime or commit any other criminalact that reflects adversely on the lawyer’s honesty,trustworthiness or fitness as a lawyer in other respects.


Felony

Dwight has clearly lost it. Standard of Practice 15prohibits engaging in conduct that constitutes a felony.

Dwight should probably look for a new line of work.

DON’T BE LIKE DWIGHT

DWIGHT IS UNETHICAL

Questions or Comments?

Drew Potts

[email protected]

drew potts - kirby, mathews & walrath, pllckmwenergylaw.com/assets/presentations/approved/15...

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