Saturday, February 18, 2017

Metadata Fair Game in Texas?

As reported in Legal Ethics in Motion, a recent opinion of a Texas bar panel concludes that there is no duty to inform opposing counsel that that opposing counsel sent a document containing metadata.   Moreover, Texas rules do not prohibit searching for and in extracting metadata from documents. Of the nineteen jurisdictions that have issued opinions with specific requirements regarding attorneys’ obligation when transmitting or receiving documents containing metadata, Texas is only the third state to opine that its rules do not require notification to the sender of the document.

For a current survey of the state of the law regarding metadata, check out this page in the ABA's website.  For more on the opinion in Texas, go here.

Illinois State Bar Association issues Opinion on using cloud services to store client information

Back in October, the Illinois State Bar Association (ISBA) issued a Professional Conduct Advisory Opinion stating that a lawyer may use cloud-based services to store client information as long as the lawyer takes reasonable measures to ensure that the client information remains confidential and is protected from breaches.

Carefully choosing an internet cloud space provider is, of course, the first step a lawyer must take in order to comply with the duty.  But, it is important to note that the opinion clearly states that a lawyer does not comply with the obligation to protect the client information by merely selecting (however carefully) a reputable provider.   Thus, the opinion concludes that lawyers must conduct periodic reviews and regularly monitor existing practices to determine if the client information is adequately secured and protected.  This means lawyers can not simply rely on the providers, the lawyers themselves must do something.  And to do something, the lawyers must know what it is they are dealing with.  As I say to my students, lawyers must become personally knowledgeable in computer science of employ someone who is.

States continue to adopt the ABA's suggested language on a duty of competence related to "technology" and this opinion, obviously, follows the trend.  All lawyers are now expected to know about, and understand, the advantages and the risks of using technological advances such as cloud storage.  As reported recently, Florida lawyers are now required to take CLE credits on technology issues.  As technology advances, lawyers are expected to keep up.

You can read the ISBA opinion here.  For information on the current state of the law regarding ethical issues and cloud computing, check out this page in the ABA's website.

Thanks to Ethics in Motion for the update and the link.

Sunday, February 12, 2017

Florida adopts duty of technology competence and a requirement regarding technology CLE -- Updated

October 1, 2016. 
Last week the Supreme Court of Florida became the 25th state to adopt the duty of technological competence that the ABA adopted in its recent amendments to the Model Rules.  That's not terribly surprising as the language of the Model Rules usually eventually finds its way into state rules.

However, the Florida Supreme Court did go a bit further.  As explained by the court, the amendment "add[s] language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.

Go here for more information and a copy of the Court's order.   The ABA Journal online also has the story here.

Interestingly, once it is decided that having knowledge about technology is part of the duty of competence, it follows that it will become an element of the standard of care for malpractice cases. 

UPDATE 2/12/17:  The ABA Journal has a story here.

A recently launched company helps consumers find lawyers based on their win rates

Law Sites has a story and a critique of a recently launched company helps consumers find lawyers based on their win rates.  The ABA Journal also has the story here.  Although I believe the company is genuinely trying to provide access to lawyers for people who don't necessarily know how to find a good lawyer, I think this approach is, to put it mildly, dumb.  Maybe with some major changes they can come up with something that will provide better information for consumers, but the initial idea does not make much sense to me.

The first time the idea was discussed, about a year ago, when a different company proposed the same approach, it was received with negative reviews and the company abandoned the idea.

There are many reasons why using "winning records" as a measure of attorney quality.  First, not all legal services can be measured in terms of wins and losses.  Second, the vast, VAST, majority of cases don't go to trial, so any win-loss records based on trial results only measures a minimally small number of litigated cases.  Third, in those cases that settle, both clients can easily feel they got a "win" when their lawyers exceed their expectations as to the terms of the settlement.  An approach to measuring skill based on winning records does not take into account negotiation skills which, needless to say, are important in litigation. A defendant's lawyer who gets a settlement that saves the client a lot of money may be much more skilled than a plaintiff's lawyer who claims to have "won" the settlement. Simply stated "winning" or "losing" if it can be identified as an actual result to begin with, is not a reliable measure of lawyering skill. Providing consumers with such limited and misleading information may actually be counterproductive. 

Ethical Considerations When Switching from Criminal Defense to the Prosecution

Here is a new short article on ethical considerations when switching from criminal defense to the prosecution published by the New York Legal Ethics Reporter.

Saturday, February 11, 2017

Ethical Implications of Emergent Technologies

Last week I discussed the comment to Model Rule 1.1 which makes it an element of the duty of competence to understand, and stay current on, issues related to "technology."  As if on cue, yesterday the New York Legal Ethics Reported posted a short article with an update on some of the issues.  So, to help you comply with your duties under MR 1.1, here is the link.  You are welcome!

Thursday, February 9, 2017

ABA approves new rule on CLE

Just a few days ago, the ABA House of Delegates adopted a new Model  Rule  for  Minimum Continuing Legal Education (MCLE).  You can find the text of the rule and the report in support of the proposal here.

Sunday, January 29, 2017

Idaho Supreme Court abandons actual innocence requirement for legal malpractice actions against former criminal defense attorneys

Just about a year ago I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:
We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.
This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don't know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know. 

Thursday, January 26, 2017

Illinois Supreme Court adopts 'proactive management-based regulation'

Yesterday, the Illinois Supreme Court announced rule amendments that make Illinois the first state to adopt so-called “proactive management based regulation” (PMBR), a system designed to prevent ethical missteps by requiring lawyers without malpractice insurance to review their operations. For the text of the changes, see Amended Rule 756(e).  The Illinois State Bar Association website has more detailed information about the program here.

Saturday, January 21, 2017

Forthcoming law review article on the need to re think norms, duties and the notion of value in legal services

Readers of the blog might be interested in this forthcoming law review article: Restraining Lawyers: From 'Cases' to 'Tasks' by Morris Ratner from the University of California Hastings College of the Law, which will be published by the Fordham Law Review. Here is the abstract:
Developments in the domains of procedure and private contract highlight a continuing shift in authority away from lawyers and towards courts and clients accomplished by a conceptual downshift from “cases” to “tasks.” The 2015 amendments to the Federal Rules of Civil Procedure limit attorney and party discretion by further empowering the trial court judge to dissect, assess the value of, and sequence case activity, including discovery. At the same time, in the private sphere, sophisticated clients aided by advances in project and information management are controlling legal spend by unbundling cases into tasks. From that position, they can source projects to low-cost providers. Clients are also increasingly demanding litigation budgets and seeking value-based pricing, both of which work best if there is heightened communication between lawyer and client regarding the means to be pursued to achieve litigation aims. These regulatory and market restraints on lawyers and lawyer-driven adversarialism, while pointing in a similar direction, differ fundamentally in terms of their reach, efficacy, and fairness. Despite their differences, these developments in tandem have the potential to inspire the creation of new norms and duties calling on litigators to think more deeply and inclusively about the value of litigation tasks from the perspective of court and client.