Florida Supreme Court adopts new rules addressing collaborative law practice

The Florida Supreme Court has adopted new rules addressing collaborative family law practice.  You can read the details here.

Judge finds party waived privilege by placing information on unprotected file sharing website

Earlier this month a federal magistrate judge in Virginia held that placing privileged materials on an unprotected file-sharing site waived a plaintiff's attorney-client privilege and work product protection for those materials.  The case is called Harleysville Ins. Co. v. Holding Funeral Home, Inc.  (also here).  For more details, go to 33 Law. Man. Prof. Conduct 76.  The ABA Journal has more information here.

Although some jurisdictions are divided on the issue of whether accidental disclosure automatically waives the privilege, in this case the judge held that the party's actions "were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to imagine an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."

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.

Utah Supreme Court dismisses professional responsibility concerns over case in which plaintiff and defendant were the same person

I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility.  The case is Bagley v. Bagley and you can read the full opinion here.

Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later.  Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms. Bagley sued herself in an attempt to compel her insurance company to indemnify her.  Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time. 

Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.

Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.

The trial court granted a motion to dismiss, but the court of appeals reversed. 

On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”

In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant was (were?) represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest.  Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.”  It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her.  Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.

The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.”  (See footnote 37 of the opinion)

You can read the full opinion here.

Virginia clarifies duty of candor regarding possible perjury

The Legal Profession Blog is reporting that the Supreme Court of Virginia has approved amendments to Rules 1.6 and 3.3. The amendments clarify a lawyer’s obligations when a client discloses his or her intent to commit perjury in advance of trial, and whether the lawyer can withdraw from the representation before the client’s intended perjury occurs.  You can read the amendments here.

Can an attorney disclose very old confidential information because of its historical value? -- UPDATED

September 10, 2016

If you used the textbook by Prof. Stephen Gillers in your Professional Responsibility course (as a student or professor), you may remember the hypothetical question involving a firm that finds among its old files certain client files involving John Wilkes Booth.  Could the firm turn those files over to the Smithsonian or another institution?  Should the interests of history create an exception to a lawyer’s duty of confidentiality?

It is an interesting question on whether we should recognize yet another exception to the duty of confidentiality to which we did not have a definitive answer...  Until now.  Earlier this year, the Maine Professional Ethics Committee issued an opinion on this very question.

Here is the question, as explained in the opinion,  

Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney’s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?

And here is the conclusion:

In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.

You can read the full opinion here.


Thanks to the Legal Profession blog for the information.

UPDATE 9-16-16:   Faughnan on Ethics has a comment on the story here.

California opinion reaffirms traditional view on the extent of the duty of confidentiality

Back in July, 2015 I reported that the State Bar of California Standing Committee on Professional Responsibility had issued an "interim" opinion on confidentiality and was seeking comments on it before making it official.  The opinion addresses the question of whether an attorney has a duty to keep confidential information that is publicly available.

As I reported back then, the general principle has always been that there is a difference between information that is publicly available and information that is "generally known." If the information is generally known, then you can say there is nothing to protect - because the information is known already. But not all publicly available information is generally known. These principles had always been generally accepted and understood until the Virginia Supreme Court decided Hunter v Virginia in 2013, a heavily criticized outlier case in which the court surprisingly held otherwise.

On that point, California's interim ethics opinion reaffirmed the old principle concluding that "[a] lawyer may not disclose his client’s secrets, which include not only confidential information communicated by the client to the lawyer, but also publicly available information that the lawyer obtained during or related to the professional relationship which the client has requested to be kept secret or the disclosure of which might be embarrassing or detrimental to the client."

More than a year later, the interim opinion has been officially published as Formal Opinion 2016-195 and it is available here.

Professor Lisa Needham has posted a good short comment on the opinion.  [As a bonus, in the process she also criticizes Avvo's chief legal ethics officer, something I have done a number of times too.]

Harvard Law School professor Laurence Tribe is heavily criticized for tweet that shows he may not understand confidentiality or privilege

I am late to post on this story about something that happened last week and which has received a lot of attention already, so I will keep it short.   Last week, Professor Laurence Tribe, Harvard's well known constitutional law professor, tweeted this message:  "I have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged."

With those "less than 140 characters" Tribe opened the door to an online discussion that resulted in general condemnation of his knowledge of the law and his motives.  I am sure he did not expect that, but he definitely walked right into it.

I will let others explain the many problems with Tribe's comment which include confusing the principles of confidentiality and privilege, and possibly not understanding the duty of confidentiality.

Here are links to some of the comments I have seen on the issue:

Michael Krauss, of George Mason Law School

Scott Greenfield, criminal defense blogger, who then posted a follow up here.

Professor Steve Lubet, at the Faculty Lounge

The ABA Journal online

The Legal Ethics Forum

As usual, by the way, it is worth to read the readers' comments under all these stories.

ABA approves resolution urging recognition of evidentiary privilege to cover communications between prospective clients and lawyer referral services

The ABA House of Delegates just adopted a Resolution, which urges courts and legislatures to adopt rules or enact statutes that would establish an evidentiary privilege for communications between bar-sponsored lawyer referral services and the clients who contact them for assistance in locating representation.

New York State Bar ethics opinion addresses ethics issues when a lawyer copies a client with communications to opposing counsel

A recent New York State Bar Association Ethics Opinion (available here) addresses whether a lawyer must obtain the consent of opposing counsel before he or she can blind copy the client on correspondence to opposing counsel. The opinion concludes that "[a] lawyer may blind copy a client on e-mail correspondence with opposing counsel, despite the objection of opposing counsel.  Because a lawyer is the agent of the client, sending such a blind copy is not deceptive.  However, there are practical reasons why the lawyer should consider forwarding the e-mail correspondence to the client rather than using “bcc”." 

Lawyer Ethics Alerts Blog has more information here.

Ohio's Board on Professional Conduct issues opinion on duty to report misconduct, which is different under Ohio rules

Back in February I wrote a comment on the first ethics opinion of the year by the Ohio Board on Professional Conduct in which I argued the opinion was based on faulty analysis.  As I looked more into the issue, I realized the problem was not with the opinion but with the text of the Ohio rules which is different than that of the Model Rules.  I later wrote an article about it.

Just about a month ago, the Board issued its second opinion of the year and it again illustrates that another of Ohio's rules is different from the text adopted in most jurisdictions.  The opinion (available here) attempts to clarify an attorney's duty to report misconduct under rule 8.3.

Ohio's version of Rule 8.3 states (in relevant part) that "A lawyer who possesses unprivileged knowledge of a violation of the Ohio Rules of Professional Conduct that raises a question as to any lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform a disciplinary authority empowered to investigate or act upon such a violation."

So here is my first question:  what is "unprivileged knowledge"?  Knowledge can't be privileged or unprivileged.  What is privileged is the information about which one has knowledge.  But that's just a matter of language.  It seems to me it is clear that what the rule means to say is "a lawyer who has knowledge of privileged information.."

The Board appears to read the text this way too since it states in the opinion that in order to determine if there is a duty to disclose lawyers should consult rule 1.6 to determine whether information is privileged or unprivileged.

Yet, this statement does not make much sense since Rule 1.6 does not address that question.  Rule 1.6 defines the duty of confidentiality, not the extent of the privilege, which is a matter of the law of evidence.  The Board seems to confuse the important distinction between confidentiality and privilege.

For this reason, it is not entirely clear that the Board realizes that, as it is drafted, Ohio's Rule 8.3 (on reporting misconduct) requires attorneys to disclose misconduct even if the misconduct is discovered as a result of a confidential communication as long as the information is not privileged.

Model Rule 8.3 states that a lawyer is not obligated to disclose misconduct if it would require disclosure of confidential information (protected under MR 1.6).  In contrast, in Ohio a lawyer is obligated to disclose the misconduct even if doing so would require disclosure of information protected by the duty of confidentiality under Rule 1.6, as long as the information is not privileged.

In addition, the Rule in Ohio applies if the information raises a question as to a lawyer's honesty, trustworthiness or fitness to practice, while according to the Model Rules, the duty to report only applies if the information raises a substantial question as to those same elements.

In other words, for these reasons, the duty to disclose misconduct is much broader in Ohio than in other jurisdictions that have adopted the language of the Model Rules.

I just posted a short article on SSRN on Indiana's opinion regarding confidentiality and reporting child abuse

Last year, the Ethics Committee of the Indiana Bar Association issued an opinion on whether an attorney has to comply with the state's mandatory child abuse disclosure statute.  I did not like the opinion and wrote about it here and here.  I looked further into it and wrote a short article.  If you are interested, you can read it on SSRN.  Feel free to send me your comments.

Podcast on technology and competence

There has been a lot of discussion on whether lawyers meet their duty of competence when it comes to "technology."  For some of my recent posts, and links, on the subject go here, here and here.

Adding to the list, the most recent podcast in the Legal Talk Network is features lawyer and legal technology blogger Bob Ambrogi talking about the lawyer’s duty of technology competence, how it applies to discovery and confidentiality, and how technology can really benefit lawyers too. You can listen to the program by hitting the play button below or by going here.

ABA issues new ethics opinion on what to do when lawyers received a subpoena for client's documents

 The ABA Standing Committee on Ethics and Professional Responsibility recently issued a new opinion which provides some guidance to lawyers receiving subpoenas for client documents or information. You can download Formal Opinion 473 here but do so soon because once the opinion goes into the "archive" it will be available for free only to members of the Center for Professional Responsibility.

For comments on the opinion go here and here.

May lawyers reveal conflidential information to prevent a client's suicide?

The Virginia State Bar recently addressed the question of whether an attorney can disclose confidential information in order to help prevent a client from committing suicide.

Although Virginia ethics rules don’t specifically address a client’s threat of suicide, a 1984 Virginia ethics opinion said it is not improper for a lawyer to disclose to appropriate mental health authorities a client’s intent to commit suicide.  Therefore, according to an update to the Virginia State Bar’s list on frequently asked legal-ethics questions, a lawyer may take reasonably necessary protective action when the lawyer reasonably believes a client’s suicide threat is credible, adding that the rules “should be interpreted to allow the lawyer to contact the client’s family, close friends, mental health care providers, or emergency medical services personnel so that an intervention can be made to save the client from harm.”   Check out question and answer #26 here.

The Legal Profession blog has more information and some links here.  

On the issues raised by the need to reply to negative reviews

As you probably know, consumers often take to the internet to review products and services.  These reviews can be helpful to other consumers considering buying or seeking similar products or services.  Sometimes, when the reviews are negative, those who are criticized can and do reply to "defend" themselves.  Can a lawyer do the same?

There are law review articles and other literature on this out there.  There is no general reason to say a lawyer can't respond to a negative review, but a lawyer clearly has to be careful not to violate the rules of professional conduct when doing so.  In particular, lawyers have to be careful not to disclose confidential information when replying to a review, and since the category of confidential information is so broad, it may prove to be very difficult to reply to a review without doing so.

It can be argued that the exception to Rule 1.6 that allows attorneys to disclose confidential information to the extent necessary to respond to a claim filed against them should apply to allow attorneys to defend themselves from attacks on negative reviews, but I think that is a stretch given the current language of the rule.  As explained by a recent post in Attorneys for the Profession,

Restrictions on lawyers' ability to respond to criticism do raise some troubling concerns. Negative online reviews by clients remain on the Internet indefinitely and may even dominate an attorney's search engine results for several years, available to anyone, anywhere there is Internet access with a few "clicks." So even though the New York State Bar Ethics Committee concluded in its Opinion 1032 that the exception to RPC 1.6 should not be "interpreted in a manner that could chill…discussion," the reality is that prohibiting attorneys from fully defending against such potentially ruinous online comments does just that, by allowing the disgruntled client's side of the story to go unchallenged. A strong argument can be made that the self-defense exception to Rule 1.6 that exists in every state except California should be extended to allow lawyers to go online to defend themselves to the extent reasonably necessary in order to correct false or misleading reviews without having to fear potential disciplinary consequences. But until such a change is made to a state’s RPCs, or the exception is reinterpreted, lawyers should remember that the rules currently do not permit the use of confidential information in responding [to online criticism]. . .

 You should read the full post here.

ABA and Rocket Lawyer launch on-demand legal advice pilot program

About three weeks ago, the American Bar Association and Rocket Lawyer announced the creation of a pilot program that provides on-demand legal advice for small businesses called ABA Law Connect.  It is currently being tested in Illinois, Pennsylvania and California.  Program users can access Rocket Lawyer’s system to post a legal question online which will be answered by an ABA member-lawyer for a flat rate of $4.95 (a rate that will also include a "follow up question").  According to the press release,  "[t]hose interested in additional legal advice can discuss legal matters further in a lawyer-client relationship."

This initiative is part of the ABA's efforts to improve access to legal services.  The goal is great, but I have a number of concerns about it.  I am, for example, not sure that the statement quoted above about the lawyer-client relationship reflects the basic principles about how an attorney client relationship can be formed.  It seems that it assumes that the $4.95 questions merely creates (or can only create) a prospective client type relationship (regulated under Rule 1.18), but that is not necessarily the case, as anyone who has read Togstad v Vesely or Perez v Kirk & Carrigan knows.  And, as those cases show, the consequences of not understanding this can be significant.  I am also not encouraged by the fact that Rocket Lawyer's website provides its consumers information that is not entirely accurate on the distinction between the attorney-client privilege and the duty of confidentiality. The blog IPethics and INsights was the first one to pick up on the concerns in a post listing some of the issues raised by the pilot program.

The new buzzword in Legal Ethics these days seems to be "innovation" and the ABA is trying to find ways to encourage innovation.  Yet we shouldn't rush to try to be innovative at the risk of creating other problems.  It reminds me of the Direct TV commercial that ends with "... not the way I would have gone, but it is innovative.  And that's what we want around here..."

I have no problem with innovation, or change or new initiatives and I most certainly don't have a problem in trying to find ways to provide access to legal services for people who can't afford them, but whatever is done should be done with a full understanding of the professional responsibility principles involved and of the possible consequences for possible mistakes. 

UPDATE 2-21-16:  In what is an embarrassing turn of events, the ABA has now quietly terminated its partnership with RocketLawyer and dismantled LawConnect.  Go here for the update,

Article on Technological Incompetence

A couple of days ago I posted a comment on a new study that shows a vast majority of lawyers may be incompetent when it comes to protecting confidential information sent over the internet.  Today, Lawyerist has a good short article on some of the most important or common issues related to competence related to technology.  It discusses using Google, being efficient, data security, e-discovery and the use of social media as evidence in trials, among others.  Take a look at the article here.

Follow up on the mess created by Indiana opinion on confidentiality and whether there is a duty to disclose suspected child abuse

A little over a month ago, I reported that the Indiana State Bar Association recently issued a new opinion that concludes that absent client consent an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary to prevent reasonably certain death or substantial bodily harm.   As I argued back then, the opinion is wrong because it suggests there is a duty to keep information confidential when the clear text of the applicable rule states a lawyer can disclose it.  Go here to read my original post.

Today, the Chicago Daily Law Bulletin has an article pointing out that "[s]ome child welfare officials say there could be dangerous fallout from an Indiana State Bar Association committee’s opinion that lawyers aren’t bound by a state law requiring anyone who suspects child abuse to immediately report it."  I agree.

The article quotes Sandy Runkle-DeLorme, director of programs at Prevent Child Abuse Indiana, saying "[b]ecause it’s an opinion and not a change in legislation, I hope that people do what they need to do, which is follow the law.”

Sure you always want people to "do the right thing," but here is the problem:  Because of the opinion, lawyers may fear they will be subject to sanctions if they disclose the information (as required by the law and permitted by the professional responsibility rule) because the disciplinary authorities may later determine that the lawyer should have acted according to the conclusion in the opinion.

On the other hand, if the lawyer follows the opinion, he or she could be subject to misdemeanor charges for violating the law.  Damn if you do; damn if you don't.

Thus, oddly, the opinion needlessly puts at risk the safety of both children and attorneys at the same time. 

UPDATE April, 2016:  I wrote an article about this topic and you can see the draft at SSRN.

Apparently, over 70% of lawyers don't know how to protect confidential information sent over the internet

Since the ABA adopted an amendment to the comment of Model Rule 1.1 (on competence) to explain that being competent requires lawyers to understand "the benefits and risks associated with relevant technology" there has been a lot of discussion on how lawyers can meet the requirement.  I posted a couple of podcasts on the subject (here and here).  Also, as everyone probably knows, another rule specifically requires lawyers to use reasonable care in protecting the confidentiality of client data.

Given these rules, you would assume that lawyers who do not understand the technology they are currently using to transfer client information can be found to be incompetent.

Yet a recent according to the 2015 edition of the annual Legal Technology Survey Report, 71% of lawyers rely only on a confidentiality statement in the body of messages as the security precautions they use when sending confidential or privileged communications to clients via email.

Now think about this.  Is placing a "confidentiality statement" at the end of a message using reasonable care to protect the confidentiality of the information.  By the time the reader gets to the statement, the information has already been disclosed!  As someone else has already pointed out, this is akin to putting a note inside a box that says, “Do not open this box.”

Law Sites and Lawyerist have comments on this here and here.  Getting right to the point, Lawyerist states:  "If you think a confidentiality statement in your email counts as a precaution when you are sending confidential information, you are incompetent. We can argue about whether precautions are necessary in the first place, but there is no argument to be made that words constitute a precaution. Disclaimers (including confidentiality statements) are pointless." Go here for more and links.  Likewise, Professional Liability Matters concludes "you are not cyber ready."