The last time we heard from former Trump campaign lawyer Jenna Ellis she had just been suspended for 3 years for conviction related to her role in the attempt to overturn the 2020 presidential election. See here.
She is back in the news today, this time for pleading not-guilty to forgery, fraud and conspiracy charges related to alleged efforts to overturn the 2020 election results in Arizona. See here.
Suppose Lawyer A is in litigation and, in response to a request for documents, opposing counsel (Lawyer B) sends a link to a file stored in a service like Dropbox.* When Lawyer A opens the file using the link, he or she discovers the link provides access to B's client's documents which were not expected to be disclosed and are likely to be considered confidential.
This is what happened in a recent case in New York called Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC (May 30, 2024), in which the lower court determined that Lawyer A was required to notify Lawyer B that the link contained folders that "counsel knew or should have known were confidential or privileged." The court imposed a sanction on defendants and their counsel for accessing and downloading the folders from Dropbox.
The order was affirmed in an opinion (available here) that is about seven sentences long. It cites, among other things, NY's rule 4.4(b) which is based on the equivalent Model Rule which states that "[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."
So, going back to our initial question: in those circumstances, Lawyer A had a duty to inform Lawyer B that Lawyer B had inadvertently disclosed documents. That much is clear. But nothing else is, and the incident raises a number of interesting question not addressed by the court.
First of all, why does the court refer to the documents as privileged? The court refers to the documents in question as "corporate files." What were these documents? If they were corporate records that the client gave the lawyer to store, there is no reason to believe that they are protected by the attorney-client privilege, so calling them so would be a mistake. But I am willing to proceed on the assumption that even if not privileged, they could be considered confidential.
Next, in addition to the duty to inform the other side of their mistake, did Lawyer A have a duty to delete the link immediately or could Lawyer A have looked at the documents to confirm they were privileged before doing anything else? The rule does not address that, and the comment to the Model Rule explicitly states that the rule does attempt to decide whether the lawyer who receives the information has a duty to return (or in this case delete) the document (or link to it).
The court's opinion suggests that the lawyer had a duty "to sequester the inadvertently disclosed files" (which I guess means the lawyer could keep them but not look at them) but the court does not cite anything in support of this suggestion.
And then there are the questions related to the conduct of the lawyer who sent the link to begin with, which the court does not discuss. It can be argued that this lawyer violated their duty of confidentiality and their duty of competence by disclosing protected information by mistake. Could the lawyer be subject to discipline for this? In theory, Yes; absolutely. But. as you know, the reality is that an isolated act of negligence will not likely lead to discipline.
Could the lawyer be liable in tort for negligence? Again, in theory yes since the conduct is clearly a breach of duty, but whether there is an actionable cause of action depends on whether the conduct caused an injury and it does not sound that that was the case in this instance. Lucky for the lawyer!
I am willing to bet that the ABA has issued an ethics opinion exploring some of the issues that arise out of a situation like this and the application of a rule like Model Rule 4.4(b) but I have not searched for it.
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* If you don't know what Dropbox is, this post is for you because you may be in violation of the rule regarding competence since competence requires you to at least "keep abreast of . . . the benefits and risks associated with relevant technology" and Dropbox is pretty old technology.
Back in November 2023 I reported that the Illinois Supreme Court Rules Committee held a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g). You can read my comments about the hearing and the proposal here.
Yet, I had not seen anything about the proposal since then. So, I was very surprised when I read in Faughnan on Ethics that the proposed amendment was officially adopted and that the new rule would go into effect in July. See here.
I say I was surprised not because I was surprised to hear that the new rule was adopted but because I have not seen it reported anywhere here in Illinois!
If you are a long time reader of this blog you know that I have criticized the Model Rule and the versions of the rule adopted in some other jurisdictions for being vulnerable to attack under First Amendment principles. The adopted language in both the rule and its comment in Illinois is not as robust as the rule adopted in New York, but it is not bad.
The original proposal included explicit language in the text of the rule itself stating that the rule would not apply to Constitutionally protected speech or conduct. Unfortunately, that language was deleted from the rule and moved to the comment.
Another issue with the adopted language is that while the text of the rule states that it is limited to conduct "in the practice of law", the explanation of what "in the practice of law" means included in the comment is the same used in the ABA Model Rule's comment to describe conduct "related to the practice of law" which is a broader concept.
We will have to wait and see how the rule is applied and interpreted, and whether it will get challenged as others have in other jurisdictions.
The new Illinois Rule appears in Rule 8.4(j). You can see a redline version here, and a clean version here.
If you are a long term reader of this blog you know that I have been following the cases against many of the lawyers for the Trump administration, the most famous of whom is probably Rudy Giuliani. And, you also probably know that his license was suspended in both New York and the District of Columbia while his disciplinary proceedings are pending.
Today I am here to report that, as expected, the District of Columbia Board on Professional Responsibility has recommended disbarment. The Legal Profession blog has a summary and a link to the decision here.
More coverage in The Hill, MSNBC and The Conversation.
Do you remember Jenna Ellis, a relatively insignificant member of the "Kraken team" of lawyers for the Trump campaign who paraded around lying about the 2020 election? Back in March 2023, to avoid a harsher sanction, she agreed to a censure (with no suspension) in Colorado for her lying, only to proceed to lie about it in the media later on. Some time later she was indicted in Georgian and, true to form, she also pled guilty to avoid a harsher sentence.
After the settlement in Colorado, I wondered here why the Colorado authorities thought she deserved such a light sanction when Rudy Giuliani was likely to get disbarred for the same conduct. After her guilty plea agreement in Georgia, I wondered here if she could be sanctioned in Colorado even if her plea agreement had been worded precisely to try to avoid sanctions.
Well, my questions have been answered. A few days ago it was reported that Ellis has been suspended for three years in Colorado. The Hill has the story and a link to the order itself here.
In commenting on the story, Above the Law has a profile of Ellis here recounting her employment history and her embellishing of her resume. (spoiler alert: she apparently lost her job as a traffic court prosecutor for incompetence, which won her unemployment benefits after an appeal held that she had “perform[ed her] duties to the best of her ability” given the “deficiencies in her education and experience” and that she had committed irreparable egregious acts in just a few of her cases. You know, not all of them; just a few...) It is worth a quick read.
MSNBC also has the news here.
