ABA Publishes a new Ethics Opinion

The ABA's Standing Committee on Ethics and Professional Responsibility just published a new Formal Ethics Opinion (No. 520) on a lawyer’s obligation to convey information to a former client or successor counsel.  The abstract reads as follows: 

Model Rule 1.16(d) requires a lawyer to respond to requests for information from former clients or successor counsel in certain limited circumstances when doing so is necessary to protect client interests and reasonably practicable. Ordinarily, such a request will require a response when the requested information was acquired by the lawyer during the course of the representation, is unavailable from other sources, and is important to the client’s interests in the matter in which the lawyer formerly represented the client. Rule 1.16(d) does not require a lawyer to take steps to acquire new information, generate written responses, or provide further legal services to the client in response to a request for information.

Tips on the rule that prohibits communication with a represented person

 Michael Kennedy, bar counsel for Vermont, has published some helpful tips on the rule that prohibits communication with a represented person here.

On the duty to inform another party of the fact that the other party inadvertently disclosed documents... and more

 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.

________________

* 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.

Best Practices For Texting With Clients?

 The Louisiana Ethics Blog has posted a short comment on best practices for texting with clients.  Though short, the post is longer than mine would have been on the same subject.  This was a subject of conversation recently among members of the Association of Professional Responsibility Lawyers and the consensus, with which I agree, seemed to be that the best practice for texting with client is this one:  DON'T.  

But, if you are going to communicate with clients by texting, you might be interested in the post which has more suggestions than that.  You can read it here.

Comment: Ethical Considerations for Lawyers Regarding Email Encryption

 Here is a short article on (and called) "Ethical Considerations for Lawyers Regarding Email Encryption".  You can read it here or here.

Conference Report: Representing clients in multi-district litigation

 Multidistrict litigation, or MDL, now dominates federal dockets, impacting hundreds of thousands  of plaintiffs and routinely grappling with issues of national import. Though its rise is undeniable, its growth has also exposed, and helped to create, a series of deep cleavages regarding how best to adjudicate cases involving mass harms. Proponents tout MDLs’ procedural flexibility, efficiency, and access-to-justice benefits, while detractors criticize this procedural tool for restricting litigant autonomy, promoting unbounded judicial improvisation, and favoring wholesale settlements over substantive and procedural justice. 

In light of these competing narratives, on May 20, 2022, the Deborah L. Rhode Center on the Legal Profession at Stanford Law School and the Berkeley Law Civil Justice Research Initiative hosted a small group of distinguished scholars, judges, policymakers, and practitioners to discuss the lawyer-client relationship in MDLs. . . . the Convening sought to analyze contemporary MDLs’ plaintiff-related strengths and weaknesses and to identify practical steps that judges, lawyers, or policymakers might take to address various deficiencies. 

You can read the full report here.

Thanks to the TortsProf Blog for the update.

How to leave a firm ...

 In a recent post, Michael Kennedy (Ethical Grounds) reviews issues related to lawyers leaving firms.  If you need a quick reminder of some of the ethical issues involved, you can read it here.

Meanwhile, over at Above the Law, another recent article discusses the key trends shaping today’s lateral moves landscape.

Do Attorneys Need to Implement Email Encryption?

Most states have adopted the view that the duty of competence includes a duty to keep up with modern technology.  Also, most states have adopted the view that the duty of confidentiality includes a duty to take reasonable measures to protect confidential information from unauthorized or negligent disclosure (which can happen if a lawyer is not familiar with certain aspects of modern technology).  

So, given those two facts, do lawyers need to implement e-mail encryption?  I have not seen any specific decision or opinion that answers that question with an unequivocal "yes" but I have seen articles suggesting that it would be the logical answer.

And here is the latest, published in Law Technology Today.  

US Supreme Court to decide case on attorney-client privilege -- UPDATED

December 10, 2022

The United States Supreme Court has agreed to hear a case that raises the issue of whether a communication involving both legal and non-legal advice is protected by attorney–client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.

The case is called In Re Grand Jury.  You can find a summary and links to relevant documents here.

The ABA has filed an amicus brief (available here) in which it urges the Court to consider client-lawyer communications privileged, even if the purpose of some of those communications is not to request or give legal advice.  The ABA Journal has a short article discussing the case and the brief here.

The blog Presnell on Privileges has a comment here.

UPDATE: Dec 18, 2022

Presnell on Privileges has more commentary on the case here.

ABA issues opinion on whether using "reply all" when replying to emails might violate Rule 4.2 -- UPDATED

November 3. 2022

Let's assume that Lawyer Larry sends an e-mail message to Attorney Andrea about a case in which Larry is representing Client Carlos.  Because Larry wants to keep his client informed about what's happening in the case, Larry "copies" Carlos in the message (meaning that Larry included Carlos' email address in the "cc" spot of the message, thus sending the message to Carlos just as he sent it to Andrea).  Then assume that Andrea wants to reply to the message and she hits "reply all" instead of just "reply."  By doing this, she sends her reply to both Larry and his client Carlos.  Has Andrea violated Rule 4.2 which says attorneys shall not contact directly people they know to be represented by counsel? 

This is a question that has been addressed by several states and this week, the ABA Standing Committee on Professional Responsibility and Ethics issued a formal opinion on the topic.  You can read the full opinion here.  The abstract of the opinion states:

In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent. 

 Ethical Grounds explains why the opinion is important here.

On the other hand, Faughnan on Ethics opines that the opinion "creates unnecessary complexity for the position it wants to stake out by trying to spitball about what a sending lawyer could do — besides … like NOT cc’ing their client — to create the “special circumstances” that would prevent implied consent from being given."  You should read the comment here.

UPDATE (11/8/22) 

 Law Sites has posted a comment on the opinion here.

The Law For Lawyers Today has a comment here.

New ABA Ethics opinion on whether pro-se lawyers can communicate with represented person

 The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Ethics Opinion (No. 502), on communications with a represented person by a pro-se lawyer.  You can read (and download) the full text here.  The summary is as follows: 

Under Model Rule 4.2, if a person is represented in a matter, lawyers for others in the matter may not communicate with that represented person about the subject of the representation but instead must communicate about the matter through the person’s lawyer, unless the communication is authorized by law or court order or consented to by the person’s lawyer.

When a lawyer is self-representing, i.e., pro se, that lawyer may wish to communicate directly with another represented person about the subject of the representation and may believe that, because they are not representing another in the matter, the prohibition of Model Rule 4.2 does not apply. In fact, both the language of the Rule and its established purposes support the conclusion that the Rule applies to a pro se lawyer because pro se individuals represent themselves and lawyers are no exception to this principle.

Accordingly, unless the pro se lawyer has the consent of the represented person’s lawyer or is authorized by law or court order to communicate directly with the other represented person about the subject of the representation, such communication is prohibited. In this context, if direct pro se lawyer-to-represented person communication about the subject of the representation is desired, the pro se lawyer and counsel for the represented person should reach advance agreement on the permissibility and scope of any direct communications.

For a comment on the Opinion, go to Ethical Grounds, the blog of the Bar Counsel for Vermont. 

The ABA Journal also has a short post on the opinion, here.

The Argument For Why Counsel Have An Ethical Duty To Inform Clients About Litigation Finance

Do lawyers have a duty to inform clients about litigation finance?  You can find an argument in favor of answering the question in the affirmative here.

There are reasons to consider not copying a client on an email to opposing counsel

 Michael Kennedy explains here.

ABA Committees solicit comments on discussion draft document on possible amendments to the Model Rules

The ABA Standing Committees on Ethics and Professional Responsibility and Professional Regulation have developed a Discussion Draft of possible amendments to the Comments of Model Rules of Professional Conduct 1.0 (Terminology), 1.1 (Competence), and 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer). The amendments contained in the Discussion Draft provide guidance on lawyers’ client due diligence obligations under the ABA Model Rules of Professional Conduct.  The Discussion Draft is available here.

The Committees have not yet decided whether to present any Model Rule amendments on this subject to the House of Delegates. Your comments will assist the Committees in determining whether and how to proceed.  

You may provide comments in one of two ways:

First, the Committees will host a roundtable discussion on Friday, February 11, 2022, from 1:30 to 3:30 p.m. at the Grand Hyatt Seattle, 721 Pine Street (room location forthcoming in January 2022). If you would like to comment at this roundtable, please RSVP to Natalia Vera (Natalia.vera@americanbar.org).

Second, you may communicate your thoughts and suggestions by providing written comment to the Committees.  Written comments on the Discussion Draft must be submitted by email to Natalia Vera by February 15, 2022.  Please note that the Committees may post your written comments on the ABA website.

ABA issues new formal opinion on the duty of communication with a client when the attorney and client have difficulties understanding each other -- UPDATED

 The ABA Standing Committee on Ethics and Professional Responsibility recently issued a new Formal Opinion (No. 500, October 6, 2021) on an attorney’s duty to communicate with a client when the lawyer and client have difficulty understanding each other.  The summary of the opinion reads as follows:

Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language, or owing to a client’s noncognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished.  In that situation, a lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged. When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality. The lawyer also should use other assistive or language-translation technologies, when necessary. In addition, particularly when there are language considerations affecting the reciprocal exchange of information, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications, bearing in mind potential differences in cultural and social assumptions that might impact meaning.

You can read the full opinion here.   

Ethical Grounds has a comment on the opinion here.  The ABA Journal has a story here.

UPDATE 10/30/21:  The Legal Ethics Advisor has a comment on the opinion here.

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?   Brian Faughnan explains the answer here.

Arizona Supreme Court rejects draft ethics opinion on surrepticious recordings

Two years ago, I published a short magazine article on whether it is ethical for a lawyer to secretly record a conversation with a client. (See here.)  In it, I pointed out that whether it is unethical to record a conversation in a state that does not require all parties to the conversation to consent to the recording is not entirely clear.  Some state advisory opinions have held that the conduct should be considered to be inherently unethical, but that is not the view of the ABA Standing Committee on Professional Responsibility nor is it the law in many states.

I am writing about this today because I just found out that the Arizona Supreme Court has rejected the Attorney Ethics Advisory Committee’s attempt to upend this state’s decades-long position that surreptitious recording by lawyers is per se unethical even though it may be legal.  The Committee had proposed a new ethics opinion, but the Court rejected it and ordered that it not be posted.  

Ethics at Law has the story here.

New Jersey Supreme Court on arbitration clauses in attorney retainer agreements

Late last year, the New Jersey state supreme court held that law firms that want to include mandatory arbitration provisions in their client engagement agreements must explain to the client the benefits and disadvantages of arbitrating a prospective dispute.  The case is called Delaney v. Dickey, and you can read it here.

The Law for Lawyers Today has a comment here.

Florida Bar document on best practices for electronic communications

The Florida Bar’s Henry Latimore Center for Professionalism  has published a document on Best Practices for Professional Electronic Communication.  The 25 page document provides guidance on various topics, including e-mail, texting, social media, telephone/cell phone, laptops, and electronic hearings and proceedings, and it is an important resource for lawyers and non-lawyers.  You can read it here.

Does a lawyer have to encrypt e-mail messages?

Do lawyers have to encrypt e-mail messages?  

Model Rule 1.6(c) states that a lawyer "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client" but, to my knowledge, no jurisdiction has decided that this means that there is a duty to encrypt messages.

LexBlog has a comment on this issue here.