“Let’s put our heads together and start a new country up.”

Serial, perhaps the best known podcast of all podcasts, has recently launched its third season and like one of the REM songs off of Life’s Rich Pageant it focuses on Cuyahoga – but not the river but the County in Ohio – more particularly, it focuses on what goes on inside the Justice Center in Cuyahoga County.  Yet, much like the song was according to Peter Buck, the podcast also may just really be about America and its lost promises too.

So far the first three episodes have dropped, and they are particularly good.  Good, of course, in a troubling way for what they show with respect to the inner workings of the justice system.  Admittedly, all this season of Serial can truly do is show problems in just one particular courthouse in one particular location, but we all know there are universal themes that recur in many other similar venues in the nation.

The first three episodes alone have also given fodder for discussions of legal ethics for those so inclined.  The first episode follows an unfortunate and unfair bar fight through the court system.  The host, Sara Koenig, is given extensive access to the criminal defense lawyer involved.  (The series so far reveals that she was given nearly free rein in the building altogether.)  Even though there is one spot in which Koenig explains that had to be excluded from a meeting between the lawyer and his client in order to protect the attorney-client relationship while they talked, those familiar with the duty of client confidentiality still know that given how incredibly much is actually revealed by the lawyer about the case he is handling, how he is handling it, what he and his client have discussed, that surely there must have been a thorough and clear consent provided by the client for there to be no breach of the lawyer’s duty under Ohio’s version of RPC 1.6.

The second of the first three episodes introduces you to a judge who almost certainly needs to be made the subject of multiple judicial ethics complaints and who seems to have no business sitting in judgment of other people.  But the judge it introduces you to is likely a character-type that will sound very familiar to you in many respects no matter whether you’ve ever been in Cuyahoga County, Ohio or not.

The third episode tackles the very relevant topic of police brutality, the intricacies that can arise when one situation results in intertwining civil and criminal matters, and, for true ethics nerds, raises (at least indirectly) issues associated with a lawyer who swaps places in the system later in their career as well as problematic issues regarding where the line is in court proceedings between advocacy and assisting someone with manipulating evidence and testimony to assure an end result that may be believed to be just.

Anyway, your mileage may vary, but I find myself hooked.  I also find myself really wishing that Karen Rubin over at The Law For Lawyers Today might be able to weigh in at some point on her take on how the show portrays things, but, because she practices in Cleveland, I’m guessing that she is likely too close to the courts and the lawyers involved to be able to comfortably weigh in.

The fourth episode should be out tomorrow.  You should check it out.  (And, yes, I’m a guy with a pretty decent sense of humor and I see the hilarity in me encouraging the few hundred or so people who read this blog to go check out something that has millions upon millions of downloads.)

Information overload; summer struggles.

Mid-August often feels like summer doldrums.  Yet, there has been so much recent information of interest in the world of legal ethics that it is hard to keep up.  Thus, one can manage to feel simultaneously adrift and overloaded.

In that spirit (and because I am that “one”), here are a handful (plus 2) of laconic (if not insightful) entries about important things that have happened of late but that between the constant push/pull of overload and doldrums will not be written about here separately at any great length:

  1.  The competitive space in the legal industry impacted by developments in artificial intelligence and the continued push of providers of legal services other than law firms had a “you got your chocolate in my peanut butter” moment recently with the announcement that one of the Big 4 accounting firms – E&Y – was purchasing Riverview Law, which among other things is responsible for the AI product KIM.  You can read a pretty good summary of what this might mean in the short (and long) term at the first link above and here.
  2. A California Bar task force is undertaking exploration of whether to change rules to permit people other than lawyers to own legal services firms.  This move was prompted by a report the California Bar commissioned from a leading guru, Bill Henderson who you can keep up with here.   Though action from this report could be seismic for the legal profession the task force isn’t scheduled to provide any such report until the end of 2019 by which time, California might not actually be able at the rate things are going to “go first.”
  3. Utah is about to be able to be added to the list of U.S. jurisdictions that allow limited licensing of paralegals so that they can practice certain types of law similar to Washington’s set up for Limited License Legal Technicians (LLLTs).
  4. LegalZoom put out a press release about having received a secondary investment of half a billion dollars in a deal that values it at $2 billion dollars total.  (As the old joke goes, that is a tough amount of money to envision, so try thinking of a billion dollars as being represented by a one-hundred dollar bill and now imagine you had 2 of those!)
  5. A coalition of law firms (including law firm biggie Baker Hostetler – which you might recall as being the first major law firm to sign up with ROSS) and startups in the blockchain space have made a big announcement about an endeavor they intend to launch in October, as Forbes reports, to: “develop a new legal services platform called the Agreements Network. Originally revealed in April, the network is being designed to allow lawyers to perform tasks like managing contracts, leases, and governance documents via smart contracts that are compatible with the public ethereum blockchain.”
  6. The enacted-but-never-implemented “Persuader Rule” that I wrote some about many, many moons ago was rescinded by the Department of Labor, in part, having heard the concerns that were expressed by many over the harm it would inflict on attorney-client privilege and client confidentiality.
  7. And speaking of the intersection of government and legal ethics, the current occupant of The White House speaks of John Dean as if he were a villain in the story of Watergate.  For those of us who focus on legal ethics, and are familiar with the role that the events of Watergate played in the evolution of modern legal ethics, that is a pretty chilling piece of information.

 

When the job requires you to do the impossible.

I’d long thought that the ethical issues associated with representing clients held in Guantanamo would be the most flagrant example in my lifetime of our government purposefully making it impossible for lawyers to fulfill obligations to their clients.  Sad to say that I may just have been wrong about that.  (P.S.  I only started this blog in 2015 and have never really written about the dilemma created for lawyers trying to represent detainees in Guantanamo because it felt like most everything worth saying about it had already been said by others.  You can still read one the best legal journal articles providing an overview of the dilemma here.  But, it is worth noting that the absurdities of the overall situation have not dissipated and it can be argued that the situation for defense lawyers in those proceedings is now worse than it has ever been.)

The situation created by our government’s forcible separation of families seeking asylum at our border has created a dynamic that might be just as bad or, perhaps, worse.

This weekend I had the chance to read some about the bizarre scenes playing out now in Immigration Court in our country.  Perhaps the two most poignant accounts are this piece on a 1-year old who had to appear, albeit with a lawyer, and this video recreation using actual immigration court transcripts of how surreal this whole thing is.

Because this is a blog about legal ethics, I will limit what I have to say to the perniciousness of the impact this policy has on lawyers who are attempting to represent an immigration client — which while a horrible situation is about seventh on the list of importance in terms of the overall horribleness (which includes but is not limited to all of the children who have to deal with immigration court without a lawyer at all.

A lawyer has an ethical obligation to provide competent representation to a client (see RPC 1.1), a lawyer has an ethical duty to communicate with the client as to information that is important for the client to make informed decisions about the representation (see RPC 1.4), a lawyer has an ethical duty – even when dealing with a client with diminished capacity — to try to treat the client as much as is possible like a client with normal capacity (see RPC 1.14).  Almost all of those ethical duties become close to impossible to accomplish when the lawyer’s client is one to five years of age, not allowed to see their parents, not sure why they aren’t allowed to see their parents any longer, unable to effectively communicate about complicated legal questions even in their own language much less in the language the lawyer speaks, and, for the most part, simply altogether unable to appreciate what is going on at the moment.  And, none of what I just said even takes into account the possibility that the client is also being forcibly drugged to a point of sedation in order to try to address crippling anxiety brought about by the forced separation from their parent or parents.

Opportunities to discuss RPC 1.14 in a meaningful way are not all that frequent, but one of the big things that rule seeks to do is to insure that the lawyer try to empower the client as much as possible despite the client’s diminished capacity as much as possible.  It does this front-and-center in the black letter of the rule stating:

(a)  When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority . . . or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Thus, for example, it does not trumpet pursuing the appointment of a conservator or guardian for a client as a primary course of action.  Instead, it establishes in the rule that such efforts are appropriate only when there is something more going on than just the fact of diminished capacity:

(b)  When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

Yet, in the situation these immigration counsel are grappling with, it seems impossible to figure out how a lawyer could do anything other than want to seek the appointment of a guardian or guardian ad litem to assist the client with the decision-making that has to occur.  Of course, immigration courts – unlike other courts in our judicial branch — are creatures of the executive branch.  When the head of the executive branch is publicly railing against due process at all in the immigration courts, one fears that an already nearly impossible task for the lawyer will be made all the worse by a system that will be less-than-friendly toward any efforts to have such a person appointed at all.

In Tennessee, we have a version of RPC 1.14 that goes a further step in Comment [9] – and would likely describe much of what lawyers in this situation will have to do by necessity — act on an emergency basis on behalf of a client with seriously diminished capacity without meaningful input:

[9]  If the health, safety, or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer.  Even in such a situation, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other representative available.  The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm….

The only other hope for the situation is that the lawyer representing the child may be able to count on the immigration judge to try to make every effort to accommodate and account for this inherent failure in the process.  Again, given the dynamic going on in the system itself right now, this does not seem like a very realistic hope.  Certainly not one on which the lawyers involved can count.

 

 

Client Number Three – Seven lessons learned

I can’t believe I’m doing this as neither of these people deserve any benefit of the doubt or serious treatment afforded for their contentions.  But, based on spending time on the web reading comments (despite the always-spot-on advice “don’t read the comments”), there are so incredibly many people who do not understand these concepts and, thus, yesterday’s events do present a good teachable moment about privilege and confidentiality.

Lesson the 1st – it can never be said too many times that the concept of, and the scope of, attorney-client privilege and the ethical duty of client confidentiality are different.  Attorney-client privilege is an evidentiary concept and a privilege with respect to testimony and compelled production of communications in connection with litigation.  Client confidentiality is an ethical duty that imposes shackles on lawyers with respect to voluntary disclosure of information about clients or information about the representation of clients.  If you are familiar with Venn diagrams, then you can think of attorney-client privilege as a smaller circle within the much larger circle that is confidential client information under Model Rule 1.6 and its state analogs.  Client confidentiality is also different because while it imposes real restrictions on attorneys voluntarily disclosing information, it can fall to a court order requiring disclosure.  (See, for example, Model Rule 1.6(b)(6)).

Lesson the 2nd – both privilege and confidentiality will adhere to communications between an attorney and a prospective client during conversations or written communications while deciding whether or not to form a relationship.  Under the ethics rules, most states have adopted a specific rule to drive this point home patterned after Model Rule 1.18.  New York’s version of that rule reads, in pertinent part, as follows:

(a) Except as provided in Rule 1.18(e), a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Lesson the 3rd – the identity of a client, though rarely a piece of information that is itself privileged, is always confidential information under the ethics rules.

Lesson the 4th – if a prospective client communicates with an attorney in order to see if they might want to form an attorney-client relationship, those communications should not involve the actual giving of legal advice to the prospective client.  If they do, then the person is not a prospective client anymore because they have now become your client even if only for a limited time period.  If a person asks you for legal advice, and you have given them the legal advice they asked for, then they are your client.  (A much more pedestrian way this can be a problem for lawyers is along these lines:  A lawyer who decides not to take on a plaintiff’s case because the lawyer has concluded that the statute of limitations on the claim has run and the lawyer tells the plaintiff that conclusion.  The lawyer turns out to be wrong about that conclusion, but the plaintiff relies on the advice, later realizes that it was wrong, and then sues the lawyer for malpractice.  Lawyer is going to be unable to defend the malpractice claim on the basis that they were not the plaintiff’s lawyer because they gave the plaintiff legal advice.)

Lesson the 5th – you don’t have to pay a lawyer any money at all to be a client.  Communications can be protected by the attorney-client privilege without respect to whether any money ever changes hands.  And, most certainly, client confidentiality adheres without regard to payment to the lawyer.

(NB: Here endeth the legal ethics lessons.  These two bonus lessons are not about legal ethics.)

Lesson the 6th – there is no point in discussing journalistic ethics when talking about Client Number Three.  He ain’t a journalist.

Lesson the 7th – if a lawyer with only two clients takes on a third client and the common subject-matter of representation of the other two clients involves facilitating hush money payments regarding sexual improprieties, you don’t have to be Sherlock Holmes to begin to think you know the kind of services the third client was seeking.

 

 

Safeguarding confidential information, border searches, and your devices

In February, I will have the opportunity to be part of a panel discussion in Vancouver, Canada at the mid-year meeting of the Association of Professional Responsibility Lawyers focused on privacy and client confidentiality issues.

We will discuss quite a few interesting topics, including something that likely isn’t on the radar of as many U.S. lawyers as it should be — the EU’s General Data Protection Regulation which will become effective on May 25, 2018.  I plan to find some time on another day to write a bit more about that, but for today I just want to offer up a short-ish update on something talked about here before (and that we will also discuss in Vancouver) – concerns for lawyers when crossing the border back into the United States if Customs and Border Patrol demand access to electronic devices.

With a thankful tip of the hat to Wendy Chang with Hinshaw & Culbertson who alerted me to its existence, I can possibly alert you to the fact that CBP put out a new Directive on the topic of border searches of electronic devices on January 4, 2018.  You can go read the full document here.

The piece of it I want to spend just a moment or two elaborating on is the new guidance it provides in Section 5.2 “Review and Handling of Privileged or Other Sensitive Material.”

Before doing so though it makes sense to lay out for you what CBP’s prior directive on this topic indicated – which was dated August 20, 2009 and can be found here.  Section 5.2.1 of that directive provided as follows:

Officers may encounter materials that appear to be legal in nature, or an individual may assert that certain information is protected by attorney-client or attorney work product privilege.  Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures:  If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records.  CBP counsel will coordinate with the U.S. Attorney’s Office as appropriate.

Now, assuming that meant what it implied, that seems to paint the guidance as being in the nature of:  if an attorney tells you that something you want to look at is a problem because it is privileged information, then you don’t proceed further with trying to look at it unless you suspect that it might be evidence of a crime or otherwise something that impacts CBP’s jurisdiction (i.e. you really think that maybe the person shouldn’t be let into the country unless you can read what that is).  And, if so, you first have to start talking with a lawyer for the CBP about whether to do so.

Now compare that to the much more extensive language on this issue in the new directive.   (Spoiler alert:  it appears to me to be more extensive but less friendly to traveling lawyers.)

5.2.1  Officers encountering information they identify as, or that is asserted to be, protected by the attorney-client privilege or attorney work product doctrine shall adhere to the following procedures.

5.2.1.1  The Officer shall seek clarification, if practicable in writing, from the individual asserting this privilege as to specific files, file types, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information.

5.2.1.2  Prior to any border search of files or other materials over which a privilege has been asserted, the Officer will contact the CBP Associate/Assistant Chief Counsel office.  In coordination with the CBP Associate/Assistant Chief Counsel office, which will coordinate with the U.S. Attorney’s Office as needed, Officers will ensure the segregation of any privileged material from other information examined during a border search to ensure that any privileged material is handled appropriately while also ensuring that CBP accomplishes its critical border security mission.  This segregation process will occur through the establishment and employment of a Filter Team composed of legal and operational representatives, or through another appropriate measure with written concurrence of the CBP Associate/Assistant Chief Counsel office.

5.2.1.3  At the completion of the CBP review, unless any materials are identified that indicate an imminent threat to homeland security, copies of materials maintained by CBP and determined to be privileged will be destroyed, except for any copy maintained in coordination with the CBP Associate/Assistant Chief Counsel office solely for purposes of complying with a litigation hold or other requirement of law.

So, it does seem to me that this more extensive guidance is likely good for protecting privileged materials from improper use if actually reviewed and held and does seem to be clearer guidance about how CBP could go about, for example, reviewing some information on an electronic device but segregating items asserted to be privileged or work-product.  But it also seems to me that this guidance does not move the needle in a helpful direction for lawyers who want to attempt to protect review of their client’s information at all by asserting privilege as it both (1) imposes a more onerous process on the lawyer to do so (including the potential for demanding something in writing akin to a privilege log) and (2) appears to drop what was at least the implication of the prior directive that the assertion alone is likely enough to move the burden over to CBP to justify trying to do something further.

Which also makes me think that any attorney put in this situation is, at the very least, not going to be making any connecting flight if they seek to protect client materials from review.

Of course, neither the older directive nor this directive even mentions things that attorneys have to treat as confidential under their ethical obligations even though not privileged, which remains unfortunate.  But I am interested in hearing from anyone wanting to weigh in about whether you think I am misreading this guidance and that this directive is better for lawyers than the 2009 directive.

 

Practicing law like it’s espionage. NYC Bar Formal Op. 2017-5

This week the New York City Bar has put out a very important, and I think very helpful, ethics opinion to address a real, practical concern for lawyers: what, if anything, can be done to protect confidential client information when traveling and crossing the border into the U.S.?

NY City Bar Formal Op. 2017-5 lays out the issue as follows:

An attorney traveling abroad with an electronic device (such as a smartphone, portable hard drive, USB “thumb drive,” or laptop) that contains clients’ confidential information plans to travel through a U.S. customs checkpoint or border crossing. During the crossing, a U.S. Customs and Border Protection (“CBP”) agent claiming lawful authority demands that the attorney “unlock” the
device and hand it to the agent so that it may be searched. The attorney has not obtained informed consent from each client whose information may be disclosed in this situation.

The opinion makes the point that with the change of administration such searches of travelers and their data has increased exponentially:

In recent years, searches of cell phones, laptop computers, and other electronic devices at border crossings into the U.S. have become increasingly frequent. According to the Department of Homeland Security, more than 5,000 devices were searched by
CBP agents in February 2017 alone. By way of comparison, that is about as many U.S. border searches of electronic devices as were undertaken in all of 2015, and just under a quarter of the
approximately 23,877 U.S. border searches of such devices undertaken in 2016.

The entirety of the opinion is worth a read to see how it offers its guidance about things a lawyer might do at the time of demanded search to protect client confidential information, and to hear its additional important message that lawyers have an obligation under RPC 1.4 to contact all affected clients after such a search takes place.

The aspect of it that I want to focus on, however, is to expand on some of the practical advice it offers as to things a lawyer could do before going through customs at the border to lower risk of disclosure.  Particularly, this passage:

The simplest option with the lowest risk is not to carry any confidential information across the border. One method of avoiding the electronic transportation of clients’ confidences involves using a blank “burner” phone or laptop, or otherwise removing confidential information from one’s carried device by deleting confidential files using software designed to securely delete information, turning off syncing of cloud services, signing out of web-based services, and/or uninstalling applications that provide local or remote access to confidential information prior
crossing to the border.  This is not to say that attorneys traveling with electronic devices must remove all electronically stored information. Some electronic information, including many
work-related emails, may contain no confidential information protected by Rule 1.6(a). Even when emails contain confidential information, the obligation to remove these emails from the
portable device before crossing the border depends on what is reasonable. As previously discussed, this turns on the ease or inconvenience of avoiding possession of confidential
information; the need to maintain access to the particular information and its sensitivity; the risk of a border inspection; and any other relevant considerations.

Now, as to that sentence about some work-related emails may not contain confidential information protected by RPC 1.6(a), it is worth remembering that New York has a different RPC 1.6(a) than most jurisdictions as it comes closer to retaining the old “confidences and secrets” regime.  In most other jurisdictions, where RPC 1.6(a) covers any information related to representation of a client, then it is difficult to imagine any work-related email involving client matters that wouldn’t be protected as confidential under RPC 1.6(a).

And, for that reason, when I’ve had to help people try to work through this question, my advice has been consistent with what the New York City opinion is saying albeit perhaps stated more succinctly – delete the mail application from your smart phone until you get through the border.  Then reinstall it.  As long as your work email is stored on a server somewhere, then you should have no loss of data at all.

The only inconvenience caused is that for the time between deleting it and crossing through the border, you will have no access to email. Using the balancing factors compared to the risk of the violation of client confidences, this seems like a small inconvenience.  Simply deleting the mail application for a period of time also has the benefit of not placing the lawyer in the position of trying to “reason” with customs officials and argue with them over whether they need to be doing what they are doing.

As to other kinds of electronic data, the solutions are not as simple as with email.  Text messages are particularly concerning as deleting those or removing access to those from your device for even a short period of time would result in the loss of that data.  Generally speaking, the New York City opinion does a good job at explaining some of a lawyer’s options.  One option that the opinion doesn’t exactly spend a lot of time discussing is obtaining the consent of clients in advance.  One potential way of doing so could be standardizing provisions into engagement letters with clients to address this topic.

This unfortunately appears to be a topic that will only become more difficult to deal with for lawyers who travel frequently.  As an example, within the last month there have been stories in the media that Homeland Security is contemplating requiring all reading material be removed from carry on and put in bins for the purpose of potential review by TSA agents.  Travel is already a stressful endeavor, but as a lawyer if that were to come to pass there would be almost no way to take anything on a flight to have or review without running a real risk of loss of client confidentiality.

Traps for the Unwary – Employer email systems

I like to think I am “warier” than the average attorney.  But a recent attorney-client privilege opinion out of New York was a good reminder that being “wary” can be much like being “woke.”  Even if you think you are, you probably aren’t as much as you think you are, and you can always be a bit more.

I’ve spoken and written in the past about the risk for lawyers’ clients to using an email system provided by an employer to communicate with them but my focus in doing so has largely involved assumptions about ways in which the nature of the representation could be one in which the client wouldn’t actually want to the employer to be able to access the communications.  For example, where the client and the employer would actually have contrary interests.

That type of scenario was the focus of the kind of warning ABA Formal Ethics Opinion 11-459 provided to lawyers who handle employment law matters:

This opinion addresses this question in the following hypothetical situation.
An employee has a computer assigned for her exclusive use in the course of her employment. The company’s written internal policy provides that the company has a right of access to all employees’ computers and e-mail files, including those relating to employees’ personal matters. Notwithstanding this policy, employees sometimes make personal use of their computers, including for the purpose of sending personal e-mail messages from their personal or office e-mail accounts. Recently, the employee retained a lawyer to give advice about a potential claim against her employer. When the lawyer knows or reasonably should know that the employee may use a workplace device or system to communicate with the lawyer, does the lawyer have an ethical duty to warn the employee about the risks this practice entails?

[snip]

The situation in the above hypothetical is a clear example of where failing to warn the client about the risks of e-mailing communications on the employer’s device can harm the client, because the employment dispute would give the employer a significant incentive to access the employee’s workplace e-mail and the employer’s internal policy would provide a justification for doing so. The obligation arises once the lawyer has reason to believe that there is a significant risk that the client will conduct e-mail communications with the lawyer using a workplace computer or other business device or via the employer’s e-mail account. This possibility ordinarily would be known, or reasonably should be known, at the outset of the representation. Given the nature of the representation–an employment dispute–the lawyer is on notice that the employer may search the client’s electronic correspondence. Therefore, the lawyer must ascertain, unless the answer is already obvious, whether there is a significant risk that the client will use a business e-mail address for personal communications or whether the employee’s position entails using an employer’s device.

With hindsight it certainly seems an obvious extension of the same point to be worried that the privilege is in jeopardy even when the underlying matter is not one in which client and the employer are adverse, yet I’ll admit that I was initially surprised to hear about through this (as always) quite good write up in the ABA/BNA Lawyers’ Manual on Professional Conduct and then dig in and read the Peerenboom v. Marvel Entertainment opinion itself (which is remarkable for its brevity) which found that Marvel’s CEO’s emails to his personal attorney on Marvel’s email system could not be shielded from discovery by a third party pursuing litigation against Marvel based on attorney-client privilege.  (Simultaneously also saying that no marital privilege existed either.)

The New York court explained that Marvel’s email policy provided that it “‘owned’ all emails on its system, and that the emails were ‘subject to all Company rules, policies, and conduct statements.’ Marvel ‘reserve[d] the right to audit networks and systems on a periodic basis to ensure [employees’] compliance’ with its email policies. It also ‘reserve[d] the right to access, review, copy and delete any messages or content,’ and ‘to disclose such messages to any party (inside or outside the Company).'”  Based on that, the court considered it easy to conclude that the CEO had no reasonable expectation of privacy in email communications to others using his Marvel email address.

Interestingly, but not surprisingly, the opinion does not reference or discuss in any fashion whether the CEO’s lawyer would still be obligated to treat all of the communications as confidential under the relevant ethics rules in New York(spoiler alert: he would).

Since I’ve got your webcam turned on remotely, show of hands if you’ve 100% of the time been making sure your clients’ email communications with you are only happening on a platform provided by someone other than their employer – like gmail, Yahoo, Bellsouth, or Comcast, or some other personal source of email access.

Yeah, me neither.

It certainly feels like a harsh result — particularly when you stop and think about how much email traffic takes place on email platforms that are company provided to all involved — but it can be a difficult outcome to argue against given the traditional strict construction of the privilege and how readily it can be waived as a result of exposure to anyone who is a stranger to the relationship.

The Peerenboom opinion also serves, however, as a good reminder of just how different the attorney-client privilege and the attorney work-product doctrine are and how differently they are waived.

Given the lack of evidence that Marvel viewed any of Perlmutter’s personal emails, and the lack of evidence of any other actual disclosure to a third party, Perlmutter’s use of Marvel’s email for personal purposes does not, standing alone, constitute a waiver of attorney work product protections (see People v Kozlowski . . .898 N.E.2d 891 . . . .

That point is one I’ve always found easiest to explain to lawyers with reference to another New York case (albeit one in federal court) involving a different very famous brand, Martha Stewart, United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003).  That was the case in which a New York federal court explained the different ramifications as to privilege waiver versus work product waiver flowing from Martha Stewart sharing her lawyer’s communications with her daughter.  While, because she was a stranger to the attorney-client relationship Stewart had with her lawyer and thus eviscerated the attorney-client privilege, as to work product:

By forwarding the e-mail to a family member, Stewart did not substantially increase the risk that the Government would gain access to materials prepared in anticipation of litigation. Martha Stewart stated in her affidavit that “Alexis is the closest person in the world to me. She is a valued confidante and counselor to me. In sharing the e-mail with her, I knew that she would keep its content strictly confidential.” Martha Stewart Aff. ¶ 6. Alexis Stewart stated that while she did not recall receiving the June 24 e-mail, she “never would have disclosed its contents.” Alexis Stewart Aff. ¶ 2. The disclosure affected neither side’s interests in this litigation: it did not evince an intent on Stewart’s part to relinquish work product immunity for the document, and it did not prejudice the Government by offering Stewart some litigation-based advantage. Accordingly, I hold that Stewart did not waive work product protection over the June 23 and 24 e-mails.

And, it seems fair to say that the more robust ability of the work-product doctrine to withstand waiver in a world in which people use their work email for a lot of things, allow me to echo Ms. Stewart to say.

That’s a good thing.

North Carolina – Good intentions leading to a pretty seemingly bad rule.

So North Carolina has got quite a bit going on these days.  Last night UNC won the NCAA Men’s Basketball championship.  A few days ago, its general assembly kind of, sort of, repealed the bathroom bill that brought it much negative publicity and cost it some sporting events.  And, in March 2017, it adopted a first-of-its-kind ethics rule that seeks to require all lawyers — not just prosecutors — to reveal any evidence of the innocence of someone that comes into their possession after the person has been convicted.

Tennessee, I am proud to say, is among the “Sweet Sixteen” of other states that have adopted the ABA Model Rule 3.8(g) and (h) language that imposes this kind of duty upon prosecutors, but North Carolina’s act of going further to say that all attorneys have this obligation — at a mandatory level and when not doing so could somehow lead to discipline — seems very misguided to me.

Now because this is being written on the Internet, and because taking things out of context and ascribing intents and beliefs not intended to things written on the Internet is pretty much a sporting event itself these days, I feel beholden to make the point that — obviously I am not in favor of anyone being convicted of a crime they didn’t commit and I very much count myself in the category of folks who agree with the “it’s better that 10 guilty people be set free than 1 innocent person be imprisoned” line of thinking.  Also, I absolutely think that if an attorney comes across solid evidence that would indicate someone has been convicted of something they didn’t do, then an attorney ought to be encouraged to try to do something about that.

Nevertheless, I am not at all a fan of the idea of constructing an ethics rule that would require a lawyer to do so on pain of discipline.  Not even in the abstract because the architecture of such a rule would have to weigh in the balance too many other ethical obligations a lawyer might have that would compete.  I’m also not a fan of North Carolina’s specific effort to do so — North Carolina RPC 8.6 — which actually does attempt to  balance those competing obligations and in so doing, I think, actually proves the inherent pointlessness of this line of proposed rulemaking.

So, step by step, here is black-letter of North Carolina’s Rule 8.6.  The first paragraph establishes the initial scope of the duty.

(a) Subject to paragraph (b), when a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted, the lawyer shall promptly disclose that evidence or information to the prosecutorial authority for the jurisdiction in which the defendant was convicted and to North Carolina Office of Indigent Defense Services or, if appropriate, the federal public defender for the district of conviction.

So, as a starting point, this duty would override obligations of client confidentiality that would otherwise require a lawyer to remain quiet.  But obviously that creates some problems.  So, the next paragraph carves out exceptions to the obligation.

(b) Notwithstanding paragraph (a), a lawyer shall not disclose evidence or information if:

(1) the evidence or information is protected from disclosure by law, court order, or 27 N.C. Admin. Code Ch. 1B §.0129;

(2) disclosure would criminally implicate a current or former client or otherwise substantially prejudice a current or former client’s interests; or

(3) disclosure would violate the attorney-client privilege applicable to communications between the lawyer and a current or former client.

So, the exceptions still do not allow Rule 1.6 concerns to prevent disclosure (unless, I guess, breaching certain 1.6 client confidences would be considered “otherwise substantially prejudic[ing] a current… client’s interests”), but the exceptions to protect the subset of Rule 1.6 communications that would also be protected as attorney-client privilege and protect a lawyer in the event that complying with Rule 8.6(a) would require them to put one of their own clients or former clients in jeopardy of criminal prosecution.  Thus, Rule 8.6(b) essentially makes certain that Rule 8.6(a) will not apply to the most reasonably likely scenarios in which any lawyer who isn’t a prosecutor is going to learn of information indicating that someone has been wrongfully convicted.

The next paragraph, for good measure, also provides the same kind of “good faith”/exercise of professional judgment safeguard in place for private lawyers that Rule 3.8 provides for prosecutors:

(c) A lawyer who in good faith concludes that information is not subject to disclosure under this rule does not violate the rule even if that conclusion is subsequently determined to be erroneous.

The final paragraph then proceeds to make clear that no duty to disclose arises when the lawyer knows that the right people essentially already know.

(d) This rule does not require disclosure if the lawyer knows an appropriate governmental authority, the convicted defendant, or the defendant’s lawyer already possesses the information.

So, in the end, and as Professor Bruce Green is quoted as saying in a few of the news articles about the development, “it carves out so much that it’s hard to known when it will apply.”  I think that’s a kinder way of saying:  Other than whatever encouraging effect it might have on some small set of lawyers who wouldn’t otherwise step up and do the right thing to let authorities know about something if doing so wouldn’t violate their duty to another client or former client, this rule is not really going to accomplish much and is probably largely unenforceable.

And while that encouraging effect might be a laudable goal, pursuing it through this kind of rule seems the wrong way to go about it.  If you are truly going to insist on something like this in a jurisdiction, it would be better pursued as a purely aspirational rule.  We already have one of those with respect to the obligation to do pro bono.

Whistling about where you work.

We appear to be living now in an era in which whistle blowers are going to be in the news (and perhaps be the news) more than ever.

Many who know me, know that I hold a pretty controversial opinion — Arrested Development is potentially the greatest television show in history.  For many years when I needed a fictional lawyer for my hypos at seminars, Barry Zuckerkorn, Bob Loblaw, and Wayne Jarvis were my go-to choices.  I could drop this blog and write a blog just about the genius of that show but (perhaps) even fewer people would read that, much like it never got its fair share of viewers.  One example of the simple brilliance of its writing though was its treatment of the issue of whistle blowers from the 20th episode of the first season, “Whistler’s Mother”:

Mr. Jordan: Listen, you’ve got the money now and you know my price. You don’t need a whistle blower around here.

Michael: Interesting choice of words, Mr. Jordan. He’s right, we don’t need a whistle blower. We need a building full of whistle blowers. Okay? Whistles. I want this place to be honest. That’s exactly why I had these made up for us. When you see something wrong…

[Whistle blows]

Michael: There you go. I want you to report it. I want you to…

[Whistle blows]

Michael: Exactly. Just like that. I want us to police ourselves vigilantly… Let’s wait till something’s actually happens, though.

[Whistles blowing]

Michael: All right… Good fun… Enough!

[twenty minutes later…]

Michael: 45, 46, 47…

Michael: Okay, there’s still three whistles left out there. Who’s got the whistles?

[Whistle blows]

Board Member #1: He kept one.

Michael: There’s a good example of whistle blowing, okay, but you’ve kept yours, so it’s hurting your case.

Board Member #1: I was in the bathroom when you asked for it back.

[Whistle blows]

Board Member #2: No, he wasn’t.

When lawyers (or those that work closely with lawyers) claim to be whistle blowers, the stakes tend to be even higher and the ethical issues for those lawyers and even for the lawyers that represent those lawyers are almost always complicated.  Even when answers seem straightforward, the tensions that exist between the public interest in preventing wrongdoing and the private interest in protecting confidentiality can lead to second-guessing as to where the right lines should be drawn.  When the traditional right of a client to fire their attorney for any reason or even no reason at all is wound into the mix, sometimes that readily clarifies how the tension is resolved  but not always.  It is a pretty good explanation for why there aren’t really many instances of outside counsel to companies or government entities serving as whistle blowers.  When the lawyer seeking to blow the whistle though is an in-house counsel, that absolute right to fire your attorney can be made to yield to public policy since the client is also the lawyer’s employer.

In the last couple of weeks, there have been three stories of interest making the rounds involving three high-profile cases – two of them in California and one in D.C. — where the classic tensions are playing out in differing ways.  The D.C. case is the longest running of the three and was actually pretty much believed to be over back in 2008 when the a former in-house counsel for GE’s Sarbanes-Oxley suit — which she supported using her former client’s confidential information — was dismissed as untimely filed.  The matter got renewed attention with a recent development of a disciplinary suspension recommendation against her.  One of the California matters is part of a roiling and unseemly dispute between the State Bar of California and the Chief Disciplinary Counsel that it fired within the last year.  The other California matter is currently in the middle of trial proceedings and involves the former General Counsel of Bio-Rad, Sanford Wadler, who filed suit back in 2015 alleging he was fired because he blew the whistle on his former employer’s violations of the Foreign Corrupt Practices Act.

The weird mess involving the California State Bar has been back in the news twice in succession.  First, there was a story that the former assistant to the former Executive Director, Joe Dunn, would not be permitted to use information she took with her on her laptop to pursue her claim that she too was fired in retaliation because of her knowledge of the same kinds of violations for which her boss has said he was terminated.  Then, even more recently, word came down that Dunn’s suit, which had previously been forced into arbitration, has been dismissed by the arbitrator.  The  former Bio-Rad General Counsel recently received a favorable ruling about his ability to use confidential client information to seek to prove his case despite what would otherwise be his ethical obligations of confidentiality.

At a primary level, the developments in the three cases underscore a few points.  One, none of them involve outside counsel.  Two, lawyers who claim to be terminated for whistleblowing are almost always going to be met with counter-allegations that that they just simply were bad at their job and were terminated for poor performance.  Three, the obligations lawyers owe to clients in terms of confidentiality not only complicate matters and raise the stakes but almost always create satellite disputes within the litigation about use of information that will make or break the case.

Rather than try to re-tread all of the details of the three matters (because you might care about all, none, or just some of them), I’m pretty sure through the links I have provided and a little Googling, you can immerse yourself as much as you want in available information about any of the three.

One piece of one of the matters though really piqued my interest and deserves a brief separate discussion — the detail of why the former GE attorney, Adriana Koeck, appears headed for a 30-day suspension and a lawyer representing her is also getting punished — going beyond the use of the confidential client information to support allegations in the complaint but providing some of that same information to the press.   One of the reasons the matter piqued my interest originally was that, here in TN, we have a version of RPC 3.6 on trial publicity that allows communications about the media regarding the contents of a complaint, for example.  D.C. has a much different version of that rule.

But, further digging is what further made me curious because D.C. really is a weird place, I guess.  Admittedly, at this point I have only read the Law360 article, but it seems bananas that a D.C. lawyer who assisted, Koeck, in providing documents referenced in her complaint to news reporters is being disciplined for doing so.  Koeck’s 30-day suspension seems to be explainable by the fact that she didn’t participate in the proceedings having already agreed to be suspended from practice by consent.  But punishing a lawyer for that lawyer seems Draconian.  Yet, and somehow I missed reading about this back in 2015, but even the prominent law professor who gave Koeck advice that the crime-fraud exception would apply to the documents also received disciplinary punishment for doing so — that seems even more Draconian.

In fairness, I’ll have to dig a bit further to educate myself on those proceedings to see if I can better explain all of that.

In the meantime, it does appear like Season 5 of Arrested Development is going to happen.  So yay for that.

 

Bad blogger doubles up on topics.

I had every intention of posting twice this week, but events, including being under the weather with general ick much of the week, undermined my intent.  So, this mediocre post will briefly hit two items.  And, with any luck, tie the two together in a way that makes this seem, in hindsight, the correct way to approach these topics.

The first, which is a potentially really big deal with respect to lawyer ethics rules and confidentiality, is a California decision expressly concluding that Sarbanes-Oxley preempts California’s ethics rule on confidentiality to the extent that California’s rule would prohibit an in-house counsel from disclosing confidential client information to pursue a wrongful discharge/retaliation claim.  California’s ethics rule on confidentiality is admittedly something of an odd duck as it is much more stringent than other jurisdictions and often appears to make it seem like California lawyers have to deal with disputes with their clients while having both hands tied behind their back.

The Bio-Rad Laboratories decision has fortunately been written about extensively already by a more prominent blogger who focuses on privilege issues.  You can read the discussion of Bio-Rad put together at Presnell on Privileges here.

Given all of the ways in which the corporate client had already waived privilege and confidentiality as discussed in the first 30 or so pages of the Bio-Rad opinion, the California court really didn’t need to weigh in on the preemption question, but the SEC filed an amicus to make clear its position and, being a district court decision, it isn’t surprising that the judge would offer up all the grounds to support its ruling.

The second is an Ohio advisory ethics opinion from early December 2016 that addressed issues associated with interpretation of RPC 5.5 and correctly explains why a lawyer not admitted in Ohio is not engaged in UPL, even if they are officed in Ohio, if pursuing an exclusively federal practice.  You can read Ohio Advisory Opinion 2016-9 here.  The Ohio opinion recognizes that the application of supremacy principles requires this conclusion.  There are, of course, a limited number of areas of law that a lawyer can practice that are exclusively federal, but they do exist.

The way these two items go together?  I’m not going to hold my breath, but Congress could address, through federal legislation, the problems associated with many aspects of the antiquated way in which various state bar or state regulatory entities address temporary practice in, or handling of matters touching on other state laws, under RPC 5.5 by treating things as unethical that really shouldn’t be in modern law practice — remember, for example, the silliness of the reprimand issued against a Colorado attorney by the Minnesota Supreme Court.