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.

Yet another decision coming out of Washington that complicates life.

Nope.  This too is not a post having anything to do with the recent election.  The Washington in the title is the State of Washington, and the decision is the controversial 5-4 decision issued by the Washington Supreme Court in Newman v. Highland Sch. Dist. back on October 20, 2016.  The Washington court, over a strenuous dissent, ruled that the attorney-client privilege did not apply to protect a lawyer’s communications with a former employee of the lawyer’s corporate client.

You can read the entirety of the opinion, if you’d like, here.  But, I’d suggest that you’d do just as well to read the wonderful treatment of the opinion, and the interviews obtained from prominent folks about it, in this piece put out by Joan Rogers with the ABA/BNA Lawyers’ Manual on Professional Conduct.  Joan, as always, does a great job with a pretty deep dive into the issues raised.  [And, see, this is proof that I don’t only praise the ABA/BNA reporters when they quote me in a story.  ; ) ]

I find myself in agreement with the dissent and those interviewed by Joan that are critical of the opinion, but not only for the way that the ruling takes a crabbed view of the privilege in the corporate context and seems to fail (or be unwilling) to grasp that people who have certain important information belonging to the corporation that the attorney needs to know may very well have moved on to a different place of employment by the time the corporation’s lawyer needs to speak with them.

The other concern I have about this sort of outcome on privilege is that it can serve to drive lawyers, as a workaround, to decide to take on representation of the former corporate employee in what becomes a joint representation with the corporation in the matter in order to be able to secure application of the privilege to communications.

There is nothing inherently wrong with such an approach, but it does create real potential for claims to be raised by adversary counsel that the undertaking is intended solely to restrict them under the relevant analog to Model Rule 4.2 from being able to communicate with the former employee.  (Of course, depending on the particular language of the jurisdictions RPC 4.2 and accompanying comments, there hopefully already exists an argument for the lawyer involved that the person was treated as off-limits under RPC 4.2, but I digress a bit.)

From my experience, the more fundamental problem is that lawyers pursuing such a course — often with a blindered focus on privilege issues — do not always take the time to think through all of the other angles that can come into play by taking on this second client in the matter.

The concept of an “accommodation” client is one that some prominent minds in the legal ethics community consider to be at least highly controversial if not altogether antithetical to the premise of an attorney-client relationship.  Nevertheless, it is a recognized concept and a lawyer can lay out the concept in an engagement letter with this former employee to indicate that if something goes wrong and the interests of the lawyer’s primary client and the former employee’s interest diverge that the lawyer will be permitted to simply withdraw from representing the former employee while continuing to represent the corporation.  There is also the available structure of a limited scope representation under RPC 1.2(c), to make clear that the added representation will be limited in scope and duration so as to decrease the likelihood that the interests of the original client and this former employee will become cross-wise during the time period in which both clients are being represented.

A very Tennessee-specific discussion for this Friday.

Later today I will have the honor of speaking as part of a panel at the TBA Health Law Forum.  The other panelists are Sheree Wright, the Senior Associate General Counsel with Vanderbilt University and Bill Hannah a lawyer in Chattanooga with the Chambliss Bahner firm.  I’m fortunate enough to have both Sheree and Bill as members of the TBA Ethics Committee I chair and am very excited to spend a couple of hours talking with them and the crowd about ethics issues near and dear to Health Care lawyers.  We’ll be talking about “The Ethics of the Distracted Lawyer.”  If you happen to be in the Franklin/Cool Springs part of Tennessee, you probably still might be able to work your way into the venue to register and attend.

As indicated in the title of the post, the only other thing I’m going to discuss today also is a topic that really is relevant only to Tennessee lawyers (but to a larger segment of that group, then the people that might actually contemplate a last minute visit to the above-highlighted seminar.)

I’ve now gotten enough inquiries over the last several weeks about the revised state-of-play in Tennessee state court litigation when it comes to attorney’s conferring with deponents during breaks in a deposition that it likely makes sense to write about it to have another handy link to send to folks that ask for a recollection refresher.

Whether such arrangements are kosher or not is subject to significant variance in various jurisdictions.  Perhaps the original case staking out the notion that an attorney’s communication with a client/deponent  during a deposition was not a privileged communication is Hall v. Clifton Precision,150 F.R.D. 525 (E.D. Pa. 1993).  I’ve done quite  few CLEs over the years where I used one hypothetical or another to tease out the situation and to lead the audience into a discussion about whether the lawyer taking the deposition can successfully force disclosure of what was said to the witness by another lawyer during a break.  The general principle from which courts have concluded that no privilege applies and that the contents of such discussions can be explored is that depositions are supposed to take place in the same manner as if they were trial testimony.  Karen Rubin back in 2015 delved pretty thoroughly into the state of the law on this issue at her firm’s blog here.

Tennessee has, assuming the vehicle chosen actually does the trick, created a very clear answer to this question now for cases pending in our state courts. The answer, in effect as of July 1, 2016, makes communications with a deponent during a break in the deposition perfectly appropriate, as long as: (1) there is not a question pending; and (2) the lawyer’s communication with the deponent during the break does not cross any lines so as to amount to a violation of RPC 3.3 or 3.4.

The vehicle chosen for doing this is a 2016 Advisory Commission Comment to our rule of civil procedure addressed at depositions, Tenn. R. Civ. P. 30.03  The comment provides as follows:

Rule 30.03 provides that “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence.” This language does not imply that Tenn. R. Evid. 615 is applicable to depositions. Unless otherwise ordered by the court, a lawyer may communicate with a deponent about deposition procedure or the substance of deposition testimony before, during (unless a question is pending) or after the deposition; however, such communications are subject to the Rules of Professional Conduct including, but not limited to, Tenn. Sup. Ct. R. 8, RPC 3.3 and RPC 3.4.

Now I don’t know exactly where an Advisory Commission Comment to a rule of procedure ranks in terms of authority and precedent as a technical matter, but there is no question that this is the latest word on this matter – words that our Court has bought into or they would have not approved the release – and, thus, a lawyer who wants to talk to their client during a deposition in our state court system no longer has to be worried about the client being forced to divulge the discussion on a claim that privilege does not apply.  At least as long as there wasn’t a pending question at the time of the break and the conversation.

What lawyers will still need to be concerned about – whether the deponent is their client or not — is communications that could be construed as amounting to violations of RPC 3.3 because they involve assisting a fraud on the tribunal or that could be construed as violating RPC 3.4.

The two most obvious pieces of RPC 3.4 that a lawyer could run afoul of through coaching a deponent during a break would be:

(a)       unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act; or

(b)       falsify evidence, counsel or assist a witness to offer false or misleading testimony

So, still a topic that can be explored through interesting hypos at future seminars even in Tennessee.

Lawyers and client confidentiality. Death does not part us.

It has been a while since I’ve written about a good ethics opinion.  There is a Maine opinion from a few months ago that fits the bill (and interestingly was actually posed by bar counsel in Maine apparently) but before I spend a little bit of time discussing it, I want to give context behind why it interested me enough to write about at this point when it actually came out in April.

Quite recently in Memphis, a very well-known lawyer with some involvement in pretty historic litigation in Memphis passed away.  While he had lived a long and storied life, the end came quickly as it does for many folks in that a stroke was followed within weeks by his passing.  The local daily paper here in Memphis did a very nice piece about the attorney’s passing (behind a modified sort of paywall) which, unfortunately, was marred just a little bit by a piece of misinformation that was included as a result of a quote from the deceased lawyer’s son (not a lawyer).

The quote in question was this:

“Attorney-client privilege no longer exists after the client passes away,” Mr. Caywood’s son said. “So Dad was able to testify for the prosecution. He was able to admit in court that Holly feared for her life.”

A tough spot for the reporter, of course.  It’s a good quote even if the first part is not true, but it is a shame for the paper of record in our city to put that information out there.  In Tennessee, as with most U.S. jurisdictions, the attorney-client privilege does survive the death of the client.  There is assuredly another explanation for why the lawyer was able to testify in the particular matter about the client after the client’s death even though the son may not have been aware of it.

With that now as context, let’s talk about that Maine ethics opinion — Opinion #213 from the Professional Ethics Commission of the Board of Overseers of the Bar in Maine, which makes the correct point that the ethical obligation of client confidentiality also survives death – whether that is the client’s death or the lawyer’s death.  It also makes for an interesting opinion to write about it from the perspective of my state, Tennessee, because Maine has a version of RPC 1.6 that is something of a blend between the older version of the rule on client confidentiality — under the Code of Professional Responsibility — that spoke in terms of protection for “confidences” and “secrets,” and the current version of the rule under the Model Rules of Professional Conduct approach that we have in Tennessee that extends more broadly to “information related to the representation of the client.”  Specifically, unlike Tennessee’s version of RPC 1.6(a) which reads like the ABA Model Rule, the Maine version provides that:

A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyer reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph (b).

The Maine version of the rule on confidentiality also defines the terms “confidence” and “secret:”

As used in Rule 1.6, “confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information relating to the representation if there is a reasonable prospect that revealing the information will adversely affect a material interest of the client or if the client has instructed the lawyer not to reveal such information.

So the question being answered by the Maine opinion is: can a law firm, in possession of really, really, really old client files with documents of arguably historical value, donate those files to a library or an educational institution?  The short answer, if you don’t want to read any further, is “no,” not without client consent.  Given that the clients are long dead, then the opinion explains likely not without the lawyer slogging through files on a document-by-document basis.

In fact, if you do want to read further, you should probably just go read the Maine opinion because it has some eloquent bits, but if you don’t then I can’t come up with a better way to end this post then with the Conclusion of the Maine opinion:

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.

More on that Persuader Rule decision out of Texas

I’ve written a good bit here about the problems that the Department of Labor’s proposed new Persuader Rule interpretations present and, most recently, wrote a little bit about a Texas federal judge’s ruling issuing a preliminary injunction about the rule going into effect.

My discussion of that ruling back at the end of June 2016 pales in comparison to the wonderful, and wonderfully thorough, piece that the fine folks at the ABA/BNA Lawyers’ Manual on Professional Conduct have put out today.  I’m going to start sounding like a broken record but the reporter who produced this treatment of the case, Joan Rogers, did a wonderful job with the subject-matter.  She really dug into the ruling, the history, and the implications and competing positions.  She was also kind enough to include a little bit of my thoughts into her piece as well, for which I’m truly grateful.

Bloomberg/BNA has made the story available outside of their subscription paywall, so you can go read the whole thing at this link.

You either die a hero or live long enough to be the villain

So this intrepid blogger is on vacation and this post and perhaps one other this week will have been pre-written and scheduled for publication.  So here’s hoping nothing has transpired in the world to make this seem tone-deaf.

Samson Habte, an excellent reporter with the ABA/BNA Lawyers’ Manual on Professional Conduct, was kind enough to speak with me and use a few quotes of mine in a well-done piece he wrote last week on the latest appellate court ruling evaluating the validity of the in-firm privilege.  This ruling is particularly important because it comes out of the New York, which was where the original case that created the fiduciary duty exception to the privilege (outside of the context of law firms) arose which then influenced that In re Sunrise case.

You can read the full article here at this link.  (The fine folks over at The Law for Lawyers Today have also written a good blogpost recently on the NY ruling here.)

I have been following this issue for many years, including dating back to when I was fortunate enough to be one of the original co-chairs of the ABA Firm Counsel Project.  One of the very first roundtable sessions that now-defunct group organized focused on the state of play of the privilege for designated in-house counsel in law firms.  Back then, in the late years of the first decade of the 2000s, we were still in the midst of a trend of bad rulings on the issue.

One of the topics of discussion that the reporter and I covered and that didn’t quite make it into the article is what we discussed right after my “wrongheaded” quote.  I am, generally speaking, a huge fan of the Association of Corporate Counsel.  That organization, the ACC, has played a very significant role in protecting the attorney-client privilege from erosion in the context of government investigations and the minefield that has been created over the years by the Department of Justice and a series of memoranda over the years that would be used as an attack on the privilege in the corporate context by laying the groundwork for a position that corporate entities in investigations needed to roll over and agree to waive the attorney-client privilege if they wanted to get any credit for cooperation.

So, to a large extent that is the context of my remarks both as to “wrongheaded”-ness and the statement about how “disappointing” it would be for the ACC to start pushing for its in-house counsel to demand in engagement agreements that law firms agree in advance to waive their right to an in-firm privilege if they want to be retained.

If the ACC follows through with that course of action, we will find ourselves in a world where one of the biggest champions of the attorney-client privilege and a stalwart defender against the powerful Justice Department over the years has now become that what it used to fight against — a powerful entity applying coercive pressure for a purpose that would only undermine the privilege.

Ironic, yes, but also a truly disappointing turn of events.