Nevada provides lawyers yet another reason not to blow their own horn online.

I have beaten the drum for many, many years now about lawyers not understanding the true scope of their obligation of confidentiality under rules patterned after ABA Model Rule 1.6.  The ability to quickly share information far and wide online has not been helpful to lawyers who lack that understanding.  I remain astounded at how lawyers do not seem to recognize the unnecessary risk they are taking on by touting achievements in particular cases online.

Now, of course, I’m not privy to discussions between those attorneys and their clients in advance of such efforts so, perhaps, everything I see is kosher because every time I see a lawyer engage in such conduct they have gotten their client’s consent to do so in advance.

Based on my experience over the past 20 years though, I’m highly skeptical of that.  What I think is much more likely is that because these sorts of things usually never amount to any disciplinary proceedings much less instances of public discipline, this just continues to be something that many lawyers do either on the basis that the risk is minimal compared to the perceived reward or on the basis that they don’t see any risk at all.

For some lawyers, it is the misunderstanding about how confidentiality functions that can be the problem as they either aren’t aware (or simply don’t care) about the counter-intuitive fact that a public jury verdict is still RPC 1.6 confidential information as far as the lawyer is concerned.  Those transgressions can likely be forgiven by most, if not all, involved.  But, particularly when the self-congratulatory efforts in question go beyond just providing information about a jury verdict and also opt to reveal information about pre-trial settlement negotiations, the egregious nature of the breach of confidentiality is nearly impossible to forgive.  And, thanks to the way the Internet works, it is certainly impossible to forget.

Just this week, I saw one of these posts from lawyers with whom I use to practice law blowing their own horn about a very large jury verdict and revealing what the settlement offer from the defense was before trial.  I hope that they were operating with the consent of their clients or, if they happen to be reading this, that they go and at least get retroactive consent from the client involved which is better than having never gotten consent at all.

As if the risk of discipline (even if perceived to be a small risk) wasn’t enough to discourage lawyers from self-congratulatory social media postings (and if you spend any time on social media you know that it isn’t enough to discourage most), the Nevada Supreme Court provides a new opinion in a piece of defamation litigation that ought to give lawyers another reason to think very, very carefully about blowing their own horn online.

In Patin v. Lee, the Nevada Supreme Court rejected the effort of a lawyer and a law firm to stop a defamation case brought against them by a dentist.  The dentist had been one of the opposing parties of the firm’s client in a dental malpractice case.  The lawyer and law firm tried through exercise of an anti-SLAPP motion to bring the defamation case to a quick end.  They were unsuccessful though as Nevada adopted California’s approach to determining whether something written online can be considered “in direct connection with an issue under consideration by a judicial body.”  If you aren’t familiar with the general concept of anti-SLAPP statutes, then such language is likely meaningless to you.  But, if you read the opinion it will give you a pretty efficient primer on the concept of anti-SLAPP statutes (SLAPP being an acronym for Strategic Lawsuits Against Public Participation). You can read that opinion right here

From a loss prevention standpoint, let me drill down on what is readily understandable in terms of the problematic conduct by the lawyer and law firm.  The lawyer represented a plaintiff in a dental malpractice lawsuit against three defendants – a dental group and two individual dentists.  The lawyer obtained a $3.4 million verdict in favor of the client against the dental group and one of the two individual dentists.  The jury verdict against the other dentist was one finding no liability.

There was some appellate wrangling in the malpractice case after the jury verdict but because the ultimate outcome on appeal did not change, that wrangling matters much less than what the lawyer and law firm decided to post on their website to tout their success in the case:

DENTAL MALPRACTICE/WRONGFUL DEATH – PLAINTIFF’S VERDICT $3.4M, 2014 Description; Singletary v. Ton Vinh Lee, DDS et al.

A dental malpractice-based wrongful death action that arose out of the death of Decedent Reginald Singletary following the extraction of the No. 32 wisdom tooth by Defendants on or about April 16, 2011.  Plaintiff sued the dental office, Summerlin Smiles, the owner, Ton Vinh Lee, DDS, and the treating dentists, Florida Traivai, DMD and Jai Park, DDS, on behalf of the Estate, herself and minor son.

The problem with this self-congratulatory post on the firm’s website — separate and apart from the normal questions that might be asked about whether the clients were consulted and consented before the post was made — is that it doesn’t mention that Dr. Lee — the person named in the caption headline and in the body of the update — was the individual dentist found by the jury to have no liability.  That dentist, in turn, is who sued the lawyer and law firm for defamation because a reader of the post in question would reasonably think that Dr. Lee had been on the wrong end of a $3.4 million jury verdict.

Those that know me know that I am not much for dropping Bible quotes but, even I have to say that this would be a pretty good place to drop Proverbs 27:2 – “Let another praise you, and not your own mouth….”

“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.)

It’s still a good ethics opinion, even if the rule itself may need rethinking

Not quite 5 months ago, I wrote a bit of a shorter post about my view as to why ABA Formal Ethics Opinion 480 counted as a good ethics opinion.  For those that may not be remembering the opinion off the top of the head, it was the one that reminded lawyers – primarily in the context of social media — that RPC 1.6 governing confidentiality does not have an exception for “generally known” information nor an exception that says it is okay to discuss just because it is a matter of public record.

This opinion has been the subject of some renewed criticism — particularly a very well done column by Bill Wernz in the Minnesota Lawyer which (if you have a subscription you can read here) — and has been (in no small part because of Bill’s influential column) the topic of some spirited debate on an ethics listserv to which I am privileged to be a part.  (Loyal readers may recall an earlier effort on my part to address a first wave of criticism directed at this particular ABA opinion here.)

The summarized version of the criticism generally is that it feels increasingly illogical for confidentiality under the ethics rules to extend to information known or knowable by scads of other people.  An example that has been bandied about is a hypothetical of an attorney who has just secured a helpful published appellate opinion in case on a Wednesday and would like to argue and make reference to that case on Thursday for a different client and whether the restriction in RPC 1.6 means they cannot without the express permission of the client in the appellate case.

A few years back in Tennessee we accomplished a revision to our version of RPC 1.6 that provides some help for hypothesized conundrums such as these with the adoption of a Comment [3b] that reads:

Information made confidential by this Rule does not include what a lawyer learns about the law, legal institutions such as courts and administrative agencies, and similar public matters in the course of representing clients.  For example, during legal research of an issue while representing a client, a lawyer may discover a particularly important precedent, devise a novel legal approach, or learn the preferable way to frame an argument before a particular judge that is useful both in the immediate matter and in other representation.  Such information is part of the general fund of information available to the lawyer.

Other aspects of the renewed criticism keep coming back to the argument that the meaning of the word “reveal” in RPC 1.6 continues to be overlooked in efforts to interpret the rule.  I continue to believe that ABA Formal Opinion 480 and opinions like it are good opinions because I don’t think the people that put so much weight in their argument on the idea that “reveal” is something you cannot do as to already public information are as correct about that as they think they are.  If you didn’t know something until I tell it to you, I think it is entirely fair to say I “revealed” it to you even if it was already public.  It is not the greatest analogy in the world but harken back to your worst experience of someone spoiling for you the shocking twist of a film before you could see it.  In discussing that with someone and explaining your dismay in having the surprise revealed to you without warning, I don’t think you’d think much of someone claiming that millions of people already knew it so telling you about it didn’t really “reveal” anything.

While we obtained the language for Comment [3b] in Tennessee, there was another proposed revision to RPC 1.6 that was not successful but that I still believe would make the rule better and that, ideally, would be a decent fix to the Model Rule as well.  We had proposed adding a piece to RPC 1.6(a) – that would have required adding some numbering to make express consent of a client reason number (1) and implied authority to carry out the representation reason number (2) — where a third reason where revealing RPC 1.6 would be allowable where:  “the disclosure is limited to information relating to the representation of a client which has already been made public and the disclosure is made in such a way that there is no reasonable likelihood of adverse effect to the client.”  Our Court rejected that proposal, but I think an amendment to the Model Rule and other rules patterned on it along those lines would address many of the criticisms of the scope of RPC 1.6 while still protecting against disclosures that it makes sense as a matter of public policy to prohibit lawyers from making — like that one offered in my most-assuredly-unopened open letter post.

 

Traps for the Unwary – Married lawyers edition.

Within the last week, there was an interesting Law.com article (subscription required) on a topic that has been something of a pet . . . well not really “peeve” of mine, and not really a pet project of mine, but a topic that I feel like is somewhat uniquely overlooked by the people to whom it should be most relevant — spouses/significant others who are both lawyers but who work different places.

The article discusses an Ohio disciplinary case that is ongoing and that involves something that – based on anecdotal evidence over the course of my career — is an extremely frequent occurrence:  the sharing of information about cases and matters between spouses and significant others who both are lawyers but who aren’t both representing the client in question.

Although (as indicated above – unless you are particularly wily about how you use the Internet and various search engines ability to “cache” content — you need a subscription to read the article, here’s a snippet to give you a flavor of the fact pattern involved.

The Ohio high court is set to review a proposed disciplinary sanction against two education law attorneys, ThomasHolmes and Ashleigh Kerr, who are engaged to one another and admitted to exchanging emails that included work product and confidential client information.

Although Holmes and Kerr focus on similar types of law—namely the representation of public school districts—they have never shared clients and they worked at different firm. Holmes practiced most recently at [a firm] in …Ohio, and Kerr practiced at [a different firm] in … Ohio.

In a disciplinary complaint lodged in December against the couple, the Ohio Supreme Court’s board of professional conduct said the two have lived together since October 2015 and became engaged in November of that year. From January 2015 to November 2016, the disciplinary complaint alleged, the two exchanged information related to their client representations on more than a dozen occasions.

“Generally,” the board alleged, “Kerr forwarded Holmes an email exchange with her client in which her client requested a legal document (i.e. a contract, waiver or opinion). In response, Holmes forwarded Kerr an email exchange with his client which attached a similar legal document that he had drafted for his client. More often than not, Holmes ultimately completed Kerr’s work relative to her particular client.”

If you want more of the detail, you can access the disciplinary complaint here.  And you can go read the pending recommendation of the Ohio board as to the discipline — which has been agreed to by each of the lawyers here.

The proposed, agreed discipline is a six-month suspension from the practice of law for each lawyer (but with the suspension fully stayed/probated.)

I suspect the outcome of that matter – and perhaps even the fact of disciplinary proceedings at all — will come as a huge surprise to many lawyers.  But the simple fact is that the underlying practice — sharing information about cases in order to try to get your spouse or significant other to help you — despite how much it may seem consistent with human nature is almost always going to be undeniably a violation of the ethics rules.  It is possible that one of the lawyers could get the client to consent to the arrangement, but beyond that approach there are very few ways to avoid the simple fact that RPC 1.6 in almost any jurisdiction won’t permit doing this.

I also strongly believe that most lawyers who do this kind of thing — if they think about it from an ethics standpoint – believe that the risk is quite low of ever being found out because of the marital privilege.  But not only because of some of the inherent limits on how far that may take you, but also because of the increasing frequency in which we all do everything digitally… this case demonstrates that there are a number of ways that the communications can surface into the light without anyone ever having a spouse voluntarily provide information any marital privilege notwithstanding.

A tale of two ethics opinions.

So, I’ve made something of a habit of writing about ethics opinions.  Bad ones and good ones.  Mostly bad ones though.

As the trite – almost hackish – title of this post telegraphs, today I want to compare and contrast two recently released ethics opinions that manage to demonstrate the good that can come from a well done ethics opinion on the kind of issue that cries out for guidance in the form of an ethics opinion and the harm that can come from the kind of ethics opinion that likely should not be issued at all.

First, the good – an opinion issued out of Texas (which Karen Rubin has already written some about) that tackles a thorny problem that can confront a lawyer who has been retained by an insurance company to represent one of the company’s insureds in a piece of litigation.

The particular question addressed in Texas Opinion 669 is this:

Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer retained by an insurance company notify the insurance company that the insured client he was assigned to represent is not cooperating in the defense of the client’s lawsuit?

The answer the Texas opinion provides, as difficult as it might be for insurance defense lawyers to hear, is “no.”  And, that answer is the correct one in any jurisdiction where the way the “tripartite” relationship is structured is that the lawyer’s only client is the insured and the insurance company is merely someone who is permitted to pay the lawyer’s bills as long as the lawyer complies with the state’s version of Model Rules 1.8(f) and 5.4(c).

In Tennessee, for example, RPC 1.8(f) specifically states one of the requirements for permitting the lawyer to accept compensation or direction from someone other than the client as being that “information relating to representation of a client is protected as required by RPC 1.6.” (Interestingly, the Texas opinion makes no mention of, or reference to, any of those kinds of rules but simply uses only its confidentiality rule to justify its analysis.)

The unfortunate opinion comes out of Virginia.  Virginia, you might recall, recently made a great leap forward in streamlining its rules on attorney advertising by revising its rules to look very much like the proposal circulated by APRL.  After adoption of those revisions, which became effective on July 1, 2017, Virginia’s ethical restrictions on advertising were largely capable of being described as simply prohibiting false or misleading communications.

Unfortunately, with the issuance of Legal Ethics Opinion 1750, Virginia manages less than a year later to undermine much of its progress by simply re-issuing and updating a lengthy opinion it has released on multiple past occasions that attempts, in advance and not in response to evaluating any particular real advertisement, to provide “guidance” about what kinds of advertising practices should still be avoided because of the potential to be considered to be misleading.

Unlike the Texas opinion, which answered a real dilemma that lawyers can face and for which definitive guidance can be provided, the Virginia opinion is the kind of ethics opinion designed almost exclusively to chill commercial speech.  Even if the guidance it gave on all of the topics it unilaterally decided to address were correct, it would still be the type of opinion that ought not be issued.

Certainly, it says some things that are undoubtedly true and fun to read about ways that a lawyer could engage in truthful advertising that would still be a problem because it would be misleading by omission.  I’ve spoken at seminars before where I’ve tried to make this point by saying that a lawyer whose ad truthfully proclaimed “I’ve never lost a jury trial,” but fails to also mention, for context, that they’ve never actually been involved in a jury trial is going to be at risk under any fair set of ethics rules.  The Virginia opinion grabs a slightly different version of this rich vein by explaining that a lawyer truthfully crowing that “They secured a $1 million jury verdict in case,” but not mentioning that it came only after turning down a $2 million settlement offer before trial would have disseminated a misleading advertisement.

But, even that guidance is something that really ought not be opined about unless there were an actual lawyer seeking actual guidance about just that sort of advertisement.

So many other pieces of the opinion are even worse, however.   Cautions about using actors in ads, hand-wringing over “no recovery, no fee” statements, and subtle digs at the use of testimonials by actual clients in the opinion appear to be rolled back out for no real reason other than to undermine the progress on lawyer regulation of advertising that had appeared to be achieved by streamlining the rules themselves.

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.

 

 

The intersection of the First Amendment and the Ethics Rules

So, I don’t know if any of you have ever played HQ Trivia.  In any session, they have between 500,000 and almost 2 million players, so statistically speaking, I guess there is a chance you have.  While it has nothing to do with legal ethics, in order to understand the context of what follows, let me give you a quick primer.

It is something that would have been 5 years ago the stuff of science fiction or an even an episode of Black Mirror.  It is an app on your phone through which you can play trivia in real-time answering questions read by a human being host.  Each question is presented with three multiple-choice answers and you have 10 seconds from when the host starts reading the question to click your answer.  If you answer correctly, you get to move on to the next question.  If you don’t, you are eliminated.  In the standard format, the quiz consists of 12 questions and, if you answer all the questions correctly, you win or split the pot with any other players who have done so.  (When the largest pots are offered they increase the number of questions to 15 or, quite recently, they have experimented with as many questions as is necessary to narrow down to just winner in a winner-take-all format.)

The dollar amount of the prize varies.  It is typically $2,500 but, as it appears they are closer to whatever plan they have in place for monetizing the app approaches, they have recently offered a pot as large as $100,0o0.  Reportedly, tonight they will be offering a $250,000 pot.  I have won the game on one occasion and, of course, when I did there were so many other winners that my share came to just shy of $2.  (I also know there are other companies doing similar games and some of those are competing against HQ on the basis of how awful one particular financial backer of HQ reportedly is, so I’m not going to link or provide publicity to the game, but it is the one I play [for better or worse] so if you decide to sign up for it and put in my user name – bsfaughnan- as a referral code then I will get some extra lives.)

Now all that is background for today’s topic – which is the intersection and overlap of the ethics rules and what they prohibit members of our profession from doing and the First Amendment.  This topic is frequently one I spend time thinking about because for many years my practice has also involved representing clients on First Amendment issues and, in fact, though I continue to not be listed in Best Lawyerfor Legal Ethics and Professional Responsibility, in addition to being listed for Appellate Law, I am listed for Litigation-First Amendment.  It is also a topic that I have been thinkng about frequently because of various events that have worked their way into my line of sight either directly or indirectly.  Those three events are: (1) the outpouring of comments from particular portions of the bar in Tennessee arguing that the proposed RPC 8.4(g) in Tennessee is an assault on their First Amendment rights; (2) the latest post from Avvo’s GC criticizing ABA Formal Op. 480; and (3) the head of a prominent law firm speaking out publicly to indicate that a star lawyer of his firm turned down the opportunity to represent the current occupant of The White House.

So, here’s the HQ-style question and, remember, there is only one correct answer.  You won’t be limited to 10 seconds to answer from the time you start reading the question however:

Which of these presents the most compelling case for finding that discipline against a lawyer would violate the lawyer’s First Amendment rights?

  • A lawyer tweets – without client permission – about a jury verdict she obtained in order to advertise the successful outcome.
  • A lawyer, during a CLE or bar association social event, decides to lecture everyone in the room about why he considers marriage between two persons of the same gender to be an abomination.
  • A lawyer, consulted by a politician who she finds to be vile, or have views she finds to be vile, holds a press conference or tweets that she refused to represent that politician because she disagrees with everything he stands for.

 

 

An object lesson about “staying in your lane.”

Prominent technology blogger, Robert Ambrogi, has taken to Above the Law to criticize the latest ABA Formal Ethics Opinion.  In addition to attempting to savage it over being somehow untimely since lawyers have been blogging for almost 20 years, his primary substantive criticism of the opinion is that it makes no sense for an ethics rule to prohibit a lawyer from speaking or writing (or blogging or Tweeting) publicly about information that is already in the public record.

Ambrogi’s criticism is a bland (and perhaps satisfying at a surface level) kind of thing to say, but it reveals that the author is not someone who has spent a bunch of time working with, or thinking about, the ethics rules.

In the nature and spirit of “open letters to people who are unlikely to read them,” I offer this primer to Mr. Ambrogi on why our profession has crafted an ethics rule that does, in fact, err on the side of prohibiting lawyers from further discussing things even that are public record without our client’s consent or the need to do so to further the representation.

Dear Mr. Ambrogi:

Let’s pretend that I was currently representing a prominent legal technology blogger in a divorce proceeding.  This is, admittedly, a hard thing to pretend as I don’t do family law, but we’ll push on nonetheless.

In order to secure the desired divorce for the blogger, and because of the truly toxic nature of the blogger’s relationship with their significant other, I end up having to share a lot of deeply personal, highly intimate, and potentially quite embarrassing information in the complaint for divorce not only about the blogger but about the blogger’s significant other and that person’s various other romantic partners.

Now that happens in a state where it is very difficult to establish the need for court filings to be sealed, thus the complaint for divorce is a public record upon filing.  It also occurs in a state where, while it is true that court records are public records, they are not well-organized online and are not all that easy to locate.

Thus, my client knows that what is in the complaint is a matter of public record, but they are certainly hopeful that the information will not be widely disseminated and that these intimate and embarrassing items are only ever learned and read by people directly associated with the court process.

Now, if your approach to the ethics rule on confidentiality were what our profession had adopted, then I’d be free at a cocktail party, or on a blog, or in a Tweet to share the wild information about my client’s personal life because it was a matter of public record, and I could do so simply to entertain those around me.

I would hope at this point we would both agree that would be a bad approach for the ethics rules governing our profession to take.

Thus, to protect against that kind of ability to disclose information, the rules are crafted to start from the premise that lawyers ought not to talk publicly about their client’s matters unless they have the client’s consent or some legitimate reason to do so.  (This includes not only further communications impliedly authorized to carry out the representation but situations where it becomes necessary to make disclosures, for example, for the lawyer to defend themselves in other proceedings.  If the blogger’s significant other turned around and filed a defamation lawsuit against me over the publication in the complaint about the intimate details of that person’s life, the ethics rules would allow me to disclose information reasonably necessary to defend myself.)

So, as that ends my rant, I will conclude by saying that I still stand by (another writing that you are unlikely to read) my prior take that Formal Opinion 480 is a good one.

 

Another good opinion from the ABA SCEPR

This was not what I originally planned to write about today, but … here we are all the same.

Today, the ABA Standing Committee on Ethics and Professional Responsibility released a new opinion and, because it relates to social media, it is generating a good deal of discussion online.  It is being rolled out and discussed as being of interest to lawyers who blog or tweet or otherwise participate in social media, but it actually is yet another opinion sending a message that all lawyers need to remember.  That is because it is another opinion from this body – in a relatively short period of time – emphasizing how broad the scope of client confidentiality is under Model Rule 1.6.

The key piece of the opinion worth knowing (mostly because it applies to lawyer communications in just about any forum or medium of any sort ranging from cocktail parties, to CLEs, to social media) is this:

The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a). Rule 1.6 does not provide an exception for information that is “generally known” or
contained in a “public record.” Accordingly, if a lawyer wants to publicly reveal client information, the lawyer must comply with Rule 1.6(a).

From my experience, this is a point about which lawyers cannot be reminded nearly enough.  And, it most certainly is not just a social media issue.  Though I have, in the past and far-too-snarkily written about the problem as it crops up on social media.

Interestingly, I spent most of my day today sitting through CLE programming and, perhaps coincidentally, it was the first time in a long time that I actually heard a presenter acknowledge before telling a story about a case that they had actually obtained their client’s permission to talk about the case.

Far too often, I hear lawyer presenters relate information about something they are working on at a CLE by providing so much detail about a situation that it would not take much effort at all to immediately figure out who they are actually talking about.  This latest ABA Formal Opinion also offers a helpful refresher on the problem with doing that:

A violation of Rule 1.6(a) is not avoided by describing public commentary as a“hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.

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.