The Law for Lawyers Today

The Law for Lawyers Today

Ethics, Professional Responsibility and More

Pokémon Go — another reminder about the duty of competence for lawyers

Posted in Competence, Social Media and Internet

Pokemon Go App Icon on iPhoneSince it debuted in the U.S. a couple weeks ago, Pokémon Go has become a nationwide phenomenon. If you’re like I was, you may need a primer in order to understand what the hoopla is about.  The smartphone game was launched by Nintendo and The Pokémon Company.  It involves capturing and “training” phantasmagorical creatures called Pokémon, who feature in a longtime videogame franchise.  And yes, there’s an ethics issue for you to think about.

Here’s what USA Today says about our latest digital obsession:

“What makes the game special is its use of augmented reality, where Pokémon will appear [on your phone] as if they’ve been spotted in the real world.  The game presents a map powered by GPS, using real-world locations to spot Pokémon and collect items.  When you find one, the game opens up your smartphone’s camera, giving you a view of Pokémon in the real world.  Once you spot them, you flick a Poke Ball toward the creature to capture it.”

So, when you see people — and they’re all ages — walking around gazing down at their phone these days, they may well be engrossed in playing the game.

Pokémon can be found all over the place — homes, stores, parks, cemeteries, your law office, behind police departments and even the U.S. Holocaust Museum, before administrators said people couldn’t play there.

What does it mean for lawyers?

First of all, be careful!  People have reportedly been injured because they weren’t paying attention to their surroundings in their quest for getting to the next level of the game.  Two players fell off a cliff near San Diego, for instance, and had to be rescued.

The obvious ethics issue is your duty of competence under your jurisdiction’s version of Model Rule 1.1.  Comment 8 says that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”

Twenty-one jurisdictions have already adopted the comment, which came into the Model Rules in 2013.  But even if your jurisdiction is not one of them, your general duty to have “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” still means you need to understand technological developments sufficiently to be able to advise your clients.

We had occasion to make the same observation about the many legal issues connected with the internet of things — you need to know this stuff because your clients are looking to you for advice and counsel on it.  As legal tech guru Bob Ambrogi has said, “You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology.”

Potential hot issues

The ABA Journal has collected some of the developing legal issues with Pokémon Go:

  • “Does placing a Pokémon character on a private property, without permission, affect the owner’s interest in exclusive possession?”
  • What about putting the creatures in potentially dangerous places — has that created an attractive nuisance?
  • “Does owning real property extend property rights to intellectual property elements that are placed on it?”
  • An augmented reality game like Pokémon Go can lead to competition for the use of the same physical space.  What if that disrupts the ability of players or non-players to enjoy the same space?  What if it leads to violence?  Who’s liable?
  • What First Amendment rights might be involved if government limits the players in a public space?
  • What about the game’s terms of service?  They “disclaim liability for property damage, personal injury or death while playing” Pokémon Go, “as well as claims based on violation of any other applicable law.”  How well will that disclaimer hold up?  There’s also a notice “that generally requires arbitration of disputes,” a contested provision in many contracts.

Clients may come to you with these and other novel questions related to Pokémon Go or other augmented reality games, as they become a bigger part of our modern lives.  You’ll need to research and analyze the issues if you have clients that might be affected — and many clients will be.

The take-away is to be aware of how these issues may affect your clients, because competent representation involves giving informed advice — not “off the cuff” answers.

Firm counsel privilege prevails; New York joins favorable trend in recognizing doctrine

Posted in In-house Counsel, Privilege

Attorney-client communicationThe attorney-client privilege covers ethics advice that lawyers get from their law firm’s general counsel, and the communications do not need to be disclosed to the client, said a unanimous five-judge panel of the New York Appellate Division last week, in a closely-watched case. In Stock v. Schnader Harrison Segal & Lewis LLP, the court ruled that the law firm was the “real client” in getting the advice from the GC, and held that the fiduciary exception didn’t apply.

Underlying case:  tale of expiring stock options

We have been following developments since late 2014, when the trial court decided in Stock’s legal malpractice case that the privilege did not apply to communications that lawyers at the Schnader firm had with the firm’s general counsel in the underlying case.  (Thompson Hine LLP, the sponsor of this blog, was one of 74 firms signing on to an amicus brief seeking reversal of the trial court’s ruling.)

In the underlying case, the Schnader firm represented the client in negotiating his separation from his employer.  The firm did not negotiate an extension of the exercise period for the client’s vested stock options.  When the former employer later advised the client that more than $5 million in options had expired with the termination of his employment, the client consulted the Schnader firm again about his remedies.  In an arbitration before the Financial Industry Regulatory Authority (FINRA), the employer said that it was going to subpoena the lawyers who handled the separation agreement negotiation, and indicated that it was seeking to point the finger at the law firm as being partly responsible for any loss to the client.

That sent the Schnader lawyers to their firm’s general counsel for ethics advice.  When Stock eventually sued the Schnader firm for malpractice, he sought production of 24 e-mails reflecting that advice.

The New York County commercial division court ordered the firm to turn over the documents.  Without extensive analysis, the court agreed with the plaintiff client that the firm lawyers did not expect their communications with the firm’s general counsel to be kept confidential from the client.  The court also invoked the “fiduciary exception” to privilege, saying that the client had “a right to disclosure from his fiduciaries of communications that directly correlate to his claims of self-dealing and conflict of interest.”

Trial court ruling is reversed

In a 28-page opinion, a five-judge panel of the Appellate Division’s First Department unanimously reversed.

The court rejected application of the fiduciary exception, ruling that the Schnader lawyers “had their own reasons, apart from any duty owed to plaintiff, for seeking the legal guidance … Because the purpose of the consultation with [the firm’s GC] … was to ensure that the attorneys and the firm understood and adhered to their ethical obligations as legal professionals, the attorneys and the firm, not plaintiff, were the ‘real clients’ in this consultation.”

The court put particular emphasis on two facts:  first, that the Schnader firm’s general counsel had never participated in the client’s representation; and second, that the firm did not bill the client for the lawyers’ ethics consult with the GC.  That solidified the court’s view that the firm and its lawyers were the clients, and entitled to the privilege protection available to other clients.

Relying on New York state ethics opinions, the court also said that “we do not believe that a consultation by attorneys with their firm’s in-house counsel on a purely ethical issue arising from the representation of a current client … inherently gives rise to a conflict of interest between the firm and the client.”

Adding to a trend?

In reaching its conclusion, the Stock court cited similar recent holdings from state high courts in Georgia and Massachusetts.  The ABA has also taken the position that the fiduciary exception does not apply to confidential communications between law firm personnel and the firm’s in-house or outside counsel, even regarding the firm’s duties or potential liability to a current client.  That favorable trend continues, with the opinion of this influential court.

Microsoft acquisition of LinkedIn could spell ethics issues for lawyers

Posted in Confidentiality, Law Practice Management, Social Media and Internet

Microsoft  apps on Apple iPhone 6S Plus ScreenMicrosoft’s plans to acquire LinkedIn for $26.2 billion was the talk of the tech world late last month.  The combination of these behemoths is going to give Microsoft access to all LinkedIn’s data.  Microsoft’s CEO has given some examples of the potential synergies that will result, like “getting a feed of potential experts from LinkedIn whenever Office notices you’re working on a relevant task.”  But legal ethics issues loom, involving our duty of confidentiality under Rule 1.6.

Aim:  monetizing your links

With its 433 million members, LinkedIn is the #1 professional networking site for lawyers:  93-99 percent of lawyers across firm-size categories have profiles, according to statistics from the ABA and others.

The main thing that Microsoft gets out of the LinkedIn deal is data about you.  As a writer for Forbes noted, LinkedIn “knows where people work, their skills, ambitions, who they went to school with and what interest groups people share. LinkedIn knows about people better than Microsoft does. Or did.”  Now, Microsoft will be able to combine that data with all the many products you use, from your Outlook calendar to Skype to Word.

What’s the money angle?  LinkedIn’s CEO described how the combination could give “sponsored content customers the ability to reach Microsoft users anywhere across the Microsoft ecosystem.”  In other words, to advertise to you in a totally targeted way as you work with any Microsoft product in its “ecosystem.”  Pop-up ads for a treatise when we’re working on a brief in Word?  That would be a stupid move, notes legal tech guru Bob Ambrogi, and hopefully Microsoft won’t go there.

What are the ethics issues?

But this combination does raise some possible ethics issues, centering on your duty of confidentiality.

The confidentiality rule says that you “shall not reveal information relating to the representation of a client,” with very limited exceptions.  The duty includes not disclosing the identity of your client, which in many instances can be extremely sensitive.

In a good analysis  of the issue, ethics educator Stuart Teicher points out that leveraging data in our Outlook calendar can cross that exact line by revealing our client relationships.  Teicher posits that on Outlook, Microsoft “might see a potential client introduction (which lists Pete Smith as present), a court appearance (which lists Pete Smith as present), and a meeting for settlement purposes (which lists Pete Smith as present).  It’s not going to be too tough for the Microsoft bots to figure out that Pete Smith is your client.”

Or, says Teicher, looking at Outlook might show that you are heading to Chicago.  Microsoft might “then cross reference our LinkedIn connections and send a message to one of them that says something like ‘Your connection Bruce Kramer is going to Chicago next week.  Why don’t you look him up?'”  If the purpose of your trip is to confidentially scout out a potential acquisition on behalf of your client, your client doesn’t want data out there from which the seller or its agents can figure out what your interest might be.

Keep your eyes open

Nothing like this has happened yet — the mega-combo has just been announced, after all — and the ethics issues are only potential ones.  But this development bears watching.  As Teicher correctly points out, that’s the way to fulfill your duty of competence, which includes staying up to date on changes in the law, “including the benefits and risks associated with relevant technology.”

Beware: malicious e-mail campaign is targeting lawyers with fake disciplinary, bar notifications

Posted in Competence, Social Media and Internet

Held to ransomA cyber-alert issued earlier this month by the non-profit Center for Internet Security warns of a dangerous wave of malicious e-mails that are specifically targeting lawyers.  The fake e-mails are calculated to get your adrenaline pumping and to get you to open them and click on a link — because they’re personalized, they look urgent, and they’re disguised as coming from your own state’s disciplinary body or bar association.

Don’t fall for these e-mails

The CIS, through its Multistate Information Sharing and Analysis Center, reports that the subject and body of these phishing or spoofing e-mails look like they are from your board of bar examiners, bar association, or disciplinary counsel.  In the subject line and/or body, they claim that a disciplinary complaint has been filed against you, or that your bar membership has lapsed.  You are asked to respond by clicking on a link — which, according to the CIS, “leads to a malicious download, potentially ransomware.”

We tweeted out the warning when it came in from Minnesota, but other states where lawyers have been targeted, according to the CIS, also include AL, CA, FL, GA and NV.

Tweet2

Well-written, well-disguised

The CIS says that unlike the obvious Nigerian-lottery-type e-mails we know to avoid, this latest wave consists of e-mails that are “well-written and appear to originate from the appropriate authority,” and they are personalized, too, which of course boosts their effectiveness.

As a member of my local certified grievance committee, I know the procedure my home state of Ohio uses to notify lawyers of grievances — and it does not include e-mail.  I doubt that your jurisdiction’s process does either.

Your full name, bar membership status, bar number, office address and other professional details are publicly available, usually through your supreme court’s web listing of enrolled lawyers.  So it is easy for the bad guys to find you, and relatively easy to match you up with an e-mail address.  If  Avvo can do it, why not criminals?

Ways to be savvy

CIS recommends several steps in response to this latest threat:

  • Know how to identify spear-phishing e-mails.  “This particular series of emails includes what appears to be a link to the state bar association, but when the user hovers over the link it shows that the link is really to a different website.  Copying and pasting the link, instead of clicking on it, would defeat this social engineering attempt.
  • Back up all your systems regularly “to limit the impact of data loss from ransomware infections.  Backups should be stored offline.”
  • CIS is a § 501(c)(3) non-profit; check out its additional recommendations for protecting against and responding to phishing campaigns, available here and here.
  • Report any suspicious e-mails to the FBI’s Internet Crime Complaint Center (www.ic3.gov) as well as to the legal organization that is spoofed in the e-mail.

And a duty to be savvy

As we’ve noted before, not only is it obviously in your own interest to avoid scams that would lock up your own computer data — it can also be part of your ethical duty of competence to your clients.  Law departments have been identified as particularly susceptible to falling for scam e-mails.

Our complete dependence on our computers makes them a point of vulnerability — take the steps necessary to avoid being exploited.

Lack of vitamin-D didn’t mitigate intentional, habitual non-compliance with discovery requests

Posted in How Not to Practice

A stack of files with a magnifying glass beside themYou may not realize it, but under your jurisdiction’s version of Model Rule 3.4(d) you have an ethics duty to make reasonably diligent efforts to comply with legally proper discovery requests.  Interpreting a wrinkle in Ohio’s version of the rule, the state supreme court held earlier this month that a violation requires “intentionally or habitually” flouting the requirement — and in an odd twist, the court held that a claimed vitamin-D deficiency didn’t excuse a Dayton lawyer’s failure to comply.

Discovery duties under the ethics rules

Ohio’s Rule 3.4(d), unlike it’s Model Rule counterpart, provides that a lawyer “shall not … in pretrial procedure, intentionally or habitually make a frivolous motion or discovery request or fail to make reasonably diligent effort [sic] to comply with a legally proper discovery request by an opposing party.”  The Model Rule does not include the “intentionally or habitually” language.

The Ohio disciplinary case centered on an administrative appeal the lawyer filed in 2012 on behalf of a client seeking workers’ compensation benefits.  The appeal was lodged with the county court of common pleas.  The lawyer failed to comply with discovery requests, and failed to respond to the employers ensuing motion to compel.  Nor did he appear for the hearing on that motion.  The court ordered the lawyer to respond to the requests within 5 days or the case would be dismissed, and eventually imposed $5,980 in sanctions.  The lawyer failed to submit complete responses and the case was dismissed with prejudice.  The lawyer tried to appeal that order, but didn’t file a timely notice of appeal, resulting in the appeal’s dismissal.  The lawyer also failed to pay the court-ordered sanctions, including bouncing a check for a partial payment.

Which rule:  series qualifier or last antecedent?

The Ohio Supreme Court had to decide for the first time whether the phrase “intentionally or habitually” qualified both “frivolous motion” requests and failing to make “diligent effort to comply,” or whether the phrase only applied to the first clause that follows it.  Statutory construction geeks call these opposing canons of interpretation the “series qualifier” rule and the “last antecedent” rule respectively, and choosing which rule applies can drastically affect the outcome of cases.

The court decided without any deep analysis that the words “intentionally or habitually” “serve to modify each clause separately and not just the first clause.”  Therefore, to violate the second clause of Ohio’s Rule 3.4(d), a lawyer must intentionally or habitually fail to make reasonably diligent efforts to comply with legally proper discovery requests.

The court easily held that the conduct of the lawyer here violated the rule.

Did Vitamin D deficiency doom diligent discovery?

The lawyer argued that he didn’t receive proper mitigating credit for a personal-health issue that he was experiencing at the time of the misconduct — namely an alleged vitamin-D deficiency “that led to absentmindedness,” and that his own testimony about his condition should have been sufficient to prove mitigation.  The court held that the Ohio Rules for the Government of the Bar set a much higher standard than that, requiring, among other things, a diagnosis by a qualified health-care professional, and a determination that the disorder contributed to the cause of the misconduct.

The outcome:  an 18-month suspension, with six months stayed on condition that the lawyer pay the sanctions previously ordered.

Take-home lesson

Even if your jurisdiction’s ethics rules don’t have the “intentionally or habitually” language, it’s worth remembering that your discovery duties aren’t founded solely on the rules of civil or criminal procedure:  ethics rules also apply.  And by the way, you should get plenty of the Sunshine Vitamin, too.

Lawyer must reveal co-counsel’s error to client if it could raise malpractice claim

Posted in Communication, Conflicts, How Not to Practice, Malpractice

Let's talkWhat should you do when you are co-counsel on a case or in a deal, and you become aware that the other lawyer has made an error?  A new ethics opinion from the New York State Bar Association says that if you reasonably believe that your co-counsel has committed a significant error or omission that may give rise to a malpractice claim, you must disclose the information to the client.

Discovery slip-up

Ethics Opinion 1092 was based on an inquiry received from a lawyer with a dilemma.  The lawyer had been brought into a case as co-counsel on the eve of trial, and found that the other lawyer had done virtually no discovery, and had not made any document requests — despite the fact that communications and e-mails between the parties would be critical to the case.

The lawyer believed that the lack of discovery was a significant error, and that it could constitute malpractice.  The outcome of the case was still pending.  The lawyer was concerned that disclosing the information to the client could undermine the lawyer’s relationship with co-counsel, but was nonetheless convinced that it was in the client’s best interest to reveal the facts as soon as possible.

Interpreting communication, conflict rules

The NYSBA Committee on Professional Ethics noted that prior opinions had consistently held that a lawyer must come clean to the client about his or her own significant errors or omissions in providing legal services.  That principle is founded on two ethical duties:  (1) the duty to communicate with the client, and provide the information necessary for the client to make informed decisions (see Model Rule 1.4); and (2) the duty to withdraw from the representation where the lawyer’s personal interests conflict with the client’s (see Model Rule 1.7(a)(2)).

Those same rules also raise a duty to communicate with the client about co-counsel’s potential malpractice, the Committee opined.

Respect for client autonomy and decision-making means that the lawyer must provide information about all significant developments affecting the representation.  That “applies equally to a significant error or omission by co-counsel that may give rise to a malpractice claim,” said the Committee.

If co-counsel committed such an error, the client would have several options, such as continuing the relationship with co-counsel and reserving a possible malpractice claim; terminating co-counsel; bringing a malpractice action against co-counsel now; or getting independent advice about the options.  But without information, the client would be stymied in pursuing any of these choices.

Also, depending on the facts, the lawyer with the inquiry might have a personal conflict of interest that would raise a significant risk of adverse effect on the lawyer’s professional judgment — for instance, if the lawyer’s desire to maintain a good relationship with co-counsel was motivated by personal concerns, like preserving a good referral source (as opposed to being based on the goal of avoiding harm to the client’s case).  A personal interest plus risk of adverse effect on professional judgment could raise a duty to withdraw.

Further thoughts …

Instead of the facts posed by the inquiry to the Committee, what if the case is already over, and then you become aware of some error by co-counsel — but the trial outcome was favorable, notwithstanding the mistake?  The Committee didn’t consider that possible scenario, but it raises some further questions.  For instance, even if the result was an award to the client, is it possible that the award would have been larger absent the error?  How far do you have to go to decide such a question?

Even with these open questions, one thing is clear from this recent ethics opinion:  at least sometimes, co-counseling a case can result in a duty to have a difficult conversation with your client, and you should keep alert and know your ethics rules if that day should come.

Snoring lawyer disciplined in Va. gets reciprocal discipline in D.C. — It’s the cover-up, stupid

Posted in How Not to Practice, Licensing

Sleeping in classAs we learned in the Watergate era, “It’s not the crime — it’s the cover-up,” and that truism has an analog in the world of lawyer ethics, as a recent disciplinary case out of the District of Columbia illustrates.

Tale of the snoring lawyer

Like many who practice in the D.C. area, the lawyer was licensed in both the District and Virginia.  In 2014, the lawyer went to a CLE seminar in Virginia.  As described in the disciplinary opinion, “during the morning session, [the lawyer] fell asleep and began snoring, causing the seminar’s coordinator to intervene and wake [him].”

Things went from bad to worse in the afternoon session, when the lawyer “began talking loudly at a video presentation and continued to do so after the seminar coordinator asked him to stop.  In response to [the lawyer’s] continued outbursts, another attendee led [him] from the room.  That attendee smelled alcohol on [the lawyer’s] person. … [He] admitted to one attendee that he had been drinking.”

In the Virginia State Bar inquiry, the lawyer at first denied everything — being intoxicated, falling asleep and snoring.  That denial started the snowball rolling, because later, the lawyer had to admit “that those representations were not accurate,” and further, “that he did not take the steps necessary to correct his misrepresentations.”

The lawyer and the Virginia State Bar Disciplinary Board stipulated that he had violated the Virginia Rules of Professional Conduct, which, like their Model Rule 8.1(b) counterpart, makes it misconduct to “fail to disclose a fact necessary to correct a misapprehension known by a lawyer to have arisen” in connection with a bar discipline matter.

The penalty in Virginia:  a six-month suspension.  But that didn’t end the matter.

Reciprocal discipline woes

Many lawyers don’t realize that multiple licensure carries with it multiple exposure to disciplinary sanctions; all jurisdictions have rules mandating consideration of reciprocal discipline in their jurisdiction when a lawyer with a license there is disciplined in another jurisdiction.

That’s what happened to the lawyer here — the D.C. bar rules “presumptively impos[e] identical reciprocal discipline, unless the attorney demonstrates by clear and convincing evidence” some exception.

The lawyer argued that his Virginia suspension was based on “sleeping and snoring in a [CLE] class,” and that he was disciplined in Virginia for conduct that “does not constitute misconduct in the District of Columbia.”

Not so, said the D.C. Court of Appeals.

The lawyer’s Virginia discipline did not stem from the conduct at the CLE, according to the court; rather, it was based on the lies to the Virginia State Bar during the proceedings there, and his failure to correct his misrepresentations, until it was too late.  Those are ethical violations under the D.C. Rules of Professional Conduct, too, said the court.

Luckily for the lawyer, the Virginia suspension had already expired, and the D.C. Court of Appeals agreed that whether calculated from the beginning date of the Virginia suspension, or the date on which the lawyer reported his Virginia discipline to the D.C. bar, the suspension period had already run.

Therefore, although the lawyer was disciplined with the same six-month suspension in D.C., he effectively served no additional time.

“I cannot tell a lie”

Strict truth-telling in disciplinary matters must be your watchword, whether you snore or not.  It’s not the crime, it’s the cover-up, and when you’re dealing with reciprocal discipline you can get a double whammy.

Florida district court rules it lacks jurisdiction to determine unauthorized practice charge

Posted in Multi-jurisdictional practice, Unauthorized practice

Florida barIn a somewhat puzzling ruling handed down on May 25, a Florida district court judge held that the court lacked jurisdiction to address whether a Massachusetts lawyer who appeared on behalf of his defendant client at a Florida mediation was engaging in the unauthorized practice of law.

As reported by Law360 (subs. req.), the plaintiff, which runs an adult subscription service, is suing defendant Sun Social and others for allegedly hosting pirated content on their internet porn sites.

No jurisdiction, no sanctions

At the mediation, Sun Social appeared through its Massachusetts counsel, who had not yet sought pro hac vice admission.  Only after the parties reached an impasse did the plaintiff object to the Massachusetts lawyer’s participation.  The plaintiff charged the lawyer with unauthorized practice and sought sanctions, including disqualification.

The district court held that it could not address whether the lawyer’s conduct was UPL, because the Florida Constitution vests the state supreme court “with exclusive jurisdiction over … the prohibition of practice by persons not members of the Florida Bar,” and case law interpreting the provision delegates the determination of UPL solely “to the Florida Bar.”

The federal court judge denied the sanctions motion, ruling that “only the Florida Supreme Court has jurisdiction to determine whether the alleged acts constitute the unauthorized practice of law,” and noting that the lawyer had since sought and obtained pro hac vice admission.

Really without teeth?

The court seems to have reached the right outcome here, but for the wrong reason — and in holding that it was required to be agnostic on the issue of UPL, the court took a too-narrow view of its power to remedy future conduct that it might be presented with.

First, Rule 4-5.5 of the Florida Rules of Professional Conduct, like its Model Rule analog, creates some limited circumstances permitting lawyers admitted elsewhere to practice temporarily in Florida — including in “pending or potential” ADR proceedings like mediations (if the services arise out of or are reasonably related to the lawyer’s practice in his or her home jurisdiction).  And second, the Southern District of Florida’s own Local Rule 11.1 incorporates the Rules of Professional Conduct as standards and provides that for violating those rules, “attorneys may be subject to appropriate disciplinary action,” including under the court’s own Rules Governing Attorney Discipline.

If the district court lacks authority to sanction lawyers who sail outside the limited safe harbor of Rule 5.5’s temporary-practice provision, that limitation does not appear in the court’s local rules.  Indeed, it would appear to run counter to the court’s power to manage the proceedings before it.

“Immature and unprofessional mudslinging”

It is possible that the court was reflecting its impatience with the parties, which, the judge wrote, had engaged in “immature and unprofessional mudslinging.”  And after all, the Massachusetts lawyer had (after “blatantly drag[ging] his feet”) finally obtained the court’s permission to appear.  But in any event, the implication that the district court would be hamstrung in dealing with ethical misconduct constituting the unauthorized practice of law is unfortunate.

Using ill-gotten evidence and threatening opposing counsel draws 6-month suspension

Posted in How Not to Practice

Computer snoopingSome ethics violations happen because a lawyer carefully analyzes a debatable situation and draws a good-faith, but incorrect, conclusion. And then there are the lawyers who leave me wondering — what were they thinking? Let’s say your divorce client hacks into his future former wife’s e-mail account and hands you her payroll information and the direct examination questions that her lawyer has e-mailed her in preparation for trial. Raise your hand if you think you can use that evidence.

A lawyer in Missouri got his ticket to practice pulled for at least six months for trying to do just that. Oh yeah — he also threatened opposing counsel if she discussed the matter.

Client accessed e-mail “without permission”

The lawyer’s client, the divorcing husband, accessed the wife’s e-mail “on multiple occasions” without her permission. After he got current payroll records and a list of direct examination questions that opposing counsel had prepared for the wife, he turned them over to his lawyer.

On the second day of trial, the lawyer handed the wife’s counsel a stack of exhibits that included the direct examination questions that she had prepared for her client. Before then, the wife and her counsel were not aware that the wife’s e-mail had been breached.

The wife’s counsel requested a hearing on the record, at which the husband admitted his conduct and that he provided the ill-gotten documents to his lawyer. The lawyer admitted that he received the documents, knew they were “verboten” and that he failed to disclose his receipt of the information to opposing counsel.

“Rumor has it…”

Three days after the hearing, the husband’s lawyer sent the following e-mail to opposing counsel:

Rumor has it that you are quite the gossip regarding our little spat in court. Be careful what you say. I’m not someone you really want to make a lifelong enemy of, even though you are off to a pretty good start. Joel.

The Missouri Office of Chief Disciplinary Counsel charged the lawyer with violating the state’s versions of Model Rule 4.4(a) (using methods of obtaining evidence in violation of the rights of a third person); Rule 8.4(d) (conduct prejudicial to the administration of justice); and Rule 3.4(a) (unlawfully concealing a document having evidentiary value).

The hearing panel found that in addition to possessing the direct examination questions, the lawyer had used the improperly obtained payroll information during a pre-trial settlement conference.

The devil made me do it?

In the state supreme court, the lawyer argued that he did not use improper means to obtain the evidence because it was his client, the husband, who did so, not the lawyer himself. The court rejected that argument.

The comment to Rule 4.4 says that “when a lawyer knows that he or she has improperly received information, [the rule] ‘requires the lawyer to promptly notify the sender in order to permit that person to take protective measures.'” The lawyer acknowledged that he knew the source of the information and that his possession of the documents was “verboten.” Thus, the court held, the lawyer was required to promptly disclose his receipt of the information. The violation of Rule 3.4 was proven by the same conduct.

The threatening e-mail, implying that opposing counsel “would suffer professional retribution if she further discussed the issue” is conduct that prejudices the administration of justice, the court said.

Six-month suspension

A divided supreme court imposed an indefinite suspension with no leave to apply for reinstatement for six months. Two of the seven justices dissented and would have barred reinstatement for 12 months, which is the sentence the hearing panel had recommended. The supreme court did not explain its downward departure from the hearing panel’s stiffer recommended penalty. The dissents pointed out that the lawyer had already been disciplined five times in the past 25 years, including a previous six-month suspension.

Take-home lesson: Know your state’s version of Model Rule 4.4 so that you understand your obligations when receiving evidence from outside sources. You should also be aware that other authority — namely civil or criminal procedure rules and case law — are also potentially applicable. Hope you passed the test.

Violating confidentiality order results in lawyer’s DQ and referral to state ethics board

Posted in Confidentiality, Disqualification, How Not to Practice

Confidentiality stampCourts often analyze motions to disqualify by balancing the need to uphold professional standards against the rights of clients to choose their lawyers freely.  The New Jersey court of appeals struck that balance earlier this month in upholding the disqualification of a lawyer who violated a confidentiality order, finding that the lawyer knowingly disobeyed a court order, among other violations.

Looking for class action plaintiffs

The lawyer sued a car dealership and others in a putative class action, alleging fraud and the violation of various state consumer statutes.  The parties agreed on and the court entered a confidentiality order that allowed any party to designate confidential documents produced in discovery as “Attorneys’ Eyes Only.”

The confidentiality order mandated that the parties could use such material “solely for purposes of the prosecution or defense of this action.”

After several twists and turns, the suit was trimmed of its class allegations and proceeded solely against the dealership.

However, as the trial court wrote, “lo and behold, after the dealer produced the documents under the confidentiality order, a new [class action] lawsuit was filed in [another] county,” against the same defendant, based on the same theories, and initiated by the same lawyer, who admitted that she had used the “Attorneys’ Eyes Only” documents in soliciting the named class-action plaintiffs to file suit in the second action.

The lawyer claimed that this did not violate the confidentiality order; the trial court disagreed, and “relieved [the lawyer] from serving as plaintiff’s counsel” because of the violation.  The trial judge also referred the matter to the state Office of Attorney Ethics.  Following the client’s interlocutory appeal, the appellate division affirmed the disqualification order.

Inherent authority to impose DQ remedy

New Jersey’s Rule of Professional Conduct 3.4(c), identical to Model Rule 3.4(c), forbids a lawyer to “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”

The appeals court held that the lawyer knowingly used materials designated as “Attorneys’ Eyes Only” to solicit clients and to initiate a separate lawsuit against the car dealership, and that the trial court had not abused its discretion in using its inherent powers to sanction the lawyer for her ethical violation by disqualifying her.

Quoting from its prior holdings on balancing the need for ethical conduct against client choice, the court of appeals said that “there is no right to demand to be represented by an attorney disqualified because of an ethical requirement.”

“We underscore that an attorney’s failure to conform to his or her ethical obligations may imperil their client’s right to counsel of their choice.”

Not only did the lawyer’s client lose out; the lawyer put her own license in jeopardy, with the court’s referral to the state disciplinary agency.

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