The outlines of the attorney-client privilege and work-product doctrine are well-established. But how should they apply when an organizational client suffers a cybersecurity event or other intrusion that results in a data breach?  Should information about the company’s security policies pre-breach and its post-breach response be given any enhanced protection? Under what circumstances?

The questions are burning ones, given recent data-security catastrophes that have exposed financial, health and other data of millions of people.  After each event, claimants quickly line up to file suit, and discovery demands for information inevitably follow.

Sedona Conference recommendations

The Sedona Conference, a non-profit, non-partisan institute whose working groups have been influential in e-discovery and other cutting-edge issues, recently published draft commentary recommending adoption of a qualified stand-alone protection for information prepared in a cybersecurity context, even when not involving communication with an organization’s lawyer.

The Working Group on Data Security and Privacy Liability noted in its 65-page Commentary (available for free download here) that cybersecurity and cybercrime are uniquely important, given that “American businesses and government agencies are under cyberattack twenty-four hours a day, seven days a week from criminal third parties,” and that “the federal government has declared this global cyber-crime wave a compelling national security concern, particularly in the area of critical infrastructure.”

Based on evaluating and balancing the competing interests, the Working Group proposed what it calls a “stand-alone cybersecurity privilege modeled on the work-product doctrine” that would extend to all documents and tangible things reflecting “mental impressions, conclusions, opinions, assessments, evaluations or theories” regarding a cyberattack, as well as “actual or potential actions in anticipation or response to a cyberattack.”

The proposed model would protect pre-breach cybersecurity information (“CI”) (and not just CI developed “in anticipation of litigation”), and information developed without participation of the organization’s counsel.

Lawyer involvement not needed?

The Working Group acknowledged that the expanded “qualified privilege” would protect a greater range of CI, although not all CI.  The proposal’s advantages, according to the Working Group:

  • it “would enable parties to take robust actions to protect themselves against and respond to third-party cyberattacks with greater (though not absolute) assurance that the CI they generate in the course of those efforts will not be used against them” later;
  • it ”would enable parties to obtain significant (though not absolute) protection against the discoverability of CI without using attorneys to lead their efforts to protect themselves against, and respond to, third-party cyberattacks,” lessening “the incentive … for putting attorneys in charge of efforts to address being victimized by such criminal activities and/or taking other measures to avoid creating a discoverable record concerning those efforts (such as not conducting certain assessments that are not otherwise legally required, conducting such assessments less thoroughly, or not reducing them to writing).”

Room for skepticism

The Working Group’s efforts are a welcome addition to the debate on the complex issues surrounding CI and what protection it should receive. (Law360 has comments here.)  Case-law guidance in this context is sparse, and rulings have tended to be very fact-specific.

But there is room for skepticism about whether CI merits its own stand-alone privilege, even as limited and qualified as the Sedona Conference Working Group proposes.

There is some validity in the adage that the ultimate motivation for cybersecurity is good security. In other words, clients should and do establish robust cybersecurity policies and practices in order to protect data, not just with an eye on protecting CI in the event of a lawsuit following a breach event.

And while the data-protection stakes, including the national security implications, have never been higher, it seems difficult to argue that cybersecurity is so different from other compliance regimes – such as antitrust – that it merits its own stand-alone privilege.

Caution can be called for here, because creating a new privilege might come back and bite in unintended ways.  For instance, in the event of a cybersecurity event, the company’s own search for causes can extend to outside provider entities; would those entities be justified in invoking an expanded CI privilege to resist turning over information that the company needs to identify and resolve a threat or investigate a breach?

The comment period on the Working Group’s proposal closed in June, and the final report will issue after analysis of the comments.  The debate will undoubtedly continue.

In-house attorneys face unique situations when it comes to client relationships and job responsibilities. But when it comes to ethical obligations, the Model Rules don’t recognize any difference between lawyers who work in-house and others.  Model Rule 1.0(c) defines “law firm” to include lawyers employed “in the legal department of” an organization, and it has been noted that notwithstanding the “square-peg-round-hole” problem, all the ethics rules apply to corporate counsel.  A recent Washington state supreme court opinion, however, has now called this rubric into question on a hot-button issue: wrongful discharge claims of in-house counsel.

The Dilemma

Imagine a scenario where a client seeks legal advice after being fired for reporting the employer’s illegal conduct — a classic whistle-blower scenario.  Many would advise an action raising claims of breach of contract, wrongful discharge and retaliation.  But what if your client were in-house counsel for that employer?  Model Rule 1.16(a)(3), adopted in some version in every jurisdiction, gives clients the right to discharge their lawyer at any time and for any reason.  See cmt. [4].  What recourse does in-house counsel have?

Washington Supreme Court’s solution

The Washington supreme court addressed this issue in Karstetter v. King County Corrections Guild. Jared Karstetter was an in-house attorney for the Corrections Officers Guild, under a five-year contract that provided for just-cause termination with notice and an opportunity to be heard. In 2016, Karstetter was contacted by a whistle-blower regarding parking reimbursements to Guild members.  The Guild directed Karstetter to cooperate with the investigation while the Guild sought advice from outside counsel.

The opinion is short on facts, but indicates that after investigating, the outside law firm recommended that Karstetter be fired.  He was terminated without notice or an opportunity to be heard, and he sued the Guild, alleging that he had assisted the investigation of a whistle-blower complaint as directed, and that he was fired for doing so.  He asserted claims for breach of contract, wrongful discharge and other common law claims.

The issue before the Washington supreme court was whether the state’s rules of professional conduct precluded the breach of contract and wrongful discharge claims.  In a divided decision, the majority reversed the intermediate court of appeals, concluding that the “rules of professional conduct do not foreclose an in-house attorney employee from bringing breach of contract and wrongful discharge claims against a former employer-client.”

The court reasoned that in the traditional attorney-client relationship, ethics rules would forbid an attorney from bringing such claims, but that “such an interpretation [of the ethics rules] is neither required nor reasonable in the nontraditional circumstances of in-house attorney employees.”

The court explained that in-house lawyers face unique employment situations and have complex relationships with their clients.  The relationship between in-house attorneys and their clients “cannot be characterized solely as an attorney-client relationship; it must be viewed as an employer-employee relationship as well.”

Noting that “our [ethics] rules have not evolved with the profession,” the court concluded that in-house attorneys can bring breach of contract and wrongful discharge claims against a former employer provided that the lawsuit is brought “without violence to the integrity of the attorney-client relationship.”

Ethical considerations and the aftermath of Karstetter

Model Rule 1.16 simply states that a lawyer must withdraw from representation if the lawyer is discharged.  While the rule may seem clear, the plain language leaves more questions than it answers. The rule does not address what requirements the client must meet to discharge an attorney, nor does it recognize circumstances surrounding non-traditional attorneys.

Courts have also ruled contrary to Karstetter, including courts in California and Illinois.  But see Wadler v. Bio-Rad Labs., Inc. (affirming jury verdict on in-house lawyer’s whistle-blower retaliation claim, based on state public-policy grounds).

Are the rules of professional conduct equitable as applied to in-house counsel?  When the rules were adopted, the vast majority of lawyers worked in a traditional legal environment.  Since then, there have been an increasing number of attorneys in non-traditional roles.  In-house lawyers have vastly different expectations, are economically dependent on the financial success of their client, and have an expanded set of work obligations.

It is possible that Karstetter and cases like it may lead to more challenges to the square-peg-round-hole application of the ethics rules to in-house lawyers, and the inquiry may not stop at Rule 1.16.  This inquiry may go deeper.  How does Karstetter affect Model Rule 1.6 (Confidentiality of Information), or Model Rule 1.9 (Duties to Former Clients)?  It is likely that the Washington Supreme Court will not be the only court faced with these issues.

Third-party litigation funding is a growing and, some say, controversial industry.  We’ve written before about whether such arrangements are permitted under state ethics rules (here), and we reported on the first effort to mandate disclosure of third-party funding via federal court rule (here), as well as the first state statute requiring such disclosure (here).

But litigation funders can also become litigators themselves.  Some file suit against law firms for non-payment of their fees. (On Tuesday, for example, a Los Angeles state court judge entered a $6 million judgment against a prominent plaintiff-side attorney and his firm as part of a dispute with a litigation funder over payment of the funder’s fees.)  And some funders have found themselves defending against claims that their funding agreements are unenforceable.

In the latest chapter of the second kind of scenario, a Minnesota court of appeals voided a litigation funding agreement under the North Star state’s champerty-and-maintenance doctrine, allowing a personal-injury plaintiff to side-step the sixty-percent annual interest she had agreed to in exchange for the funder’s advance of $6,000 in 2014.

The ruling upheld the trial court’s determination that Minnesota’s common law applied, rather than New York’s, despite a New York choice-of-law provision in the funding agreement.  Under New York’s narrower champerty statute, the funding agreement would have been valid, said the court of appeals.

Champerty and what?

You may not have thought about champerty and maintenance since law school — if you even learned about these old doctrines there.  But champerty and maintenance are on the books or part of the common law in many jurisdictions, and they have been dusted off, along with usury laws, in litigation-funding disputes like the Minnesota case, and in other jurisdictions.

Under Minnesota law, the appeals court said, champerty is an agreement between a litigant and a stranger to the litigation in which the stranger “pursues the litigant[‘]s claims as consideration for receiving part of any judgment proceeds.”  Maintenance is basically “meddling in someone else’s litigation” through assistance to the litigant from “someone who has no bona fide interest in the case.”

In the Minnesota case, the appeals court flatly said that “the [funding] agreement is not valid because it permits [the funder] to receive part of [the tort plaintiff’s] judgment proceeds.”  The court, echoing the trial court, said that champertous agreements “have untoward economic effects on the legal system that can provide both improper incentives and disincentives to pursue and settle litigation,” and that state public policy bars “an outsider’s intrusion into a lawsuit solely for speculative gain.”

Choice of law

The Minnesota case turned on a choice-of-law issue.  The funder had offices and did business in both New York and Minnesota, and the agreement called for New York law to apply.  New York’s statute defines champerty “much more narrowly” than Minnesota law, confining the doctrine to situations where the third party intends to bring the action.

The parties’ agreed choice of law was overcome, the Minnesota court held, because enforcing the provision would “thwart” the state’s policy against champerty.  In addition, the funder had admitted that it drafted the agreement specifically to avoid Minnesota’s champerty law.

Faced with the conflict between New York and Minnesota law, the court easily concluded that the funder should have expected Minnesota law to govern, as the agreement originated there, it was signed there, the funder was partly located there, and the agreement was to be performed there.  Minnesota also “has a strong interest in compensating tort victims and in protecting Minnesota’s judicial system and litigants” from champertous agreements, the court held.

What next?

Over the past decade, the litigation finance industry is estimated to have grown to possibly $5 billion in the U.S., and $10 billion globally.  While suits against consumer-tort finance firms, as in the Minnesota case, seem more common than suits involving large funders of commercial litigation, the scrutiny of these funding arrangements is sure to continue.

Both the New York State Bar Association (2018) and the New York City Bar Association (in 2018 and 2011) have weighed in on various ethics aspects of litigation funding, as have New Jersey (2001); the Philadelphia Bar Ass’n (2000); and Ohio (2012).

There are sure to be more bar ethics opinions (and cases) to come.

Many litigation lawyers know about the “litigation privilege” (sometimes called the “judicial privilege”).  The doctrine operates to immunize lawyers from liability for statements  made during the litigation process that are related to the litigation, even if they injure an opposing party.  (Here’s a 2015 Hofstra Law Review article that provides an overview.)

But lawyers might not be as familiar with limitations on what you can say about judges — limitations rooted in the rules of ethics.  In a recent Ohio disciplinary case, a lawyer received a stayed six-month suspension for impugning the integrity of three judges on the state court of appeals.

Judicial qualifications and integrity

Model Rule 8.2(a) prohibits statements “that the lawyer knows to be false” or makes “with reckless disregard as to [the statement’s] truth or falsity concerning the qualifications or integrity of a judge” or other judicial or public legal official, including a candidate.

In the Ohio disciplinary case, the lawyer had won a default judgment on behalf of his client, the plaintiff in an assault case.  The judgment lay dormant for a long time, until the defendant received an inheritance.  At that point, the lawyer tried to revive the judgment under Ohio statute.  Unfortunately, a court of appeals found he had waited too long to do so and dismissed the revived case.

Then the defendant in the assault case turned the tables and sued the lawyer and the lawyer’s client for malicious prosecution and other torts.  That’s when things started to go off the rails.

The lawyer’s answer to the complaint said that the appellate judges who had decided against reviving the default judgment had “contrived” their rationale “to justify a decision favoring [the assault defendant] premised apparently upon outside influences,” and had ruled in favor of him “for apparently undisclosed and non-legal reasons.”

The lawyer also filed a disciplinary complaint against the three appellate judges, and later, in opposition to the assault defendant’s motion to disqualify him, the lawyer referred to and attached portions of the complaint, even though Ohio bar rules require that all disciplinary documents and proceedings be held confidential up to the time the disciplinary board determines there is probable cause.

In the disciplinary complaint against the judges, the lawyer alleged that “it is impossible to believe that the judicial decision” against his client in the appellate court “is not the result of undue influence and corruption,” and called it “a conspiracy to pervert justice.”

“No reasonable factual basis”

The state supreme court in 2003 had adopted an objective standard for determining whether a lawyer’s statements about a judicial officer have been made with knowledge or reckless disregard for their falsity — and the board of professional conduct concluded that the lawyer here had no reasonable factual basis for his allegations.

The Board noted the lawyer’s testimony admitting that he failed to conduct “any investigation” before making his allegations, that they were based “solely on his reading of the court of appeals’ opinion,” and that he “did not actually know why the judges ruled as they did.”  The board recommended that the lawyer be suspended for a year, with six months stayed.

The state supreme court acknowledged the lawyer’s misconduct, but by a 5-2 vote imposed a six-month suspension, entirely stayed, citing similar cases and noting as a mitigating factor the lawyer’s otherwise-unblemished 51-year career.

Watch what you say…

Other lawyers have also gotten into hot water based on state versions of Model Rule 8.2.  For instance, last year, a Texas lawyer was referred to the state bar’s office of general counsel when he filed a motion to recuse two court of appeals justices, suggesting that campaign contributions affected the assignment of the panel that overturned a large jury award in favor of his clients.  According to the court of appeals order, the recusal motion alluded to assignments occurring behind a “veil of secrecy” and to the lack of credibility “in the face of a long string of statistically impossible coincidences” leading to the adverse appellate outcome.

That was apparently enough for the en banc appeals court to deem the comments as “direct attacks on the integrity of the justices” and on “this Court as a whole.”  However, the Texas State Bar’s site does not reflect any discipline against the lawyer to date.

You might think that you have an untrammeled right to make statements about a judge in connection with litigation, but be aware that the ethics rules provide a brake.  (Of course, as always, check your own jurisdiction’s professional conduct rules and regulations — they control your professional obligations, not the Model Rules.)

Today marks the fifth anniversary of this blog’s debut.

It’s been a wonderful ride. Waking up every Sunday morning (OK, most Sunday mornings), grabbing a cup of java, and writing 600 words about the latest in legal ethics might not be everyone’s idea of fun. But I’ve loved it.

Over the last half-decade our 230-some posts have been read about 75,000 times. We’ve twice won awards from the ABA Journal – in 2016 and 2018. The blog has been cited in law review articles, other blogs, news feeds like Law 360, and even in a law school casebook.

Best of all, this blog has allowed me and my co-editors to engage with lawyers from every sector of the legal community who are interested in legal ethics, and to be an ethics resource for companies big and small across the country – and around the world.  We are always amazed that we have faithful readers in places like Sweden, China, Saudi Arabia and Nigeria.

We have also paved the way for three more Thompson Hine blogs on the LexBlog platform: Trump and Trade, Source Code, and our newest, ERISA Litigation. You should check them out.

Thanks to all our readers, and here’s to many more years.

As we’ve noted before (here and here), the ethical duty of confidentiality is broad, and can even cover publically-available information.  Now comes a reminder that based on the confidentiality rule you should obtain consent  before using your client’s name in marketing materials — and that some jurisdictions go even farther.  For instance, South Carolina last month added a comment to its version of Model Rule 1.6 that expressly requires permission before using client information for advertising purposes, even including “generally-known” client information.

How about case citations?

The South Carolina bar had filed a petition last year seeking to amend Rule 1.6 to allow lawyers to reveal citations to published judicial opinions without getting consent from clients involved in the case.  But the law of unintended consequences kicked in.

Instead of approving the petition, the state supreme court tightened the confidentiality rule, saying in its order, “We decline to amend the rule as proposed by the Bar. Instead, we … add a new comment to the rule reminding lawyers that Rule 1.6 requires lawyers obtain informed consent from clients before revealing information about the representation to advertise their services.  The comment further clarifies [that] this obligation applies regardless of whether any information revealed is contained in court filings or has become generally known.”

The new comment notes that one exception to the broad duty of confidentiality embodied in Rule 1.6 is where disclosure of information is “impliedly authorized,” in order to carry out the representation.  (It’s easy to see that without such an exception, you couldn’t negotiate with the other side in a dispute, for instance, without express client consent; that would make representing a client unnecessarily cumbersome and inefficient, wasting resources and increasing the cost of legal services.)  But when it comes to legal marketing, the new comment says, there’s no such implied exception, because “the disclosure is being made to promote the lawyer or law firm rather than to carry out the representation of a client.”

Instead, the comment says, a lawyer must “obtain informed consent from a current or former client if an advertisement reveals information relating to the representation. This restriction applies regardless of whether the information is contained in court filings or has become generally known.”  Further, the consent must be specific:  “General, open-ended consent is not sufficient.”

Slippery slope?

This goes farther than other state versions of Model Rule 1.6, and may be a burdensome slippery slope when it comes to “generally-known” information.  Certainly, if a lawyer links to a reported case on her firm web biography, someone can follow it to see which party the lawyer represented.  But is the case citation itself confidential information that must be safeguarded under Rule 1.6?

On the other hand, clients value confidentiality and many want complete control over whether a firm publicizes its relationship with that client.  For instance, as a condition of the representation, many large organizations expressly prohibit their outside counsel from mentioning the fact of the representation in their marketing materials without express consent.

The bottom line is that legal marketing aims to generate positive good will towards you and your firm.  Even if your own jurisdiction has not gone as far as the Palmetto State on case citations and other “generally known” information, you should be leery of identifying clients in marketing materials without their consent.  Client disapproval of your advertising efforts can erase any upside you may gain, turning a potential positive into a negative.

“DQ” at this time of year makes me think of drive-in ice-cream cones.  But I actually mean “DQ” as in “disqualification,” and instead of sugar cones, it points to an interesting case involving some take-home lessons about conflicts of interest.

Crisis of unhoused residents

California’s massive homelessness problem has been the subject of several federal lawsuits.  In Housing is a Human Right v. Orange County, three housing advocacy groups and several individuals sued Orange County and five southern California cities, alleging in the complaint that the defendants’ treatment of their homeless residents violates numerous provisions of state and federal law.

In their lengthy complaint, spotlighting the dire problems of unhoused people in southern California, the individual plaintiffs asserted entitlement to class certification, compensatory damages and injunctive and declaratory relief.

In May, the plaintiffs moved to disqualify Jones Day from representing three of the city defendants, and last month, in a short opinion, the district court denied the motion.

Switching sides, or not?

In their motion to disqualify, the plaintiffs asserted that Jones Day had previously represented a different advocacy group for the homeless, the People’s Homeless Task Force, plus several homeless individuals.  According to the district court’s opinion, the firm advised the Task Force about potential litigation against Orange County and the City of Anaheim regarding the practices of law enforcement there in seizing and destroying the property of homeless people.

In their motion to disqualify, the plaintiffs asserted that the members of the steering committee for the lead plaintiff, Housing is a Human Right, overlapped with that of Jones Day’s former client, the People’s Homeless Task Force, and that they had “interacted with Jones Day as their clients.”

Further, said the plaintiffs, the firm’s former pro bono representation of the People’s Homeless Task Force involved the same subject matter as the suit in which Jones Day is now defending the three cities.  “Jones Day is switching sides and attacking former clients on the very matters the firm represented them on, mandating disqualification,” wrote the plaintiffs.

DQ denied

The district court rejected the plaintiffs’ arguments and denied the motion to disqualify.  First, the court pointed to the limited scope of what Jones Day agreed to do in taking on the prior representation of the People’s Homeless Task Force.  In its engagement letter, the firm stated that its engagement “is limited,” and “does not create an attorney-client relationship with any person or entity other than you.”

The engagement letter also confirmed the former client’s agreement that the firm could represent future clients in unrelated matters adverse to the People’s Homeless Task Force.

Therefore, said the court, the premise of the disqualification attempt — that Housing is a Human Right and its directors were former clients of Jones Day — was flawed.

The court also rejected the argument that under California’s version of Model Rule 1.9 the firm’s earlier representation of the People’s Homeless Task Force was “substantially related” to its current representation adverse to Housing is a Human Right.  The former representation, the court said, was focused on law enforcement practices concerning the property of homeless people living in a certain encampment, while the current litigation deals with broader problems in a different part of Orange County, brought by different plaintiffs.

Finally, said the court, while Jones Day “was on the side of the homeless in the earlier litigation,” and is now “defending against the claims of the homeless,” the law “does not recognize such a sweeping basis for disqualification.”

Some take-home lessons

We have long emphasized the importance of detailing the scope of your representation in every engagement.  (For example, see here and here.)  That was a key factor in avoiding DQ here.

In addition, this case is a reminder that the conflict rules operate in pro bono representations.  Jones Day’s former client was not a paying one, but that was not a factor in the disqualification analysis.

Last, local law counts.  Different jurisdictions have defined “substantial relationship” in varying ways in their conduct rules, and courts have applied the substantial-relationship test in varying ways in analyzing former-client conflicts.  While the broad outlines of the law across jurisdictions is consistent, nuances can matter.

Looking for marketing ideas to help you or your firm stand out from the crowd?  If you’re tired of branding tee shirts and mugs with your logo, how about donating your legal services to be auctioned off by a charity?  As you might suspect, there are ethics issues — and Maryland’s state bar association recently weighed in on them.

In its opinion issued last month, the state bar’s ethics committee considered whether a lawyer’s services could permissibly be auctioned off on behalf of a charity, and if so, what the relevant constraints would be.

Banging down the gavel

Nearly forty years earlier, in 1980, the same ethics committee had turned thumbs down, saying that despite the charitable intent of such an auction, the donation of valuable attorney time violated the prohibition against giving anything of value to a person or organization in return for the referral of a client.  Obtaining a client through an auction bid at a charitable fundraising event came within the proscription, the committee held.

Times changed, however, and a growing number of jurisdictions rejected blanket prohibitions against participating in charitable auctions, or revisited and reversed their previous rejections.  The New York State Bar Association, for instance, changed course in 2013, and gave the green light to lawyers who wished to donate their services to be auctioned off for charity, with some limitations designed to avoid the ethics concerns.

As the New York ethics committee said, the evolution of judicial attitudes toward lawyer advertising now places the focus on “effectuat[ing] the [ethics] rules’ language and purpose consistently with the public interest in access to information about lawyers’ services, and lawyers’ legitimate interest in marketing their services.”

Sold! to the highest bidder

In line with that approach, the new Maryland opinion provides six guidelines for lawyers who want to help raise funds for a charitable organization by donating their legal services:

  • Specify the services you are donating, and only donate legal services that you can competently provide.  (Model Rule 1.1, “Competence.”)
  • Make your offer of services to the winning bidder conditional on there being no conflicts in providing the services, and on the prospective client being satisfied with the prospect of accepting the services.  (Model Rule 1.7, 1.9, on conflicts with current or former clients.)
  • Agree with the charitable organization that if for any reason you cannot accept the representation, the organization will refund the winner’s bid amount.
  • If you are offering a limited-scope package of services (such as a set number of hours of estate-planning advice), the limitation must be reasonable under the circumstances — that is, not too limited to be useful to the client.  If you are going to donate a set number of hours, but would intend to offer additional services for a fee, the auction materials should indicate that. (See Model Rule 1.2(c), on limited scope representations.)
  • Avoid situations where you have an on-going professional relationship with the charitable organization or related entities that could signal that your donation is giving the organization something of value in exchange for recommending you to the client.  (Model Rule 7.2(b), on recommendations.)
  • Review in advance any description of your services that the charity intends to publish in any promotional material, and retain the right to edit it.  (Model Rule 7.1, “Communications Concerning a Lawyer’s Services.”)

All sales final

The new Maryland ethics opinion is part of a trend toward reconsidering some marketing rules in line with the evolving realities of legal practice.  But not all jurisdictions are going with the flow.  My own Buckeye State, for instance, remains in the anti-auction camp, under a 2002 opinion issued under the former Code of Professional Responsibility.  You should carefully check the auction opinions in your own bailiwick and proceed with caution in donating your legal services for a charitable auction.

A New Jersey lawyer was suspended for six months for misrepresenting to clients for about eight years that their arbitration matter “was proceeding apace,” when he actually had never filed their claim.  The lawyer also concealed from his firm for almost two years the malpractice suit that the clients later filed, including the default judgment in the clients’ favor.  The case shines a light on the drastic lengths to which lawyers can go to cover up a mistake — and how that just makes things worse.

Lack of FINRA finesse

As described in the disciplinary review board’s recommendation, the long nightmare began when a couple retained the lawyer, an associate in a firm, to represent them in an action against their investment advisor. The lawyer filed suit in superior court, which was dismissed by stipulation nine months later, after it was determined that venue was not proper there, and that the claim needed to be submitted to the Financial Industry Regulatory Authority (“FINRA”).

But the lawyer only filed the FINRA claim six years later — and by then, it was too late.  The defendant moved to dismiss; the lawyer failed to oppose the motion; and a FINRA arbitration panel dismissed the action.  Over the many years, the clients periodically asked the lawyer for information; he repeatedly assured them that the matter was “proceeding apace.”

Eighteen months after the FINRA dismissal, the clients filed a legal malpractice suit against the lawyer and his firm — but the lawyer failed to inform his firm or file an answer.  Nonetheless, during the ensuing year, the lawyer communicated with and met with the couple’s malpractice lawyer, still without informing his firm of the ever-deepening trouble.

The malpractice case went to default, with a judgment against the lawyer and his firm for more than $450,000.  The lawyer received subpoenas seeking post-default discovery on his firm’s banking information.  The lawyer provided some of the information about firm bank accounts, but still without disclosing the nightmare to his firm.  To keep checks drawn against the firm account from bouncing, the lawyer deposited $3,500 of his own money.

Finally, six months after the default judgment, the firm’s sole shareholder got notice that the firm’s accounts were subject to a writ of execution.  When confronted, the lawyer professed ignorance, saying that this “was the first [he] heard about” a levy, and that he didn’t recall being served with a complaint against the firm.

Confession time

Finally, after the shareholder pressed him, the lawyer ‘fessed up.

The disciplinary case against the lawyer proceeded on stipulations, in which the lawyer admitted that this long course of conduct violated New Jersey’s versions of Model Rule 1.1 (“Competence”); Model Rule 1.3 (“Diligence”) and Model Rule 8.4(c) (dishonesty, deceit, fraud and misrepresentation).

Remarkably, the district ethics committee recommended only  a reprimand.  The disciplinary review  board, however, recommended a six-month suspension, and the New Jersey Supreme Court accepted the longer recommendation.

Unmentioned in the board’s opinion is the supervision issue, and how an associate’s handling (or non-handling) of a matter could go unexamined for such a long time by anyone with supervisory authority in the firm.  Under Model Rule 5.1(b), those with supervisory authority in a firm must make reasonable efforts to ensure that subordinate lawyers conform to the ethics rules.

Most significant, in the malpractice case, the court granted the firm’s motion to vacate the default judgment, and the case was resolved with the firm’s insurance carrier.  (The judgment against the lawyer, however, is still in force, according to the review board’s opinion.)

Digging a deeper hole

In discussing the appropriate penalty for the lawyer here, the review board described numerous cases involving lawyers who wove elaborate webs of deceit in order to cover up initial errors, including:

  • fabricating a promissory note;
  • fabricating a letter from the U.S. Embassy for Sweden, and forging the signature of a fictitious consul;
  • fabricating a $600,000 settlement agreement;
  • fabricating trial dates;
  • fabricating a motion for sanctions and traveling three hours with the client to a non-existent deposition;
  • fabricating court notices;
  • fabricating court orders and signing the name of a judge;
  • preparing fictitious orders of adoption.

And these are just the New Jersey disciplinary cases!  There are similar cases involving desperate lawyers in every jurisdiction.

Many of these cases, like the case involving the FINRA claim, started with a simple mistake.  And many of them, as with the FINRA claim, could have been substantially fixed at the outset, including through recourse to malpractice insurance.  Yet, the lawyers involved plowed on, digging themselves deeper and deeper holes.

Don’t let something like this happen to you.  If you make a mistake — as painful as it is — tell someone.  Living in an echo chamber of lies never provides a way out.

We’ve written before about “web bugs” — tracking devices consisting of an object embedded in a web page or e-mail, that unobtrusively (usually invisibly) reveal whether and how a user has accessed the content.  Three jurisdictions (Alaska, New York and, most recently, Illinois) have issued opinions pointing to the ethics issues that can arise when lawyers use such tracking devices surreptitiously to get a leg up on an opposing party.

The Illinois opinion, for instance, says that at a minimum, undisclosed use of web bugs in the course of representing a client violates the state’s version of Model Rule 8.4(c) (barring dishonesty, fraud, deceit and misrepresentation) and can be an improper invasion of the lawyer-client relationship, violating Rule 4.4(a) (barring obtaining evidence in violation of the rights of another).

The latest web-bug development comes not in a staid ethics opinion, but in military proceedings in which a Navy lieutenant is charged with conduct unbecoming an officer, with connections to a high-profile war crimes court-martial involving a Navy SEAL and an Islamic State prisoner.  The circumstances sound straight out of a thriller.

“Bug” basics

But first, how does “web-bugging” work?  It involves placing a tiny image with a unique website address on an Internet server, and dropping a link to that image into the bugged e-mail.  The image might be invisible or it might be disguised as a part of the document.  It works by transmitting specified information to the sending party when the recipient opens the “bugged” document.

The information available from a web bug is wide-ranging, and can include:

  • the approximate geographical location of the recipient
  • when and how many times the e-mail was opened
  • how long it was reviewed (including whether it was in the foreground or background)
  • whether the recipient opened attachments
  • how long the attachment or a particular page of the attachment was reviewed
  • whether and when the e-mail and/or attachment was forwarded

Bitten by a bug?

As reported in the ABA Journal, earlier this month defense lawyers for Lt. Jacob Portier filed a motion accusing a military prosecutor of sending “bugged” e-mails to thirteen lawyers and paralegals, plus a reporter with the Navy Times.  According to reporting by the Navy Times, Portier is accused of holding a reenlistment ceremony for a Navy SEAL next to the corpse of an Islamic State prisoner allegedly stabbed to death by the SEAL.

The SEAL has pleaded not guilty to a charge of murder in the stabbing death, which occurred in Iraq in 2017, and the military case has drawn much attention, including from President Donald Trump, said the Navy Times.

The e-mail with the tracking device is reported to have been sent by a Navy prosecutor to defense lawyers for both Portier and the SEAL, plus the Navy Times reporter responsible for reportage based on leaked documents.

According to the ABA Journal, the military acknowledged that it “used an audit capability” to investigate the leaks; the motion filed by Portier’s defense lawyers described the tracking software as being in a logo showing an American flag and a bald eagle perched on the scales of justice.  The motion seeks additional information about the web tracker, and cites the possibility that it could intrude on the attorney-client relationship, along with Portier’s constitutional rights under the Fourth and Sixth Amendments.

Think twice

Outside of the client-representation context, e-mail tracking devices can be used for benign ends.  For instance, e-mailed newsletters sometimes use a kind of web bug to provide metrics on how many readers open the newsletter, and what pages they look at.  But using web bugs to get information on opposing counsel or opposing parties, or for forensic purposes, can raise red-flag legal ethics issues that you need to consider.