Everyone knows that we have an ethical duty of competence, and in most jurisdictions this includes a duty to be aware of the “benefits and risks” of relevant technology.  Examples of possible technology issues affecting our practices:  encryption (and cyber-security in general), cloud storage, e-mail handling, the internet of things — there are many more.  And snafus from failing to understand technology or handle it properly can have fallout for lawyers and clients.

Here’s a possible example, and it’s a scary one:  not using redaction technology properly, resulting in disclosure of information that shouldn’t be revealed.

Redaction pitfalls

Mistakes in redacting sensitive information can lead to high-profile problems.  Just this week, it was reported that lawyers for President Trump’s former campaign chairman, Paul Manafort, apparently failed to redact a federal court document properly, permitting the blacked-out text to be viewed “with a few keystrokes.”

Similarly, in the Parkland, Florida high school shootings case, the school district apparently didn’t properly redact a document regarding the alleged shooter, which contained confidential information about him.  A Florida newspaper reported that the method used “made it possible for anyone to read the blacked-out portions by copying and pasting them into another file,” which the newspaper did — drawing a contempt threat from the judge presiding over the criminal case.

Not redacting documents properly has also led to disciplinary action.  In 2013, a Chicago lawyer was reprimanded when he failed to ensure that personal information was redacted in federal student loan collection actions he filed on behalf of the U.S. government.  And in 2014, a Kentucky lawyer received a public reprimand for, among other misconduct, failing to redact his client’s social security number in bankruptcy filings he made on her behalf.

A law.com reporter for Corporate Counsel recently wrote that he was able to download from PACER a 100-page affidavit in pdf format with multiple redacted pages — but the black boxes disappeared when the document was copied into another application, “revealing all the private financial information that was supposed to be hidden.”

The reporter quoted a security expert who cautioned that people don’t know how to use redaction technology properly, and cited a 2005 National Security Agency report advising that redaction should not just visually hide sensitive information but actually remove it from the document.  (An updated NSA report is here.)

Think you can sidestep complicated technology by just taking out your black marker and obscuring the confidential text?  Even that may not be enough; as noted here, some scanners can pick up the covered words.

What to do?

In addition to the duty of technological competence set out in comment [8] of Model Rule 1.1, we of course must preserve our clients’ confidential information under Rule 1.6, and safe-keep their property under Rule 1.15 (which can include their information).

Does all this mean that every lawyer must become a tech guru with a detailed understanding of the highly complex systems we are required to use and rely on every day?  No.  (I, for one, can barely add and subtract, and I went to law school so I wouldn’t have to — at least not very much.)  But at minimum, we have to recognize what we don’t know — in the words of comment [8], that means “keeping abreast” of technology developments.  And most important, we have to get the expert help we need to navigate these shark-filled waters, whether it’s turning to high-end tech advisors, getting assistance from the bar association or educating ourselves.

What we can’t do is put our techno-phobic heads in the sand.

If you’re corporate counsel to an organization, you know how hard it can be to navigate privilege issues.  In a single day, you can be involved in talking to business managers, communicating with your CEO and dealing with the board.  When are your communications privileged, and how can you protect them?  A recent Colorado district court opinion has some pointers, based on a finding that a memo partly authored by in-house counsel was not privileged.

Legal advice, or just business?

In class action litigation, the plaintiffs asked the court to compel defendant Marriott to turn over an unredacted version of a nine-page financial and business growth strategy memo that corporate officers addressed to the organization’s Corporate Growth Committee.  Various lawyers in the law department had significant responsibility for preparing the memo, and the court found that some sections of the final memo had been written by in-house lawyers.

But the fact that a lawyer prepares a document is not sufficient to make the communication privileged.  Rather, the privilege’s proponent must “clearly demonstrate that the communication … was made for the express purpose of securing legal, not business advice.”

Further, the court said, the “primary purpose” of the communication must be getting or giving legal assistance, rather than business advice.

Mixed messages

So what to do with a document that contains a mixture of business advice and legal advice, which the court found were “intertwined” in the memo?  Citing the lack of Colorado precedent, and applying a case from the District of Columbia, the court held that the legal advice must “predominate for the communication to be protected.”  It did not predominate here, said the court.  Instead, while the strategy memo involved some legal advice, most of it was “ordinary and customary business strategy advice.”

Tips to protect the privilege

This case has some take-home lessons for in-house counsel on how to protect the privilege over legal advice.

  • It’s on you:  “The legal duty to protect the privilege falls on the legal department,” said the court, noting that Marriott’s team was “large and experienced.”  But even if you’re a one-person shop, you are the point-person for privilege issues.
  • Educate the stakeholders:  Those tasked with advising on and writing parts of the Marriott memo had “a duty to inform the Corporation of the privilege and to take steps to protect their advice,” said the court.  Schooling your company’s managers on the privilege is key to helping protect it.  For instance, do they know that cc-ing you does not necessarily make a document privileged?
  • Don’t intermix business and legal advice:  If the legal advice in the strategy memo had been in “separate paragraphs or pages,” or in a “confidential addendum or even a separate memorandum,” the court hinted that it might have protected those parts as privileged and only ordered disclosure of part of the memo.  Instead, the information was so intertwined that redaction “would be impractical.”

And some related pointers:

  •   Label!  If you are giving legal advice, start your communication with “You’ve asked me for my legal opinion on …” or “my legal advice regarding…. .”  Head those documents “Attorney Client Privilege.”  But don’t over-use the header.  If everything that comes out of your office is marked “Privileged,” that might be deemed to cancel out the effect.
  • Don’t overshare:  Remember, e-mail has a way of getting out of control.  Long threads where you are an early addressee may be deemed not privileged after going to people within or outside the company who shouldn’t receive the information.

Different outcome?

The court in this case adopted the “primary purpose” standard, but there are others — for instance, whether legal advice is “one of the significant purposes” of the communication.  We’ve discussed that test, which the  D.C. Circuit adopted in 2014, here and here.  Over at Presnell on Privileges, Todd Presnell wonders whether the result in the Marriott case would have been different under that standard, and it’s a good question.  Privilege disputes can be very fact-specific, and the test the court applies can certainly dictate the outcome.

A federal district court refused last week to disqualify a Connecticut lawyer in a suit against Yale University, even though finding a violation of the state’s version of Model Rule 4.2, the “no contact rule.”  Although ruling that disqualification was too extreme a sanction, the court ordered the turnover of interview notes from the lawyer’s interview of the improperly-contacted witness.

The case underscores the need to tread carefully when contacting anyone associated with the opposing party.

Coin curator’s claim

Yale University has an acclaimed art museum, and the museum’s former Curator of Coins and Medals sued the university for age discrimination after it terminated his employment.

In addition to being the museum’s coin curator, the plaintiff was an adjunct professor in the classics department.  The plaintiff’s lawyer phoned another professor in the department and interviewed him for 34 minutes as a potential witness, according to the opinion.  The other professor had never been involved in a law suit, and later said that it did not occur to him during the interview that he needed to consult with Yale’s lawyers before answering questions from the opposing side.

Yale’s counsel only learned about the interview six weeks later, and promptly moved to disqualify the plaintiff’s counsel for violating the no-contact rule, asserting that the professor interviewed was a represented “party” who was off-limits under the rule, absent consent from Yale’s lawyers.

Conceded “technical” violation

Connecticut’s Rule 4.2 differs from the Model Rule by barring communication about the subject of the representation “with a party the lawyer knows to represented by another lawyer in the matter,” without the other lawyer’s consent.  (The Model Rule uses the word “person,” not “party.”)  This raises the question “Who is included as a party?” for purposes of the no-contact rule, especially when an organization is a party.

Under the Connecticut rule comments, a “party” includes an organization’s employees with managerial responsibility; employees whose act or omission in connection with the matter may be imputed to the organization; and employees whose statements may constitute an admission of the organization.  While not express in the opinion, the profession presumably fell into one of these categories — perhaps the third one.

The plaintiff’s lawyer conceded that his interview raised a “technical violation” of Rule 4.2, but that it had been inadvertent, because the professor and the plaintiff were close colleagues and the lawyer regarded the professor as a witness on behalf of the plaintiff.  The lawyer argued that he had no intent to gain an unfair advantage, and that Yale was not prejudiced.

Trial taint needed for DQ

The district court agreed that the circumstances did not merit disqualification, notwithstanding the conceded rule violation.

As in many other jurisdictions, there is authority in the Second Circuit that disqualification motions require balancing the need to uphold ethical standards with a party’s right to freely-chosen counsel.  Therefore, an ethical violation, standing alone, might not be sufficient to mandate disqualification.  Many opinions in the Second Circuit and elsewhere hold that the remedy of disqualification is justified only when a violation poses a significant risk of trial taint.

The court agreed that disqualification was not necessary here.

Here, the district court explained, the taint concern was that the plaintiff’s lawyer had obtained confidential information about Yale’s litigation strategy from the professor, who had previously discussed the case with Yale’s lawyers.  The plaintiff’s lawyer had proposed to provide the court with the notes from the interview for in camera review; but the best remedy, said the court, was to order the lawyer to turn the notes over to Yale’s counsel.

Take-home lessons

If you’re involved in representing a client in any matter (not just litigation), you need to take heed of the no-contact rule.  As this case highlights, the rule comes in different flavors depending on jurisdiction.  While the case here involved disqualification, there is also always the possibility of disciplinary action from violating an ethics rule.  Last, the court’s order to turn over the interview notes — clear attorney work product — to the opposing party is a surprising remedy.  But obviously, such an order can’t be ruled out in circumstances that would appear to call for it.

Picture this:   You’re travelling across U.S. borders, heading home from a client meeting abroad.  However, unlike other trips, this time a Customs and Border Protection agent requests that you unlock and hand over for inspection your computer and cell phone — full of client confidential information.  You’ve been concerned about this issue, and so you’ve had your IT department encrypt all of the sensitive data on your devices.  Will that protect you client’s information from disclosure?

Ethics duties at the border

We wrote here last year about the ethics issues with border searches of e-devices, including the New York City Bar Association’s July 2017 opinion on how to deal with the duty of confidentiality in that scenario.

The NYCBA ethics committee advised that you may of course ethically comply with lawful government orders, but also that you should not comply “unless and until” you “undertake reasonable efforts to dissuade border agents from reviewing clients’ confidential information or to persuade them to limit the extent of their review.”

The concern about this issue was heightened by a sharp uptick in border searches of e-devices.  Customs officers searched an estimated 30,200 cellphones, computers and other electronic devices of people entering and leaving the U.S. last year — an almost 60 percent increase from 2016, according to Homeland Security Department data.

Most recently, in January 2018, the CBP revised Directive No. 3340-049, which includes procedures for searching information subject to attorney-client privilege.  Section 5.2 calls for segregating privileged material to ensure that it is “handled appropriately.”

Encryption – it’s no panacea

What about encrypting the client information on your e-device to make sure it stays confidential and won’t be revealed during a potential border search? That approach may be of limited use.

Section 5.3.3 of the revised CBP directive provides that if border officers can’t inspect your device “because it is protected by a passcode or encryption,” they may detain it and convey it (or a copy of its contents) to third parties who can supply “technical assistance.”

This is an indirect reference to the various U.S. intelligence agencies that are authorized pursuant to Section 2.6 of Executive Order 12333 to provide technical support and assistance to the CBP.  This aid may be derived from the National Security Agency, which leads the federal government in cryptology, or from the National Media Exploitation Center which consists of representatives from multiple intelligence agencies that are  responsible for decrypting, translating and analyzing documents and electronic devices in the federal government’s possession.

If CBP officers seek to decrypt and access the confidential information on your device, they likely have the authority and the technical resources, through federal intelligence agencies, to do so.

The magnitude of the risk, and what to do

Even though the 5,000 devices searched in February last year sounds like a lot, it’s only a tiny percentage according to CBP’s Office of Public Affairs. The agency says that in FY 2017, only about .007 percent of arriving international travelers screened and processed by CBP officers were required to submit to an e-device search.  That possibly points to a low risk for any one lawyer who might be returning from international travel.

But given the breadth of your ethics duty, and the limits on the ability of encryption to protect confidential client information on your devices, it would be a best practice to heed the advice that the NYCBA gave last year:

  • Depending on the circumstances, including the sensitivity of the information, you should consider not carrying any client confidential information across the border.
  • Rather than exposing your client’s information to disclosure in a search, you should securely back up client information and cross the border only with a blank “burner” phone or laptop.
  • And before coming back across the border, you should also turn off syncing of cloud services, sign out of web-based services, and/or uninstall applications providing local or remote access to confidential information.

Lawyers and their firms should consider incorporating these measures into their data security policies and practices. It’s what the times, and your ethics duties, would seem to call for.

Confession:  I’m a lawyer who’s married to a lawyer.  If that’s your situation too, then you know some of the challenges — how life at home falls apart when you both have trials scheduled; the strain on the budget in those early days when you’re paying off two sets of law school loans; playing rock-paper-scissors to decide who takes the sick kid to the office with them.

More than pillow talk

Now, from my home state of Ohio’s Board of Professional Conduct, comes a reminder about another challenge:  keeping your client’s confidential information confidential when you’re in a two-lawyer household.  There is always the temptation to talk shop, to discuss at the dinner table details of exciting work you’re doing, or even to give your spouse a leg up by sharing some work product you’ve created for your client.

It’s that last one that got two lawyers in trouble, according to the complaint filed by the Buckeye State’s Office of Disciplinary Counsel.  Two lawyers, both of whom practiced in the same area of law, first met at a trade association conference.  One had been admitted in 2001, and the other in 2010.  They dated (or “began a personal relationship,” as the complaint says), moved in together, and became engaged to be married.  They continued to practice at separate firms.

As the complaint alleges, after the lawyers moved in together, they began exchanging information relating to their clients, but without authority to do so.  More than a dozen times, said the complaint, one lawyer would forward to the other an e-mail from her client that requested a legal document — a contract, a waiver, or an opinion.  The other lawyer would respond by forwarding an e-mail with his client that attached that type of document.  The lawyers apparently didn’t scrub or redact the e-mails or the documents — rather, the exchanges revealed the identity of the clients and confidential communications that they had with their respective lawyers.

The complaint suggests that the lawyers were simply sharing the information and documents to help each other out at work.  “More often than not,” alleged the complaint, one of the lawyers “ultimately completed” the other lawyer’s work “relative to her particular client.”

The lawyer’s disclosures, over the course of nearly two years, were discovered by their respective law firms.

Discipline by consent

The result of the disciplinary complaint:  the lawyers each consented to discipline, acknowledging violations of Ohio’s version of Model Rule 1.6(a) (lawyer shall not reveal information relating to the representation of a client) and Ohio’s unique catch-all Rule 8.4(h) (lawyer shall not engage in “other conduct” that adversely reflects on lawyer’s fitness to practice law).

The lawyers also each agreed to a six-month suspension — but fully stayed on condition of no further misconduct.  The relatively light penalty is partly based on the finding that no clients were harmed.

The Board adopted the disciplinary panel’s recommendation in June — but the case is not over yet.  The Board’s recommendation now goes to the state supreme court, which can accept, or reject and modify it.

Avoiding temptation

It’s human nature to want to give professional help to your nearest and dearest when you can.  But there’s no question that sharing unredacted client documents and communications without consent can violate the duty of confidentiality — which is very broad, and extends to all information relating to the representation.  It’s hard to see how or why a client would ever consent to the kind of sharing that went on here.

My friend Brian Faughnan has an interesting take on this case, over at his blog — namely that lawyers who overshare believe the risk of getting found out is quite low because of the marital privilege.  He cautions, however, that in this digital age, things have a way of coming to light even without a spouse voluntarily providing information.

Bottom line:  Even the kind of casual sharing that falls into the category of shop talk between co-habiting lawyers can be ethically improper.  It’s hard to avoid that kind of temptation, but the necessity of doing so comes with the territory when your spouse or partner is not only a bed-fellow but a fellow member of the bar.

 

What are your ethics obligations when your client gives you documents that the client may not be entitled to have?  Model Rule 4.4(b), adopted in some form by most jurisdictions, provides some guidance.  Applying it, together with other principles, a New Jersey appeals court, in an unpublished ruling, recently disqualified a firm from representing the plaintiff in a  wrongful termination case.

“Burn files”

The disqualified firm’s client, Sanchez, was the former chief compliance officer at a pharmaceutical company.  After receiving a disciplinary warning as a result of complaints about his “deportment” involving employees who reported to him, Sanchez told management that he had personal copies of confidential files of his employer, which he called his “burn files.”  He said that he would use these “‘burn files’ to ‘f–k'” the employer “when they try to get [him].'”

Sanchez was fired two months later, and sued his employer for wrongful termination in New Jersey state court under the Garden State’s whistleblower law.

Sanchez gave the documents to his lawyers.  In discovery, the employer asked for any confidential documents that Sanchez had taken.  By the time Sanchez’s lawyers responded and acknowledged the “burn files,” nine months had passed.  Asserting that the documents had been improperly taken, contained trade secrets and were privileged, the employer moved to preclude their use and to disqualify Sanchez’s lawyers.

The trial court granted the motion, leading to the appeal.

Careful company policies

Several policies of the employer helped the court conclude that Sanchez wrongfully took the “burn files.”

  • Employees in general were required to protect the company’s confidential information and barred from “improperly possessing or using” it.
  • Another policy prohibited employees from accessing confidential or secret information outside the scope of their work responsibilities, and misusing or disclosing it.
  • As a high-level manager, Sanchez had also signed a contract agreeing to return documents and work-related data after leaving the company.

Interplay of discovery rules, ethics principles, other law

The court of appeals upheld the trial court’s orders, including disqualifying Sanchez’s lawyers.  New Jersey’s version of Model Rule 4.4, said the court, “impose[s] an ethical obligation on attorneys to safeguard confidential information of third persons.”  It provides that “a lawyer who receives a document … and has reasonable cause to believe that the document … was inadvertently sent shall not read the document … [and] shall (1) promptly notify the sender [and] (2) return the document to the sender…”

This rule, the court held, is coupled with the state’s discovery rules, which provide that a party who is notified that information produced in discovery is subject to a claim of privilege must promptly return, sequester or destroy it, and not use it until the privilege claim is resolved.  (New Jersey’s rule is like those in many other jurisdictions, and Rule 26(b)(5)(B) of the federal civil rules.)

The court also analyzed the state supreme court’s 2010 multi-factor test in Quinlan v. Curtiss-Wright Corp., holding that in some circumstances employees can  take and use employer confidential documents to prove claims under the state’s anti-discrimination statute.  Here, though, the court of appeals agreed that Sanchez was required to return the “burn files” that he removed “through self-help, pre-litigation measures.”

This case underscores that you must consider different sources of law in working through the issues presented when your client gives you documents that the client may not be entitled to have.  Both the discovery rules and ethics rules potentially apply, plus the rules on attorney-client privilege and relevant case law.

“Chaotic self-help battle”

The appeals court concluded there was reasonable cause here to believe that the documents Sanchez improperly took were privileged, and said that the judiciary must “prevent the discovery process from degenerating into a chaotic self-help battle.”

As for disqualification, the court said that having an opponent’s privileged documents weighs in favor of disqualification, because less-severe remedies “fail to adequately address both the [Rule 4.4(b)] violation and the attendant harm of access and exposure to privileged documents.”

The key to the ethics violation here, said the court of appeals, was the nine-month delay during which Sanchez’s lawyers failed to notify opposing counsel that they had the “burn files.”  That was an “unreasonable delay” that “rendered futile” any attempt to mitigate the harm caused by disclosing the documents.

Don’t get burned

Rule 4.4(b) and the obligation to notify the sender extends to documents that are “inadvertently sent.”  The question implicitly raised by this case is whether documents that the lawyer obtains as a result of being improperly taken by a party should be treated the same as those that are “inadvertently sent.”  The court here seems to conclude that the answer is “yes,” but without any explicit analysis that would provide guidance.  Nonetheless, the lawyer’s mere exposure to the opposing party’s privileged documents would apparently have been enough, in this court’s view, to mandate the remedy of disqualification.

Bottom line:  be sure you consider all the sources of law that might apply, including ethics rules, when your client drops “burn files” in your lap — otherwise, you might end up getting burned with a DQ order.

We’ve written before about what you can and cannot say when withdrawing from representation.  Now a Texas bar ethics opinion adds a twist:  what can you tell an insurance company that retains you to represent its insured, when the client won’t cooperate?

Lonely in the Lone Star state

A Texas lawyer had a quandary.  An insurer had assigned Lawyer to defend its insured in a state court personal injury action arising out of a car accident.  For a while, the client cooperated.  Then — radio silence.  Lawyer tried contacting the client by various means, including having an investigator track the client down to ask him to contact Lawyer.

The client’s non-cooperation made it difficult or impossible to defend the suit, and exposed Lawyer to sanctions for not answering discovery requests.  Lawyer also realized that the client’s failure to communicate might violate the cooperation provision of the insurance policy, and result in the insurer withdrawing coverage.

Lawyer’s investigator finally delivered a letter to the client, warning that Lawyer would move to withdraw if the client didn’t contact Lawyer.  Receiving no response, Lawyer prepared to withdraw, and asked for guidance on what he could disclose to the insurance company  about the reasons for withdrawing.

Silence is golden

You can’t say much, answered the state bar ethics committee.  “At a minimum,” the committee said, the client’s “failure to communicate with Lawyer is unprivileged client information.”  Under the state’s version of Model Rule 1.6, that meant that it was confidential information that Lawyer could not disclose to third parties or use to the disadvantage of the client, including in the context of withdrawing from the representation.

No exception to the general confidentiality rule applied here, noted the committee.  For instance, like the Model Rule, the Texas rule allows lawyers to disclose confidential client information in order to carry out the representation.  It’s sensible to regard that kind of disclosure as always being impliedly authorized, because otherwise, we could not negotiate with opposing counsel, for instance.  But the disclosure here would not be for the purpose of representing the client, the committee said — rather, it would be for the purpose of ending the representation.

Therefore, in withdrawing, the Lawyer was advised not to reveal the client’s failure to communicate in order to explain either to the insurance company or the court the reason for Lawyer’s withdrawal.

The committee cited the  ABA Ethics Committee’s 2016 Opinion 476, which considered what you can say to the court when withdrawing for non-payment, and which, like the Texas opinion, advises that the information is within the scope of your confidentiality duty to the client.

Take home lessons

  • Bear in mind that even the most difficult client is still your client; the Texas opinion points out that there’s no free ethics pass even when the client stops communicating with you.
  • And in the insurance defense context, the insured is a client for ethics purposes, despite the fact that the insurance company has assigned the case to you and is paying your fees.

If you believe that you may have materially erred in a current client’s representation, your duty of communication under Rule 1.4 requires you to inform the client.

That’s the unsurprising conclusion that the ABA’s Standing Committee on Ethics and Professional Responsibility reached in its latest opinion, issued April 17.

Of note, though, is that the Committee firmly concluded that no similar duty applies to former clients. Also interesting is the excursion into substantive law that the Committee takes in order to delineate when a current client becomes a former client.

What we have here is a duty to communicate…

Even if you’ve only seen the Paul Newman classic Cool Hand Luke on YouTube clips, you know the classic line about communication. Not failing to communicate is important whether you’re on a chain gang or just working hard for your client.

As the ABA Committee said in the opinion, unfortunately, “even the best lawyers may err in the course of clients’ representations,” and if material, you have to ‘fess up to the client. “An error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”

The Committee identified several parts of Rule 1.4 that potentially apply where a lawyer may have erred in the course of a current client’s representation:

  • the duty to reasonably consult with the client about how the clients objectives are to be accomplished;
  • the duty to keep a client reasonably informed about the matter;
  • the duty to comply with reasonable requests for information; and
  • the duty to explain a matter so that the client can make informed decisions about the representation.

Errors exist along a continuum, the Committee said, ranging from errors like missing a statute of limitations, which can undermine the client’s objective, to minor typographical errors, or missing a deadline that only causes delay.
It’s not only errors that could support “a colorable legal malpractice claim” that must be communicated – because an error can “impair a client’s representation even if the client will never be able to prove all the elements of malpractice.”

Rather, the measure of the obligation to disclose errors to current clients is the materiality of the error.

But not to former clients

Significantly, “nowhere does Rule 1.4 impose on lawyers a duty to communicate with former clients.” That led the Committee to conclude that although a lawyer must inform a current client of a material error, there is no similar duty to former clients.

But how do you distinguish between current and former clients? For instance, if you represent a client only “episodically,” is the client a “current client” in between times?

Interestingly, the Model Rules themselves, and their state analogs, decline to touch those issues; rather, in order to determine whether a lawyer-client relationship exists, a lawyer must consult “principles of substantive law external to these Rules,” says section 17 of the Scope section.

The Committee, however, was not reluctant to deal with substantive law principles, and undertook a case analysis, concluding that “if a lawyer represents a client in more than one matter, the client is a current client if any of those matters is active or open,” and that the “episodic” client’s reasonable expectations guide whether it is a current or former client.

Calling all gurus

Once you’ve determined that you have a duty to communicate with a current client about a material error you’ve made, or even during the process of that decision, you are going to want to get some expert ethics advice. In its opinion, the Committee points to the confidentiality exception that Rule 1.6(b)(4) extends, permitting a lawyer to reveal client confidential information to get legal advice about complying with the Rules.

We’ve also written before about the trend toward upholding the in-house firm counsel privilege, which can allow that type of advice to fall within the attorney-client privilege.

In any event, this is an area where it pays to tread carefully, in order to maintain the rights of both lawyers and clients.

We’ve written before about the breadth of the duty of confidentiality we owe to our clients, and how it even extends to matters that you think are safe to discuss because they are of “public record.”   (See here and here.)  Now comes the ABA’s latest on the subject of lawyer “public commentary” — Formal Opinion 480 (Mar. 6, 2018).  And it prompts us to be wary of a couple pitfalls when it comes to what we say about clients in online articles, on twitter, at webinars, in podcasts and through traditional print publications — all of which the opinion refers to as “public commentary.”

Duty “extends generally”

All such public commentary, the ABA reminds us, whether on-line or not, must comply with the relevant jurisdiction’s version of Model Rule 1.6.  The rule requires us to maintain the confidentiality of all information relating to the representation of a client, unless that client has given informed consent to the disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by a specific exception in Rule 1.6(b).

The confidentiality rule, as is frequently said, is much broader than the attorney-client privilege, and includes all information relating to the representation, whatever its source.  Even the identity of the client is usually deemed to be confidential information, the ABA ethics committee notes in this newest, foot-note-heavy opinion.  And, adds the committee, it’s highly unlikely that a disclosure exception (except for consent) would apply when a lawyer engages in this sort of public commentary.

Don’t hype the hypo

That brings us to “hypotheticals.”  We all use them — from law profs in class, to lawyers seeking informal practical advice from colleagues at other firms, to gurus of various stripes who use real-life examples at legal CLE seminars.  But, says the ABA committee, beware:  “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.”

For example, in a widely-reported case mentioned in the ABA opinion, an Illinois lawyer got a 60-day suspension in her home jurisdiction for violating  Rule 1.6, when she blogged about her criminal defense clients using either their first names, a derivation of their first names, or their jail ID number.  Reciprocal discipline was imposed in Wisconsin.

In light of the ABA opinion, you’re going to want to make sure that any real-life client situations you describe in  public commentary is so thoroughly disguised that no one can tell that it’s real.  If you’re using social media to educate and engage, there’s arguable benefit in discussing actual situations in a hypothetical way, while being sure to scrub the real facts out.  But as we’ve said before, if you’re just making cocktail party chit-chat, why even go there?  It’s not worth the risk of divulging confidential client information.

Trial publicity statements

The ABA opinion also briefly notes the constraints that Model Rule 3.5 puts on using public commentary to influence the court of public opinion.  The rule prohibits a lawyer from seeking to influence a judge, juror, prospective juror, or other official by means prohibited by law, and cites the case of a Louisiana lawyer disbarred for, among other things, using an internet petition campaign to contest the rulings of a judge presiding over a custody dispute involving her client.  That kind of conduct can also obviously lead to trouble.

All in all, the new opinion is a straightforward application of Rule 1.6 to this age of public commentary; but it is a good wake-up call for those who need one.

One of Bill Cosby’s accusers can continue with her defamation suit, the California state court of appeals said in an opinion late last year, holding that the trial court erred when it used the state’s anti-SLAPP law to partially strike Janice Dickinson’s complaint against the entertainer. Dickinson had based one of her claims on statements reacting to Dickinson’s claims that Cosby’s lawyers made in letters to media outlets.

The case could be a caution flag – at least under California law – for lawyers who label accusations against their clients as “lies.”

“Fabricated” and “an outrageous … lie”

Immediately after Dickinson went public on Entertainment Tonight with her claims that Cosby drugged and raped her in 1982, Cosby’s lawyer, Martin Singer, sent demand letters to Good Morning America and several other media outlets calling her assertions “fabricated and … an outrageous defamatory lie,” and explicitly threatening to sue them if they disseminated Dickinson’s claims further. The next day, Singer also issued a press release calling Dickinson’s accusations against Cosby “a lie.”

Dickinson sued for defamation based on the statements in the demand letter and the press release; Cosby responded with a motion to strike the complaint, under California’s anti-SLAPP law.

The trial court issued a divided opinion. It found the statements in the demand letter to be protected by the absolute litigation privilege; but the trial court rejected Cosby’s argument that the press release statements merely expressed a protected opinion, and held that Dickinson had shown a probability of prevailing on her defamation claim as to the press release. Both sides appealed.

The state court of appeals unanimously agreed that the trial court had gotten it right as to the press release, but reversed as to the demand letter, holding that the litigation privilege did not shield Singer’s statements on behalf of Cosby.

Litigation privileged?

California law, like that in other jurisdictions, extends an absolute privilege to statements made in connection with judicial proceedings. (California’s privilege is codified here.) The privilege is broad, and includes pre-litigation statements made in furtherance of the objects of the litigation.

A demand letter can qualify for the litigation privilege — but only when it relates “to litigation that is contemplated in good faith and [is] under serious consideration.” “Even a threat to commence litigation will be insufficient to trigger application of the privilege if it is actually made as a means of inducing settlement of a claim, and not in good faith contemplation of a lawsuit,” noted the court of appeals, citing a key 2007 state supreme court case.

Here, the court of appeals said, the letter was sent only to media outlets that had not yet run the story of Dickinson’s rape accusations, but indicated that they planned to; and when some of the news outlets ignored the demand letter and ran the story anyway, Cosby never followed through on the litigation threat in Singer’s demand letter, and never sued.

The court ruled that this evidence supported a prima facie inference that the demand letter was sent without good faith contemplation of seriously-considered litigation; rather, said the court of appeals, the letter “was a bluff intended to frighten the media outlets into silence (at a time when they could still be silenced), but with no intention to go through with the threat of litigation if they were uncowed.” Thus, the letters were merely “hollow threats of litigation” that did not qualify for the absolute litigation privilege.

Results may vary

The court of appeals noted and rejected the applicability of federal court decisions arising out of other claims against Cosby, including other statements that Singer made on his behalf; those cases were decided under Michigan and Pennsylvania law.

The point that the outcome in a defamation case is extremely dependent on particular state-law wrinkles is important. California’s strong authority on the litigation privilege and especially the high bar for showing that pre-litigation communications are serious threats of litigation, not settlement “bluffs,” spelled the difference here.

The law in your own jurisdiction may differ. In my home state of Ohio, for instance, similar authority appears lacking. But for cases under California law, the Dickinson ruling is instructive on the limits on privilege when it comes to calling the other side a liar.