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.

A Washington lawyer was disbarred last month by the state supreme court in a disciplinary case with an interesting array of issues:  the heavy penalties for using trust account money to “rob Peter to pay Paul;” the danger of treating the representation of a relative too casually; “compassion fatigue” as a potential mitigating factor in lawyer discipline; and the application of the Constitutional protection against double jeopardy in the disciplinary setting.

Rob Peter, pay Paul

The lawyer was a sole practitioner with a personal injury practice.  Alerted to overdrafts in his client trust account, disciplinary counsel investigated and found numerous irregularities:

  • The lawyer transferred trust account money to his operating and personal accounts when they were overdrawn or short of funds, in the process converting more than $10,000 to his own use.
  • He also failed to pay several clients the full amounts of settlements they were entitled to, and made misrepresentations to them in the process.
  • The lawyer shuffled money in and out of the trust account, using funds properly belonging to one client to pay settlement amounts owed to others.

Misusing and misappropriating client funds in these kinds of ways is the most serious ethics breach in the rule-book, and the court found violations of Washington’s versions of Model Rule 1.15 (Safekeeping Property) and Rule 8.4(c) (dishonesty, fraud, deceit and misrepresentation).  In Washington, as in many jurisdictions, the presumptive penalty is disbarment.

All in the family

Additional counts of the disciplinary complaint involved the lawyer’s representation of his nephew in a car accident case.  There was no fee agreement, but the lawyer eventually settled the case for $90,000 and took a $20,000 fee.  Later, however, after a change in Washington law, the tortfeasor’s insurer sent the lawyer more than $17,000 as an additional settlement payment.  The lawyer failed to notify the nephew, signed his nephew’s name on the check and eventually disbursed it to his office account, using it to pay bills.

The lawyer testified that his sister — the client’s mother — authorized him to negotiate the check, and that the nephew’s drug problem made it inappropriate to give the additional settlement money to him.  The sister had power of attorney over her son at one point, but it had expired long before the lawyer distributed the additional settlement funds to himself without the client’s knowledge or permission.

The court found that in addition to violating the trust account rules and converting the funds dishonestly, the lawyer violated the state’s version of Model Rule 1.4 (Communication).

“Compassion fatigue”?

The lawyer argued that the disciplinary board, which unanimously recommended disbarment, should have considered his emotional problems as a mitigating factor.  In the same year that he committed the charged misconduct, he had lost three personal injury trials in a row.  A psychiatrist testified at the disciplinary hearing that these losses and the lawyer’s over-identification with his clients led to “compassion fatigue,” a syndrome in which people in the helping professions become ill themselves as a result of working with traumatized populations.

The lawyer’s expert witness said that symptoms of “compassion fatigue” can include becoming “jaded,” and mentally disassociating from daily life, and that it had caused the lawyer to become careless and to avoid the stress of dealing with his bookkeeping.

The court accepted the concept of “compassion fatigue” as a potential mitigating factor.  Under Washington law, the mitigating factor of emotional problems requires merely some connection between the asserted problem and the misconduct; the court found that the psychiatrist’s expert testimony established that connection at least as to  some of the lawyer’s misconduct.

Nonetheless, the court said, under the totality of the circumstances, the lawyer’s emotional problems carried “little weight.”  “Compassion fatigue” did not actually cause the lawyer to forge his nephew’s signature, or convert client funds, the court said; and he testified that he was still aware of his ethical obligations.

In order to justify mitigation where the presumptive sanction is disbarment, the court noted, the circumstances must be “extraordinary.”  Here, they were not, and the failure to preserve the integrity of his clients’ funds led the court to rule that the lawyer’s emotional troubles could not reduce the sanction.

Double jeopardy and lawyer discipline

Last, the lawyer argued that being charged with multiple rule violations stemming from single instances of misconduct meant that he was being punished more than once for the same conduct, in violation of the Constitutional protection against double jeopardy.

This was an issue of first impression in Washington.  However, numerous jurisdictions have considered whether the double jeopardy clause is implicated in lawyer disciplinary proceedings, and answered “No,” and the Washington Supreme Court was persuaded by these holdings.  The weight of authority is that the sanctions for professional misconduct — reproval (or admonishment or reprimand), suspension or disbarment — are not criminal sanctions (which consist of fines or incarceration).  Thus, disciplinary sanctions are not “punishment” for purpose of the double jeopardy clause, the court held.

client filesThe ABA Ethics Committee last week issued an opinion aimed at giving guidance on a sometimes-puzzling question:  what portions of the file does a lawyer have to provide to a client at the end of the matter — including a client who pulls the plug on the representation?

In Opinion 471, the Committee interpreted Model Rules 1.15 (Safekeeping property) and 1.16(d) (Protecting client’s interest on termination of representation).  Based on its own prior 1977 informal opinion, the Committee again endorsed the “end-product” approach — actually followed by only a minority of jurisdictions.

Under that approach, the client is not necessarily entitled to the entire file at the termination of representation.  Rather, what the lawyer must surrender are documents that are the end product of the lawyer’s services.  In contrast, the lawyer is not required to automatically surrender material that may have led up to the creation of that end product.

The Committee’s laundry list of some items exemplifying the end products of a representation include:

  • materials the client has provided to the lawyer;
  • legal documents filed with a tribunal — and those completed and not yet filed;
  • executed instruments, like contracts;
  • orders and other records of a tribunal
  • correspondence issued or received on relevant issues, including e-mail and other electronic correspondence that has been retained according to a firm’s document retention policy;
  • evaluations or records the client has paid for;
  • discovery materials.

Exempted from the definition of end products:  material that the lawyer generated for internal use, or for the lawyer’s own purpose in working on the client’s matters — especially when those matters are already concluded.  So, among the things that lawyers do not necessarily have to return at the end of the representation:

  • drafts;
  • internal legal memos and research materials;
  • internal conflict checks;
  • hourly billing statements;
  • notes regarding an ethics consultation.

The last two items are interesting.  Hourly billing statements will likely be relevant in any fee dispute, and subject to a discovery tussle to the extent not turned over to the client.  And notes of internal ethics consultations have been the subject of sharp dispute when clients and lawyers sue each other, centering on whether the attorney-client privilege applies.  (We’ve discussed that dispute before, here.)

Even while again adopting the end-product approach, the Committee emphasized that it can’t be applied mechanically. Especially if the matter is not finished when the client ends the representation, “the former client may be entitled to the release of some materials the lawyer generated for internal law office use primarily for the lawyer’s own purpose…”  A lawyer’s obligation under the rules “reasonably gives rise to an entitlement to those material that would likely harm the client’s interest if not provided,” and sometimes that may involve turning over internal or preparatory materials.

It’s been noted that the Committee’s opinion appears to avoid as many questions as it answers.  And the opinion does seem to say that lawyers don’t have to turn over preparatory materials …. unless they do.

But as much as we may want black and white answers to our ethics questions, this is not an area where that’s possible, and lawyers will continue to have to make reasoned judgments about what their obligations are when it comes to  handing back client files.  And as always, check your own jurisdiction’s rules and ethics opinions; they will vary.