Month: March 2018

OTHERWISE: ‘Generally Known?”: ABA Clarifies Attorney’s Duty of Confidentiality | Legal Ethics in Motion

George ConkLeave a comment

‘Generally Known?”: ABA Clarifies Attorney’s Duty of Confidentiality | Legal Ethics in Motion Professional Responsibility and Ethics Progra…

Source: OTHERWISE: ‘Generally Known?”: ABA Clarifies Attorney’s Duty of Confidentiality | Legal Ethics in Motion

In December, the ABA issued Formal Opinion 479, clarifying the concept of “generally known” in ABA Model Rule 1.9(c)(1). Under the rule, “A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these rules would permit or require with respect to a client.”

Confidentiality is one of the foundational concepts of professional responsibility, and an attorney’s duty of confidentiality extends to both former and current clients. ABA Model Rule 1.9(c)(1) provides that an attorney cannot use information related to the representation of a former client in a way that disadvantages that client devoid of their informed consent, unless that information has become “generally known.”

The “generally known” exception of Rule 1.9(c)(1) has been the subject of some debate. As such, the ABA Standing Committee on Ethics and Professional Responsibility recently provided guidance on the connotation of this exception in Formal Opinion 479. Courts have held that information is “not generally known just because it’s a public record or in a court filing. The information must be within the understanding and knowledge of the general public.” Opinion 479 states that information is generally known if “(a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession or trade.” The ABA Opinion adds that information can become widely recognized through “traditional media sources, such as newspapers, magazines, radio or television; through publication on internet websites; or through social media.”

Additionally, the Opinion states that “information that is publicly available is not necessarily generally known.” “Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).” The opinion adds that “for information to be generally known, it must previously have been revealed by some source other than the lawyer or the lawyer’s agents.”

Opinion 479 is in concurrence with numerous state bar ethics opinions, such as the 2017 New York State Bar Association Committee on Professional Ethics, which state that “information is not ‘generally known’ simply because it is in the public domain or available in a public file.”

Read ABA Formal Opinion 479 here. To read the ABA Journal article on the Opinion, click here.

Reasonable Fee for Law Clerk Cannot equal lawyers’ fees  | Legal Ethics in Motion

George ConkLeave a comment

Attorney-Client Relationship | Legal Ethics in Motion by Professionl Responsibility and Ethics Program/ University of Miami Law School Las…

Source: OTHERWISE: Attorney-Client Relationship | Legal Ethics in Motion

Last month a Tampa attorney settled a case brought against her by the Florida Bar for, among other things, charging excessive fees. The Florida Bar’s complaint specifically stated that the attorney’s “hourly rate of $400 per hour for the services of law clerks was clearly excessive.” While the Florida Bar has brought claims against attorneys for unethical billing practices, it has generally avoided the question of law clerk fees. This case clarifies that, in the eyes of the Florida Bar, law clerks are non-lawyers and cannot be billed at the same rate as an attorney admitted to the state bar.

From the ABA Journal: “Opinion makes confidentiality exception for ‘generally known’ info”

Renee KnakeLeave a comment

Here are my thoughts on the new Formal Opinion 479 from the ABA Standing Committee on Ethics and Professional Responsibility offering guidance about what constitutes “generally known” information under ABA Model Rule 1.9, as published in the March 2018 issue of the ABA Journal.

“I agree that this definition makes sense, though I don’t think it necessarily resolves what is generally known in every instance,” says Renee N. Knake, who teaches legal ethics at the University of Houston Law Center and recently co-wrote Professional Responsibility: A Contemporary Approach. “Inevitably gray areas will arise, but I do think that the opinion offers helpful guidance as to what may constitute ‘generally known.’ ”

She says questions remain as to what “minimum threshold of publications” are necessary to establish that the information is generally known.

“What about other sources, such as a public survey or opinion poll?” she says. Regarding wide recognition in the former client’s industry or profession, Knake asks whether it is “possible to rely as well on expert opinions.”

Further, “information that is publicly available is not necessarily generally known,” the opinion reads. “Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).”

“The opinion is striving to achieve a balance here,” Knake says. “Defining ‘generally known’ to include any public record would address the gray area problem, but it doesn’t sufficiently protect the sort of information contemplated under the umbrella of confidentiality afforded by Model Rule 1.9.”

Model Rule 1.9(c)(2) prohibits a lawyer from “revealing information about a former client,” Knake says. “The difference between ‘reveal’ versus ‘use’ is significant, and the lawyer may only use a public record that has otherwise been revealed by another source and spread widely.”

You can read the full article here: http://www.abajournal.com/magazine/article/ethics_opinion_makes_confidentiality_exception_for_generally_known_info

 

 

 

 

 

 

 

 

District Court Creates Guide for Attorney-Client Privilege in the Corporate Context

Peter JoyLeave a comment

Law students and lawyers alike often go down the rabbit hole when considering what is and is not attorney-client privilege communications in the corporate context. On February 23, 2018, Judge Michael M. Baylson of the U.S. District Court for the Eastern District of Pennsylvania released an order in SodexoMagic LLC v. Drexel University that sets out a set of hypotheticals for the parties to determine when privilege exists.  He comprised this set of hypotheticals after reviewing 50 documents in camera submitted by the parties as samples of disputed claims of privilege.

This court order is an extremely valuable resource for explaining privileged communications that can be withheld from production, and those that are not.  The challenged communications involved internal emails within the two corporations.  Some of the emails were between corporate counsel and employees of the corporation, and some were between others working with the corporate attorneys acting on their behalf.  When the corporate attorneys or their subordinates, such as paralegals, were providing legal advice, the privilege applied.  When the lawyers or their subordinates were “acting in a purely ‘scrivner-like’ role, their emails and documents (including draft agreements) are themselves not privileged communications.”  Judge Baylson then proceeds to analyze 13 of the emails and documents and explains which are and are not covered by attorney-client privilege.

This is a great order to review attorney-client privilege, and one that will make it into the next edition of Professional Responsibility: A Contemporary Approach!