The California State Bar has solicited comment on its proposed Formal Opinion No. 17-0003 regarding duties of confidentiality to and avoidance of conflicts of interest to prospective clients. The deadline for comment is March 22, 2021. – gwc
This week, the ABA released a formal opinion clarifying (somewhat) the obligations lawyers have when a data breach occurs involving (or having a substantial likelihood of involving) material client information.
Just in time for Cybersecurity Awareness month 2018.
You can find Formal Opinion 483 here.
The recent search of President Trump’s Lawyer, Michael Cohen’s, office, home, safety deposit box, and hotel room is a very big deal when it comes to issues of attorney-client privilege and client confidentiality. It has been reported that the search is part of an investigation into Cohen for possible bank fraud and wire fraud. President Trump has tweeted that attorney-client privilege was “dead” and “now a thing of the past.” As the case before Judge Kimba Wood in the Southern District of New York is demonstrating, President Trump is wrong and he just doesn’t understand attorney-client privilege.
Judge Wood has yet to decide who will have the first look at materials the government seized with the search warrant, though she has signaled that it won’t be President Trump, most likely won’t be Cohen, and may not be a government “taint” team walled off from the prosecutors doing involved in the investigation. Rather, it is more likely that Judge Wood will appoint a special master to review the material and decide what is and is not covered by attorney-client privilege and possibly work-product. Both attorney-client privilege and work product are allied with client confidentiality, and all three rules or doctrines are based on the assumption that effective legal representation requires free and open communication between client and counsel. All three are aimed at encouraging such open communication by keeping certain information from one’s adversary and the public.
Faculty teaching attorney-client privilege, client confidentiality, and work-product should think about using the issues Judge Wood and possibly a special master have to consider. For example, the materials seized will likely contain the following information:
- Client names;
- Communications between Cohen and clients; and
- Possible materials prepared in anticipation of litigation if Cohen worked on any matters in which litigation was a possibility.
Ask your students to be the special master, and ask them to identify which category or categories apply to the above materials or information. When it comes to the communications between Cohen and clients, the students will need more information to see if the communications fit the definition of attorney-client privilege: (1) a communication; (2) made between privileged persons (typically the lawyer and client); (3) in confidence; and (4) for the purposed of obtaining or providing legal advice or other assistance to the client. Communications that do not involve legal advice would not be covered. Also, communications in furtherance of a crime or fraud would fit the crime fraud exception.
When it comes to client names, they are not covered by attorney-client privilege. On the other hand, the names may be covered by client confidentiality as “information relating to the representation of a client” under Rule 1.6(a), as New York State Bar Association Ethics Opinion 1088 (2016) explains. There are some state advisory ethics opinions take a different position, such as California Formal Op. 2011-182 (2011), which stated: “In most situations, a client’s identity is not considered confidential . . . .” This is just another reminder that it is important for a lawyer to research and understand how one’s jurisdiction is likely to approach ethics issues.
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!
Yesterday, the ABA issued a formal opinion on attorney email encryption, providing that while encryption is not required always, it may be – and to determine if it is, a lawyer must understand certain things, including how information is transmitted and where it is stored.
Great summary of (and link to) the opinion here.
When a lawyers tries to withdraw for a client’s failure to pay, the lawyer must take care to avoid breaching the Rule 1.6 duty of confidentiality, according to the December 2016 opinion. But what does this mean, practically speaking? I see this as yet another tension between the law as a profession v. the law as a business.
“If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business. A lawyer can’t be a professional unless she can get paid.”
More thoughts via the ABA Journal article Lawyers Should Tread Carefully Before Quitting a Troublesome Client.
This week, the Federal Circuit found that “patent agent”-client privilege exists independent from the attorney-client privilege, resolving a district court split, according to IPethics and INsights.
While the court recognized the “presumption against the recognition of new privileges,” including that “courts have consistently refused to recognize as privileged communications with other non-attorney client advocates,” it found “that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent litigation counsel in favor of recognizing an independent patent-agent privilege.”
I find this decision particularly interesting in light of the increasing numbers of non-lawyer legal services providers. While the privilege will no doubt remain sacred, the court’s reasoning did rely on the “clear congressional intent to authorize an agency to create and regulate a group of individuals with specific authority to engage in the practice of law,” a factor which will no doubt be relevant as our regulatory scheme increasingly embraces alternative legal service providers.
h/t to Wake Law Student and Patent Agent John Sears.
I’ve only seen one of the films nominated for an Oscar this season—Spotlight—and it has haunted me. (Fair warning: spoilers ahead, though the film is well worth viewing even knowing how it unfolds.)
This gripping film recounts the true story of Boston Globe editor Marty Baron’s decision to assign the newspaper’s “Spotlight” team of investigative reporters to examine sex abuse allegations against Catholic priest John Geoghan. The reporters’ interviews of victims and efforts to unseal sensitive court documents eventually led them to what we now know was an extensive cover-up of abuse by the Roman Catholic Church over many years involving not just Geoghan but thousands of priests. (The Globe won the 2003 Pulitzer Prize for Public Service based upon this reporting.) The film features brilliant acting by Michael Keaton as editor Walter “Robby” Robinson, Rachel McAdams as reporter Sacha Pfeiffer, and Mark Ruffalo as reporter Michael Rezendes, among others. Most intriguing to me, however, was the role of lawyers in the film, including Erik MacLeish, who represented numerous abuse victims in securing private settlements, and Jim Sullivan, who defended priests accused of abuse and was a long-time friend of Robby Robinson.
The film raises significant questions about legal ethics and personal morality. How do we reconcile the sanctity of confidentiality and attorney-client privilege against the moral dilemma of knowledge about a client’s outrageous acts? It is one thing to maintain confidentiality in representing someone accused of an isolated crime that occurred in the past, but what if a lawyer has information that could prevent hideous child abuse from occurring in the future?
Robinson repeatedly asks Sullivan to become a confidential source by confirming the names of child molesting priests as the Globe’s list of suspects grows. Sullivan struggles—the film captures this beautifully and painfully—then finally relents, confirming dozens of names on the Globe’s list.
MacLeish obtains settlements for hundreds of victims, all subject to strict confidentiality agreements. His work is critiqued by the reporters as essentially being a cottage industry at the expense of future victims, because the settlements prevent the abuse from becoming public. MacLeish maintains that the short statute of limitations and statutory cap on recovery made settlement the best possible outcome for his clients. Perhaps that is true for the individuals he represented; but what about the children who continued to be abused? Does settlement in a situation like this achieve justice or undermine it? (Read Owen Fiss’s Against Settlement for more on that topic.) Here again, MacLeish faces the moral dilemma of whether or not to reveal confidential information. We learn late in the film that he sent information to the Globe many years before the Spotlight investigation occurred; the Globe failed to follow up on it.
What is the role of lawyers in a massive abuse scandal of this nature? Should there be an exception to client confidentiality protections or attorney-client privilege? Does Model Rule 1.6’s exception for breaching confidentiality to prevent an act that is reasonably certain to result in substantial bodily harm apply here?
This article from the Globe’s Spotlight team reporting on the abuse scandal in 2002 offers some answers while at the same time raising even more questions:
“Plaintiff lawyers settle cases confidentially all the time,” said Paul J. Martinek, editor and publisher of Lawyers Weekly USA, a professional journal. “But if you know your client’s been raped by a priest and you settle the case confidentially, knowing that the priest could go out and do it again, your hands aren’t entirely clean.”
Middlesex District Attorney Martha Coakley has also had harsh words for some attorneys who represent victims of priests, saying in an interview that “the plaintiff lawyers bear some responsibility” for keeping abuse by priests out of the public eye by settling cases confidentially.
Looking back, silence has become hard to take
Boston attorney Laurence E. Hardoon, who took on his first clergy sex abuse client in 1992 and has since handled between 20 and 30 such cases, reflected on his role in this ugly chapter with a twinge of regret.
“If we had any inkling whatsoever of the magnitude of harm that was out there, maybe we, as a joint group of plaintiff lawyers, would have tried to encourage our clients to be outspoken in many cases,” said Hardoon, who formerly served as a Middlesex assistant district attorney. “It’s hard not to look back and say the greater good would really have been served by the lack of secrecy earlier on.”
Jeffrey A. Newman, of the Boston firm Newman & Ponsetto, has represented scores of alleged clergy sex abuse victims, and voiced a public mea culpa over his involvement in a handful of earlier cases that he settled secretly.
“Had I been more astute, I probably could have recognized the problems better,” Newman said. “I just never took the time to examine them closely enough.”
But MacLeish, Hardoon, Newman, and other plaintiff lawyers also say they were hamstrung by restrictive state laws that limited their ability to press charges against alleged offenders. They also blame legislators for failing, until recently, to require church officials to report suspected abuse. They and others have also pointed a finger at judges, prosecutors, and the press for being too deferential to the church over a long period of time.
They argue they were torn between their obligation to zealously represent their damaged clients, few of whom wanted their personal lives exposed in a courtroom, and the church’s reluctance to settle cases without confidentiality clauses. As a result, some legal experts say, secrecy was often the only option.
“If you can get $100,000 or $500,000 for your client and the price of that is silence, the lawyer’s sort of in a bind,” said Andrew L. Kaufman, who teaches ethics at Harvard Law School and sits on ethics committees for the Massachusetts Bar Association and Supreme Judicial Court.
“Ultimately, it’s the client who instructs the lawyer on whether to accept the offer,” Kaufman said. “And as long as a confidential settlement is lawful, sometimes a lawyer’s got no choice but to accept it.”
(Cross-posted at the Legal Ethics Forum)
In Formal Opinion 473 (Feb. 17, 2016), the ABA provides new guidance to lawyers receiving subpoenas for client documents or information. The opinion states that whenever a lawyer receives a subpoena or any other compulsory process for documents or information relating to the representation of a client, several obligations are implicated. First, the lawyer must consult with the the client, if the client is available. Next, unless the client instructs otherwise, the lawyer must assert all reasonable claims against disclosure and seek to limit the scope of any disclosure. Next, if ordered to produce any information, the lawyer should consult with the client on whether to appeal the ruling. Finally, if the client and the lawyer disagree on how to proceed, the lawyer should consider whether to withdraw from the representation pursuant to Rule 1.16.
The new opinion goes into some detail to explain what the lawyer should do if the client is unavailable, and to the duty to take steps to protect client confidentiality. The opinion should be a very helpful resource to any lawyer facing attempts to pierce client confidentiality.
The new opinion is also a useful addition to Formal Opinion 10-456 (July 14, 2010), which addressed the disclosure of client information to a prosecutor when a lawyer’s former client brings an ineffective assistance of counsel claim. Formal Opinion 10-456 makes clear that a lawyer may only disclose confidential information that the lawyer believes is reasonably necessary for the lawyer’s self-defense.
Let’s revisit a 2015 Indiana State Bar Legal Ethics Committee Opinion (see our previous post here). Contemporary Professional Responsibility co-author Peter Joy explains in the ABA Journal this month how a conflict between a state statute and a binding Rule of Professional Conduct may create risk for lawyers. The Opinion covers an Indiana statute that requires immediate reporting by those “who have reason to believe” that a child is an abuse or neglect victim; lawyers are not exempt from reporting. The ethics opinion considers how this can be squared with Rule 1.6, finding, as Professor Joy explains, “that a lawyer only has to follow the law and report child abuse or neglect necessary ‘to prevent reasonably certain death or substantial bodily harm,’ which is the standard in Indiana’s confidentiality rule for permissive reporting of a client’s confidence.”
This is a great teaching example of how other rules governing lawyers – beyond the Rules of Professional Conduct – may create confusion, or even a conflict with the binding RPC. A good example for Chapters 1 or 4.
If you are looking for a way to introduce cutting-edge issues into Chapter 4 on lawyer confidentiality, you can refer to a CCBE press release about an October 27, 2015 decision from the Dutch Court of Appeals regarding lawyer surveillance. The CCBE is the acronym for the Council of Bars and Law Societies of Europe, which represents the bars and law societies in the EU. The press release included the following summary of the background of the case:
“In May of this year the CCBE successfully intervened before The Hague District Court in a challenge brought against the Dutch State by the law firm Prakken d’Oliveira and the Dutch Association of Criminal Defence Lawyers (NVSA). The Court was questioned on the legality of eavesdropping by domestic intelligence agencies on lawyers’ calls and communications. In its verdict delivered on July 1st, the court recognised that the ability to communicate confidentially with a lawyer is a fundamental right which is currently being breached under Dutch surveillance policy. The court therefore ordered the Dutch government to stop all interception of communications between clients and their lawyers under the current regime within six months. In response, the Dutch State fast-tracked an appeal against the judgement. On 25 August, the CCBE challenged the grounds of the appeal.”
The CCBE press release reported that the Dutch Court of Appeal had upheld the trial court’s ruling, noting that:
“In its ruling, the Dutch Court of Appeal dismissed all the grounds of appeal alleged by the Dutch State. The Court indicates that according to case law of the European Court of Human Rights surveillance activities must be subject to review by an independent body with the power to prevent or terminate potential infringements of professional secrecy.”
The CCBE press release contains links to the court decisions (in Dutch) and news stories. Additional information is found on this CCBE Surveillance Working Group webpage. This CCBE webpage also has confidentiality-related information.
A new ethics opinion on confidentiality by the Indiana State Bar Association Legal Ethics Committee reaches some puzzling conclusions. The committee considered whether Indiana’s mandatory reporting statute for suspected child abuse or neglect required a lawyer who learns of such abuse or neglect while representing a client must report it. While acknowledging that the Indiana Supreme Court is the final authority on both the law and ethics in Indiana, the committee concluded that a lawyer was not required to report the suspected abuse unless the lawyer believed it necessary to prevent reasonably certain death or substantial bodily harm. While that seems reasonable on its face, the committee made several leaps in reasoning to get there and may have provided some ill advice to lawyers in Indiana.
Unlike some other states, Indiana’s reporting statute does not exempt lawyers from the reporting duty. That means, unless the Indiana Supreme Court would step in and decide that the state’s Rule 1.6 trumps the state law, a lawyer who follows the opinion could be prosecuted for failing to report. In addition, the committee fails to acknowledge that Indiana’s Rule 1.6, like the ABA Model Rule, contains that confidentiality exception “to comply with other law or court order.”
Next, the committee inexplicably reasoned that because of the mandatory reporting law a lawyer must report suspected abuse or neglect “to prevent reasonably certain death or substantial bodily harm” even though the exceptions to confidentiality in Indiana’s Rule 1.6, like in the ABA Model Rule, state that a lawyer may reveal information relating to a client’s representation in order to prevent reasonably certain death or substantial bodily harm.
The ethics opinion may state a good policy position, but the committee goes out on limb by creatively trying to reconcile a lawyer’s ethical and legal obligations in such a situation. As it stands now, there is a direct conflict between the mandatory reporting law and the ethics rules, and the ethics opinion does not resolve this quandary for lawyers in Indiana.
A Colorado lawyer was suspended from the practice of law for 18 months after disclosing confidential information about his clients in responding to their Internet complaints about his fees or services. According to the disciplinary order, the lawyer responded to the complaints “with Internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions.” This type of disclosure of confidential information is not covered by any exceptions to confidentiality in Rule 1.6(b). In addition, the lawyer sued the clients for defamation and communicated directly with them, even though their lawyer had repeatedly asked him to stop contacting them. The order states that this violated the anti-contact rule, Rule 4.2. A story in the ABA Journal about the discipline case is located here.
Returning to our One To Watch from last week:
Today U.S. District Judge Nicholas Garaufis rejected the proposed class-action settlement between AmEx and various merchants based on the discovery last week that a lawyer for some of the merchants shared confidential documents with a rival attorney (who was also a friend and former colleague) for MasterCard in a parallel case. While the Court also expressed concerns with the substantive fairness of the settlement, it found it unnecessary to reach a conclusion on the merits because of the lawyer’s to rule on such merits because of the lawyer’s “improper…conduct” that “fatally tainted the settlement process.”
Noting that the opposing lawyer were in “frequent, possibly constant contact” about the settlement, and citing the “procedural unfairness” and “failure of adequate representation,” Judge Garaufis removed the merchants’ lawyer from the case, unfortunate news for the decade-old case.
The Wall Street Journal reported this afternoon that a series of emails between two lawyer-friends may impede a $6 billion class-action antitrust settlement between Mastercard, Visa, and millions of merchants. The facts are a “twist,” as the Journal calls them, in the merchants’ price-fixing case against the credit card companies that began a decade ago.
While a partner at Wilke Farr representing Mastercard, attorney Keila Ravelo exchanged emails with former-colleague, friend, and attorney Gary Freidman, who was representing a group of merchants in the class action. (Interestingly, Wilke Farre discovered the emails while investigating Ravelo and her husband for theft of funds from Wilke Farre, among others.) The merchants in the settlement are alleging inadequate representation based on the disclosure of allegedly confidential information in these emails between Ravelo and Freidman.
A recent ethics opinion from the California State Bar Committee on Professional Responsibility, Formal Op. 2015-193, outlines how even an experienced lawyer can breach duties of competence and client confidentiality by engaging in e-discovery without the assistance of someone with e-discovery expertise. In this opinion, a hypothetical Lawyer entered into a joint agreement with Opposing Counsel permitting Opposing Counsel’s vendor to search the Client’s computer system for discoverable electronically stored information (“ESI”) using agreed upon search terms. The joint agreement contained a clawback provision to permit Client to clawback any inadvertently produced ESI protected by attorney client privilege or work product.
After all the ESI is produced, Lawyer receives a letter from Opposing Counsel accusing Counsel’s Client of destroying evidence and/or spoliation, and threatens motions for monetary and evidentiary sanctions. Lawyer hires an e-discovery Expert who reviews the produced ESI, and tells Lawyer that potentially responsive ESI has been routinely deleted from Client’s computers as part of Client’s normal document retention policy, revealing gaps in the document production. Expert also states that due to the breadth of the agreed upon search terms, both privileged information and proprietary information about the Client’s important new product were revealed to the opposing party, Client’s chief competitor. Expert advises Lawyer that an IT professional with litigation experience would have identified the over-breadth of the search terms and would have advised Lawyer not to agree to such a far-reaching joint agreement.
The committee analyzes the facts, and concludes that the hypothetical Lawyer has violated the duty of competency and may have violated client confidentiality. The committee states that competency requires a lawyer who lacks expertise in e-discovery in a case to do one of the following: either acquire sufficient knowledge and skill before e-discovery begins, or consult a technical expert or associate with competent counsel, or decline the representation. The committee also cautions that even when a lawyer engages an expert or associates with another to assist with e-discovery, the lawyer still has a duty to supervise the work and is ultimately responsible for the work of others.
In concluding that Lawyer may have breached client confidentiality, the committee stresses that the Lawyer agreed to release the ESI to Opposing Counsel without first reviewing the ESI to determine if any material was subject to the clawback provision as being subject to attorney client privilege or work product. A prior review would have also revealed the highly confidential proprietary information and Lawyer could have taken measures to protect Client’s interests.
This opinion is instructive of the need for all lawyers, even very experienced lawyers, to understand new technology or seek the assistance of qualified persons to assist them before using new technology. The opinion also demonstrates how failure to be sufficiently competent in new developments, such as e-discovery, may also violate the duty of client confidentiality.
The New York Times describes how the practice of providing of medical advice, including the prescription of medicine, through the internet is expanding, and at the same time meeting resistance from some doctors. Although law firms already provide advice to businesses and wealthy individuals through video communication, could internet video calls become a common way for lawyers to meet, and provide services to, middle income clients and small businesses? These developments raise issues relating to creation of the lawyer-client relationship, competence/malpractice, confidentiality, conflicts, and future directions for business and technology of legal practice.
The CCBE, which represents the bars and law societies of Europe, issued a press release today announcing that “The District Court of The Hague has ruled that surveillance of lawyers by intelligence agencies constitutes an infringement of fundamental rights and orders the State to stop.” The press release includes links to a number of CCBE and other documents on this topic, which has been an issue of great concern in Europe.
The National Law Journal recently published a story about the possible application of the crime fraud exception to attorney client privilege in the deadly GM ignition-switch cases under the headline “What Did Counsel to GM Know? Plaintiffs allege that GM’s outside counsel, King & Spalding, encouraged GM to enter into confidential settlements to avoid revealing the ignition-switch defects. The plaintiffs allege that King & Spalding had a responsibility to tell federal regulators about the defect if GM did not. The underlying fact scenario of the case is a classic example of the interplay between attorney-client privilege and the exceptions to client confidentiality, and can serve as an example of the obligations of a lawyer or law firm employed by an organization under ABA Model Rule 1.13. One of the lawyer’s for the plaintiff’s claims that there is no evidence so far that King & Spalding advised GM to report the defect to the proper federal authorities, and that “[t]he only focus was settling cases and moving on.”
In January, the New York Times wrote a related story “Victims of GM Deadly Defect Fall Through the Legal Cracks” The article explains how damage caps in many states, combined with GM’s legal strategy to make suing it costly, prevented many injured and families of those injured and killed from obtaining lawyers willing to sue GM over the ignition-switches. Many injured persons and families of those who died found that when non-compensatory damages were capped at $300,000 to $400,000, GM was able to make suing it too costly for plaintiffs’ lawyers to take the cases. This was especially true when victims were young or elderly and had negligible economic damages. When GM did settle, often confidentiality agreements kept the dangerous ignition-switches secret. The story claims that at least 42 persons died in crashes linked to the faulty switches, and GM was able to keep the problem largely hidden for more than a decade. The New York Times story is useful to show how damage caps combined with certain defense strategies can have public safety consequences.