ABA Formal Opinion 483: Lawyers’ Obligations After an Electronic Data Breach or Cyberattack

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.

Early Career Scholarship for Dec. 2018 Melbourne Int’l Legal Ethics Conference

Thanks to the generosity of Prof. Deborah Rhode from Stanford, the International Association of Legal Ethics (IAOLE) has funds that likely will be used to fund an early career scholar’s attendance at the ILEC 2018 in Melbourne in December 2018.  For additional information about the Deborah Rhode prize for scholarship, see https://law.unimelb.edu.au/ilec2018#iaole-deborah-rhode-prize.

For information about ILEC 2018 and information about past ILEC conferences, see:

https://law.unimelb.edu.au/ilec2018 and

http://www.iaole.org/conferences/

(Hat tip: IAOLE President Prof. Alice Woolley, U. of Calgary)

 

 

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

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!

“This sounds like my ethics class in law school…” Justice Sotomayor

The Supreme Court heard arguments today in McCoy v. Louisiana, which presents the question of whether it is unconstitutional for defense counsel to tell the jury that a client is guilty when the client insists he is innocent. It also raises interesting questions about the ethical obligations under ABA Model Rule 1.2 that “a lawyer shall abide by a client’s decisions concerning the objectives of representation” and ABA Model Rule 3.3, Candor Toward the Tribunal.

As Justice Sotomayor observed in questioning McCoy’s attorney, “this sounds like my ethics class in law school, and this very hypothetical of what do you do with a lying client?” Full oral argument transcript is here.

Adam Liptak noted in the NY Times that the justices seemed likely to side with McCoy: “Several justices said a decision as fundamental as admitting guilt in a capital case belonged to the client rather than the lawyer.” Full article here.

Cross-posted at the Legal Ethics Forum