Ethics Hors D’oeuvres Small Bites of Current Ethics Issues After this, let’s all raise a glass…
So, Covid.
What We’re Serving Up…• Recent Ethics Advisory Opinions • Recent Court Orders • Keyword Advertising • Advertising in General • Rule 8.4(g) - model and state’s modifications • Social media, Privilege and Clients • Scope of Representation Paragraphs • Managing other Client Expectations • Tech Competence and RPC • Staff Management • WFH and Rule 5.5 Recent Ethics Advisory Opinions • Colorado Environmental Lawyer • Helping his In-Laws with their Minnesota HOA dispute, • Minnesota Supreme Court found that the In re Charges of attorney had in fact practiced law in Minnesota. Unprofessional • Dispute was not interjurisdictional because it involved Minnesota residents, a Minnesota Conduct in contract, and a Minnesota judgment; AND that the matter was not reasonably related to the Panel File attorney’s Colorado practice such that it would No. 39302 fall into the Rule 5.5(c) safe harbor for “temporary” practice. • (4–3) decision outlier, and it reveals the broad reach of a robustly enforced and broadly interpreted Rule 5.5. Penn. Formal-Opinion-2020-300
ETHICAL OBLIGATIONS FOR LAWYERS WORKING REMOTELY All communications, including telephone calls, text messages, email, and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information, and Information transmitted through the Internet is done in a manner that ensures the confidentiality of client communications and other sensitive data; Their remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form; Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud; Any remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct; Appropriate forms of data security are used
Best Practices for Reasonable Efforts • Requiring the encryption or use of other security to assure that information sent by electronic mail are protected from unauthorized disclosure;
(Requiring the encryption or use of other security to assure that information sent by electronic mail are protected from unauthorized disclosure;) Using firewalls, anti-virus and anti-malware software, and other similar products to prevent the loss or corruption of data
Implementing a written work-from- home protocol to specify how to safeguard confidential business and personal information; Saving data permanently only on the office network, not personal devices, and if saved on personal devices, taking reasonable precautions to protect such information Obtaining a written agreement from every employee that they will comply with the firm’s data privacy, security, and confidentiality policies Prohibiting the use of smart devices such as those offered by Amazon Alexa and Google voice assistants in locations where client-related conversations may occur • Requiring employees to have client-related conversations in locations where they cannot be overheard by other persons who are not authorized to hear this information; And then there’s ABA 492
• June 2020 When is information from a Prospective Client “Significantly Harmful” enough to DQ lawyer from subsequent representation of another? • Interview is not enough • Unilateral “information spew” from client also does not, alone, meet that threshold. • Comment [4] to Model Rule 1.18 states that a lawyer “should limit the initial consultation [with a prospective client] to only such information as reasonably appears necessary” for the purpose of “considering whether or not to undertake a new matter.” Balance with …
• This caution, however, is not intended to discourage lawyers from engaging in a thorough discussion with prospective clients in order to ascertain whether the lawyer wants to take on the representation. • It is simply a reminder that the more information learned in a consultation, the more likely that the lawyer may be precluded from representing other parties in a substantially related matter. • https://www.americanbar.org/content/dam/aba/administrative/ professional_responsibility/aba-formal-opinion-492.pdf In Other News…
• Letter to bar members from Judge Dennis Bailey – regarding conduct of virtual hearings. • https://www.westonbar.org/so/61N5VoOJe?fbclid=IwAR3gBG UaUfpC8qs0612nMrw- lSDgZkDFiOiCcKGXBjd3SDS8PisCrslHN6c#/main The Takeaways….
• Wear pants • In fact, wear actual clothes… not PJs or a swimsuit coverup • Don’t be in bed. If you are remote from your bedroom, maybe position your camera differently
• Tech takeaway… or use one of the cool backdrops that “green screens” you. “Revenge Porn…” Responding to a rise in “revenge porn,” Illinois enacted a statute criminalizing the nonconsensual dissemination of private sexual images. A defendant contended that it violated her First Amendment rights. In People v. Austin, the Illinois Supreme Court upheld the statute, finding that it survived under intermediate scrutiny and was not unconstitutionally vague or overbroad.
ABA Litigation Section leaders question the level of scrutiny applied by the court and suggest that additional guidance is required from the U.S. Supreme Court. So, here’s the story…
• Bethany Austin engaged to and living with Matthew( and Bethany’s 3 children) • They share an I-cloud account • Matthew begins to visit a neighbor, and texts with her. • Texts she sends to him include nude photos of her. • They break up. Matthew explains break up by saying she is crazy and won’t cook him dinner or clean the house. • Bethany responds to that allegation: she sends those photo, along with copies of the other text messages, to Matthew’s family to explain the break-up. “Indeed, the term “revenge porn,” though commonly used, is misleading in two respects. First, “revenge” connotes personal vengeance. However, perpetrators may be motivated by a desire for profit, notoriety, entertainment, or for no specific reason at all. The only common factor is that they act without the consent of the person depicted. Second, “porn” misleadingly suggests that visual depictions of nudity or sexual activity are inherently pornographic.” “…we reject defendant’s argument that a person who receives a private sexual image acquires an ownership interest that entitles him or her to do with it as he or she sees fit, including dissemination to others without the consent of the person portrayed.”
https://courts.illinois.gov/Opinions/SupremeCourt/2019/123910.pdf McCarthy v. Taylor,
Lawsuit between two attorneys. Grantor created a living trust naming his romantic interest Cherie Coles as a ssuccessor trustee. The trust named Gerald McCarthy, an attorney, as a secondary successor trustee. Following the death of the grantor, another attorney presented McCarthy with an amended trust document naming that attorney, Marvin Gray, as the successor trustee. Disputes over Money, and Litigation ensues. Question presented…
Whether a court may impose sanctions in the form of attorney fees under Illinois Supreme Court Rule 137(a) (eff. July 1, 2013) against a plaintiff to compensate an attorney defending himself against a frivolous cause of action. Divided Decision of Illinois Court…
To hold that an attorney cannot recover reasonable attorney fees in defending himself against frivolous litigation would clearly frustrate the purpose of Rule 137 and unfairly reward those who persist in maintaining frivolous litigation. We hold that, under Rule 137, a court is authorized to impose sanctions in the form of attorney fees …against a plaintiff to compensate an attorney defending himself against a frivolous cause of action. Switching Gears… Keyword Advertising SC Ethics Advisory Opinion 20-01
lawyer may use internet competitive keyword advertising that includes the names of competing lawyers and law firms. The lawyer should be mindful of all additional advertising rules and should avoid any tactics where use of competitive keyword advertising would create an ad that contained or implied derogatory or uncivil statements. What’s the Diff?
Discussion regarding distinction betwn. Keyword advertising and “pirating” of another firm’s identity. You Can’t be a Poser
Finally, the SC Committee, consistent with Texas, has determined that a lawyer’s use of a surreptitious direct link that would “pose” as a competitor’s internet location but would reroute a user to the lawyer’s own website would be deceitful conduct in violation of Rule 8.4 (d). A Rose, By Any Other Name….
• SC Ethics Advisory Opinion 20-03
A partner has already retired, a partner is retiring and a non-partner is leaving. The remaining current non-partner will be buying the assets of the firm, and would like to use the name of the two retired partners and her own name in the new firm name. Committee assumes, for the purposes of this analysis, that the lawyer posing the question to us has the legal right to use the names of the two retired partners. Rule 8.4(g)
• Model adopted in August, 2016 • On July 15, 2020, ABA released an additional Formal Opinion regarding” Purpose, Scope and Application”of the Rule “Model Rule 8.4(g) prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassing or discriminatory. Whether conduct violates the Rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline. Rule 8.4(g) covers conduct that occurs outside the representation of a client or beyond the confines of a courtroom. In addition, it is not restricted to conduct that is severe or pervasive, a standard utilized in the employment context. The Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit in any way a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation. The Model Rules are rules of reason, and whether conduct violates Rule 8.4(g) must necessarily be judged, in context, from an objectively reasonable perspective. “ • IN SC - Referred to Professional Responsibility Committee – Subcommittee working on proposal. • Versions of 8.4(g): adoption of similar rules by other states prior to the formal adoption of MRPC R. 8.4(g). 20 states already had used some or all of the ideas expressed in the Model Rule comments to cultivate similar rules prohibiting discrimination and/or harassment. 19 These states include California, Colorado, Florida, Illinois, Indiana, Iowa, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Rhode Island, Washington, and Wisconsin. 20 A total of 29 states have adopted comments to their rules regarding discrimination – including 13 states that have not yet promulgated a similar rule, and two states that have declined to adopt the amended Rule (SC and TN). 21 • In addition, four states/territories have adopted MRPC R. 8.4(g) in its entirety. Vermont’s Supreme Court advisory committee met shortly after the ABA’s adoption of the new Rule, promulgated the new Rule and its comments in August 2017, and put it in effect in September 2017. 22 Vermont had previously adopted a similar rule in 1986 to address and prohibit similar discriminatory conduct, and it adopted the ABA’s version to “promote uniformity and add more detailed language.” 23 The other three jurisdictions (American Samoa, the Northern Mariana Islands, and the US Virgin Islands) followed their policy to adopt per se the most recent version of the ABA MRPC • Six states have declined to adopt the amended Rule outright, citing constitutional implications. For instance: • In Montana, the state legislature passed a joint resolution vehemently condemning the amended Rule, stating that it violates the First Amendment and “seeks to destroy the bedrock foundations and traditions of American independent thought, speech, and action.” 25 • In the same vein, the Texas Attorney General opined that Rule 8.4(g) “would severely restrict attorneys’ ability to engage in meaningful debate on a range of important social and political issues,” including subjecting participants in candid dialogue on topics such as illegal immigration, same-sex marriage, or restrictions on bathroom usage to discipline while suppressing their “thoughtful and complete exchanges about these complex issues.” 26 • Louisiana’s Attorney General also weighed in and rejected the amended Rule, stating—among other reasons—that the expansive phrase “conduct related to the practice of law” is “unconstitutionally broad as it prohibits and chills a substantial amount of constitutionally protected speech and conduct.” 27 Subsequently, the Louisiana State Bar Association Rules of Professional Conduct Committee voted not to proceed with Rule 8.4(g). From the Newsdesk in Florida… • Dietz and Disability Rights Florida took issue with two proposed edits to Rule 3-11, which governs how the Board of Bar Examiners investigates applicants’ past conduct to decide whether they meet character and fitness standards or require further investigation. • The board suggested swapping the 1991 phrases “evidence of mental or emotional instability” and “evidence of drug or alcohol dependency” with “evidence of a mental disorder that may impair the ability to practice law” and “evidence of a substance use disorder that may impair the ability to practice law.” • disability rights groups suggested limiting the FBBE’s investigations to disqualifying conduct, by amending the rules to say: “evidence of conduct indicating a mental disorder/current substance use disorder that may impair the ability to practice law.” • representing law student and U.S. Army veteran Julius Hobbs, who sued the FBBE in 2017, alleging its admissions process was unfair to applicants with a history of mental health or substance abuse problems. • Through that case, which resulted in a confidential settlement, Dietz said he saw a big difference between questions in the bar application and the scope of the FBBE’s investigation, which even allows it to second-guess bar applicants’ treating doctors. • Hobbs’ doctor, for example, developed an alcohol disorder treatment plan for him based on moderate use, rather than total abstinence, but Dietz said the FBBE disagreed, believing in abstinence. • “That is scary, but it also chills the fact that folks want to get treatment,” Dietz said. “Why should a licensing entity, whether it’s the Florida Bar or the board of examiners or whomever, decide on what medical treatment is appropriate, as long as it’s an accepted medical treatment?” • Dietz’s response pointed to more than 12 states that have tackled the same issue and opted to change language to clarify that investigations must stem from disqualifying conduct, while Florida has resisted. • Dietz said this is based on the assumption that a history of alcohol abuse disorder or mental illness will harm the public, but he stressed there’s no proof of that. • What’s more, Dietz said some law students have explained they were warned by deans not to complain about the recent bar exam debacle in case it triggers an investigation into their mental stability. • Dietz argued the FBBE’s approach also holds applicants to a different standard than bar members, as recent studies have shown more than half of lawyers suffer from psychological issues such as depression or anxiety at some point. • “This is something that is widespread, and the more you say if you have a condition without any context and you’ve never done anything bad and you treat your condition, you have to disclose it and be second-guessed by people who are not even doctors?” Dietz said. • The Florida Board of Bar Examiners has 30 days to reply to the comment, and the Florida
• The case is In the Matter of Keith T. Smith, An Attorney At Law, case number 084110, in the New Jersey Supreme Court.Read more at: https://www.law360.com/legalethics/articles/1311680/nj-justices- disbar-suspended-atty-over-missing-affidavit?nl_pk=a3c1c6e9-b24d- 4496-944e- 8e284970c9b2&utm_source=newsletter&utm_medium=email&utm_ campaign=legalethics?copied=1 • In his dissenting opinion, Judge Gallipoli said an attorney who fails to comply with a Supreme Court order to file the affidavit that "[court rule] R. 1:20-20 requires of all suspended attorneys, in my humble opinion, manifests a disdain for the disciplinary process and the responsibilities attendant to the privilege of being permitted to practice the profession of the law."Read more at: https://www.law360.com/legalethics/articles/1311680/nj-justices- disbar-suspended-atty-over-missing-affidavit?nl_pk=a3c1c6e9-b24d- 4496-944e- 8e284970c9b2&utm_source=newsletter&utm_medium=email&utm_ campaign=legalethics?copied=1 • er things, engaging in "ex parte communications" when he personally delivered a letter to a judge's home without providing a copy to his adversary, court records show. His six-month suspension, which stemmed from his guilty plea to the assault charge, took effect Jan. 21, 2019, court records show.The Supreme Court orders suspending Smith in those cases required him to comply with R. 1:20-20, the board said in its decision.That requirement obligated Smith, "within thirty days, to file with the [Office of Attorney Ethics] Director 'a detailed affidavit specifying by correlatively numbered paragraphs how the disciplined attorney has complied with each of the provisions of this rule and the Supreme Court's [o]rder,'" according to the decision.Smith did not respond to OAE letters regarding the affidavit and he did not file the document, the decision states. He also "'failed to take the steps required of all suspended or disbarred attorneys,'" such as notifying clients and adversaries of his suspension and providing his clients with their files," according to the decision.The OAE ultimately filed an ethics complaint charging Smith with failure to cooperate with disciplinary authorities and with conduct prejudicial to the administration of justice, the decision states. As of July 16, 2019, Smith did not file an answer to the complaint, the decision states.In recommending a two- year suspension, the board's majority noted that many of Smith's "past infractions were repeated, and his blatant disregard of the rules is evident as the case at issue is his seventh encounter with the disciplinary system since 2008."Read more at: https://www.law360.com/legalethics/articles/1311680/nj-justices-disbar- suspended-atty-over-missing-affidavit?nl_pk=a3c1c6e9-b24d-4496-944e- 8e284970c9b2&utm_source=newsletter&utm_medium=email&utm_campaign=legalethics?copied=1 In Re Chowhan – 2011 - (Ill. Nov. 22, 2011). An investigation was initiated when a woman complained about a lawyer after she responded to a job placement advertisement posted by the lawyer in Craig’s List. ( Adult’s Gig section) The lawyer exchanged emails with the candidate detailing that the duties of the secretarial position included her engaging in “sexual interaction with him and his law partner.” Chowan was not sanctioned for posting the advertisement, but for lying about it to the disciplinary agency when he was questioned. (1 year suspension). In re Hartman (Texas) Disbarment
Hartman was an unindicted co-conspirator in a forgery, theft and money laundering trial that ended in a guilty verdict for another man in a case over a forged will 2017 trial Hartman testified in the trial that he lied to a grand jury and a Texas Ranger investigator about a more than $65,000 check he wrote to another man. Time to Talk Tech • Tech Competence and RPC • 38 states have adopted some form of a tech competence comment or rule - South Carolina was 38. • provision is a modified version of the ABA model rule. It is found in a new Comment 6 to Rule 1.1, and reads: • “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” • Supreme Court also amended Rule 1.6, pertaining to confidentiality of information, to add a paragraph (c), which reads: • “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” • It also amended Comment 20: • Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. • beyond the scope of these Rules. • The model rule states generally that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” In South Carolina duty extends only to “technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client.” • Best practice would be to extend that to clients’ systems and technologies. • https://www.lawsitesblog.com/tech-competence • Zoom and virtual meeting platforms • https://www.theverge.com/2020/4/22/21230022/jury-zoom-trials-court-hearings-justice-system-virtual- transparency • Digital hearings can also be tricky for people who don’t have high-speed internet or aren’t as comfortable using videoconferencing technology. Douglas Keith, counsel at the Brennan Center for Justice, told The New York Times that people could now be judged not just on their clothes, but on their surroundings and the strength of their internet connection. • https://www.nytimes.com/2020/04/15/us/coronavirus-lawyers-court-telecommute-dress-code.html • “That is an issue that judges need to be concerned with regardless of whether it’s an in-person proceeding or a remote proceeding,” says Chhabria. “We are taught not to stick our head in the sand about that concern but to be conscious of it and to be beware of unconscious bias or subconscious bias.” • Rupe concedes that other parts of civil proceedings can easily happen over Zoom. Case management conferences, in which the lawyers meet with the judge to discuss how the case should be handled, used to require everyone to be in the same room. Rupe would often travel for two full days in order to appear in court for 30 minutes. Now, he takes those calls from his house. “Previously, I traveled so much it was impacting my marriage in a negative way. Now I’m home all the time on Zoom and it’s impacting my marriage in a negative way,” he says. • Ntl. Law Review - https://www.natlawreview.com/article/pros-and-cons-zoom- court-hearings • Pros Timing. Courts and litigants are finally moving forward with hearing dates that have been stalled. After two months of mostly dealing with emergencies, courts can finally start to clear their dockets. Parties can start to make progress in their divorces, and get decisions in their interim and post-judgment their disputes. • 2. Convenience. Litigants do not need to deal with travel to court, parking or security lines, as they can attend the hearings from the comfort of their homes, offices or cars. The litigants avoid paying those same costs for their lawyers to attend the hearing including travel time. • 3. Witness Credibility. Some judges feel that Zoom hearings allow them to truly assess witness credibility since they are making prolonged eye-to-eye contact, often on a large screen in their courtrooms. Such a format allows for fewer distractions and more focus on the witness than in a traditional courtroom. • 4. First-hand Home Assessment. Judges can immediately resolve a parent's concerns about the other parent's home being deficient for parenting time by seeing the home, the child's room and the refrigerator/pantry first-hand. • 5. Exhibits. Teleconferencing will force attorneys to be better prepared and reach agreements with opposing counsel as to exhibits. • Cons: 1. Control. Judges cannot control a virtual courtroom the same way they can a real courtroom in terms of who is physically present, who is using a cell phone, who is talking to whom, who is coaching witnesses, etc. • 2. Who Really Is Watching? In theory, anyone can walk into a real courtroom to watch a family law hearing, but the reality is that most people are not going to take the time from work, drive to court, find parking, go through security, etc., unless it is a very compelling reason. But, with more people at home, they have more time on their hands, and if all they have to do is sit on their laptop and anonymously log on to YouTube, there could be many lurkers – coworkers, bosses, neighbors, church parishioners, or worse yet, children. While many of us struggle with the technology, our tech-savvy children live on YouTube and could easily discover ugly details of their parents' divorce case. • 3. Protecting the Integrity of Testimony. In trials/evidentiary hearings judges will usually sequester third-party witnesses in the hallway outside the courtroom. With YouTube access and Zoom, sequestration and cell phone usage is much harder to enforce. Will judges be able to tell if witnesses are being coached or using notes? • 4. Illegal Recordings. YouTube is supposed to display a warning that the court hearings are not allowed to be recorded by the public – only courts are able to use the record feature on Zoom. However, realistically, courts have no way of knowing if third parties have illegally recorded the hearing on their cell phones. • 5. Disclosure of Confidential Information. You may need to share confidential financial, medical or personal information in family law hearings – tax records, bank statements, CPS reports, psychological evaluations, etc. If documents are being introduced into evidence through Zoom's share screen feature, these will also be visible on YouTube. How long before hackers figure out that trolling court hearings is a good way to gain access to account numbers and birth dates? • 6. Safety in Domestic Violence Cases. If parties are residing in the same home, it may be dangerous for domestic violence survivors to safely participate in court hearings. Survivors cannot rely on courthouse security measures, bailiffs or the support of their attorneys in person. • 7. More Time and Expense. As we all learn how to maneuver in this new virtual world, it takes attorneys and courts more time to prepare clients and exhibits. • 8. Judging Witness Demeanor. While some believe this technology gives judges a clearer line on judging witness demeanor, some believe it does not since judges may not be able to see a witness's demeanor such as shaky hands. • 1. Maintaining Control. Judges can enter stipulated or ex parte injunctive orders with common sense protections as to the ban on recordings, witness tampering and banning access to children. Such orders may not prevent bad actors from doing these things, but at least the orders provide the judges the ability to hold violators in contempt of court if the acts are discovered. Word will spread within the community that there are consequences. Judges can use Zoom breakout rooms for in-chambers conferences or side bars that are not on the record to address private matters. Judges can ask to see rooms to ensure that witnesses are not being coached or using inappropriate notes. They might not be able to order it but could suggest that witnesses wear headphones to ensure against the possibility of coaching. • 2. Safeguarding Sensitive Matters. Most, if not all, courts will not live broadcast personal protection order hearings, adoption or juvenile court proceedings on YouTube as they are not public proceedings by statute. Courts have some discretion to determine what makes sense in individual cases, but attorneys will have to file motions to exclude hearings from being broadcast. At least one court (Washtenaw County Circuit) has decided not to live broadcast any non-criminal hearings but will make recordings available upon request. • 3. Advance Preparation and Cooperation. Attorneys taking responsible and common sense approaches will have a huge impact in safeguarding people's privacy. Attorneys should prepare their clients for the risks of this new format – maybe they will opt to wait or try and settle out of court. Attorneys will have to communicate with each other and hopefully agree to exhibits in advance and redact private information. When talking on the record, they should refer to exhibits by their labels rather than by describing the details. Exhibits and testimony should refer to children by initials or first names only, without dates of birth. • Courts will need to find a way to balance the need to move cases forward with the public's right to access as well as judge accountability against the litigants' rights to confidentiality, all while maintaining the integrity of the evidentiary hearing. If both sides agree to delay, their matter may be scheduled for a future in-person hearing, but if both do not agree, courts have the discretion to move forward with these hearings. Rest assured, there are committees of attorneys, judges and administrators working on solutions to some of the known concerns. We are all learning and improving as we go. Staff Mgmt.
• Staff Management • Current work environment may mean uptick in UPL, particularly by staff who mean no harm. How to prevent – • Also, give staff permission to ask questions, set guidelines and review the guidelines annually as part of employee review/goals setting process. • WFH and 5.5
• In re Charges of Unprofessional Conduct in Panel File No. 39302 concerned a Colorado-based environmental attorney who was found to have engaged in the unauthorized practice of law in Minnesota for communicating with a Minnesota attorney on behalf of his in-laws in connection with a dispute that they were having with their homeowner’s association. In a sharply split (4–3) decision, the Minnesota Supreme Court found that the attorney had in fact practiced law in Minnesota. The court reasoned that the dispute was not interjurisdictional because it involved Minnesota residents, a Minnesota contract, and a Minnesota judgment; and that the matter was not reasonably related to the attorney’s Colorado practice such that it would fall into the Rule 5.5(c) safe harbor for “temporary” practice. While this case may fairly be considered an outlier, it reveals the broad reach of a robustly enforced and broadly interpreted Rule 5.5. • the Florida Bar Standing Committee on UPL has just issued a proposed advisory opinion that a New Jersey lawyer physically working from his home in Florida exclusively on matters for his New Jersey law firm is not committing UPL in Florida as long as he does not hold himself or his firm out to the public as having a Florida presence, does not give advice about Florida law, and provides no legal services to Florida residents. • In re Gerber: In In re Gerber, Gerber referred to himself as a “staff attorney” and a “government relations attorney” working out of the Bismarck, North Dakota, office of a Minneapolis-based firm. Gerber was licensed only in Minnesota, but represented clients before the North Dakota legislature as a registered lobbyist. Gerber was supervised by a Minnesota-based attorney in connection with all of his work and he did not “obtain or retain his own clients with respect to legal work, other than with respect to his lobbying activities.” After leaving the Minneapolis firm, Gerber sought admission in North Dakota. He later withdrew that application because he found employment in Minnestoa. Nonetheless, the North Dakota Bar determined that Gerber, through his firm, had established a permanent office in North Dakota and practiced in the state for 13 months without a license, and, thus, Gerber should be “admonished.” The North Dakota Supreme Court affirmed. It concluded that, based in large part on the law firm’s press release announcing Gerber’s hiring and role, he had violated N.D. Rule 5.5(d) (“a lawyer who is not admitted to practice in this jurisdiction shall not represent or hold out to the public that the lawyer is admitted to practice in this jurisdiction”) and that the lack of disclaimer on the firm’s website concerning Gerber’s lack of authorization to practice in North Dakota contributed to this finding. The lesson is that both attorneys and the firms that employ them should be mindful about where an attorney practices and how that practice is being represented to others. • https://www.americanbar.org/groups/litigation/committees/ethics-professionalism/articles/2020/unauthorized-practice-of-law- rule-55-in-the-age-of-covid-19-and-beyond/ • • Social Media and Atty/Client Priv – Rule 1.4 • Discuss with your clients how they own privilege and how they can break it… • No talking about their case with others. Let them know that if they share in a post on Facebook; in an email to a friend; or simply tell a family member, their coworker or neighbor that you said one aspect of their case is particularly weak then their opponent’s lawyer could force you and your client to reveal all communications about that aspect of the matter. • This could even be worse if your client, be it an individual or entity, actually took a letter, email or other communication to an ad agency, accountant, or financial planner to discuss the ramifications of the advice you have given them. • By the same token make certain that your clients understand that a problem is created if you and your client discuss their legal issue in the presence of someone who is not a client in the same matter, be it a friend, parent, or business consultant of some sort. • Think this through as discussions are occurring more and more in very nontraditional ways. For example, consider discussions that occur via text message, email, or on Skype. Who might be viewing these? Was anyone blind copied in? It is so easy to hit forward and send to keep the family up to speed on the latest spin in an ongoing divorce saga. These kinds of missteps should not happen and, as the lawyer, it is your responsibility to make certain your clients at least understand the potential fallout if they do these things. • Clearly a simple statement to your client along the lines of “don’t talk to others about this legal matter” no longer cuts it. • do not try to circumvent the issue by simply encouraging potential or actual clients to delete accounts or remove damaging information, particularly if no copies will be preserved - Spoliation • Do not use anyone else’s computer to communicate A client’s work computer, tablet, or company supplied smart phone do not belong to the client and the employing company has the right to monitor communications that occur on its systems. Thus, there should be no emails to and from a work email address and no communications on the work cell phone. • public Wi-Fi systems or public computers such as those found in a hotel or resort business center. When a client is logged on as a guest, the terms of service for some of these systems permit monitoring of the communications. Clients should only use private email accounts that are password protected and accessed from their personal smart phones or computers. • Finally, make certain that clients do not have shared email accounts or a shared smart phone with a spouse or someone else. If they do, they may need to establish an independent email account that is password protected with a password that only they will know. circumstances in any particular matter. In many situations this could be accomplished with the use of a social media warning statement in an engagement letter. A sample notice might read as follows: Please refrain from participating in social media (Facebook, Twitter, Instagram, Pinterest, ) during the course of representation. Information found on social media websites is not private, can be discoverable, and may be potentially damaging to your interests. information shared with others could lead to the loss of the attorney client privilege. •In addition, do not attempt to delete any of your social media accounts in an attempt to avoid having anything posted there used against you as doing so can also lead to serious consequences such as sanctions for destroying potentially relevant evidence. • Finally, we also advise you to refrain from communicating with us on any device provided by your employer or any computer, smart phone, tablet or other device that is shared with someone else. In addition when communicating with us, do not use your work email address or a shared email account. You should only use a private email account that is password protected and only accessed from your personal smart phone or computer.