Reaching Out (Answer Set)
Friday, March 23, 2018 | 9:00 a.m. – 12:15 p.m. Dena’ina Convention Center Anchorage, AK
CLE# 2018-311 3.0 Ethics CLE Credits Reaching Out Friday, March 23, 2018 | 9:00 a.m. - 12:15 p.m. Dena'ina Convention Center 3.0 Ethics CLE Credits | CLE #2018-311 Registration fee: Free for Alaska Bar Members
Presented by: Mark Bassingthwaithe, Esq. Risk Manager at ALPS Property & Casualty Ins. Co. Panel Members: Nelson Page, Bar Counsel, Rebecca Hozubin, Hozubin, Moberly, Lynch & Associates and Linda J. Johnson, Clapp, Peterson, Tiemessen, Thorsness & Johnson
“Reaching Out” is an educational seminar designed to shed light on ethical issues that many attorneys face daily. After viewing a series of video vignettes, a panel will discuss a series of questions that address the issues raised in each vignette. During the panel discussions, attendees will be encouraged to ask questions and share comments. Topics raised in “Reaching Out” include duties to prospective clients, conflict issues that can arise when an attorney desires to encourage clients to make charitable bequests to a nonprofit entity while simultaneously sitting on the board of that entity, the disastrous fallout that can occur by being too lax with malpractice insurance applications, cybercrime prevention, the use of email tracking tools, and much more. This program is one that should not be missed.
Program Summary:
In Vignette One, entitled “Say What?” we’ll visit the conference room of a general practice firm during a meeting of the firm’s partners. Topics raised in this vignette will include duties to prospective clients, conflict issues that can arise when an attorney desires to encourage clients to make charitable bequests to a nonprofit entity while simultaneously sitting on the board of that entity, and the disastrous fallout that can occur by being too lax with malpractice insurance applications. Making matter worse, the partners will come face to face with a serious concern over the competency of a senior member of the firm.
In Vignette Two, entitled “The Bar Report,” we will watch a brief legal news commentary TV show. Issues presented here will include disaster planning, cybercrime prevention, the use of email tracking tools, and ethical obligations regarding advising clients about their own use of technology, to include participation in the social media space.
Finally in Vignette Three, entitled “It’s Just One Thing After Another,” we will explore the ethical issues that can arise as a result of the amount of digital data firms maintain coupled with lawyer mobility, discuss what an attorney’s options are when a client demands exclusive possession of a closed file, tackle the issues that arise with alternative ways of getting paid, and we’ll close the program with a discussion on the ethics of competitive-keyword advertising.
Reaching Out March 23, 2018 Faculty
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technology. Mr. Bassingthwaighte is a member of the ABA and currently serves as the ABA’s Law Practice Division’s Liaison to the ABA’s Standing Committee on Lawyers Professional Liability. He received his J.D. from Drake University Law School.
Contact Information: Mark Bassingthwaighte, Esq. ALPS Property & Casualty Insurance Company Risk Manager PO Box 9169 | Missoula, Montana 59807 (T) 406.728.3113 | (Toll Free) 800.367.2577 | (F) 406.728.7416 [email protected] | www.alpsnet.com
Nelson G. Page graduated from Georgetown University Law Center cum laude in 1978, where he was on the Board of Editors of the Georgetown Law Journal. He clerked for the honorable Warren W. Matthews, Associate Justice of the Alaska Supreme Court, and then joined the Anchorage law firm of Burr, Pease and Kurtz. His practice included regular representation of professionals in malpractice litigation. He was with the firm for 38 years and then became Bar Counsel for the Alaska State Bar in 2017. He served on the Board of Governors of the Alaska Bar from 2013-2016 and was president of the Board in 2015-16. He is a frequent speaker on ethics issues.
Rebecca Hozubin graduated from Tulane Law School in 1996 and after working for George Kapolchok and James B. Wright and Associates, she opened her own practice, Hozubin, Moberly & Associates, in 2008. Her primary practice focus is insurance defense, insurance coverage opinions, first-party insurance disputes, SIU, personal injury litigation, business litigation, professional malpractice, and working with regulatory agencies. She is the Alaska Chair and Member of the Bad Faith Committee of the Council on Litigation Management, a member of Defense Research Institute, as well as a member of the Defense Counsel of Alaska.
Linda J. Johnson was born and raised in Anchorage, Alaska, and has been a member of the firm since 2005. Ms. Johnson has over 25 years of legal experience, providing advice to clients and litigating matters. Ms. Johnson has litigated to a verdict or a decision in more than 40 matters in court, before administrative agencies, or to an arbitrator.
Practice areas: Labor and employment Professional malpractice Professional licensing Civil Litigation Activities and Awards: Super Lawyers, Employment and Labor Linfield College Athletic Hall of Fame 1981 Volleyball Team, induction 2011 Anchorage Youth Court Board of Directors 2007 – 2013 Hearing officer for City and Borough of Sitka Employee Relations Board 2006 – present Alaska Legal Services Corp. Pro Bono Volunteer “Attorney of the Day” 2015 - present Education: University of Denver, Sturm College of Law, JD 1989 Linfield College, McMinnville, Oregon, cum laude 1985 Eberhard Karls Universität, Tübingen, Germany school year 1983-1984 A.J. Dimond High School, Anchorage, Alaska, cum laude 1981
Reaching Out
An ALPS Ethics and Professionalism Program
Vignettes and Script by Mark Bassingthwaighte, Esq. Materials by Jim McCauley, Esq., Seth Guggenheim, Esq., Barbara Saunders, Esq., Emily Hedrick, Esq., and Mark Bassingthwaighte, Esq.
©2017 ALPS Property & Casualty Insurance Company
No copyright claimed in the works of the Alaska Bar Association
Table of Contents
Selected Excerpts from the Alaska Rules of Professional Conduct……………………………………………....………….3
Vignette One – Say What? Question & Answer Set………………………………………………………………….…...….…19
Vignette Two – The Bar Report Question & Answer Set……………………………………………………………….……….35
Vignette Three – It’s Just One Thing After Another Question & Answer Set……………………………….…………52
THIS MATERIAL IS PRESENTED WITH THE UNDERSTANDING THAT THE PUBLISHER AND THE AUTHORS DO NOT RENDER ANY LEGAL, ACCOUNTING, OR OTHER PROFESSIONAL SERVICE. IT IS INTENDED FOR USE BY ATTORNEYS LICENSED TO PRACTICE LAW IN ALASKA. BECAUSE OF THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PUBLICATION MAY BECOME OUTDATED. AS A RESULT, AN ATTORNEY USING THIS MATERIAL MUST ALWAYS RESEARCH ORIGINAL SOURCES OF AUTHORITY AND UPDATE INFORMATION TO ENSURE ACCURACY WHEN DEALING WITH A SPECIFIC CLIENT’S LEGAL MATTERS. IN NO EVENT WILL THE AUTHORS, THE REVIEWERS, OR THE PUBLISHER BE LIABLE FOR ANY DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THIS MATERIAL. THE VIEWS EXPRESSED HEREIN ARE NOT NECESSARILY THOSE OF ALPS.
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Selected Excerpts from The Alaska Rules of Professional Conduct
Rule 1.1 Competence
(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
(b) In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required or in which referral to or consultation or association with another lawyer would be impractical; provided, however, that the assistance shall be limited to that reasonably necessary in the circumstances and the client shall be advised of the lawyer’s limited knowledge in the legal field in which the advice is sought.
Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
(a) Subject to paragraphs (c), (d), and (e), a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to offer or accept a settlement. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, whether the client will testify, and whether to take an appeal.
(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client consents after consultation.
(1) If a written fee agreement is required by Rule 1.5, the agreement shall describe the limitation on the representation.
(2) The lawyer shall discuss with the client whether a written notice of representation should be provided to other interested parties.
(3) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with this rule is considered to be unrepresented for purposes of Rules 4.2 and 4.3 unless the opposing lawyer knows of or has been provided with:
(A) a written notice stating that the lawyer is to communicate only with the limited representation lawyer as to the subject matter of the limited representation; or
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(B) a written notice of the time period during which the lawyer is to communicate only with the limited representation lawyer concerning the subject matter of the limited representation.
(d) Except as provided in paragraph (f), a lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.
(f) A lawyer may counsel a client regarding Alaska’s marijuana laws and assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. If Alaska law conflicts with federal law, the lawyer shall also advise the client regarding related federal law and policy.
Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.4 Communication: Case Status; Informed Consent; Malpractice Insurance Disclosure
(a) A lawyer shall keep a client reasonably informed about the status of a matter undertaken on the client’s behalf and promptly comply with reasonable requests for information. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(b) A lawyer shall promptly inform the client of any decision or circumstance that requires the client’s informed consent, unless the client has already made an informed decision on the matter in previous discussions. Until the client has given the required informed consent, a lawyer shall refrain from taking binding action on the matter.
(c) A lawyer shall inform an existing client in writing if the lawyer does not have malpractice insurance of at least $100,000 per claim and $300,000 annual aggregate and shall inform the client in writing at any time the lawyer’s malpractice insurance drops below these amounts or the lawyer’s malpractice insurance is terminated. A lawyer shall maintain a record of these disclosures for six years from the termination of the client’s representation. This paragraph does not apply to lawyers employed by the government as salaried employees or to lawyers employed as in-house counsel.
Rule 1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
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(2) the likelihood, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) If a fee will exceed $1000, the basis or rate of the fee shall be communicated to the client in a written fee agreement before or within a reasonable time after commencing the representation. This written fee agreement shall describe the scope of the representation and shall include the disclosure required under Rule 1.4(c). In a case involving litigation, the lawyer shall notify the client in the written fee agreement that the client may be liable for the opposing party’s costs, fees, or expenses if the client is not the prevailing party.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A fee agreement that is in whole or part contingent shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. In addition, the written agreement shall include the disclosure required by Rule 1.4(c) and shall state any costs, fees, or expenses for which the client may be liable, either to the lawyer or to the opposing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the establishment or modification of alimony or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the contribution of each firm or, by written agreement with the client, each firm assumes joint responsibility for the representation;
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(2) the client agrees to the participation of each firm, including the share each firm will receive, and the participation is confirmed to the client in writing; and
(3) the total fee is reasonable.
(f) A lawyer should seek to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject.
(g) For purposes of sections (b) and (c) of this rule, the word “client,” in addition to the definition contained in Rule 9.1, also includes any person or entity responsible for paying the fees for professional services rendered by a lawyer.
Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal a client’s confidence or secret unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation and disclosures permitted by paragraph (b) below or Rule 3.3. For purposes of this rule, “confidence” means information protected by the attorney-client privilege under applicable law, and “secret” means other information gained in the professional relationship if the client has requested it be held confidential or if it is reasonably foreseeable that disclosure of the information would be embarrassing or detrimental to the client. In determining whether information relating to representation of a client is protected from disclosure under this rule, the lawyer shall resolve any uncertainty about whether such information can be revealed against revealing the information.
(b) A lawyer may reveal a client’s confidence or secret to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain:
(A) death;
(B) substantial bodily harm; or
(C) wrongful execution or incarceration of another;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer
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based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order.
(c) A lawyer must act competently to safeguard a client’s confidences and secrets against inadvertent or unauthorized disclosure by the lawyer, by other persons who are participating in the representation of the client, or by any other persons who are subject to the lawyer’s supervision. See Rules 1.1, 5.1, and 5.3. When transmitting a communication that includes a client’s confidence or secret, the lawyer must take reasonable precautions to prevent this information from coming into the hands of unintended recipients.
Rule 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
(c) A lawyer shall act with reasonable diligence in determining whether a conflict of interest, as described in paragraphs (a) and (b) of this rule or Rules 1.8, 1.9, or 1.10, exists.
(d) For purposes of this rule, the term “client” does not include unidentified members of a class in a class action or identified members of a class when individual recovery is expected to be de minimis.
Rule 1.8 Conflict of Interest: Current Specific Rules
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless:
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(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the lawyer advises the client in writing to seek independent legal advice on the transaction and gives the client a reasonable opportunity to do so; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use a confidence or secret of a client to the disadvantage of the client unless the client gives informed consent in a writing signed by the client, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close familial or domestic relationship.
(d) Prior to the conclusion of the representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on a client’s confidences and secrets.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to a client’s confidences or secrets are protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the
8 | Page client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced and the sexual relationship does not create a conflict under Rule 1.7(a)(2). For purposes of this rule, when the client is an organization, “client” means a constituent of the organization who supervises, directs, or regularly consults with that lawyer concerning the organization’s legal matters. See Rule 1.13(h) for the definition of “constituent.”
(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs, except (j), that applies to any one of them shall apply to all of them.
Rule 1.9 Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
(c) 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:
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(1) use confidences and secrets 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 confidences and secrets except as these Rules would permit or require with respect to a client.
Rule 1.10 Imputation of Conflicts of Interest: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 or 1.9(c) that is material to the matter, or the firm retains records containing such information.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.
(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or the third person. Other property shall be identified as the client’s or the third person’s and appropriately safeguarded. Complete records of these account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
(b) A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on that account, and only in an amount necessary for that purpose.
(c) A lawyer shall deposit funds received for future fees and expenses into a client trust account, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding the funds or property.
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(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim conflicting interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
(f) Unless an election not to participate is submitted in accordance with the procedure set forth in paragraph (g), a lawyer or law firm shall establish and maintain an interest bearing insured depository account into which must be deposited funds of clients which are nominal in amount or are expected to be held for a short period of time, but only in compliance with the following provisions:
(1) No earnings from such account shall be made available to the lawyer or law firm and the lawyer or law firm shall have no right or claim to such earnings.
(2) Only funds of clients which are nominal in amount or are expected to be held for a short period of time may be deposited in such account. Funds which reasonably may be expected to generate in excess of one hundred dollars interest may not be deposited in such account.
(3) The depository institution shall be directed by the lawyer or law firm establishing such account:
(A) To remit earnings from such account, net of any service charges or fees, as computed in accordance with the institution’s standard accounting practice to the Alaska Bar Foundation, Inc., at least quarter-annually; and
(B) To transmit with each remittance of earnings a statement showing the name of the lawyer or law firm on whose account the remittance is sent and the rate of interest applied, with a copy of such statement to such lawyer or law firm.
(4) The lawyer or law firm shall review the account at reasonable intervals to determine if changed circumstances required further action with respect to the funds of any client.
(g) A lawyer shall indicate on the lawyer’s annual bar dues notice whether the lawyer or the lawyer’s law firm: 1) elects to maintain the account described in paragraph (f); 2) elects not to maintain the account described in paragraph (f); or 3) does not maintain a trust account. A lawyer or law firm who wishes to change a previous election may do so at any time by notifying the Alaska Bar Association in writing.
Rule 1.16 Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
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(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
Rule 1.18 Duties to Prospective Client
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received
12 | Page information from the prospective client that could be significantly harmful to the prospective client in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in that matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, and the availability of alternative forms of dispute resolution, that may be relevant to the client's situation.
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable and timely remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person, including the lawyer’s client, intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable and timely remedial measures, including, if necessary, disclosure to the tribunal.
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(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that are necessary to enable the tribunal to make an informed decision, whether or not the facts are adverse to the lawyer’s position.
Rule 3.4 Fairness to Opposing Party and Counsel
(a) A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value, nor shall a lawyer counsel or assist another person to do any of these acts.
(b) A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.
(c) A lawyer shall not knowingly violate or disobey an order of a tribunal or an obligation under the rules of a tribunal, except for an open refusal based on an assertion that the order is invalid or that no valid obligation exists.
(d) A lawyer shall not make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
(e) A lawyer shall not in trial allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. A lawyer shall not assert personal knowledge of facts in issue except when testifying as a witness, nor state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.
(f) A lawyer shall not request that a person other than a client refrain from voluntarily giving relevant information to another party unless the person is a relative or an employee or other agent of a client and the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving the information.
Rule 4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 4.2 Communication with Persons Represented by Counsel
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In representing a client, a lawyer shall not communicate about the subject of the representation with a party or person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Rule 4.4 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a writing or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the writing or electronically stored information was inadvertently sent shall promptly notify the sender.
Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers has comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or the lawyer individually or together with other lawyers has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance
(a) With respect to a nonlawyer employed or retained by or associated with a lawyer:
(1) a partner in a law firm, and a lawyer who individually or together with other lawyers has comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(2) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
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(3) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(A) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(B) the lawyer is a partner or the lawyer individually or together with other lawyers has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
(b) A lawyer shall advise a nonlawyer who ends an association with the lawyer not to disclose confidences and secrets protected by Rule 1.6 that were learned by the nonlawyer during the association.
(c) A lawyer who employs, retains, or forms an association with a nonlawyer shall advise the nonlawyer not to disclose confidences and secrets protected by Rule 1.6 learned by the nonlawyer during an association with another lawyer. If the nonlawyer participated in a matter that would create a conflict of interest for a lawyer under Rule 1.7 or Rule 1.9, the nonlawyer shall be screened from any participation in the matter.
(d) A lawyer who learns that any person employed by the lawyer has revealed a confidence or secret protected by these rules shall notify the person whose confidence or secret was revealed.
Rule 5.4 Professional Independence of a Lawyer
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a lawyer who is deceased, disabled, or whose whereabouts are unknown may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
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(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or other association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a director or officer of the corporation or occupies a position of similar responsibility in any form of association other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Rule 7.1 Communications Concerning a Lawyer's Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services or any prospective client’s need for legal services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) is likely to create a reasonable but unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
Rule 7.3 Solicitation of Clients
(a) A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment by written, recorded, or electronic communication or by in-person, telephone, or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
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(2) the solicitation involves coercion, duress, or harassment.
(c) Every written, recorded, or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in- person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
Rule 8.3 Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate disciplinary authority unless the lawyer reasonably believes that the misconduct has been or will otherwise be reported.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate disciplinary authority unless the lawyer reasonably believes that the misconduct has been or will otherwise be reported.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers’ or judges’ assistance program.
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) state or imply an ability either to influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
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Question & Answer Set
Vignette One – Say What?
Questions to Consider
A) Thinking about how your own firm operates, if you were Andy would you have even been aware of the potential problem he identified? How so? Of course, this question presumes you agree with Erika that a problem even exists for Andy. Is Joanna right or is there a conflict in play? If so, identify it. If not, why not? If there is a conflict, what are Andy’s options?
What about Erika’s dilemma. The firm’s website has a warning that must be clicked through before anyone can send an email to a firm attorney. The problem is that system was apparently bypassed, thus the warning was probably never seen. Does that matter? Can Erika tell her client that a suit is coming or must Erika keep quiet? Assume she doesn’t tell her corporate client what she knows and the prospective client does sue. Can Erika represent her client in that suit? If so, how? If not, why not?
B) Erika initially shared some concerns about Louis. Given his age, coupled with what she was observing, depression or dementia might explain what’s going on; but no one is really sure about anything. Cindy’s call is what raises the stakes and the firm partners are now forced into action. What are the obligations of the partners at this point? Must they take action to protect the interests of the firm clients? If so, what actions should they take? Assume that Joanna visits with Louis and talks with his wife. She learns that Louis has developed dementia and it’s been quite a struggle. Now what? Again, what actions should the partners take and why? Depending upon what the partners learn, could there be a situation that would require the reporting of an ethics violation? If yes, what might that situation be? What should the partners do if Louis refuses to acknowledge that anything’s wrong?
Let’s change the facts just a bit. Instead of dementia, Louis is still in the prime of his career and is struggling with chronic alcoholism. He refuses to acknowledge the impairment and decides to strike out on his own taking as many of his clients with him as he can. What actions, if any, are the partners ethically required to take now?
One final spin on this fact pattern. Instead of the partners becoming aware of a problem with Louis, adverse counsel witnessed behavior strongly suggesting that Louis is impaired. Is adverse counsel ethically required to take any action?
C) Joanna was in the process of handing out each individual attorney’s portion of the firm’s malpractice insurance application asking that everyone sign off and get the forms returned rather quickly. Do you have any concerns about her casualness with the application process? What risk is she taking, even if unintentional, and how could that turn into a very serious concern?
D) Joanna sits on the hospital foundation board. Over the years, fellow board members have referred clients to her. Now Joanna has a plan to see if she can increase the number of referrals to her and hopefully increase the number of bequests to the foundation at the same time. Let’s start with her first idea. As a board member, is it ethically permissible for her to make potential donors aware of
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the hospital foundation and ask them to consider making a gift? How about her other idea, are there any ethical problems with her asking the foundation to let all potential donors know that she’ll provide a discount on her services to anyone who wishes to make a gift to the foundation?
Let’s play with the facts just a bit. What if the foundation were to offer to pay Joanna’s fees on any of these referrals based upon a percentage of the bequest? Would that pass muster? Could Joanna represent the foundation in any capacity while also encouraging others to make a gift to the foundation? Take it up a notch. Could Joanna represent the foundation in any capacity while simultaneously representing one or more donors? If so, how far does this go? Suppose the foundation asks Joanna to represent them as well in negotiations with referred donors. Would that be permissible?
Rules to Consider:
Rule 1.4 Communication: Case Status; Informed Consent; Malpractice Insurance Disclosure Rule 1.5 Fees Rule 1.6 Confidentiality of Information Rule 1.7 Conflict of Interest: Current Clients Rule 1.8 Conflict of Interest: Current Specific Rules Rule 1.16 Declining or Terminating Representation Rule 1.18 Duties to Prospective Client Rule 2.1 Advisor Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers Rule 5.4 Professional Independence of a Lawyer Rule 7.3 Solicitation of Clients Rule 8.3 Reporting Professional Misconduct
Answers
A) Duties Owed to Prospective Clients and Conflicts of Interest
Rule 1.18 governs conflicts arising out of a consultation with a prospective client. It protects any confidential information communicated to a lawyer, regardless of whether the prospective client becomes a client of the lawyer, but it relaxes the standard for representing parties adverse to the prospective client compared to Rule 1.9, which applies once a representation has begun. The lawyer, or his firm, can represent a client adverse to the prospective client as long as the lawyer did not receive “information from the prospective client that could be significantly harmful to the prospective client in the matter.” Rule 1.18(c). A conflict that does arise under 1.18(c) can be waived with the consent of both the prospective client and the client, or can be avoided by screening the lawyer who had the consultation with the prospective client and providing the prospective client with notice of the screen. Rule 1.18(d).
In Andy’s case, there may be a conflict preventing his representation of the prospective client who is looking to sue the daycare center. He previously consulted with the daycare center owners about the related criminal case, and “learned what the defense strategy” would be, including the detail that the son was never left alone with any kids in the daycare. This level of detail makes it possible that Andy learned information that would be significantly harmful to the daycare center owners, and this is undoubtedly a substantially related matter – the criminal charges and the potential civil suit arise out of
20 | Page the same set of facts and the same actions by the daycare center. If there is a conflict based on the information Andy learned in his consultation, the screening option under 1.18(d) may not be available since Andy has shared this information with others in the firm. The only way a lawyer in the firm could take the case, assuming the other requirements in 1.18(d) are satisfied, would be if that lawyer did not participate in this conversation with Andy or otherwise learn the significantly harmful information that Andy has.
Erika’s situation revolves around whether any of this information is confidential at all – it is likely to be significantly harmful to the person who shared it, but that only creates a conflict if the information is also confidential under Rule 1.18(b). Note the following language taken from the Comment to Rule 1.18.
“A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. See also Comment below (on avoiding acquiring disqualifying information). In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a “prospective client.” Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a “prospective client.” Merely opening and reading an unsolicited email from a person seeking the services of a lawyer does not create a “prospective client” relationship.”
The comment seems to make it clear that simply publishing an email address or phone number in an advertisement, without more, is not the solicitation of confidential information from a prospective client, and that unilateral communication to a lawyer under those circumstances is not confidential unless the lawyer specifically invited the communication of confidential information or otherwise created the reasonable impression that the information would be treated as confidential. Erika’s situation is even farther removed from any solicitation of confidential information, since the adverse party apparently found her email address from the bar website or a similar listing. Erika did not do anything to invite or solicit the communication under these circumstances, and therefore owes no duty of confidentiality to the sender of the email.
This reasoning behind this outcome was succinctly stated in a Virginia legal ethics opinion (LEO 1842) and is worth sharing here. A portion of the opinion reads,
“a lawyer who unilaterally receives information via an e-mail communication has no opportunity to control or prevent the receipt of that information and risks the creation of a conflict to the representation of an existing client or another adverse party. The Committee believes that it would be unjust for an individual to foist upon an unsuspecting lawyer a duty of confidentiality, or worse yet, a duty to withdraw from the representation of an existing client, simply because
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the lawyer lacks ability under the circumstances to control the nature and extent of information being provided.”
Given the language found in the Comment to Rule 1.18, one can reasonably conclude that Erika can share this information with her corporate client to warn them of the potential lawsuit. Erika also has no conflict if she continues to represent the corporate client in this matter and she has no obligations to the former employee who sent this information for the reasons identified above.
Although not in play in this situation, the firm is correct to have a disclaimer or warning on their website that information sent through the website is not confidential. In contrast to the purely unsolicited communications discussed above, a lawyer or firm that specifically invites prospective clients to submit information about their cases online must treat that information as confidential unless the firm specifically informs the prospective client that the information will not be confidential. The Comments to Rule to 1.18 supports this conclusion, indicating that a lawyer “may condition a consultation with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter… If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client.”
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Risk Management Note: How to Avoid Conflicts with Individual Attorney E-mail Hyperlinks
Websites are in wide use within the legal profession and for good reason. After all, who takes the time to pick up the yellow pages anymore? Many homes have even opted out of receiving the yellow pages all together, mine included. Prospective clients routinely search out lawyers on the internet and visit their websites. And for business development and marketing reasons, lawyers want prospective clients to be able to contact them directly. As lawyers, however, we need to be aware of the potential risks a web presence can create that can lead to problems down the road. One common misstep that I repeatedly see is the posting of individual attorney e-mail hyperlinks on a firm’s website without effective disclaimers. Caution is in order.
Here is the concern. To a prospective client searching for a lawyer, a law firm’s website can easily be perceived as manifesting the intent to form an attorney-client relationship via e-mail. When someone acting on this offer sends an e-mail to the firm or an individual lawyer, is this person now treated as a prospective client thereby triggering confidentiality and conflict concerns? Ethical opinions have said yes to this question.
Many jurisdictions have adopted some version of ABA model Rule 1.18 Duties to Prospective Clients which provides lawyers with guidance regarding their duties to prospective clients including receipt of confidential information and potential conflicts. While there are a number issues that should be addressed when receiving information from or meeting with prospective clients, one of the first lines of defense is having an appropriate disclaimer on your website. Let’s focus on disclaimers.
Many firms simply place a disclaimer on their website’s homepage and often hide it behind a disclaimer hyperlink. This is a passive approach to the problem. While I can’t speak for you, I typically don’t take the time to look for and read buried disclaimers when I’m on the Internet. My point is that almost no one does. Making matters worse, I have viewed website “terms of use” disclaimers that are
22 | Page so long, convoluted, one-sided, and full of mind numbing legalese that the disclaimer has in all likelihood become entirely ineffective. In short, I would suggest that there is no enforceable agreement with these things. Yes, reasonable minds may see this issue differently. I just don’t want you to be a test case. If you take the passive approach, treat unsolicited e-mail as coming from a prospective client. This means that even if no attorney/client relationship is created post receipt you are well advised to treat the information shared as confidential regardless of what your disclaimer states. Also, be aware that you and your firm may have a conflict problem if you already represent the opposing party or are ever contacted by the other side.
One alternative is to take a more proactive approach and require an affirmative assent to your disclaimer before allowing for the transmission of an e-mail to you. Basically, the idea is to force the prospective client to “click” on an acceptance of the terms of your disclaimer. Now at least it is possible to avoid an unintended disqualification based upon the receipt of e-mail from a prospective client. The confidentiality and conflict concerns play out differently as there should be an enforceable agreement.
The approach that I prefer is this. Once a visitor to a website clicks on an individual attorney email hyperlink, a small box appears with a statement along the lines of “Please Read before Sending.” Post a short and concise disclaimer within this box and require that a visitor click on an “I Accept” or a “Cancel” link before continuing. The “I Accept” link will allow the visitor to proceed with the sending of an email to an attorney. The “Cancel” link will terminate the e-mail attempt.
Three important points should be made in your disclaimer. First, it should state in the disclaimer that communicating with an attorney via e-mail will not create an attorney/client relationship. Second, it should caution the sender not to provide the lawyer with confidential information and, if they do, said information may not be protected. Finally, it should indicate that any information sent by a prospective client via e-mail, even in a good faith effort to retain the firm, will not preclude the firm from representing another client directly adverse to the prospective client even in a matter where that information could, and very well may be, used against them. The goal is to be able to document informed consent to a waiver of a future conflict. (Several sample disclaimers appear below.)
If this proactive approach is a stretch for your IT budget or capabilities, there is another way to avoid the conflict problem. Simply stop posting individual attorney email hyperlinks on the web. In their place, begin using a generic firm email address that becomes the firm’s email drop box. It might be along the lines of [email protected]. Under this scenario, staff processes all incoming mail, both paper and virtual. Should a potential client confidence be shared with a staff person, this person can often be effectively screened from that matter if a conflict is in play or evolves down the road. Training will be key with this approach, however. Staff will need to know how to recognize the potential problem and also know what to do with the information so that the confidence is never shared with any attorney at the firm.
In sum, I can certainly appreciate the business decision behind placing individual attorney e-mail hyperlinks on a firm website. Just think through the issues first. There is a difference between a receiving a cold call and receiving an e-mail from a prospective client. With a phone call, an attorney can remain in control of the conversation and prevent the prospective caller from sharing information that the attorney does not wish to hear. With an e-mail, once opened, information from the entire communication is considered received. That’s the bottom line and that reality has ramifications if left unaddressed.
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Click Through Website Contact Disclaimer Resource
NOTE: This material is intended as only an example, which you may use in developing your own form. It is not considered legal advice and as always, you will need to do your own research to make your own conclusions with regard to the laws and ethical opinions of your jurisdiction. In no event will ALPS be liable for any direct, indirect, or consequential damages resulting from the use of this material.
Sample 1:
Please Read Before Sending E-Mail. Please note that any communication with (Firm Name) via e-mail through this website does not constitute or create an attorney-client relationship with (Firm Name). Please do not send any confidential information. A conflicts-of-interest procedure must be completed by (Firm Name) prior to establishment of an attorney-client relationship. When you execute an engagement letter from the (Firm Name) you will be our client, and you may then exchange information freely with your attorney.
By clicking “Accept,” you agree that we may review any information you transmit to us. You recognize that our review of your information, even if it is highly confidential and even if it is transmitted in a good faith effort to retain us, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.
Accept Decline
Sample 2:
Before sending your email to us, please note and understand the following:
This website provides general information about (Firm Name), its practice areas and professional staff. It is not intended to provide you with legal advice with respect to a matter that you may have. Until such time as (Firm Name) has resolved all potential conflicts of interest in accepting your representation and has agreed to be engaged as your legal counsel, you are not represented by (Firm Name) or any of its attorneys and have not become a client of the Firm.
Sending this email or otherwise contacting (Firm Name) does not create an attorney-client relationship. By sending information to us, you are not creating an attorney-client relationship, and no disclosure by you before this firm agrees to represent you will prohibit this firm from representing any person or entity adverse to you.
Only if and when (Firm Name) has confirmed to you that it is willing and able to represent you should you send the Firm any information or documents that you consider private or confidential. Such information
24 | Page will not be treated as private, confidential, or otherwise protected from disclosure until (Firm Name) has confirmed that it is able and willing to represent you.
If you choose to ignore this warning and submit any information that you believe or otherwise assert to be confidential or privileged, then by clicking on the “Accept” button, you agree that your submission will not preclude (Firm Name) from representing a client in a matter adverse to you where that information could be used against you.
Accept Cancel
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B) Lawyer Impairment Problems
Once a lawyer in a law firm has a reasonable belief that a lawyer over whom he or she has supervisory authority is impaired and presents a risk to clients or the public, the lawyer must take reasonable steps in an effort to ensure that the impaired lawyer does not breach duties owed to the law firm’s clients. If Louis is a partner in the firm one might argue that the other lawyers in the firm do not have “supervisory authority” over Louis. However, Rule 5.1(a) states:
A partner in a law firm, and a lawyer who individually or together with other lawyers has comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
So, under this Rule, the partners individually and collectively are required to make reasonable efforts to ensure that the firm has measures in place so that all lawyers in the firm comply with the Rules of Professional Conduct. Therefore, it is improper for the other lawyers in the law firm to ignore Louis’ situation.
While Alaska has yet to issue an ethics opinion that addresses this topic, Virginia (along with the ABA) is in many ways leading the nation in formally addressing this concern. The Supreme Court of Virginia approved Legal Ethics Opinion (LEO) 1886 on December 16, 2016. This opinion addresses the ethical duties of partners and supervisory lawyers in a law firm to take remedial measures when they reasonably believe another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public. The opinion specifically focuses on the obligations of partners and supervisory lawyers to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public.
In LEO 1886, the Committee concludes that Rule of Professional Conduct 5.1(b) requires a partner or supervising lawyer to take reasonable steps to prevent an impaired lawyer under his direction and control from violating the Rules of Professional Conduct. Drawing on the analysis of ABA Formal Opinion 03-429, the opinion concludes that supervisory lawyers must protect the interests of the firm’s clients by establishing procedures that require the impaired lawyer to get treatment as a condition of continued employment and/or limit the impaired lawyer’s work to tasks he is capable of doing. The supervisory lawyers have a duty to take action in this situation even if no misconduct has occurred that
25 | Page would trigger the duty to report the impaired lawyer under Rule 8.3(a) because the duty of supervisory lawyers under Rule 5.1 is prospective and applies even before any misconduct has occurred. The opinion applies this analysis to two different hypotheticals to demonstrate the various actions that may need to be taken depending on the nature and circumstances of the affected lawyer’s impairment. The opinion makes several important points about lawyer impairment:
1. The goal is for partners and supervisory lawyers in a law firm to develop and implement proactive measures before a lawyer’s impairment results in serious misconduct or a material risk to the public that would require a report to the bar under Rule 8.3(a).
2. Rule 5.1(a) requires that a firm have in place measures or procedures to ensure that all lawyers, not just impaired ones, comply with the Rules of Professional Conduct. The measures required depend on the firm’s size, structure and nature of its practice. Cmt. [3], Rule 5.1.
3. When a partner or supervising lawyer knows or reasonably believes that a lawyer under their direction and control is impaired, Rule 5.1(b) requires that they take reasonable steps to prevent the impaired lawyer from violating the Rules of Professional Conduct.
4. A lawyer’s impairment does not excuse the lawyer from compliance with the Rules of Professional Conduct, nor is impairment a defense to charges of misconduct.1 All lawyers, including impaired ones, owe a duty to represent a client diligently and competently.
5. A lawyer whose physical or mental health “materially impairs” his capacity to represent clients has a duty to refrain or withdraw from representation. Rule 1.16(a)(2).2 Unfortunately, the impaired lawyer may not be cognizant of the scope and nature of the impairment, and does not recognize the need to withdraw from the representation.
6. Steps to Protect Clients. The firm’s paramount obligation is to take steps to protect the interests of its clients. The first step may be to confront the impaired lawyer with the facts of his impairment and insist upon steps to assure that clients are represented appropriately notwithstanding the lawyer’s impairment. Other steps may include forcefully urging the impaired lawyer to accept assistance to prevent future violations or limiting the ability of the impaired lawyer to handle legal matters or deal with clients. The law firm may be able to work around or accommodate some impairment situations. For example, the firm might be able to reduce the impaired lawyer’s workload, require supervision or monitoring, or remove the lawyer from time-sensitive projects. The impaired lawyer may not be capable of handling a jury
1 ABA Formal Op. 03-429 (2003) (A lawyer’s impairment does not excuse failure to meet a lawyer’s duty to a client.). See also Columbus Bar Ass’n v. Korda, 760 N.E.2d 824 (Ohio 2002) (impaired lawyer who filed a brief on behalf of her clients but failed to take any further actions in the case suspended for failing to act diligently); Attorney Grievance Comm’n v. Wallace, 793 A.2d 535 (Md. 2001) (lawyer who claimed to be undergoing personal and psychological problems was disbarred for being negligent in his representation in six cases); In re Sheridan, 813 A.2d 449 (N.H. 2002) (impaired lawyer who failed to successfully file the articles of incorporation for his client and did not notify the client of his failure suspended for failing to communicate with his client); In re Francis, 4 P.3d 579 (Kan. 2000) (depressed lawyer failed to respond to client’s request for information, misrepresented the status of the client’s case to her, and failed to communicate the problems he was experiencing in providing representation); and State v. Southern, 15 P.3d 1 (Okla. 2000) (lawyer with B-12 deficiency publicly censured after failing to respond to requests for information from client and bar association). 2 See, e.g., In re Taylor, 959 P.2d 901 (Kan. 1998) (alcoholic lawyer failed to withdraw from representation although he had failed to appear in court on behalf of his clients or otherwise provide competent counsel); see also State v. Southern, supra,15 P.3d. at 8.
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trial but could serve in a supporting role performing research and drafting documents. Depending on the nature, severity, and permanence (or likelihood of periodic recurrence) of the lawyer’s impairment, the firm may have an obligation to supervise the work performed by the impaired lawyer or may have a duty to prevent the lawyer from rendering legal services to clients of the firm, until the lawyer has recovered from the impairment. The impaired lawyer’s role might be restricted solely to giving advice to and drafting legal documents only for other lawyers in the firm who in turn can evaluate whether the impaired lawyer’s work product can be used in furtherance of a client’s interests.
7. A lawyer’s impairment, unaccompanied by any acts of misconduct, does not trigger a duty to report the impaired lawyer to the bar under Rule 8.3(a).
8. Lawyers Helping Lawyers. In order to protect its clients, the firm should have an enforceable policy that would require, and a partner or supervising lawyer should insist, that the impaired lawyer seek appropriate assistance, counseling, therapy, or treatment as a condition of continued employment with the firm. For example, the firm could recommend, encourage or direct that the impaired lawyer contact Lawyers Helping Lawyers for an evaluation and assessment of his or her condition and referral to appropriate medical or mental health care professionals for treatment and therapy. The law firm can insist that the impaired lawyer sign a monitoring contract so that the firm can be apprised of the lawyer’s progress toward recovery. Lawyers Helping Lawyers (“LHL”) is an independent, non-disciplinary and non-profit organization that has been assisting legal professionals and their families since 1985 deal with depression, addiction and cognitive impairment. LHL can assist law firms dealing with an impaired lawyer through a confidential environment by planning and implementing intervention, providing a free clinical evaluation, referral to appropriate medical and mental health care providers, peer support and group counseling, establishing contracts to monitor and report recovery and rehabilitation and assist and identify financial resources for treatment. LHL is not affiliated with the Virginia State Bar and does not share information with anyone except and unless the participating lawyer expressly consents in writing to share information with third parties.
9. The firm or its managing lawyers might instead find it necessary or appropriate to consult with a professional medical or health care provider for advice on how to deal with and manage an impaired lawyer, including considering options for an “intervention” or other means of encouraging the lawyer to seek treatment or therapy. To this end, Lawyers Helping Lawyers offers a confidential 24/7 hotline number to seek assistance: 1-877-545-4682. To learn more about Lawyers Helping Lawyers visit their web site at http://www.valhl.org/
(Note: In Alaska, contact the Lawyers Assistance Committee. Information about the committee can be found at https://www.alaskabar.org/servlet/content/lawyers__assistance_committee.html)
10. Scope of the Lawyer Impairment Problem. Studies report that lawyers experience depression, alcohol and other substance abuse at a rate much higher than other populations and 2 to 3 times the general population.3 The incidence of alcohol abuse is higher among
3 Patrick R. Krill, JD, LLM, Ryan Johnson, MA, and Linda Albert, MSSW, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Medicine, Issue 2 (March/April 2016). See also ABA Formal Op. 03-429 (2003) (citing George Edward Bailly, Impairment, the Profession, and Your Law Partner, 11 No.1 Prof. Law. 2 (1999)).
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lawyers aged 30 or less.4 Besides the potential lawyer impairment caused by substance abuse, the aging of the legal profession presents an increased incidence of cognitive impairment among lawyers. As of 2016, Virginia State Bar membership records revealed that of the 23,849 active members located in the Commonwealth, 8,366 or 35% are ages 55 or older. Fifteen percent of these attorneys or 3,584 members are 65 or over. These numbers reflect that Virginia’s lawyers, like lawyers nationally, are moving into an older demographic profile, and they continue to practice as they age. Moreover, in the years ahead, the number of lawyers that will continue to practice law beyond the traditional retirement age will increase dramatically.5 The substantial percentage of aging lawyers presents both opportunities and challenges for the state bars. The scope and nature of the challenges and the best way to manage the challenges have been examined by bars around the country.
Suppose Louis does not accept his partners’ entreaties to seek help and continues to deny his impairment. As indicated earlier, the firm may find it necessary to terminate Louis’ relationship with the firm in order to protect its clients. But that raises other questions. Suppose Louis insists on taking his clients with him to his new practice? What, if anything, can the firm tell the clients? Does the firm owe a duty to warn the clients that Louis’ impairment places them at risk? Suppose Louis threatens to sue the firm for defamation, tortious interference with contractual relations, conspiracy to induce breach of contract, breach of privacy law for disclosing confidential medical or mental health information, et cetera?
On the other hand, suppose the firm succumbs to Louis’ threats and does not warn the clients that migrate with Louis to his new firm and the clients suffer injury doe to Louis’s incapability to represent them properly. Did the firm breach any ethical duty to their former clients? Do those former clients have a legal malpractice claim against the firm for failure to warn?
Alaska Bar Association Ethics Opinion No. 2005-2 requires client notification when a lawyer leaves a firm if the departing lawyer had primary responsibility for that client’s matter. Rule 1.4 also requires that a lawyer communicate to the client all material facts relating to the representation including the fact that Louis is severing his relationship with the firm. In accordance with what ethics opinion 2005-2 set forth, best practices would dictate that Louis and a remaining member of the firm meet in an attempt to develop a joint letter or communication to Louis’ clients announcing his departure from the firm. This letter should be “neutral” and not disparage either the departing lawyer or the firm and should advise the client to make a choice between (a) going with Louis, (b) remaining with the firm or (c) requesting their file and going to another lawyer outside the firm. Obviously, if Louis is impaired, the law firm would face difficulty signing off on a joint letter, as it would withhold from disclosure the reason or necessity for Louis leaving the firm and could be misunderstood by any client receiving the notification that there are no concerns or issues regarding his departure. The clients notified, unaware of the risks that Louis presents because of his undisclosed impairment, may reasonably believe that the firm, having signed off on the joint letter, endorses or supports Louis in his continued representation of them.
Upon receiving the notification and electing to go with Louis, the client will have terminated the relationship with the law firm. However, Rule 1.16(d) would require that the law firm “take steps to the
4 Id. The Hazelton Betty Ford Foundation survey reported that one in five lawyers (20%) suffers from alcoholism and approximately 30% of the lawyer population suffer from depression. 5 Report, National Organization of Bar Counsel, Association of Professional Responsibility Lawyers Joint Committee on Aging Lawyers (May 2007) at 3.
28 | Page extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client in entitled and refunding any advance payment of fee or expense that has not been earned or incurred. (emphasis added). One might argue that Rule 1.16(d) requires warning the client about Louis’ impairment as a step necessary to protect the client’s interest. On the other hand, giving such a warning may not be “reasonably practicable” for the firm given the threats that Louis has made against the firm.
ABA Formal Op. 03-429 (2003) explains that if the impaired lawyer leaves or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to use the firm or shift their relationship to the impaired lawyer. But the firm must be careful to limit any statements to those for which there is a factual foundation. Further, the obligation to report the lawyer to the bar under Rule 8.3(a) is not eliminated by the departure of the impaired lawyer.
C) Applying for Malpractice Insurance
Malpractice underwriters would tell you that many attorneys simply do not appreciate the importance of a malpractice insurance application. They could share that answers to questions on some applications appear to have been hurriedly written and thus provide little to no useful information. They could talk about coming across applications that are sloppy and incomplete, which makes them wonder if the person or persons who filled out those apparently rushed applications fully appreciated that an indirect message was being sent, one the firm didn’t intend to send.
An underwriter will review everything that a law firm sets forth in its application and obviously a great deal can be learned about a firm from the specific information provided. However, the way a firm treats the application process can tell an underwriter even more. When a firm has had its renewal application for 90 days but ends up not returning it until just before the reapplication deadline, or worse yet after the deadline has passed, is the firm telling the underwriter something about how the firm’s attorneys treat critical deadlines with client files? When an underwriter calls to obtain additional information from a firm and the phone call is not promptly returned, and sometimes even multiple calls are never returned, what does that say about the firm’s practice when it comes to returning phone calls to clients? What might a sloppy or incomplete application say about a firm’s attention to detail with and quality control of client files? Taken together, what might all of the above examples say to an underwriter about attorney workloads at the firm? The issues raised in these questions are significant issues to a malpractice insurance underwriter as they speak to the overall risk exposure of a firm. The actions or inactions of attorneys during the underwriting process will leave an impression and impressions count with insurance carriers, just as they do with clients.
With the above in mind, it would seem that the casualness with which Joanna seems to be approaching the malpractice insurance application process coupled with her apparent desire to have everything completed post haste could have unintended adverse consequences, at least in the underwriting process. Making matters worse, her approach could be asking for far more serious trouble, particularly given all that is going on with Louis. The real concern is this. She is risking that any questions on the application that concern known facts, circumstances, acts, errors, or omissions that could reasonably be the basis of a claim will not be answered honestly and accurately by every attorney practicing at the firm.
For example, assume for a moment that what we’ve learned about Louis, in terms of the unopened mail and stack of unsent client bills, will remain undiscovered for another few months. After Louis received his portion of the application, he answered any and all questions about awareness of
29 | Page anything that could lead to a claim in the negative when, in truth, he has been neglecting more than a few client matters. In fact, several clients have even complained, but just to Louis, who managed to smooth things over for the time being. Unfortunately, Louis did nothing in terms of responsibly addressing the concerns raised. He returned his signed documents back to Joanna who submitted them along with everything else and the firm successfully obtained coverage for another year.
Six months into this new coverage year, one or two claims arise as a result of Louis’ struggles and this is how the firm first learns they have a problem with Louis. Could coverage for these new claims be problematic? Absolutely. Louis was aware that matters were being neglected. He had knowledge of facts, circumstances, acts, errors, or omissions that could reasonably be the basis of a claim and he failed to disclose that knowledge on the application. A harsher possibility is the firm’s coverage could even be rescinded, which would not only leave the firm without coverage, but every attorney at the firm would also lose their prior acts coverage. So not good.
Attorneys need to be aware that in any multimember firm the misstatements of one attorney, be they intentional misrepresentations or simply due to carelessness, can and sometimes do lead to very severe consequences for every other firm attorney. Insurers rely on the accuracy of the information provided during the application process, and if and when that information turns out to be false, policies can be and actually are sometimes rescinded due to the misrepresentations contained in the application. Given this reality, Joanna should consider taking the application process more seriously, again, particularly given all that they have just learned about Louis.
The process of applying for malpractice insurance is a process that should be something of a priority for all attorneys in every firm. There should be at least one meeting where the attorneys sit down to go through the questions and discuss the answers that are to be provided. If this seems too burdensome, at least review and discuss any questions that pertain to past claims, possible claims, etc. Not only is this beneficial for the application process; but there can be a benefit for the firm as well due the opportunity to keep track of all that is going on with each attorney at your firm from the new associate to the most senior partner. Once the application is complete, there is value in having the partners review the answers to make certain the information provided is accurate and complete, paying particular attention to any sections of the application that have been completed by individual attorneys, who have provided specific details as to what’s going on in their own individual practices. The firm in this vignette would be well served if Joanna would approach the application process as just described.
Finally, keep in mind that one of the benefits of providing thorough answers in the insurance application comes from taking advantage of the opportunity to explain all the loss prevention measures a firm has taken. Far too often this information is missing from the application and, of particular importance, from any claims supplements. Malpractice carriers want to know the frequency with which a firm uses letters and/or other writings to confirm the existence, non-existence, and even the conclusion of an attorney-client relationship. Effective calendaring and docket control systems are equally critical. In fact, firms that handle a significant amount of litigation should maintain three independent calendar/docket control systems. If one of these systems happens to be a computerized rules-based calendaring system, that’s even better. Underwriters find comfort with such practices. If these kinds of systems are in place at your firm, take the time to report this in some detail.
If past claims are being reported on the application, detail the steps your firm has taken to prevent the reoccurrence of a claim similar to the one(s) reported on the claims supplement. Note that glib responses such as “that attorney no longer works here” or responses which indicate that the firm has not accepted any responsibility for the claim are going to be a real concern. Be straightforward and
30 | Page tell the underwriter what you learned as a result of the claim as well as why something similar shouldn’t ever happen again.
To sum up, late applications, sloppy applications, and hastily completed applications are all examples of situations where relevant information has been provided, albeit unintentionally, to malpractice insurance carriers. This information can and will have an impact on the underwriter’s decision-making process. Not only could it affect the decision of whether or not to underwrite a firm, but it may also affect the determination of premium amount. When it comes to insuring a risk, the more information an underwriter has the better the underwriter is going to be able to understand and correctly rate the risk. In short, the time taken to thoroughly, diligently, and accurately complete your malpractice insurance application is going to be time well spent.
D) Serving on Foundation Board—Solicitation of Gifts—Conflicts of Interest
Solicitation of Bequest
Rule 1.7(a)(2) provides that there is a concurrent conflict of interest when “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Joanna’s desire to enhance her stature on the hospital foundation board, and, more broadly, in the community through fundraising could well conflict with the interests of her estate clients. Clients who seek legal assistance in developing an estate plan do not normally look to a lawyer to identify those who should be the objects of their bounty. A lawyer who solicits a bequest from a client for the benefit of a charitable organization of which the lawyer is a member may depart from her obligation to “exercise independent professional judgment” as required by Rule 2.1. Assets passing to a charitable organization at the testator’s death deplete what would otherwise be available for distribution to the testator’s other beneficiaries named in the will. No client should be placed in the position of having to reject his lawyer’s “advice” to bequeath a portion of his estate to a particular charity in possible derogation of the client’s natural desire and inclination to provide as fully as possible for his family.
One commentator identifies “undue influence” as an allegation which a lawyer may face if she solicits a charitable gift from a client:
An attorney should avoid recommending a charity for which he serves as a director as the object of a bequest to avoid an allegation of undue influence and the appearance that the attorney is acting as solicitor for the charitable organization. If a client informs the attorney of a desire to make a bequest for a certain cause, but is unsure of which charity to benefit, the attorney may provide the name of the charity for which he serves as director, so long as he discloses his relationship to the charity and obtains the client’s consent before drafting any bequest to the charity.6
6 Mills, Richard C., Doing Good, While Doing Right by Your Client: A Guide to Ethical Considerations for Estate Planning Attorneys Serving on Charitable Boards, ABA Probate & Property Magazine: Volume 29 No. 06 (2015)
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Of course, a client may be wealthy and have made charitable donations during her lifetime. Her heirs may themselves be well provided for and would enjoy the renown accruing to the family following a charitable organization’s receipt of a generous bequest. Tax avoidance considerations may also be in play. If the testator’s attorney is merely asked to suggest a charity, as stated above, then any conflict is easily cured if the client is informed of the lawyer’s association with the charity and consents to the bequest. In fact, Rule 2.1 permits a lawyer to “refer not only to law but to other considerations such as moral, economic, social and political factors, …. that may be relevant to the client's situation.” Recommending a bequest to a particular charity can certainly be seen to encompass the type of advice which a lawyer is entitled to give under that Rule, if asked. Note that in the Comment to Rule 2.1, in pertinent part, states
Offering Advice
In general, a lawyer is not expected to give advice until asked by the client. ….
…. but a lawyer may initiate advice to a client when doing so appears to be in the client's interest.
Thus, a lawyer’s unsolicited recommendation to a client that she make a bequest to a particular charity with which the lawyer is associated would depart from what is expected of a lawyer in the exercise of his independent professional judgment required by Rule 2.1.
Hospital Foundation Advising Potential Donors that Lawyer Will Discount Fees for Those Who Make Bequests to Foundation
Subject to certain exceptions not applicable to our analysis of this issue, Alaska Rule of Professional Conduct 7.2(b) provides that “A lawyer shall not give anything of value to a person for recommending the lawyer’s services . . .[.]” Joanna’s promise to the hospital foundation that she will discount her services to prospective clients willing to make a bequest to the foundation violates this Rule. The foundation receives a bequest in exchange for its willingness to channel prospective clients to her for reduced fee services.
In Ethics Opinion KBA E-391 (1996), the Kentucky Bar Association opined that:
Any agreement between a charitable organization and a lawyer to provide services for its members and/or benefactors must comply with the provisions of the Kentucky Rules of Professional Conduct prohibiting third-party solicitation. Specifically Rule 7.20(2) prohibits any lawyer from giving “anything of value to a person for recommending the lawyer’s services.” By offering services at a reduced fee or by conditioning services on a gift or bequest results in the lawyer giving the organization something of value as consideration for offering legal services. *** Consequently, the offering or recommendation of services may not be conditioned on a gift or bequest to the charitable organization.
As discussed above, a lawyer must exercise independent professional judgment. What is to be done if Joanna concludes after conferring with the client that the client’s objectives would not in fact be served by a bequest to the foundation? Does she so advise the client? What if the client, based on information and advice Joanna gives, changes his mind about making a bequest? Does Joanna then raise her fees to the undiscounted level, thus putting a price on the client’s change of heart? If Joanna
32 | Page does not raise her fees, would not the client feel regret that he had reneged on a promise to make a bequest to the hospital foundation?
Another Rule of Professional Conduct might be implicated in this scenario:
RULE 5.4 Professional Independence of a Lawyer.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
In ABA Informal Op. 1288 (1974), an opinion which addressed ethical issues presented by a lawyer’s working in league with a church for client referrals, the Code of Professional Responsibility precursor to the above Rule was cited, with the observation that:
The lawyer will be influenced by the precondition of a gift to the church. He may find it proper to tell his client that the gift is too large in relationship to the size of the estate and obligations to others or that the gift is unwise for other reasons. The lawyer would be influenced before the attorney-client relationship even arose and would be reluctant to seem disloyal to the church which has recommended him by recommending against a gift where such advice would be in the best interest of the testator. [Emphasis is supplied.]
Hospital Foundation Pays Legal Fees of Estate Lawyer’s Client as a Percentage of Bequest
It would be ethically impermissible for Joanna to accept legal fees from the hospital foundation based on a percentage of the client’s bequest to the foundation. Such an arrangement would implicate Alaska Rules of Professional Conduct 1.5(a), 1.7(a)(2), 1.8(f)(2), 2.1, and 5.4(c). The amount of legal work required of a lawyer in drafting a testamentary bequest to a single beneficiary is substantially the same, whether the bequest is $1,000.00 or $1,000,000. Irrespective of who pays the lawyer’s fee, the fee must be reasonable under Rule 1.5(a). Contingent fees are normally based on what a lawyer recovers on behalf of a client, or upon what a lawyer saves a client. To charge a client (or third party on behalf of a client) a fee based on what the client gives away will not withstand ethical scrutiny under Rule 1.5(a).
A lawyer accepting compensation on a contingent fee basis from a beneficiary to direct the client’s wealth in a testamentary bequest to that same beneficiary violates Rule 1.8(f)(2). That Rule prohibits a lawyer from accepting compensation from a third party if such interferes “with the lawyer’s independence of professional judgment or with the lawyer-client relationship[.]” A lawyer who agrees to compensation which rises in any proportion to the size of a client’s bequest to the third party paying the lawyer’s fees departs from his ethical obligation to charge a reasonable fee under Rule 1.5(a), and at the same time aligns himself with the objectives of the beneficiary over those of serving the client’s best interests.
Joanna’s Simultaneous Representation of Client and Hospital Foundation
There would be a significant conflict of interest if Joanna were to represent, as an attorney, both a client and the hospital foundation in negotiations between them regarding the individual client’s bequest to the foundation. The client’s wealth, obligations, and donative intent regarding other potential beneficiaries would be confidential information under Rule 1.6. Joanna’s duty of communication to the hospital foundation under Rule 1.4 might well conflict with her obligation to
33 | Page maintain the prospective donor’s confidences. The converse of this would be true, as well. What if the hospital related to the foundation was in financial trouble? What if Joanna had concerns about the management of the hospital or the hospital foundation which a prospective donor would want to know?
A conflict can exist even if Joanna represents the hospital foundation as a board member with fiduciary duties, but not as the board’s attorney, in negotiations with her client respecting a charitable bequest to the foundation. Rule 1.7(a)(2) provides:
RULE 1.7 Conflict of Interest: Current Clients.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. [Emphasis is supplied.]
The hospital foundation is a “third person” to which Joanna has obligations, and her “personal interest” by way of stature on the board and in the community as a fundraiser comes into play with every charitable bequest.
Might the inherent conflicts be cured in some circumstances under Rule 1.7(b) with curative consents? The answer, as is often the case when ethical considerations are under analysis, is “it depends.” The author of Doing Good, While Doing Right by Your Client: A Guide to Ethical Considerations for Estate Planning Attorneys Serving on Charitable Boards, concludes his article thusly:
At the heart of each conflict of interest situation is the weighing that must be done by each attorney between his fiduciary duty as a director and his duty to his client, given the facts at hand. For the estate planner, the key question with any conflict of interest is “Is this conflict waivable?” If the answer is “yes,” the attorney should obtain the client’s informed consent (and the charity’s, if necessary) before drafting the gift. If the answer is “no,” the attorney should decline the representation. By doing so, the attorney will be doing the client, the charitable organization, and himself a favor.
One can easily imagine a circumstance where a conflict is curable via consent, whether the foundation is Joanna’s client or she is simply acting as a board member. Suppose, for example, that Joanna’s estate client is a sophisticated businessman, well known to be a “top one-percenter” and philanthropist. Although he is new to Joanna as a client, he has already made gifts during his lifetime to the hospital foundation, and is very familiar with the financial health of the foundation and the hospital it benefits. He informs Joanna of his estate plans, formulated in association with his family and his financial advisors. He is considering a testamentary bequest to the hospital foundation of between $250,000 and $300,000, which is a tiny fraction of his net worth.
The estate client is informed of Joanna’s association with the hospital foundation as either its attorney/board member or as board member only. If the foundation is Joanna’s client, the estate client authorizes Joanna to inform the hospital foundation that she represents this particular potential donor as an estate client, so that consents from each client can be obtained. If the hospital foundation is not a
34 | Page client, then no consent from the foundation is required. Both the hospital foundation and the client agree that any bequest made to the hospital foundation will be the product of the estate client’s own assessment of what is appropriate and that Joanna’s role is to make the intended bequest legally efficacious.
Contrast the above situation with that of an estate client who earns $45,000 per year, with a net worth of $250,000.00 and a $50,000 term life insurance policy. The client has an unemployed special needs adult child who lives with the client and his wife, who cares for the child while the client is at work. The client has two other unmarried adult children living independently and scraping by with jobs that pay in the $18,000 to $20,000 range. The client received a brochure from the hospital foundation, which promised that his name would be placed on a brass plaque at the hospital entrance were he to make a charitable testamentary bequest of $50,000 or more. The client’s interest in displaying his generosity to the community, and in taking a stab at immortality, governs his thinking and he asks Joanna what she thinks of his intentions, and if she can help him make such a bequest.
In this latter scenario, one should conclude that the potential conflict is incurable via consent. As a hospital foundation board member only, or as a board member and attorney for the foundation, Joanna does not want to disserve the board by advising the client that his intended bequest is imprudent. Likewise, Joanna does not want to refuse to follow the client’s instructions, even if they are foolish, if he wants to make a bequest, so as to avoid a conflict. Joanna cannot reasonably conclude that she can offer competent and diligent representation to either or both clients. Her obligation to exercise independent professional judgment for the benefit of the estate client and the hospital is hopelessly impaired, and she should play no part in advising or representing either client. The estate client should be referred to another attorney in a different firm, and Joanna should not represent the hospital with regard to any bequest made, or sought to be made, by this client.
Vignette Two – The Bar Report
Questions to Consider
A) In a number of jurisdictions, disaster planning is alluded to in the context of mandated succession planning for solo attorneys. Disasters, however, are not limited to untimely deaths of solo attorneys. Storms, fires and floods happen; and as Rhea shared, computer networks can be hacked and all your data gone in the proverbial blink of an eye. Sometimes the unexpected does happen and when it does, the fallout can be significant. With this in mind, is disaster recovery planning ethically mandated for all firms, regardless of size? Ethically mandated or not, disaster recovery planning would seem to be the prudent thing to do because client interests, even the ongoing viability of your firm, could be at risk. Now, answer Rhea’s question. Would you be prepared if disaster strikes? If not, what should be included in a disaster recovery plan so that you would be?
B) 2016 has been referred to as the year of ransomware and things have only gotten worse as attack vectors continue to change and evolve. What are your ethical obligations in terms of trying to prevent such attacks? Regardless of your ethical obligations, what steps can you take to avoid becoming a victim of cybercrime? When it comes to cybercrime, every firm’s greatest weakness are
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the people who actually use the firm’s computer resources because social engineering attacks are the name of the game. What can you do to counter social engineering attacks?
C) Marketers have been using web bugs for years trying to gauge consumer reaction to email promotions. More concerning is that now-a-days, millions of people use these widely available tools as well. Given their use, is it ethically permissible for lawyers to use these same tools to obtain information about what happened to emails and attachments sent to opposing counsel? Why or why not? Would it make any difference if the use of web bugs were disclosed? Attorneys are well served by advising their clients about the legal ramifications of their own use of technology during the course of representation so might the use of web bugs be an appropriate way, if you will, to monitor client compliance, at least as it relates to any email sent to a client?
D) Some clients can and will track adverse parties. Others can and will alter evidence because it’s so easy to do. However, such actions can bring about unintended and potentially very serious legal consequences. Do lawyers have an ethical obligation to anticipate the crazy things clients might try to do with technology and then educate their clients as to the potential legal ramifications if they decide to do so? If you’re not willing to go that far, do lawyers have an ethical obligation to inquire as to how any information/evidence that a client brings to an attorney was obtained in order to identify and discuss any potential legal ramifications? Taking this concern to its logical end point, does a lawyer have an ethical obligation to question the veracity of any digital evidence a client provides?
E) Answer Saddled’s question. Is it ethical permissible to advise a client to clean up their social media pages? Could you even advise them to take the pages down completely? What if you suspect a client might take such steps on their own accord? Must you step in and advise them on the potential ramifications of doing so?
Rules to Consider
Rule 1.1 Competence Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer Rule 1.3 Diligence Rule 1.4 Communication: case Status; Informed Consent; Malpractice Insurance Disclosure Rule 1.6 Confidentiality of Information Rule 1.16 Declining or Terminating Representation Rule 3.3 Candor Toward the Tribunal Rule 3.4 Fairness to Opposing Party and Counsel Rule 4.1 Truthfulness in Statements to Others Rule 4.2 Communication with Persons Represented by Counsel Rule 4.4 Respect for Rights of Third Persons Rule 5.1 Responsibilities of Partners, Manager, and Supervisory Lawyers Rule 5.3 Responsibilities Regarding Nonlawyer Assistance Rule 8.4 Misconduct
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Answers
A) Disaster Planning
Lawyers are required by the Rules of Conduct to have succession plans in the event of death or disability, especially solo and small firms in which there may not be a lawyer able or willing to assume responsibility for the clients left behind. Similarly, lawyers should be ethically bound to make plans in the event of a disaster. As early as 2005, in the wake of Hurricane Katrina, which struck the Gulf Coast, bar leaders and courts began to think about disaster planning in the legal services sector.
Law firms, big and small, were destroyed in the wake of Hurricane Katrina, forcing Gulf Coast lawyers to relocate to other cities to attempt to reconstruct their law practices. Computer systems, client files and other records were destroyed, creating challenges as lawyers tried to establish contact with clients, many of whom were also displaced. Legal services offices and other non-profit groups in Louisiana and Mississippi were hit especially hard, as they struggled with the surge of victims/clients needing assistance on matters such as housing, child custody, support, domestic violence, and public benefits.
Hurricane Disasters like Katrina are just one type of threat facing the public, the legal profession and the courts. Taken by surprise by the shocking devastation of Hurricane Katrina, experts now realize the importance of discussing and developing strategies to plan for disasters and mitigate the effects of disasters on the delivery of legal services and the functioning of the courts.
The massive devastation of businesses, homes and infrastructure in the wake of Katrina, spawned a continuing discussion by lawyers about “business contingency/disaster planning.” What would happen to your law firm and practice if your office is destroyed by a disaster like Katrina? Would you be ready? Would your firm be able to contact its clients and continue the business of providing legal services? What does disaster or business contingency planning involve? Do lawyers owe an ethical duty to their clients to develop some sort of “backup” or “contingency” plan?
According to Dennis Duitch and Terry Oppelt, in an article entitled Disaster and Contingency Planning: A Practical Approach7 the primary objective of business contingency and disaster planning is the continuity of business: keeping operations running, providing professional services, maintaining client confidence, maintaining regular cash flow and other activities for survival. This begins with an assessment of which operations are vital to the law firm’s survival, including maintaining cash flow for payroll, billing and fee collection, word processing, case and court docket control, and court filings and pleadings. The question is: can these activities be performed manually since, in all likelihood, your firm’s computer system will be down, either because it has been destroyed, or because there has been a power interruption. Duitch and Oppelt also make these other recommendations:
Develop a list of critical numbers for your post office, police, fire department, courts, banks, insurers, building management, contractors (electricians, plumbers, etc.) and vendors of critical office supplies.
7 This article originally appeared in Law Practice Management (Sept. 1997) at p. 38.
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Develop a phone tree for key law firm personnel to call in an emergency including cell phones, pagers, blackberries, etc. and establish a communication backup plan in the event electronic communications are down, including an off-site answering service to receive incoming calls.
Review insurance policies for disaster and business interruption coverage; determine short term office space needs in the event the primary office is destroyed and have a backup plan to occupy such alternative space during repair or reconstruction of the primary office space. Many larger professional firms have coverage for business interruption and business interruption insurance has become a big business. Terms vary, but policies usually cover payroll and down time, expenses for relocation and to get back up and running. Coverage is often limited to a year or two. But an insurance payment made a year after a business has gone under is little consolation, underscoring the need for a viable contingency plan.
Develop, prepare and test all computer system backup plans; consider web-based or off-site storage and backup of all critical firm and client information, files, accounts, etc. Develop a list of user ids and passwords that can be used to access backup software and security programs and maintain and update a list of all key personnel that have such information and access. Train personnel to remove hard drives and other storage media in the event of an emergency so that it can be reloaded on new hardware; and purchase backup hardware and/or software to restore the firm’s computer and information system.
Establish alternative power such as a back-up gas generator.
While such procedures may seem impractical or overcautious, the experience in New Orleans proved to be a lesson in survival for lawyers. Lawyers in a New Orleans law firm walked up and down 26 stories for hours carrying servers that weighed 50 to 60 pounds. The firm now uses an off-site backup with a vendor in another state. Immediately following the storm, another law firm’s e-mail through a third-party vendor kicked in immediately and intrafirm communications remained stable. Toll-free 866 numbers made it possible for members of the firm’s management team to call in and report at designated times daily. In Louisiana and Mississippi, months after the storm, many land lines remained down and cell phone coverage was spotty. Therefore, personal digital assistants (PDAs) and text messaging became increasingly important communication tools.
Backing up the firm’s computers at an off-site location makes a lot of sense, especially since computers are vulnerable to other catastrophes besides natural disasters. Computer viruses and hackers can bring a system down as well as any hurricane or fire. Understandably, lawyers are sensitive to sharing client information with outside third parties and web-based storage or backup opens the possibility of valuable information being intercepted or falling into the hands of a third party that has not right to see it. Nevertheless, over time cloud storage providers have proven more secure from cyberattacks and other disasters than lawyers maintaining their data on-site. See also Alaska Bar Association Ethics Opinion No. 2014-03 (approving use of cloud service providers if selected with reasonable care). See also discussion below in Part B regarding cybersecurity.
A lawyer has an ethical duty to act competently to safeguard information relating to the representation of a client against inadvertent and unauthorized disclosure. AK Rule 1.6 (c). In addition, the obligation to develop contingency planning is part of a lawyer’s duty of diligence under Rule 1.3. In the Comments to Rule 1.3 you will find the following:
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To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.
A logical extension of these ethical duties is to require that lawyers develop contingency plans for disasters or events that may potentially disrupt a law practice or law firm’s operations. The Arizona State Bar has advised that lawyers who store client information on a computer have a duty to take reasonable steps to prevent the loss or destruction of client data. State Bar of Arizona Ethics Op. 05-04 (July 2005). To this end, the attorney must be competent to deploy appropriate hardware and software, for example, to protect against inadvertent disclosure to unauthorized third parties and unlawful interception. If the attorney is not competent to perform these tasks, the attorney has an obligation to employ someone who is capable of doing so. Id.
The New York Office of Sidley, Austin, Brown & Wood, LLP was destroyed during the 9-11 terrorist attack on the World Trade Center. The first documents needed during the recovery effort were contact lists: employees' home and emergency phone numbers, vendor lists, and client lists. Of greatest concern was the safety of the firm's employees. Human resources personnel in the Chicago office began calling all New York employees, and by the next morning, all but a handful were accounted for. By September 13, only one individual had not been located. Backup tapes for the computer and a plan for rerouting telecommunications proved to be important. The firm immediately acquired temporary space in other unleased offices and acquired new computers. The firm had its files and client information backed up and thus they were able to have the data restored within the week. The most important part of the disaster recovery was the capability to establish communication (telephone and e-mail) quickly with employees, clients, vendors, insurance agents, leasing agents and courts. The next priority was assuring the employees and clients of the firm that it was up and running. Use of the firm’s switchboard, web-site and a toll-free number contributed to this effort. Having the back-up tapes for the computer system off-site was a propitious decision. Keeping an updated insurance policy that includes adequate coverage for valuable papers and reconstruction costs is key.
Gary A. Munneke and Anthony E. Davis have written The Essential Formbook: Comprehensive Management Tools for Lawyers, ABA Publishing (August 2004). This book covers disaster planning and recovery, including the nature of disaster, planning for disaster, and the recovery afterward. If disaster strikes, having a disaster plan in place can make or break a law firm as it struggles to survive. To the extent that it is possible, firms need to plan for disaster, protecting themselves and their clients against both natural and manmade disaster. Firms must consider how they will deal with loss of life, property damage, interruptions in communications and other vital services, and lapses in their ability to serve clients during and after a disaster. The disaster plan should anticipate worst-case scenarios that can affect a firm's ability to function, to generate work, and to provide legal support for clients who might also be affected by the disaster. In addition to the text, over 50 valuable checklists, worksheets, lists, and other forms are provided--including a Disaster Recovery Plan outline--ready to implement. Also supplied on the accompanying CD-ROM, the forms are easy to customize to meet the specifications of any firm. For later editions go to https://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214146
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B) Cybersecurity and Protecting Client Information
Ethical Obligations
Beyond the obvious business reasons for becoming cyber secure, understand that as attorneys we also have new ethical duties that do come into play here. Under AK Rule 1.1 Competence, a lawyer’s efforts to provide competent representation now includes an obligation to keep up with changes in relevant technology. (See the Comments to Rule 1.1 which state “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, ....”) We must also preserve and maintain client confidences under AK Rule 1.6 Confidentiality of Information which now states in section (d) that “A lawyer must act competently to safeguard a client’s confidences and secrets against unauthorized access, or against inadvertent or unauthorized disclosure by the lawyer, by other persons who are participating in the representation of the client, by any other persons who are subject to the lawyer’s supervision, or by others involved in transferring or storing client confidences and secrets. This duty includes guarding against unauthorized access to a client’s confidences and secrets.” and the Comments to Rule 1.6 now require “a lawyer to act competently to safeguard client confidences and secrets 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.”
How far must a lawyer go when it comes to complying with these rule changes? Fortunately, the Comments to Rule 1.6 also provide something of a safe harbor:
…. 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.)
Clearly computer security cannot be an afterthought, and compounding the task, is the reality that there is no one-step solution that will adequately address the problem. Maintaining data security is going to be a never-ending effort that will involve everyone in the firm from the part-time receptionist to the most senior partner and that’s just the way it is. As an aside, these rule changes were not adopted with the intent of mandating that every lawyer in a firm be a tech expert. Lawyers can, and in most cases should, hire staff who are experienced in computer security or retain an outside technology professional.
Finally, if despite taking reasonable steps to secure your digital data a breach does happen, your ethical obligation would be to seek forensic assistance in order to identify, if possible, the source and extent of the attack. Whether you have to provide notice under breach notification laws will depend on whether the data was encrypted. Breach notification laws do not apply if the data was encrypted. This speaks volumes in favor of having full disk encryption and password protected files for all electronically stored information maintained, including all backups regardless of their location. Whether there is an ethical duty to notify clients of a breach will depend on whether the lawyer can discover the nature of the attack, determine what data was affected, and whether the affected data was encrypted. If the data
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Prevention
Cybercrime continues to grow and evolve at an alarming rate and it’s all about social engineering. For the uninitiated among us, social engineering has nothing to do with a group of happy outgoing guys that get to put on those great blue and white stripped hats before heading out to drive their trains. Social engineering in the context of cybercrime is really about the use of psychological manipulation to trick a person into doing something that isn’t going to be in their best interests. The goal may be to gain access to confidential information, to steal personal identities or money, to gain access to computer network resources, and the list goes on.
An attacker has any number of methods at his or her disposal. If the goal is to insert some type of rogue software onto a computer network, perhaps they leave a USB flash drive in the parking lot or send a “lucky winner” a free digital music player. Of course, once the device is connected to the network, in order to see what’s on the flash drive or to start enjoying that unexpected prize, the network is now compromised. This type of attack is called baiting, and law firms are not immune. Other attack methods include, but are by no means limited to, fake callbacks from technical support where the attacker randomly calls numbers at a business until someone falls prey; pretexting where the scammer impersonates a bank employee, tax authority, insurance investigator, etc. to try and trick someone into disclosing information; and phishing which is something we all need to know more about due to the sheer number of phishing attacks occurring.
First the basics, phishing is the criminal attempt to trick another into providing personal or sensitive information such as a birth date, their address, a credit card number, or their user name and password to some account typically by requesting a response to an email or text message that the scammer has sent. Many of us have some sense of this general approach and would just delete an email that says our bank account will be closed unless we open the attachment or click on some link in order to verify our logon credentials simply because the email came from the wrong bank. But what if the email does purport to be from the correct bank? What if the email looks exactly like the bank’s website and has all the correct official logos? What if, instead of having you verify login credential online, the email asks you to call a number and the automated system that answers asks for your login credentials?
Phishing attacks have become very sophisticated. Not only are all of the above examples real, there are many other approaches out there. Who hasn’t received one of those important emails informing you of a change in the delivery schedule of your UPS package or letting you know your eBay or email account is about to be closed unless you verify your credentials? I have personally received an email that appeared to be from a close friend stating that he had had his wallet stolen and was stuck in London. He was hoping I would wire some money to help him return to the States and he would pay me back upon his return. Then there was the one claiming to be from Microsoft. They wanted me to know about a serious security problem in their software and suggested I immediately click a link to download the necessary update so that I would remain secure. Honestly, I almost fell for that one. The level of sophistication with the Microsoft email was that good. In truth, the possible variations on phishing attacks seem to only be limited by the imagination and programming skills of the criminals behind them. Unfortunately, we’ll keep seeing these attacks and they’ll continue to evolve because they work.
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There are a number of things you or your IT support can do to prevent these kinds of attacks. Keep your security software, internet browsers, and operating systems updated and make certain that all update settings are set to automatic on all PCs, laptops, tablets, and smartphones. Use reputable antivirus tools as well as spyware identification and removal tools on all computers that are part of the office network and don’t overlook remote and mobile computers such as home computers, personal laptops, and computer tablets. If your browser has anti-phishing capabilities built in make certain that this functionality is enabled on all devices that are on the network or that login to the network remotely. Backup regularly and make sure that a current copy of the backup is not connected to the network because encrypting ransomware will look to encrypt all connected drives. If your backup happens to be an external drive that is always connected, it too will be encrypted. This is one of the reasons why rotating backup drives off site or backing up to the cloud is strongly recommended.
More importantly all network users, to include every attorney and staff member at the office, if they are not already aware, need to be trained on a few security best practices which will help keep your network safe. The following list would be a great place to start and understand that these rules apply not only to PCs, but to laptops, tablets, and smartphones as well.
Don’t click on any links in emails, texts, or sent to you on social media sites. Criminals send links that appear to come from companies or persons you know and trust in order to try and trick you into clicking the link. Doing so can initiate a download of malware like CryptoLocker (a form of ransomware) or take you to a fake website in order to attempt to steal your personal information. If you are uncertain as to the legitimacy of the email, try hovering your mouse over top of the URL in order to view the actual hyperlinked address. If the hyperlinked address is different than the address displayed in the message then the message is probably fraudulent or malicious. So, for example, if an email claims to be from FedEx but when you hover your mouse over the FedEx text the hyperlinked address that is displayed says something other than FedEx.com it isn’t FedEx. Also, be aware that sometimes the domain name is altered. If placing the mouse over the FedEx text displays something like FedEx.com.malicousdomainname.com, this too isn’t FedEx. If you still feel that you absolutely must see whatever the link is supposed to show you go to the site yourself. For example, type www.FedEx.com in your browser yourself or use a search engine to look up the correct URL of FedEx.
In a similar vein, don’t open attachments unless you know and trust the sender and also know what the attachment is. Again, doing so can initiate the installation of rogue software on your system. If you’re not sure about the authenticity of what has been sent to you might try the mouse hover approach detailed above. In the alternative, reach out directly to the sender and ask if they actually did send the email. If you are questioning why a lawyer whose name you recognize sent you some important document but you also don’t have any recollection as to why it was sent, call the lawyer directly to ask about it and always lookup the number yourself. Why take the time to look up the number yourself? Think about it; if the email is a fake, the contact information provided in the email is fake as well. Don’t be fooled! Other clues that a message is likely fraudulent or malicious include poor spelling and grammar, the message asks you to verify personal information, and or the message threatens you if you don’t do something.
Only download and install software or apps from websites that you know and trust. Downloading free games, files off of file sharing sites such as Pirate Bay, customized toolbars, and even things like free flashlight apps (which are often a particularly nasty snooping app that can only be removed by a factory reset of your phone) may seem like a great deal but they can bring real trouble with them.
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Use a pop-up blocker and don’t click on any links within unexpected pop-ups or buy software in response to an unexpected pop-up. Unexpected pop-ups are another way scammers try to trick people into downloading malware. On Windows systems, for example, simply close the pop-up from the task manager or click on the pop-up icon on the task bar and then click on close. As an aside, make certain that every person in the office knows that security programs do not need someone to click on “scan now” in a pop-up that states their system is infected. The security programs do that automatically. Really bad things can happen if they fall prey to this scam.
Have a policy that absolutely prohibits anyone from disabling their firewall or changing their browser security settings in order to allow a webpage to properly load. If a web page is not properly loading there is a valid reason. Disabling firewalls and changing security settings can allow a “drive-by” download, which is an automatic download of a malicious program that initiates as soon as someone visits a compromised Web page, to occur.
Finally, know the warning signs. If anyone’s device slows down, crashes, displays repeated error messages; won’t shut down or restart; will no longer update; starts showing a lot of pop-ups; displays web pages they didn’t intend to visit; displays unexpected toolbars or shortcut icons on their desktop; if they experience a sudden or repeated change in their Internet homepage; or their battery has started draining more quickly than it should, they need to know that they should report the problem to IT support immediately.
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Risk Management Resource: Checklist for Becoming Cyber Secure
This checklist is intended to help those who have a desire to become more cyber secure know where to start. It may also be helpful in identifying areas of concern that can and should be discussed with IT support personnel. Most importantly, be aware that cybercrime attack vectors will continue to change and evolve as will the sophistication of the attacks. Becoming cyber secure is an ongoing process, not a once and done effort. That said, here are the basics; and note that when the word “devices” is used, this word is meant to include all mobile devices and any home computers that are being used for work in addition to all servers, laptops, PCs, etc. that are part of the office network.
____ Keep hardware and software as current as possible. You don’t need to be first in line for the latest and greatest; but don’t be the last in line either. Newer devices and programs typically include improved security features and cyber criminals often target older devices and programs.
____ Keep your server in a locked room because physical security matters!
____ Deploy effective security software suites on all devices.
____ Deploy effective intrusion detection systems.
____ Deploy a spam filter.
____ Keep all software on all devices up-to-date with the latest critical patches.
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____ Determine where all firm data is stored and then create a security policy that responsibly addresses the situation.
____ Password protect all devices.
____ Use two factor authentication whenever available on any device or with any application.
____ Develop a password policy that mandates the use of strong passwords (14 characters or more using upper and lower case, numbers, and special characters) and requires that passwords be changed on a regular basis. Note: Every application and device in use should have its own unique password and no password should ever be reused once changed. The use of a password manager can make this task easier and more secure than, for example, storing passwords in a file labeled “passwords” or writing them down and placing that list in a desk drawer.
____ Prohibit the sharing of user ids and passwords with anyone, to include others within the firm.
____ Have your IT support person change the default values on all wireless routers, server operating systems, etc.
____ Wireless networks should be set up with proper security to include enabling strong encryption. This means you must disable WEP and WPA encryption and require WPA2 encryption. Do not overlook home networks if home computers are being used for work.
____ Backup all data, periodically do a test restore of the backup, and store the backup in accordance with a disaster recovery plan because floods, fires and ransomware attacks happen. Backups should also be encrypted if taken off site or stored in the cloud. If using a cloud vendor, the vendor should not have access to the decryption key.
____ Any device that goes off site and contains any client confidences must be password protected and should be encrypted. This includes jump drives, external hard drives, laptops, smart phones, tablets, and home computers.
____ Limit privileges and access as appropriate. For example, does everyone in the office need access to the firm’s financial or employment records? Can everyone download and install anything they want on any device they have access to? Can everyone make changes to the system configuration? Don’t make it easy. Place limits on what people can do. Such limits can either be set up electronically via file permissions or physically via a locked door or cabinet.
____ Encrypt email and all data you place in the cloud. Some cloud companies advertise that they encrypt your data but only do so while the data is in transit. You must make certain your data is encrypted “at rest” as well. Better yet, don’t rely on the cloud provider for this at all. Encrypt your data before placing it in the cloud to enable you to have control over the encryption key.
____ Mandate that all work related Internet sessions be encrypted and prohibit the use public computers and unsecured open public Wi-Fi networks. This does mean that access to the office network must always occur through the use of a VPN, MiFi, smartphone hotspot or some other type of encrypted connection.
____ Prohibit the use of any public computer for any reason. This would include the use of computer stations made available in the business center of a resort or hotel just as one example.
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____ Have a policy that prohibits the jailbreaking of any mobile device that will be used for work. Jailbreaking is defined as modifying the operating system from its original state.
____ Never allow a non-employee to have access to your network absent appropriate oversight. In a similar vein, immediately upon the termination of anyone cut off all avenues of access to the network. Terminated individuals should never have access to any office computer or network plug, even if it’s to simply download personal files, absent a trusted escort.
____ Provide mandatory social engineering awareness training to everyone at the firm at least every six months.
____ Develop a cyber breach incidence response plan and provide the necessary training. At its most basic, if anyone suspects a device has been breached, teach them how to immediately disconnect from the Internet and/or the office network and instruct them to contact IT support immediately. They should never try to resolve the problem themselves!
____ Purchase a cyber liability insurance policy.
____ Check your internal and Internet-facing network security at least annually to make sure your network is secure. This can be done by having a vulnerability assessment or penetration test done.
____ Properly dispose of any device or digital media that has or had any firm related data on it. Don’t overlook digital copiers, digital cameras, memory cards, CDs, DVDs, jump drives, backup tapes, etc. All devices and media must be digitally wiped clean and/or physically destroyed. This does mean that devices cannot be given away for personal use, donated, recycled, or sold unless the entire drives have been overwritten.
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C) Web Bugs and tracking
Alaska Bar Association Ethics Opinion No. 2016-18 answers the question “Is it ethically permissible for a lawyer to use a ‘web bug’ or other tracking device to track the location and use of emails and documents sent to opposing counsel?” with a resounding NO! The opinion concludes that “[t]he use of a tracking device that provides information about the use of documents – aside from their receipt and having been ’read’ by opposing counsel – is a violation of Rule 8.4 and also potentially impermissibly infringes on the lawyer’s ability to preserve a client’s confidences as required by Rule 1.6.”9
As we have also learned from the vignette, the Alaska opinion identifies what the tracking lawyer can learn from a web bugged email: when the email was opened; how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities); how many times the email was opened; whether the recipient opened attachments to the email; how long the attachment (or a page of the attachment) was reviewed; whether and when the subject email or attachment was forwarded; and the rough geographical location of the recipient.
Bugging, which provides the sender with knowledge of the recipient lawyer’s use of the email, (including the importance the recipient considered certain pages of an attachment to have), to whom the e-mail was forwarded, and the location of the recipient (which may, itself, be a client confidence) is a wholesale invasion of the opposing lawyer’s work product and at the very least an attempt to intrude upon the opposing lawyer’s duty of confidentiality to his client. The Opinion also finds that even were the tracking lawyer to disclose that he is bugging his emails to opposing counsel, the use of such a device would nonetheless be unethical:
While the surreptitious use of tracking devices is especially troubling, even the disclosed use of a tracking device when communicating with opposing counsel is not permissible. Insofar as the tracking device allows the sending lawyer to intrude upon the attorney’s work product by tracking the attorney’s use of that document, it constitutes an unwarranted intrusion into the attorney-client relationship. [Footnote is omitted.]
8 https://www.alaskabar.org/servlet/content/2016_1.html See, also, New York State Bar Association, Committee on Professional Ethics, Opinion #749 (2001) https://www.nysba.org/CustomTemplates/Content.aspx?id=5463
9 The closing paragraph of the Opinion states:
The Committee therefore concludes that tracking electronic communications with opposing counsel through “web bugs” impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets. Doing so reflects, at a minimum, the lack of straightforwardness that is a hallmark of dishonest conduct. Sending “bugged” emails or documents or other communications with embedded tracking devices constitutes an impermissible infringement on the lawyer’s ability to preserve a client’s confidences or secrets as required by Rule 1.6 and violates Rule 8.4(a) and (c). [Footnotes are omitted].
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Seeking to invade that relationship through the use of tracking devices (whether disclosed or not) is dishonest and unethical. And, it is entirely possible that a busy receiving lawyer may not notice the disclosure, may not fully appreciate what it means, or consider whether client consent is necessary before agreeing (expressly or implicitly) to opposing counsel putting an electronic tracking device on documents. [Emphasis is supplied.]
May a lawyer ethically use a web bug to track his own client’s compliance with the lawyer’s instructions regarding the use of email by the client? Again, the answer must be “no” under Alaska Rules 8.4(a) and (c). Without the client’s prior consent, a lawyer who tracks his client’s e-mails via a web bug would be committing a “deliberately wrongful act” and would be acting in a deceitful manner. If surreptitiously tracking opposing counsel’s use of email is deceitful, then no reasonable argument exists that a lawyer’s tracking his own client’s e-mails is any less so.
To provide competent representation under Rule 1.1, a lawyer must of course instruct his client regarding the use of e-mail so that the client does not compromise the attorney-client privilege and other confidences attendant to the client’s legal matter. A client will typically appreciate such instruction and this falls within the lawyer’s duties to guide the client during the course of the representation. The attorney-client relationship would quickly erode were the client to find out that his lawyer had surreptitiously tracked the client’s emails. So substantial an intrusion on the client’s privacy would create senseless adversity between the lawyer and his client, perhaps making further representation of the client untenable.
There are practical considerations, too. Could a lawyer successfully suppress from the client or others the fact that he tracked his client’s e-mails? Information elicited via a web bug would become part of the client’s file that the lawyer would be obligated to turn over upon request at the termination of representation under Rule 1.16(d), in either digital or hard-copy format. In addition, a lawyer’s duty of communication under Rule 1.4 might well require that the lawyer discuss with his client what he learned from the surreptitious tracking of emails sent to his client. Even worse, a lawyer who “knows” via the use of a web bug that a client communicated with third persons regarding the client’s matter might act unethically if he relies solely on the client’s representations and fashions false discovery responses and presents or witnesses the client’s false testimony on the subject of whom the client communicated with. The lawyer would potentially violate Rules 1.2(d), 3.3(a)(3), 4.1(b), and 8.4(c), if he presents false evidence or fails to remediate its presentation.
D) Lawyer’s Responsibility for Client’s Illegal Conduct—tracking adverse parties
Lawyers have obligations to represent their clients competently (Rule 1.1) and diligently (Rule 1.3), and to communicate with their clients to keep the clients informed about what is happening in the clients’ cases and provide information to clients so that clients can make informed decisions (Rule 1.4). Also, Rule 1.2 (d) directs that:
…. [A] lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.
And Rule 1.2(e) states:
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When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.
Also relevant is Rule 4.4(a), which states:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Although the lawyer may not have even suggested to the client the means by which to procure information from an adverse party, the lawyer may not “ratify” the client’s illegal means of acquiring information from or about an adversary by using the information that the client or a third party unlawfully obtained. The circumstances of a particular representation, and the personality and behavior of the client, as well as the client’s relationship with the opposing party, are going to dictate the issues about which a lawyer has to advise and/or “educate” her client. If the representation is such that the client is not doing anything “crazy” such as is described in this vignette, nor is there any likelihood that this will happen, then there really is no reason or necessity for the lawyer to advise the client against doing something the client is not, and very likely will not be, doing. However, if the lawyer observes that the nature of the representation and the actions/behavior of the client indicate that the client is, or may be considering, engaging in any kind of potentially improper behavior (such as “tracking” the opposing party, or anyone else involved in the case/representation, in a manner like that described in this vignette: imbedding web bugs, attaching a tracking device on a car, using a tracking app on a cell phone or other surreptitious recording, etc.), then the lawyer must counsel the client as to the possible adverse consequences of such behavior and any legal implications. If what the client may be doing could be illegal, the lawyer must advise and counsel the client to not initiate such activity or, if begun, to cease. The lawyer also must make clear that the lawyer will not and cannot condone or participate in any improper activity. The lawyer may also (and should) withdraw if the client ignores the lawyer’s advice and insists on a course of action that is illegal, fraudulent or violates the legal rights of another. See Rule 1.16(b)(1)-(3).
D) Part 2 -Do lawyers have an ethical obligation to inquire as to how any information/evidence that a client brings to an attorney was obtained in order to identify and discuss any potential legal ramifications? Taking this concern to its logical end point, does a lawyer have an ethical obligation to question the veracity of any digital evidence a client provides?
Yes/Maybe and Not Necessarily.
The circumstances surrounding the client bringing information/evidence to the lawyer and the nature of the information/ evidence the client brings will dictate the level of inquiry the lawyer must engage in with the client. If the client brings evidence to the lawyer, for example, that is a recording of some sort between the opposing party and a third person, or persons, and not including the client, and it was obtained in a surreptitious manner, this could raise legal issues as to whether the recording was legally obtained. If a client brings a lawyer evidence the client obtained from a tracking device that the client attached to an opposing party’s, or other person’s, vehicle, that could raise legal issues as to whether the client could legally install such a device on the person’s vehicle. If a client brings a lawyer information that the client obtained about an opposing party that the client accessed through some computer source, depending upon what that source was and how the client accessed it, there could be
49 | Page legal issues as to the client’s legal authority to have accessed that information and/or the other party’s legal expectations of privacy. In all of these examples, the lawyer would need to make further inquiry with the client as to how the client obtained the information/evidence and evaluate the client’s actions against statutory or other legal authority regulating such actions.
If the lawyer determines that the information/evidence that the client is presenting to the lawyer was obtained improperly by the client (or someone acting for the client), the lawyer cannot reveal the client’s wrongdoing (except as may be required by Rule 1.6 or Rule 3.3) and will not be able to use the information/evidence. Depending on how damaging this is to the attorney-client relationship, this could lead to the lawyer having to withdraw from the representation. At the very least, the lawyer must counsel the client to cease the activity, advise as to the consequences if the client does not cease as well as to any consequences for what the client has already done.
While the lawyer must be diligent in determining the veracity of any evidence she intends to put forth in support of a client’s case, this does not necessarily mean that the lawyer must question every and any bit of “digital evidence” that a client provides. At the same time, the lawyer may not engage in “willful blindness” and consciously refuse further inquiry when it appears that evidence was obtained under questionable provenance. Again, the client, the case, the circumstances involved, will dictate how far the lawyer must go in questioning and confirming the veracity of information that the client provides.
E) Using and Advising Clients About Social Media
Lawyers may advise clients to change the privacy settings of their social media pages to restrict viewing of detrimental information, to take down posts or photos, but may not instruct them to destroy any relevant content. Lawyers may instruct their clients to delete potentially damaging information if that advice will not lead to violation of the law or spoliation of evidence. But the deleted information must be preserved, in case it becomes relevant to the client's case or is deemed discoverable. W. Va. State Bar Lawyer Disciplinary Bd., Op. 2015-02, 9/22/15.
Trial lawyers should be well aware that their clients’ Facebook pages and other social media accounts contain relevant and discoverable evidence that must be preserved and produced pursuant to a lawful discovery request. Lawyers must anticipate subpoenas to non-party social media providers, document requests for social media content and interrogatories concerning social media. Lawyers must advise clients to refrain from destroying any social media information that may reasonably fall within the scope of discovery. This duty to advise is similar to a “litigation hold” and the duty is triggered once the lawyer and client are made aware that a claim or litigation is threatened, even if not filed.
In Allied Concrete Co. v. Lester, 285 Va. 295, 302, 736 S.E.2d 699 (2013) (spoliation of evidence charge against plaintiff and plaintiff’s counsel) the trial court sanctioned Matthew B. Murray in the amount of $542,000 and Lester in the amount of $180,000 to cover Allied Concrete's attorney's fees and costs in addressing and defending against the misconduct. In 2013, Murray, a former VTLA President, entered into an agreed disposition of a five-year suspension of his license for his misconduct. http://www.vsb.org/docs/Murray-092513.pdf
A lawyer may not obstruct or assist a client in obstructing another party’s access to relevant evidence in a civil or criminal proceeding. Rule 3.4(a). Further, a lawyer must respond appropriately to lawful discovery requests, and without frivolous objection. Rule 3.4(d). Once a court has entered an
50 | Page order requiring discovery a lawyer may not disregard or advise a client to disregard that order. Rule 3.4(c). When it comes to a point that a trial court has to sanction a lawyer for failing to comply with an order requiring production of discovery, the lawyer will likely have violated these rules. In short, willful non-compliance with discovery at that point triggers a duty under Rule 8.3(a) to report the misconduct to the bar.
The New York State Bar Association's litigation section on March 18, 2014 issued a detailed set of Social Media Ethics Guidelines explaining what is ethically permitted and forbidden for lawyers using social media networks in their practice:
Guideline No. 4.A: Removing Existing Social Media Information
A lawyer may advise a client as to what content may be maintained or made private on her social media account, as well as to what content may be “taken down” or removed, whether posted by the client or someone else, as long as there is no violation of common law or any statute, rule, or regulation relating to the preservation of information. Unless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve.
A lawyer needs to be aware that the act of deleting electronically stored information does not mean that such information cannot be recovered through the use of forensic technology. This similarly is the case if a “live” posting is simply made “unlive.”
New York County Lawyers’ Ass’n Opinion 745 (2013) opines that lawyers may (subject to any contrary law specific to the content at issue), advise clients on social media deletions; and, notwithstanding deletion from public view, when copies may need to be preserved for evidentiary purposes.
For additional information see: http://www.jdsupra.com/legalnews/nycla-ethics-opinion-745-2013-advisi-92713/
Florida Bar, Professional Ethics Committee, Proposed Advisory Opinion 14-1 (2014), offers guidance on ethical obligations regarding advising clients to “clean up” social media: https://www.floridabar.org/ethics/etopinions/etopinion/?num=14-1
Pennsylvania Bar Association, Formal Opinion 14-300, Ethical Obligations for Attorneys Using Social Media (2014) http://www.pabar.org/members/catalogs/Ethics%20Opinions/formal/f2014-300.pdf
Philadelphia Bar Association, Professional Guidance Committee, Opinion 2014-5 (2014): http://philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResour ces/Opinion2014-5Final.pdf
North Carolina Bar Association 2014 Formal Ethics Opinion 5 (2014): https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2014-formal-ethics-opinion-5/
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Vignette Three – It’s Just One Thing After Another Questions to Consider
A) Lawyer mobility seems to more prevalent than ever. Couple that with the seemingly unending growth of digital data within law firms and you begin to see the problem. It’s all about conflicts. Is there a conflict here that would prohibit John from refiling the claim? Could the problem be avoided perhaps through the use of an ethics screen? In terms of data management day-to- day, is there anything a firm should be doing to avoid potential problems like the one here? Given that in the real world the complete file never really goes away, where’s the line in terms of what amount or what type of data being stored on any given client becomes problematic?
B) Let’s start with a review of what Rule 1.16 has to say. What are a lawyer’s obligations upon termination of representation, primarily as they relate to the surrendering papers to which the client is entitled? The problem here is the client seems to be believe its entitled to exclusive possession. Is the client correct or is Doug entitled to retain a copy of his file over the objection of the client? Of course, the client won’t be happy about that if he does; but is Andy on to something? In light of the client’s demands, would it be ethically permissible to ask for a release of liability before turning the file over? If that doesn’t work, what are Doug’s options?
C) Joanna wants to get paid but the client doesn’t seem to have the wherewithal to do so, at least in cash. To solve the problem, she is considering having the client sign a promissory note secured by a mortgage. Is this ethically permissible? If so, how is a lawyer to navigate these waters in an ethically permissible way?
Let’s take this discussion to the next level and talk about alternative ways of getting paid generally. Could Joanna simply take and hold a deed, take possession of title to a nice car, or hold other property of a client as collateral? In the alternative, could she take any of this property as a flat fee? Since lawyers routinely accept credit card payments, could she use PayPal to make it easier for clients to pay? Could she accept Bitcoin or perhaps agree to take foreign currency? What are the boundaries here?
D) Let’s cut to the chase, can a law firm buy the names of their competitors in order to gain a marketing advantage at least in terms of search engine results?
Rules to Consider
Rule 1.5 Fees Rule 1.6 Confidentiality of Information Rule 1.8 Conflict of Interest: Current Specific Rules Rule 1.9 Conflict of Interest: Duties to Former Clients Rule 1.10 Imputation of Conflicts of Interest: General Rule Rule 1.15 Safekeeping Property Rule 1.16 Declining or Terminating Representation Rule 7.1 Communications Concerning a Lawyer’s Services Rule 8.4 Misconduct
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Answers
A) Conflicts—Lawyers Changing Firms
John has joined Andy’s firm. A former member of Andy’s firm, Kelly, defended a client whom John had sued before joining Andy’s firm. Kelly departed Andy’s firm before John arrived, and continued representation of the client at her new firm. Andy’s firm withdrew from representation and John dismissed the suit against Kelly’s client. Kelly took her client’s “paper file” with her, but Andy’s firm has discovered that “certain” digital files pertaining to Kelly’s representation remain. The question now is: May John refile the suit as a member of Andy’s firm, which had previously represented the client John had sued while Kelly was a member? The following discussion presupposes that the digital files remaining at Andy’s firm contain protected confidential information of the former client, material to the present matter.
Rule of Professional Conduct 1.10(b)10 governs the answer to this question.
RULE 1.10 Imputation of Conflicts of Interest: General Rule
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter, or the firm retains records containing such information. [All forms of emphasis are supplied.]
In a published article11, Virginia State Bar Assistant Ethics Counsel Emily F. Hedrick, stated
10 See, also, the Comments to Rule 1.10:
Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c).
11 Hedrick, Emily F., “Is There a Conflict? Not Always,” Virginia Lawyer (June 2016 | Vol. 65) http://www.vsb.org/docs/valawyermagazine/vl0616-ethics.pdf
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Lawyers changing firms can lead to confusion. The conflicts analysis shifts from imputation to actual knowledge of confidential information when a lawyer leaves a firm or joins a new one. Consider a situation where a lawyer in a firm has a longtime client whom she represents on divorce and custody matters. While the lawyer is part of the firm, her conflict is imputed to everyone else in the firm, regardless of whether other lawyers in the firm have any information about the client’s matters – the conflict is imputed even to other offices of the firm and to lawyers who have never met the lawyer or the client. However, once that lawyer leaves the firm, taking the client with her, the conflict is no longer imputed under Rule 1.10(b), and there is no conflict since no one remaining in the firm has any confidential information about the departed lawyer’s client.
In C & J Invs., LLC v. Nat’l Ctr. for Constitutional Studies, No. 2:09CV349DAK, 2009 WL 2579040 (D. Utah Aug. 20, 2009), a federal district court judge in 2009 applied Utah Rule of Professional Conduct 1.10(b) in denying the defendant’s motion to disqualify plaintiff’s counsel. The defendant contended that a former member of plaintiff’s firm, who left the firm in 1998, had given the plaintiff tax advice in 1987. Fourteen lawyers remained at plaintiff’s firm as of the time of the motion to disqualify. The parties disputed whether the representation in 1987 was substantially related to the matter in litigation, but the court considered it unnecessary to decide that question because no present member of the plaintiff’s firm had any information material to the litigation which was protected by Rules 1.6 and 1.9(c). The attorney who departed the plaintiff’s firm, a Mr. Lunt, did not recall having given advice to the defendant respecting a certain copyright/license agreement, and the defendant averred that in such case other members remaining at the firm must have done so. However, the court observed:
Because Lunt does not recall providing advice on the copyright/license agreement, NCCS questions who may have given NCCS advice with respect to the agreement. Such speculation, however, does not impute knowledge of NCCS matters to the fourteen attorneys at Kirton who have disavowed any knowledge of NCCS matters. [Emphasis is supplied.]
An important “take-away” from the Utah case is that if, due to the passage of time, a former member of a firm credibly states that he does not recall having worked on a client’s matter, there should not be an automatic assumption that another, remaining member of the firm must have done so. In ruling on a motion to disqualify, and applying the provisions of Rule 1.10(b), the court can take into consideration the firm’s remaining members’ disavowals of possession of any material confidential information.
But other courts are less forgiving than the Utah court. See Rogers v. Pittston Co., 800 F. Supp. 350 (W.D. Va. 1992), aff’d 996. F.2d 1212 (1993)(decided under former DR 5-105)(Where the matters are determined to be substantially related, and there was a reasonable chance that the attorney received confidences in the first matter, an irrebuttable presumption arises that confidences were exchanged)(emphasis added). Accord, Stokes v. Firestone, 156 Bankr. 181 (Bankr. E. D. Va. 1993). And the party moving for disqualification need not show what confidences are at issue or prove that they were shared. Rogers v. Pittston Co., supra.
Returning to our vignette, Andy must probe more deeply than relying on the fact that the client in question was Kelly’s alone and that she left with the paper file. Among the questions which must be
54 | Page asked in order to determine whether John, now at Andy’s firm, can refile the suit against Kelly’s client, are these:
While Kelly represented the client in the prior case while at Andy’s firm, did any present members of the firm participate in the representation?
What was the extent and nature of such participation?
Did the members presently at the firm obtain confidential information from any source that could be deemed material to the matter related to the suit to be re-filed?
If no lawyers at Andy’s firm other than Kelly worked on the client’s case, or otherwise accessed confidential information while Kelly was at the firm, has any lawyer presently at the firm reviewed digital files remaining at Andy’s firm subsequent to Kelly’s departure from the firm with the client’s paper file?
Courts entertaining disqualification motions rely on the Rules of Professional Conduct in assessing conflicts, but also take into account other factors, such as the effect of disqualification upon a disqualified lawyer’s client. A Connecticut trial court12 identified the considerations in play thusly:
The Connecticut Supreme Court has succinctly stated the rationale for requiring disqualification in certain cases involving a lawyer's former clients and established a balancing test for the court to apply in considering such a motion: “Disqualification of counsel is a remedy that serves to enforce the lawyer's duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information․ In disqualification matters, however, we must be solicitous of a client's right freely to choose his counsel[,] mindful of the fact that a client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and may lose the benefit of its longtime counsel's specialized knowledge of its operations․ The competing interests at stake in the motion to disqualify, therefore, are: (1) the defendant's interest in protecting confidential information; (2) the plaintiffs' interest in freely selecting counsel of their choice; and (3) the public's interest in the scrupulous administration of justice.” (Citations omitted; internal quotation marks omitted.) Bergeron v. Mackler, 225 Conn. 391, 397-98, 623 A.2d 489 (1993).
In so doing the court has allied itself with the majority view of the core interest at stake in rules 1.9 and 1.10, the protection of confidential information gained from a former client by the attorney and at risk of disclosure in his subsequent adverse representation. See 1 G. Hazard & W. Hodes, The Law of Lawyering (3d Ed.2001 & 2005-1 Sup.) § 13.5, p. 13-13. [Emphasis is supplied.]
Assuming that Andy was satisfied that no remaining lawyer in his firm has any confidential information, he still has the issue of the former client’s accessible digital files to contend with. If Kelly or another member of her new firm were to file a motion to disqualify John and his firm from representing the plaintiff in the refiled suit, Andy’s firm would need to establish if, how, and when the former client’s digital files were quarantined or destroyed, rendering them inaccessible to John and every other lawyer in Andy’s firm.
12 Citimortgage, Inc. v. Antonia Helena, et al., CV096004970, Superior Court of Connecticut ( 2010)
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The judge in the Connecticut case cited above was dissatisfied with the conflicted attorney’s affidavit in many regards, but especially because there was no identification that the firm he joined took steps prior to his arrival to prevent access to digital files:
There is nothing in the Affidavit about any investigation done by Attorney Sastre and/or Attorney Rivera to determine and identify files in which a conflict may exist. Attorney Rivera's Affidavit is silent as to any system for maintaining, updating and monitoring the screening process in the future. It also makes no reference as to how Attorney Rivera's firm handles electronic data, including word processing, computer systems and emails and does not mention any protections installed to protect electronic, digital and telephonic information to and from Attorney Sastre concerning the files in which he has a conflict of interest. [Emphasis is supplied.]
The Alaska Rules of Professional Conduct do not have provisions for “Chinese walls,” except in limited circumstances not pertinent to this vignette.13 Thus, any and every attorney must be precluded from accessing Kelly’s client’s digital files, lest the confidential information to which any attorney might be exposed be imputed to John. It is perhaps the case that Andy’s firm might not have known at the time John joined it that John would be representing his same client in the same matter because the suit had been dismissed. Perhaps John believed that the client would have no interest in refiling the same suit. The vignette does not illuminate us regarding these considerations. A court hearing a disqualification motion would likely give significant weight to whether Andy’s firm had in place a policy and procedure for quarantining or deleting any confidential digital files of a former client in cases where a conflict would likely exist based on another lawyer’s joining the firm. A court might be sympathetic to the argument that John’s client’s matter was not active upon John’s arrival at Andy’s firm, and that the conflict arose only when the client returned to John for further representation. If the court were persuaded that no remaining member of Andy’s firm had accessed the digital files, or otherwise possessed confidential information of Kelly’s client, and that nonlawyer staff or assistants accessed the files for purposes of carrying out the quarantining or deletion, then Andy’s firm might survive a motion to disqualify. Andy’s firm’s argument would be that his firm’s prompt action was the equivalent of finding a duplicate of Kelly’s client’s paper file at the firm and sequestering it, delivering it to Kelly, or destroying it via shredding or incineration.
We must conclude from the vignette that every firm which stores its closed files electronically would do well to have an information technology professional guide the firm on how particular digital files can be rendered inaccessible to firm attorneys so as to avoid disqualification based on a conflict of interest.
13 A common misconception regarding conflicts of interest is that a law firm can "cure" a conflict of interest stemming from one lawyer’s work by screening that attorney from the rest of the firm with regard to that matter. Actually, the ethics rules do not allow for a screen, or Chinese wall, to cure conflicts of interest in most contexts. Specifically, most conflicts involve an attorney’s work for a current or former client. Rule 1.7 addresses conflicts regarding current clients and Rule 1.9 addresses conflicts triggered by work done for former clients. Both of those types of conflicts are imputed to all members of the lawyer’s firm under Rule 1.10. Thus, if an attorney must decline or withdraw from a case because of work he’s done for a current or former client, all members of his firm face the same conflict. The "cure" for such conflicts, for the lawyer or any member of his firm, is not a screen, but rather consent from the former and/or the current client. Note that for conflicts under Rule 1.7, consent is not sufficient in certain instances.
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B) Delivery of the File to Former Client
While rule 1.16(d) requires delivery of the client’s papers and property upon termination of the representation, it also allows an attorney to retain “papers relating to the client to the extent permitted by other law." Alaska Bar Association Ethics Opinion 2003-03 provides a little guidance as to what must be surrendered and what can be kept.
The Committee concludes that the attorney must presumptively accord the client access to the entire file unless substantial grounds exist to refuse. Thus, addressing the items referenced in the question presented, in most instances the lawyer is required to accord access to original documents from the client, copies of pleadings and correspondence, investigator's reports, and notes of conversations with opposing counsel, witnesses and experts.
There are instances, however, where the physical file maintained by the lawyer will include documents which the lawyer need not disclose. For instance, a lawyer should not be required to disclose documents violating a duty of nondisclosure owed to a third party, or otherwise imposed by law. If the lawyer wrote a memorandum in Case A that dealt with a particular issue of law that was also germane to Case B, it would not be uncommon for the lawyer to place a copy of that memorandum in the Case B file. Since the memorandum was not prepared in whole or in part for the client in Case B, that client has no right to receive that document. Indeed, the lawyer might well be violating a duty of confidentiality or secrecy owed to the client in Case A if the memorandum were surrendered to the client in Case B.
Additionally, access may be denied to documents intended for internal law office review and use. This might include, for example, preliminary impressions of the legal or factual issues presented in the representation, that are recorded primarily for the purpose of giving internal direction to staff. Access might also be denied to notes relating to the lawyer's impression of the client. These documents may be withheld unless to do so would significantly prejudice the client.
A lawyer must produce the entire file, as described in Rule 1.16(d) only “upon termination”, not “during” the representation. Production of the file under Rule 1.16(d) is only required once given that the client is receiving the original file. Now to the questions raised in the question set which were: Is the client correct, or is Doug entitled to retain a copy of his file over the objection of the client? In light of the client’s demands, would it be ethically permissible to ask for a release of liability before turning the file over? If that doesn’t work, what are Doug’s options?
Rule 1.16(d) provides that a “lawyer may retain papers relating to the client to the extent permitted by other law.” This supports the position that a lawyer has an interest in and a right to retain a copy of the client’s file. Nothing in the Rules of Professional Conduct elsewhere prohibits or limits such retention. Rule 1.6(b)(5) allows that a lawyer may disclose, as necessary, confidential information of a client in order “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, …or to respond to allegations …concerning the lawyer’s representation of the client.” Implicit in this rule is the lawyer’s right to retain copies of a client’s file in order to support such actions. And to do so over a client’s objection.
If, however, a lawyer determines to accede to a request/demand by a client, like that in this vignette, that the lawyer not retain any file documents, the lawyer may condition doing so upon the client giving the lawyer a general release from liability. Rule 1.8(h) does not apply to such a release from
57 | Page liability because the rule only prohibits an agreement prospectively limiting the lawyer’s liability to a client for malpractice, not a release after the work has been completed. See also NYSBA Opinion 780 (2004).
If the client will not consider a release and is still insisting the lawyer not keep a copy of the file the options for the lawyer can include: 1. Hand over the file as requested by the client and don’t keep a copy. This is not encouraged or recommended, but there is no absolute requirement under the Rules of Professional Conduct that a lawyer MUST keep a copy of a client’s file, just that the lawyer may do so; 2. Make a copy of the file as provided under Rule 1.16(d), tell the client the lawyer is doing this and move on. If the client wants to try to take some action against the lawyer for doing so, the client may do so, but whether the client will be successful, either in a bar complaint or legal action, based only on the lawyer keeping a copy of the file over the client’s objection, is questionable, at best; 3. The lawyer can contact her malpractice carrier and seek advice from the carrier/its risk management department.
C) Accepting Security from Clients to Secure Payment of Fees and Other Forms of Payment
Under certain conditions, Joanna may accept security for her fees via a promissory note secured by a deed of trust on the client’s property. The Comments to Rule 1.5 (“Fees”) expressly validate an attorney’s acceptance of property in payment of fees:
Terms of Payment
A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with a client.
It is clear from the vignette that Joanna is at the inception of representing a potential client for estate planning purposes, and wishes to have security for the fees which are yet to be earned. The representation does not involve Joanna’s handling of a “cause of action” or “litigation” on behalf of the client at all. It would be ethically impermissible for Joanna to secure her fees with real property were she handling a claim related to that same property. Rule 1.8(i) would prohibit it:
RULE 1.8 Conflict of Interest: Current Specific Rules
*** (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case. [Emphasis is supplied.]
Having cleared the ethical hurdle of Joanna’s proposed proprietary interest in the client’s property being related to any cause of action or litigation, what other Rules of Professional Conduct
58 | Page might come into play? Would Joanna be entering into a “business transaction” with her client if she presents a promissory note and deed of trust? One commentator14 on this subject states:
Few lawyers in private practice can practice very long without encountering the unenviable task of dealing with a client who is unable to pay his or her legal fees. For those clients who are cash poor, but balance sheet solvent, the prospect of taking a mortgage, an assignment or some other security interest in the client's property may be considered as security for unpaid fees and/or those to be incurred in the ongoing legal matter. Most lawyers would presumably view such a mortgage or security interest transaction as an extension of, or corollary to, the fee agreement with the client. Fewer lawyers would recognize that a mortgage transaction securing their fees constitutes a "business transaction with a client" triggering additional unique professional obligations to clients.
*** However, the transaction giving rise to the contractual security interest (e.g., mortgage) is subject to the same scrutiny as a business transaction with a client because the lawyer is acquiring a "security or other pecuniary interest adverse to [the] client." [under Rule 1.8(a)]. [Emphasis is supplied.]
Given Joanna’s intention to present her client with a promissory note and deed of trust, she must comply with Rule of Professional Conduct 1.8(a):
RULE 1.8 Conflict of Interest: Current Specific Rules
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the lawyer advises the client in writing to seek independent legal advice on the transaction and gives the client a reasonable opportunity to do so; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
Joanna’s fees would of course need to be reasonable and adequately explained under Rule 1.5(a) and (b), but care must be taken such that any payments under the promissory note which exceed fees already earned be placed in trust as required by Rule 1.15. Due consideration, as well, would have to be given to whether and how interest would be charged under the promissory note. For example, if the promissory note called for monthly or other periodic payments for fees yet to be earned, it might be unfair to the client to charge interest under the note for payments which are advanced fees, versus
14 “Mortgages to Secure Fees” by Kenneth L. Jorgensen, First Assistant Director Minnesota Office of Lawyers Professional Responsibility, Minnesota Lawyer (December 27, 1999)
59 | Page deferred payment of earned fees. There are a host of considerations which implicate Rules 1.8(a), 1.5, and 1.15.
If Joanna were to accept other forms of property as security for payment, she would have to safeguard such property so that the client was protected against its loss in accordance with rule 1.15. Also, Joanna would be ill advised to accept intangible property having fluctuating value as security for payment of future fees. Foreign currency and Bitcoin15 fluctuate in value. One could construct a scenario wherein a lawyer holding such intangible property as security for fees deprived the client of an opportunity to cash out his property at a time when so doing would have yielded him a profit, or prevented him from suffering a loss. What is more, a client who is current in his account may fairly question the lawyer’s need for security. Beyond even this, property with the potential for significant value fluctuations can lead to questions regarding the speed with which the lawyer handled the client’s matter, in the first instance, and, secondly, the lawyer’s promptness in returning the security to the client. In the event of default, wherein the lawyer withdraws from the client’s case and resorts to a liquidation of the client’s property, the lawyer might be open to allegations that the timing of his actions was unreasonable and exposed the client to losses, or diminished gains, respecting the disposition of the property in question. It would seem difficult to construct an agreement with the client under Rule 1.8(a) which could take into account all such variables.
However, accepting any such intangible property as a “flat fee” might solve the problem under discussion. We learn from Alaska Bar Association Ethics Opinion 2012-2 that a flat fee should be treated as an advanced fee and placed into a client trust account until earned “unless after consultation, the lawyer and client agree in writing: (1) that the funds will become the property of the lawyer when paid, (2) that they will not be held in a client trust account; (3) that the lawyer and client acknowledge the special purpose of the retainer arrangement; (4) that the client has been advised of the potential consequences of the retainer agreement; and (5) that the fees become earned for purposes of a potential refund on a specified and reasonable basis that will not result in an unreasonably high fee for legal services actually rendered.”
The ethical requirements, of course, differ when the client offers property in payment of earned fees. As we know from the Comments to Rule 1.5, set forth above, “a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with a client.” If the lawyer and the client are in agreement as to the lawyer’s earned fee, and if the fair market value of the tangible or intangible property can be reasonably determined as of the date of its tender to the lawyer, then the agreement is fair to the client and there should be no cause for ethical concern.
Alaska Bar Association Ethics Opinions 85-5 and 2014-1 comprehensively address a lawyer’s entitlement to accept credit card payments of legal fees and when and how the lawyer can pass on card issuers’ transaction fees to the client. Using the same guidance contained in these opinions, it would seem that Joanna may accept payments made via PayPal.16
15 https://www.washingtonpost.com/news/the-switch/wp/2013/11/19/12-questions-you-were-too-embarrassed- to-ask-about-bitcoin/?utm_term=.83dbd3bdf9f3
16 See, generally, the guidance regarding use of PayPal by Oregon lawyers at: https://oregonlawpracticemanagement.com/2013/09/30/paypal-lawyers-friend-or-foe/
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D) Use of Competitor’s Key Words for Lawyer Searches
Can a law firm buy the names of their competitors in order to gain a marketing advantage at least in terms of search engine results? Likely, yes. There is a growing consensus in the case law that purchasing a competitor’s keyword for advertising does not constitute federal trademark infringement, so long as nothing in the text of the ad is infringing. See, e.g., Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011); CollegeSource, Inc. v. AcademyOne, Inc., 2012 WL 5269213 (E.D. Pa. October 25, 2012); 1-800 Contacts, Inc. v. Lens.com, Inc., 2010 U.S. Dist. LEXIS 132389 (D. Utah Dec. 14, 2010). Assuming that the use is not infringing, there is no ethical prohibition against this advertising strategy. Just the fact that the firm uses a competitor’s name as a keyword for advertising is not misleading, as long as the text of the ad, and the website the ad is associated with, correctly identify the advertiser and don’t imply any association with the competitor. The Professional Ethics Committee for the State Bar of Texas explained that, “it appears highly unlikely that a reasonable person using an internet search engine would be misled into thinking that every search result indicates that a lawyer shown in the list of search results has some type of relationship with the lawyer whose name was used in the search.” Ethics Opinion 661 (2016). A Florida ethics opinion that would have banned the use of competitors’ keywords in advertising failed to pass in 2013, leaving the practice permitted, if not encouraged, in Florida. The only state ethics opinion to forbid the practice is North Carolina’s 2010 Formal Ethics Opinion 14 (2012), which concludes that this practice is “neither fair nor straightforward,” and therefore violates Rule 8.4(c).
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This certifies that has attended the Alaska Bar Association’s Continuing Legal Education (CLE) presentation, Reaching Out
CLE # 2018-311 on Friday, March 23, 2018 at the Dena’ina Convention Center, Anchorage, Alaska.
Under the guidelines established by the Alaska Bar Association, this program has been approved for 3.0 Ethics CLE credits** Mary I. DeSpain
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** All Alaska Bar CLE Credits are determined by a 60-minute hour.
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