Recent Developments in Legal Ethics

Dane S. Ciolino

Loyola University New Orleans College of Law

7214 St Charles Ave Campus Box 901 New Orleans, LA 70118 (504) 861-5652 [email protected] Dane S. Ciolino serves as the Alvin R. Christovich Distinguished Professor of Law at Loyola University New Orleans School of Law. His principal scholarly and teach- ing interests include Legal Ethics,Trial Advocacy, and Evidence. Professor Ciolino graduated cum laude from Rhodes College in 1985, and magna cum laude from Tulane Law School in 1988, where he was inducted into Order of the Coif and served as Editor in Chief of the Tulane Law Review. After graduating from law school, Prof. Ciolino worked as a law clerk for the United States District Court, Eastern District of Louisiana, and as an associate with Cravath, Swaine & Moore in New York City, and Stone, Pigman, Walther & Wittmann in New Orleans. Professor Ciolino has served as reporter to the Louisiana State Bar Association Ethics 2000 Committee, as a chair- person of a Louisiana Attorney Disciplinary Board Hearing Committee, as a mem- ber of the Louisiana State Bar Association ("LSBA") Professionalism Committee, as a member of the LSBA Lawyer & Judicial Codes of Conduct Committee, as chairper- son of the United States District Court for the Eastern District of Louisiana Lawyer Disciplinary Committee and as a member of the LSBA Ethics Advisory Service. In addition to teaching at Loyola, Professor Ciolino represents lawyers and judges in disciplinary proceedings, and provides consultations on legal-ethics issues. His blog, Louisiana Legal Ethics, is at lalegalethics.org. Recent Developments in Legal Ethics

Table of Contents I. Introduction...... 5 II. Recent Developments in Legal Ethics...... 6

Recent Developments in Legal Ethics ■ Ciolino ■ 3

Recent Developments in Legal Ethics

I. Introduction Professor Ciolino will provide an update on current issues in legal ethics, including conflicts of inter- est that can arise in the representation of government entities and employees. We all know what a sticky wicket conflicts of interest can be in representation of governmental entities, and Professor Ciolino will lead a lively discussion that will assist those in attendance in resolving those issues in our everyday practice, as well as other ethical issues that arise in representation of governmental entities.

Recent Developments in Legal Ethics ■ Ciolino ■ 5 II. Recent Developments in Legal Ethics

Recent Developments in Legal Ethics

Dane S. Ciolino ALVIN R. CHRISTOVICH DISTINGUISHED PROFESSOR OF LAW LOYOLA UNIVERSITY NEW ORLEANS COLLEGE OF LAW

6 ■ Civil Rights and Governmental Tort Liability ■ January 2017 Dane S. Ciolino

Dane S. Ciolino serves as the Alvin R. Christovich Distinguished Professor of Law at Loyola University New Orleans College of Law. His current scholarly and teaching interests at Loyola include Professional Responsibility, Evidence, Advocacy, and Criminal Law. Professor Ciolino graduated cum laude from Rhodes College in 1985, and magna cum laude from Tulane Law School in 1988, where he was inducted into Order of the Coif and selected as Editor in Chief of the Tulane Law Review. After graduation, he clerked for the United States District Court, Eastern District of Louisiana, and practiced law at Cravath, Swaine & Moore LLP in New York City, and Stone Pigman Walther Wittmann LLC, in New Orleans. He has served as reporter to the Louisiana State Bar Association Ethics 2000 Committee, as chairperson of a Louisiana Attorney Disciplinary Board Hearing Committee, as Chair of the Lawyer Disciplinary Committee of the United States District Court for the Eastern District of Louisiana and as a member of various Louisiana State Bar Association committees including the Professionalism Committee, the Lawyer & Judicial Codes of Conduct Committee, and the Ethics Advisory Service Committee. His weblog, Louisiana Legal Ethics, is located at www.lalegalethics.org. Professor Ciolino engages in a limited law practice and in law-related consulting, principally in the areas of legal ethics, lawyer discipline, judicial discipline and federal criminal law. He represents clients in disciplinary matters before the Louisiana Supreme Court, the Louisiana Attorney Disciplinary Board, and the Louisiana Judiciary Commission. He also handles legal malpractice cases, lawyer disqualification motions and lawyer fee disputes. Finally, he consults and serves as an expert witness in the fields of legal ethics, legal fees and the standards of care and conduct governing lawyers. Professor Ciolino can be reached by telephone at (504) 975-3263, and by email at [email protected]. For additional biographical information, visit www.daneciolino.com. Prof. Ciolino’s legal ethics book, Louisiana Legal Ethics: Standards and Commentary (2016), is available for purchase at www.lalegalethics.org and at Amazon.com.

Recent Developments in Legal Ethics ■ Ciolino ■ 7 ABA Adopts Broad Anti-Harassment Rule.

lalegalethics.org/aba-adopts-anti-harassment-rule/

Dane S. Ciolino

On August 8, 2016, the ABA House of Delegates amended Model Rule 8.4 to include a broad anti-discrimination and anti- harassment provision, and three revised comments. The amendment, which was sponsored by several ABA groups,1 added this new paragraph (g) to the black-letter of Rule 8.4:

It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.

See ABA Revised Resolution 109 (adopted Aug. 8, 2016). The three revised comments to Rule 8.4 provide as follows:

[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

1/3 [5] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

It is often difficult to have a rational discussion about anti-discrimination and anti-harassment rule making. Some fervently believe that such provisions are yet another example of political correctness run a muck. Others just as fervently believe that such provisions serve to promote inclusiveness and confidence in the legal profession.

Breadth of New Rule

Irrespective of viewpoint, every lawyer should be concerned about the breadth of this new rule.

First, the rule broadly defines “harassment” to include any “derogatory or demeaning verbal conduct” by a lawyer relating to a person’s “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” Even words that are not “harmful” meet the definition of “harassment” if they are “derogatory or demeaning” and relate to a designated category of person.

Second, the rule subjects to discipline not only a lawyer who knowingly engages in harassment or discrimination, but also a lawyer who negligently utters a derogatory or demeaning comment. So, a lawyer who did not know that a comment was offensive will be disciplined if the lawyer should have known that it was. It will be interesting to see how the “objectively reasonable lawyer” will be constructed for purposes of making this determination.

Third, the rule subjects to discipline not only a lawyer who slings a “derogatory or demeaning comment” directly at another person, but also a lawyer who makes an abstract comment about general types or categories of people. Indeed, in revising comment 4, the ABA expressly deleted language that would have limited the definition of “harassment” to include only derogatory or demeaning conduct directed “towards a person who is, or is perceived to be, a member of one of the groups.”

Fourth, the rule subjects to discipline a lawyer who discriminates on the basis of “socioeconomic status.” What is that? UCLA Law Professor Eugene Volokh raises this (valid) concern:

That term isn’t defined in the proposed rule, but the one definition I’ve seen — interpreting a similar ban on socioeconomic-status discrimination in the Sentencing Guidelines — is “an individual’s status in society as determined by objective criteria such as education, income, and employment.” United States v. Lopez, 938 F.2d 1293, 1297 (D.C. Cir. 1991); see also United States v. Peltier, 505 F.3d 389, 393 & n.14 (5th Cir. 2007) (likewise treating wealth as

2/3 an element of socioeconomic status); United States v. Graham, 946 F.2d 19, 21 (4th Cir. 1991) (same).

Eugene Volokh, Banning Lawyers from Discriminating Based on ‘Socioeconomic Status’ in Choosing Partners, Employees or Experts, The Volokh Conspiracy (Aug. 10, 2016). Volokh questions whether this rule will prohibit a law firm from preferring lawyers, nonlawyer assistants, and expert witnesses with degrees from high-status educational institutions. Id.

Permissible Discrimination

Finally, not all discriminatory conduct is verboten under this new rule. The amended comments specifically permit “conduct”—which presumably includes both discrimination and harassment—if “undertaken to promote diversity and inclusion.”

Moreover, the comments note that a lawyer may discriminate on the basis of “socioeconomic status”—in direct violation of the black-letter provision—if the discrimination is intended to benefit “members of underserved populations.”

3/3 Participating in Avvo Advisor is Unethical

lalegalethics.org/

Dane S. Ciolino

Avvo Advisor is easy. A prospective client visits the website https://www.avvo.com/advisor, selects the legal services needed, pays Avvo a fixed fee, and Avvo arranges for an “experienced Louisiana lawyer” to return the prospective client’s call within minutes.

From the lawyer’s standpoint, participating is easy. The lawyer simply clicks the “Join Today” button and agrees to provide certain legal services for a fixed fee. For example, the flat fee for a “15­minute Family advice session” is $39.00; filing for an “uncontested divorce” is $995.00; and creating a “last will and testament” is $295.00. Avvo boasts:

With more than 8 million visits to Avvo each month, we can connect you with clients who have already paid for limited­scope legal services. There’s no chasing leads.

You choose from dozens of legal services and control your availability. Clients only buy what you want to sell, when you want to sell it.

Avvo handles the billing up front, so you can focus on getting the client the help they need. No sending invoices.

After the lawyer provides the services, Avvo sends the lawyer “100% of the client’s payment.” The lawyer then “[a]s a completely separate transaction,” pays a “per­service marketing fee.” The amount of that marketing fee “depends on the service, and ranges from a $10 marketing fee for a $39 service, to $40 marketing fee for a $149 service, up to a $400 marketing fee for a $2995 service. See Attorney FAQ for Avvo Legal Services.

“Is it ethical?,” you ask. According to Avvo, “yes, it is.” Avvo says that it is not getting paid for lawyer referrals: “Avvo is not referring people to a particular lawyer. Potential client choose which attorney they would like to work with from all available, particpating attorneys.” Furthermore, Avvo says that it is not sharing in legal fees: “Fee splits are not inherently unethical. They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment. We believe that Avvo Legal Services fees, if deducted like credit card fees, would involve the sort of technical fee split that would not create such a potential for compromise.” See id.

The problem is that Avvo is wrong, at least according to two Summer 2016 bar association advisory opinions. Most recently, on July 14, 2016, the South Carolina Bar advised lawyers not to participate in the service for two reasons. See South Carolina Bar Assoc., Ethics Advisory Op. 16­06 (Jul. 14, 2016). First, the participating lawyer’s “marketing fee” payment is impermissible fee sharing under Rule 5.4(a): https://lalegalethics.org/?p=7979&preview=true 1/2 The fact that there is a separate transaction in which the service is paid does not mean that the arrangement is not fee splitting as described in the Rules of Professional Conduct. . . . A lawyer cannot do indirectly what would be prohibited if done directly. Allowing the service to indirectly take a portion of the attorney’s fee by disguising it in two separate transactions does not negate the fact that the service is claiming a certain portion of the fee earned by the lawyer as its “per service marketing fee.”

Id. Second, the participating lawyer’s “marketing fee” payment is the giving of something of value for recommending the lawyer’s services:

By basing the advertising charge to the lawyer on the fee collected for the work rather than having a fixed rate per referral or other reasonable cost for the advertisement, a lawyer utilizing this service cannot claim the [reasonable­advertising­cost] exception to the prohibition of paying for referrals . . . .

Id.1 The Ohio Supreme Court Board of Professional Conduct and legal­ethics commentators have reached similar negative conclusions. See Sup. Ct. of Oh. Bd. of Prof’l Conduct, Op. No. 2016­3 (Jun. 3, 2016); Alberto Bernabe, South Carolina Ethics Advisory Opinion Finds That Participating in Programs Like Avvo Legal Services is Unethical, Professional Responsibility Blog (Aug. 12, 2016); Scott H. Greenfield, The Trouble with Avvo’s Ethics, Simple Justice (Aug. 12, 2016). Avvo, of course, still thinks that everything is okay. See Josh King, Our Opinion on South Carolina Advisory Opinion 16­06, Lawyernomics by Avvo (Aug. 12, 2016).

Considering these two unfavorable ethics opinions, Louisiana lawyers should avoid participating in Avvo Advisor. Louisiana Rule 5.4(a) provides that a “lawyer or law firm shall not share legal fees with a nonlawyer,” except under unusual circumstances. Similarly, Louisiana Rule 7.2(c)(13) provides that a “lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising or written or recorded communication permitted by these Rules, and may pay the usual charges of a lawyer referral service . . . .” Both rules are squarely implicated by Avvo’s business model.

1. The opinion cites Comment 7 to the rule in support of its conclusion. This comment “discusses reasonable advertising costs and lists such items as newspaper ads, on­line directory listings, radio/television advertisement, etc. The permitted type of advertising described in the comments typically is of a type that has a fixed cost per ad or per run of air time, and reasonableness can be assessed by the market rate for the type of advertising.” In contrast, Avvo “purports to charge the lawyer a fee based on the type of service the lawyer has performed rather than a fixed fee for the advertisement, or a fee per inquiry or ‘click.’ In essence, the service’ s charges amount to a contingency advertising fee arrangement rather than a cost that can be assessed for reasonableness by looking at market rate or comparable services.”

https://lalegalethics.org/?p=7979&preview=true 2/2 Don’t Engage in the Unauthorized Practice of Law By Giving Advice to an Out-of-State Relative

lalegalethics.org/dont-engage-in-unauthorized-practice-of-law-by-giving-advice-to-relative-in-another-state/

Dane S. Ciolino September 4, 2016

On August 31, 2016, the Minnesota Supreme Court admonished a Colorado lawyer for engaging in the unauthorized practice of law by helping his in-laws with a dispute against their condominium association. More particularly, the lawyer sent approximately two dozen emails to a Minnesota lawyer in an effort to settle the association’s claim for $2,368.13. Of course, he was working for his in-laws pro bono. See In re Charges of Unprofessional Conduct in Panel File No. 39302, No. A15-2078 (Mn. Aug. 31, 2016).

First, the Minnesota Supreme Court rejected the respondent’s argument that he was not practicing “in” Minnesota because he was never physically present there:

Appellant requested and received financial documents from his Minnesota clients and advised them on their legal options. By multiple e-mails sent over several months, appellant advised Minnesota clients on Minnesota law in connection with a Minnesota legal dispute and attempted to negotiate a resolution of that dispute with a Minnesota attorney. Appellant had a clear, ongoing attorney-client relationship with his Minnesota clients, and his contacts with Minnesota were not fortuitous or attenuated. Thus, there is ample support for the Panel’s finding that appellant practiced law in Minnesota.

Id. at 7-8 (citing Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1, 5-6 (Cal. 1998); In re Babies, 315 B.R. 785, 791-93 (Bankr. N.D. Ga. 2004)).

Second, the court rejected the respondent’s contention that his temporary practice in Minnesota was authorized because his in-laws’ matter was “reasonably related” to his practice in Colorado. In evaluating whether a matter “relates to” a lawyer’s home-state practice, the court considered the following factors:

whether the client is a resident of or has substantial contacts with the lawyer’s home jurisdiction; whether the client has previously been represented by the lawyer; whether a significant aspect of the matter involves the law of the lawyer’s home jurisdiction; whether the client’s activities or the legal issues involve multiple jurisdictions; and, whether the services draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.

Id. at 12. Finding none of these factors to be present, the court found that the lawyer’s “in-laws were not long-standing clients; nor was there any connection between the in-laws’ case and the state or laws of 1/3 Colorado. And while appellant’s Colorado practice may involve judgment collections work, nothing in the record establishes that this work was based on a body of federal or nationally uniform law.” Id. at 13.

Concluding that the misconduct was “minimal” and “non-serious,” the court imposed only a private admonition. See id. at 15. A reasonable sanction, if any was appropriate.

Three justices dissented on the grounds that the lawyer’s “temporary provision of legal assistance to his parents-in-law regarding the negotiation of a small collection matter in Minnesota is ‘reasonably related’ to appellant’s practice of law in Colorado.” Id. at D-1. As a policy matter, the dissent found the majority opinion to be “troubling and counterproductive”:

The ABA Model Rule 5.5(c), as adopted by our state, was intended as a broad catch-all that “represent[s] a bold step towards new latitude in [a] multijurisdictional practice of law,” which accommodates the increasingly mobile and electronic nature of modern, national legal practice. . . . Today’s decision represents a step backwards. By the court’s reasoning, when family members or friends—an abundant source of clients—email or call a practitioner admitted in another state, seeking assistance in areas in which the practitioner is experienced and competent, relying on a relationship of trust and confidence, they must be turned away. Those potential clients must then expend unnecessary time and resources to research and hire local counsel—even for minor, temporary services in which the outof- state lawyer could have provided efficient, inexpensive, and competent service. Simply put, the court’s decision is contrary to the principles and policy goals intended by Rule 5.5(c).

Id. at D-7.

Louisiana lawyers too should be very cautious in giving advice to out-of-state relatives. Louisiana Rule of Professional Conduct 5.5(a) provides that “[a] lawyer shall not practice law [in a jurisdiction] in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” See La. Rules of Prof’l Conduct R. 5.5(a) (2004). The rule broadly defines the “practice of law” to include the following activities:

(i) holding oneself out as an attorney or lawyer authorized to practice law;

(ii) rendering legal consultation or advice to a client;

(iii) appearing on behalf of a client in any hearing or proceeding, or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, hearing officer, or governmental body operating in an adjudicative capacity, including submission of pleadings, except as may otherwise be permitted by law;

(iv) appearing as a representative of the client at a deposition or other discovery matter;

(v) negotiating or transacting any matter for or on behalf of a client with third parties;

(vi) otherwise engaging in activities defined by law or Supreme Court decision as constituting the practice of law.

2/3 La. Rules of Prof’l Conduct R. 5.5(e)(3) (2004).

3/3 May a Law Firm Designate a Nonequity Partner as a “Partner”?

lalegalethics.org/may-a-law-firm-designate-a-nonequity-partner-as-a-partner/

Dane S. Ciolino October 30, 2016

Although the term “partner” typically denotes a person sharing in the ownership of a business enterprise, some law firms designate nonowner-lawyers as “partners,” “income partners,” or “nonequity partners.” Such designations are typically based on “the achievement by a lawyer of a certain level of experience, status, or authority.”

Does this practice violate the rules of professional conduct that prohibit “false or misleading” communications about a lawyer, a lawyer’s services or a law firm’s services?

No, according to a recent ethics opinion from the North Carolina State Bar Association. See N.C. Bar Formal Op. 2015-9 (Jul. 22, 2016). As long as the designation is not “a sham,” it is unobjectionable:

[A] law firm may designate a lawyer as a partner, regardless of whether the lawyer satisfies the legal definition of that term, if the lawyer was promoted to the position by formal action or vote of firm management or pursuant to the firm’s governing documents. Further, to prevent the public from being misled as to the lawyer’s achievements, the promotion must be based upon criteria that indicates that the lawyer is worthy of the promotion.

1/1 The Duty of Technological Competence

lalegalethics.org/the-duty-of-technological-competence/

Dane S. Ciolino October 30, 2016

In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” See ABA, Commission on Ethics 20/20 Resolution 105A (August 2012). Since then, twenty-five states have officially adopted Comment 8 as part of their rules of professional conduct.

Florida has fallen in line. On September 29, 2016, the Supreme Court of Florida amended the comments to its state’s rules of professional conduct to provide as follows:

[I]n order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.

See In re Amendments to Rules Regulating the Florida Bar 4-1.1 and 6-10.3, No. SC16-574 (Sep. 29, 2016). Furthermore, the court amended its mandatory continuing legal education rules to require at least three hours of CLE every three years offered by “approved technology programs.” Given the importance of technology to a modern lawyer’s law practice, all states should follow suit.

Robert Ambrogi at LawSites blog keeps a running list of state adoptions of this technological-competence principle.

1/1 Lawyer Disciplined for Sex With Corporation

lalegalethics.org/lawyer-disciplined-for-sex-with-corporation/

Dane S. Ciolino October 31, 2016

The Supreme Court of Kansas indefinitely suspended Kansas City lawyer Allison L. Bergman in part for having sex with a corporate client. See In re Allison L. Bergman, No. 115,448 (Oct. 28, 2016).

The respondent served as general counsel to the Kansas City Terminal Railway Company. During the course of her representation of the company, she commenced a sexual relationship with its president and board chair. She thereafter failed to disclose the relationship to the corporation’s board, but nonetheless drafted her lover’s employment contract. Furthermore, when he later breached various fiduciary duties that he owed to the corporation, the respondent did not report his misconduct to the board.

The Kansas Rules of Professional Conduct, like the ABA Model Rules, prohibit a lawyer from having “sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” But can a lawyer really have sex with an organizational client? The sexual relationship undoubtedly impaired the duty of loyalty that she owed to her client. For that reason, the relationship clearly created a concurrent conflict of interest. But she simply did not—and could not—have sex with her corporate client.

1/1 May a Lawyer Surreptitiously Track Emails Sent to Opposing Counsel?

lalegalethics.org/may-a-lawyer-surreptitiously-track-emails-sent-to-opposing-counsel/

Dane S. Ciolino November 8, 2016

A “web bug” or “tracking bug” is a tag that an email sender can include in a message that will report back to the sender about the recipient’s handling of the email. See Wikipedia, Web Beacon. A “bug” included in an email message (usually in a URL for an image) will report to the sender: whether, when, and where the recipient read the message and any attachments; whether the recipient forwarded it; and the IP address of all computers used to read the message. A sender who wants to use a web bug to track an email can choose from a large number of email tracking services on the Internet, including the following: Banana Tag, HubSpot, Mailtrack, and Yesware. Such bugs are commonly used in newsletters and marketing communications to track readers’ interests in topics, products, or services.

Is it ethical for a lawyer to use such tracking bugs to surreptitiously track emails sent to opposing counsel? No, according to a recent ethics opinion from the Alaska Bar Association. See Alaska Bar Assoc. Op. 2016-1 (Oct. 26, 2016). According to the committee:

The 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.

More particularly, the committee opined that the use of such bugs is “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Furthermore, because the bug can give the sender a glimpse into what the recipient-lawyer shared with a client, and where the client is located, it “unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets.” Id.

I disagree with this opinion. Every day lawyers receive emails embedded with tracking bugs and read- receipts. There is nothing “fraudulent,” “deceitful,” or “dishonest” about sending such emails. They are commonplace.

Considering this, the burden should be on the lawyer-recipient to make sure that privileged and confidential information is not reported back to a sender. Indeed, Rule 1.6(c), requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” See La. Rules of Prof’l Conduct R. 1.6. It is the rare case indeed in which a read-receipt or other tracked information is truly sensitive. In that unusual case, the recipient lawyer ought to undertake reasonable measures to protect it. As to what those measures should be turns on the 1/2 sensitivity and importance of the information disclosed, and the cost and difficulty of employing safeguards. See ABA Model Rule 1.6, cmt. 18. So, if the location of a lawyer’s client is truly top secret—as the Alaska opinion hypothesizes—the recipient lawyer should scrub an email of any bugs prior to forwarding it the client-in-hiding by deleting embedded images or by sending it in plain-text format. Simple.

Worried about being tracked by a web bug in your inbox? You can easily avoid it by configuring your email client to stop automatically retrieving remote content via URLs embedded in email messages. To learn how to do this in Gmail, click here.

2/2 New Advisory Opinions on Lawyer Social Media Use

lalegalethics.org/new-advisory-opinions-on-lawyer-social-media-use/

Dane S. Ciolino November 29, 2016

The District of Columbia Bar has issued two advisory opinions addressing many of the legal and ethical implications of lawyer social media1 use. The first opinion addresses lawyer use of social media for marketing legal services and for personal communication. See District of Columbia Bar, Ethics Op. 370, Social Media I: Marketing and Personal Use (Nov. 2016). The second opinion addresses lawyer use of social media for providing legal services. See District of Columbia Bar, Ethics Op. 371, Social Media II: Use of Social Media in Providing Legal Services (Nov. 2016). Here are the important takeaways from these opinions:

Rule 1.1 requires a lawyer to “keep abreast of changes in the law and its practice.” For this reason, a lawyer “must be cognizant of the benefits and risks of the use of social media.” A lawyer should avoid the formation of inadvertent attorney-client relationships. To this end, “disclaimers are advisable on social media sites, especially if the lawyer is posting legal content or if the lawyer may be engaged in sending or receiving messages from ‘friends,’ . . . when those messages relate, or may relate, to legal issues.” A lawyer should use caution in responding to comments or online reviews by clients. More particularly, a lawyer must avoid making false or misleading statements, and refrain disclosing client confidential information. “There is no exception in Rule 1.6 that allows an attorney to disclose client confidences or secrets in response to specific or general allegations regarding an attorney’s conduct contained in an online review . . .” A lawyer who uses social media sites that allow for prepublication “review of posts, recommendations or endorsements” must police the accuracy of posted information. To this end, a lawyer should employ “settings that allow review and approval of such information before it is publicized on the lawyer’s social media page.” Rule 1.6 requires a lawyer to understand how nonclients can access social media communication and postings. Given the risks of disclosure to nonclients, a lawyer should reach agreement with the lawyer’s client about whether social media “should ever be used” for confidential communications. A lawyer must review a client’s social media postings and address whether any are inconsistent with claims or defenses to insure that they are meritorious under Rule 3.1 and that misrepresentations are not made to courts or agencies in violation of Rules 3.3 and 8.4. Before a client engages in “any lawyer-counseled or lawyer-assisted removal or change in content of client social media,” the lawyer should preserve “an accurate copy of such social media.” A lawyer should “look at the public social media postings of their opponents, witnesses, and other relevant parties” for relevant information. However, “requesting access to information protected by privacy settings, such as making a ‘friend’ request to a represented person,” is impermissible if the person is represented by counsel or if the lawyer makes a materially false statement to the third person.

1/2 A lawyer who posts information about past matters for marketing purposes must assure that client confidential information is not disclosed. Finally, a lawyer must adequately supervise the lawyer’s employees to assure that their use of social media is consistent with the standards of conduct applicable to the lawyer.

1. The opinions define the term “social media” to include “any electronic platform through which people may communicate or interact in a public, semi-private, or private way. Through blogs, public and private chat rooms, listservs, other online locations, social networks, and websites such as Facebook, LinkedIn, Instagram, Twitter, Yelp, Angie’s List, Avvo, and Lawyers.com, users of social media can share information, messages, e-mail, instant messages, photographs, video, voice, or videoconferencing content. This definition includes social networks, public and private chat rooms, listservs, and other online locations where attorneys communicate with the public, other attorneys, or clients.”

2/2 ABA Formal Opinion: A Lawyer Must Deposit Any Fee to Be Shared With Another Lawyer Into Trust Account

lalegalethics.org/aba-formal-opinion-a-lawyer-must-deposit-any-fee-to-be-shared-with-another-lawyer-into-trust-account/

Dane S. Ciolino December 14, 2016

Rule 1.5(e) permits lawyers who are not in the same law firm to divide legal fees, subject to certain requirements. See ABA Model Rule of Prof’l Conduct R. 1.5(e); La. Rules of Prof’l Conduct R. 1.5(e). More particularly, Louisiana lawyers may share fees if: “(1) the client agrees in writing to the representation by all of the lawyers involved, and is advised in writing as to the share of the fee that each lawyer will receive; (2) the total fee is reasonable; and (3) each lawyer renders meaningful legal services for the client in the matter.” See La. Rules of Prof’l Conduct R. 1.5(e). Must a lawyer who receives a fee that will be shared with another lawyer place that fee in trust upon receipt?

Yes, according to the latest formal opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility. See ABA Formal Op. 475 (Dec. 7, 2016). Rule 1.15 requires a lawyer to place into trust any property in which a client or any “third person” has an interest. Formal Opinion 475 makes it clear that a lawyer with an interest in a to-be-shared fee is such a “third person” under Rule 1.15:

When one lawyer receives an earned fee that is subject to such an arrangement and both lawyers have an interest in that earned fee, Model Rules 1.15(a) and 1.15(d) require that the receiving lawyer hold the funds in an account separate from the lawyer’s own property, appropriately safeguard the funds, promptly notify the other lawyer who holds an interest in the fee of receipt of the funds, promptly deliver to the other lawyer the agreed upon portion of the fee, and, if requested by the other lawyer, provide a full accounting.

Id. at 3.

The Louisiana Rules likewise require a lawyer to place into trust any funds in which a “third person” has an interest. The Louisiana Rules, however, define more precisely what funds are subject to this requirement:

For purposes of this rule, the third person’s interest shall be one of which the lawyer has actual knowledge, and shall be limited to a statutory lien or privilege, a final judgment addressing disposition of those funds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment out of those funds or property.

See La. Rules of Prof’l Conduct R. 1.15(d). Given that any Louisiana lawyer who expects to share a legal fee must have a written engagement agreement with the jointly-represented client, Louisiana Rule 1.15(d) likewise requires to-be-shared legal fees to be placed into the trust account of the recipient lawyer. 1/2 2/2 Does a Lawyer Who Targets Ads with Geofencing Make Impermissible Contacts with Prospective Clients?

lalegalethics.org/does-a-lawyer-who-targets-ads-with-geofencing-make-impermissible-contacts-with-prospective-clients/

Dane S. Ciolino December 14, 2016

When a lawyer sends a targeted, unsolicited written communication to a prospective client whom the lawyer knows to need legal services in a particular matter, the lawyer’s communication must prominently display the disclaimer “ADVERTISEMENT.” See ABA Model Rule of Prof’l Cond. R. 7.3(c); La. Rules of Prof’l Cond. R. 7.4(b)(2). In contrast, a nontargeted advertisement that a lawyer widely broadcasts to prospective clients using radio, television, or print media need not display such a disclaimer. Thus, if a lawyer were to place advertising leaflets on the windshields of all the cars in a neighborhood, the lawyer would not have to disclaim them as “ADVERTISEMENTS.” But if the lawyer were to mail the same leaflet to an accident victim at a hospital, the lawyer would have to use the disclaimer. Furthermore, in Louisiana, a lawyer may not send an “unsolicited” written communication to a prospective client within 30 days of an accident or when the prospective client is in such a “physical, emotional, or mental state” that the person’s ability to “exercise reasonable judgment” is impaired. See La. Rules of Prof’l Cond. R. 7.4(b)(1).

Are these advertising rules implicated when a lawyer uses geofenced or location-targeted Internet ads? For example, one legal marketing service asks lawyers to “[i]magine placing ads to potential personal injury clients as they enter and after leave a hospital, auto body shop or chiropractor; for criminal lawyers, how about a police station, bail bonds or court house.” See Real Legal Marketing, GeoFencing for Lawyers (at http://www.reallegalmarketing.com/geofencing-for-lawyers/). Google allows advertisers to “target a radius around a location” and thereafter serves up advertisements in response to certain Google searches conducted near that location. Does a lawyer who uses these location-based advertising techniques violate the professional conduct standards regulating advertisements for legal services?

No. Although, such geofenced advertisements are delivered to Google searchers who may be likely to need legal services given the content of their search queries and their location, the ads are not delivered to persons known to need legal services. Furthermore, such advertisements do not involve “coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence”—they are virtually indistinguishable from thousands of similar ads that routinely appear in response to Google searches. Finally, given that Google serves up such advertisements in response to queries seeking a “lawyer” or “attorney,” the targeted advertisements are actually ones that have been “solicited” by the prospective clients, not ones that are “unsolicited.”

1/1 Fifth Circuit Sanctions Defense Lawyers for Inadequate Initial Disclosures

lalegalethics.org/fifth-circuit-sanctions-defense-lawyers-for-inadequate-initial-disclosures/

Dane S. Ciolino December 14, 2016

The United States Court of Appeals for the Fifth Circuit affirmed sanctions imposed against defense lawyers1 for their failure to produce all relevant evidence in their clients’ Rule 26 initial disclosures. See Olivarez v. GEO Group, Inc., No. 16-50191 (filed Dec. 12, 2016). Rule 26 provides that “a party must, without awaiting a discovery request, provide to the other parties . . . a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment . . . .” See Fed. R. Civ. P. 26(a) (1)(A).

The plaintiff, Liza Olivarez, sued the operators of a detention center alleging that she had been sexually assaulted by a guard while incarcerated. The defendants, however, contended that the sexual encounters in issue were consensual. To support their defense, the defendants used recordings of telephone conversations between the plaintiff and her friends and family. Those recordings “tended to establish the truth of a key issue Defendants raised as a defense in the case—that Olivarez had initiated consensual sex” with the guard. As a result, the court held that evidence was not exempt from disclosure as “impeachment” evidence. Said the court:

evidence should not be treated as “solely” impeachment evidence if it tends to establish the truth of key issues to be determined by the jury. . . . Instead, the evidence must be treated as having at least some substantive value and must be disclosed to the opposing party.

Id. at 8-9 (citing Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993)). Here, a reasonable person would have know “that the audio recordings needed to be disclosed because they had substantive value.” Id. at 9.

1. The district court ordered each lawyer to pay a $1,000.00 fine.

1/1