Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Monday, May 31, 2010

Can The Attorney Client Privilege Be Asserted If The Putative Attorney Was Not Properly Admitted?

Here is a great law school hypo. Employer hires attorney. The attorney is later fired. Can his former employer assert attorney-client privilege? This is actually not a law school hypo. Rather, this issue is pending in the Southern District of New York. A New York Law Journal article about this case dated April 8, 2010 is available here. (registration required).

Law review commentary on this interesting topic would be most welcome.

Mitchell H. Rubinstein

May 31, 2010 in Ethics, Law Review Ideas, Lawyers | Permalink | Comments (0)

Monday, May 17, 2010

Cloud Computing and Lawyer Ethics

Cloud computing is in vogue today. Everyone, including me, loves it. You do not have to worry about files taking up space on your computer or have access to your files if your using another computer. The files are stored on a server. Getting Your Head in the Cloud is an interesting April 2010 ABA Journal article which raises the question of whether there are ethical issues for lawyers to store client data in "the cloud." As the article states:

The early indications from ethics authorities are that storing client data in the cloud does not violate ethics rules, as long as the lawyer took appropriate steps to safeguard the information from inadvertent or unauthorized disclosure.

Rule 1.6 of the ABA Model Rules of Professional Conduct states that, generally, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to carry out the representation. (Rule 1.6 is generally followed by the states.)

But the comments to Model Rule 1.6 provide some leeway in applying its mandate. Comment 16, for instance, states, “A lawyer must act competently to safeguard information relating to the representation of a client 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.” And Comment 17 states that a lawyer must take “reasonable precautions” to prevent information relating to the representation of a client from going to unintended recipients when it is being transmitted.

“If you purchase the technology and there’s a breach, you’re going to say, ‘I relied on the cloud provider,’ and the rules back you up,” says Lucian T. Pera, a partner at Adams and Reese in Memphis, Tenn., and president of the Association of Professional Responsibility Lawyers. “The rules say attorneys must act competently to safeguard information. It’s a reasonableness standard, and nothing has changed about the rules but how they apply in a changing world.”

Some recent ethics opinions reach a similar conclusion. The Arizona State Bar’s Committee on the Rules of Professional Conduct, for instance, concluded in Opinion 09-04 (issued Dec. 9, 2009), that a law firm may use an online file storage and retrieval system that enables clients to access their files over the Internet as long as the firm takes reasonable precautions to safeguard the security and confidentiality of the client’s information.

Cloud computing is here to stay. I see it no different than lawyers storing client money in bank accounts. The lawyer has to rely on the bank not stealing the money or disclosing it to a third party. Law review commentary with respect to this important issue would be most welcome.

Mitchell H. Rubinstein

May 17, 2010 in Ethics, Law Review Ideas, Lawyers | Permalink | Comments (1)

Saturday, May 8, 2010

New Metadata Ethics Opinion - Minnesota

On May 4, 2010, the ABA on its web site cited to an important Minnesota ethics opinion concerning metadata. The article describes this opinion as follows:

At the end of March, Minnesota's Lawyers Professional Responsibility Board approved a new ethics opinion addressing lawyers' ethical obligations regarding metadata. Opinion No. 22, available in PDF format on the LPRB's website, addresses the three primary metadata questions: what is a lawyer's duty when sending electronic documents; what is a lawyer's duty when receiving electronic documents; and what is a lawyer's duty upon discovering confidential or privileged metadata.

On the first and third questions, Minnesota echoed the view of the majority of jurisdictions that have taken up the issue: the sending lawyer "is ethically required to act competently to avoid improper disclosure of confidential and privileged information in metadata in electronic documents," and in the event that a lawyer "receives a document which the lawyer knows or reasonably should know inadvertently contains confidential or privileged metadata, the lawyer shall promptly notify the document's sender." (LPRB Op. 22)

Mitchell H. Rubinstein

May 8, 2010 in Ethics | Permalink | Comments (0)

Sunday, May 2, 2010

Ethics Opinion Says Lawyers May Ghostwrite Court Papers and Not Disclose It

The New York County Lawyers Association recently issued an important opinion stating that lawyers can ghost write court papers to a limited degree for pro se litigants without disclosure. opinion

An ABA New Now Blog entry about this opinion is available here.

Mitchell H. Rubinstein

May 2, 2010 in Ethics, Lawyers | Permalink | Comments (0)

Saturday, February 6, 2010

Two Senior New York Attorneys Suspended From Practice For Failing To Pay Taxes

The New York Appellate Division, which regulates lawyers, recently suspended two lawyers for failing to pay income tax. Both were convicted of felonies and did not pay taxes for years. A New York Law Journal story about these unfortunate cases is available here. The First Department's rulings in Howley and Goldman can be found by clicking on the link.

Mitchell H. Rubinstein

February 6, 2010 in Ethics, Lawyers | Permalink | Comments (0)

Monday, November 23, 2009

Is Smoking A Disablity Under The ADA As Amended??

The Ohio Employer's Law Blog raises the question whether smoking is a disability under the ADA as amended and concludes that it very well might be. That has significant public policy implications because the ADA may prevent employers from having a smoke free workplace and some local laws that require smoke free work places may conflict with the ADA. The author of this posting states:

Critically, an employee is now protected under the “regarded as” prong regardless of whether or not the impairment limits or is perceived to limit a major life activity, and regardless of whether the employer believes the individual was substantially limited in any major life activity. The coverage of this protection is extremely broad. The only exception to the “regarded as” prong is when the impairment is transitory (lasting or expected to last for six months or less) and minor. Examples of such uncovered impairments include a sprained wrist, a broken limb that is expected to heal, the common cold, and the seasonal flu. Employers do not have to make reasonable accommodations for “regarded as” disabilities, but are still prohibited from taking adverse actions because of them.

At the ABA Labor & Employment Conference last week, I had the opportunity to ask Peggy Mastroianni, EEOC Associate Legal Counsel and author of the ADAAA’s proposed regulations, if the EEOC has a position on the coverage of smoking under the ADA. Her answer was that there is no formal EEOC position. The EEOC’s silence notwithstanding, the “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.

Frankly, I have not researched this issue and am not sure of the answer, but I would be surprised if smoking per se (as opposed to smoke related illnesses) are protected under the ADA. Law review commentary would be welcome with respect to this issue.

Mitchell H. Rubinstein

November 23, 2009 in Employment Discrimination, Ethics, Law Review Ideas | Permalink | Comments (1)

Friday, May 15, 2009

Negotiation Ethics

Ethics and Negotiating: Truth or Consequences? is a very interesting April 21, 2009 New York Law Journal article.Download 125192-1 As its title implies, it concerns the ethical obligation of attorneys with respect to negotiations.The premise of the article is that attorneys cannot lie, but are able to present the facts in the light most favorable to their client. As the article states:

 
When negotiating with opposing counsel, lawyers may engage in "posturing" and "puffing." A lawyer thus may tout the strengths of his or her client's position and play down its weaknesses. In most circumstances, a lawyer need not correct the opposing side's misapprehensions. An attorney negotiator in general need not voluntarily disclose the problems with the client's negotiating position or what the client's bottom line is. For example, an attorney negotiating a sale of goods contract may push for a full warranty, even though the client is ultimately willing to accept the goods as is. The lawyer need not mention the fact that the client has made this concession in other contracts when seeking a warranty.

The New York Rules are clear that a lawyer may not make a false statement of fact in a negotiation. Thus, the attorney, if asked if the client has signed other, similar contracts that do not have full warranties, may not say that the client always obtains a full warranty if that is untrue. The lawyer may parry the question by saying that the client always seeks a full warranty. To the extent the issue is not really a fact, but an opinion, the lawyer has more room. How far the client is willing to go to compromise a particular issue falls into this category. That does not mean that an attorney may say that her client's board of directors only has authorized that $1 million be spent on a project, when the board actually has voted to spend up to $2 million.

While there may not be a need to reveal certain facts when negotiating, if a lawyer does so, the lawyer must be truthful. . . .

When a lawyer is dealing with a tribunal - a judge or arbitrator - he or she has a higher standard of candor than when negotiating with other third parties. For example, Rule 3.3 imposes numerous obligations on lawyers when handling a litigation or otherwise appearing before a tribunal. Rule 3.3(a)(1) provides that "[a] lawyer shall not knowingly 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." Rule 3.3(a)(3) prohibits a lawyer from "offer[ing] or us[ing] evidence that the lawyer knows to be false."

One of the most significant changes made in New York's ethics rules was the requirement that the lawyer representing a client before a court or arbitrator must take "reasonable remedial measures, including, if necessary, disclosure to the tribunal" if the lawyer knows of fraudulent conduct relating to the proceeding. See Rule 3.3(b). The fact that the disclosure would reveal privileged information or prejudice the client is no longer an excuse for not doing so. See Rule 3.3(c).

Mitchell H. Rubinstein


May 15, 2009 in Ethics | Permalink | Comments (0) | TrackBack (0)

Sunday, January 11, 2009

Employment Law Hard Ball

When Outside Counsel Represents Individuals (registration required) is an important Jan. 8, 2009 New York Law Journal article.  It is primarily about  Rivera v. Lutheran Medical Center, 2008 N.Y. Misc. LEXIS 6060, 866 NYS2d 520 (Sup. Ct., Kings County, 2008). That court held that an employers counsel could not approach a potential witness and offer representation free of charge because that constituted improper solicitation of a client, and a breach of the Code of Professional Responsibility.
Why did the employer offer free legal counsel?? Was it out of the goodness of its heart?? Of course not. It was to gain a litigation tactical advantage. The lawyers goal was to insulate the witness from informal contact with plaintiffs lawyer.  As the article states:

The court accepted plaintiff's view that this conduct constituted a violation of DR 2-103(A)(1), which prohibits a lawyer from "engag[ing] in solicitation . . . by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or current client."

The court concluded that the individuals "are not parties to the litigation in any sense and there is no chance that they will be subject to any liability. They were clearly solicited by [the firm] on behalf of LMC to gain a tactical advantage in this litigation by insulating them from any informal contact with plaintiff's counsel."

Mitchell H. Rubinstein

January 11, 2009 in Employment Law, Ethics | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2008

Ethics of Outsourcing

Ethics of Outsourcing is an interesting September 2008 New York State Bar Journal article. It is about the legal issue lawyers face if they out source work to now lawyers. The article describes the applicable issues as follows:

Outsourcing tasks to non-lawyers, whether in the
United States or abroad, raises a host of issues
regarding attorneys’ ethical obligations to their
clients. These issues have been fleshed out in advisory
opinions issued by the bar associations in various states.
Specifically, the New York City, Los Angeles County,
San Diego County, and Florida Bar Associations have
provided guidance to attorneys on the ethical considerations
that must be addressed prior to outsourcing work
overseas.
Each of these opinions focuses primarily on the following
ethical mandates: (1) the duty to avoid aiding a
non-lawyer in the unauthorized practice of law; (2) the
duty to supervise; (3) the duty to preserve client confidences;
(4) the duty to check conflicts; (5) the duty to bill
appropriately; and (6) the duty to obtain client consent.
Although each of the opinions provides that under certain
circumstances an attorney may ethically outsource
legal support services overseas to a non-lawyer, ensuring
that the requisite ethical mandates are adhered to may
prove difficult in practice.

Mitchell H. Rubinstein

September 11, 2008 in Ethics | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2008

Miller: Wrongful Incarceration and Attorney-Client Confidentiality

Colin Miller (John Marshall Law School) has posted "Ordeal by Innocence:  Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Privilege" on the Social Science Research Network (SSRN).  The article addresses the challenging questions about legal ethics and the attorney-client privilege raised by the Alton Logan case in Illinois, which was the subject of a 60 Minutes broadcast on March 9, 2008, and the Lee Wayne Hunt case in North Carolina.  Professor Miller's article will appear in a future Northwestern University Law Review Colloquy.

Here is the abstract:

In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession. Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

How does such an injustice occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted. And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent reasonably certain death or substantial bodily harm, the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example. Conversely, Massachusetts Rule of Professional Responsibility 1.6(b)(1) permits attorneys to disclose client information to, inter alia, prevent the wrongful execution or incarceration of another. This article argues that the 25 states which have adopted some form of amended Model Rule 1.6(b)(1) can and should read a similar wrongful incarceration/execution exception into their existing Rules while the remaining 24 states (and the District of Columbia) which have not adopted some form of amended Model Rule 1.6(b)(1) should create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exception.

Professor Miller's article is concise, readable and very informative on this issue.  The article also raises an important question regarding what event triggers this particular exception to the privilege.  The Massachusetts wrongful incarceration exception described by Professor Miller permits a lawyer "to reveal confidential information in the specific situation where such information discloses that an innocent person has been convicted of a crime and has been sentenced to imprisonment or execution."  Mass. Rule of Prof'l Conduct R. 1.6(b)(1) cmt. 9A.   This comment suggests a disclosure would not be authorized until after the trial, when the defendant has been convicted and incarcerated.  Such a disclosure would likely have to be made by motion for new trial or on post-conviction writ.

By contrast, Model Rule 1.6(b)(1) provides that, "[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary...to prevent reasonably certain death or substantial bodily harm."  p. 3.  Professor Miller proposes that states without a wrongful incarceration exception in the ethics rules "construe wrongful incarceration as a reasonably certain bodily injury."  p.5.   Since the Model Rule allows the disclosure to be made to prevent substantial bodily harm, here defined as wrongful incarceration, Professor Miller's proposal to equate wrongful incarceration with substantial bodily harm seems to allow the disclosure to be made during the trial, or even before trial, where incarceration exists as a sentencing option.

In most jurisdictions, the burden of proof at trial differs from the burden in a post-conviction proceeding.  To obtain an acquittal, a defendant bears no burden of proof and the state must prove each element of the charged offense beyond a reasonable doubt.  A defendant on a post-conviction writ, however, typically bears a heavy burden.  In Texas for example, a defendant seeking to overturn a conviction based upon newly discovered evidence indicating actual innocence must show "that the newly discovered evidence unquestionably establishes his or her innocence."  To grant relief, "reviewing court must believe that no rational juror would have convicted the applicant in light of the newly discovered evidence."  Ex parte Thompson, 153 S.W.3d 416, 417 (Tex. Crim. App. 2005) (orig proceeding).  While different states may place different burdens on defendants seeking post-conviction relief on actual innocence grounds, the burden will necessarily be greater than the defendant's burden at trial.  When the exception is triggered, therefore, is important to know.

Attorney-client privilege exceptions require that the societal interest in promoting full and uninhibited communication between attorney and client be balanced against the interest promoted by the exception.  The need for disclosure is greater after conviction and incarceration and after all appeals have been exhausted than the need would be during pre-trial investigation or during trial when neither conviction nor incarceration are certain and when other facts presented may result in acquittal.  This temporal consideration, likely beyond the scope of Professor Miller's Colloquy article (and certainly so for this post), deserves further examination.

Congratulations to Professor Miller on a thought provoking article.  I look forward to its appearance in the Colloquy.

Craig Estlinbaum

May 29, 2008 in Criminal Law, Ethics | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2008

More Trouble For School District Lawyers Who Were Classified As Employees Of School Districts

Learning Experiences is an interesting article from June 2008 ABA Journal about the New York School lawyers who were placed on the payroll of several school districts even though they were not employed by those school districts. As the article points out, the NYS Attorney General is investigating this incident as is the NYS Comptroller.

This article adds another wringle. The article postulates that the attorneys may have also violated ethical rules if they are found to have engaged in illegal conduct or moral turnpitude. As the article states:

But experts on professional conduct issues caution against a rush to judgment in situations like the inves­tigation in New York. They note there is nothing in­herently improper about a private lawyer taking on a salaried job with a government entity while keeping his or her position in a law firm. It all depends on how and why it was done.

“There’s no prohibition against multiple hats,” says Stephen Gillers, a professor at New York University School of Law who chairs the Joint Committee on Lawyer Regulation of the ABA Center for Professional Responsibility. “The real question is whether there’s value received and whether the lawyer is truly doing the work he’s being paid for.”

But the reason for the agreement also must be con­sidered, Gillers says. “Did the school board negotiate a good deal for itself, or was this simply a back door way to give a lawyer a benefit to which he was not entitled as a reward or a private act of generosity?” asks Gillers. “It’s a distinction that makes a difference.”

A separation of duties within a firm to avoid double billing can raise questions if it potentially favors one lawyer at the firm, says Susan Brotman, a lawyer in New York City who is president of the Association of Profes­sional Responsibility Lawyers. In the school district context, for instance, it can appear to be “a ruse through which that person enjoys rights under the New York state retirement system that he or she would not be eligible for as a private contractor,” Brotman says.

Mitchell H. Rubinstein

May 28, 2008 in Ethics | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2008

Lawyers and Law Students Beware. Lying On Employment Application May Be Cause For Discipline

Lawbooks The state of Illinois has brought a complaint against an attorney for several different alleged disciplinary violations.

First, on her law school application the attorney left out that she was dismissed from medical school for poor scholarship and she answered her law school application by saying she was never subject to discipline from any university.

Second, while seeking summer employment-repeat summer employment- at a major firm, the attorney misrepresented her student record by inflating several grades. Apparently, this student was later hired.

This should serve as a reminder to attorneys and law students that what you do matters. We have a duty of honesty and if we lie, that could have consequences.

Mitchell H. Rubinstein

Hat Tip: Legal Profession Blog

May 20, 2008 in Ethics | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2008

Lawyer Sanctioned And Only Allowed To File Papers In Court If Signed By Another Attorney

Florida Bar v. Thompson, __So. 2d__ (Florida Supreme Court March 20, 2008) is an unbelievable case. The Court sanctions an attorney by preventing him from filing anything in court without it being co-signed by another attorney. Apparently, the attorney is in the process of litigating a disciplinary proceeding brought against him. With respect to that proceeding, the court described the attorney's conduct as follows:

Thompson has submitted over fifty filings directly with this Court, all of which have either been forwarded to the referee, dismissed, or denied. Additionally, Thompson’s most recent filings are repetitive, frivolous, and, like his earlier ones, insulting to the Court. One of Thompson’s recent filings contains what Thompson refers to as a “children’s picture book for adults” that rehashes his previous arguments in illustrated form which he states was necessary due to “the Court’s inability to comprehend” his arguments. Between the text of the motion, Thompson pasted images depicting swastikas, kangaroos in court, a reproduced dollar bill, cartoon squirrels, Paul Simon, Paul Newman, Ray Charles, a handprint with the word "SLAP!" written under it, Bar Governor Benedict P. Kuehne, a baby, Ed Bradley, Jack Nicholson, Justice Clarence Thomas, Julius Caesar, monkeys, and a house of cards, and the motion concludes with a photograph of the cover of Thompson’s book, Out of Harm's Way.
During the Bar’s investigatory process, in Thompson v. Florida Bar, 939 So. 2d 1061 (Fla. 2006)(Case No. SC06-1113), Thompson filed a petition for writ of mandamus, one motion, thirteen notices of filing, six supplements to the petition (two of which were filed after the Court’s disposition order), and a “response” to the Court’s disposition order. Further, Thompson engaged, to the point of abuse, as he has done in the instant proceedings, in a relentless and frivolous pursuit for vindication of his claim that he is being victimized by The Florida Bar. Case No. SC06-1113 was dismissed for lack of jurisdiction in part and denied in part.
Rather than filing a single response to this Court’s show cause order or seeking leave to file supplemental responses, Thompson has filed, almost daily, multiple responses, petitions, and motions. In one of these filings, he references the “children’s picture book for adults” and reiterates that he “sent a pleading chocked full of pictures to illustrate his verbal points, since the Court seemed unable to grasp the words.” Thompson argues that no rule of procedure prohibits visual depictions in pleadings. Indeed, in this string of responses, he includes a visual depiction of John Hancock “who is reputed to have signed his name on the [Declaration of Independence] so that King George could read it without his spectacles.” Thompson misses the point. In addition to insulting the Court’s dignity, the picture-laden motion was admittedly repetitive of claims that had previously been raised, and Thompson had already been advised that he should wait to raise these claims on review of the referee’s report.

If you ask me, the attorney has gotten off lucky.

Mitchell H. Rubinstein

April 17, 2008 in Ethics | Permalink | Comments (0) | TrackBack (0)