ORC EL&LG Group Ethics Update February 10, 2012

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1 Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work ORC EL&LG Group Ethics Update February 10, 2012 Presented by: Chris Mills Phone: (908) Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego Phone San (zzz) Francisco zzz-zzzz Tampa Washington, DC

2 Secrecy Clauses on Plaintiff s Counsel in Settlement Agreements Recurring issue with new Internet age implications Web sites reporting on results of suits Press releases successful settlement Blogs NH Ethics Committee Opinion /6 Published 10/12/11 Restrictions unethical if they interfere with lawyer s practice or future representations

3 Secrecy Restrictions Implicates Model Rule 5.6(b); Violation if: Bans disclosure of publicly available information on case Has effect of restricting attorney s right to practice Limits public s ability to identify qualified legal counsel

4 Restricting Plaintiffs Counsel s Disclosures Can t ban disclosure of fact that attorney had sued a particular company Limits public s ability to identify most experienced attorney as to subject area Can t ban discussion of published epidemiological study used in case Limits attorney from discussing study while representing future clients BUT COULD prevent attorney from disclosing how many times company has been sued, even if that number is publicly available Doesn t impair attorney s ability to rep. future clients or public s ability to identify experienced counsel

5 Restrictions on Counsel s Disclosures Cites other Ethics Opinions approving/rejecting confidentiality ABA 2000: May restrict disclosure of case facts and terms of settlement DC 2006: Can t ban disclosure of information in public record NY State 2000: Can t ask lawyer not to disclose information he has no duty to protect

6 Some Do s & Don ts Don t get greedy Can t prohibit firms from suing you again Confidentiality of existence and terms of settlement might be enough Verdicts/entries of judgment may be public Beware getting creative Retaining plaintiffs counsel for special advisory role to conflict them out in future Check local Court Rules for permitted Confidentiality provisions

7 Another Discovery Opinion Hanson v. First National Bank, No. 5: (S.D.W.Va. 10/31/11) Civil RICO suit Plaintiff seeks discovery of s Communications between Bank s former President/COO and his criminal lawyer Used Bank s system Bank maintained detailed Computers, Electronic Mail, and Voice Mail Usage Policy

8 Legal Standard Applied Court cites In re Asia Global Crossing, Inc. (Bankruptcy SDNY 2005) Four-factor test Other courts have adopted it Does employer have policy banning personal use of computers? Does employer monitor employees computer use? Do 3 rd parties have right of access to employees computers & s? Were employees notified or aware of the employer s use and monitoring policy?

9 Discovery Ruling Employer didn t absolutely prohibit personal use incidental and occasional use permitted No evidence employer actually monitored, but reservation of right to do so sufficed Policy mentioned designated representatives having access to monitor so 3 rd parties would have access No dispute the President knew about policy

10 Discovery of Check out First National Bank s policy nicely done for a moderate/small company Banning all personal use simply not practicable Try to persuade IT to do at least a modicum of monitoring Check whether you re securing agreement and acknowledgment of your policy

11 Can You Direct/Assist Your Clients to Contact a Represented Plaintiff? ABA Opinion (9/28/11) discussed last meeting Lawyers may suggest, provide script for, coach client in making the contact Heavily Criticized ABA Committee taking another look at it Head of Minnesota Lawyer Prof. Resp. Bd. says it would be rejected in MN

12 Ethical Issues in Use of Cloud Data Storage Cloud Storage all the rage icloud for Macs and ipads Dropbox for ios devices Technical term: Software as a Service, or SaaS Data stored on an off-site server owned by third party vendor Iowa SBA Comm. On Ethics and Practice Guildelines, Op (9/9/11)

13 Using Cloud Storage for Privileged Data Are lawyers who use Cloud taking reasonable precautions so that client information does not fall into the hands of unintended recipients? Iowa RPC 32:1.6 No extraordinary security measures required if the method of communication affords a reasonable expectation of privacy

14 Cloud Computing Storage OK IF Lawyers should address 3 issues before storing client data in the Cloud Access Data Protection Due Diligence Access generally not issue for in-house counsel Data Protection questions to ask Are passwords required? Can some data have higher level security? Who will have access to passwords? Is there any way the public can access the data? If non-clients are permitted to access some of the data, do they gain access to all of it?

15 Due Diligence In Using Cloud Storage Need technical knowledge and familiarity with RPCs Review the EULA Restrictions on company s liability/damages? Does the EULA grant them rights to lawyer s data?

16 Other States Rules on Cloud Storage Alabama: OK if lawyer stays abreast of security safeguards and monitors providers methods of protecting data Nevada: OK if firm selects provider with care and it promises to keep the information confidential NJ: OK if service has enforceable obligation to protect files and uses proper technology

17 States On Cloud Computing NY: Opinion refers to backup file storage system; OK to use if lawyer ensures provider has obligation to preserve confidentiality and uses available technology PA: Specifically OKs smart phones synchronized through the cloud to remotely access data

18 Internal Investigations and Upjohn Warnings Need to give equivalent of Miranda Warning to witnesses interviewed by inhouse counsel Give warning verbally but document Written warning may spook: the witness Want to be able to persuade a court that not even an implied attorney-client relationship was formed

19 Introduction I am in-house counsel for XYZ Corporation and I am representing the interests of XYZ in connection with [subject matter of investigation] As part of my job for XYZ, I m gathering information from employees like you to assist me in providing legal advice to the company. I need to ask you some questions about this matter.

20 Upjohn Warning My conversation with you will be protected by the company s attorney-client privilege. This means I ll keep it confidential unless the company tells me to do otherwise. The privilege that covers our conversation belongs to and is controlled by the company. I ll be free to tell the company what I learn from you today. The company can decide, on its own and without checking with you, to waive the privilege, make the information public, or give the information from our conversation today to other people, including potentially to government agencies.

21 Should I get my own lawyer? As I said before, I m the company s lawyer. I can t give you legal advice and that includes telling you whether you should or should not retain your own lawyer. That s got to be up to you.

22 I don t think I want to talk with you at all. As you should know, under the corporate policy of XYZ, all employees are expected to cooperate in company investigations, including speaking with us and answering my questions. If you do not cooperate and answer my questions, XYZ may take disciplinary action against you. This could take various forms, including terminating your employment. Now that you know this, please decide: are you refusing to speak with me about the company s investigation [whatever] matter?

23 I want a lawyer and I won t talk further until I can have my lawyer with me. Do you agree and adjourn until he gets lawyered-up? Do you use the script from the previous slide threaten discipline if he doesn t answer questions, even without representation?

24 Confidentiality Instruction Finally I ask that you not discuss with other people what you and I talk about today. Please do not share our conversation with anyone else, including other employees. Doing so could jeopardize the investigation and violate company policy, resulting in disciplinary action against you.

25 Are you telling me I can t talk to my lawyer about what we discussed? Gotcha

26 I m not talking to you unless I have my own lawyer with me. Employer choice May depend on the role of employee being interviewed Pros Equivalent of free and early discovery Won t look like you re indifferent to the facts You and employee s lawyer may run afoul of lawyer as witness rule plaintiff s lawyer could be disqualified Cons Employee is lawyered-up and chance of good admissions is zilch Lawyer as witness rule may apply, but probably hire outside counsel for trial anyway

27 Ghost-Writing for Pro Se s Pro Se litigant s papers look too good Employer might actually like to have a lawyer in the case Don t want the pro se to get the benefit of the doubt Is it unethical to ghost-write for a pro se and stay completely in the background?

28 Ghost-Writing Lawyers Joint Phil./PA Bar Ass n Op /100 (Dec. 2011) Limited Engagement not necessarily prohibited Second Circuit recently (11/22/11) issued opinion approving ghost writing Conflicts with 1 st Circuit (1971 opinion) & 10 th Circuit (2001 opinion) & ED Va (2011)

29 Lawyers as Ghost-Writers Flash Points or Problem Areas Pro Se affirmatively tells court no one has helped him dishonesty attributed to lawyer Attorney withdraws but continues in the background Approving cases say litigant doesn t really gain advantage through ghost-writing If lawyer provides effective assistance, court will recognize ghost-written pleadings and won t cut the pro se as much slack If assistance isn t effective, pro se hasn t secured any advantage

30 Beware How You Try to Evade Traffic Tickets In re Dear, NY App. Div. 12/8/11 NY lawyer stopped for speeding (84 in a 55) in NJ Writes letter to court asking for charges to be dismissed and accusing officer of Refusing to show evidence supporting speeding Calling him Jew Kike and cooking up the speeding incident Letter advises that lawyer will be representing himself But the stop had been recorded by a camera and recorded through microphone on officer s uniform No slurs were ever uttered

31 Lawyer s False Claim of Ethnic Slur NJSP put Internal Affairs on investigation and they interview lawyer sticks to story Disciplinary complaint filed over false accusation Lawyer s Answer admits no ethnic slur but claims offensive attitude/demeanor Now claims he told lawyer he was speeding because pregnant wife had to get to toilet Lawyer deposed by Ethics Counsel Recants, admits he d lied but claims he stuck to the story out of fear of perjury charge

32 6-Month Suspension for False Claim Referee and App. Div agree on 6-month suspension Lies could have devastated officer s career He did it only to gain advantage in traffic court Defenses/excuses that didn t work He was sorry He was young He was under personal & financial stress Psychiatrist had been treating him for behavioral issues and testified for him

33 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work Thank You Presented by: Chris Mills Phone: (908) Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego Phone San (zzz) Francisco zzz-zzzz Tampa Washington, DC

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