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Presentation on theme: "RUMINATIONS ON ETHICS AND PROFESSIONALISM Part II ACFA CLEW 2012."— Presentation transcript:


2 PLAYERS Ed Lester Marshall Grodner

3 ETHICS Ethics Commission 20/20 Proposed Changes to Ethics Rules –Technology and Confidentiality –Technology and Client Development –Outsourcing/Mobility –Non-Lawyer Ownership

4 ETHICS AND CONFIDENTIALITY Screening -1.0(k) –Adds Electronic Information Competence –Must be aware of risks and benefits of email, social media, cloud computing and cloud storage Communication –Prompt – applies to email not just phone calls

5 TECHNOLOGY AND CONFIDENTIALITY Unauthorized and Inadvertent Disclosure –Three issues Hacking Unauthorized Personel “posting” Misdirected Email –Must take reasonable efforts to prevent Client may require more than lawyer Client may be required to consent to less than required –Privacy Law – may require more

6 TECHNOLOGY AND CLIENT CONFIDENTIALITY Inadvertent Disclosure – includes not only documents but also electronically stored information –email –electronic documents –metadata No resolution beyond return to sender

7 TECHNOLOGY AND CLIENT DEVELOPMENT Prospective Clients – Rule 1.8 –Now includes electronic communications (websites) –Prospective Client must have “reasonable expectation” Lawyer can limit “reasonable expectation” by –warnings or cautionary statements –must be clear and understandable –Eliminates “Taint Shopping”

8 TECHNOLOGY AND CLIENT DEVELOPMENT “Runners” v. “Marketers” –Allows for paying for leads (including internet based) as long as Generator not recommending lawyer Generator states it is being paid Generator states it has not analyzed the legal issue Statements must be consistent with Rule 7.1 Payment must not constitute unauthorized fee splitting

9 TECHNOLOGY AND CLIENT DEVELOPMENT Rule 7.3 – Direct Contact with Prospective Client –Automatically generated responses to internet searches ok Google Ads ok –Mere response to request for information ok

10 OUTSOURCING Labor –Need client’s consent –Must be competent –Not assist in UPL

11 OUTSOURCING Services –Title of Rule 5.3 changed from “Assistant” to “Assistance” Applies not only to labor but to services such as –Database management –Internet based storage (cloud computing) Lawyer needs to assure that outside vendor complies with lawyer’s confidentiality obligations May be necessary to disclose and obtain client consent.

12 UNIFORMITY/MOBILITY Practice Pending Admission –Also states that “systematic and continuous presence” can be virtual Admission by Motion Laterals –Allows limited disclosure of client confidences for use in conflict detection and resolution


14 NEW ABA FORMAL OPINIONS Changing Fee Arrangements During Representation –Ok if reasonable –Raise in rates ok if communicated –Basic nature changes must be caused by unanticipated change in circumstances

15 ABA FORMAL OPINIONS Duty to Protect the Confidentiality of E- mail Communications with One’s Client –Must warn if significant risk that a third-party will access –Ex. Advise client not to send attorney/client information via employer’s email

16 ABA FORMAL OPINIONS Duty when Layer Receives Copies of a Third Party’s E-mail Communications with Counsel –Ethical Rules do not require notification –Other rules may require disclosure Is allowed if these rules require –If no rule, up to the client, but lawyer must explain the implications and alternatives

17 ABA FORMAL OPINIONS Advising Clients Regarding Direct Contacts with Represented Persons –May assist client with the substance –Such assistance may not result in overreaching.

18 POTPOURRI You work in a small law firm with a practice that concentrates in estate planning. You have been approached by an Internet-based company that proposes to offer coupons that would entitle the buyer to an initial consultation and development of an estate plan with your firm at a discounted rate. The company would market the coupons and would receive the funds from the purchasers. It would then remit to you a percentage of the funds received one the services have been completed. Can you participate in such a plan?

19 POTPOURRI May a lawyer use an online system to store a client’s confidential information without violating the duty of confidentiality or any other duty? If so, what steps should the lawyer take to ensure that the information is sufficiently secure?

20 POTPOURRI May a lawyer view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network?

21 POTPOURRI May a lawyer offer a prize as an incentive to connect to the inquirer on social networking sites?

22 POTPOURRI The inquirer is a collection attorney who proposes to enter into a contract with a marketing firm. The firm would introduce the attorney to its network of doctors so that the attorney could seek collection work from those doctors. The attorney would prefer not to pay the firm a monthly fee, but rather to base the fee arrangements on “benchmarks and results.” Can the attorney pay the marketing company a fixed fee each time the company makes an introduction and sets up a meeting with a doctor? Can the attorney pay an additional fee to the marketing company if and when the doctor retains the attorney in a certain number of collection cases?

23 POTPOURRI May a lawyer answer legal questions in chat rooms or on other social media sites on the Internet? If so, may the lawyer also offer his or her legal services in the course of answering questions?

24 POTPOURRI When a lawyer jointly represents co- defendants in litigation pursuant to a validly obtained consent to the dual representation and to any future conflicts that might arise between the clients, and one client later revokes consent, may the lawyer continue to represent the non- revoking client?

25 POTPOURRI Lawyers admitted to practice in New York ask whether they may enter into a business relationship with a United Kingdom (“UK”) entity under the following circumstances. The UK entity would be formed as an Alternative Business Structure under the UK’s Legal Services Act, which permits entities with non-lawyer supervisors and owners to render legal services. The entity would include UK non- lawyers in supervisory and ownership positions, raise capital in private equity financing, and have a professional management team. The New York lawyers would establish a New York office, where they would represent New York clients. They would be employees of the UK entity and would hold stock options and, in some cases, vested shares in the UK entity. Lawyers in the New York office would adhere to confidentiality rules and would not share confidences with UK non-lawyer managers. The entity would adhere to UK rules as well.

26 POTPOURRI The inquiring lawyer asks whether a lawyer may accept as compensation for legal services a hybrid fee combining a reduction in the lawyer’s customary hourly time charges with an equity interest in the client or the client’s company.

27 POTPOURRI The inquirer is a member of a law firm that has formed a separate consulting entity that performs nonlegal services. He inquires whether the websites of the law firm and the separate consulting entity can link to each other. May a law firm’s website contain links to a website of a nonlegal consulting entity formed by the law firm? May the nonlegal consulting entity’s website contain links to the law firm’s website?

28 POTPOURRI The inquirer is a practicing attorney licensed in New York State. In addition, he is a “part-time associate broker with a small office of a nationally recognized real estate office.” Neither the inquirer nor any of his family members have any ownership interest in the real estate company. May a lawyer serve as a real estate broker for the buyer or seller and also serve as that party’s attorney at the closing? May a lawyer serve as a party’s attorney at a real estate closing if the lawyer is asked to handle the closing by a member of the lawyer’s real estate office who is serving as broker for one of the parties?

29 HYPOTHETICALS Twenty Questions - Maybe



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