April 26, 2017

Archives for April 6, 2016

Two Law Firm Hacks Should Be Scaring Your Firm Into Action

Editor’s Note: This post originally appeared on Stuart Teicher’s blog, “Keeping Lawyers Out of Trouble,” on April 4, 2016. Reprinted with permission.

Headshot-Stuart-TeicherBy Stuart Teicher

For years people have been warning that law firms of all sizes are major targets for cyber-criminals. If your firm didn’t take that seriously before, then there are two major hackings last week that should get your attention.

The Wall Street Journal reported that cyber criminals breached Cravath, Weil Gotshal, and several other unnamed firms (read the article here: http://on.wsj.com/1MzYlN2). The paper states that it’s not clear what (or whether) information was taken, but the focus is on the possibility of confidential information being stolen for purposes of insider trading.

The other major breach is so big that it has its own hashtag— search Twitter for #PanamaPapers or #PanamaLeaks.  According to Reuters, the target was a law firm in Panama who specializes in setting up offshore companies. Hackers stole data from the firm and provided that data to journalists who promptly revealed it to the public (read the article here: http://reut.rs/25GEy4X). The information allegedly reveals a network of offshore loans. According to the BBC, the stolen data reveals how the law firm, “has helped clients launder money, dodge sanctions and avoid tax” (read the BBC’s article here: http://www.bbc.com/news/world-35918844). Political figures and friends of popular politicians are allegedly implicated, according to the report.

My concern is not about the obvious political ramifications. My concern is about the ethical ramifications to lawyers. The danger of hacking is real.

No report has implicated any type of ethical wrongdoing on the part of any firm. That needs to be restated and made abundantly clear: there has been no report of any evidence of ethical impropriety by any of the law firms mentioned in the news. I am bringing this to your collective attention because it should serve as a warning. Confidential client information was stolen from that law firm in Panama… which reminds us that we are targets.

All lawyers are targets. Small firms, large firms, in-house counsel, government lawyers, you name it. The bad guys know that lawyers are the custodians of valuable information and they are coming after us in a big way. The message for all of us is clear: you could be subject to an ethics grievance if you don’t take proper steps to secure your clients’ information.

The responsibility to protect our client information is nothing new. However, these recent events require us apply an increased sense of urgency to evaluating our compliance with that duty. Have you, or your firm, taken the necessary steps to adequately protect your clients’ information? Have you considered the fact that bad guys could be targeting you? What steps have you taken to counteract the potential piracy that could be aimed at your clients’ information?

You could be darn sure that someone is going to be asking those questions to the firms that were targeted in the hacks. Maybe you need to put yourself in their position and ask, “how would we fare if that review was directed toward us?”

Our duty of competence requires that we take appropriate steps to protect our clients’ confidential information. And remember that you, as the lawyer, have the primary ethical duty, not your IT people. Furthermore, various ethics opinions have held that, in some circumstances, the lawyer needs to understand the underlying technology itself.

If these issues weren’t on the front burner in your office before, these two hacks should be causing you to shift your priorities.

Quickly.

 

Save the Date!

Stuart Teicher will be at the CLE offices on Thursday, September 8, 2016, to present two ethics programs. Registration is not yet open, but mark your calendars and don’t miss these important programs.

 

Stuart I. Teicher, Esq. is a professional legal educator who focuses on ethics law and writing instruction. A practicing attorney for over two decades, Stuart’s career is now dedicated to helping fellow attorneys survive the practice of law and thrive in the profession. Stuart teaches seminars and provides in-house training to law firms/legal departments.

Stuart helps attorneys get better at what they do (and enjoy the process) through his entertaining and educational CLE Performances. His expertise is in “Technethics,” a term Stuart coined that refers to the ethical issues in social networking and other technology. He also speaks about “Practical Ethics”– those lessons hidden in the ethics rules that enhance a lawyer’s practice. Stuart writes the blog “Keeping Lawyers Out of Trouble.”

Mr. Teicher is a Supreme Court appointee to the New Jersey District Ethics Committee where he investigates and prosecutes grievances filed against attorneys, an adjunct Professor of Law at Rutgers Law School in Camden, New Jersey where he teaches Professional Responsibility and an adjunct Professor at Rutgers University in New Brunswick where he teaches undergraduate writing courses. He is a member of the bar in New York, New Jersey and Pennsylvania. In 2014, he authored the book Navigating the Legal Ethics of Social Media and Technology (Thomson Reuters).

Residential Reconstruction Bill, Costs of District Health Agency Bill, and Bill Repealing Medicaid Claims Task Force Signed

On Tuesday, April 5, 2016, the governor signed three bills into law. To date, he has signed 73 bills into law this legislative session. The bills signed Tuesday include a bill to extend the time to complete residential reconstruction, a bill regarding the costs of district public health agencies, and a bill repealing the “Medicaid Clean Claims Task Force.” These three bills are summarized below.

  • SB 16-012 – Concerning the Authority of a Local Assessor to Grant Additional Time for a Landowner to Reconstruct Residential Improvements that were Destroyed by a Natural Cause, by Sen. Rollie Heath and Rep. Jonathan Singer. The bill allows residential property to maintain its property tax classification for an indefinite period of time if the county assessor finds the property owner is making a good faith effort to rebuild after a natural disaster.
  • SB 16-094 – Concerning the Shared Costs of a District Public Health Agency by the Counties in the District, by Sen. Larry Crowder and Rep. Ed Vigil. Currently, the largest county in a multi-county public health district must serve as treasurer and district costs must be apportioned based on population. The bill allows multi-county health districts with small populations more flexibility in choosing which county will act as treasurer and apportioning costs.
  • SB 16-127 – Concerning the Repeal of the “Medicaid Clean Claims Transparency and Uniformity Act,” by Sen. Jack Tate and Rep. Jeni James Arndt. The bill repeals the Medicaid Clean Claims Transparency and Uniformity Act, repeals all ongoing work of the Medicaid Clean Claims Task Force, and repeals the requirement that insurance companies bill using codes developed by the task force. Related statutory definitions are also repealed.

For a complete list of the governor’s 2016 legislative decisions, click here.

HB 16-1117: Requiring Recording of Certain Custodial Interrogations

On January 20, 2016, Reps. Daniel Kagan & Lori Saine and Sens. Irene Aguilar and John Cooke introduced HB 16-1117Concerning a Requirement That Custodial Interrogations Related to Investigations for Certain Serious Felonies Be Electronically Recorded. The bill was assigned to the House Judiciary Committee. It passed through that committee, amenb

This bill, if adopted, would require all law enforcement agencies to have audio-visual recording equipment available as well as policies and procedures in place for preserving custodial interrogations by January 1, 2017. Additionally, a peace officer must record the custodial interrogations occurring in a permanent detention facility if the peace officer’s investigation relates to a class 1 or 2 felony or a felony sexual assault.

The proposed bill would not require a peace officer to record the interrogation if:

  • The defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing;
  • The recording equipment fails;
  • The recording equipment is unavailable, either because of extraordinary circumstances or because the equipment is damaged;
  • Exigent circumstances related to public safety prevent recording; or
  • The interrogation takes place outside the State of Colorado.

Furthermore, the bill proposes that a court may admit evidence from a custodial interrogation that has not been recorded. If the prosecution, when offering evidence from an unrecorded interrogation, can show by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, however, the court shall issue a cautionary instruction to the jury after admitting the evidence.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1077: Recreating the Statutory Revisions Committee

On January 13, 2016, Rep. Dominick Moreno and Sen. Beth Martinez Humenik introduced HB 16-1077Concerning the Recreation of the Statutory Revision Committee. The bill was assigned to the House State, Veterans, & Military Affairs Committee. It passed out of that committee with amendments and was referred to Appropriations.

When the statutory revision committee was created in 1977, it was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. This bill proposes to recreate the committee, which was repealed in 1985.

The recreated committee would be comprised of 8 members. The majority and minority party leaders of each chamber of the general assembly would appoint two members for each party. The bill also proposes that the committee be staffed by the office of legislative legal services.

The committee would be charged with many responsibilities, including: (1) making an ongoing investigation of the common law, statutes of the state, and current judicial decisions for the purpose of discovering defects and errors in the law and recommending needed reforms; (2) receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and errors in the law; (3) recommending legislation, if needed, to effect such changes in the law as it deems necessary in order to modify or eliminate outdated, redundant, or contradictory laws; and (4) occasionally reporting its findings and recommendations to the committee on legal services and annually to the general assembly.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Unpublished Opinions, 4/5/2016

On Tuesday, April 5, 2016, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Tuffa v. Flight Services & Systems, Inc.

Stine v. Oliver

Gilyard v. Chrisman

United States v. Tubens

United States v. Dozal

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.