December 11, 2016

Privileges and Confidentiality in the Attorney-Client Relationship

EthicsConfidentiality is one of the cornerstones of the attorney-client relationship. It allows clients to feel comfortable discussing sensitive issues with their attorney without fear of disclosure. Colorado Rule of Professional Conduct 1.6 provides, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted [in certain enumerated circumstances].” The counterpoint to this is the privilege that protects attorney-client communications. The attorney-client privilege in Colorado is governed by C.R.S. § 13-90-107(1)(b), which states, “An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment.”

These seemingly straight-forward rules have many nuances, including the scope of confidentiality versus the attorney-client privilege, the lawyer’s responsibility to reveal information to prevent a client’s misconduct, the lawyer as witness, the lawyer’s duty to prevent the disclosure of client information, and the extension of the attorney-client privilege to others in the attorney’s office.

The Colorado Bar Association Ethics Committee has tackled some of these issues in Formal Opinion 108, “Inadvertent Disclosure of Privileged or Confidential Documents,” and Formal Opinion 90, “Preservation of Client Confidences in View of Modern Communications.” As this guidance suggests, attorneys must always be aware of when issues of privileges and confidentiality may arise in their practices.

At 8:30 am on Wednesday, December 14, 2016, attorney John Palmeri will discuss the intricacies of privileges and confidentiality in one-hour CLE program co-sponsored by the CBA Lawyers Professional Liability Committee. Attendees will also receive a copy of Mr. Palmeri’s chapter inLawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

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CLE Program: Privileges and Confidentiality

This CLE presentation will occur on December 14, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Rule Change 2016(12) Released, Amending the Colorado Rules of Professional Conduct

On Thursday, December 1, 2016, the Colorado Supreme Court issued Rule Change 2016(12), amending the Comment to Rule 2.1 of the Colorado Rules of Professional Conduct. Comment [2] of Rule 2.1, “Advisor,” was changed by the addition of a sentence regarding allocations of parental responsibilities:

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. In a matter involving the allocation of parental rights and responsibilities, a lawyer should consider advising the client that parental conflict can have a significant adverse effect on minor children. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

For the full text of Rule Change 2016(12), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Candor to the Tribunal and the Duty of Confidentiality: How to Broach This Ethical Pitfall

qtq80-uSztbKRule 3.3 of the Colorado Rules of Professional Conduct provides that a lawyer shall not “make a false statement of material 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” or “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” But what exactly does this mean in the everyday practice of attorneys in Colorado?

Suppose the lawyer faces a client who intends to give false testimony or who refuses to correct a misstatement. What is material? May or must the lawyer withdraw from representation? Must the lawyer take further remedial measures? What must the lawyer do in an ex parte situation? In sum, how must the lawyer balance his or her duties to the client (particularly the attorney-client privilege) and the tribunal?

The Colorado Bar Association Ethics Committee addressed these questions in Formal Opinion 123, “Candor to the Tribunal and Remedial Issues in Civil Proceedings.” Opinion 123 requires the attorney to first remonstrate with the client. If that is unsuccessful, the attorney may be required to withdraw from representation. As a final measure, the attorney may make disclosure to the tribunal under certain circumstances. However, “the disclosure to remedy such a false statement must be limited to the extent reasonably necessary to achieve such ends and must be made in the manner that is the least harmful to the client while satisfying the commands of Colo. RPC 3.3.”

At noon on Tuesday, December 6, 2016, attorney Paul Gordon will delve into the intricacies involved with Colo. RPC 3.3 in a timely one-hour CLE. Mr. Gordon will bring his expertise in representing plaintiffs in malpractice claims against lawyers throughout the United States. Attendees will also receive a copy of Mr. Gordon’s chapter in Lawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

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CLE Program: Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings

This CLE presentation will occur on December 6, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from noon to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Judicial Ethics Advisory Board Releases Two New Opinions

On Monday, November 14, 2016, the Colorado Judicial Ethics Advisory Board released two new opinions.

CJEAB Opinion 2016-02 answers a judge’s question regarding whether Opinion 2007-07 remains effective in light of the repeal and reenactment of the Colorado Code of Judicial Conduct, and whether the judge may serve on the board of directors for the Joint Initiatives for Youth and Families of the Pikes Peak Region, since the operation of the board of directors has changed. The Judicial Ethics Advisory Board evaluated Opinion 2007-07 and determined it was no longer applicable, consequently withdrawing the opinion. The Judicial Ethics Advisory Board then concluded that a judge may serve on the board of directors of the Joint Initiatives for Youth and Families of the Pikes Peak Region, even if the board engages in legislative advocacy benefitting children and families, provided that doing so would not lead to his frequent disqualification or otherwise interfere with his ability to perform his judicial duties.  The judge must ensure that his activities as a board member do not undermine his impartiality, give rise to the appearance of impropriety, or violate other provisions of the Code.

CJEAB Opinion 2016-03 answers a judge’s question regarding whether it is permissible for him to sit on the Board of Trustees of the Colorado PERA. The Judicial Ethics Advisory Board determined that a judge elected to sit on the Board of Trustees of Colorado PERA should abstain from participating as a panelist in PERA’s administrative hearing process because such participation constitutes arbitration or another judicial function outside of a judge’s official duties and violates the Code of Judicial Conduct.

For all of the Colorado Judicial Ethics Advisory Board opinions, click here.

Inadvertent Disclosure — Damage Control, Recipient Requirements, and More

EthicsInadvertent disclosure of privileged or confidential information is not a new problem for attorneys. However, email and the electronic age have widened the scope of inadvertent disclosure. What happens when you use your email’s auto-fill feature and accidentally fill opposing counsel’s name instead of your client’s? How about when you hit “Reply All” instead of only replying to one party, or when you reply instead of forwarding? These problems are the stuff of nightmares.

To address the problems created by inadvertent disclosure of privileged or confidential information, the Colorado Bar Association Ethics Committee created Formal Opinion 108, adopted on May 20, 2000. Formal Opinion 108 contemplates that a lawyer who receives documents (“receiving lawyer”) from an adverse party or an adverse party’s lawyer (“sending lawyer”) has an ethical duty to disclose the receipt of the privileged or confidential documents to the sending lawyer. If the receiving lawyer realizes the inadvertence of the disclosure before examining the documents, the receiving lawyer has a duty to not examine the documents and follow the sending lawyer’s directions regarding disposal or return of the documents.

In 2008, the Colorado Supreme Court repealed and reenacted the Colorado Rules of Professional Conduct. Rule 4.4(b) provides that “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Rule 4.4(b) applies to situations in which the sending lawyer accidentally provides privileged or confidential information to the receiving lawyer, such as when someone hits “Reply All” instead of forwarding to the client.

Rule 4.4(c) addresses a far less common scenario, when the sending lawyer realizes the disclosure prior to receipt by the receiving lawyer and contacts the receiving lawyer before the privileged or confidential information is viewed. Rule 4.4(c) requires the receiving lawyer to “abide by the sender’s instructions as to its disposition.” Comments [2] and [3] to Rule 4.4 expand on the receiving lawyer’s duties, including providing that as a matter of professional courtesy the receiving lawyer may inform the sending lawyer of the inadvertent disclosure.

Colorado Rule of Civil Procedure 26(b)(5)(B) also addresses inadvertent disclosure. C.R.C.P. 26(b)(5)(B) imposes on the receiving lawyer a mandatory prohibition on review, use, or disclosure of the information until the privilege claim is resolved, if the sending lawyer informs the receiving lawyer of the inadvertent disclosure. C.R.C.P. 26(b)(5)(B) differs slightly from Fed. R. Civ. P. 26(b)(5)(B); lawyers who practice in both federal and state courts should familiarize themselves with the different rules.

On Monday, November 28, 2016, attorney Cecil E. Morris, Jr., will deliver a lunchtime presentation on inadvertent disclosure, which is available for one general CLE credit and one ethics credit. This program is a great way to learn about what to do in case you inadvertently disclose confidential or privileged information, and also what to do if you receive information inadvertently disclosed. Cecil will discuss the differences between the federal and state rules, and will also address the substantive areas of law most affected by inadvertent disclosure. Register here or by clicking the links below.

 

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CLE Program: Inadvertent Disclosure – Professional Liability Series

This CLE presentation will occur on November 28, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Rule Change 2016(11) Adopted, Amending Colorado Rules of Professional Conduct

On Thursday, November 3, 2016, the Colorado Supreme Court adopted Rule Change 2016(11), affecting the Colorado Rules of Professional Conduct. The rules affected are Rule 1.15A, “General Duties of Lawyers Regarding Property of Clients and Third Parties,” Rule 1.15B, “Account Requirements,” and Rule 1.15D, “Required Records.”

A new comment [7] was added to Rule 1.15A to define “reasonable efforts” to find owners of property and explain that it is context-specific. The comment lists several potential scenarios and what would constitute “reasonable efforts” in those cases.

Rule 1.15B was changed by the addition of subsection (k), which also addresses procedures a lawyer should follow when he or she has unclaimed funds in his or her COLTAF account.

Rule 1.15D was changed by the addition of a new subsection (a)(1)(C), which specifies procedures for remitting unclaimed funds to COLTAF.

For a redline and clean version of the rule change, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Ask the Experts: Why Do Lawyers Get Sued?

EthicsThe ABA Standing Committee on Lawyers’ Professional Liability compiled a comprehensive Profile of Legal Malpractice Claims, evaluating claims from 2008 through 2011. According to the Committee’s report, real estate lawyers held the dubious honor of having the highest percentage of malpractice claims, followed by family law, trust and estate, and personal injury law. Forty-five percent of all malpractice claims were filed due to substantive errors, like failure to know or properly apply the law, discovery errors, procedural choice errors, missing deadlines, and conflicts of interest. Administrative errors counted for the second-highest reason for claims, including procrastination in performance or follow-up (read: not returning phone calls), lost files, calendaring errors, and other clerical errors. Together, nearly three-quarters of all legal malpractice claims filed during the Committee’s study period were due to errors. That is a frightening statistic.

One way to avoid becoming the subject of a malpractice claim is to choose clients carefully. Everyone has experienced “problem” clients—clients who won’t leave you alone, who lack the ability to pay, and who seem to criticize your every move. Attorney Sally Field (no relation to the actress) compiled a list of the top ten warning signs for problem clients:

  1. Clients who want to change lawyers in the middle of the case;
  2. Clients who trash the lawyer they just left;
  3. Clients who are reluctant to answer basic questions;
  4. Clients who are overly opinionated about the law without justification;
  5. Clients who have unreasonable expectations;
  6. Clients who micromanage everything;
  7. Clients who won’t let you end an excessively long initial client interview;
  8. Clients who want to exact revenge or punishment through the legal system;
  9. Clients who make negative comments about judges, courts, and the judicial system; and
  10. Companies with unusually high turnover of key staff or unusual corporate structures.

Bottom line? Many potential malpractice claims can be avoided by refusing to represent those clients who seem like trouble from the outset. Avoiding mistakes is helpful, too.

Sally Field, along with John Palmeri, will discuss common reasons for lawyer malpractice lawsuits in a panel discussion moderated by Heather Kelly. Join us for this interesting and informative breakfast CLE on Tuesday, September 27, 2016. Call (303) 860-0608 to register, or click the links below.

 

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CLE Program: Why Lawyers Get Sued

This CLE presentation will occur on September 27, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

ABA Model Rule of Professional Conduct 8.4 Amended to Prohibit Discrimination

ABAOn Monday, August 8, 2016, the ABA announced that the ABA House of Delegates passed a resolution to amend Model Rule 8.4 in order to bring into the black letter of the rule an express prohibition against discriminatory conduct in the practice of law.

Revised Resolution 109 amended subparagraph (g) of Model Rule 8.4 as follows:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination harass or discriminate 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 Rule 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.

Additionally, the Comment to the Model Rule was amended as follows:

[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct,  bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation  or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the  administration of justice. Legitimate advocacy respecting the foregoing factors does not violate  paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a  discriminatory basis does not alone establish a violation of this rule.

[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 because of their membership or  perceived membership in one or more of the groups listed in paragraph (g). Harassment includes  sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups. 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. Paragraph (g) does not prohibit conduct undertaken to promote diversity. 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.

[5] Paragraph (g) does not prohibit legitimate advocacy that is material and relevant to factual or legal issues or arguments in a representation. 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).

The remaining comments were renumbered.

The ABA Model Rules Committee considered the changes a “necessary and significant first step to address the issues of bias, prejudice, discrimination and harassment in the Model Rules,” but noted that it is only the first step in a multi-disciplinary effort to provide access to justice.

The chair of the ABA Standing Committee on the Model Rules, Myles V. Lynk of Arizona, noted that 25 jurisdictions across the country have enacted similar language. Over 70 lawyers signed up to speak in support of the changes, while none spoke in opposition. Only a few members of the House of Delegates voted “no” in a voice vote.

For the complete text of the ABA Resolution, click here.

New and Revised Ethics Opinions Address Unbundling, Missing Clients

The Colorado Bar Association’s Ethics Committee has released Formal Opinion 128, addressing missing clients, and has revised Formal Opinion 101, addressing unbundling of legal services. Formal Opinion 128, “Ethical Duties of Lawyer Who Cannot Contact Client,” addresses situations where a client disappears at some time during the representation, or situations where a lawyer is retained by an insurance company to represent an insured but cannot locate the client. The CBA Ethics Committee opines that the lawyer should continue to act on behalf of the client in order to preserve legal rights, as long as the actions do not conflict with other ethical rules. The Committee also notes that the lawyer should take reasonable steps to locate the missing client.

Formal Opinion 101, “Unbundled Legal Services,” was revised by the Ethics Committee and reenacted as a new opinion. Formal Opinion 101 addresses unbundled legal services, where a lawyer undertakes part of the representation for a client but does not provide full services, such as in situations where a client cannot afford the full range of legal services but retains a lawyer to “ghostwrite” pleadings. The Ethics Committee incorporated the changes to Colo. RPC 1.2(c), which rule specifically allows limited representation, and the amendments to C.R.C.P. 11(b) and 311(b), which allow “ghostwriting” of pleadings. The opinion discusses the rule changes and their significance to lawyers in limited representations.

These rules and more will be discussed at CBA-CLE on July 26, 2016, at a breakfast program: “Ethics Rules Changes – Effective April 6, 2016.” Speakers Marcy Glenn, David Stark, and Jamie Sudler will discuss the new and revised rules and their implications for practitioners. Click the links below to register, or call (303) 860-0608.

 

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CLE Program: Ethics Rules Changes — Effective April 6, 2016

This CLE presentation will occur on July 26, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:50 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Supreme Court: Disclosed Costs Can Be Actionable Under CCPA if Costs Are Not Actual, Necessary, and Reasonable

The Colorado Supreme Court issued its opinion in State v. The Castle Law Group, LLC on Monday, July 5, 2016.

In this C.A.R. 21 original proceeding, the State appealed from the trial court’s order barring testimony of market rate prices. The State brought CCPA claims against Castle and several affiliated vendors, alleging that the vendors conspired with Castle to charge above market rate prices for various foreclosure-related services, and the inflated charges were eventually carried by mortgage servicers and the public because they relied on Castle’s representation that the costs were “actual, necessary, and reasonable.”

The trial court limited the State’s ability to provide market rate comparisons because it ruled that charging high prices is not illegal, and as long as Castle disclosed everything it charged, there was no deception. The Colorado Supreme Court disagreed with the trial court’s characterization of the CCPA claims. The court ruled that the trial court misperceived the alleged deception: that the prices charged were not “actual, necessary, and reasonable.” Because market rate comparison evidence directly impacts the determination of whether the charges were “actual, necessary, and reasonable,” the supreme court made its Order to Show Cause absolute and remanded to the trial court for further proceedings.

The Ethical Danger of the Microsoft/LinkedIn Merger

Editor’s Note: This post originally appeared on Stuart Teicher’s blog, “Keeping Lawyers Out of Trouble,” on June 16, 2016. Reprinted with permission.

Headshot-Stuart-TeicherBy Stuart Teicher

This week it was announced that Microsoft is buying LinkedIn. There are some hidden attorney ethics implications about which we all need to be aware.

A review of the recent news articles announcing the acquisition reveals that a key motivating factor in Microsoft’s purchase of LinkedIn was access to LinkedIn’s data.  Of course, sharing data is nothing new. But when companies improve their ability to share our data across various platforms, my ears perk up. Not just because it’s creepy or because of obvious privacy implications. The type of data sharing they’re contemplating in the Microsoft/LinkedIn combination makes me worry about confidentiality (and other) issues.

Why they are merging:

According to the Wall Street Journal, Microsoft sees a critical synergy with LinkedIn:

“LinkedIn’s users are, arguably, Microsoft’s core demographic. They also offer Microsoft something it has long sought but never had—a network with which users identify. Microsoft needs to persuade LinkedIn users to adopt that identity, and use it across as many Microsoft products as possible.

Access to those users, as well as the enormous amounts of data they throw off, could yield insights and products within Microsoft that allow it to monetize its investment in LinkedIn in ways that the professional networking site might not be able to. [Microsoft CEO] Mr. Nadella already has mentioned a few of these, including going into a sales meeting armed with the bios of participants, and getting a feed of potential experts from LinkedIn whenever Office notices you’re working on a relevant task.“

In other words, Microsoft wants to have your Outlook and other Microsoft software products speak to your LinkedIn profile. The intersection of that data is valuable—various sellers of products and services would be willing to pay for it.

It appears that Microsoft wants to be able to read through the work we do on their products like Word, review our upcoming appointments in our Outlook calendar, search for keywords in our emails, and then find connections with people with our LinkedIn connections. That’s what they are searching for—connections they could monetize.

For instance, let’s say accountant X has an Outlook Calendar appointment which sets a meeting with “Charles McKenna of Account-Soft Corp.” Microsoft could then search LinkedIn and it would learn that McKenna works for a company that sells workflow management software. Well, now Microsoft knows the accountant is in the market for workflow management software… and they could sell that knowledge to other software companies who would then direct solicitations in the accountant’s direction. That’s an annoyance for an accountant, but a potential ethics disaster if he/she were a lawyer.

Basic issue, Confidentiality:

If Microsoft scours our Word documents and emails, then there could be Rule 1.6 confidentiality issues.  That’s so obvious that we don’t need to spend time talking about it now. I think the more unusual issues come from the Calendar function…

If they leverage the data in our Calendar, it could reveal our client relationships:

The substance of what we learn from the client is confidential, but so is the very existence of the lawyer-client relationship. Will the integration of these platforms make it easier for people to figure out who we represent?

Think about how much information Microsoft could piece together from our Calendar. They might see a potential client introduction (which lists Pete Smith as present), a court appearance (which lists Pete Smith as present), and a meeting for settlement purposes (which lists Pete Smith as present). It’s not going to be too tough for the Microsoft bots to figure out that Pete Smith is your client.

If they leverage data in our Calendar, it could reveal key substantive information that could harm the client:

If Microsoft looks at our Calendar they can see that we’re heading to a particular locale. They might then cross reference our LinkedIn connections and send a message to one of them that says something like, “Your connection Bruce Kramer is going to Chicago next week. Why don’t you look him up?”

That heads-up might give someone the incentive to look into our movements a bit more… and who knows what they could find. What if that info was given to a real estate agent that we know in Chicago… and maybe we are representing a successful land owner… and we’re clandestinely scouting a real estate purchase because we don’t want people to figure out that we’re there on behalf of our deep-pocketed client… because if they know, the purchaser will run up the price. That LinkedIn message tipped off the real estate agent and it could cost the client a lot of money.

If they leverage data in our Calendar, it could end up revealing a misrepresentation:

Imagine that Client A asks you to accompany them to a meeting in Los Angeles. You tell her that you can’t go because you’ll be on vacation on the East Coast. That’s not true, however. The truth is that you’ve already scheduled a meeting with a potentially new client in Los Angeles. You didn’t want Client A to know that you’d be in town because you didn’t want to have to shuffle between clients—it would just be too much work. You could have told Client A that you’d be in town but you didn’t have time to meet her, but you thought she’d be insulted. It was just easier to say you’re far away and be done with it.

Later, Client A gets a LinkedIn message that says, “Your Connection Mary Smith is going to be in Los Angeles next weekend… send her a message and try to link up!” Do you know what you are now? Busted. And not only do you have egg on your face, but you may also have committed an ethical violation.

Is the white lie that you told your client going to be considered a misrepresentation or deception per Rule 8.4(c)? That rule states: “It is professional misconduct for a lawyer to (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…”

I know what you’re thinking… it was a half-truth. No harm no foul. Well, I searched the ethics code, and I didn’t find the term “white lie” or “half-truth” anywhere in the code. You should also note that Rule 8.4(c) does not require that the misrepresentation be “material.” It doesn’t allow you to lie about inconsequential things and there’s no modifying language- it just says that you can’t lie or deceive.

These are just a few issues. Some of these are clear ethics concerns, others are more akin to PR nightmares. Are they so terrible that we all need to get off LinkedIn right away? That might be a bit premature. After all, they only just announced the merging of the platforms- they haven’t actually done anything yet. I don’t know what dangers will actually be realized, or whether any dangers will be realized at all. What I do know is that part of being a responsible attorney in this technological age is to be diligent in thinking about these issues. As lawyers practicing in an ever-changing technological environment, we need to be aware of the potential problems. Keep your eye on the news and stay abreast about the details regarding the integration of these two platforms. Then, if you determine that you need to act, do so.  That way we are “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Comment [8], Rule 1.1.

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).

Colorado Supreme Court: Ethical Prohibition on Paying Witness Contingent Fee Does Not Require Exclusion of Evidence

The Colorado Supreme Court issued its opinion in Murray v. Just In Case Business Lighthouse, LLC on Monday, June 20, 2016.

Contingent Fees for Witnesses—Summary Witness Testimony—Summary Exhibits.

The Supreme Court held that the violation of an ethical rule does not displace the rules of evidence and that trial courts retain the discretion under CRE 403 to exclude the testimony of improperly compensated witnesses. The Court also held that trial courts may allow summary witness testimony if they determine that the evidence is sufficiently complex and voluminous that a summary witness would assist the trier of fact. It further held that in those circumstances, summary witnesses may satisfy CRE 602’s personal knowledge requirement by examining the underlying documentary evidence on which they based their summary testimony. Finally, the Court held that that under CRE 1006, trial courts abuse their discretion when they admit summary charts that characterize evidence in an argumentative fashion rather than simply organize it in a manner helpful to the trier of fact. The Court reversed the Court of Appeals’ holding remanding the case to the trial court, but affirmed on all other issues.

Summary provided courtesy of The Colorado Lawyer.