May 24, 2013

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Colorado Supreme Court: Attorney Did Not Owe Medical Providers the Duties of Fiduciary to Give Rise to Tort Liability for Failure to Disburse Money from COLTAF

June 26, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Accident and Injury Medical Specialists, P.C. v. Mintz on June 25, 2012.

Colo. RPC 1.15—Attorney’s Fiduciary Duties as Trustee of COLTAF Account.

The Supreme Court held that the medical providers in this case may not maintain a breach of fiduciary duty tort action against attorney David Mintz based on his obligations as trustee of a COLTAF account. Although Mintz may have had ethical or contractual obligations to disburse money his clients owed to the providers, Mintz did not owe the medical providers the duties of a fiduciary that give rise to tort liability. The judgment of the court of appeals was affirmed.

Summary and full case available here.

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Law Firms and Small Businesses: Protecting Security Interests (Part 1)

June 14, 2012 by 1 Comment

Editor’s Note: This is the first in a two-part series of cyber security articles. Part two can be found here.

Is there anything more financially fragile than a small business in the U.S. today? As we climb out of the Great Recession, many of the surviving small businesses were forced to cut corners, often making compromises on the IT side. Combine this with an unprecedented rise in cyber crime that took the 2011 U.S. cost of security breaches to $32 billion, and one can easily predict the future security troubles of many small businesses.

As legal, and sometimes operational and financial, advisers to small businesses, law offices should be more aware than ever of the security risks to small business clients, understand how to mitigate these risks, and lend support when a security breach occurs.

These considerations are also important for attorneys to make regarding their own online presence and security risks, especially solo/small firm practitioners.

While I can’t cover IT security in its entirety here, I’ll touch on three areas, each of which should give you an idea of security troubles ahead and what you might be doing to anticipate these troubles:

  1. Professional and financial liabilities
  2. Reasonable contractual expectations
  3. Responses after a breach

To set the stage for my thoughts on the advice and support a law office might provide to small businesses, consider for themselves, or at least be aware of, let me start by sharing a few details of my background. I am the managing partner of 403 Web Security, a web application security company, and WDDinc, a software development firm with close to 20 years of developing software, much of it for small businesses. While I am not a legal expert, I have seen more than my share of software related contracts and have a firsthand view of the risks these organizations place themselves under.

For the sake of simplicity and to take full advantage of my experience, I’ll limit my notes to web application security – more commonly known as security within small business web sites.

Professional and Financial Liabilities

Without hesitation, I can say that the vast majority of small businesses not only have inadequate security protections in place, but also are oblivious to the fact they are security risks. Even worse, recent headlined security breaches of high-profile companies seem to engender only a misguided belief that they are immune from security attacks because they are small fish in a huge ocean.

The truth is, not only are small businesses not immune from attack, they are prime targets because of their lack of security. Consider the monetary value of even small, undetected breaches – unlimited time to exploit compromised data and the opportunity to revisit the sources months and years into the future.

When considering security liabilities, I like to separate small businesses into two categories. The first would be those businesses that collect and save protected data (i.e., medical, identity) within their own environments. The web sites that support these businesses tend to be custom built by design or development companies that have little or no experience in creating secure web sites, and almost never have the capabilities of testing new sites for security vulnerabilities. These companies potentially are open to huge fines when their data is compromised.

The second, and larger, category is small businesses with e-commerce components. These businesses usually, and wisely, use well-established (and secure) external web services to handle credit card and other payment transactions. Unfortunately, this approach is successful only when the business’ basic web site is secure. The point almost always missed is that a hacker does not always breach a web site for its underlying data. For example, a hacked site may be modified in subtle ways to take an unsuspecting consumer to a fraudulent e-commerce service that will happily collect and exploit the consumer’s credit card as soon as it is entered. Or, one of my favorite security flaws, Cross Site Scripting (XSS), might allow a hacker to take over a legitimate user’s browser – effectively compromising that user’s e-commerce transactions or invading the user’s entire computer.

In either case, a small business may be financially and legally liable for the fraud and illegitimate use of information from its security breaches. Perhaps just as importantly, the loss of reputation and consumer confidence alone might be enough to ruin any small business.

A proactive law firm might be in a unique position to address potential security issues and breach consequences with their clients. This should be part of the support of any client and attorneys should heed the same advice themselves.

Alan Wlasuk is a managing partner of 403 Web Security, a full service, secure web application development company. A Bell Labs Fellow award-winner with 18+ years of experience building secure web applications, Wlasuk is an expert in web security – from evaluation to web development and remediation.

Learn More: Cyber Security/Privacy CLE Homestudy Programs

Is Your Sensitive Data Secure: Cyber Insurance for Your Firm and Your Clients (video on-demand and mp3 download)

Avoiding The Lawyer’s Digital Nightmare: How To Safeguard Your and Your Clients’ Sensitive Information And Survive The Inevitable (?) Security Breach (video on-demand, mp3 download, and audio CD)

Ethics in a Wild Wired World (video on-demand, mp3 download, and audio CD)

To Use and Protect: Privacy Basics for Business (video on-demand and mp3 download)
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CBA Ethics Committee Updates Formal Opinion 68, “Conflicts of Interest; Propriety of Multiple Representation”

April 27, 2012 by Leave a Comment

The Colorado Bar Association Ethics Committee has been working on updating their Formal Ethics Opinions in order to reflect changes in the law, including the 2008 revision to the Colorado Rules of Professional Conduct. As part of that effort, the Ethics Committee released an updated version of Formal Opinion 68, “Conflicts of Interest; Propriety of Multiple Representation” in December 2011, and it was published in the March 2012 issue of The Colorado Lawyer.

Formal Opinion 68 addresses four specific conflict situations:

1) representation of both a husband and wife in negotiating a property settlement before dissolution proceedings commence;
2) representation of both the buyer and seller in a residential real estate transaction;
3) representation of both the buyer and seller of a business; and
4) representation of individuals in drafting an entity agreement, and representation of solely an entity in its formation.

The Ethics Committee opines that, in the first scenario, the dual representation would be impermissible under the Colorado Rules of Professional Conduct (Colo. RPC or Rules) because even if the divorce settlement agreement is uncontested, it must be approved by the court, and counsel cannot represent two parties whose interests are adverse under Colo. RPC 1.7.

In the second, third, and fourth scenarios, which are all transactional, the Ethics Committee declines to issue a blanket prohibition on representing both parties to the proposed transactions, but rather notes that each individual situation will require a thorough analysis of the propriety of the representation.

Opinion 68 provides a thoughtful and detailed evaluation of Colo. RPC 1.7 and its comments. It thoroughly examines informed consent, including when and whether it is appropriate, what can be consented to, how to obtain informed consent, the need to obtain new consent when there are situational changes, and confirmation in writing. Each scenario listed above is explored in depth, and the propriety of dual representation is examined for all for sample scenarios. The message of the Ethics Committee is clear: an attorney must examine the specific scenario involving a concurrent conflict of interest with the utmost scrutiny and caution prior to undertaking representation of conflicting parties.

The Ethics Committee develops its formal opinions as a means for providing Colorado attorneys with guidance. However, they issue the following caveat:

Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel, and do not provide protection against disciplinary actions.

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Regulation Counsel Says Law Students Need More Exposure to Professionalism

April 18, 2012 by Leave a Comment

This post originally appeared on the Educating Tomorrow’s Lawyers blog. Educating Tomorrow’s Lawyers is an initiative of the Institute for the Advancement of the American Legal System (IAALS) that leverages the Carnegie Model and the work of law schools and professors committed to legal education reform to align legal education with the needs of an evolving profession by providing a supported platform for shared learning, experimentation, ongoing measurement and collective implementation.

We recently sat down to talk with John Gleason. As Regulation Counsel for the Colorado Supreme Court, he directs the office of the Court responsible for lawyer admissions, registration, regulation, and client protection. In 2010, Gleason was appointed by the Arizona Supreme Court to investigate and prosecute Andrew Thomas, the former Maricopa County Attorney—a prosecution that last week ended in the disbarment of Thomas and one of his lieutenants, and the suspension of another attorney in Thomas’ office.

Gleason often meets lawyers when they are at their most vulnerable—under investigation for misconduct—and he believes new lawyers need more guidance on professional issues. Recent graduates, he says, are often referred to his office for minor misconduct issues. “There are an enormous number of issues that are not covered in law school. In fact, probably most issues related to professionalism are not covered in law school.”

Hear more from John Gleason below or click here to view the rest of his interview.

Alli Gerkman is Online Content Manager for IAALS, where she manages, edits, and creates content for IAALS and Educating Tomorrow’s Lawyers.
Filed Under: Practice Management Tagged With: , , , , , , , ,

Coach’s Corner: Do Your Due Diligence on New Clients

February 15, 2012 by Leave a Comment

Under Rule of Professional Conduct 1.16, a lawyer may withdraw from representing a client if “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.”

However, withdrawing from a representation already begun is extremely difficult, as much of the rest of Rule 1.16 attests. An attempt to withdraw without adequate communication about and careful records of the difficulty that the client has caused — whether for nonpayment of fees, lack of cooperation or some other failing — may bring a state bar disciplinary action requiring future work without pay to fulfill ethical obligations toward the client.

Withdrawal cannot be done without reasonable notice to the client, allowing time for employment of other counsel, surrendering the client’s papers and property and refunding any advance payment of fees that have not been earned.

The simple fact is that no lawyer needs to contend with such headaches. The antidote to withdrawal is to undertake full due diligence before entering into a formal engagement agreement with the client. At the time of engagement, a lawyer must determine whether the goals of the client are understood and can be met. This also requires determining whether the client will facilitate achieving those goals. And facilitation, as Rule 1.16 suggests, means paying the bill and cooperating with the lawyer.

Due diligence on the client’s willingness and ability to pay should be documented in the initial engagement agreement. This investigation is a step that too many lawyers neglect, though it can be as simple as requesting a credit report from one of the consumer credit agencies or from a business credit reporter such as Dun & Bradstreet.

Once it is clear that prospective clients can pay, a signed engagement stating the terms and responsibilities for payment attests that they will pay. Clients who cannot or will not sign a fee agreement or pay a retainer, or who want to start now and pay later, should be considered suspect.

Cooperation is a similar issue. Avoid a client with unrealistic expectations or demands. Discussing engagement terms will frequently uncover the client who will in the future express irritation with delay, chronically complain about everything, demand constant or instant attention or expect unrealistic or abnormal hand-holding. Telltale signs are when prospective clients:

  • insist that their matter is “life and death”; such clients will often be future sources of last minute emergencies that at best are irritating and at worst can result in errors under pressures;
  • use pressure tactics to urge that their matter be handled immediately.
  • demonstrate a bad attitude toward lawyers and the judicial system, or suggest that they know better than the lawyer what needs to be done; and/or
  • cannot articulate what they want their lawyer to achieve.

Due diligence is a business essential. When you determine that a client will perceive what you do as being worthwhile and valuable, you are more likely to have successful engagements and a financially successful firm. Conversely, rejecting potential problem clients before representation will enhance that success by eliminating fee-collection difficulties and possible malpractice claims.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on January 23, 2012.
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Candid Microphone: Surreptitious Recording and Legal Ethics

December 16, 2011 by Leave a Comment

We’ve all seen TV shows and movies where a secretly recorded conversation exposed some villainy—a love affair, confessions to embezzlement, perhaps an admission that testimony was fraudulent. On some of these shows, it might have been an attorney secretly recording the conversation. If the conversation was recorded by an attorney in Colorado, that attorney could face sanctions for surreptitious recording.

The Colorado Bar Association Ethics Committee adopted Formal Opinion 112 on July 19, 2003. The opinion asserts that it is generally improper for an attorney to secretly record a conversation, even if the recording is allowable under state law, because the conduct necessarily involves an element of deceit or trickery. In addition to Opinion 112, there are Rules of Professional Conduct that apply to surreptitious recording. Colo. RPC 8.4(c) bans conduct involving dishonesty, fraud, deceit, or misrepresentation. Is it possible to secretly record a conversation without violating Rule 8.4(c)?

Opinion 112 states two exceptions to the general prohibition on surreptitious recording. First, it makes an exception for criminal law, where “surreptitious recordings . . . have long been commonplace.” Next, and most controversially, an exception is provided for conduct that occurs strictly in the lawyer’s personal life.

Perhaps an attorney suspects spousal infidelity, and wishes to record a conversation that may implicate that spouse in an extramarital tryst. Perhaps that secretly recorded conversation will be used in the attorney’s divorce proceeding. Perhaps that attorney is self-represented. Would the recording then become fodder for a disciplinary proceeding, since the recording was used in the practice of law?

These questions are difficult to answer with certainty, but case law points to a conclusion on the permissibility of surreptitious recording in a lawyer’s personal life. That case law will be discussed by Jack Tanner and Jerry Pratt on December 20, 2011, in their one-hour lunch time CLE program, “Candid Microphone: Surreptitious Recording and Legal Ethics.” Registration information below.

CLE Program: You’re On Candid Microphone! Surreptitious Recording and Legal Ethics

This CLE presentation will take place on Tuesday, December 20. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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Guardians ad Litem and the Attorney-Client Privilege: The Aftermath of the Gabriesheski Decision

November 1, 2011 by Leave a Comment

On October 24, 2011, the Colorado Supreme Court issued its long-awaited opinion in People v. Gabriesheski. The Court held that because a child in a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem (GAL), the attorney-client privilege and confidentiality do not strictly apply. In reaching its decision, the Court noted that the role of the GAL is to represent the interests of the child, not the child himself or herself. The full case summary can be read below.

What will this mean for guardians ad litem and the children whose interests they represent? The decision raises many questions for family and juvenile law practitioners, including how to handle the ethical challenges of the case moving forward. Attorneys Sheri Danz and Linda Weinerman from the Office of the Child’s Representative, amicus curiae in Gabriesheski, will discuss the far-reaching ramifications of this important decision, issued only last week. This CLE program will be held on Monday, November 7, and will provide 1 General CLE credit and 1 Ethics credit.

Don’t miss this excellent opportunity to stay on the cutting edge of family and juvenile law developments in Colorado and learn how this very recent Colorado Supreme Court decision will affect your practice. Registration information is provided below.

People v. Gabriesheski

Dependency and Neglect Proceeding—Attorney–Client Privilege—Confidentiality of Communications—Guardian ad Litem—Social Worker—Witnesses.

The People sought review of the court of appeals’ judgment affirming two in limine evidentiary rulings of the district court in a prosecution for sexual assault on a child by one in a position of trust in People v. Gabriesheski, 205 P.3d 441 (Colo. App. 2008). Following the district court’s exclusion of testimony concerning the recantation of the defendant’s step­daughter, the alleged child-sexual-assault victim, the prosecutor conceded her inability to go forward, and the case was dismissed. The court of appeals concluded that section 16- 12-102(1), C.R.S. (2010), gave it jurisdiction to entertain the People’s appeal, but it affirmed both of the trial court’s evidentiary rulings.

With regard to the exclusion of testimony by the guardian ad litem appointed in a parallel dependency and neglect proceeding, the court of appeals held that the child’s communications with the guardian fell within the attorney-client privilege, as set out at section 13-90-107(1)(b), C.R.S. (2010). With regard to the exclusion of testimony by a social worker also involved in the dependency and neglect proceeding, the court found her to be both a professional who could not be examined in a criminal case without the consent of the parent-respondent, as dictated by section 19-3-207, C.R.S. (2010), and a licensed professional who could not be examined without the consent of her client, according to section 13-90-107(1)(g), C.R.S. (2010).

The Colorado Supreme Court affirms in part and reverses in part, holding that the court of appeals did have jurisdiction to entertain the People’s appeal, but disapproved of its conclusions with regard to both of the trial court’s evidentiary rulings. The supreme court finds that because a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem, neither the statutory attorney-client privilege nor ethical rules governing an attorney’s obligations of confidentiality to a client strictly apply to communications by the child. Further, the supreme court finds that because the trial court apparently understood section 19-3-207 to bar the examination of the social worker in the defendant’s criminal case as long as she qualified as a professional involved in the dependency and neglect proceeding, it failed to make sufficient findings to satisfy the additional statutory requirement that the statements at issue be ones made in compliance with court treatment orders, or to demonstrate the applicability of section 13-90-107, which is limited by its own terms to communications made by a client in the course of professional employment or psychotherapy.

CLE Program: Guardians Ad Litem and the Attorney-Client Privilege – The Aftermath of the Gabriesheski Decision

This CLE presentation will take place on Monday, November 7. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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New Ethics Opinion: Candor to the Tribunal and Remedial Measures in Civil Proceedings

October 17, 2011 by Leave a Comment

In case you missed it last month, CBA-CLE held a program entitled Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings on September 20, 2011. The program addressed the prohibition against offering false evidence, the duty to take remedial measures, and the duty to correct false statements by the lawyer set forth in Rule 3.3 of the Colorado Rules of Professional Conduct. The program also looked at the knowledge and materiality elements of the Rules, the duration of the lawyer’s duties under the Rule, and the steps that the lawyer must take when confronted with this problem of material false evidence.

Overall, the program was a great way for lawyers to make sure they are in compliance with the ethical rules and to learn how to face these tough ethical dilemmas that are bound to arise at some point in your practice.

And, the program couldn’t have been more timely. After it concluded, the the CBA Ethics Committee released its final, edited version of Formal Opinion 123, “Candor to the Tribunal and Remedial Measures in Civil Proceedings.” It will be published in the December 2011 issue of The Colorado Lawyer, but you can read it here now first. The opinion provides a detailed analysis of the issues, followed by four illustrations designed to provide more practical guidance to lawyers facing these situations.

The homestudy covering these issues is now available as well, in two formats: video on-demand and mp3 download.

Formal Opinion 123 – Candor to the Tribunal and Remedial Measures in Civil Proceedings

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Joe Lusk: Explore New Practice Areas with Co-Counseling Agreements

September 12, 2011 by Leave a Comment

A co-counseling arrangement can allow a solo or small firm lawyer to explore new and complex areas of law.  Co-counseling agreements may also allow a lawyer to take on matters that he or she might not otherwise feel comfortable taking on.  The co-counseling arrangement does all of this, while significantly reducing the danger of committing malpractice. Consider the following situations:

  1. You are an experienced civil litigator and would like to branch out into criminal defense work.  A potential client who has been charged with a serious felony approaches you and you don’t feel comfortable taking this on alone as your first criminal case.
  2. You are an experienced criminal defense lawyer, but have never taken on a divorce matter.  A potential client approaches you with a new matter involving complex issues concerning the children and division of assets.  There are child abuse allegations on both sides, and the husband owns his own business that is worth several million dollars.
  3. You are an experienced civil litigator, who is approached with a multimillion dollar medical malpractice case.  Although you have litigated many personal injury cases, you have never even seen a medical malpractice case, and you have no medical background.

In the above scenarios, would you be inclined to take on these cases?  Would you have reservations about your ability to effectively represent your client?  If your answer to both of these questions is yes, you may want to consider a co-counseling arrangement with another lawyer who has experience in the areas of concern.  In fact, you may be required to do so – see Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000).

The two important written documents for the co-counseling arrangements are your fee agreement, which must authorize a co-counseling arrangement, and a co-counseling agreement with your co-counsel.

The fee agreement with the client should include not only your client’s authorization to hire co-counsel but also an authorization concerning the critical terms of the co-counseling agreement, including, perhaps most importantly, the fees for each of the lawyers.

The co-counseling agreement should be specific as to each lawyer’s role in the matter.  Specifically, the co-counseling agreement should identify which lawyer is the lead counsel (especially in the event of litigation); the fee arrangement for each lawyer; who is responsible for collecting fees; and the procedure for lawyers consulting with each other.  It is important to note that before entering into any co-counseling arrangement, both lawyers should have malpractice insurance in effect.  The representation of the same party should be reflected in the written co-counseling agreement.

In any type of litigation, the co-counseling agreement should identify whether each lawyer should review the pleadings for final approval before they are filed.

A co-counseling agreement can add variety to your practice, increase your number of colleagues, and allow you to see whether you might want to delve more into a new practice area.

Joe Lusk is an attorney with Boatright & Ripp, LLC in Wheat Ridge, Colorado. His practice includes emphases in personal injury and criminal defense. Joe chairs the Solo/Small Firm Section of the Colorado Bar Association and contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on August 30, 2011.
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Division of Real Estate Proposes New Rule Regarding Broker Competency

September 7, 2011 by Leave a Comment

The DORA Division of Real Estate has proposed a new rule to regulate and enforce real estate broker competency. Real estate brokers are required to perform the terms of their real estate transaction agreements with clients, but they also must exercise reasonable skill and care and have a duty to promote the interests of their clients “with the utmost good faith, loyalty, and fidelity.” It is a violation of the real estate license law if a licensee demonstrates unworthiness or incompetency to act as a real estate broker by conducting business in such a manner as to endanger the interest of the public.

The purpose of this rule is to ensure that licensed real estate brokers do not agree to perform brokerage activities in a transaction where they lack the necessary training, experience, or education to fulfill the terms of the brokerage practice agreement, unless the licensed broker is assisted by another licensed real estate broker possessing the necessary competency.

The new rule, E-47 Competency, is also accompanied by an enforcement provision.

A hearing on the new rule will be held on Tuesday, October 4, 2011 at 1560 Broadway, Suite 1250-C, Denver, Colorado 80202, beginning at 9:00 am.

Full text of the proposed rule can be found here. Further information about the rule and hearing can be found here.

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American Bar Association Issues Formal Ethics Opinion Regarding Fee Arrangements

August 31, 2011 by Leave a Comment

On August 4, 2011, the ABA released an ethics opinion, Formal Opinion 11-458, which discusses Changing Fee Arrangements During Representation:

Modification of an existing fee agreement is permissible under the Model Rules, but the lawyer must show that any modification was reasonable under the circumstances at the time of the modification as well as communicated to and accepted by the client. Periodic, incremental increases in a lawyer’s regular hourly billing rates are generally permissible if such practice is communicated clearly to and accepted by the client at the commencement of the client-lawyer relationship and any periodic increases are reasonable under the circumstances. Modifications sought by a lawyer that change the basic nature of a fee arrangement or significantly increase the lawyer’s compensation absent an unanticipated change in circumstances ordinarily will be unreasonable. Changes in fee arrangements that involve a lawyer acquiring an interest in the client’s business, real estate, or other non-monetary property will ordinarily require compliance with Rule 1.8(a).

Comment [16] to Rule 1.8 advises that when a lawyer acquires by contract a security interest in property other than that recovered through the lawyer’s efforts in litigation (e.g., a contingent fee agreement), such an acquisition is a business or financial transaction with a client and is governed by the requirements of Rule 1.8(a). When it applies, Rule 1.8(a) requires that:

  1. the terms of the transaction are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client;
  2. the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel; and
  3. the client gives informed consent to the essential terms of the transaction and the lawyer’s role in the transaction in a writing signed by the client.

Compliance with Rule 1.8(a) is appropriate in such situations to protect clients from potential overreaching by lawyers. When the client takes advantage of the advice to consult independent counsel, it also provides an opportunity for a neutral evaluation of the reasonableness of a fee that may be paid or secured by non-monetary property.

Click here to read the full opinion.

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American Bar Association Issues Formal Ethics Opinions Regarding Email Confidentiality

August 30, 2011 by Leave a Comment

On August 4, 2011, the ABA released two ethics opinions. The first, Formal Opinion 11-459, discusses the Duty to Protect the Confidentiality of E-mail Communications with One’s Client:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.

Click here to read the full opinion.

In conjunction with that opinion, the ABA also released Formal Opinion 11-460, entitled Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel:

When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision.

Click here to read the full opinion.

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