Facebook Post Leads to Public Reprimand

I’ve blogged often on the risk associated with disclosing information relating to the representation of a client.  At times, I sense that lawyers think I’m exaggerating to make a point.

I’m not.

Earlier this week, the Legal Profession Blog posted Public Discipline For Facebook Posts That Violated Duty Of Confidentiality. The post shares this opinion from the Massachusetts Board of Bar Overseers.

Briefly, a lawyer represented Jane Doe in connection with a petition for guardianship of her grandson.  Following a confidential juvenile hearing, the lawyer posted the following on his personal Facebook wall:

“I am back in the Boston office after appearing in Berkshire
Juvenile Court in Pittsfield on behalf of a grandmother who
was seeking guardianship of her six year old grandson and
was opposed by DCF yesterday. Next date-10/23.”

Two people commented.

The first asked the grounds on which DCF opposed the petition.  The lawyer replied:

“GM [grandmother] will not be able to ‘control’
her daughter, the biological mother, and DCF has ‘concerns.’ Unspecific.” 

The second asked if DCF preferred foster care.  The lawyer replied:

“The grandson is in his fourth placement in foster care since his removal from GM [grandmother]’s residence in late July. I will discover what DCF is doing or not doing as to why DCF opposes the GM [grandmother] as guardian. More to come.”

Eventually, Jane Doe’s daughter saw the post and comments and told Jane Doe about them. Doe sent the lawyer an email in which she stated that he

“seem[ ed] to think that discussing my custody case (and who knows what else) with your Face book [sic] buddies on an open account … is okay and at the least just [a] mistake. I beg to differ. Posting client information on Face book [sic] is a violation of the attorney client law.”

The lawyer replied that he had not disclosed protected information and that his post indicated “from where I was returning and DCF’s position only.”

The MA disciplinary prosecutor charged the lawyer with violating Rule 1.6(a) of the Massachusetts Rules of Professional Conduct.  With few exceptions, none of which were present, the rule states that a lawyer “shall not reveal confidential information relating to the representation of a client.”

(I emphasized confidential.  Why?  Because Vermont’s rule isn’t as narrow.  Vermont’s rule states that a lawyer “shall not reveal information relating to the representation of a client.”)

Anyhow, the MA rules defines “confidential information” as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) is likely to be embarrassing or detrimental to the client if disclosed, or ( c) information that the lawyer has agreed to keep confidential.”

At the trial level, the disciplinary prosecutor argued (b).  That is, that the Facebook post revealed information that was likely to be embarrassing or detrimental to Jane Doe if disclosed.

The hearing committee recommended dismissal of the disciplinary charges.  Upon review, the Board of Bar Overseers characterized the committee’s decision as follows:

• “In recommending dismissal of the petition for discipline, the hearing committee
  concluded that, ‘the information at issue could only be embarrassing or detrimental to Doe if it could reasonably be linked to her.’ Based on its reading of [the rule] the hearing committee concluded that, ‘there must be enough revealed to get to a certain threshold, some identifiable or linear nexus reasonably connecting the information to a particular person.’ Thus, in recommending dismissal of the petition, the hearing committee found that, ‘There is no reasonable likelihood that the client could have been recognized.'”

The Board disagreed.

First, the Board concluded that the Facebook post was “confidential” because the disclosure that Jane Doe and her grandson were involved in a DCF matter was likely be embarrassing or detrimental to Jane Doe.

Next, the Board noted it was enough that Jane Doe and her daughter had recognized the post as referring to the lawyer’s representation of Jane Doe.  More specifically, the Board rejected the hearing committee’s conclusion that “there must be enough revealed to get to a certain threshold, some identifiable or linear nexus reasonably connecting the information to a particular person.”  Rather, after concluding that the daughter, who was not the lawyer’s client, figured out the the post was about her mother, the Board wrote:

• “Even if there were no evidence that a third party actually recognized the client in the post, we would still conclude that the respondent had violated Rule l.6(a). There is no requirement that a third party actually connect the dots. If it would be reasonably likely that a third party could do so, the disclosure runs afoul of the rule. In addition to her daughter knowing about the case, Doe could have mentioned to a friend that the respondent was representing her in a case (perhaps in connection with making a referral). If the friend looked up the respondent on Facebook, the friend would learn about the ’grandmother’ and her litigation with DCF. There are numerous other reasonable scenarios.”

Now, I know what you’re thinking:  if that’s the rule, how can I ever run anything by another lawyer who isn’t in the same office as I am? The Board’s answer:

• “In posting on Facebook, the respondent did not seek advice from other lawyers, nor can we discern any other purpose that would have served his fiduciary duty to his client. There is no legitimate analogy between seeking advice from other lawyers and the respondent’s Facebook post.”

Turning to the appropriate sanction, the Board publicly reprimanded the lawyer. While dissenting members urged a private admonition, the Board stated:

• “The post is no different than publishing the facts in a newspaper or broadcasting them on television. Furthermore, the matter discussed by the respondent here was a sensitive child custody case that our legislature has deemed to be worthy of confidential protection by statute [citation omitted]. The respondent’s conduct ignored not only the basic tenets of Rule 1.6, but the basic confidentiality requirements that all attorneys who handle these sort of child custody and protection matters should honor.”

The Board concluded:

• “Confidentiality is a central tenet of our profession.  If nothing else, the public knows that attorneys are obligated to protect their confidences.  This obligation exists to encourage clients to be truthful and to place great trust in their counsel.  By posting information about his client on Facebook, the respondent jeopardized that trust.  Public discipline is warranted.”

When it comes to disclosing information relating to the representation of a client, my thoughts remain the same.  Unless required or permitted by the rule, don’t.  As this case proves, “not much” can be “too much.”

 Related Posts:

• Don’t Post That
• Keep Quiet & Lawyer On
• Disclosing Information That Is Public Record
• ABA & Client Confidences: It’s Deja Vu All Over Again
• Can’t keep quiet? Try harder.
• Hey Lawyers! STFU!!!

Client alleges you did wrong? Still, don’t talk too much.

When it comes to client confidences, I think lawyers would be well served to remember lessons imparted by Run-DMC: it’s not tricky, don’t talk too much.

Information relating to the representation of a client, no matter the source, is confidential.  Per Rule 1.6, such information can only be disclosed if:

• the client gives informed consent to the disclosure;
• disclosure is impliedly authorized to carry out the representation;
• disclosure is required by Rule 1.6(b); or,
• disclosure is permitted by Rule 1.6(c).

Today, I want to look at one of the instances in which paragraph (c) permits disclosure of otherwise confidential information.  I’m going to refer to (1) an ineffective assistance of counsel claim made by a criminal defendant against a defense attorney; and, (2) an ABA advisory opinion on the extent to which Rule 1.6 applies to claims of ineffective assistance.

Don’t tune out simply because you don’t do criminal defense.  There’s a larger point: the mere fact that the client alleges that you did something wrong does not give you license to disclose anything and everything that the client ever shared with you.

Rule 1.6(c)(3) permits (but does not require) a lawyer to reveal information relating to the representation if the lawyer reasonably believes that disclosure is necessary:

• to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Per Comment [14], if a lawyer reasonably believes that (c)(3) permits disclosure, disclosure is nonetheless limited to “the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”  It continues:

• “[D]isclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.  If the disclosure is made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”

In simple terms, do what you advise your clients to do in depositions and on the witness stand: listen to the question and answer only the question.   Actually, a federal magistrate recently stated it far more succinctly.

Yesterday, I came across this post in the ABA Journal.  The opening paragraph:

• “A federal magistrate judge has ordered a West Virginia lawyer accused of ineffective assistance of counsel to respond to his one-time client’s allegations in a way that limits disclosure of confidential information.”

The magistrate’s opinion is here.  The analysis includes reference to Rule 1.6 and ABA Formal Opinion 10-456.  The magistrate’s succinct conclusion:

• “Simply put, the filing of an ineffective assistance of counsel claim does not operate as an unfettered waiver of all privileged communications.”

I’ll stop there otherwise I risk sudden onset of carpal tunnel syndrome.

Suffice to say, even when a client puts your representation into issue, don’t talk too much.

After all, who wants to be this guy? (80’s lyrics are the best!)

“Everywhere that you go, no matter where you at
I said you talk about this, and you talk about that
When the cat took your tongue, I say you took it right back
Your mouth is so big, one bite would kill a Big Mac.”

~ Run-DMC, “You Talk Too Much,” King of Rock, Track 3, 1985.

Related Posts

• Subpoena to Disclose Client Info?
• Tips for Online Reputation Management

Safeguarding Client Data: Don’t Forget Email Safety.

Like Starship built a city on rock ‘n roll, I built this blog on tech competence.  More specifically, on a phrase that, while once my mantra, I’ve not typed in ages:

competence includes tech competence.

The story of a lawyer’s duty of tech competence includes many chapters.  Perhaps the most important is the chapter on the duty to take reasonable precautions against the unauthorized access to or inadvertent disclosure of information related to the representation of a client.  Given the feedback I’ve received here and at CLEs, lawyers seem to associate that duty most closely with cloud storage.

Yes, protecting client data this transmitted or stored electronically is important. So important that I’ve run my post The Cloud: What Are Reasonable Precautions? four different times.

But don’t forget e-mail security.  And, within the topic of e-mail security, don’t get so pre-occupied with whether there’s a duty to encrypt that you forget about some of the simple things.  For instance, whether a lawyer has a duty to disable autocomplete.

Almost two years ago, I posted Client Confidences: Disable Autocomplete?  Two “real-life” events inspired the post.

The first was a story that I repeated often on this spring’s CLE circuit.  As reported by Above The Law, it’s the story of a lawyer who meant to send a message to other lawyers in the firm, but mistakenly sent it to a Wall State Journal reporter in what appears to have been an autocomplete snafu.

The second hit closer to home.  Thanks to autocomplete, an email that a lawyer intended to send to me mistakenly went to Judge Michael Kainen.

Catherine Sanders Reach runs the North Carolina Bar Association’s Center for Practice Management.  Earlier this week, Catherine posted Make Email Less Dangerous.  It’s a fantastic piece on protecting client data when using email.  Catherine’s tips include instructions on:

• disabling autocomplete
• using “delay send” and “undo send”
• Microsoft Add-Ins that protect against sending to the wrong recipient
• keeping internal emails internal

I recommend Catherine’s blog.

After all, and to tie this back to the intro, better to spend some time with Catherine’s tips than to find yourself Knee Deep in the Hoopla that will certainly ensue if you inadvertently send confidential information to an unintended recipient.

Yes.  I’m quite aware that I posted a blog constructed around what some consider to be the worst song of all-time.

 

 

 

 

Redacting Confidential Info

In January, Paul Manafort’s lawyers made headlines for failing to take proper steps to redact a document.  Myriad outlets covered the story, including The Atlantic, BBC, and Legal Tech News.

In response, the ABA Journal posted How to redact a PDF and protect your clients.  A few days later, I recommended the ABA post in my blog Competence, Confidences and PDFs. 

Today, the ABA Journal published more helpful information: Redacting confidential client information: The devil is in the details.  The post points out the risks in failing to understand how property to redact a document.  I recommend it.

One risk? Disciplinary action.  Lawyers have a duty not to disclose information relating to the representation of a client.  There’s also a duty to use reasonable safeguards to protect against unauthorized access to or inadvertent disclosure of confidential information.  In my view, employing a redaction method that fails to keep information confidential is not a reasonable safeguard.

Rather, it’s tech incompetence.

 

 

 

Talking culture, compliance, confidences & candor.

Flashback to 1994:  I was a brand new attorney.  Another attorney in my office mentioned Shelley Hill.  I asked, “who’s Shelley Hill?”  The attorney responded, “someone you never want to hear from.”

Back then, Shelley was Vermont’s disciplinary prosecutor.  The attorney’s answer to my question was the extent of the ethics guidance I received in my first ever job as a lawyer.

We’ve come a long way.  It’s no longer taboo to talk legal ethics.  We talk it.  A lot.  Not only does it help us do better for our clients, it improves the image of the profession.  To that end, one of my goals as bar counsel is to foster an ongoing and open dialogue about legal ethics and professional responsibility that helps to build a culture of compliance that we put out there for the world to see.

Reflective of the today’s world, the conversation happens in many forums.**  Today, I woke to having been mentioned in a tweet by a lawyer who was concerned by the news that Nikolas Cruz’s public defender disclosed Cruz’s potential inheritance in a motion to withdraw from representing him in the criminal case.  The lawyer tweeted:

“i would be interested to learn the circumstances of the public defender of Nikolas Cruz disclosing to the court in Mtn to Withdraw and on the record that his client inherited $430,000 (VERY vulnerable to civil suit if not exempt) – seems a bit problematic, eh @VTBarCounsel?”

The entire string is here.

Look at us.  We are talking legal ethics in public! THAT is professional responsibility.

I’ve blogged often on client confidences and Rule 1.6.  Basically, my position is that lawyers should STFU.  Or, to borrow a quote from Thomas Edison that my Dad instilled in me as a kid:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”

Obviously, it’s far wiser to take my Dad out in public than his eldest son.

Anyhow, as indicated in my reply Tweet this morning, I don’t comment without hearing all sides to a story, not to mention that I have no idea what Florida’s rules are.  But it’s a great construct to use as a mini-refresher on Vermont’s rules.

By rule, “information relating to the representation of a client” is confidential.  The scope is broader than the privilege and includes all information related to the representation no matter the source.  Comment [3].  Such information shall not be disclosed unless:

• the client gives informed consent to the disclosure;
• disclosure is impliedly authorized to carry out the representation;
• disclosure is required by paragraph (b);
• disclosure is permitted by paragraph (c).

Returning to the Parkland case, if Vermont’s rules applied, the first possibility is that Cruz gave informed consent for his public defender to make the disclosure.

I’d be surprised if any of exceptions in paragraph (b) applied.  However, it’s possible that one of the exceptions in paragraph (c) applies.  That is, disclosure of the inheritance might be authorized by another rule.  Stay with me here.

This morning I did something rare: I did some research before I tweeted.  I learned that, as reported by the South Florida SunSentinel, a year ago Cruz’s inheritance was the subject of a hearing as to whether he qualified for public defender services.  Per the report, it appears as if it was represented to the court that Cruz stood to inherit far less than recent developments indicate.

If so, and again if Vermont’s rules applied, it’s possible that the new information required the public defender to make the disclosure pursuant to Rule 3.3.  The rule, entitled “Candor to a Tribunal,” requires a lawyer to correct a prior material statement of fact that was false.  Were the statements made in last year’s hearing on Cruz’s eligibility for public defender services “material” and “false?”  If so, one might argue that the public defender was required to make the disclosure in the motion to withdraw.

Finally, reading today’s reports left me with the impression that Cruz’s public defenders believe that, given the inheritance, the law precludes him from being eligible for their services.  Thus, it appears to me that they argued that they are required to withdraw.

In Vermont, Rule 1.16 governs withdrawal.  Perhaps most relevant here, Rule 1.16(a)(1) requires withdrawal when “the representation will result in violation of the rules of professional conduct or other law.”  So, it looks to me as if the argument is “by law, the inheritance prohibits us from representing him, thus withdrawal is required.”  The Florida courts will decide.

Aside: as some of you know from having called me or heard me speak.  When it comes to a motion to withdraw, I think it best to limit the motion to citing the text of whichever provision(s) of Rule 1.6 you’re arguing.  Then, if the court asks for more information, respond, but in such a way as to disclose no more information than is necessary to answer the court’s question.  Being mindful, the entire time, of a larger duty not to harm to your client’s interests on your way out.  Others may disagree with me, but that’s fine.

Indeed, that’s why it’s so important to continue to discuss legal ethics and professional responsibility.  The discussion makes us do better by our clients, the courts, and the profession.

Talk on.

** I couldn’t decide whether to go with “fora” or “forums.”  Flipped a coin.

 

Inadvertent Production

Edited at 9:05 PM to fix typos in a first edition that, sadly, I cannot honestly claim to have been inadvertently produced. 

In Vermont, what’s an attorney’s ethical duty when the attorney receives information that the attorney knows or should know was inadvertently sent?

The answer lies in Rule 4.4(b).

The lawyer’s ethical duty is to promptly notify the sender.

But Mike, what if the sender asks the attorney to destroy the information or return it unread?

Again, the ethical duty is to promptly notify the sender.

Indeed, per Comment [2], whether the lawyer has a duty to return the information “is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of the document has been waived.”  Further, here’s Comment [3]:

• “Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address.  Where the lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”

But does that end the discussion?

Yes.  This blog is over.

Just kidding!  Of course it doesn’t end the discussion!

Don’t forget about the Rules of Evidence and the Rules of Civil Procedure.

In my view, the ethical duty to provide a client with competent representation includes understanding what to do upon (1) receiving information that was inadvertently produced; and, (2) learning that you inadvertently produced information.  In addition, Rule 3.4(c) imposes an ethical obligation to comply with court rules.

Also, here are 2 practical reasons not to forget about the interplay between inadvertent production, your ethical duty, the Rules of Evidence, and the Rules of Civil Procedure.

First, you do not want you firm to be named in a Bloomberg Law headline that announces that your firm conducted itself “poorly.”

Second, you do not want to be the attorney for either side in a matter in which a United States Magistrate’s ruling on a motion to disqualify begins like this:

“The facts underlying this disqualification motion establish that, unfortunately, lawyers on both sides of the litigation acted poorly.”

Especially when the Magistrate continues:

“At the heart of this dispute is a disappointing but obvious inability of opposing counsel in this case to talk and correspond with each other in good faith, to rely on each other’s representations, and to deal honestly and squarely with one another. From its inception, this case has been replete with numerous and extensive discovery disputes, myriad motions, lengthy hearings, and finger-pointing by opposing counsel against each other for various alleged bad acts. The Court does not know if this conduct and mistrust is based upon past dealings between counsel or due to other factors, but the attorneys should be aware that their conduct is not helping their respective clients’ positions in this litigation. In fact, it is downright unproductive and silly.”

The Bloomberg Law article is here.  The magistrate’s opinion is here.

I recommend reading the opinion, particularly if you litigate.  A quick summary:

• Just before Christmas, defense counsel produced over 14,000 documents in response to plaintiff’s discovery request;
• Shortly after Christmas, plaintiff’s counsel informed defense counsel that it appeared as if 100 of the documents were privileged, but that plaintiff’s counsel would assume that they were correctly produced and not privileged;
• The lawyers did not immediately reach an agreement as to whether plaintiff’s counsel would provide defense counsel with the Bates numbers of the documents that appeared to privileged, or, whether defense counsel should provide plaintiff’s counsel with the Bates numbers of all privileged documents that were inadvertently produced.

Long story short, three points:

1. The defense firm knew what to do – under both the Rules of Evidence and the Rules of Civil Procedure – to preserve the privilege of material that it had inadvertently produced.  Do you?
2. There is no such thing as “It appears as if you inadvertently produced documents. But I’m going to assume you meant to produce them. Therefore, they aren’t privileged.”
3. I am not convinced that a lawyer who receives information that the lawyer knows was inadvertently produced complies with Rule 4.4(b) by saying something to the effec that “100 of the 14,500 documents you produced look they might have been inadvertently produced, but I’m not going to tell you which ones.”

 

 

 

 

 

 

 

Tips for Online Reputation Management

Online Reputation Management is a thing.  An important thing.  But not so important that the Rules of Professional Conduct go out the window when a lawyer manages her online reputation.

Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of client.  The rule is much broader than the attorney-client privilege and applies to all information relating to the representation no matter the source.

There are exceptions to the rule.  They are:

• the client’s gives informed consent to the disclosure;
• disclosure is impliedly necessary to carry out the representation;
• disclosure is mandated by Rule 1.6(b);
• disclosure is permitted by Rule 1.6(c).

Rule 1.6(c)(3) permits a lawyer to disclose information related to the representation of client:

• to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; or,
• to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved; or,
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

As I’ve previously blogged, a negative online review is not a “controversy between the lawyer and the client” that triggers the exception.  Neither is a negative online review a “proceeding” in which allegations have been made against the lawyer. My blog posts, which includes advisory opinions & disciplinary decisions, are here:

• Negative Online Review? What NOT to do
• Negative Online Review? UPDATE!
• Negative Online Review? More of what not to do

As the headlines suggest, the posts focus on what not to do.  For instance, don’t reveal client confidences in response to an online review.  Don’t post fake positive reviews.  Don’t create a fictitious lawsuit in order to get a court to order a website provider to take down a negative review.

Today’s ABA Journal has some great tips related to online clients reviews.  They appear in Kelly Newcomb’s post How lawyers can make positive – and negative – online reviews work for them.  

Whether on AirBnB, Yelp, Amazon, or myriad other sites, I suspect many lawyers have read through the reviews before making a purchase or reservation.  Odds are, potential clients are doing the same before hiring you.  Today’s post in the ABA Journal helps to frame not only a lawyer’s professional obligations when dealing with online reviews, but the marketing benefits that come with knowing how best to manage an online reputation.

       

Ethics: it’s all about the bad grades

A few weeks ago I posted C in ethics? You’re on the right track.  In it, I offered two cheat codes to stay on the right side of the rules.

The first was my own: don’t lie, cheat or steal.  Nearly every violation falls under one.

The second was Brian Faughnan’s recipe for ethical lawyering.  The recipe?  The 5 C’s:

• Competence
• Confidentiality
• Communication
• Candor
• Conflicts

Today I present a third: it’s all about the bad grades.

Alberto Bernabe is a professor at John Marshall Law School in Chicago.  Professor Bernabe teaches torts and professional responsibility.  He maintains a blog for each topic.  His torts blog is here, and his professional responsibility blog is here.  Professor Bernabe is also a frequent member of this blog’s #fiveforfriday Honor Roll in legal ethics.

In response to my post on the 5 C’s, Professor Bernabe shared a story with me.  He urges his students to remember the general principles behind the rules.  He does so by suggesting that they associate those principles with the grades that they do not want to earn in a semester:  4 C’s, 1 D, and 1 F.  That is:

• Competence
• Confidentiality
• Communication
• Conflicts
• Diligence
• Fiduciary

Professor Bernabe’s full blog post on bad grades is here.

I love the semi-mnemonic.  Diligence and the fiduciary duty to clients are as important as the 5 C’s.

Thank you Professor Bernabe for another arrow in the quiver.

• Don’t lie, cheat or steal
• Remember the 5 C’s
• Ethics: it’s all about the bad grades

              

 

 

 

Competence, Confidences and PDFs

In my view, Rules 1.1 and 1.6 impose a duty to act competently to prevent the unauthorized access to or disclosure of information relating to the representation of a client.  I’ve blogged on this issue many times:

• Protecting Client Data
• Encryption & The Evolving Duty to Safeguard Client Information
• The Cloud: What are Reasonable Precautions?

Next week, I’m presenting two seminars at the YLD Mid-Winter Thaw in Montreal.  In the first, I’m on a panel with Judge Hayes and the Judiciary’s Andy Stone.  Judge Hayes and Andy will introduce lawyers to the Judiciary’s new case management system.  My job will be to chime in on ethics issues that might arise with electronic filing.   My thoughts will focus on tech competence.

Imagine this scenario: whether in a filing or a communication to opposing counsel, a lawyer includes a PDF.  Prior to transmission, the lawyer redacted the PDF to keep certain information confidential.  Alas, the lawyer did not properly redact the PDF.  By highlighting the redacted the portions and pasting them into a new document, opposing counsel, or anyone else with access to the PDF, can discover what the lawyer intended to obscure.  The filing is here.

Did the lawyer take reasonable precautions to protect the information?  Was it a one-time mistake that doesn’t rise to the level of an ethics violation?  What if it was information that the court had ordered remain confidential and now is public?

Earlier this week, lawyers for Paul Manafort, President Trump’s former campaign chair, filed a response to special counsel Robert Mueller’s allegation that Manafort lied to Mueller’s investigators.  Due to what the ABA Journal described as a “technical oversight,” the filing was not properly redacted.  As such, the media was able to discover that Manafort is accused of sharing polling data with a Russian business person.  The story has been covered by the ABA Journal, BuzzFeed, Fox News, and the Washington Post.

(Update at 1:16 PM on January 10:  Above The Law’s Joe Patrice has a great recap here.)

Go back to the scenario I posited above: what if that’s you in a Vermont case?  What if you meant to redact a client’s proprietary information, or a witness’s mental health records, or a confidential informant’s identity? What if you didn’t do it right?

Jason Tashea writes for the ABA Journal. Today, he posted How to redact a PDF and protect your clients.  If this is an area of tech competence that interests or concerns you, I’d suggest giving Jason’s post a read.

 

Legal Ethics & Crowdfunding to pay legal fees

Professor Alberto Bernabe often appears on this blog’s #fiveforfriday Honor Roll.  He also has his own blog and, last week,  blogged on an advisory from the DC Bar. The opinion addresses the ethics issues that arise when a lawyer’s client crowdfunds legal fees.

The opinion is here. Professor Bernabe’s blog post is here.  He wrote more extensively on the topic in this article that pre-dates the DC advisory opinion.

I’ve also blogged on the topic. I did so here in response to an advisory opinion from the Philadelphia Bar Association.  I wrote:

• “That’s why the Philly opinion is great.  It doesn’t treat ‘crowdfunding platforms’ as new creatures that require new rules.  Rather, it reminds lawyers that the rules that apply when using a crowdfunding platform are the same rules that apply to any other representation.”

As Professor Bernabe notes, the DC Bar opinion is consistent with the Philadelphia opinion and others on crowdfunding.

I like the following statement from the DC Bar:

• “It is not unusual for clients to rely on money collected from family or friends to pay for legal services.”

Indeed, many Vermont lawyers accept payment from someone other than the client.  The most common situation?  A parent pays for a child’s lawyer in a criminal or family case.

When that happens, it’s critical for the lawyer to remember Rule 1.8(f):

• “A lawyer shall not accept compensation for representing a client from one other than the client unless (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of a client is protected as required by Rule 1.6.”

In other words, even if Parents are paying Lawyer to represent Child, they don’t get to direct the representation and, absent Child’s consent, Lawyer cannot disclose information relating to the representation to them.

Somewhat related, the DC Bar included a great tip in Ethics Opinion 375:

• “A lawyer should consider counseling his or her client regarding disclosures to third parties. Crowdfunding typically entails some level of disclosure to third parties about the predicate need for counsel. Because of their financial support, crowdfunding contributors may be interested in the status of or information about the client’s matter. Due to the risk of waiver of the attorney-client privilege, or simply for strategic reasons, a lawyer who knows that a client is crowdfunding should provide the appropriate level of guidance to the client regarding disclosures to third parties, whether such disclosures occur on a social media platform or privately in discussions with friends and family.”

In sum, nothing about using a social media platform to crowdfund legal fees is inherently unethical.  Oh, and as mentioned in both the Philadelphia and D.C. advisory opinions: crowdfunding helps provide access to legal services to those who otherwise might not be able to afford a lawyer.

Related:

• (Bernabe) DC Ethics Committee new opinion on crowdfunding
• (Bernabe) Is it ethical to use “crowdfunding” to finance the practice of law?
• (Kennedy) Crowdfunding: The More Things Change . . .
• DC Bar Ethics Opinion 375
• Philadelphia Bar Association Opinion 2015-06