Need a continuance? Don’t assume it’ll be granted.

I’ll cut to the chase.  The goal of this post is to remind lawyers not to assume that a continuance will be granted. In a few paragraphs, I’ll share a cautionary tale that drives home the point. But first, a bit on what got me thinking about the general topic.

I’ve been contemplating a post on the relationship between Rule 3.2 and Comment 5 to Rule 1.2.

The former requires a lawyer to expedite litigation consistent with the interests of the client.  The comment makes clear that delay for delay’s sake is unethical. 

  • “Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

Meanwhile, Comment [5] to Rule 1.2 addresses a lawyer’s professional responsibility upon receiving a good faith request for a continuance.  The comment went into effect on November 14 and is part of the rule that answers the question “Who decides? The client or the lawyer?”  It reads:

  • “[5] It is not inconsistent with the lawyer’s duty to seek the lawful objectives of a client through reasonably available means for the lawyer to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client, to avoid the use of offensive or dilatory tactics, or to treat opposing counsel or an opposing party with civility.”

In a way, each is intertwined with Rule 1.3’s duty to act with reasonable promptness and diligence when representing a client.

Looking for cases or opinions that discuss either rule, I came across the ABA Journal’s post Lawyer who missed deadline to watch son’s professional debut gets no sympathy on appeal. The story reminded me of (what I think is) a common assumption: that a continuance will be granted. Here’s what happened.

Lawyer filed a civil suit on behalf of Plaintiff.  Defendants moved to dismiss. The United States District Court for the Central District of California set a hearing on the motion for June 24, 2021.

On June 9, 2021, Lawyer filed a motion to continue the hearing. Lawyer cited his workload as well as the fact that his associate would be out of the office for several weeks for a family emergency. The court granted the request. As such, the deadline for Lawyer to file a response to Defendants’ motion to dismiss was pushed to September 3, 2021, and a hearing on the motion was scheduled for September 24, 2021.

On September 3, the date that his response was due, Lawyer filed another request for a continuance.  This time, Lawyer asserted that he could not file a timely response because he was in Illinois to watch his son’s debut as a professional baseball player.  Lawyer asked that the hearing on Defendants’ motion be pushed to October 8.  The court denied Lawyer’s motion.

On September 18, Lawyer filed a response to the motion to dismiss. It seems that Lawyer expected to appear at a hearing on the motion to dismiss on September 24.

The hearing never took place.  Rather, on September 20, the court granted Defendants’ motion to dismiss as unopposed. In so doing, the court concluded that Lawyer’s responsive motion was filed out of time.  Plaintiff’s suit was dismissed, and the hearing scheduled for September 24 cancelled.  The court’s order is here.

Lawyer appealed.  Last week, the 9th Circuit Court of Appeals affirmed the district court’s decision.  Among other things, the 9th Circuit stated that Lawyer’s

  • “. . . excuse for not meeting a deadline that had already been extended 90 days at his request was frivolous: Counsel chose to attend a ballgame instead of timely filing his client’s response to the motion to dismiss.”

The ABA Journal quoted Lawyer as stating:

  • “Look, I’ve been doing this for 38 years. Most judges would give you a pass to see your kid’s first professional baseball game.”

In addition to the ABA Journal, How Appealing reported the story here and updated it here.

I do not know what Lawyer’s mindset was. Nor am I suggesting that he assumed a continuance would be granted.

Rather, as I indicated above, the story reminds me of what I perceive to be a common feeling in the Vermont bar: that continuances will be granted. This story shows that’s not always the case.

Today’s lessons:

  • Lawyers shouldn’t assume they’ll receive continuances.
  • Comment [5] to Rule 1.2 vests a lawyer with the authority to agree to good faith requests from opposing counsel that do not harm the lawyer’s client’s interests.
  • Rule 3.2 makes clear that delay for delay’s sake is unethical.

As always, let’s be careful out there.

Wisconsin Advisory Opinion Offers Cybersecurity Tips on Working Remotely

In late January, the Wisconsin Bar issued Formal Ethics Opinion EF-21-02: Working Remotely.  The opinion makes three important points and shares helpful and practical guidance on cybersecurity practices, training & supervision, and preparing clients.

astronaut-sitting-moon-laptop

First, the important points.

I’m a fan of the opening line of the synopsis:

  • “The basic responsibilities that a lawyer owes the client – competence, diligence, communication, and confidentiality – lie at the core of lawyer’s professional obligations and remain unchanged irrespective of the lawyer’s physical location.”

That’s critical: the pandemic hasn’t lessened or diminished our professional obligations.  Our responsibilities remain the same as in 2019 when we were working in our offices.  Further, our basic obligations to clients will not change once the pandemic ends. As the opinion points out, “it is expected that lawyers, like other professionals, will continue to work remotely in some form after the pandemic.” So, the guidance, while issued in response to the pandemic, will prove valuable in an increasingly remote post-pandemic workplace.

Next, the opinion reiterates what I’ve been blogging for years: competence includes tech competence.  Pages 2 and 3 include language that I’m certain will worry lawyers.  The language, however, is important to take to heart.

  • “Basic technological competence includes, at a minimum, knowledge of the types of devices available for communication, software options for communication, preparation, transmission and storage of documents and other information, and the means to keep the devices and the information they transmit and store secure and private.”

As the opinion notes, large firms likely will employ IT professionals for these issues.  Small firms and solos are reminded that they “may need to retain the services of an expert if they lack the knowledge to personally manage the technological aspects of practice.”

Finally, the conclusion ties together the first two points in an important reminder:

  • “The COVID-19 pandemic has dramatically changed how lawyers work and represent their clients. Some of these changes may be temporary but others are likely part of a movement towards increased reliance on technology in the practice of law. As working remotely has become the new normal, lawyers must develop new skills and knowledge to comply with their core responsibilities.”

Indeed.

I’ll finish by cutting and pasting the guidance and practical tips that begin on page 10 of the Wisconsin opinion.  I’ve reformatted & renumbered the footnotes to endnotes.

***

General Guidance

 It is impossible to provide specific requirements for working remotely because lawyers’ ethical duties are continually evolving as technology changes. It is possible, however, to provide some guidance. Cybersecurity Practices Because working remotely relies on technology, competence in technology and cybersecurity practices are essential. The following cybersecurity practices have been recommended by a number of ethics opinions[i] and other resources. None of these practices are new: they are reasonable precautions that have helped lawyers fulfill their ethical obligations, especially the duty of confidentiality, when working in the office and when working remotely, whether at home during evenings and weekends, or during travel for work or vacation.

  • Require strong passwords to protect data and to access devices. The more complex the password, the less likely that an unauthorized user will be able to access data or devices by using password cracking techniques or software.
  • Use two-factor or multi-factor authentication to access firm information and firm networks. Although requiring an additional authentication step, such as a six-digit code sent to the lawyer’s phone or email, may seem inconvenient or burdensome, it is a reasonable precaution that increases protection and reduces the likelihood of unauthorized access by providing an additional layer of security beyond a strong password.
  • Avoid using unsecured or public WiFi when accessing or transmitting client information. Hackers can access unencrypted information on unsecured WiFi and can use unsecured WiFi to distribute malware.
  • Use a virtual private network (VPN) when accessing or transmitting client information. A VPN encrypts information and allows users to create a secure connection to another network.
  • Use firewalls and secure router settings. A firewall monitors and controls incoming and outgoing network traffic based on predetermined security rules: it establishes a barrier between a trusted network and an untrusted network. A router connects multiple devices to the Internet, and connects the devices to each other.
  • Use and keep current anti-virus and anti-malware software. Anti-virus and anti-malware both refer to software designed to detect, protect against, and remove malicious software.
  • Keep all software current: install updates immediately. Updates help patch security flaws or software vulnerabilities, which are security holes or weaknesses found in a software program or operating system.
  • Supply or require employees to use secure and encrypted laptops. All lawyers and staff should use only firm issued devices with security protections and backup systems and prohibit storage of firm or client information on unauthorized devices. All devices used by the lawyer, such as desktop computers, laptops, tablets, portable drives, phones, and scanning and copy machines, should be protected.
  • Do not use USB drives or other external devices unless they are owned by the firm or they are provided by a trusted source.
  • Specify how and where data created remotely will be stored and how it will be backed up.
  • Save data permanently only on the office network, not personal devices. If saved on personal devices, taking reasonable precautions to protect such information.
  • Use reputable vendors for cloud services. Transmission and storage of firm and client information through a cloud service is appropriate provided the lawyer has made sufficient inquiry that the service is competent and reputable.[ii]
  • Encrypt emails or use other security to protect sensitive information from unauthorized disclosure. A lawyer should balance the interests in determining when encryption is appropriate.
  • Encrypt electronic records, including backups containing sensitive information such a personally identifiable information.
  • Do not open suspicious attachments or click unusual links in messages, email, tweets, posts, online ads.
  • Use websites have enhanced security whenever possible. Such websites begin with “HTTPS” in their address rather than “HTTP,” and encrypt the communication.
  • Provide adequate security for video meetings or conferences. The FBI has recommended the following steps: use the up-to-date version of the application; do not make the meetings public; require a meeting password; do not share the link to the video meeting on an unrestricted publicly available social media post; provide the meeting link directly to the invited guests; and manage the screen-sharing options.[iii] In selecting a videoconferencing platform, the lawyer should make sure it is sufficiently secure both in its structure and its contractual terms of use, especially any terms on access to user information.[iv]
  • Do not have work-related conversations in the presence of smart devices such as voice assistants. These devices may listen to and record conversations.[v]

Training and Supervision

To comply with the duties required by SCR 20:5.1 and 5.3, partners, managers and supervisory lawyers should consider whether the firm’s policies and procedures are adequate to address the specific challenges that may arise when lawyers and nonlawyer assistants are working remotely.

  • Establish and implement policies and procedures for cybersecurity practices. These policies and procedures should be in writing and provided to all lawyers and nonlawyer assistants, and stress compliance.
  • Establish and implement policies and procedures for the training and supervision of lawyers and nonlawyer assistants in the firm’s cybersecurity practices. Training is the most basic step in avoiding a cyberattack at a law firm. In other words, it is extremely important to develop a culture of awareness. The most serious vulnerabilities of a cybersecurity system are not the hardware or software, but rather the people who use it. It is estimated that 90% of cybersecurity breaches are due to human error.[vi]
  • Establish and implement policies and procedures regarding remote workspaces to mitigate the risk of inadvertent or unauthorized disclosures of information relating to the representation of clients. Remote workspaces should be private to ensure that others do not have access to phone conversations, video conferences, or case-related materials.
  • Hold sufficiently frequent remote meetings between supervising attorneys and supervised attorneys, and between supervising attorneys and supervised nonlawyer assistants to achieve effective supervision.

Preparing Clients

Representing a client remotely may present challenges to competent representation.[vii] Consequently, a lawyer should carefully consider whether the lawyer can adequately prepare the client to testify or for interviews while working remotely.

  • The lawyer and the client should have sufficient ability with the technology.
  • The lawyer and the client should have access to relevant documents.
  • The lawyer and the client have adequate time and attention to ensure the client’s comfort with the communicating by the medium that will be used.

[i] See, e.g., Wisconsin Formal Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing (Amended September 8, 2017).

[ii] Wisconsin Formal Ethics Opinion EF-15-01.

[iii] https://www.fbi.gov/contact-us/field-offices/boston/news/press-releases/fbi-warns-ofteleconferencing-and-online-classroom-hijacking-during-covid-19-pandemic

[iv] Lawyers must understand that if video conferences are recorded the vendor may retain a copy under the terms of service. See INSIGHT: Zooming and Attorney Client Privilege, https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzEtZWExYy1kMDAwLWE5N2YtZ WE3ZTkwYWMwMDAxIiwic2lnIjoidVliaWhQR3J3ZmpWcDBKeE5KY1JYV1c0RlcwPSIsInRpbWUiOiIxNTkwMjQwMzM 1IiwidXVpZCI6IndNWHUzdVFGajBEWGxkZFBKcTNSVVE9PU1ZZmVtSkhLU0hBMWtPNG8rTE50eGc9PSIsInYiOiIxIn0= ?usertype=External&bwid=00000171-ea1c-d000-a97fea7e90ac0001&qid=6912181&cti=LSCH&uc=1320042032&et=SINGLE_ARTICLE&emc=bcvnw_cn%3A7&bna_news_ filter=true

[v] For example, Google and Amazon maintain those recordings on servers and hire people to review the recordings. Although the identities of the speakers are not disclosed to these reviewers, they might hear sufficient details to be able to connect a voice to a specific person. https://www.vox.com/recode/2020/2/21/21032140/alexa-amazongoogle-home-siri-applemicrosoft-cortana-recording .

[vi] https://www.techradar.com/news/90-percent-of-data-breaches-are-caused-by-humanerror#:~:text=A%20new%20report%20from%20Kaspersky,carried%20out%20by%20cloud%20providers .

[vii] The New York County Lawyers Association Formal Opinion 754-2020 at 3.

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

See the source image         Image result for images of d and f grades      Image result for images of f grade