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Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

ORC EL&LG GroupEthics Update

October 4, 2012

Presented by:Chris Mills

Phone: (908) 516-1050Email: [email protected]


More on Metadata

• ABA & 14 jurisdictions have issued ethics opinions on what you may and may not do

• Latest is Washington State – May 2012• ABA-published survey of jurisdictions with

opinions– http://www.americanbar.org/groups/departments_

offices/legal_technology_resources/resources/charts_fyis/metadatachart.html

• Focus of all the opinions is on duties of sender, duties of receiver


Metadata Revisited

• RPC 1.6(a) – Duty not to reveal confidential information w/o client’s

permission– Duty to act competently– Not just involving outside counsel or in context of litigation

• How to send documents?– Only PDFs to adversaries

• What about exchanging drafts of settlement agreements??– Hard copy– Fax

• In-house counsel need to inquire what’s in place and use it– Insist that IT install metadata-scrubber program


Three Scenarios in Washington Opinion

• Scenario A– Settlement agreement prepared by in-house

counsel and internally circulated as to terms– Various people comment on it (strengths and

weaknesses of the claim), change wording– Counsel doesn’t scrub it before sending to

Complainant’s counsel– Sent in Word format


Scenario A

• Complainant’s Counsel opens it in Word, turns on Track Changes and reads all the Metadata and demands more in light of comments

• It’s generally the sender’s problem– Sender at fault under RPC 1.6(a) for not taking reasonable steps

to protect confidentiality

• Recipient lawyer has ethical duty to “promptly notify” sender that her document contains readily accessible metadata

• Recipient not required to refrain from reading it nor to return it• Recipient can’t use “data mining software” to try to ascertain

whether other metadata might have been scrubbed


Scenario B

• Same facts as A but sender discovers her error shortly after sending document and calls recipient requesting document not be read and deleted

• Recipient still can read what’s readily accessible

• Recipient doesn’t need to notify sender – she already knows

• Doesn’t have to return the document


Scenario C

• Sender uses software or mechanical solution to “scrub” metadata from document and believes it’s “clean”

• Recipient applies “data mining software” to document, uncovers the comments and demands more $$

• No explicit prohibition of this in the ethical rules– BUT Wash. Committee holds it violates RPCs

• 4.4(c): “using methods of obtaining evidence that violate the rights of third persons”

• 8.4(d): “conduct that is prejudicial to the administration of justice


Are Sneaky Recordings by Lawyers Ethical?

• Ohio Supreme Court: Not inherently– Op. 2012-1, 6/8/12

• 1997 Ohio ruling was that it presumptively violates the RPC against dishonesty, fraud deceit and misrepresentation

• In 2001 ABA reversed Watergate-era ruling– Secret but lawful recordings are now OK– Two-party consent states still a problem– But Ohio is a one-party consent state

• “Public expectations of privacy have changed given advances in technology and the increased availability of recording equipment”


Surreptitious Recordings by Lawyers

• Not a per se violation of RPC 8.4(c) • Certain acts connected with such recordings are

still unethical– Lying about whether you’re recording– Using deceitful tactics to become a party to a

conversation– Using the recording to commit a crime or fraud– Recording conversation with clients or prospects

without their consent• Inconsistent with lawyer’s duty of loyalty and confidentiality


Sneaky Recordings

• 13 other jurisdictions follow the “not per se violation” rule

• 10 jurisdictions make all surreptitious recording illegal and unethical

• 9 states say it’s generally unethical but allowed in some situations

• 4 states evaluate surreptitious recording on a case-by-case basis

• 13 states have not expressed an opinion on the issue


Don’t Do This


Run Errands For Client @ $125/Hour

• Louisiana Disciplinary Board recommends 2-year suspension rather than disbarment

• Lawyer bills $30,000 for legal work to a disabled client (Huntington’s Disease)

• Work actually involved running errands, taking client to Walmart

• No written retainer• Didn’t deposit funds into trust account


Threaten to Smear Boss to Get Promotion

• In re Braunstein, NJ No. D-66 (May 9, 2012)• Corporation Counsel for Newark files police report

against subordinate• Subordinate threatened discrimination suit and

graft accusation unless he was promoted, paid $750,000

• Charged with attempted theft by extortion, pleads guilty to lesser included offense

• Braunstein sent his threat by e-mail• Cops later recorded him in a sting repeating the

threat


Threatening Your Boss . . .

• Disciplinary Review Board recommended merely a censure

• Supreme Court says that’s too lenient• Most lawyers who committed extortion

were disbarred• Merely “dumb luck” that he was stopped

early in the extortion process• He’s given 1-year suspension


Ethics Hypotheticals


Presented by:

Chris MillsPhone: (908) 516-1068

Email: [email protected]

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans

Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC

www.laborlawyers.com

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