C.C.’ing Sabathia

For a while now, I have been wanting to write a Risk Tip about the perils of cc’ing too many, or the wrong, people in emails.  But I never quite had the right pop culture hook.   There’s C.C. Bloom, Bette Midler’s character from Beaches.  Beaches!?  No thanks.  And I never saw the 1981 movie Carbon Copy (and I don’t think anyone else did either).  So I shelved it.

Then, as I was reading the paper during my morning commute last week, there it was in virtual black and white.  New York Yankee pitcher C.C. Sabathia reportedly confronted a heckler in Toronto leading to a street brawl (and further leading to C.C. getting scratched from the lineup the next day).  C.C. “acknowledged having used poor judgment,” stating: “A bad decision on my part. . .You know, I probably should have just kept quiet.”

And there you have it.  The ease and alacrity with which we can add names to an email address list or hit Reply All has all too often replaced our good judgment.   And just as often, we realize that we probably should have kept quiet rather than cc’ing half the civilized world on an email.

And while C.C.’s lapse in judgment is not likely to have any negative impact on his pitching, lawyers who use bad judgment when they c.c. can suffer lasting consequences:

* You can waive the A/C privilege.  The more people you cc (even within an organization), the more likely you will include someone who is a stranger to the privilege, resulting in either the privilege not attaching in the first place or a waiver if there are privileged emails earlier in the chain.

* You can violate the “no contact” rule.  ABA Model Rule 4.2 prohibits a lawyer from contacting a person the lawyer knows to be represented by another lawyer in the matter, absent proper consent.  At least one state bar opinion has suggested that cc’ing adversary clients on email, even where the adversary lawyer also is copied, can violate Rule 4.2.

* You can lose a client.  At the very least, it’s embarrassing to copy the wrong person on an email.  But you can also face an uphill battle trying to convince a client to trust you after you’ve sent a client-intended communication to an adversary.

So think twice before you hit Reply All.  And before you cc anyone, ask yourself who that person is and why s/he should be cc’d.  If you don’t have a reasoned basis for doing so, then don’t.

It’s really pretty easy.  Certainly, it’s no harder than C.C. Sabathia giving up his Cap’n Crunch (another C.C.) addiction.

https://www.youtube.com/watch?v=CGMEcKkbETA&feature=player_detailpage

Or, as a concession to you Beaches fans out there, you can listen to C.C. Bloom (Midler) singing C.C. Rider.

https://www.youtube.com/watch?v=_7lkKAZ5yl8&feature=player_detailpage

 

Oh, The Documents You’ll Preserve!

 Did you hear there’s a new Dr. Seuss book?
It’s true! It’s true! Go take a look!.

His manuscript had been presumed to be lost,
But it was there all along; it had never been tossed.

It was found in a box (though not with a fox),
In a drawer in his house (that was home to a mouse).

The book wasn’t labeled or filed with care,
You couldn’t find if you looked up here or down there.

It’s a good thing the Doctor wasn’t named in a suit,
or the subject of a claim or a subpoena, to boot.

For if he had been, he would have had an obligation,
To take concrete steps to ensure preservation.

So, to be clear, when must you preserve?
Is it enough to wait til a lawsuit is served?

Oh no! You must act long before that!
To avoid a big mess (like a certain hat-wearing Cat).

As soon as you reasonably anticipate litigation,
The duty kicks in to prevent spoliation.

Then you must send out notice to all Jills and all Jacks,
Who have relevant documents, knowledge or facts.

And ensure that you preserve not just emails and paper,
But stop the deletion of your backup taper.

And unlike Seuss’s pages, so loosely piled,
You should collect client docs and carefully file.

Don’t count on your clients to do this, you see,
They might misplace them like Seuss (not to mention Harper Lee).

(For as much as I like the style of his meter,
Seuss’s filing habits could have been neater.)

Though it’s 20 years now since Seuss dearly departed,
We can still learn a lot from the lessons he imparted.

So for helping us lawyers stay out of a jam,
Thank you, thank you, Sam I Am.

Kardashians and Konflicts

I’m sure that many of you read with great interest that Kim Kardashian recently hired a lawyer to assert a claim against an L.A. photographer.  According to the lawyer, the photographer improperly took pictures of Kim (which he then tried to sell) from a helicopter hovering over her compound.

No doubt, the Kardashian family’s various antics and public pursuits provide much fodder for a Risk Tip.  But I want to focus not on Kardashian hijinks, but on the obligations of the lawyer (the Kardashian Kounsel, if you will).  Sure, everyone likes to lump Khloe, Kendall, Kourtney, Kim and even Kanye into one large Kardashian bucket.  But does that mean that, by taking on Kim as a client, the lawyer is also assuming the legal representation of every other member of the extended Kardashian family?

Seems silly, right?  Yet this is an issue that many of us face on a regular basis.  Ok, maybe not with a Kardashian, but corporate clients sometimes want their lawyers to represent not only a single entity, but also their parents, subsidiaries and other members of their corporate family.  Sometimes they won’t even identify all of the affiliates.  (I’m still waiting to hear how anyone can run a conflicts check on an unnamed party.)

Over-identifying clients can cause issues for law firms– it can create obligations to entities for that you don’t actually represent, and it can unnecessarily subject you to conflicts.  Of course, there may be business reasons to accommodate a client’s request.  Either way, it’s important — for everyone involved — to take the right steps at the outset of the engagement to identify the client or clients.  You should have an engagement letter that clearly defines the client or clients and expressly states whether or not affiliates are included.  And if you do undertake affiliate representations, make sure you run a conflicts check on each and every entity.

And here’s another tip to avoid unnecessary risk, courtesy of the Kardashians: if you’re planning to throw a party at Kourtney’s house, you may want to check with her first.

 

 

 

Blatt, Blatter, Blattest

David Blatt:  Rookie head coach who led his Cleveland Cavaliers to the NBA finals against the Golden State Warriors (led by another rookie coach, Steve Kerr).

Sepp Blatter:  Newly re-elected (and even more newly resigned) president of FIFA, many of whose associates have been arrested for corruption-related crimes.

BLAT-Test: A functionality check of a pairwise sequence alignment algorithm used to assist in the assembly and annotation of the human genome.

Blatt and Blatter both have been in the news recently, albeit for different reasons:  Blatt for his accomplishment, Blatter for, well, his gall.  (BLAT-Test has not grabbed any headlines this week or, to my knowledge, ever).

For all the flak Blatter has been getting in the press, he has not been charged with any crime and the fact that his underlings may have is itself insufficient to create criminal liability.  Good thing Sepp’s not a lawyer.  Recall the NY lawyer who was disciplined because his bookkeeper (and brother) stole client funds.  By all accounts, the lawyer had no knowledge of the brother’s criminal actions.  But that wasn’t sufficient to avoid discipline in the matter, which went up to NY’s highest court.  As the court found:  “To be clear, respondent is not being held responsible for the criminal behavior of his brother. Rather, it is his own breach of his fiduciary duty and failure to properly supervise his employee, resulting in the loss of client funds entrusted to him, that warrant this disciplinary action.”

David Blatt, on the other hand, would likely do well as a lawyer.  As he has demonstrated (and as he discusses in the attached), proper supervision of, and collaboration with, subordinates and colleagues can lead to some pretty positive results.

So does that make David Blatt the blattest of them all?  Maybe, but that said, as the next clip demonstrates, he might be better as a transactional lawyer than as an oral advocate.

https://www.youtube.com/watch?v=8lwgaWfa21Q&feature=player_detailpage

 

Monkey Business

Today’s Tip is interactive. Click on the video below and follow the instructions.  If you’ve seen this before, watch it again (and don’t blurt out the answer).  And don’t read the rest of this Tip until you’ve finished watching.

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So how many of you missed the gorilla?  Statistics show that roughly 50% of people who watch this video for the first time don’t see it.

What does this have to do with risk?  The answer has to do with how we focus on the tasks before us.   Many of us pride ourselves on our ability to multitask.  Whether it’s talking on the phone while drafting a letter, or sitting in a meeting and reading emails on your iPhone, or reviewing an agreement while chopping vegetables, we like to think that we are being more productive than if we were just doing one of those things.  This experiment teaches us that people — even lawyer people — have a limited ability to focus on more than one thing at a time.   In fact, studies have shown that multitasking can actually reduce productivity and create mental blocks that can cause us to make mistakes and miss important information and cues. Multitaskers are also less likely to retain information in working memory, which can hinder problem solving.

Of course, some people multitask better than others.  And I harbor no illusions that this Tip will cause everyone to stop looking at their iPhones while sitting on a conference call.  But let me make one observation:  I’m not aware of any lawyers who were the subject of a claim or disciplined for giving his or her full attention to a client.

One more experiment:  See if you can spot the gorilla in this next clip:

 

 

It’s About Time

Lawyer advertising has come a long way since Jacoby & Meyers launched its TV commercials back in the 1970’s promising quality lawyers at low prices.  Firm brochures, websites and social media have redefined the advertising landscape.

With these changes comes a host of new rules and regulations governing lawyer advertising — including defining what constitutes lawyer advertising.  Recently, one bar association issued an opinion suggesting that, depending on the content, a lawyer’s LinkedIn profile might constitute attorney advertising, thus triggering labeling, disclaimer and other requirements.  In other words, if your LinkedIn profile is inaccurate or otherwise noncompliant, a lawyer could be in violation of the Rules of Professional Conduct, subject to discipline.

So here are some tips for ensuring that your LinkedIn profile is rule-compliant:

*Depending on the jurisdiction in which you practice, you may need to add the “Attorney Advertising” and/or other disclaimer language to your profile.  Our marketing team stands ready to assist you with ensuring that such language is added in a manner that is consistent with the rules but does not detract from the message.

*You should not identify yourself as a “specialist” or “expert” without ensuring that the representation is in compliance with all relevant jurisdictions.

*You should periodically monitor and review the content of your LinkedIn profiles for accuracy.  Any inaccurate or outdated information should be deleted.

* You are also responsible for the accuracy of information contained in any endorsements that appear on your profile.  So if your mother-in-law wants to endorse you as a trial lawyer and you’ve never set foot in a courtroom, you would be wise to decline.

I appreciate that all these rules can be frustrating.  So for the moment, take a break and enjoy some quality lawyer advertising from back in the day before disclaimers and labels.

 

A New Leaf

In the 1971 movie “A New Leaf,” Walter Matthau plays Henry Graham, an irresponsible playboy who suddenly finds that his once ample trust fund has been depleted.  Lacking any meaningful skills, he schemes to marry a wealthy heiress who can support him in the lifestyle to which he has grown accustomed.  In this scene, Henry’s lawyer, Mr. Beckett, delivers, in painstaking detail, the news about the state of Henry’s finances:

Beckett had it easy; his client was a jerk.  But for most of us, it’s no fun delivering bad news to a client.  Still, it’s a whole lot better than NOT delivering bad news.  Or not delivering it (as Beckett did) in a sufficiently clear way so as to allow the client to fully understand the implications (as Henry, eventually, did).

Failing to properly communicate with clients is both a violation of the ethics rules and an oft-cited basis for malpractice claims.  ABA Model Rule 1.4 requires lawyers to “keep the client reasonably informed about the status of the matter” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

There are some easy steps you can take to ensure compliance with this rule:  copy your clients on correspondence to adversaries and other third parties; send copies of any pleadings, motions, or court rulings; promptly return  telephone calls and emails.   There are a few more things to consider, though, when delivering bad news:

*Don’t sugarcoat it.  Tell it like it is. I’d rather listen to a client get upset now than deal with a claim down the road that the client couldn’t make an informed decision about his or her case because I didn’t accurately convey something.

*Be clear on the options.  Bad options are better than no options.  They may not be good, but you’ll be happy you laid them out.

*Confirm advice in writing.  Take all of the above and put it in a clear writing so there is no confusion.

And perhaps most important, make sure you deliver the news in a manner that the client can easily comprehend.  As the below demonstrates, even Mr. Beckett’s advice needs to be modified for some audiences.

 

3.3 Days of the Candor

In Three Days of the Condor, Robert Redford plays a CIA researcher who finds himself “in danger and in love.”  ABA Model Rule 3.3 — Candor Toward the Tribunal — probably won’t help your love life, but there is plenty of danger involved; if you fail to comply, that is.

Rule 3.3 prohibits not only the making of false statements and submission of false evidence, but also omissions, like failing to correct a prior false statement or disclose adverse authority.  Rule 3.3 is regarded as so important that, by its terms, it even trumps a lawyer’s duty of confidentiality.

Judges certainly regard it as important.  Recently, a federal judge sua sponte ordered a group of lawyers from a firm to show cause why they should not be sanctioned for failing to comply with Rule 3.3.  What did they do wrong?  They failed to cite adverse relevant authority from a controlling Circuit Court in a motion to dismiss.  Notably, the order was directed to all lawyers whose names appeared on the papers — two partners and an associate.  Although the parties have since settled the case (with the law firm chipping in), the lawyers still have to answer to the judge.

I won’t blow the ending of Condor, but I can certainly tell you what will happen if you blow your duty of Candor.  To learn more about both Condor and Candor, click on the attached.

Getting Stung

It’s scam season again.  You may have received an unsolicited email from a foreign company seeking a lawyer in your jurisdiction.  Chances are it’s a fake.  And don’t take comfort in the fact that your Google search revealed the company to be legitimate.  Scamsters use real companies to bait you.  How do you know it’s fake?  Start by looking at the sender’s email address.  Would the CEO of Japan’s largest steel company really use a gmail account when he wants to hire a lawyer?

So how do these scams work?  Like every other scam since time immemorial.  The scamster (The Player) establishes a relationship with you (the Hook), explains why he needs your help (the Tale), then gets you to send money (the Wire).  Then the money, and the scamster, disappear (The Sting).

Of course, everyone thinks they’re too smart to get caught up in a scam.   Just like Doyle Lonnegan. Ya folla’?

 

Authentic Frontier Gibberish

In a highly unusual move, the US Supreme Court issued an order last December requiring a Foley & Lardner lawyer to show cause why he should not be sanctioned in connection with the filing of a cert petition.   The order didn’t specify the problems with the petition.  Then again, it didn’t really have to — one look at the petition and your head will spin.  Here’s just one example of the petition’s prose:

“[121S.II/III] tell: “{∀SPL test} ≡ FSTP-Test” 7.a).  Thus, familiarity7.b) with the FSTP-Test8) pays. It tests, ∀interpretations/TT.0s of a CI, their inventive concept sets satisfying ∀necessary ˄ sufficient and precise legal criteria6) for CI’s passing its SPL test.”

Notably, a footnote revealed the true author of the petition:  “Prof. Sigram Schindler, the primary inventor of the ‘453 patent, should be recognized for significant contributions to this Petition.”  (The esteemed Dr. Schindler, it should be noted, does not claim to be fluent in the English language.)

This week, the lawyer filed his response.  While acknowledging the unorthodox nature of his filing, he claimed that he was bound to follow his client’s instructions, as unconventional as they were.

Sure, the petition is pretty rotten, but does it amount to an ethical violation?  We’ll see what the high court does, but the lawyer’s actions (or inactions) certainly raise some questions:

Competence:  ABA Model Rule 1.1 — the first commandment, if you will — obligates a lawyer to provide competent representation.  It’s hard to see evidence of competent legal representation in a petition that “asks this Court to convey to this community its determination to get all courts short term taking into use these so implied enormous advantages.”

UPL:  By essentially allowing the client to write the brief, did the lawyer assist in the unauthorized practice of law?  It’s one thing for a client to review and comment on the lawyer’s work product, but it’s something else to entirely abrogate the responsibility to provide legal advice and sign your name to legal filings prepared by a non-lawyer.

Withdrawal:  So why didn’t the lawyer just withdraw from the representation?  He argued that withdrawal would have prejudiced the client or would have been futile, since any successor would have faced the same issue.  Maybe so, but Rule 1.16 mandates withdrawal if continued representation would violate the Rules; it also permits it if the client insists on taking action with which the lawyer has a fundamental disagreement.   As much as lawyers love getting, and retaining, clients, there are some circumstances where withdrawing from a matter is the wisest (or only) course.

To be clear, I am not suggesting that an incomprehensible argument cannot also be persuasive.  But Siggy Schindler ain’t no Gabby Johnson.