Don’t publicly discuss confidential details of your representation of a client within earshot of others — particularly, reporters.
Don’t publicly discuss confidential details of your representation of a client within earshot of others — particularly, reporters.
“[Crosby and I] were in love with each other and in possession of something magical.” Graham Nash, 1990.
“I don’t want anything to do with Crosby at all . . . I’m done. F**k you.” Graham Nash, March 2016.
I could tolerate last year’s war of words between David Crosby and Neil Young. And sure, there has always been tension with that hothead (but genius) Stills. But for Crosby Stills & Nash fans, a Crosby/Nash rift is a surprising and devastating turn of events. After 47 years together, having weathered drug addictions, prison stints and liver transplants, I, for one, was unprepared for the split. So much for “Love the One You’re With.”
Lawyers can’t afford to be caught off guard when their clients break with one another. Whether it’s a husband and wife, business partners, or a corporation and its employee, we are often asked to represent multiple clients in a single matter. At the outset of the representation, everyone is seemingly on the same page and happy. As the matter evolves though, interests can diverge and once agreeable clients can descend into the darkness while the seemingly helpless lawyer watches.
So what do you do when one client wants copies of your communications with the other? Or when one client stops paying? Or when one wants you to fire the other and continue to represent him or her? You don’t have to cry; these questions can be really easy to answer — if you have a fully executed engagement letter with appropriate disclosures and consents. Specifically:
Everybody I Love You: Have the clients confirm that their interests are aligned.
50/50: Be clear on the responsibility for payment of fees. Are they split evenly or is one paying for all?
Yours and Mine: Explain the disadvantages of joint representation, including that there is no privilege as between or among joint clients. In other words, if we learn something from one client that we think the other needs to know, we will disclose the information to the other.
See The Changes: Be clear on what happens if a conflict develops. Are we going to withdraw from the representation? Or will we withdraw from representing one (e.g., a corporate officer), but continue representing the other (e.g., the company)?
Turn Back the Pages: Make sure the letter is executed by each of the clients.
This way, if and when your clients go CSN on you, you’ll be able to carry on.
And, for what it’s worth, anytime CSN are ready to get back together, they can count me in.
We’ve written before on the importance of good password practices. Using strong passwords, changing them frequently, and ensuring that they are not written down next to your computer (such as on the back of a desk blotter or keyboard) are all good starting points. A recent news story points out another best practice: namely, if you’re running for President, and have misplaced the password to your Facebook account, you are probably better off following the “lost password” protocols with the system administrator, rather than taking this approach:
Three inventions have revolutionized the practice of law in the twenty-plus I’ve been practicing: email, the post-it note, and those services that allow you to have a conference call at any time, without operator assistance, using the organizer’s individualized passcode. While all of these technologies present risks — we could talk about email forever, and post-it notes are great until they fall off — consider the conference call service.
Keep in mind that, once you’ve invited someone to a call, they will forever have a record of your dial-in number. What keeps that individual from dialing-in again, even if they’re not invited, to a future call? It’s that passcode, which can become known or, perhaps, guessed. As such, just as it is important to select a good computer password, and change it periodically, consider the following steps towards good conference call hygiene:
1. Be attentive to the number of “beeps,” and ask all attendees to identify themselves. If they don’t match or if beeps occur mid-call without identification, ask the group to reconvene and circulate a new dial-in.
2. Rotate use of passcodes, particularly for standing calls that occur the same time each week.
3. Don’t include your “Leader” passcode in meeting invites.
4. Where possible, review details from the call service provider identifying who joined the call.
After all, as Tommy Tutone reminds us, some numbers are difficult to forget.
I just returned from an overseas family vacation where I boldly decided to tour the countryside in a rental car. I confess to having been a bit unprepared for the challenges of driving in a foreign country. For example, I was embarrassed to discover that the sign that read “60” was a reference to the speed limit, not Route 60, the road on which I was supposed to have been driving. That set me back a good half-hour. And while I tend to rely on Siri for directions, she doesn’t do foreign languages well (her “turn left on Rehov Mendele Mocher Sefarim” was not helpful). Perhaps most jarring, who knew that the protocol for informing a driver that he is in the wrong lane is to get out of one’s car, scream bloody murder, bang on the offender’s (my) window with both fists, and repeatedly kick the side of the car? My driving experience bore greater resemblance to the chase scene from Bullitt than a relaxing ride in the Family Truckster.
As hard as it is to drive in a foreign country, protecting client confidences when dealing with someone in a foreign country can be an even greater challenge. Varying legal cultures (most countries don’t have broad discovery mechanisms like we do) and different regulatory regimes (many countries have different categories of “legal professionals”) lead to a hodgepodge of rules around the globe. (In China, for example, while there is a duty of confidentiality for “private information,” that duty may be trumped by a lawyer’s oath “to be faithful to the motherland and the people [and] to uphold the leadership of the Chinese Communist Party and the socialist system.”)
Although we in the US take for granted that a communication between an attorney and his or her client will be protected from disclosure, a communication that might be recognized as privileged in a US court, might not enjoy the same protection in a foreign tribunal. By the same token, where alleged privileged communications took place in a foreign country or involved foreign attorneys or proceedings, US courts won’t necessarily recognize a privilege; they may defer to the law of the country that has the “predominant” or “most direct and compelling interest.” Astra Aktiebolag v. Andrx Pharmaceuticals, Inc., 208 F.R.D. 92, 98 (S.D.N.Y. 2002).
Akzo Nobel Chemicals Ltd v. European Commission, Case C-550/07-P (September 14, 2010), is required reading for anyone advising a client in the EU. In that case, the European Court of Justice determined that a company is entitled to confidentiality protection only with respect to communications emanating from “independent lawyers.” The court further found that in-house counsel did not qualify as “independent lawyers”; thus, in-house counsel’s communications with employees were not subject to protection. Akzo (and other EU decisions) can have serious consequences for US lawyers. Since US attorney-client privilege is based on assumption that client has a reasonable expectation of confidentiality, litigants may argue that US companies have no reasonable expectation of confidentiality in communications to and from in-house counsel shared with company personnel in Europe. Akzo also left open the question of whether communications with non-EU regulated attorneys (i.e., US admitted attorneys) would be protected in EU proceedings.
Cross-border representations, like driving, can be fraught with peril. Before doing either, make sure you familiarize yourself with local laws and procedures.
Every week, we regale readers with stories of lawyers’ ethical lapses and other misconduct. But here’s a story demonstrating that the conduct of anyone who works at a law firm — including paralegals, assistants, clerks, and other staff — can be subject to the same scrutiny, and result in the same severe consequences, as that of lawyers.
Last week, the SEC filed an insider trading Complaint against a stockbroker named Vladimir Eydelman and Steven Metro. Although trained as a lawyer, Metro did not practice law; he worked as a managing clerk at Simpson Thacher & Bartlett. The Complaint asserts that, through an unnamed “middleman,” Metro leaked confidential information about pending deals that Simpson Thacher was working on to Eydelman, who then allegedly traded on the information. The Complaint describes a cloak-and-dagger scheme to avoid detection, including meetings under the Big Clock at Grand Central Station and tips written on napkins which were then eaten in an attempt to destroy physical evidence. It didn’t work.
According to the Complaint, Metro’s take on the more than $5 million reaped from the scheme amounted to about $150,000. But that’s not the only thing he got. He also got fired. And he got arrested.
Law firms (and in-house legal departments) should have clear policies on confidentiality and insider trading that apply not just to lawyers, but to all personnel. The policies should, at the very least, admonish individuals to maintain information about client matters confidential; prohibit the purchase or sale of securities when the individual or the firm has material inside information; and provide for a clearing process before an individual is allowed to purchase securities.
While Mr. Metro’s (former) position cries out for a clip from Kevin Smith’s 1994 movie “Clerks,” there is precious little from that movie that has anything do with confidentiality or insider trading (at least nothing that’s not offensive). I’ll settle
for this tutorial instead.
I doubt President Reagan had the following in mind when he made the above remarks, but let his comments set the stage for this hypothetical:
You’re a busy lawyer working at your desk, and the receptionist calls. “There are a pair of FBI agents in the lobby, and they would like to talk to you about a matter you worked on a few years ago. They know they don’t have an appointment, but they promise it won’t take long and said it’s really important. Can you come down and see them?” Or maybe they call you directly. Or show up at your home, while you’re having dinner. What do you do?
Well, if you are a lawyer, and the authorities wish to ask you questions about your clients, you are about to engage in a particularly perilous activity. Do you know what you can say? Is the identity of your client a confidence you can disclose in this setting? Have you thought through the privilege issues? What about the duties you might have to notify a current client of the contact? A former client? What if the officers ask you to keep their contact confidential? Will you then have to testify in a grand jury? What if you said something, and later think that wasn’t quite right? This is a lot to process on the spur of the moment.
So, what’s a lawyer to do with a pair of G-men tapping their toes in reception? One approach: “Hi. Thanks for coming. Can I have your card? I or someone else will get back to you promptly.” And then call your counsel!
Even for non-lawyers, while many of us have the entirely understandable urge to be good cooperative citizens, you may still be about to embark in risky behavior. I’ll let the good professor, below, offer his take on the virtues of the Fifth Amendment.
“I keep secrets for a living.” That’s a perfectly sound (albeit incomplete) job description for a lawyer. Maintaining client confidence is a core component of a lawyer’s duty. Yet, time after time, lawyers stumble on this basic requirement, with unpersuasive excuses about one too many drinks or a misguided belief that some news is just too good not to share with a close friend. Further, even those lawyers who would never think about intentionally revealing a client secret may do so inadvertently. How many supposedly private communications have been overheard in a restaurant, an airplane, or the Acela.
Of course, lawyers need to be cautious about how we transact our business in public, but what about in a lawyer’s own offices? If you remember the old Perry Mason series (1957-66), Perry had this well thought out. Perry’s office had a private door, so his clients could come and go without being seen by a nosey interloper in reception. Indeed, as one fan mapped out, Perry’s office suite had 11 separate doors:
What if Perry decided to economize, and share his office space with another lawyer or perhaps the Paul Drake Detective Agency? Shared space presents a number of risks. One ethics opinion notes that confidentiality and conflict of interest issues abound, including “access to legal files by non-law practice personnel, lack of privacy due to the partially enclosed cubicles, and the inadvertent publication of privileged information,” which might impact a claim of privilege. The opinion continues: “All are real concerns which must be addressed, particularly in light of the lawyer’s responsibility under Rule 5.3(b) to take reasonable efforts to ensure that the conduct of a non-lawyer assistant is compatible with the professional obligations of the lawyer.” Absent shared personnel, another ethics opinion concludes that such an arrangement could be permissible where “the businesses are segregated, client confidences are protected, and public communications about each business entity are clear and do not create unjustified expectations about the results which can be achieved.”
Here’s another concern. Perry could close his many doors and have a private phone call. As noted in this article, confidentiality in close quarters is paramount: “Make sure your verbal communications with clients are private. This means that you must have a separate office with a door; it also might mean closing your door when you’re meeting with a client or talking on the phone.” If you don’t have doors, or a private area, how can you comply?
And what if your office looks less like Perry’s, and more like this:
For some time now, lawyers have been working in cubes, but even where a single firm or law department follows an open plan design (even without sharing space with outsiders), there are risks that must be managed. For example, sufficient closed door conference space should be allowed for private meetings and phone calls. Policies and procedures should be developed so as to ensure that visitors and others don’t have improper access to confidential information during the day. And, after hours, there should be mechanisms so as to ensure confidential information is put away and protected.
Lawyers keep secrets for a living. That means avoiding disclosure of confidential information in elevators, airplanes, hotels, courthouse hallways, and even in our own offices when visitors are present. It also means holding your liquor. It’s basic stuff.
Protecting a law firm’s electronic data and systems is a more complicated — and more expensive — undertaking. Did you know that law firms identify and analyze hundreds of thousands of security-related “hack” events each day? Did you know that more than half of all attacks may be linked to organized crime? Did you know that intellectual property is valuable? (Okay, you knew that one.) As you would expect, a law firm’s information security team has to be constantly vigilant.
You can help out the security gurus. Here are two easy things you can do that can make a big difference:
1. Don’t click on things you don’t know. Don’t click on unknown links in strange emails. Don’t accept “friend” requests from people you don’t know. Don’t assume that email purportedly from your credit card company, which doesn’t have your work email address, is genuine.
2. Upgrade your passwords. You may have seen Rupert Murdoch testify as part of the UK hacking scandal, so you changed the default voicemail on your mobile phone, right? But, have you also changed your password to something more complicated than “Passw0rd12” when your last password was “Passw0rd11”? The on-line comic strip XKCD has an interesting take on this:
When asked how he felt on his death bed, the English actor Edmund Kean (1787-1833) supposedly remarked: “Dying is easy; comedy is hard.” Kean wasn’t alone. Comedy also is tough for lawyers. Take the lawyer below, for example. Sure, he won the case, but his comedy stylings didn’t have ’em rolling in the aisles:
Comedy isn’t the only thing lawyers have trouble with; lawyers also trip up on social media. First, there are the ethical minimums. Lawyers can stumble on these in multiple ways:
Indeed, the topic appears so perilous that the ABA is selling a book devoted entirely to how to do “Linked In” right.
Beyond ethical minimums, a thoughtful lawyer should give some care to what a client might think about his remarks, posted for all the world to see. Calling a firm client a perjurer, for example, via Twitter, might not be the best business development tool. We won’t name names here; but trust us, we’ve seen it happen (happily, at another firm). After all, while some of us are fortunate enough to have an expense account for “business development,” we’ve never heard of a firm willingly financing partners for their “business prevention” activities.
Come to think of it, maybe this blog wasn’t the best idea ever . . . .