Chapter 2 legal ethics

Legal Ethics in a Technology Age

Chapter 2

Technology in the Law Office, 2eGoldman

© 2010, 2008 Pearson Higher Education,Upper Saddle River, NJ 07458. • All Rights Reserved.2

Issues

Legal ethics are duties owed to clients and the legal system The duty of confidentiality and attorney-client privilege The work product doctrine Dangers of an inadvertent disclosure of confidential

information Conflicts of interest The duty of competency in a technology age Obligations of candor and fairness in litigation Appropriate hiring, delegating and supervising owed by the

managing and supervising attorneys



Introduction to Ethics in Technology Ethics -- minimally accepted standards of conduct in a

profession Lawyer ethics determined by state law based on the ABA

Model Rules of Professional Conduct Paralegals ethics are governed by professional associations,

NALA and NFPA, guidelines of ethical behavior that are similar to the ABA Model Rules of Professional Conduct

Ethical conduct is required of every member of the legal team supervising attorney is responsible for her own ethical

conduct as well as that of every member of the legal team, including non-lawyers and those without legal training

Technology staff must be instructed on the ethical obligations and confidential nature of the files on which they work



Confidentiality and Privilege

Confidentiality is an ethical obligation

Privilege is a rule of evidence



Confidentiality

Ethical obligation to keep client information confidential

ABA Rule 1.6 requires the attorney to maintain the confidential information obtained from the client and may reveal such information only where the client gives his consent

Founded on belief that client should be able to tell the attorney everything about her case so the attorney can give proper legal advice



Privilege Rule of Evidence that protects client from the attorney

revealing the client’s confidential information. The privilege is lost, if the client has revealed the

same information to someone outside the legal team Privilege extends to other relationships

Spouses Clergy-penitent Doctor-patient Psychotherapist-patient Participant in settlement negotiations



Claim of Privilege

The attorney-client privilege is not automatically invoked

The privilege must be asserted and its existence established by the client



Extension of the Attorney-Client Privilege to Others

Efficient administration of justice requires lawyers to engage others to assist in providing legal representation to clients

The privilege must extend to agents of the lawyer such as legal assistants, accountants and other experts



Self Defense Exception

Lawyers who are accused of wrongdoing by their clients must be able to defend themselves

Defense may require the use of confidential and/or privileged information



Work Product Doctrine

Rule of Evidence that allows the attorney to treat as confidential her work product

Limited protection for material prepared by the attorney, or those working for the attorney, in anticipation of litigation or for trial

Confidentiality and privilege apply to relevant client communications regardless of whether they involve potential litigation



Exceptions and Limitations to the Work Product Doctrine Work product doctrine does not protect

documents prepared in the client’s normal course of business

Client does not protect documents simply by giving them to the attorney



Internal Investigations and Evidentiary Privileges Businesses conduct internal examination of operations

to uncover and correct wrongdoing Investigations result in documents that could be used

against the business Release of these documents could discourage internal

investigations and audits Documents are privileged to encourage self-policing

of these industries



Inadvertent Disclosure of Confidential Information

The slip of a finger, a misdialed fax number, a “reply to all” can result in unintentional disclosure of confidential information

Admissibility of the inadvertently disclosed documents depends on Steps taken before and after the disclosure Your particular jurisdictions treatment of the issue



Inadvertent Disclosure of Confidential Information, cont. Three judicial views on inadvertent disclosure

Automatic waiver – documents can be used No waiver – documents cannot be used Balancing test – the court will look at the circumstances to

determine whether the documents may be used ABA Guidance

A lawyer who received information from opposing counsel and knows or reasonably should know that the document was inadvertently sent should promptly notify the sender in order to permit the sender to take protective action



Conflict of Interest

ABA Rule 1.7 – a lawyer should not represent another client if the representation of one will be directly adverse to the another unless both clients give informed consent to dual representation and that consent is confirmed in writing

The basis of the rule is that a person cannot be loyal to two clients with adverse or opposing interests



Competence

ABA Rule 1.1 – a lawyer must provide competent representation to a client Competent representation requires the legal

knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

Understanding an area of law and the rules of court Effectively communicating with the client and non-

legal members of the legal team



Candor and Fairness in Litigation

ABA Rule 3.3 - duty to avoid conduct that undermines the integrity of the process The duty to advocate for the client is tempered by

the ethical obligation to not mislead the court or opposing counsel with false statement of the law or facts which the lawyer knows to be false

Reporting law, including cases and statues favorable and unfavorable to the client’s position



Fairness to Opposing Party and Counsel

ABA Rule 3.4 - guideline to ensure justice is done even if one’s client loses the case Each attorney is to use best skills and knowledge to

present fairly their position to the trier of fact Destroying, falsifying or tampering with evidence

destroys and/or undermines the legal system and the faith people have in the system



Duty to Supervise

ABA Rule 5.1 – duty of partners and lawyers with managerial authority in the firm to ensure other’s conduct complies with the ethical code Ethical breaches are the responsibility of the

supervising attorney under both the legal principals of the law of agency and the ethical code

Sanctions for failure to properly supervise From the court (damages for malpractice or breach of

contract) From the attorney disciplinary board (suspension of

license or disbarment)