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EASL Spring Meeting - Popcorn and Ethics Program Summary

By Monica Pa

The Spring Meeting for NYSBA occurred on May 7th at the Concierge Conference Center in New York City. There was a general introduction by Judith Prowda, the Section Chair, and Tracey Meyer, the program Co-Chair. We then launched into the ethics presentation “Popcorn & Ethics”, presented by Mark J. Solomon, The Boardman House, Ithaca.

Mark covered several new developments in the New York Rules of Professional Conduct.

(1) The Biggest New Change to the Rules: Under the new Rule 3.3(b), attorneys have an affirmative obligation to reveal a client misrepresentation to a tribunal

Lawyers are ethically obligated to represent their clients competently and diligently, and to preserve their confidential information. But lawyers, as officers of the court, are also ethically and professionally obligated not to assist their clients in perpetrating fraud on tribunals or testifying falsely. Under the prior Rule 3.3, if an attorney learns that his or her client made a misrepresentation, the attorney was obligated to remonstrate with the client, but he or she could not reveal the misrepresentation if the information was a client confidence (and basically all information between a lawyer and client is confidential).

Effective April 1, 2009, Rule 3.3 forbids a lawyer from offering or using knowingly false evidence before a tribunal, and requires a lawyer to take reasonable remedial measures upon learning that the client provided false testimony. A lawyer who knows that the client will lie/is lying/or HAS lied before a tribunal, shall take “reasonable remedial measures” including, if necessary, disclosure to the tribunal. Note that “tribunal” is broadly defined and includes governmental and administrative agencies, not simply a court. An attorney has an obligation to notify his or her client prior to the client’s appearance before the tribunal if the attorney knows or has reason to suspect that the client intends to provide false testimony.

To make clear that the old rule was repudiated, the current rules state that Rule 3.3 trumps Rule 1.6, which defines “confidentiality”.

QUESTION: Is this a good rule?

According to one attorney in the audience, this makes sense because an attorney should have some “skin in the game”. Attorneys cannot simply aid a litigious client knowing that the client is filing a false complaint. This is akin to Federal Rule 11. An attorney should know that he or she cannot file a false paper without liability.

In response, Mark stated that New York state courts already have a mechanism for this problem (but this is only in court, not “tribunal“ broadly defined). An attorney who filed a paper with the court has to certify that the filing did not contain false information. If the attorney learns that the filing was false, then he or she must withdraw the certification. The withdrawal of a certification effectively notifies every party in the case that there is a problem, but the attorney is not disclosing any specific client confidence. Under the new rule, the attorney now must reveal the specific client misrepresentation if the client does not reveal the misrepresentation him or herself.

QUESTION: What is a reasonable remediation?

Mark explained that there is some commentary on this issue, but not much. There are two recent ethics opinions on this issue included in the materials. Faced with this problem, the attorney’s first reaction should not be to directly and immediately report the client to the tribunal. What is intended by Rule 3.3 is a process, commencing with a conversation with the client similar to what would have happened under the old Rule 3.3, but now this conversation has “some teeth.” Under the prior rules, the attorney could not do anything if the client refused to correct the misrepresentation; under the new Rule 3.3, the attorney can threaten the client by saying that he or she is ethically obligated to disclose the misrepresentation if the client does not.

To remedy the misrepresentation, the attorney should withdraw the specific evidence. So, for example, if a misrepresentation is contained in a single affidavit or an exhibit, just withdraw that document.

According to Mark, this amendment was sought from judges who were sick of being lied to. It is unclear how this new rule will play out, especially in the case of criminal defense attorneys. He said that, basically, “there is a whole new way for lawyers to get into trouble. Lawyers now need to be acutely sensitive to the possibility that their client is lying, and must cope with that in advance.” He closed with the observation that, under the new rule, we’ll treat judges better than we treat each other because we do not have a duty of remediation with conversations with opposing counsel.

(2) Conflicts of Interest

The materials included a helpful check-list to assist one’s thinking about conflicts prior to accepting a new representation.

Mark pointed out an interesting distinction in the perception of conflicts between small and big firms. The big firm’s view is that clients are sophisticated and they know what they need and want. If they are willing to tolerate the conflict, then they should be able to waive it (“waiver” is a misnomer, its more accurate to say “consent”). The small-firm view is that a conflict is never waivable. The ABA’s approach is more consistent with the “big firm” view, but the State Bar is more aligned with the small firm’s view. When the rule on conflict was being proposed, the State chose to use the same definition that had been used in the NY Code of Professional Responsibility (e.g., “differing interests”). So the standard under DR 5-101 remains, but under the new rules, there was an expansion of “permissible” conflicts of interests. An attorney still cannot represent two sides in a litigation, but if the attorney believes that he or she can represent both sides competently, then the conflict is waivable. The attorney must still obtain informed consent; meaning, the client must understand the conflict. This requires the attorney to have a conversation with the client and accurately predict the conflict that may arise down the road. The attorney should then have the client’s waiver confirmed in writing.

Note that an attorney may also owe ethical obligations to prospective clients and even to witnesses (usually expert witnesses), so the firm should include these names in its conflict check.

(3) Advertising Rules

The Second Circuit has recently held that content-based attorney advertising rules are unconstitutional, subject to a few limited exceptions (e.g., cannot advertise a fictitious law firm).

However, ethics rules concerning solicitation remain; so solicitation must be true and not misleading. Historically, solicitation was absolutely prohibited. Bear in mind that written solicitation must be filed with the court, which may include an attorney’s website. If the website is interactive (e.g., asks the viewer to email the attorney for additional information), then this could be construed as a solicitation and a print-out of the website may need to be filed with the court.

(4) Email Communications

Be aware of email communications with an employee. If, for example, the attorney’s client is involved in an employment dispute, and the attorney is communicating with the employee via the employee’s work email address, then the attorney may be jeopardizing the attorney-client privilege because the email server is owned by the employer. All A/C communications require a “confidential setting.” The attorney should be sure that the employer does not have a policy about personal use of email, or rules concerning the employer’s right to inspect and review the employee’s electronic communications.

If the employee uses Yahoo and Gmail for email, but checks those emails at work, the confidentiality of these communications is unclear (but unlikely to be protected). [My personal experience is that an employer may be able to pull up Yahoo or Gmail emails checked at the office. Images of those emails are stored on the computer.]

The Supreme Court is currently considering a case involving whether an employee had a reasonable expectation of privacy in communications made on the employer’s equipment. The police officer received “sexy” text messages on equipment owned by the employer.

Finally, be aware that there are some bad cases saying that a conversation between a lawyer and his or her firm’s in-house ethics counsel may not be privileged. For example, if the attorney commits malpractice and speaks to the firm’s in-house ethics lawyer, the conversation between the attorney and the in-house lawyer may not be privileged if that client brings suit against the law firm. Instead, in order to be fully protected, the attorney should consult with counsel outside of the law firm.

(5) Practice Pointers

- Return all phone calls
- Review your bills
- Talk to your clients about their accounts when they like you, don’t wait for the relationship to sour

Note that most malpractice claims originate as fee disputes or a failure to return telephone calls.

The Movies (courtesy of Chris Robinson, Esq., Davis Wright Tremaine):

After the break, Mark used excerpts from two movies, Class Action by Michael Apted and The Rainmaker by Francis Ford Coppola, to illustrate the ethics rules in practice (or malpractice). In Class Action, which was based loosely on the Ford Pinto gas tank scandal, ethical issues arising from the unlikely fact pattern that counsel for the defendant manufacturer was the daughter of the lead attorney for the class plaintiffs included conflicts of interest, spoliation of evidence, impermissible contact with a party represented by counsel, and deposition conduct. Issues highlighted by The Rainmaker ranged from lawyer solicitation, client confidences and the attorney-client privilege to the inadvisability of representing a murder suspect when the lawyer is himself an accessory to the crime!

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This page contains a single entry from the blog posted on May 20, 2010 7:09 PM.

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