Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Conflicts must always be at the forefront of an attorney’s mind throughout the life of an attorney-client relationship. An attorney’s first duty is to her client, but what happens when a witness in a case also seeks representation? Can you represent a party as well as a witness? Such a question creates the potential risk of disqualification, as illustrated by a recent lawsuit involving hip-hop mogul Jay-Z.
Under Model Rules of Professional Conduct 1.15 and 1.16, a lawyer must safeguard a client’s property and deliver it promptly to the client upon the client’s request and upon termination of representation a lawyer shall take whatever steps are reasonably practical to protect a client’s interest. The ABA recently issued a formal opinion clarifying and updating a lawyer’s ethical obligations under these Rules and addressing practical considerations regarding the application of these Rules to practice.
Employers must adapt to Obergefell v. Hodges. Prior to the Supreme Court’s June 26, 2015 decision, many states did not require employers to recognize and provide benefits for married same-sex couples. Only 36 states and Washington D.C. legalized same-sex marriage. Now, the Supreme Court determined that the 14th Amendment requires states to license same-sex marriages and to recognize lawfully licensed same-sex marriages performed out-of-state. In light of this holding, employers must ensure that their policies, procedures and the benefits comport with federal law.
Social Media has transformed the legal profession. Today’s lawyers routinely communicate, advertise, investigate and obtain information via the numerous social media platforms available at the click of a button. The rapid change in the way lawyers do business has created a new set of ethical challenges. In order to navigate this growing field of ethical issues, many states have issued guidelines for the use of social media in the legal profession. Last year, the New York State Bar Association’s Commercial and Federal Litigation Section issued its first set of Social Medial Ethics Guidelines. Just recently, those Guidelines were updated to address areas that require additional guidance including new sections on the retention of social media by lawyers, tracking of client social media, communications by lawyers with judges, and lawyers’ use of LinkedIn.
e·gre·gious: adjective; outstandingly bad/shocking. In the malpractice context, egregious is used to describe conduct that is so extraordinary that it may violate the rules of Professional Conduct. What is considered egregious can vary depending on the circumstances of the case and often is defined by the end result. Take for example the following case, where counsel’s egregious conduct resulted in a mistrial. According to the court: “That word – egregious—is difficult to write, but nothing else seems adequate.”
Ghostwriting on behalf of pro se litigants has sparked an interesting debate. Although unrepresented parties may be at a bit of a disadvantage when presenting their position to a represented adversary, some may take advantage of an attorney lending assistance behind the scenes. Legal ghostwriting is one form of “limited-scope representation”, or the unbundling of legal services, a practice in which a client retains an attorney for limited tasks as opposed to the traditional handling of all aspects of a matter. Rules regarding this practice vary widely by jurisdiction; many federal courts do not allow it but many state courts do.
Professionals often require additional assistance handling time-consuming, but routine, tasks. This is particularly apparent in complex litigation that involves voluminous discovery and document review. Not surprisingly, document review can quickly become one of the more labor-intensive and expensive stages of the case. In order to meet this challenge, many firms will hire temporary attorneys to review the discovery for privilege and scope. Before doing so, query whether these firms consider the overtime implications of the FLSA.
Attorneys often utilize local counsel to assist in a venue they are not licensed. The role of the local counsel will vary from case to case. Generally speaking, local counsel have a more limited role in the litigation. However, according to a recent NY ethics opinion, a limited role does not necessarily mean limited responsibilities or risks.
Professionals love to promote their success stories. Securing major victories can help attract new clients and help establish professional reputation. This is especially true of attorneys, who are often solicited to comment on public aspects of a case once it has concluded. However, post-case commentary could lead to a violation of the attorney’s duty of confidentiality—even when the information discussed concerns issues that are widely known or publicly available.
What to do? When reviewing discovery provided by your adversary you stumble upon a privileged document. It happens…sometimes privileged materials fall through the cracks and into the hands of opposing counsel. Do you read it, burn it, return it? According to a recent New Jersey decision, reading an inadvertently produced privileged document may be grounds for disqualification.