Category Archives: Attorney/client privilege and confidentiality

ABA Formal Opinion 477 addresses lawyer ethical duties when transmitting client information over the internet

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 477, which was issued on May 11, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  The Formal Opinion is here: ABA Formal Opinion 477.

ABA Formal Opinion 477 is an update opinion which specifically addresses “securing communication of protected client information” over the internet.

The Formal Opinion states:  “(i)n Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.”

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”

Bottom line:  This ABA opinion addresses the ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules of Professional Conduct and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this ethics alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under ABA Formal Opinion- securing confidentiality over internet, ABA formal opinions, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer revealing client confidential information on internet, Lawyer technology competence

Florida Supreme Court finds that attorney-client privilege prohibits inquiries into lawyer/doctor referral relationships

Hello everyone and welcome to this Ethics Alert which will discuss the important very recent Florida Supreme Court opinion which prohibit inquiries by defense counsel into referral relationships between the plaintiff’s law firm and a physician.  The case is Worley v. Central Florida Young Men’s Christian Ass’n, Inc., No. SC15-1086 (Fla. SC April 13, 2017).  The Florida Supreme Court opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc15-1086.pdf

The Florida Supreme Court considered the case because of a certified conflict under art. V, § 3(b)(4), Fla. Const. in the opinions of the Fifth District Court of Appeal (in this case) and the Second District Court of Appeal (in Burt v. Government Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992).

According to the opinion, Heather Worley was a plaintiff in a lawsuit against YMCA after she allegedly fell in a Florida YMCA parking lot.  Worley was represented by Morgan & Morgan.  At Worley’s depositions, YMCA’s lawyer asked if she was referred to her specialists by her attorneys and Worley’s lawyer objected on the ground that the information was attorney-client privileged.

YMCA then served interrogatories directed to specific doctors employed by three medical providers with whom Worley treated and also served a supplemental request to produce to Morgan & Morgan, to attempt to establish the existence of a referral relationship between Morgan & Morgan and the treating physicians.  The opinion states that “(t)hese efforts were based on YMCA’s suspicions that there was a ‘cozy agreement’ between Morgan & Morgan and the physicians, due to the amounts of Worley’s medical bills.”

Worley objected (through Morgan & Morgan) and stated that the discovery requests were “overbroad, vague, unduly and financially burdensome, irrelevant and in violation [of] allowable discovery pursuant to Florida Rule of Civil Procedure 1.280(b)(4).”  She also contended that Morgan & Morgan does not maintain “information for treating physicians as in this matter, or otherwise.”

At a hearing on Worley’s objections, “the trial court only sustained Worley’s objection to the question regarding whether she was referred to the doctors by her attorneys and ‘did not address Worley’s objections to YMCA’s other outstanding discovery requests at that time.’”  The Fifth DCA upheld the lower court’s order and relied on Florida district court decisions which held that the financial relationship between a law firm and a plaintiff’s treating physician is discoverable if evidence of a referral relationship can be shown.  Those cases relied upon the Florida Supreme Court’s decision in Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999).

In its 4-3 decision, the Court rejected the application of Boecher and found that the defense attorneys were prohibited from inquiring about the referral relationships between plaintiff’s firm, Morgan & Morgan, and Sea Spine Orthopedic Institute stating that “(a)llowing further discovery into a possible relationship between the physician and the plaintiff’s law firm would only serve to uncover evidence that, even if relevant, would require the production of communications and materials that are protected by attorney-client privilege.”  “We do not agree with the Fifth District’s attempt to circumvent the attorney-client privilege out of perceived necessity. The attorney-client privilege is the oldest confidential communication privilege known in the common law.”

“Even in cases where a plaintiff’s medical bills appear to be inflated for the purposes of litigation, we do not believe that engaging in costly and time-consuming discovery to uncover a “cozy agreement” between the law firm and a treating physician is the appropriate response. We are concerned that this type of discovery would have a chilling effect on doctors who may refuse to treat patients who could end up in litigation out of fear of becoming embroiled in the litigation themselves. Moreover, we worry that discovery orders such as the one in this case will inflate the costs of litigation to the point that some plaintiffs will be denied access to the courts, as attorneys will no longer be willing to advance these types of costs. Finally, attempting to discover this information requires the disclosure of materials that would otherwise be protected under the attorney-client privilege.”

The Supreme Court opinion quashed Fifth DCA’s decision permitting the discovery and approved the decision of the Second DCA.

Bottom line: This case is important since it addresses and appears to settle the question of whether the defense in a personal injury case (or any case) can use discovery to attempt to determine if there is a “cozy” relationship between the plaintiff’s law firm and treating medical providers.  The opinion found that the information sought was protected by the attorney/client privilege, §90.502(2), Fla. Stat., and that the discovery was prohibited.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under .S. Supreme Court, attorney/client privilege, Attorney/client privilege and confidentiality, Attorney/client privilege discovery of referral relationships with doctors, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer ethics duties re subpoena for client confidential documents and information, prohibition of inquiries into lawyer/doctor referrals

ABA Ethics Opinion provides guidance regarding client confidentiality when lawyer withdraws from representation for failure to pay fees

Hello everyone and welcome to this Ethics Alert which will discuss the recent ABA Formal Ethics Opinion which provides guidance regarding client confidentiality when a lawyer withdraws from representation.  The opinion is ABA Formal Opinion 476 (12/19/16) and is online here: ABA Opinion 476.

Model Bar Rule 1.16 related to withdrawal from representation

The ABA opinion discusses Model Rule 1.16, which is substantially similar to the Florida Bar Rule 4-1.16 and other state Bar rules.   According to the opinion, “Model Rule 1.16 addresses a lawyer’s duties and responsibilities when withdrawing from the representation of a client. Rule 1.16(a) sets forth the circumstances when a lawyer is required to withdraw, and Rule 1.16(b) describes the circumstances when a lawyer may be permitted to withdraw from a representation.  Among the permissive reasons, Rule 1.16(b)(5) provides that a lawyer may withdraw from representing a client when “the client substantially fails to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”

“Comment [8] to (Model Rule 1.16) states:  ‘A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs . . . .’ In addition, Rule 1.16(b)(6) provides that a lawyer may withdraw where ‘the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.’  As the courts have decided in the cases cited below, if a client fails over time to pay a lawyer’s fees, and that failure continues after a lawyer provides a reasonable warning to the client, the lawyer may be permitted to withdraw.  In effectuating a withdrawal, a lawyer should do so in a manner that minimizes any prejudice to the client.”

Model Bar Rule 1.16 related to the lawyer’s duty to maintain confidentiality 

“Neither Rule 1.6(b) nor the Comments expressly refer to motions to withdraw for unpaid fees. The Comments do, however, recognize that some disclosure of confidential client information otherwise protected by Rule 1.6(a) is permitted in fee-collection suits by lawyers, based on the “claim or defense” exception in Rule 1.6(b)(5).  Similarly, motions to withdraw based on a client’s failure to pay fees are generally grounded in the same basic right of a lawyer to be paid pursuant to the terms of a fee agreement with a client. Nonetheless, courts have differed widely as to whether any specific information regarding a lawyer’s reasons for seeking withdrawal is required in a motion to withdraw, and if so, how much.”

Limiting any required disclosures of confidential information to mitigate harm/prejudice to clients 

The opinion also discusses the requirements to limit disclosures to mitigate harm/prejudice to the client.  “Comment [16] to Rule 1.6 provides that disclosures under Rule 1.6(b) are permitted only to the extent the lawyer reasonably believes necessary to accomplish the purpose specified.  Of course, where practicable, a lawyer should first seek to persuade the client to take suitable action to remove the need for the lawyer’s disclosure. When such persuasion is not practicable or successful, and disclosure of some confidential information is required, ‘If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.’   Thus, Comment [16] anticipates the use of in camera submissions for disclosures where any of Rule 1.6(b)’s exceptions may apply. The situation is similar to discovery disputes over claims of privilege, whereby competing claims are often resolved by a court’s review in camera of the documents at issue and such procedures can help reconcile the competing issues involved in ruling on motions to withdraw as well.

The opinion’s final summary paragraph states:  “In moving to withdraw as counsel in a civil proceeding based on a client’s failure to pay fees, a lawyer must consider the duty of confidentiality under Rule 1.6 and seek to reconcile that duty with the court’s need for sufficient information upon which to rule on the motion. Similarly, in entertaining such a motion, a judge should consider the right of the movant’s client to confidentiality. This requires cooperation between lawyers and judges. If required by the court to support the motion with facts relating to the representation, a lawyer may, pursuant to Rule 1.6(b)(5), disclose only such confidential information as is reasonably necessary for the court to make an informed decision on the motion.”

Bottom line:  All lawyers must be aware of the ethics rules, issues, and requirements surrounding client confidentiality when a lawyer is withdrawing from representation due to the client’s failure to pay the fee and this opinion provides a good overview.  The fact that the client has failed to pay is confidential in itself and the lawyer should not include any client confidential information in the motion to withdraw and should only provide the information to the court if necessary or if ordered to do so by the judge.  If the court orders the lawyer to provide confidential information, the lawyer should consider an in camera appearance before the judge with the client and excluding the opposing counsel to preserve confidentiality, if plausible.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Leave a comment

Filed under ABA Ethics Opinion provides guidance regarding client confidentiality when lawyer withdraws from representation, ABA Ethics Opinion provides guidance regarding client confidentiality when lawyer withdraws from representation for failure to pay fees, ABA formal opinions, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege

Arizona lawyer disbarred upon consent for disparaging book about his client Jodi Arias which violated client confidentiality

Hello everyone and welcome to this Ethics Alert which will discuss the recent disbarment of an Arizona lawyer who represented notorious murder defendant Jodi Arias and published a book with disparaging details about the representation and revealing attorney/client confidential information without the consent of the client.  The case is In the Matter of Laurence K. Nurmi, Case No. PDJ-2016-9115.

The lawyer began representing Jodi Arias as an assistant public defender.  She was charged in the lurid and violent murder of her boyfriend in Arizona in 2008 and was found guilty of first degree murder in May 2013; however, the jury was unable to reach a unanimous decision on whether to sentence her to death.

Another sentencing hearing was held in the fall of 2014 and that jury voted 11-1 to sentence Arias to death.  The death penalty vote must be unanimous in Arizona and Arias was subsequently sentenced to life in prison in April 2015.  She has appealed the verdict and sentence.

Sometime in 2015, the lawyer began writing a book detailing his representation of Arias without written/oral permission or authority from Arias to publish or disseminate any information related to the representation.  According to the allegations, the book presents a negative view of Arias and the case.  The lawyer’s self-published book, Trapped with Ms. Arias: Part 1 of 3 From Getting the File to Being Ready for Trial (Volume 1), was released in 2015.

The book includes multiple confidential discussions between the lawyer, Arias, and her family. The book also provides details of the case, makes disparaging remarks, and makes several statements regarding the substance of witness interviews and inadmissible exhibits.  The lawyer also continued to disclose and explain certain facts and circumstances in the book related to his representation of Arias in promotional radio interviews.

In October 2016, the State Bar of Arizona filed a formal complaint against the lawyer for revealing attorney-client confidential information about Arias and her case in the book.  The lawyer attempted to settle the case with a 4 year suspension; however, Jodi Arias objected to that sanction.

Immediately after the announcement of the consent agreement, the Maricopa County public defender, James Haas, objected to the Arizona Bar because the agreement did not specifically order the lawyer to stop violating ethical rules with regard to the Arias case, including revealing confidential information, since the book was listed as one of 3 volumes.

The lawyer filed a request for disbarment on November 14, 2016.  The presiding disciplinary judge accepted the lawyer’s request on November 21, 2016 and issued an order making the disbarment effective the same day.

Bottom line:  This lawyer chose to write a book in a highly publicized and lurid case which disparaged his client and revealed attorney/client confidential information, including conversations with her and her family and disparaging comments.  Aria’s conviction is currently on appeal and it has been alleged that information in the book may jeopardize that appeal.

All lawyers should be aware that, unless the client provides informed consent, a lawyer is strictly prohibited from revealing attorney/client confidential information, even after the representation has been concluded.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

5 Comments

Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, Ethics and lawyer withdrawal, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer disbarment, Lawyer disbarment personal misconduct, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions

Lawyer-Client Confidentiality and Privilege: What is the Difference?

This Ethics Alert blog will discuss the terms lawyer-client confidentiality and lawyer-client privilege are often used interchangeably and the differences between them may become somewhat blurred.  Although both terms address information related to the client that a lawyer cannot reveal and both are used primarily to protect the client’s ability to confide freely with the lawyer, they are not synonymous.  There are several significant differences with regard to their scope, exceptions, and application.

The primary ethics rule addressing lawyer-client confidentiality in Florida Bar Rule 4-1.6, which is substantially similar to ABA Model Rule 1.6.  The Comment states that “(a) fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…” A violation of the Bar rule may result in disciplinary sanctions.

Absent an exception, confidential information remains confidential during the representation and after the client dies.  The lawyer should not reveal confidential information if it will injure the client’s interests (absent an exception or legal compulsion), and it should only be disclosed to advance those interests.

A client may give informed consent for the lawyer to reveal confidential information or information that is protected by the privilege and consent may be implied under certain circumstances.  The client must give consent to the waiver of confidentiality; however, the privilege may be inadvertently and impliedly waived by the failure to object to testimony about the privileged communications.

In contrast to privilege, the lawyer’s ethical duties regarding confidentiality are much more extensive in scope and application, particularly as to what information is protected.  Confidentiality applies not only to information received from the client but all information related to the representation, regardless of whether the information came from the client or another source.  In addition, confidentiality applies in all situations, not just in litigation.

The lawyer-client privilege is a litigation concept that arose from the principles of evidence. In Florida, the privilege is set forth in F.S. 90.502.  The client, or someone acting legally for the client, may claim the privilege, typically through the lawyer.  F.S. 90.502(e) states that a lawyer is presumed to have the authority to assert the privilege on behalf of the client.  The privilege only protects communications between the client and lawyer in a litigation context, the communications are not protected if available from another source, and the communications are not necessarily protected simply because of the communication to the lawyer.  The Comment to Bar Rule 4-1.6 states “(t)he attorney-client privilege and work-product doctrine apply in judicial and other proceedings…”

The “crime-fraud” exception to the privilege in F.S. 90.502(4)(a) permits the disclosure of information communicated to the lawyer if the client attempts to use the lawyer’s services to commit or cover up a crime or fraud.

Florida Bar Rule 4-1.6(b) requires disclosure of confidential information to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another.  This mandatory exception is different from the crime-fraud exception to privilege in that it requires the threat of substantial injury or death to require that the information be revealed.  There are other exceptions under Bar Rule 4-1.6(c) which permit (but do not require) disclosure by the lawyer.

Even if information is not covered by privilege, it may still be confidential.  Depending on the circumstances, a lawyer may also be compelled to reveal the information regardless of whether it is privileged or confidential.

Bottom line:  Although the use of the terms “lawyer-client confidentiality” and “lawyer-client privilege may often be used interchangeably, they are very different in concept, scope, and application.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N., Suite 150,

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Leave a comment

Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism

Washington D.C. lawyer receives informal admonition for revealing client confidences in response to client’s negative website comments

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent informal admonishment of a Washington D.C. lawyer who responded to a client’s negative and critical comments and revealed confidential and specific information about her case, her emotional state, and confidential details about the attorney-client relationship.  The disciplinary case is In re John P. Mahoney, Bar Docket No. 2015-D141 and the ODC’s informal admonition letter is here: http://www.dcbar.org/discipline/informal_admonition/20150609Mahoney.pdf.

The D.C. Office of Disciplinary Counsel (ODC) sent the lawyer a letter dated June 9, 2016 stating that the his internet response to a client’s complaint violated D.C. Bar Rule 1.6 since it revealed attorney/client confidential information and there was no exception to the rule allowing the lawyer to reveal the confidences.  Further, the lawyer violated D.C. Bar Rule 8.4(c)  “when (he) posted a further response on the website concerning Disciplinary Counsel’s investigation of the client’s allegations and Disciplinary Counsel’s statements.”  According to the letter, the lawyer’s claim that he had been “cleared” of the charges in the complaint “was, at best, misleading…”.

The ODC letter states:

The client’s principal complaint was that your fees were excessive. She claimed that she had prepared most of the documents you submitted on her behalf and you billed her an inordinate number of hours to proof or edit the documents, but did not advise her that a concise account of the discrimination she suffered would suffice. She further alleged that the expenses you charged were unwarranted and unnecessary. The client also was critical of your representation of her during the mediation, including the settlement demand that you made on her behalf. She claimed that you were verbally abusive, leading to her terminating the relationship.

After the attorney-client relationship ended, the client posted comments about you on a website in which she was highly critical of you and the representation you provided. You responded to her comments and, in doing so, revealed specific information about her case, her emotional state, and what transpired during your attorney-client relationship – although you did not identify the client by name.

The letter found that there was no misconduct found in the lawyer’s underlying representation of the client.  Under the D.C. Bar rules, since the lawyer did not submit a written request for a hearing within 14 days of the ODC letter, the informal admonition constitutes final discipline.  The lawyer must also complete three hours of CLE related to a lawyer’s confidentiality obligations.

Bottom line:  This lawyer responded to what he believed were false allegations by a client on a public website and provided attorney/client confidential information in defending himself.  Unfortunately, responding  to internet allegations is not one of the exceptions to the Bar confidentiality rules (Rule 4-1.6 in Florida) which permits a lawyer to reveal client confidences.

As I have stated in my earlier blogs on this topic, in our digital/instant communication brave new world, it is much too easy to react quickly and badly to a  perceived slight, such as a bad client internet review.  Before responding to any internet postings, a lawyer must seriously consider the ethical implications and not act impulsively and reveal confidential information, which may result in a Bar investigation and potential sanctions.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer discipline social media misuse, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer revealing client confidential information on internet, Lawyer sanctions, Lawyers and social media

New York State Bar ethics opinion addresses ethics issues when a lawyer copies a client with communications to opposing counsel

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York State Bar Association Ethics Opinion addressing ethics issues related to a lawyer sending correspondence to opposing counsel and copying the client.  The Ethics Opinion is NYSBA Ethics Op. 1076 (Dec. 2015) and the opinion is here:  http://www.nysba.org/CustomTemplates/Content.aspx?id=60757

The opinion specifically addresses whether a lawyer must obtain the consent of opposing counsel before he or she can blind copy the client on correspondence to opposing counsel. The opinion states that “(t)wo opposing lawyers do not have a relationship of confidentiality.   Consequently, a lawyer who receives correspondence from opposing counsel is not obligated under the Rules of Professional Conduct (the “Rules”) to maintain the confidentiality of those communications.  A lawyer does not need the ‘consent’ of opposing counsel to send the client copies of correspondence between the inquirer and opposing counsel.  Since a lawyer is an agent of the lawyer’s client, opposing counsel should expect that the lawyer may share correspondence relating to the representation with the client.”

The opinion also states that the lawyer does not engage in “dishonesty, fraud, deceit or misrepresentation” when he or she send the client copies of correspondence with opposing counsel.  The opinion noted that sending the client copies of communications with opposing counsel may be the easiest way for the lawyer to comply with his or her duties under the Bar rules to keep the client reasonably informed about the status of the matter as well as the lawyer’s duty to provide the client with information that is reasonably necessary for the client to make informed decisions about the representation.

The opinion cautioned that copying or blind copying the client on e-mails with opposing counsel is not the best practice and provided a list of reasons not to copy or blind copy the client, which are below:

Reasons Not to Use Either “cc:” or “bcc:” When Copying e-mails to the Client

Although it is not deceptive for a lawyer to send to his or her client blind copies of  communications with opposing counsel, there are other reasons why use of the either “cc:” or “bcc:” when e-mailing the client is not a best practice.

As noted above, “cc:” risks disclosing the client’s e-mail address.  It also could be deemed by opposing counsel to be an invitation to send communications to the inquirer’s client.   But see Rule 4.2, Cmt. [3] (Rule 4.2(a) applies even though the represented party initiates or consents to the communication).

Although sending the client a “bcc:” may initially avoid the problem of disclosing the client’s email address, it raises other problems if the client mistakenly responds to the e-mail by hitting “reply all.”  For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation,  the inquirer bccs his or her client, and the client hits “reply all” when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6.  See Charm v. Kohn, 27 Mass L. Rep. 421, 2010 (Mass. Super. Sept. 30, 2010) (stating that blind copying a client on lawyer’s email to adversary “gave rise to the foreseeable risk” that client would respond without “tak[ing] careful note of the list of addressees to which he directed his reply”).

Bottom line:  Many lawyers copy or blind copy the client with e-mails to opposing counsel (and others).  Although it may take additional time, the best practice would be to send a separate e-mail to the client or forward the e-mail to the client after it has been sent.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Communication with clients, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism