Category Archives: Confidentiality

New York Bar opinion states that lawyers must take reasonable steps to protect confidential information in a border search

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York City Bar Association ethics opinion which states that lawyers must take reasonable precautions to protect attorney/client confidential information if the lawyer is searched by U.S border/customs agents (and/or agents of other countries).  The ethics opinion is NYCBA Formal Opinion 2017-5:  An Attorney’s Ethical Duties Regarding U.S. Border Searches of Electronic Devices Containing Clients’ Confidential Information and it is here: NYCBA Opinion 2017-5.

The opinion states that the lawyer should take reasonable precautions, which will be dependent upon various factors, including the sensitivity of the information, the likelihood of disclosure, and the cost and difficulty caused by implementation of the precautions.  The opinion further states that the simplest way to avoid the issue is to not possess any client confidential information when crossing the border and options would include carrying a “burner” telephone, laptop computer, or other digital device, removing confidential information from digital devices, signing out of cloud-based services, uninstalling applications allowing remote access to confidential information, storing confidential information in secure online locations rather than locally on digital devices, and using encrypted software.

If a border agent asserts lawful authority to search an electronic device containing confidential data, the opinion states that the lawyer should try to prevent disclosure which would include advising the border agent that the device contains confidential information and files, requesting that the confidential information and/or files not be searched or copied and, if the agent is not deterred from conducting the search, asking to speak to the agent’s superior. The lawyer should also carry proof of his or her Bar membership to support the argument.

The opinion states that lawyers should also consider having printed copies of the border agency’s policies and/or guidelines on border searches available since, under the U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection guidelines, agents who are advised of a confidentiality claim state that an agent should seek further review to determine whether there is a “suspicion” that the asserted confidential material may constitute evidence of a crime or pertain to matters within the agencies’ jurisdiction.

“Although it is uncertain how border agents apply this ‘suspicion’ standard in actual searches, attorneys should take advantage of this possible avenue for preventing the disclosure of clients’ confidential information.”  Finally, if confidential information is seized or compromised during a search, the affected clients should be promptly notified.

Bottom line:  This ethics opinion appears to be the first to address the issues related to searches of a lawyer’s electronic devices during a border search.  According to the opinion, lawyers who travel outside of the United States should take reasonable measures to avoid disclosure of client information if U.S. border agents (or border agents of another country) search their electronic devices and, if confidential or privileged material is disclosed, lawyers must notify the affected clients.  My recommendation to lawyers is to avoid the issue by carrying “burner” devices and not having any client confidential information when crossing the border or, if that option is not feasible, storing confidential information in a secure online location and/or using encrypted software.

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

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Filed under Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, Ethics opinion- lawyer protecting client confidential information in border search, Ethics opinion- protecting client confidential information on digital devices, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions

Ohio lawyer receives 1 year stayed suspension for citing to, inter alia, the client’s “potentially illegal actions” in motion to withdraw

Hello everyone and welcome to this Ethics Alert which will discuss the recent Supreme Court of Ohio opinion imposing a one-year stayed suspension on a lawyer who filed a motion to withdraw which revealed attorney/client confidential information without the client’s permission or an exception authorizing the disclosure.  The case is Cleveland Metro. Bar Assn. v. Heben, Slip Opinion No. 2017-Ohio-6965 (July 27, 2017) and the opinion is here:  http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-6965.pdf

According to the opinion, the lawyer had briefly represented the client in 2008 during the initial stages of her divorce case.  The divorce proceedings were still pending in September 2013 and the client again retained the lawyer for legal assistance. The parties stipulated to the following facts in the Bar matter: (1) the client paid the lawyer a $3,000 retainer on or about September 15, 2013, (2) the lawyer filed a notice of appearance in the divorce case on September 16, 2013, and (3) less than two weeks later, the client terminated the lawyer’s legal services.

After the client terminated his services, the lawyer moved to withdraw as counsel and also submitted a supporting affidavit purporting to state his reasons for seeking withdrawal with the motion. According to the opinion, in the affidavit, the lawyer “recounted communications he had had with (the client) about the scope of his representation and his compensation, accused her of refusing to pay his agreed-upon fees ‘without cause,’ and disclosed legal advice that he had given her. He also described (the client’s) discharge of him as ‘retaliatory’ and alleged that it had ‘occurred because of [his] advice to her concerning her objectionable and potentially illegal actions’ relating to her exhusband, which he characterized as ‘a problem similar to the one [he] experienced in [his] previous representation of her.’”

The judge in the divorce case struck the lawyer’s affidavit from the record and, in his testimony at the disciplinary hearing, the judge stated that he believed that the contents of the affidavit, specifically the disclosure of attorney/client communications, were inappropriate and not necessary to seek withdrawal.

The opinion imposed a one-year suspension which was stayed on the condition that he “commit no further misconduct.”  Two justices dissented and “would suspend respondent for one year with six months stayed”, which was the recommendation of the Disciplinary Board.

Bottom line:  As this case again illustrates, lawyers must never reveal confidential attorney/client confidences in court documents, including a Motion to Withdraw, unless the client authorizes the disclosure or an exception applies which would permit or require the disclosure.

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

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Lawyer’s ethical duties and responsibilities when a represented person requests a second opinion

Hello everyone and welcome to this Ethics Alert which will discuss the lawyer’s ethical duties and responsibilities when a represented person contacts the lawyer to obtain a second opinion.  Although a lawyer is permitted to render a second opinion to a represented person who initiates the contact with the lawyer, there are important ethical and practical issues which should be considered before the lawyer agrees to do so.

A threshold issue is whether a second opinion would be an improper communication with a person represented by counsel.  In 2002, the ABA added a sentence to paragraph 4 of the Comment to Model Rule 4.2 which makes it clear that lawyers can provide second opinions if the lawyer is not representing another individual in the same matter.  Model Rule 4.2 has been adopted in substantial form by most jurisdictions, including Florida.  The Comment states:

(4) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.

Florida Bar Ethics Opinion 02-5 (March 3, 2013, rev. August 24, 2011) discusses types of information a lawyer can give to an individual who is seeking a second opinion as well as potential solicitation.  The opinion states that, a lawyer may provide information about the lawyer’s availability and qualifications when contacted by an individual and if the information is requested.

The opinion concludes:

… a lawyer may provide a second opinion to a person who is represented by counsel at the person’s request. In providing the second opinion, the lawyer must give competent advice, and in doing so should carefully consider any limitations with which the lawyer is faced. Rule 4-1.1, Rules Regulating The Florida Bar. The lawyer should scrupulously avoid improperly soliciting the person. The lawyer may discuss what services the lawyer would be able to provide if the represented person requests not merely a second opinion, but also information about the lawyer’s availability and qualifications. Whether or not particular communications between the lawyer and the represented person might be considered tortious interference with an existing lawyer-client relationship is a legal question, outside the scope of an ethics opinion.

As is stated in the above ethics opinion, before giving a second opinion, the lawyer should consider whether he or she can competently render the opinion.  In order to be competent, the lawyer might need to review the client’s file, which may only be available through the client’s current lawyer.

South Carolina Bar Opinion 97-07 (1997) states:

…A lawyer may discuss a pending legal matter with a client who is represented by another attorney. If the client is seeking a second opinion based on a subjective opinion rendered by the client’s attorney, the lawyer should carefully consider the basis of the advice of the client’s attorney and may be required to consult with the client’s attorney in order to give competent legal advice. If so, the lawyer should advise the client accordingly prior to giving any opinion or advice.

A lawyer who provides a second opinion is also creating an attorney/client relationship and attorney/client confidentiality would apply.  The scope of confidentiality is extremely broad and includes all information related to the representation, including the fact that the client came to the lawyer for a consultation; therefore, the lawyer would not be able to contact the person’s current lawyer, unless the client consents or there is an exception to the confidentiality rule.

Oregon State Bar Opinion 2005-81 (Revised 2014) states:

A lawyer may provide a second opinion to a potential client regarding the quality of work done by another lawyer. The lawyer may not inform the other lawyer of the client’s request unless the client consents or another exception to the duty of confidentiality is applicable.

Bottom line:  It is not unethical for a lawyer to provide a second opinion; however, there are important ethical and practical issues that a lawyer should consider before agreeing to do so.

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

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Filed under Attorney Ethics, Confidentiality, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Uncategorized

Lawyer’s ethical duties and responsibilities when a represented person requests a second opinion

Hello everyone and welcome to this Ethics Alert which will discuss the lawyer’s ethical duties and responsibilities when a represented person contacts the lawyer to obtain a second opinion.  Although a lawyer is permitted to render a second opinion to a represented person who initiates the contact with the lawyer, there are important ethical and practical issues which should be considered before the lawyer agrees to do so.

A threshold issue is whether a second opinion would be an improper communication with a person represented by counsel.  In 2002, the ABA added a sentence to paragraph 4 of the Comment to Model Rule 4.2 which makes it clear that lawyers can provide second opinions if the lawyer is not representing another individual in the same matter.  Model Rule 4.2 has been adopted in substantial form by most jurisdictions, including Florida.  The Comment states:

(4) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.

Florida Bar Ethics Opinion 02-5 (March 3, 2013, rev. August 24, 2011) discusses types of information a lawyer can give to an individual who is seeking a second opinion as well as potential solicitation.  The opinion states that, a lawyer may provide information about the lawyer’s availability and qualifications when contacted by an individual and if the information is requested.

The opinion concludes:

… a lawyer may provide a second opinion to a person who is represented by counsel at the person’s request. In providing the second opinion, the lawyer must give competent advice, and in doing so should carefully consider any limitations with which the lawyer is faced. Rule 4-1.1, Rules Regulating The Florida Bar. The lawyer should scrupulously avoid improperly soliciting the person. The lawyer may discuss what services the lawyer would be able to provide if the represented person requests not merely a second opinion, but also information about the lawyer’s availability and qualifications. Whether or not particular communications between the lawyer and the represented person might be considered tortious interference with an existing lawyer-client relationship is a legal question, outside the scope of an ethics opinion.

As is stated in the above ethics opinion, before giving a second opinion, the lawyer should consider whether he or she can competently render the opinion.  In order to be competent, the lawyer might need to review the client’s file, which may only be available through the client’s current lawyer.

South Carolina Bar Opinion 97-07 (1997) states:

…A lawyer may discuss a pending legal matter with a client who is represented by another attorney. If the client is seeking a second opinion based on a subjective opinion rendered by the client’s attorney, the lawyer should carefully consider the basis of the advice of the client’s attorney and may be required to consult with the client’s attorney in order to give competent legal advice. If so, the lawyer should advise the client accordingly prior to giving any opinion or advice.

A lawyer who provides a second opinion is also creating an attorney/client relationship and attorney/client confidentiality would apply.  The scope of confidentiality is extremely broad and includes all information related to the representation, including the fact that the client came to the lawyer for a consultation; therefore, the lawyer would not be able to contact the person’s current lawyer, unless the client consents or there is an exception to the confidentiality rule.

Oregon State Bar Opinion 2005-81 (Revised 2014) states:

A lawyer may provide a second opinion to a potential client regarding the quality of work done by another lawyer. The lawyer may not inform the other lawyer of the client’s request unless the client consents or another exception to the duty of confidentiality is applicable.

Bottom line:  It is not unethical for a lawyer to provide a second opinion; however, there are important ethical and practical issues that a lawyer should consider before agreeing to do so.

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

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ABA revises recent Formal Opinion 477, which addresses lawyer ethics issues when transmitting confidential information over the internet

Hello everyone and welcome to this Ethics Alert update which will discuss Revised ABA Formal Opinion 477, which was issued on May 22, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  According to the ABA, Formal Opinion 477 was revised to clarify that the opinion does not alter Formal Ethics Opinion 11-459 and to note that the change in Model Rule 1.6(c) supported 11-459. There are no substantive changes to the opinion.  The revised Formal Opinion is here: Revised ABA Formal Opinion 477.

ABA Formal Opinion 477 states:  “In 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.” (emphasis supplied).`

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.”  (emphasis supplied).

Bottom line:  The now revised ABA formal opinion addresses the important ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules 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 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 formal opinions, ABA opinion 477- communication with client over internet, Attorney Ethics, Confidentiality, joe corsmeier, Joseph Corsmeier, Lawyer communication over internet- confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions

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 opinions, Attorney/client confidentiality, Confidentiality, Confidentiality and privilege, lawyer confidentiality, Lawyer ethical duties when sending confidential information over the internet, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

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