Rules of Professional Conduct: Setting an effective screen

A few of my colleagues and I recently presented at the Association of Corporate Counsel, Central Pennsylvania Chapter meeting. The theme for the day was "Defending the Corporate House," and our presentation was Navigating Conflicts of Interest in the In-House and Outside Counsel Context.

My particular part of our presentation dealt with setting an effective screen under the Rules of Professional Conduct. If an attorney has a conflict of interest (perhaps it involves a former client), then that attorney may be disqualified from representing a current client in that matter - even if (s)he is in-house counsel. Worse still, one attorney's conflict of interest may be imputed to the entire firm, or even the entire in-house counsel's office! For example, see Dynamic 3D Geosolutions LLC v. Schlumberger Ltd. (disqualifying entire in-house and outside counsel).

If a law firm (for purposes of the Rules of Professional Conduct, an in-house counsel office is generally a "firm") has an attorney with a conflict, there is still hope. The Pennsylvania Rules of Professional Conduct allow for a "screen" - a way to block the conflicted attorney out of any involvement in the matter, and therefore cutting off the imputation of his or her conflict of interest to the rest of the firm:

Rule 1.10. Imputation of Conflicts of Interest: General Rule  

 (b) [T]he firm may not knowingly represent a person in the same or a substantially related matter . . . unless:  

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and 

(2) written notice is promptly given to the appropriate client to enable it to ascertain compliance with the provisions of this rule.

 When is screening effective? In Pennsylvania, courts look at multiple factors:

(1) the substantiality of the relationship between the attorney and the former client,
(2) the time lapse between the matters in dispute,
(3) the size of the firm and the number of disqualified attorneys,
(4) the nature of the disqualified attorney's involvement and
(5) the timing of the wall. 

Dworkin v. General Motors Corporation, 906 F. Supp. 273 (E. D. Pa. 1995). And then, what makes the screen effective?

(1) the prohibition of discussion of sensitive matters,
(2) restricted circulation of sensitive documents,
(3) restricted access to files,
(4) strong firm policy against breach, including sanctions, physical and/or geographical separation, to determine its effectiveness.

James v. Teleflex, Inc., 1999 U.S. Dist. LEXIS 1961 (E. D. Pa. 1999)(citing Dworkin, 906 F. Supp. at 280).

This is definitely a tricky issue, and it requires some thoughtful analysis to pull off an effective screen.

When does an attorney-client relationship exist?

This issue has popped up in my social media feeds a lot over the past day or so. Apparently, it has something to do with President Trump, a porn star, the president's attorney, and Sean Hannity . . . I'm a little behind on, well, everything, but I can provide some info on the law in Pennsylvania.

First, even if no attorney-client relationship exists, attorneys also owe some duties to prospective clients (See, Rule 1.18). An official comment to the rule explains:

Sean Hannity by Gage Skidmore

A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.  . . . . In contrast, a consultation does not occur if a person provides information to a lawyer, such as in an unsolicited e-mail or other communication, in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer without any reasonable expectation that a client-lawyer relationship will be established, and is thus not a ‘‘prospective client.’’

But what about an actual attorney-client relationship? Obviously, an attorney and client can enter into an express representation agreement. However, there can also be an implied attorney-client relationship. The Pennsylvania Superior Court has held:

Absent an express contract, an implied attorney/client relationship will be found if 

1) the purported client sought advice or assistance from the attorney; 

2) the advice sought was within the attorney's professional competence; 

3) the attorney expressly or impliedly agreed to render such assistance; and 

4) it is reasonable for the putative client to believe the attorney was representing him. 

Atkinson v. Haug, 622 A.2d 983, 986 (Pa. Super. Ct. 1993) (citing Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir. 1999)).

In Atkinson, the Court concluded that no implied attorney-client relationship occurred, noting that no fee arrangement was entered into; no retainer or fees were paid; and there was no discussion of the legal implications of the issue at hand.

That's more complicated than you hoped, isn't it?

Meyer and Miles on Social Media and Litigation

Go ahead and add to the list of great M and M acts... Eminem, M&M's, Mork and Mindy... and, now, Miles and Meyer. Eric Meyer (of The Employer Handbook fame) and I will be presenting on Social Media and Litigation at the PBA Civil Litigation Section Retreat in Lancaster, PA this weekend.

I prepared a document, including case excerpts, helpful articles, and guidance: Social Media and Litigation. It addresses discovery, ethics, preservation, and authentication, with some emphasis on Pennsylvania law. Enjoy!

New Requirement: PA Attorneys Must be Tech Savvy

The Pennsylvania Supreme Court recently adopted several changes to the Rules of Professional Conduct. You can view the changes here. One particularly interesting change is the addition of a formal comment to Rule 1.1. Competence:

Maintaining Competence To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Yup, some level of tech-knowledge is now mandatory.

Read more about the changes to the rules in The Disciplinary Board's Newsletter.

PBA Addresses Attorney Use of Cloud Computing

The Pennsylvania Bar Association (PBA) Committee on Legal Ethics and Professional Responsibility issued a formal opinion (2011-200), Ethical Obligations for Attorneys Using Cloud Computing/Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property. That's quite a title! The central question of the opinion is: May an attorney ethically store confidential client material in “the cloud”?

What is "the cloud"? The cloud provides software and services over the Internet, with shared resources residing on host computers (aka, not your computer). The cloud includes webmail products like gmail, and online office and document tools like Microsoft Office 365 or Dropbox. This raises some concerns, mainly about storing confidential information on someone else's servers.

Cutting straight to the punchline, the PBA committee concluded:

Yes. An attorney may ethically allow client confidential material to be stored in “the cloud” provided the attorney takes reasonable care to assure that (1) all such materials remain confidential, and (2) reasonable safeguards are employed to ensure that the data is protected from breaches, data loss and other risks.

It's not just about confidentiality though. For example, "Competency extends beyond protecting client information and confidentiality; it also includes a lawyer's ability to reliably access and provide information relevant to a client's case when needed." The opinion also discusses Pennsylvania's data breach notification law.

The opinion also includes almost three pages of what the standard of reasonable care for cloud computing "may include." Noncommittal, but I'll take it for now.

Image: Photograph taken by Philip Miles.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

LinkedIn Lawyer Profiles and the Rules of Professional Conduct

LinkedIn is a great social media tool to network in a generally professional environment. There's a possible ethics trap, however, for attorneys on the site. Profiles contain a "Summary" section followed by a "Specialties" section.

How's that a problem? Pennsylvania Rule of Professional Conduct 7.4 provides that:

"Rule 7.4 Communication of Fields of Practice and Specialization
.... A lawyer shall not state that the lawyer is a specialist except as follows...."

What follows is a list of exceptions for patent and admiralty practice, and certifications approved or granted by the Supreme Court. Many states have a similar provision.

I am by no means the first person to pick up on this. One blogger called it a "Time bomb in your LinkedIn profile." Another attorney countered that she's:

"not inclined to muck up a simple profile with a bunch of legal-ese on because someone up at the bar stretches the meaning of 'specialties' beyond any reasonable interpretation."

Beyond any reasonable interpretation? Is it unreasonable to extend a prohibition referring specifically to "specialization" and "specialist" to include "specialties?" I don't think so. I don't want to go all Dr. Seuss on you, but a gardener gardens in the garden... and a specialization is the specialty in which a specialist specializes, right?

What do I do on my profile? Well, for now I'm going with this:

Maybe it is unnecessary. People can still see my areas of practice though. Worst case scenario: People who view my profile will see that I am aware of the Rules of Professional Conduct, and I take them (what some may consider too) seriously. What's wrong with that?