Chapter 2 legal ethics


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Chapter 2 legal ethics

  1. 1. Legal Ethics in a Technology Age Chapter 2
  2. 2. Issues <ul><li>Legal ethics are duties owed to clients and the legal system </li></ul><ul><li>The duty of confidentiality and attorney-client privilege </li></ul><ul><li>The work product doctrine </li></ul><ul><li>Dangers of an inadvertent disclosure of confidential information </li></ul><ul><li>Conflicts of interest </li></ul><ul><li>The duty of competency in a technology age </li></ul><ul><li>Obligations of candor and fairness in litigation </li></ul><ul><li>Appropriate hiring, delegating and supervising owed by the managing and supervising attorneys </li></ul>
  3. 3. Introduction to Ethics in Technology <ul><li>Ethics -- minimally accepted standards of conduct in a profession </li></ul><ul><ul><li>Lawyer ethics determined by state law based on the ABA Model Rules of Professional Conduct </li></ul></ul><ul><ul><li>Paralegals ethics are governed by professional associations, NALA and NFPA, guidelines of ethical behavior that are similar to the ABA Model Rules of Professional Conduct </li></ul></ul><ul><li>Ethical conduct is required of every member of the legal team </li></ul><ul><ul><li>supervising attorney is responsible for her own ethical conduct as well as that of every member of the legal team, including non-lawyers and those without legal training </li></ul></ul><ul><li>Technology staff must be instructed on the ethical obligations and confidential nature of the files on which they work </li></ul>
  4. 4. Confidentiality and Privilege <ul><li>Confidentiality is an ethical obligation </li></ul><ul><li>Privilege is a rule of evidence </li></ul>
  5. 5. Confidentiality <ul><li>Ethical obligation to keep client information confidential </li></ul><ul><li>ABA Rule 1.6 requires the attorney to maintain the confidential information obtained from the client and may reveal such information only where the client gives his consent </li></ul><ul><li>Founded on belief that client should be able to tell the attorney everything about her case so the attorney can give proper legal advice </li></ul>
  6. 6. Privilege <ul><li>Rule of Evidence that protects client from the attorney revealing the client’s confidential information. </li></ul><ul><li>The privilege is lost, if the client has revealed the same information to someone outside the legal team </li></ul><ul><li>Privilege extends to other relationships </li></ul><ul><ul><li>Spouses </li></ul></ul><ul><ul><li>Clergy-penitent </li></ul></ul><ul><ul><li>Doctor-patient </li></ul></ul><ul><ul><li>Psychotherapist-patient </li></ul></ul><ul><ul><li>Participant in settlement negotiations </li></ul></ul>
  7. 7. Claim of Privilege <ul><li>The attorney-client privilege is not automatically invoked </li></ul><ul><li>The privilege must be asserted and its existence established by the client </li></ul>
  8. 8. Extension of the Attorney-Client Privilege to Others <ul><li>Efficient administration of justice requires lawyers to engage others to assist in providing legal representation to clients </li></ul><ul><li>The privilege must extend to agents of the lawyer such as legal assistants, accountants and other experts </li></ul>
  9. 9. Self Defense Exception <ul><li>Lawyers who are accused of wrongdoing by their clients must be able to defend themselves </li></ul><ul><li>Defense may require the use of confidential and/or privileged information </li></ul>
  10. 10. Work Product Doctrine <ul><li>Rule of Evidence that allows the attorney to treat as confidential her work product </li></ul><ul><li>Limited protection for material prepared by the attorney, or those working for the attorney, in anticipation of litigation or for trial </li></ul><ul><li>Confidentiality and privilege apply to relevant client communications regardless of whether they involve potential litigation </li></ul>
  11. 11. Exceptions and Limitations to the Work Product Doctrine <ul><li>Work product doctrine does not protect documents prepared in the client’s normal course of business </li></ul><ul><li>Client does not protect documents simply by giving them to the attorney </li></ul>
  12. 12. Internal Investigations and Evidentiary Privileges <ul><li>Businesses conduct internal examination of operations to uncover and correct wrongdoing </li></ul><ul><li>Investigations result in documents that could be used against the business </li></ul><ul><li>Release of these documents could discourage internal investigations and audits </li></ul><ul><li>Documents are privileged to encourage self-policing of these industries </li></ul>
  13. 13. Inadvertent Disclosure of Confidential Information <ul><li>The slip of a finger, a misdialed fax number, a “reply to all” can result in unintentional disclosure of confidential information </li></ul><ul><li>Admissibility of the inadvertently disclosed documents depends on </li></ul><ul><ul><li>Steps taken before and after the disclosure </li></ul></ul><ul><ul><li>Your particular jurisdictions treatment of the issue </li></ul></ul>
  14. 14. Inadvertent Disclosure of Confidential Information, cont. <ul><li>Three judicial views on inadvertent disclosure </li></ul><ul><ul><li>Automatic waiver – documents can be used </li></ul></ul><ul><ul><li>No waiver – documents cannot be used </li></ul></ul><ul><ul><li>Balancing test – the court will look at the circumstances to determine whether the documents may be used </li></ul></ul><ul><li>ABA Guidance </li></ul><ul><ul><li>A lawyer who received information from opposing counsel and knows or reasonably should know that the document was inadvertently sent should promptly notify the sender in order to permit the sender to take protective action </li></ul></ul>
  15. 15. Conflict of Interest <ul><li>ABA Rule 1.7 – a lawyer should not represent another client if the representation of one will be directly adverse to the another unless both clients give informed consent to dual representation and that consent is confirmed in writing </li></ul><ul><li>The basis of the rule is that a person cannot be loyal to two clients with adverse or opposing interests </li></ul>
  16. 16. Competence <ul><li>ABA Rule 1.1 – a lawyer must provide competent representation to a client </li></ul><ul><ul><li>Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation </li></ul></ul><ul><ul><li>Understanding an area of law and the rules of court </li></ul></ul><ul><ul><li>Effectively communicating with the client and non-legal members of the legal team </li></ul></ul>
  17. 17. Candor and Fairness in Litigation <ul><li>ABA Rule 3.3 - duty to avoid conduct that undermines the integrity of the process </li></ul><ul><ul><li>The duty to advocate for the client is tempered by the ethical obligation to not mislead the court or opposing counsel with false statement of the law or facts which the lawyer knows to be false </li></ul></ul><ul><ul><li>Reporting law, including cases and statues favorable and unfavorable to the client’s position </li></ul></ul>
  18. 18. Fairness to Opposing Party and Counsel <ul><li>ABA Rule 3.4 - guideline to ensure justice is done even if one’s client loses the case </li></ul><ul><ul><li>Each attorney is to use best skills and knowledge to present fairly their position to the trier of fact </li></ul></ul><ul><ul><li>Destroying, falsifying or tampering with evidence destroys and/or undermines the legal system and the faith people have in the system </li></ul></ul>
  19. 19. Duty to Supervise <ul><li>ABA Rule 5.1 – duty of partners and lawyers with managerial authority in the firm to ensure other’s conduct complies with the ethical code </li></ul><ul><ul><li>Ethical breaches are the responsibility of the supervising attorney under both the legal principals of the law of agency and the ethical code </li></ul></ul><ul><ul><li>Sanctions for failure to properly supervise </li></ul></ul><ul><ul><ul><li>From the court (damages for malpractice or breach of contract) </li></ul></ul></ul><ul><ul><ul><li>From the attorney disciplinary board (suspension of license or disbarment) </li></ul></ul></ul>