Each year Sulloway & Hollis does an in-house continuing legal education program on ethics for our attorneys and staff. The slide deck for the 2018 program is attached. Presented by Meg Nelson, Peter Imse and myself.
Privacy, Privilege And Confidentiality For Lawyerscanadianlawyer
This slide show was part of a presentation by mark Hayes at the 2011 Canadian Bar Association Annual Meeting in Halifax, Nova Scotia on August 16, 2011.
The theft of trade secrets and other confidential information occurs all too frequently in today’s global, highly mobile, competitive marketplace. Ensuring that effective preventative measures are in place is essential to minimizing the risk of a data breach. At the same time, it is critical that companies act quickly and decisively to protect their trade secrets when employees move from one employer to another.
Topics covered in this presentation include:
•Protecting Your Trade Secrets
•Conducting a Trade Secret Theft Investigation
•Working with FBI and Law Enforcement After Information is Stolen
•Civil Remedies for Trade Secret Theft
How to Manage Vendors and Third Parties to Minimize Privacy RiskTrustArc
The scope of vendor or third-party requirements has significantly grown due to the global pandemic we’re living in. Not only are you working to ensure your vendor management efforts will result in compliance with GDPR, CCPA and other privacy regulations, now you must consider privacy risks associated with COVID-19.
Regulations have specific provisions that address vendors and extend companies’ data privacy obligations throughout their supply chains. Organizations need to be able to collect, maintain and track critical data for ongoing vendor management in order to properly evaluate, monitor and track their status.
This webinar will provide:
-Overview of privacy laws and regulations (i.e., CCPA, GDPR) and corresponding vendor and third-party requirements
-Summary of vendor management processes and how they can be supplemented to specifically address data privacy and security risks
-Best practices for managing data privacy in your vendor network
-Guidance on how to build & manage your vendor privacy management program with practical solutions
Hey that's my client! Protecting client lists and confidential information wh...Mike Fourcher
Presented by Jennifer E. Novoselsky, Reyes Kurson, Ltd. at 2018 NAMWOLF Conference
A company’s client lists and related intelligence, such as risk tolerance or purchasing history, are extremely valuable and must be protected. This program will explore the application of trade secret law to client lists, provide practical steps to safeguard these lists and quickly detect misappropriation, and identify the litigation options available when a former employee pilfers the company client list and uses it to solicit clients. With a Chicago pop culture theme, the program will help you answer three critical questions: (1) Are my client lists and information protected trade secrets? (2) What steps should the company take to protect this information and our client relationships? (3) Our employee just resigned, copied our client list and is soliciting our customers – how can I stop her?
Introduction to EU General Data Protection Regulation: Planning, Implementati...Financial Poise
The GDPR changed the way the world collects, stores, and sends personal data.The GDPR is a broad EU regulation that requires businesses to protect the personal data of EU citizens, whether the business itself is in the EU or elsewhere. Since its implementation in 2018, companies that collect data on EU citizens must comply with strict rules for the protection of personal data or face heavy fines for non-compliance. This webinar will provide an overview of GDPR’s applicability and requirements, as well as how your organization may meet those standards.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/introduction-to-eu-general-data-protection-regulation-planning-implementation-and-compliance-2021/
Privacy, Privilege And Confidentiality For Lawyerscanadianlawyer
This slide show was part of a presentation by mark Hayes at the 2011 Canadian Bar Association Annual Meeting in Halifax, Nova Scotia on August 16, 2011.
The theft of trade secrets and other confidential information occurs all too frequently in today’s global, highly mobile, competitive marketplace. Ensuring that effective preventative measures are in place is essential to minimizing the risk of a data breach. At the same time, it is critical that companies act quickly and decisively to protect their trade secrets when employees move from one employer to another.
Topics covered in this presentation include:
•Protecting Your Trade Secrets
•Conducting a Trade Secret Theft Investigation
•Working with FBI and Law Enforcement After Information is Stolen
•Civil Remedies for Trade Secret Theft
How to Manage Vendors and Third Parties to Minimize Privacy RiskTrustArc
The scope of vendor or third-party requirements has significantly grown due to the global pandemic we’re living in. Not only are you working to ensure your vendor management efforts will result in compliance with GDPR, CCPA and other privacy regulations, now you must consider privacy risks associated with COVID-19.
Regulations have specific provisions that address vendors and extend companies’ data privacy obligations throughout their supply chains. Organizations need to be able to collect, maintain and track critical data for ongoing vendor management in order to properly evaluate, monitor and track their status.
This webinar will provide:
-Overview of privacy laws and regulations (i.e., CCPA, GDPR) and corresponding vendor and third-party requirements
-Summary of vendor management processes and how they can be supplemented to specifically address data privacy and security risks
-Best practices for managing data privacy in your vendor network
-Guidance on how to build & manage your vendor privacy management program with practical solutions
Hey that's my client! Protecting client lists and confidential information wh...Mike Fourcher
Presented by Jennifer E. Novoselsky, Reyes Kurson, Ltd. at 2018 NAMWOLF Conference
A company’s client lists and related intelligence, such as risk tolerance or purchasing history, are extremely valuable and must be protected. This program will explore the application of trade secret law to client lists, provide practical steps to safeguard these lists and quickly detect misappropriation, and identify the litigation options available when a former employee pilfers the company client list and uses it to solicit clients. With a Chicago pop culture theme, the program will help you answer three critical questions: (1) Are my client lists and information protected trade secrets? (2) What steps should the company take to protect this information and our client relationships? (3) Our employee just resigned, copied our client list and is soliciting our customers – how can I stop her?
Introduction to EU General Data Protection Regulation: Planning, Implementati...Financial Poise
The GDPR changed the way the world collects, stores, and sends personal data.The GDPR is a broad EU regulation that requires businesses to protect the personal data of EU citizens, whether the business itself is in the EU or elsewhere. Since its implementation in 2018, companies that collect data on EU citizens must comply with strict rules for the protection of personal data or face heavy fines for non-compliance. This webinar will provide an overview of GDPR’s applicability and requirements, as well as how your organization may meet those standards.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/introduction-to-eu-general-data-protection-regulation-planning-implementation-and-compliance-2021/
From 25 May 2018 all public bodies must have a Data Protection Officer (DPO). The DPO must have ‘expert’ knowledge of both data protection law and practice. This session is directed at individuals within public sector organisations who will be acting as DPO, their deputies and those advising them.
Visit our website for more useful resources - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
From 25 May 2018 all public bodies must have a Data Protection Officer (DPO). The DPO must have ‘expert’ knowledge of both data protection law and practice. This session is directed at individuals within public sector organisations who will be acting as DPO, their deputies and those advising them.
Visit our website for more useful resources - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
GDPR for public sector DPO's seminar, April 2018, ManchesterBrowne Jacobson LLP
From 25 May 2018 all public bodies must have a Data Protection Officer (DPO). The DPO must have ‘expert’ knowledge of both data protection law and practice. This session is directed at individuals within public sector organisations who will be acting as DPO, their deputies and those advising them.
Visit our website for more useful resources - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
Article 9: Special categories of data
Special categories of data are sensitive information about individual and need more protection.
Individuals‘ rights and freedoms are at increased risk when this type of data is processing. It may put them at risk of unlawful discrimination.
From 25 May 2018 all public bodies must have a Data Protection Officer (DPO). The DPO must have ‘expert’ knowledge of both data protection law and practice. This session is directed at individuals within public sector organisations who will be acting as DPO, their deputies and those advising them.
Visit our website for more useful resources - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
California Consumer Privacy Act (CCPA): Countdown to ComplianceTinuiti
What is CCPA? The California Consumer Privacy Act increases the transparency of the collection and selling of physical and digital data, while providing California residents with more control over what happens to their personal information that companies collect. CCPA is approaching with a compliance deadline of January 2020. With the countdown to compliance less than 6 months away it’s critical to know how this can potentially impact your business in order to avoid violation fines. Join our webinar as we unpack the key requirements and considerations to keep in mind in order to stay compliant. See how CCPA impacts all advertisers, not just Californians.
Preparing for GDPR: What Every B2B Marketer Must KnowIntegrate
Considering the consequences of non-compliance (up to €20M/$24M or 4% worldwide annual revenue), this translates to a major problem for B2B marketers.
How can your team ensure its lead gen processes are GDPR-compliant without undermining demand generation performance?
View this deck to see how Julian Archer (Sr. Research Director, SiriusDecisions) and Scott Vaughan (CMO, Integrate) educate B2B marketers on: developing a comprehensive GDPR compliance strategy, putting your compliance strategy into action, and applying software to support your compliance measures.
To watch the on-demand version of the webinar, click here:
https://www.integrate.com/gdpr-compliance-b2b-marketing-webinar
GDPR is coming for you whether you’re ready or not. Companies must show compliance by May 25, 2018. Take a look at the presentation to learn more about the new law that is going to change the way data is handled across the world. Read about the how it affects you and the steps you can take to make sure you’re GDPR ready!
About Extentia Information Technology:
Extentia is a global technology and services firm that helps clients transform and realize their digital strategies. With a focus on enterprise mobility, cloud computing, and user experiences, Extentia strives to accomplish and surpass your business goals. Our team is differentiated by an emphasis on excellent design skills that we bring to every project. Extentia’s work environment and culture inspire team members to be innovative and creative, and to provide clients with an exceptional partnership experience.
www.extentia.com
12 ways a non-disclosure agreement is misusedEveryNDA
Learn how to properly draft a NDA agreement that's beneficial to you and the other party.
Here are 12 possible ways a nondisclosure agreement can be misused:
https://everynda.com/blog/12-ways-non-disclosures-misused/
The Personal Data Protection Bill 2018 is to be presented before the Parliament shortly with necessary amendments .This is bill applicable to India in lines of GDPR of the European uinion
Draft Bill on the Protection of Personal DataRenato Monteiro
Presentation given at the DataGuidance´s webinar "Brazil: Towards Privacy Compliance", about the Brazlian Draft Bill for the Protection of Personal Data (Anteprojeto de Lei para a Proteção de Dados Pessoais) issued in January 2015, which introduced concepts such as Data Protection Officer and Binding Corporate Rules.
Presented by Michael Kaiser as the ethics segment of the National Business Institute's Continuing Legal Education (CLE) seminar "Strategies for Legal Research on the Web."
The CLE was held December 20, 2011, at the Westin Hotel in Seattle, Washington.
Mr. Kaiser, founder of the Kaiser Legal Group, is a consultant and mediator. He also regularly speaks at the law school level and at Continuing Legal Education (CLE) seminars for attorneys. He earned his Bachelor of Arts degree in Political Science from the University of Washington and his Juris Doctor from Seattle University. You may contact Mr. Kaiser at 206-660-2858 or Michael.Kaiser@Kaiser-LegalGroup.org.
Privacy rules matter—make sure your firm stays compliant.
While every lawyer knows the basic rules behind confidentiality and attorney-client privilege, the significance of privacy law is less well-known—and that lack of knowledge can impact your law firm. Emerging privacy rights and rights of action are impacting businesses of all types—including those in the legal profession. Local, national, and even international laws are making privacy the next frontier in data management for lawyers.
Are you prepared to adjust to the new demands of privacy for law firms, and move beyond confidentiality?
Join Joshua Lenon—an IAPP Certified Information Privacy Professional and Clio’s Lawyer in Residence and Data Protection Officer—as he explains how these privacy laws can impact law firms and what your firm should do to ensure compliance.
In this free 1-hour CLE-eligible webinar, you’ll learn:
Why law firm data must conform with emerging privacy regulations
The impact of clients’ compliance with privacy law on firm operations
Future privacy laws that may affect your law firm—no matter where you operate
https://www.clio.com/events/webinar-law-firm-privacy/
Privacy Best Practices for Lawyers: What Every Law Practice Needs to Know Abo...Diana Maier
No matter what kind of law practice you have, you need to comply with privacy laws generally and lawyers' ethical duties with respect to privacy, specifically. In this presentation, legal ethics counsel Sarah Banola (Cooper, White and Cooper, LLP) and employment and privacy attorney Diana Maier (Law Offices of Diana Maier) deliver a primer on privacy law and teach you the key areas of privacy law and associated ethical obligations.
From 25 May 2018 all public bodies must have a Data Protection Officer (DPO). The DPO must have ‘expert’ knowledge of both data protection law and practice. This session is directed at individuals within public sector organisations who will be acting as DPO, their deputies and those advising them.
Visit our website for more useful resources - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
From 25 May 2018 all public bodies must have a Data Protection Officer (DPO). The DPO must have ‘expert’ knowledge of both data protection law and practice. This session is directed at individuals within public sector organisations who will be acting as DPO, their deputies and those advising them.
Visit our website for more useful resources - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
GDPR for public sector DPO's seminar, April 2018, ManchesterBrowne Jacobson LLP
From 25 May 2018 all public bodies must have a Data Protection Officer (DPO). The DPO must have ‘expert’ knowledge of both data protection law and practice. This session is directed at individuals within public sector organisations who will be acting as DPO, their deputies and those advising them.
Visit our website for more useful resources - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
Article 9: Special categories of data
Special categories of data are sensitive information about individual and need more protection.
Individuals‘ rights and freedoms are at increased risk when this type of data is processing. It may put them at risk of unlawful discrimination.
From 25 May 2018 all public bodies must have a Data Protection Officer (DPO). The DPO must have ‘expert’ knowledge of both data protection law and practice. This session is directed at individuals within public sector organisations who will be acting as DPO, their deputies and those advising them.
Visit our website for more useful resources - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
California Consumer Privacy Act (CCPA): Countdown to ComplianceTinuiti
What is CCPA? The California Consumer Privacy Act increases the transparency of the collection and selling of physical and digital data, while providing California residents with more control over what happens to their personal information that companies collect. CCPA is approaching with a compliance deadline of January 2020. With the countdown to compliance less than 6 months away it’s critical to know how this can potentially impact your business in order to avoid violation fines. Join our webinar as we unpack the key requirements and considerations to keep in mind in order to stay compliant. See how CCPA impacts all advertisers, not just Californians.
Preparing for GDPR: What Every B2B Marketer Must KnowIntegrate
Considering the consequences of non-compliance (up to €20M/$24M or 4% worldwide annual revenue), this translates to a major problem for B2B marketers.
How can your team ensure its lead gen processes are GDPR-compliant without undermining demand generation performance?
View this deck to see how Julian Archer (Sr. Research Director, SiriusDecisions) and Scott Vaughan (CMO, Integrate) educate B2B marketers on: developing a comprehensive GDPR compliance strategy, putting your compliance strategy into action, and applying software to support your compliance measures.
To watch the on-demand version of the webinar, click here:
https://www.integrate.com/gdpr-compliance-b2b-marketing-webinar
GDPR is coming for you whether you’re ready or not. Companies must show compliance by May 25, 2018. Take a look at the presentation to learn more about the new law that is going to change the way data is handled across the world. Read about the how it affects you and the steps you can take to make sure you’re GDPR ready!
About Extentia Information Technology:
Extentia is a global technology and services firm that helps clients transform and realize their digital strategies. With a focus on enterprise mobility, cloud computing, and user experiences, Extentia strives to accomplish and surpass your business goals. Our team is differentiated by an emphasis on excellent design skills that we bring to every project. Extentia’s work environment and culture inspire team members to be innovative and creative, and to provide clients with an exceptional partnership experience.
www.extentia.com
12 ways a non-disclosure agreement is misusedEveryNDA
Learn how to properly draft a NDA agreement that's beneficial to you and the other party.
Here are 12 possible ways a nondisclosure agreement can be misused:
https://everynda.com/blog/12-ways-non-disclosures-misused/
The Personal Data Protection Bill 2018 is to be presented before the Parliament shortly with necessary amendments .This is bill applicable to India in lines of GDPR of the European uinion
Draft Bill on the Protection of Personal DataRenato Monteiro
Presentation given at the DataGuidance´s webinar "Brazil: Towards Privacy Compliance", about the Brazlian Draft Bill for the Protection of Personal Data (Anteprojeto de Lei para a Proteção de Dados Pessoais) issued in January 2015, which introduced concepts such as Data Protection Officer and Binding Corporate Rules.
Presented by Michael Kaiser as the ethics segment of the National Business Institute's Continuing Legal Education (CLE) seminar "Strategies for Legal Research on the Web."
The CLE was held December 20, 2011, at the Westin Hotel in Seattle, Washington.
Mr. Kaiser, founder of the Kaiser Legal Group, is a consultant and mediator. He also regularly speaks at the law school level and at Continuing Legal Education (CLE) seminars for attorneys. He earned his Bachelor of Arts degree in Political Science from the University of Washington and his Juris Doctor from Seattle University. You may contact Mr. Kaiser at 206-660-2858 or Michael.Kaiser@Kaiser-LegalGroup.org.
Privacy rules matter—make sure your firm stays compliant.
While every lawyer knows the basic rules behind confidentiality and attorney-client privilege, the significance of privacy law is less well-known—and that lack of knowledge can impact your law firm. Emerging privacy rights and rights of action are impacting businesses of all types—including those in the legal profession. Local, national, and even international laws are making privacy the next frontier in data management for lawyers.
Are you prepared to adjust to the new demands of privacy for law firms, and move beyond confidentiality?
Join Joshua Lenon—an IAPP Certified Information Privacy Professional and Clio’s Lawyer in Residence and Data Protection Officer—as he explains how these privacy laws can impact law firms and what your firm should do to ensure compliance.
In this free 1-hour CLE-eligible webinar, you’ll learn:
Why law firm data must conform with emerging privacy regulations
The impact of clients’ compliance with privacy law on firm operations
Future privacy laws that may affect your law firm—no matter where you operate
https://www.clio.com/events/webinar-law-firm-privacy/
Privacy Best Practices for Lawyers: What Every Law Practice Needs to Know Abo...Diana Maier
No matter what kind of law practice you have, you need to comply with privacy laws generally and lawyers' ethical duties with respect to privacy, specifically. In this presentation, legal ethics counsel Sarah Banola (Cooper, White and Cooper, LLP) and employment and privacy attorney Diana Maier (Law Offices of Diana Maier) deliver a primer on privacy law and teach you the key areas of privacy law and associated ethical obligations.
Cyber Liability Coverage in the Marketplace with Dan CotterButlerRubin
Butler Rubin partner Daniel A. Cotter discussed the Model Rules of Professional Conduct (RPCs) as they relate to lawyers’ technology obligations at the National Association of Bar Related Insurance Companies (NABRICO) 2017 Annual Conference hosted by ISBA Mutual in Chicago, IL. Dan joined a panel of experts including Michael Hannigan (Konicek & Dillon), Alex Ricardo (Beazley Group), and Daniel Zureich (Lawyers Mutual Insurance Company of North Carolina) to discuss, “Cyber Liability Coverage in the Marketplace.” Dan emphasized the need for the insurers to consider what the reasonable standard is for lawyers and to help frame the answer. Dan also addressed some recent cyber-related decisions and cases pending.
For more information on developments in the cyber insurance and privacy areas, contact Dan Cotter (dcotter@butlerrubin.com).
Best Practices Regarding Technology (Series: Legal Ethics - Best Practices)Financial Poise
Technology is rapidly changing the way lawyers provide services. This is so especially in light of the Covid-19 pandemic, which creates new and different ethical challenges to confidentiality, cyber fraud and securing data, marketing and advertising concerns, and client communications. This webinar will address a myriad of new problems lawyers are facing and some practical suggestions and solutions that arise out of the changing manner and pace of the practice of law. This webinar will also cover several ABA Model Rules of Professional Conduct.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/best-practices-regarding-technology-2021/
The Federal Rules of Civil Procedure (Series: Newbie Litigator School)Financial Poise
This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the attendee will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour long discussion.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/the-federal-rules-of-civil-procedure-2020/
If you say the word “discovery” to a litigator, the reaction may not be kind. Discovery—the exchange of relevant information, usually in the form of documents or oral depositions, takes up the majority of a litigator’s time and costs clients the most money. This episode begins with a summary of the rules governing discovery. In particular, we discuss the new federal rules governing the preservation and discovery of electronic data and information, and the new concept of “proportionality” in discovery. We also discuss the practicalities of discovery: budgeting, tactics, and common opportunities and pitfalls. This hour demystifies a mystifying process, and to provide listeners with what they need to know to not get tripped up in litigation. At the very least, you will understand why the acronym “ESI” causes our panel to wince.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART I 2022
See more at https://www.financialpoise.com/webinars/
Do You Wannacry: Your Ethical and Legal Duties Regarding Cybersecurity & PrivacyButlerRubin
Butler Rubin Partner, Dan Cotter discusses in detail the changes to the Model Rules of Professional Conduct that impact lawyers and their obligations to understand technology and safeguard against inadvertent data breaches.
Valuing Real Estate Assets (Series: Ethical Issues in Real Estate-Based Bankr...Financial Poise
As the expression goes, the value of real estate is in the eye of the beholder. Ultimately, the value is whatever the market is willing to pay. While income producing properties, particularly with credit worthy tenants, may be fairly routine to value based on current rate of return demands in the market, non-income producing properties may be more speculative. For example, even the most seasoned appraiser may struggle with finding comparative sales for a property. A landowner might see their property value go up exponentially “if only” the city council will allow for a zoning variance. Many an owner believes their property is in the “path of progress”, but when? Is it reasonable to value a property “as stabilized” if it is only forty percent leased? These are the types of questions we will consider.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/valuing-real-estate-assets-2020/
Session V. Estoppel and Privity in US PTO Post-Grant ProceedingsWilmerHale
Shared at the IIPI/BNA AIA Post-Grant
Patent Practice Conference.
Session V. Estoppel and Privity in US PTO Post-Grant Proceedings covers:
1) Estoppel - Privity
• When does issue arise?
• What factors are important?
• How is the issue resolved
2) Practice tips
• Evaluating Privity
• Arguing Estoppel
3) Mock Arguments
Discovery Practice (Series: Newbie Litigator School - Fall Edition)Financial Poise
If you say the word “discovery” to a litigator, the reaction may not be kind. Discovery-the exchange of relevant information- usually in the form of documents or oral depositions, takes up the majority of a litigator’s time and costs clients the most money.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/discovery-practice-2020/
NEWBIE LITIGATOR SCHOOL - Part I 2022 - The Federal Rules of Civil ProcedureFinancial Poise
Has it been 10 years since you took Civil Procedure in law school? Are you a business owner that’s been sued for the first time? How does litigation really move through the Federal Courts? This webinar provides an overview of the Federal Rules of Civil Procedure, with emphasis on recent changes and developments. By the end of the hour, the listener will have a clear understanding of how a case is initiated, how defendants and issues are brought into the case, and the required pre-trial steps. We also touch on settlement procedure and trial practice. Join us to hear one of the cornerstone law school classes condensed into a brisk and engaging hour-long discussion.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- PART 1 2022
See more at https://www.financialpoise.com/webinars/
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...Financial Poise
This webinar is for the lawyer -or anyone else- who wants to brush up on the latest issues and strategies to be aware of regarding legal ethics and best practices. The panelists discuss recent and important case law in the area and explain how those decisions can have real-world impact on the situations you may be involved in. Among others, the panel will address the following Model Rules of Professional Conduct: Rule 1.7-Conflict of Interest: Current Clients; Rule 1.8-Conflict of Interest: Current Clients: Specific Rules; Rule 3.8 - Special Responsibilities of a Prosecutor; and Rule 4.4(a) Respect for Rights of Third Persons.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/recent-cases-decisions-2021/
Single Asset Real Estate Cases (Series: Ethical Issues in Real Estate-Based B...Financial Poise
Anyone involved in the field of creditors rights on a matter involving an LLC that exists solely to hold the principal asset has surely seen the play where, the night before property is scheduled to be sold at a foreclosure auction, the debtor files bankruptcy. For those not familiar with the process, doing so invokes the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The debtor then attempts to make their case to the court for reorganization. But is failing to pay your mortgage really something bankruptcy was meant to solve? If the bank was going to agree to a loan modification, wouldn’t the parities have worked something out by the time the sheriff sale was set? The bankruptcy code recognizes this and therefore has a section devoted to dealing with this specific kind of bankruptcy—the Single Asset Real Estate (“SARE”) case. The goal of this episode is to look into ethical issues surrounding these matters.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-cases-2020/
I. Massachusetts: Rule Updates.
II. New Hampshire:
A. Rule Updates
B. Ethics Opinions
C. Ethics Corners
III. Rifle Shots:
A. Rule 1.10: Disclosing Personal Relationships with Opposing Counsel.
B. Rule 1.18: Maintaining Confidentiality of Former Prospective Clients.
C. Court Orders on Storing Confidential Source Code.
D. Documents From Former Employees come with Ethical Risks.
E. Former Employees Are Fair Game in Litigation.
F. Ethically Navigating PR issues in Mass Casualty and Large Loss Cases .
G. Virtual Practice.
H. Speech to Text Dictation.
IV. Lawyers Behaving Badly:
A. Litigating in the Era of E-Filing.
B. Rule 30(d)(2): Don’t Prolong Your Deposition.
C. Prolonging the Case and Misleading the Court.
D. Read the Court’s Orders.
E. Ghostwriting Letters is not Fraudulent.
F. A Copy and Paste Brief Violates Federal Appellate Rules.
G. Copy and Pasting Also Violates Rule 11(b).
H. Rule 8.2: Don’t Call Opposing counsel Lowlife-Bottom Feeders or the Judge a Clown.
I. Cellphones in the Courtroom: Keep Them Off and Away.
Peter Imse and Kevin O'Shea's Ethics CLE as part of NH First American Title's Real Estate Seminar (Thursday, May 10, 2018 at Manchester Country Club, Bedford)
Topics for Sulloway's LinkedIn 201 presentation included:
Privacy Settings
Group Notifications
Adjusting the volume of email you receive
“Who's been looking at my profile”
Additional information on ethical considerations for Endorsements
Adding content to your LinkedIn account
25 social media tips the pros never forget
The Sulloway's Linkedin 101 presentation was to allow a user who does not have a Linkedin account to understand how to obtain one, while protecting privacy and in accord with New Hampshire’s Rules of Professional Conduct.
Social Media Content and Discovery Practice Kevin O'Shea
Social Media Content and Discovery Practice: Entitlement, Scope, Technical Issues in Production, Ethics, and Authentication. (Edited Materials. Not offered for CLE credit).
The Cost of Litigation: A Case Study, Business Law, Plymouth State University...Kevin O'Shea
In 2009, I presented to Professor Forgues’ Business Law Class at Plymouth State University addressing the high cost of business litigation and using Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate Info. Servs. 642 F. Supp. 2d 58 (D. Mass. 2009) as a case study.
Look Before You Leap: Unauthorized Practice of the Law, Supervision of Non-La...Kevin O'Shea
Together with my (future) partner, Peter Imse, these are the slides for our June 2011 CLE presented in conjunction with the First American Title Insurance Company. The topics in these slides were revisited in my June 2014 presentation (Avoiding Technical Fouls:Selected Ethical Issues in Advertising, Social Media, and Cloud Computing). Nevertheless, there is some interesting data in this presentation that does not appear in my June 2014 slides.
Irish/Celtic Festival Directors Conference: Entertainment Contracts: Issues &...Kevin O'Shea
This presentation was focused on a specialized group of folks, the people who organize Irish music (sometimes called Celtic music) festivals around North America--from the Milwaukee Irish Festival (drawing 140,000 people to their four day festival), to Pittsburgh, to Boston to Kansas City.
Icalled on my pre-law experience as a music agent and manager in this sector of the music business to provide a customized presentation to many of the same folks I used to work with on a regular basis.
Although we have come a long way on some of these issues--the rise of the now ubiquitous iPhone and its use to video performances could have scarcely been imagined 7 years ago, but other slides are still as relevant as they were when first presented.
Avoiding Technical Fouls:Selected Ethical Issues in Advertising, Social Media...Kevin O'Shea
Topics Addressed:
Advertising
LinkedIn
Are Facebook and Twitter Regulated Attorney Advertising?
Group Coupons or Daily Deals for Discounted Legal Services
Social Media
Liability for Posting
Responding to False Accusations/Bad Reviews
Cloud Computing
Confidentiality
Security
Employee Risks
Listservs
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
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transfer of the P.I.L filed by lawyer Ashwini Kumar Upadhyay in Delhi High Court to Supreme Court.
on the issue of UNIFORM MARRIAGE AGE of men and women.
PRECEDENT AS A SOURCE OF LAW (SAIF JAVED).pptxOmGod1
Precedent, or stare decisis, is a cornerstone of common law systems where past judicial decisions guide future cases, ensuring consistency and predictability in the legal system. Binding precedents from higher courts must be followed by lower courts, while persuasive precedents may influence but are not obligatory. This principle promotes fairness and efficiency, allowing for the evolution of the law as higher courts can overrule outdated decisions. Despite criticisms of rigidity and complexity, precedent ensures similar cases are treated alike, balancing stability with flexibility in judicial decision-making.
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
2. Presented by:
Margaret H. Nelson, Esquire
Peter F. Imse, Esquire
Kevin M. O’Shea, Esquire
Annual Ethics Update
Ju ne 2 2, 2 0 18
2
3. I. Technology and Ethics
A. Confidentiality Obligations for Lawyer Blogging and Other Public Commentary: ABA
Formal Ethics Opinion 480 (2018)
B. Destruction of Data at the Close of a Case: What Obligations For Attorneys?
C. Ethical Obligations Regarding Confidential Client Information at the U.S. Border:
Overview of CBP Policy Directive No. 3340-049A
II. New Hampshire: A Year in Review
A. New Hampshire Ethics Decisions
B. Proposed Model Rule 8.4(g) – New Hampshire’s Proposals
II. Other Topics in Legal Ethics
A. A Lawyer’s Duty to Inform a Current of Former Client of the Lawyer’s Material Error:
ABA Formal Ethics Opinion 481 (2018).
Presentation Overview
J u n e 2 2 , 2 0 1 8
3
4. Presented by:
Kevin M. O’Shea, Esquire
Confidentiality Obligations for Lawyer
Blogging and Other Public Commentary
A BA F ormal Et hics O pinion 4 8 0 ( 2 018)
4
5. • NH Rules of Professional Conduct 1.1 (Competence)
• “(a) A lawyer shall provide competent representation to a client.
(b) Legal competence requires at a minimum:
…
(2) performance of the techniques of practice with skill;
…
(4) proper preparation;
The Rules
5
6. • NH Rules of Professional Conduct 1.1 (Competence)
•
(c) In the performance of client service, a lawyer shall at
a minimum:
…
(4) undertake actions on the client's behalf in a
timely and effective manner”
• “Techniques” include the way the client’s file is maintained, stored
and organized.
The Rules
6
7. • ABA Model Rule 1.1, Comment 8
• “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...”
• New Hampshire Ethics Committee Comment to Rule 1.1
• “Realistically, a lawyer should keep reasonably abreast of readily
determinable benefits and risks associated with applications of
technology used by the lawyer, and benefits and risks of technology
lawyers similarly situated are using.”
The Rules
7
8. ABA Formal Ethics Opinion 480 (2018)
• Lawyers who blog or engage in other public commentary may not reveal
information relating to a representation, including information
contained in a public record, unless authorized by a provision of the
Model Rules.
• https://www.americanbar.org/content/dam/aba/administrative/profess
ional_responsibility/aba_formal_opinion_480.authcheckdam.pdf
Public Commentary:
8
9. Public Commentary Includes:
• Blogs;
• Listserves;
• Online articles;
• Website postings;
• Microblogs (i.e.,Twitter);
• Legal education programs;
• Articles and chapters in
traditional print media such as
magazines, treatises;
• Law firm white papers, and law
reviews; and
• Public remarks in online
informational videos such as
webinars and podcasts.
9
10. New Hampshire Rule 1.6. (Confidentiality of Information)
• (a) A lawyer shall not reveal information relating to the representation
of a client unless:
• the client gives informed consent,
• the disclosure is impliedly authorized in order to carry out the
representation, or
• the disclosure is permitted by paragraph (b).
The Rules
10
11. New Hampshire Rule 1.6. (Confidentiality of Information)
• (b) A lawyer may reveal such information to the extent the lawyer reasonably
believes necessary:
• (1) to prevent reasonably certain death or substantial bodily harm or to prevent
the client from committing a criminal act that the lawyer believes is likely to
result in substantial injury to the financial interest or property of another; or
• (2) to secure legal advice about the lawyer's compliance with these Rules; or
The Rules
11
12. New Hampshire Rule 1.6. (Confidentiality of Information)
• (b) A lawyer may reveal such information to the extent the lawyer
reasonably believes necessary:
• (3) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer's representation of the client; or
• (4) to comply with other law or a court order; or
• (5) to detect and resolve conflicts of interest arising from the lawyer's change of
employment or from changes in the composition or ownership of a firm, but only if the
revealed information would not compromise the attorney-client privilege or otherwise
prejudice the client.
The Rules:
12
13. New Hampshire Rule 1.6. (Confidentiality of Information)
• (c) A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information
relating to the representation of a client
The Rules:
13
14. ABA Formal Ethics Opinion 480 (2018)
• This confidentiality rule applies not only to matters communicated in
confidence by the client.
• But also to all information relating to the representation, whatever its
source.
• In other words, the scope of protection afforded by Rule 1.6 is far
broader than attorney-client privileged information.
Public Commentary:
14
15. ABA Formal Ethics Opinion 480 (2018)
• Significantly, information about a client’s representation contained in a
court’s order, for example,
• although contained in a public document or record,
• is not exempt from the lawyer’s duty of confidentiality under Model
Rule 1.6.
Public Commentary:
15
16. ABA Formal Ethics Opinion 480 (2018)
• The duty of confidentiality extends generally to information related to a
representation
• whatever its source and
• without regard to the fact that others may be aware of or have
access to such knowledge.
Public Commentary:
16
17. ABA Formal Ethics Opinion 480 (2018)
• A violation of Rule 1.6(a) is not avoided by describing public
commentary as a “hypothetical”
• if there is a reasonable likelihood that a third party may ascertain
the identity or situation of the client
• from the facts set forth in the hypothetical.
• Hence, if a lawyer uses a hypothetical when offering public commentary,
• the hypothetical should be constructed
• so that there is no such likelihood.
Public Commentary:
17
18. ABA Formal Ethics Opinion 480 (2018)
• Rule 1.6 does not provide an exception for information that is “generally
known” or contained in a “public record.”
• Accordingly, if a lawyer wants to publicly reveal client information, the
lawyer must comply with Rule 1.6(a).
Public Commentary:
18
19. ABA Formal Ethics Opinion 480 (2018)
• Beware the Footnotes
• Footnote 10
• But see In re Sellers, 669 So. 2d 1204 (La. 1996) (lawyer violated
Rule 4.1 by failing to disclose existence of collateral mortgage
to third party; because “mortgage was filed in the public
record, disclosure of its existence could not be a confidential
communication, and was not prohibited by Rule 1.6”).
Public Commentary:
19
20. ABA Formal Ethics Opinion 480 (2018)
• Beware the Footnotes.
• Footnote 20
• One jurisdiction has held that a lawyer is not prohibited from writing a
blog that includes information relating to a representation that was
disclosed in an open public judicial proceeding after the public
proceeding had concluded.
• In Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013) the Supreme
Court of Virginia held that the application of Virginia Rule of
Professional Conduct 1.6(a) to Hunter’s blog posts was an
unconstitutional infringement of Hunter’s free speech rights.
Public Commentary Includes:
20
21. ABA Formal Ethics Opinion 480 (2018)
• Beware the Footnotes.
• Footnote 20
• The Committee regards Hunter as limited to its facts. Virginia’s Rule 1.6 is
different than the ABA Model Rule. The Virginia Supreme Court rejected the
Virginia State Bar’s position on the interpretation and importance of Rule 1.6
because there was “no evidence advanced to support it.”
• But see People vs. Isaac which acknowledges Hunter but finds a violation of
Colorado Rule 1.6. We note, further, that the holding in Hunter has been
criticized. See Jan L. Jacobowitz & Kelly Rains Jesson, Fidelity Diluted: Client
Confidentiality Give Way to the First Amendment & Social Media in Virginia
State Bar ex rel. Third District Committee v. Horace Frazier Hunter, 36
CAMPBELL L. REV. 75, 98-106 (2013).
Public Commentary Includes:
21
22. Guidance Offered on Posting to Listservs,
• Ethics Corner Article, New Hampshire Bar News (September 20, 2013)
• Posting a “hypothetical” question on a Listserv might seem
innocuous and, at first blush, appear not to contain confidential
client information protected under RPC 1.6.
• However, the posting lawyer neither knows the identity of all
prospective readers, nor what information a prospective reader
already may have in his or her possession concerning the lawyer’s
client or the case at issue.
• Thus, even a Listserv posting that is loosely based on a client matter
potentially may disclose, albeit unintentionally, client confidential
information in violation of RPC 1.6.
Public Commentary:
22
24. • What obligations does an attorney have when a settlement agreement
or court order calls for the destruction of data with regard to electronic
back-up media/systems?
Overview
24
25. Rule 1.15 Safekeeping Property
• “(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession
in connection with a representation separate from the lawyer’s own property, in
accordance with the provisions of the new Hampshire Supreme Court Rules…. All client
and third party property shall be identified as such and appropriately safeguarded.
• (e) … Except as stated in this rule or otherwise permitted by law or by agreement with the
client, a lawyer shall promptly deliver to the client or third person any funds or other
property that the client or third person is entitled to receive and upon request by the
client or third person, shall promptly render a full accounting regarding such property.”
• Client property includes the client file. Avrill v. Cox, 145 NH 328 (2000).
The Rules
25
26. Rule 1.16 – Terminating Representation
• “(d) As a condition to termination of representation, a lawyer shall take
steps to the extent reasonably practicable to protect a client's interests,
such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee
or expense that has not been earned or incurred.”
• “Property to which the client is entitled” includes the client file.
The Rules
26
27. • At the close of some cases, data complied over the course of the matter
may have to be destroyed:
• Fairly straightforward with physical documents,
• Electronic data can pose a greater challenge.
Background
27
28. • Potential Obstacles:
• Documents can be saved in more than one location,
• Multiple copies of documents can be generated each time a document
is saved/shared internally,
• Information is saved on back-up media/systems,
• Information may be saved on the cloud with a back up system that is
completely beyond the control of Sulloway.
• As such, difficult to destroy all copies given the nature of document
retention systems.
Electronic Data Destruction Issues:
28
29. • Aside from an agreement or a protective order,
• Destroying records in accordance with an official records retention policy,
• is preferable to selective or arbitrary destruction
• BUT, deviation from official records retention policy may be necessary
when destruction is required by settlement agreement or court order,
Record Retention Policy
29
30. • ABA and NHBA place a great deal of importance on having and regularly
following a records retention policy,
• No consensus at state or national level though as to methodology for
document destruction when a settlement agreement or court order
calls for it,
American Bar Association &
New Hampshire Bar Association
30
31. • How data destruction can best be accomplished turns on when a party
knows information will have to be destroyed:
1. The Need to Destroy Data is Identified When a Case First Begins
(Before Discovery is Underway);
2. The Need to Destroy Data is Not Identified Until the End of the
Case,
Best Practices
31
32. • It is far easier to destroy data at the close of a case if an agreement to
do so has been established at the outset;
• By agreement or protective order,
When The Need to Destroy Data is
Identified When a Case First Begins
( B e f o r e D i s c o v e r y i s U n d e r w a y )
32
33. • Sulloway’s IT Department can:
• Create an external drive outside of the back-up system, allowing all
case-related files to be saved only on that drive;
• Engage an E-Discovery vendor who can store the documents
securely (perhaps in the Cloud);
• and can provide a certification of destruction of documents at the
end of the case.
When The Need to Destroy Data is
Identified When a Case First Begins
33
34. • May be necessary to include language in the
settlement agreement stating that all reasonable
efforts will be used to delete all known copies of
relevant documents.
• Without such a provision, the firm/client could be
held to an impossible standard.
When The Need to Destroy Data is Not
Identified Until the End of the Case
34
35. What about back-up media?
When The Need to Destroy Data is Not
Identified Until the End of the Case
35
36. • An agreement could note, for example, that all back-up media are
cycled-out at some specific point in time;
• Even if the information is not destroyed initially, such a provision
illustrates that the files will be destroyed within a certain amount of
time,
Drafting Approach 1
36
37. • This type of provision provides protection on the off-chance that a
document is not deleted that should have been, so as not to be at odds
with the certificate of compliance,
• In the absence of such a provision in the settlement agreement, all
relevant files will have to be deleted, despite the fact that such an
endeavor may not be practical or even possible.
Drafting Approach 1
37
38. • Or the provision could simply exclude back-ups from the certification
Drafting Approach 2
38
39. • Sample Language
• “In the case of electronic documents, destruction is sufficient if
documents have been deleted from all file systems in such a way
that no copies or fragments thereof can be retrieved by ordinary
means, and if any system backups containing copies of such
documents are encrypted and physically secure.”
Drafting Approach 2
39
40. Presented by:
Kevin M. O’Shea, Esquire
Ethical Obligations Regarding
Confidential Client Information at
International Borders
40
41. Materials Adapted from:
The Prudent Lawyer on the Borderline: Practical
Considerations and Ethical Obligations Regarding
Confidential Client Information at International
Borders
By Geoffrey M. Gallagher, Esquire
Sullivan County Attorney’s Office
41
42. The purpose of this presentation is to:
1. Familiarize Sulloway attorneys with the Rules of Professional Conduct
that are implicated in a U.S. border search;
2. Provide you with a brief overview of U.S. border law;
3. Introduce you to a new CBP policy directive on border searches; and
4. Guide you on travelling with client materials.
Overview
42
43. • (c) A lawyer shall make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information
relating to the representation of a client.
New Hampshire Rule1.6 –
Confidentiality of Communications
43
44. • What is the US border search doctrine?
• Where does the US border search doctrine apply?
• What kind of searches occur at the US border?
• What kind of search of electronic devices can be expected?
Overview of U.S. Border Law
44
45. • “The Government’s interest in preventing the entry of unwanted
persons and effects is at its zenith at the international border.”
• United States v. Flores Montano, 541 U.S. 149, 152 (2004).
• The border search doctrine is an exception to the 4th Amendment's
general prohibition against warrantless searches without probable
cause.
• The border search doctrine permits customs officials to conduct
searches at international borders by detaining persons and property
both entering and leaving the United States.
US Border Search Doctrine:
45
46. • The US border search doctrine can be broken down into:
• The actual border;
• The “functional equivalent”; and
• The “extended border”
US Border Search Doctrine:
46
47. • In order to be a proper search under the border search doctrine, it must
be conducted for:
• The purposes of enforcing customs laws and not general law
enforcement purposes; and
• It must be conducted by a properly empowered official,
US Border Search Doctrine:
47
48. • The “functional equivalent” doctrine extends the border search doctrine
to all ports of entry, including airports, into the United States.
What is the US border search doctrine?
48
49. • Searches conducted under this exception are valid when:
• There is reasonable certainty that the person or thing cross the
border;
• There is reasonable certainty that there was no change in the
object of the search since it crossed the border; and
• The search is conducted as soon as practicable after the border
crossing.
What is the US border search doctrine?
49
50. • Reasonable certainty is a standard that is greater than probable cause,
but less than proof beyond a reasonable doubt.
What is the US border search doctrine?
50
51. • The “extended border” search doctrine further expands the doctrine to
apply beyond the actual border or its functional equivalent.
• The difference between the “functional equivalent” and “extended
border” is that the extended border search occurs after the first point
in time when the entity might be stopped within the country.
What is the US border search doctrine?
51
52. • A valid “extended border” search requires that:
1. There is reasonable certainty that the person or thing crossed the
border;
2. There is reasonable certainty that there was no change in the
object of the search since it crossed the border;
3. There is reasonable suspicion that criminal activity was occurring.
US Border Search Doctrine:
52
53. • Courts typically categorize border searches as either “routine” or “non-
routine.”
• Congress has granted properly empowered officials the authority to
conduct “routine” border searches.
Kinds of Searches at the U.S. Border:
53
54. • Typically, when determining if a search is routine, courts will examine
the degree of intrusiveness associated with the particular technique.
The First Circuit considers six factors:
1. Whether the search required the traveler to disrobe or expose intimate body parts;
2. Whether there was physical contact with the traveler;
3. Whether force was used;
4. Whether the type of search exposed the traveler to pain or danger;
5. The overall manner in which the search was conducted; and
6. Whether the traveler's reasonable expectation of privacy, if any, was invaded by the
search.
Kinds of Searches at the U.S. Border:
54
55. • At a minimum, courts require the reasonable suspicion of criminal
activity to justify a non-routine border search.
Kinds of Searches at the U.S. Border:
55
56. • At a minimum, courts require the reasonable suspicion of criminal
activity to justify a non-routine border search.
• The 9th Circuit has held that a forensic search of a laptop required
reasonable suspicion even though that search occurred at the border.
U.S. v. Cotterman, 709 F.3d 952 (9th Cir. 2013).
Kinds of Searches at the U.S. Border:
56
57. • The Fourth, Fifth, and Eleventh Circuit Courts of Appeals have
also examined border searches of electronic devices within the context
of the “routine” versus “nonroutine” framework. U.S. v. Kolsuz, 2018
U.S. App. LEXIS 12147 (4th Cir. 2018); U.S. v. Vergara, 884 F.3d 1309 (11th
Cir. 2018); U.S. v. Molina-Isidoro, 884 F.3rd 287 (5th Cir. 2018).
Kinds of Searches at the U.S. Border:
57
58. • Both Kolsuz and Vergara held that a “non-routine” border search of an
electronic devices did not require a warrant.
• Kolsuz, 2018 U.S. App. LEXIS 12147 at 30-31 (holding “it was reasonable for the CBP
officers who conducted the forensic analysis of Kolsuz's phone to rely on the
established and uniform body of precedent allowing warrantless border searches of
digital devices that are based on at least reasonable suspicion”);
• Vergara, 884 F.3d at 1312-13 (holding that border searches are excepted from
warrant and probable cause requirements);
• Molina-Isidoro held that a “routine” border search of an electronic device did not
require a warrant, but the Court did not reach the level of proof necessary because
the search was supported by probable cause. 884 F.3d at 292-93.
Kinds of Searches at the U.S. Border:
58
59. • In January of 2018, U.S. Customs and Border Protection (CBP) issued
CBP Directive No. 3340-049A, a policy directive that provides guidance
on CBP searches of electronic devices.
• The policy shines light on CBP’s position on what types of electronic
searches are “routine” and “non-routine”
• The policy also clarifies CBP procedure for reviewing electronic devices
when attorney-client privilege is being asserted.
New CBP Policy Directive
59
60. • Border searches are divided into two categories: “basic searches” and
“advanced searches.”
• Border searches should never include using a device to
access materials stored remotely.
• Officers may not intentionally use the device to access
information that is solely store remotely.” Para 5.1.2.
New CBP Policy Directive:
Border Searches
60
61. • The policy defines a basic search as any border search of an electronic device
that is not an advanced search.
• “In the course of a basic search, with or without suspicion, an Officer may
examine an electronic device and may review and analyze information
encountered at the border[.]” CBP Directive Non. 3340-049A, 5.1.3.
• Because there is no requirement of suspicion, this CBP language tells us
that CBP believes that these searches are routine.
New CBP Policy Directive:
Border Searches
61
62. • The policy defines an advanced search as “
• any search in which an Officer connects external equipment, through a wired or
wireless connection, to an electronic device not merely to gain access to the device,
• but to review, copy, and/or analyze its contents.
• In instances in which there is a reasonable suspicion of activity in violation of the
laws enforced or administered by CBP, or in which there is a national security
concern . . . An Officer may perform an an advanced search of an electronic device.”
New CBP Policy Directive:
Advanced Search
62
63. • When a lawyer objects to a search on the grounds that the material is
protected by attorney-client privilege, the CBP agent should seek:
• Written clarification of the materials for which the privilege or
doctrine is being asserted.
• Prior to conducting any search of those materials, the CBP will
contact CBP Associate/Assistant Chief Counsel’s Office.
Searching Materials When
Attorney-Client Privilege is Asserted:
63
64. • Those materials will be segregated from
other information examined during the
border search to ensure that any privileged
materials are handled appropriately.
Searching Materials When
Attorney-Client Privilege is Asserted:
64
65. • Unless there are any materials identified that indicate an
imminent threat to homeland security,
• copies of materials maintained by CBP and determined
to be privileged will be destroyed,
• excluding a copy to be maintained by CBP
Associate/Assistant Chief Counsel’s office,
• for the purposes of complying with a litigation hold or
other requirements of law.
Searching Materials When
Attorney-Client Privilege is Asserted:
65
66. • Materials physically stored on a
• laptop,
• cellphone, or
• iPad
• could potentially become subject to a border search.
• .
What Materials Can be Searched?
66
67. • Materials physically stored on a laptop, cellphone, or iPad could
potentially become subject to a border search.
• If you have materials subject to attorney-client privilege, you must
assert that privilege. CBP agents should then follow agency procedure
for reviewing materials when attorney-client privilege is asserted.
What Materials Can be Searched?
67
68. • If you are accessing materials by logging in through
Citrix, those materials are not accessible to CBP
agents because they are stored remotely.
What Materials Can be Searched?
68
69. • If you have stored work documents on your laptop
• and then deleted them,
• they are likely still accessible to CBP agents
• (unless your laptop has been through a “data scrub.”)
What Materials Can be Searched?
69
70. Sulloway’s IT Department can:
• Provide you with a “pool” laptop to use on an upcoming trip that is
scrubbed of data.
• Sulloway-provided laptops are password protected and encripted.
• This protects client’s data if the laptop is lost or stolen.
• However, you may still have to unlock the laptop for a CBP agent during a
border search.
What Materials Can be Searched
70
71. International Travel Tips:
• Whenever possible, plan to login to your desktop through Citrix rather
than keep materials stored on your devices.
• Sulloway’s IT Department recognizes that this isn’t always possible when
travelling to countries with unreliable internet connections.
• Separate files protected by attorney-client privilege from other files so
that you can easily identify them during a border search.
• Know beforehand whether your device has been “scrubbed” of data
that may have been previously stored on your device.
What Materials Can be Searched?
71
72. International Travel Tips:
• Whenever possible, plan to login to your desktop through Citrix rather
than keep materials stored on your devices.
• Sulloway’s IT Department recognizes that this isn’t always possible when
travelling to countries with unreliable internet connections.
• Separate files protected by attorney-client privilege from other files so
that you can easily identify them during a border search.
• Know beforehand whether your device has been “scrubbed” of data
that may have been previously stored on your device.
What Materials Can be Searched?
72
73. Presented by:
Margaret H. Nelson, Esquire
New Hampshire Ethics Decisions
A Y e a r i n R e v i e w
73
74. Procedural Posture:
• On ADO’s request, the Supreme Court granted interim suspension under Rule 37(9)(1);
37(16)( d)( f); Reiner’s Case, 152 N.H. 163, 168 (2005) (Reiner’s Case I) and Reiner’s Case
152 N.H. 594, 597 (2007) (Reiner’s Case II), based attorney’s indictment for felony witness
tampering.
Holding:
• Supreme Court affirms decision of Hearings Officer (Duggan, J. Ret.) to uphold the interim
suspension based on a preponderance of the evidence standard.
Don’t Lie: It Leads to Unfortunate
Consequences
S t a n d a r d s f o r I n t e r i m S u s p e n s i o n C l a r i fi e d
74
75. Burden of proof:
• The ADO’s burden is not to prove that the indictment allegations are true, but rather to
show that, considering the allegations and any additional evidence submitted, the
respondent’s suspension is necessary to protect the public and the integrity of the legal
profession.
Allegations that satisfied the burden of proof in this case:
• Allegations of indictment and additional evidence offered by the ADO, including
statements by the witness whose testimony the respondent allegedly sought to affect and
the judge presiding over the domestic violence case giving rise to the indictment met that
burden.
Don’t Lie: It Leads to Unfortunate
Consequences
S t a n d a r d s f o r I n t e r i m S u s p e n s i o n C l a r i fi e d :
75
76. Allegations that satisfied the burden of proof in this case:
• Allegations of indictment and additional evidence offered by the ADO, including statements by
the witness whose testimony the respondent allegedly sought to affect and the judge
presiding over the domestic violence case giving rise to the indictment met that burden.
• Supreme Court concluded that the respondent’s alleged comments to the witness were part of a
pattern of dishonesty and warranted interim suspension, noting:
• “The injury to the public and to the profession is substantial whenever an attorney is dishonest.
See Bosse’s Case, 155 N.H. 128, 132 (2007). ‘No single transgression reflects more negatively on
the legal profession’ and erodes public confidence in the bar more ‘completely than a lie.’ Id.
(quotations and brackets omitted).”
• Gallant's Case, 170 N.H. 528, 538 (2017).
Don’t Lie: It Leads to Unfortunate
Consequences
S t a n d a r d s f o r I n t e r i m S u s p e n s i o n C l a r i fi e d :
76
77. Facts:
• Two couples (1 and 2) engage in spouse swapping which leads to their respective divorces.
• Lawyer represents Wife 1 in her divorce and then takes on representation of Husband 2 in
his post-divorce proceedings. Wife 1 and Husband 2 are involved in a romantic relationship
and living together at the time.
• Lawyer obtains Husband 1’s financial affidavit while representing Wife 1 and then uses the
affidavit in the post-divorce action involving Husband 2. Before doing so, she did not file a
motion asking to do so or seek Husband 1’s permission.
Be Careful Out There: Conflicts
Can Arise In Unusual Ways
77
78. Holding:
• ADO upholds Hearing Panel’s finding that use of the affidavit violated Rule 1.7.
• ADO reversed Hearing Panel’s finding of a violation of Rule 1.1 (competence) and Rule
3.4(c) (lawyer shall not knowingly disobey an obligation under the rules of a tribunal),
finding no basis to conclude that Lawyer’s use of the affidavit violated Circuit Court –
Family Division Rule 1.30 or RSA 458:15-b.
Be Careful Out There: Conflicts
Can Arise In Unusual Ways”
78
79. Analysis:
• Concurrent representation of Wife 1 and Husband 2 raised a potential conflict of interest
because there were overlapping issues involving child support, alimony and child visitation
which posed a significant risk that Lawyer’s representation of each client would be
materially limited by her representation of the other.
• No effort to get informed consent and none of the circumstances permitting concurrent
representation enumerated in Rule 1.7(b) applied.
Citation:
• Pearson, Tracy A. (f/k/a Bernson, Tracy A.) advs. Attorney Discipline Office - # 14-017
Be Careful Out There: Conflicts
Can Arise In Unusual Ways
79
80. Facts:
• Lawyer represents grandparents in hotly contested effort to get visitation rights with
grandchildren following acrimonious divorce.
Attorney’s emails to opposing counsel included the following language:
• “I look forward to protracted warfare with you and your entitled client.”
• “Your client is deceitful and controlling … See you in court.”
• “Are you serious? You are despicable, disgraceful and disingenuous for these comments…”
• “When she [opposing counsel’s client] stops pretending to be the victim and decides to do
something to help solve this mess, maybe we can talk…. She and you are indeed
disgraceful…”
• “I do recall from history that the NAZI’s punished relatives for the crimes of family
members…”
Don’t Let Your Emotions Affect
Your Advocacy
80
81. Result:
• Complaint to ADO resolved by Stipulation.
• ADO and lawyer agreed his conduct violated Rule 4.4 (conduct whose primary
purpose is to embarrass, delay or burden a third party)
• Conduct caused injury because it increased the friction between the parties and
potentially damaged Lawyer’s clients’ interests and harmed the integrity of the
profession.
Don’t Let Your Emotions Affect
Your Advocacy
81
82. Result:
• Lawyer’s substantial, 30 year experience constituted an aggravating factor while his
absence of a dishonest or selfish motive, lack of prior discipline and cooperation with
the ADO were mitigating factors.
• Reprimand was determined to be the appropriate sanction.
Citation:
• Hoppock, Joseph S. advs. Attorney Discipline Office - # 16-027
Don’t Let Your Emotions Affect
Your Advocacy
82
83. Facts:
• Lawyer with substantial experience is struggling with a variety of personal problems
including anxiety and depression.
• Lawyer represents client who wants him to file the will of her former husband which
left her his real estate, plus the remainder of his estate, after a gift to his brother.
• Lawyer never takes steps to inventory the estate, pay for funeral expenses and
resolve other claims or file the will for probate. Despite this lack of action, Lawyer
repeatedly told client the probate was proceeding.
Don’t Let Your Personal Problems
Harm Your Client’s Interests
83
84. Procedural posture:
• Owner of funeral home brought a petition to open an estate which is granted but
Administrator does not know of all assets or existence of the Will.
• Estate distributed under the intestacy statute to his three estranged siblings.
• Client ultimately hires a new lawyer who quickly becomes aware of lack of filing of
will and distribution of estate and files a grievance with ADO.
Don’t Let Your Personal Problems
Harm Your Client’s Interests
84
85. Result:
• Lawyer and ADO enter into Stipulation, agreeing that his conduct violates Rule 1.1
(competence), Rule 1.3 (diligence), Rule 1.4 (communication), Rule 8.4(c) (deceit)
and Rule 8.4(a) (general rule).
• Base line sanction of suspension considered in light of aggravating and mitigating
factors, including Lawyer’s personal and emotional problems, cooperation with ADO
and remorse balanced against his substantial experience as a Lawyer.
• Three year suspension with payment of costs imposed.
Citation:
• Glennon, Martin K. advs. Attorney Discipline Office - # 17-006
Don’t Let Your Personal Problems
Harm Your Client’s Interests
85
86. Facts – the long and winding road:
• Case arises out of a hospital’s decision to not renew its contract with a business
entity (“the Group”) providing pathology services to the hospital. Pathology group’s
principals were Dr. A and Dr. B.
• Lawyer agrees to represent the Group and Drs. A and B regarding the hospital and its
President. Lawyer discusses the possibility of future conflicts generally with clients
but does not identify them or seek informed consent in writing.
Representing Multiple Parties Can
Be Tricky Especially if the Facts or
Attitudes Change
86
87. Facts – the long and winding road:
• Clients, contrary to lawyer’s advice, go public with their concerns that non-renewal
of the contract was in retaliation for the Group having reported HIPAA violations
relating to a 2007 security breach, including making a claim to the College of
American Pathologists, which then placed the pathology lab on probation. Hospital
publicly blames the group and its principals for the probation.
• Dr. A, her husband (also a doctor but not a member of the Group) and Dr. B go to
hospital to retrieve personal and business items. Husband and Dr. B use
“DriveScrubber” software to copy and delete certain documents. Dr. A was aware of
the plan and gave husband her password to access accounts but did not personally
use “DriveSrubber”
Representing Multiple Parties Can
Be Tricky Especially if the Facts or
Attitudes Change
87
88. Facts – the long and winding road:
• Hospital brings federal litigation against the Group and Drs. A and B, later amended
to include Dr. A’s Husband as a defendant. Lawyer represents all 4 defendants.
• Lawyer confirms the downloading of documents was done with Dr. A’s authority but
did not confirm in writing the joint representation or any issues that could possibly
arise from that representation, including the fact that Dr. A may have less potential
liability for the downloading of the documents than her husband and Dr. B.
• As litigation progressed, clients’ interests began to diverge for various reasons. Dr. A
and her husband want to stay in NH and maintain their practice. Dr. B moves out of
state for other employment. Dr. B’s defamation and false light claims affected by
discovery of embarrassing personal information on his computer.
Representing Multiple Parties Can
Be Tricky Especially if the Facts or
Attitudes Change
88
89. Facts – the long and winding road:
• Court proposes a “walk away” settlement in light of the fact that any recovery for the
plaintiff might be balanced out by damages awarded to defendants on some of their
counterclaims. Dr. B initially willing to consider this kind of settlement; Drs. A and B
opposed.
• Lawyer for the first time reaches out to his firm’s internal legal ethics officer for
guidance as to whether there should be separate counsel for Dr. B. A motion for
mandatory withdrawal is prepared but not filed.
Representing Multiple Parties Can
Be Tricky Especially if the Facts or
Attitudes Change
89
90. Facts – the long and winding road:
• While those discussions going on, Dr. A, her husband and Dr. B agreed to begin
discussions on settlement.
• Dr. A continues to press for settlement with “substance.” Settlement negotiations
broke down and trial began. However, a settlement in principle was reached during
trial.
• Dr. A later expressed concerns about settlement agreement she was asked to sign.
Ultimately, Dr. A and her husband sought legal advice from other counsel about the
settlement agreement which was ultimately concluded.
Representing Multiple Parties Can
Be Tricky Especially if the Facts or
Attitudes Change
90
91. Procedural posture:
• Dr. A and her husband brought a legal malpractice action against Lawyer and his firm
which was resolved by summary judgment in favor of the defendants. An appeal was
pending at the time of the ADO order.
Resolution:
• The parties stipulated that Lawyer violated Rule 1.7 in undertaking the joint
representation without confirming his clients’ informed consent in writing.
• Multiple significant risks that materially limited the joint representation, some of which
existed at the beginning of the representation and some which developed later, should
have been addressed and the clients’ informed written consent obtained.
Representing Multiple Parties Can
Be Tricky Especially if the Facts or
Attitudes Change
91
92. Resolution:
• Reprimand is the appropriate sanction given Lawyer’s absence of a prior disciplinary
record, his lack of a personal or selfish motive, cooperation with the ADO, balanced
against his substantial experience in practice.
• This Stipulation is not an admission of liability for civil purposes but was solely for
resolving litigation with the ADO.
Citation:
• Grau, Charles W. advs. Attorney Discipline Office - # 13-033
Representing Multiple Parties Can
Be Tricky Especially if the Facts or
Attitudes Change
92
93. New Hampshire Rule of Professional Conduct 1.7
“(a) Except as provided in paragraphs (b) and (c), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client , a former client or a third
person or by a personal interest of the lawyer.”
Waiver Letters: Relevant Rule
93
94. New Hampshire Rule of Professional Conduct 1.7
“(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before a
tribunal; and
(4) each affected client gives informed consent, confirmed in writing.”
Waiver Letters: Relevant Rule
94
95. New Hampshire Rule of Professional Conduct 1.7, Ethics Committee Comment
(emphasis added):
• “The requirements that a lawyer maintain loyalty to a client and protect the client's
confidences are fundamental. Although both the former rule 1.7 and the current rule
1.7(b) allow a lawyer to undertake representation in circumstances when there is exists a
concurrent conflict of interest, the lawyer should use extreme caution in deciding to
undertake such representation. The lawyer must make an independent judgment that he
or she can provide "competent and diligent representation" before the lawyer can even
ask for consent to proceed. The court in subsequent proceedings can review such a
judgment.
• See Fiandaca v. Cunningham, 827 F.2d. 825 (1st Cir. 1987).”
Waiver Letters: Relevant Rule
95
96. New Hampshire Rule of Professional Conduct 1.7, Ethics Committee Comment
(emphasis added):
• “In evaluating the appropriateness of representation in a conflict situation under
1.7(b), the New Hampshire Bar Association Ethics Committee has used under the old
rules the "harsh reality test" which states:
• ‘(i)f a disinterested lawyer were to look back at the inception of this
representation once something goes wrong, would that lawyer seriously
question the wisdom of the first attorney's requesting the client's consent to
this representation or question whether there had been full disclosure to the
client prior to obtaining the consent. If this "harsh reality test" may not be
readily satisfied by the inquiring attorney, the inquiring attorney and other
members of the inquiring attorney's firm should decline representation . . . ."
New Hampshire Bar Association Ethics Committee Opinion 1988-89/24
(http://nhbar.org/pdfs/f088-89-24.pdf).’
• This test has proven useful to practicing attorneys and retains its validity under the
amended rules.”
Waiver Letters: Relevant Rule
96
97. Presented by:
Peter F. Imse, Esquire
Model Rule 8.4(g)
The Proposed Rule’s Development in New Hampshire
97
98. ABA Model Rule 8.4(g)
ABA’s Model Rule of Professional Conduct (“Model Rule”) 8.4(g) states:
“It is professional misconduct for a lawyer to:
• (g) engage in conduct that the lawyer knows or reasonably should know
is harassment or discrimination on the basis of race, sex, religion,
national origin, ethnicity, disability, age, sexual orientation, gender
identity, marital status or socioeconomic status in conduct related to the
practice of law. This paragraph does not limit the ability of a lawyer to
accept, decline or withdraw from a representation in accordance with
Rule 1.16. This paragraph does not preclude legitimate advice or
advocacy consistent with these Rules.”
98
99. ABA Model Rule 8.4(g), ABA Comment [3]
[3] Discrimination and harassment by lawyers in violation of paragraph (g)
undermine confidence in the legal profession and the legal system. Such
discrimination includes harmful verbal or physical conduct that manifests
bias or prejudice towards others. Harassment includes sexual harassment
and derogatory or demeaning verbal or physical conduct. Sexual
harassment includes unwelcome sexual advances, requests for sexual
favors, and other unwelcome verbal or physical conduct of a sexual
nature. The substantive law of antidiscrimination and anti-harassment
statutes and case law may guide application of paragraph (g).
99
100. ABA Model Rule 8.4(g), ABA Comment [4]
[4] Conduct related to the practice of law includes representing clients;
interacting with witnesses, coworkers, court personnel, lawyers and
others while engaged in the practice of law; operating or managing a law
firm or law practice; and participating in bar association, business or social
activities in connection with the practice of law. Lawyers may engage in
conduct undertaken to promote diversity and inclusion without violating
this Rule by, for example, implementing initiatives aimed at recruiting,
hiring, retaining and advancing diverse employees or sponsoring diverse
law student organizations.
100
101. Purpose of the Rules of Professional
Conduct
• As a profession, we hold ourselves to a higher standards of behavior.
• New Hampshire Rules of Professional Conduct (“Rules”) are minimum standards, not limits
on our behavior.
• Rules are client and third-party focused – not lawyer focused. They are designed to protect
others, not lawyers.
• Rules regulate everything from how we deal with clients, to how we act in the court
system, how we treat third parties, and, in some cases, how we behave when we are not
practicing law.
101
102. Purpose of the Rules of Professional Conduct
• The Rules already provide that:
• “Dishonesty, fraud, deceit and misrepresentation” are grounds for
disciplinary sanctions (8.4(c)), and that,
• We have a duty to report substantial questions as to the “honesty,
trustworthiness and fitness as a lawyer” of other lawyers with whom we
interact.
• The Rules also prohibit lawyers from taking any “action” while
“representing a client” “if the lawyer knows or it is obvious that the
action has the primary purpose to embarrass, delay or burden a third
person.” Rule 4.4(a).
• Those in favor in adopting Model Rule 8.4(g) in New Hampshire believe
that harassment and discrimination are evidence of a lack of respect
and an abusive attitude toward the victim that are incompatible with
holding a license to practice law. 102
103. Context for Rule 8.4(g) in New
Hampshire
• Unlike over 30 other states, New Hampshire has not adopted any version of Model Rule
8.4(d) or associated Comment [3].
• Model Rule 8.4(d) states that ‘[I]t is professional misconduct for a lawyer to . . . (d) engage
in conduct that is prejudicial to the administration of justice.” ABA Comment [3] provides
that “[a] lawyer who, in the course of representing a client, knowingly manifests by words
of conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age,
sexual orientation or socioeconomic status, violates paragraph (d) when such actions are
prejudicial to the administration of justice.”
• Over thirty states adopted Model Rule 8.4(d) and ABA Comment [3], fourteen of which
expanded the context in which it applies beyond attorney-client interactions.
• Nearly every major profession, including doctors, nurses, dentists, hospitals, counselors,
architects, engineers, realtors, and educators, to name a few, has professional conduct
rules against discrimination and harassment.
103
104. History of Model Rule 8.4(g) in New
Hampshire
• ABA adopted Model Rule 8.4(g) in 2016.
• Nationwide, twenty-four states have either adopted a form of Model Rule
8.4(g), or already had an analogous rule.
• Proposed New Hampshire Rule was reviewed by the Ethics Committee and
Board of Governors, both of whom approved the proposal.
• Proposed Rule was submitted to the New Hampshire Supreme Court’s Advisory
Committee on Rules in March 2017.
• Current status: ACR is negotiating revisions to the language of the proposed
Rule among ACR Members, Ethics Committee members, and “opponents”.
104
105. Current Iteration of New Hampshire’s
Proposed Rule 8.4(g) Compared to ABA
Model Rule
It is professional misconduct for a lawyer to:
• “(g) engage in conduct related to the practice of law that the lawyer knows or
reasonably should know is harassment or discrimination, as defined by
substantive state or federal law, on the basis of race, sex, religion, national
origin, ethnicity, physical or mental disability, age, sexual orientation, gender
identity, or marital status; however, statutory or regulatory exemptions, based
upon the number of personnel in a law firm, shall not relieve a lawyer of the
requirement to comply with this Rule or socioeconomic status in conduct
related to the practice of law. This paragraph does not limit the ability of a
lawyer to accept, decline or withdraw from a representation in accordance
with Rule 1.16 nor does it infringe on a lawyer's First Amendment rights or a
lawyer's right to advocate for a client in a manner that is consistent with
these Rules. This paragraph does not preclude legitimate advice or advocacy
consistent with these Rules." 105
106. Criticisms and Responses
Argument:
• The proposed Rule violates the First Amendment due to vagueness.
Reply:
• Ethics rules cannot abrogate or limit constitutional rights.
• The Rule expressly states that the proposal is not intended to limit a
lawyer’s First Amendment Right.
• The substantive law of discrimination and harassment will govern the
interpretation of the Rule. That body of law regulates behavior in a
manner that is constitutionally permissible.
106
107. Response to First Amendment Claims
Best evidence that the proposed rule does not raise Constitutional
vagueness issues:
• New Hampshire’s Rules already prohibit lawyers from taking any “action” while
“representing a client” “if the lawyer knows or it is obvious that the action has the primary
purpose to embarrass, delay or burden a third person.” Rule 4.4(a) without challenge.
• Existing federal and state laws against discrimination and harassment have not been held
to be unconstitutional.
• Over 30 states have regulated discrimination and harassment within the context of the
“administration of justice” for up to 30 years under Model Rule 8.4(d); that Rule has not
been held unconstitutional.
• Many other professions have existing regulations regarding harassment and discrimination
– none of those rules have been held to be unconstitutional.
107
108. Criticisms and Responses
Argument:
• The rule will subject attorneys in faith-based organizations to sanctions
for advocating for or enforcing exclusionary policies that are based upon
matters of faith.
Reply:
• Participants in faith-based organizations already enjoy broad First
Amendment protections.
• Representing faith-based organizations in a legal matter, or participating
in faith-based organizations in one’s personal life, are examples of
constitutionally-protected behaviors, and they also fall outside of the
substantive legal definitions of harassment and discrimination that are
incorporated into the proposal.
108
109. Criticisms and Responses
Argument:
• The Rule will prevent attorneys from representing clients accused of
discrimination of harassment.
Reply:
• Rule 1.2(b) makes clear that a lawyer’s representation of a client does
not constitute an endorsement of the client’s views or behaviors.
• The current proposal expressly states that the Rule does not limit
attorney behavior that is otherwise consistent with the Rules.
109
110. Criticisms and Responses
Argument:
• The Rule will force lawyers to represent clients who they do not want to represent.
Reply:
• The proposal specifically incorporates the provisions of Rule 1.16 (a)(i) permits a lawyer to
decline or withdraw from a representation that would result in violation of the rules.
• Rule 1.7(a)(2) prohibits lawyers from undertaking a representation if it would be
“materially limited” by a “personal interest of the lawyer”.
• However, case law is still developing on the question of whether or not it is a violation of
federal law to decline to do business with someone solely because they are a member of a
protected class.
• See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 201 L.Ed.2d 35 44 (U.S. 2018)
(“[I]t is a general rule that [religious and philosophical] objections do not allow business
owners and other actors in the economy and in society to deny protected persons equal
access to goods and services under a neutral and generally applicable public
accommodations law..”) 110
111. Criticisms and Responses
Argument:
• Existing laws are sufficient, and the conduct addressed by the proposed Rule is better
handled by employers.
Reply:
• Existing laws do not apply to small firms, nor do they address behavior among firm
owners, or by lawyers against court staff or third parties, such as stenographers, free-lance
paralegals, etc.
• Even if an attorney is found to have violated existing State or Federal law, there is no basis
under our New Hampshire Rules to sanction such behavior, unless it falls under Rule
4.4(a).
111
112. Opposition to Rule 8.4(g) in New
Hampshire
Argument:
• The Rule leaves lawyers vulnerable to unjustified disciplinary action.
Reply:
• This argument would support the repeal of every Rule.
• The purpose of the proposed Rule is to encourage lawyers to be conscious of their
conduct, and to protect those who are subject to discrimination and harassment by
attorneys.
• The Rule would set a manageable minimum standard for appropriate and ethical behavior.
112
113. What Next?
• Negotiations will continue over the Summer.
• Primary open issue – how to incorporate substantive law
into the Rule.
• Proposal and any compromise will be considered by the ACR
in September.
113
114. Presented by:
Margaret H. Nelson, Esq.
A Lawyer’s Duty to Inform a Current or
Former Client of the Lawyer’s Material
Error
A B A F o r m a l O p i n i o n 4 8 1
114
115. ABA Opinion 481 helps clarify:
• When a lawyer must inform a client of an error.
Presentation topics:
• Relevant Rules
• Holding
• Applicability
Topic Overview
115
116. Model Rule 1.4
(a) A lawyer shall:
(1) promptly inform the client of any decision of circumstance
with respect to which the client’s informed consent, as defined in
Rule 1.0(e), is required by these Rules;
NH Rule 1.4
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance
with respect to which the client's informed consent is required by
these Rules;
The Rules: Client-Lawyer Relationship
116
117. Model Rule 1.4 / NH Rule 1.4
(a) A lawyer shall:
(2) reasonably consult with the client about the means by
which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of
the matter;
(4) promptly comply with reasonable requests for information;
The Rules: Client-Lawyer Relationship
117
118. Model Rule 1.4
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
NH Rule 1.4
(b) A lawyer shall explain the legal and practical aspects of a
matter and alternative courses of action to the extent that such
explanation is reasonably necessary to permit the client to make
informed decisions regarding the representation.
The Rules: Client-Lawyer Relationship
118
119. Model Rule 1.4 & Duty to Disclose Material Errors to Current
Clients
• “More broadly, the ‘guiding principle’ undergirding Model Rule
1.4 is that ‘the lawyer should fulfill reasonable client
expectations for information consistent with the duty to act in
the client’s best interests, and the client’s overall requirements
as to the character of representation.’ A lawyer may not
withhold information from a client to serve the lawyer’s own
interests or convenience.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481 (2018)
(citing Model Rules of Prof’l Conduct R. 1.4 cmt. 5, 7.
The Rules: Client-Lawyer
Relationship
119
120. Genesis of the Opinion:
• “[L]awyers deserve more specific guidance in evaluating their
duty to disclose errors to current clients than has previously
been available.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481
(2018).
The Opinion
120
121. Holding:
• “[T]he Committee concludes that a lawyer must inform a
current client of a material error committed by the lawyer in
the representation.”
• This obligation turns on the definitions for “current client”
and “material error.”
The Opinion
121
122. Obligations to Former Clients
• “If a material error relates to a former client’s representation
and the lawyer does not discover the error until after the
representation has been terminated, the lawyer has no
obligation under the Model Rules to inform the former client
of the error.”
• The opinion acknowledges that lawyers may choose to
disclose a material error to a former client for individual
reasons, but notes that “[t]hose are, however, personal
decisions for lawyers rather than obligations imposed under
the Model Rules.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481 (2018).
Who is a Current Client?
122
123. “Generally speaking, a current client becomes a former
client”
a) “[A]t the time specified by the lawyer for the conclusion of the
representation, and acknowledged by the client[.]”
b) “[W]hen the lawyer withdraws from the representation
pursuant to Model Rules of Professional Conduct 1.16[.]”
c) “[W]hen the client terminates the representation[.]” or
d) “[W]hen overt acts inconsistent with the continuation of the
attorney-client relationship indicate that the relationship has
ended.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481 (2018).
Who is a Current Client?
123
124. “Absent express statements of overt acts by either party, an
attorney-client relationship also may be terminated when it
would be objectively unreasonable to continue to bind the
parties to each other.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481 (2018).
Who is a Current Client?
124
125. “Absent express statements of overt acts by either party . . . the scope
of a lawyer’s representation loosely falls into one of three categories:
1. The lawyer is retained as general counsel to handle all of the
client’s legal matters;
2. The lawyer is retained for all matters in a specific practice areas; or
3. The lawyer is retained to represent the client in a discrete matter.
With respect to categories one and two above, an attorney-client
relationship continues even when the lawyer has no pending matter for
the client . . . . In the third category, where a lawyer agrees to
undertake a specific matter, the attorney-client relationship ends once
the matter is concluded.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481 (2018).
Who is a Current Client?
125
126. Episodic Clients
• Finally, whether an “episodic client, meaning a client who engages
the lawyer whenever the client requires legal representation, but
whose legal needs are not constant or continuous” is a “current
client” is a fact specific inquiry.
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481 (2018).
Who is a Current Client?
126
127. Material Error
• “An error is material if a disinterested lawyer would conclude
that it is
a) reasonably likely to harm or prejudice a client; or
b) of such a nature that it would reasonably cause a client
to consider terminating the representation even in the
absence of harm or prejudice.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481
(2018).
What is a Material Error?
127
128. Defining the Parameters of Material Error
• “[I]t is unreasonable to conclude that a lawyer must inform a current
client of an error only if that error may support a colorable legal
malpractice claim, because a lawyer's error may impair a client’s
representation even if the client will never be able to prove all of the
elements of malpractice.”
• “At the same time, a lawyer should not necessarily be able to avoid
disclosure of an error absent apparent harm to the client because the
lawyer’s error may be of such a nature that it would cause a
reasonable client to lose confidence in the lawyer’s ability to perform
the representation competently, diligently, or loyalty despite the
absence of clear harm.”
• ABA Comm. On Prof’l Ethics and Grievances, Formal Op. 481
(2018).
What is a Material Error?
128