Legal ethics notes

1. Legal Ethics in a Technology Age
Chapter 2

2. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
2
Issues
 Legal ethics are duties owed to clients and the legal system
 The duty of confidentiality and attorney-client privilege
 The work product doctrine
 Dangers of an inadvertent disclosure of confidential
information
 Conflicts of interest
 The duty of competency in a technology age
 Obligations of candor and fairness in litigation
 Appropriate hiring, delegating and supervising owed by the
managing and supervising attorneys

3. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
3
Introduction to Ethics in Technology
 Ethics -- minimally accepted standards of conduct in a
profession
 Lawyer ethics determined by state law based on the ABA
Model Rules of Professional Conduct
 Paralegals ethics are governed by professional associations,
NALA and NFPA, guidelines of ethical behavior that are
similar to the ABA Model Rules of Professional Conduct
 Ethical conduct is required of every member of the legal team
 supervising attorney is responsible for her own ethical
conduct as well as that of every member of the legal team,
including non-lawyers and those without legal training
 Technology staff must be instructed on the ethical obligations
and confidential nature of the files on which they work

4. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
4
Confidentiality and Privilege
 Confidentiality is an ethical obligation
 Privilege is a rule of evidence

5. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
5
Confidentiality
 Ethical obligation to keep client information
confidential
 ABA Rule 1.6 requires the attorney to maintain the
confidential information obtained from the client and
may reveal such information only where the client
gives his consent
 Founded on belief that client should be able to tell the
attorney everything about her case so the attorney can
give proper legal advice

6. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
6
Privilege
 Rule of Evidence that protects client from the attorney
revealing the client’s confidential information.
 The privilege is lost, if the client has revealed the
same information to someone outside the legal team
 Privilege extends to other relationships
 Spouses
 Clergy-penitent
 Doctor-patient
 Psychotherapist-patient
 Participant in settlement negotiations

7. Technology in the Law Office, 2e
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© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
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Claim of Privilege
 The attorney-client privilege is not
automatically invoked
 The privilege must be asserted and its existence
established by the client

8. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
8
Extension of the Attorney-Client Privilege
to Others
 Efficient administration of justice requires
lawyers to engage others to assist in providing
legal representation to clients
 The privilege must extend to agents of the
lawyer such as legal assistants, accountants and
other experts

9. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
9
Self Defense Exception
 Lawyers who are accused of wrongdoing by
their clients must be able to defend themselves
 Defense may require the use of confidential
and/or privileged information

10. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
10
Work Product Doctrine
 Rule of Evidence that allows the attorney to
treat as confidential her work product
 Limited protection for material prepared by the
attorney, or those working for the attorney, in
anticipation of litigation or for trial
 Confidentiality and privilege apply to relevant
client communications regardless of whether
they involve potential litigation

11. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
11
Exceptions and Limitations to the Work
Product Doctrine
 Work product doctrine does not protect
documents prepared in the client’s normal
course of business
 Client does not protect documents simply by
giving them to the attorney

12. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
12
Internal Investigations and Evidentiary
Privileges
 Businesses conduct internal examination of operations
to uncover and correct wrongdoing
 Investigations result in documents that could be used
against the business
 Release of these documents could discourage internal
investigations and audits
 Documents are privileged to encourage self-policing
of these industries

13. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
13
Inadvertent Disclosure of Confidential
Information
 The slip of a finger, a misdialed fax number, a
“reply to all” can result in unintentional
disclosure of confidential information
 Admissibility of the inadvertently disclosed
documents depends on
 Steps taken before and after the disclosure
 Your particular jurisdictions treatment of the issue

14. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
14
Inadvertent Disclosure of Confidential
Information, cont.
 Three judicial views on inadvertent disclosure
 Automatic waiver – documents can be used
 No waiver – documents cannot be used
 Balancing test – the court will look at the circumstances to
determine whether the documents may be used
 ABA Guidance
 A lawyer who received information from opposing counsel
and knows or reasonably should know that the document
was inadvertently sent should promptly notify the sender in
order to permit the sender to take protective action

15. Technology in the Law Office, 2e
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© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
15
Conflict of Interest
 ABA Rule 1.7 – a lawyer should not represent another
client if the representation of one will be directly
adverse to the another unless both clients give
informed consent to dual representation and that
consent is confirmed in writing
 The basis of the rule is that a person cannot be loyal to
two clients with adverse or opposing interests

16. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
16
Competence
 ABA Rule 1.1 – a lawyer must provide
competent representation to a client
 Competent representation requires the legal
knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation
 Understanding an area of law and the rules of court
 Effectively communicating with the client and non-
legal members of the legal team

17. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
17
Candor and Fairness in Litigation
 ABA Rule 3.3 - duty to avoid conduct that
undermines the integrity of the process
 The duty to advocate for the client is tempered by
the ethical obligation to not mislead the court or
opposing counsel with false statement of the law or
facts which the lawyer knows to be false
 Reporting law, including cases and statues
favorable and unfavorable to the client’s position

18. Technology in the Law Office, 2e
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© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
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Fairness to Opposing Party and Counsel
 ABA Rule 3.4 - guideline to ensure justice is
done even if one’s client loses the case
 Each attorney is to use best skills and knowledge to
present fairly their position to the trier of fact
 Destroying, falsifying or tampering with evidence
destroys and/or undermines the legal system and
the faith people have in the system

19. Technology in the Law Office, 2e
Goldman
© 2010, 2008 Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
19
Duty to Supervise
 ABA Rule 5.1 – duty of partners and lawyers
with managerial authority in the firm to ensure
other’s conduct complies with the ethical code
 Ethical breaches are the responsibility of the
supervising attorney under both the legal principals
of the law of agency and the ethical code
 Sanctions for failure to properly supervise
 From the court (damages for malpractice or breach of
contract)
 From the attorney disciplinary board (suspension of
license or disbarment)