2019 Ethics update UT-Battelle Labor & Employment Training

1. 2019 Ethics updateUT-BattelleLabor & Employment Training UT College of Law Professor Alex Long

2. Introduction Program Format & Question Lineup

3. Today’s Program • Questions (sometimes loosely) based on recent cases and items in the news. • Tennessee Professional Conduct Rules will be our governing authority. • Answer with Your Clicker. • Discussion. Prizes. Fun!

4. Question Lineup • Conflicts of Interest in Employment Litigation • Email and Text Solicitation • Online Client Reviews • Tennessee Ethics Opinion Update • Lawyers’ Obligations After a Data Breach or Cyberattack • Lawyers in Trumpland • Zealous Advocacy Meets Extortion • The Dangers of Social Media

5. Conflicts of Interest in Employment Litigation

6. Conflicts of Interest in Employment Litigation • Lawyer has been approached by two people who applied for, but did not get, the same job and who believe that the selection was based on prohibited discriminatory practices. • Can Lawyer ethically represent both potential clients?

7. Can Lawyer ethically represent both potential clients? • Yes • No

8. Conflicts of Interest in Employment Litigation • TRPC R. 1.7(a): Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: … • (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? • (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.

9. Conflicts of Interest in Employment Litigation • How might there be a conflict? • Is there a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client? • Cmt. 6: • a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. • The critical questions are: what is the likelihood that a difference in interests will eventuate and, if it does, will it materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client?

10. Email and Text Solicitation

11. Email Solicitation • Bob represents employees suing a corporation in an employment discrimination case. • Bob sends an email to other individuals employed by the defendant-corporation describing the allegations in the lawsuit. • The email states that it is Bob’s opinion that employees who are similarly situated should be entitled to compensation and that Bob is gathering information to determine the scope of the employer’s employment practices. The email ends with the lawyer describing the nature of the legal services that Bob provides. • The communication is not labeled as advertising material.

12. Is Bob subject to professional discipline for his email? • No, because Bob did not directly solicit employment from the employees. • No, because a lawyer is not required to label a solicitation as advertising material. • No, because the other employees are similarly situated to Bob’s clients. • Yes.

13. Email Solicitation • Amendment to ABA Model Rules • Model Rule 7.3(a): “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.

14. Email Solicitation • Old version of ABA Model Rule 7.3(c): if a significant motive for the solicitation is the lawyer's pecuniary gain, a lawyer shall not send a written, recorded, or electronic communication soliciting professional employment from a specifically identified recipient the words "Advertising Material" appear on the outside of the envelope, if any, in which a communication is sent and at the beginning and ending of any written, recorded or electronic communication. • Amended version eliminates this requirement. • But no state has adopted the new rule yet! • Hypo based on Ethics Op. No. #672, Professional Ethics Committee for the State Bar of Texas (March 2018).

15. Email Solicitation • TRPC R. 7.3 • (c) If a significant motive for the solicitation is the lawyer's pecuniary gain, a lawyer shall not send a written, recorded, or electronic communication soliciting professional employment … unless the communication complies with the following requirements: • (1) The words "Advertising Material" appear on the outside of the envelope, if any, in which a communication is sent and at the beginning and ending of any written, recorded or electronic communication. • Tennessee has a bunch of other requirements too (“The first sentence of the communication shall state, "IF YOU HAVE ALREADY HIRED OR RETAINED A LAWYER IN THIS MATTER, PLEASE DISREGARD THIS MESSAGE."

16. Emails, Social Media, and Lawyer Email and Text Solicitation, Social Media, and Online Client Reviews Text Solicitation

17. Text Solicitation • Assume the same facts as before (Bob reaches out to other employees to suggest they are entitled to compensation), but instead sends text messages to the employees. • Is Bob subject to discipline for his text solicitation?

18. Is Bob subject to professional discipline for his text messages? • Yes, because such real-time electronic solicitation is prohibited unless the lawyer has a prior personal or professional relationship with the recipients.. • No.

19. Text Solicitation • ABA amended Model Rule 7.3(b): (b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a: • (1) lawyer; • (2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or • (3) person who routinely uses for business purposes the type of legal services offered by the lawyer • Only minor changes to black-letter, but …

20. Text Solicitation • Comment 2: “Live person-to-person contact” means in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection. Such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard. “ • But there are some older state ethics opinions that disagree.

21. Emails, Social Media, and Lawyer Email and Text Solicitation, Social Media, and Online Client Reviews Online Client Reviews

22. Online Client Reviews • Blake v. Giustibelli, 182 So. 3d 881, 884 (Fla. Ct. App. 2016) • “She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the court for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy …” • $350,000 in punitive damages awarded

23. Hypo: Online Client Reviews • Lawyer-Client relationship involving divorce agreement does not go well • Dispute over fees • Client posts three negative online reviews • Lawyer responds …

24. Online Client Reviews • Lawyer identifies client by name, identifies the client’s employer, states how much the client had paid Lawyer, identifies the county in which the divorce had been filed, and states that the client had a boyfriend. • Client files grievance. • Lawyer’s defense …

25. TRPC Rule 1.6(b) • b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary … • (5) to establish a claim or defense on behalf of the lawyer [a] in a controversy between the lawyer and the client, [b] to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or [c] to respond to allegations in any proceeding concerning the lawyer's representation of the client. TRPC Rule 1.9(c) prohibits a lawyer from disclosing confidential information about a former client to the disadvantage of a client unless permitted by the Rules.

26. Online Client Reviews: Ethics Opinions • Does this qualify as a “controversy between the lawyer and the client?” • Colorado Ethics Op. No. 136 (2019): the self-defense exception may apply even absent a formal proceeding. • State Bar of Ariz., Ethics Op. 93-02 (1993): the self-defense exception applies to a client’s public allegations against a former lawyer appearing in a book • TRPC Rule 1.6, cmt. 10: “Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges [wrongdoing]

27. Online Client Reviews • Assuming the reviews qualify as a “controversy between the lawyer and the client,” was the lawyer’s disclosure of confidential client information appropriate?

28. Was the lawyer’s disclosure of confidential client information appropriate? • Yes • No

29. Online Client Reviews: Court and Ethics Opinions • In re Skinner, 758 S.E.2d 788 (Ga. 2014): basis for hypo. Discipline imposed • People v. Isaac, 2016 WL 6124510 (Colo. O.P.D.J. Sept. 22, 2016): lawyer may not disclose simply to embarrass and discredit the client. • Colo. Ethics Op. No. 136 (2019): a lawyer may not respond to negative online reviews by needlessly disclosing sensitive and embarrassing information about current or former clients, but certain undefined disclosures of confidential information may be appropriate under Colo. RPC 1.6(b)(6) Rule 1.6(b)(5) only permits disclosure to the extent the lawyer reasonably believes necessary to respond to the allegations

30. Online Client Reviews: Court and Ethics Opinions • Los Angeles County Bar Association Op. 525 (2012): An attorney “may say no more than is necessary to rebut the public statement made by Former Client.” • Pa. Bar Ass’n Formal Op. 2014-200: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”

31. Hypo: More Online Client Reviews • An anonymous poster at an online attorney review site recently defamed lawyer Carol in her professional capacity. Carol is furious and wants to sue the individual. But before she can do so, she needs to identify who the anonymous poster is and where that person is domiciled. So, Carol instructs her paralegal, Denise, to respond to the anonymous poster in an attempt to determine the poster’s identify and location.

32. Is Carol ethically permitted to do this? • Yes, provided Denise discloses her identity and her role in the matter. • Yes, provided Denise does not lie about her identity when contacting the poster. • Yes, since Denise would be the one reaching out to the anonymous individual, not Carol. • No.

33. More Online Client Reviews • TRPC R. 4.3: when dealing with unrepresented persons, a lawyer shall not state or imply that the lawyer is disinterested, and “[w]hen a lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” • TRPC R. 8.4(a): a lawyer is prohibited from using another person to attempt to violate the rules of professional conduct.

34. Tennessee Ethics Opinion Update Settlement Agreements and Destruction of Evidence

35. Settlement Agreements and Destruction of Evidence • Lawyer represents a client in a products liability action involving a defective car. • As a condition of settlement, Defendant insists that the car be destroyed.

36. Settlement Agreements and Destruction of Evidence • Lawyer represents a client in a products liability action involving a defective car. • As a condition of settlement, Defendant insists that the car be destroyed. • ABA Model Rule 5.6(b): “A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.” • ABA Model Rule 3.4(a): “A lawyer shall not obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act…”

37. Can Lawyer ethically agree to the demand to destroy the car as part of the settlement? • Yes. • No.

38. Settlement Agreements and Destruction of Evidence • Tennessee Formal Ethics Opinion No. 2019-F-167 • Settlement conditions are prohibited by Tennessee Rules of Professional Conduct 5.6(b), if such conditions will restrict the attorney’s representation of other clients. • It is improper for an attorney to propose or accept a provision in a settlement agreement that requires an attorney in a products liability lawsuit to destroy the product alleged to be defective, as a material condition of settlement, if that action will restrict the attorney’s representation of other clients.

39. Intermission

40. Which of the following was not a real story from the past year? • Florida lawyer faces ethics investigation for drowning a raccoon. • New York lawyer resuspended after practicing law for 7 years while already suspended. • Oregon lawyer suspended for pretending to be so bored by witness’ testimony at trial that he pretended to fall asleep. • Kansas lawyer suspended for calling deposition videographer a Nazi.

41. Cybersecurity & Preventing Unauthorized Access to Information: Lawyers’ Obligations After a Data Breach or Cyberattack

42. ABA Formal Op. 483 – Lawyers’ Obligations After an Electronic Data Breach or Cyberattack (Oct. 2018) • Obligation to monitor for a data breach • “lawyers must employ reasonable efforts to monitor the technology and office resources connected to the internet, external data sources, and external vendors providing services relating to data and the use of data.” • Rules 1.1, 5.1, and 5.3

43. ABA Formal Op. 483 – Lawyers’ Obligations After an Electronic Data Breach or Cyberattack • Stopping the breach and restoring systems • Lawyers must act reasonably and promptly to stop the breach and mitigate damages • “As a matter of preparation and best practices, however, lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach.” • Rules 1.1 and 1.6(d)

44. ABA Formal Op. 483 – Lawyers’ Obligations After an Electronic Data Breach or Cyberattack • Lawyer’s obligation to provide notice of data breach • Rule 1.4(a)(3): a lawyer must “keep the client reasonably informed about the status of the matter.” • 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.”

45. Lawyers in Trumpland

46. Lawyers in Trumpland • Which one of the following White House lawyers or personal lawyers for Donald Trump engaged in a conversation regarding the Russia investigation at a table outside a restaurant right next to a New York Times reporter in which the lawyer complained about the White House legal defense strategy? Ty Cobb Roy Cohn Don McGahn Michael Cohen

47. Which of the following complained about White House legal defense strategy within earshot of the New York Times? • Ty Cobb • Roy Cohn • Don McGahn • Michael Cohen

48. A Lawyer’s Duty of Confidentiality • TRPC Rule 1.6(d): 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.

49. Lawyers in Trumpland • Which one of the following White House lawyers or personal lawyers for Donald Trump secretly recorded conversations with Donald Trump in addition to pleading guilty to numerous federal criminal charges ? Ty Cobb Roy Cohn Don McGahn Michael Cohen

50. Which of the following secretly recorded conversations with Donald Trump and pleaded guilty to several criminal charges? • Ty Cobb • Roy Cohn • Don McGahn • Michael Cohen