GPSolo Magazine - March 2005

Trial Practice

Litigation Ethics In The Modern Age

Numerous articles have explored changes in our profession caused by the use of e-mail, cell phones, and other communication tools. This article focuses on ethics issues implicated when-ever litigators communicate with clients, non-clients, and adversaries.

Communicating with clients. Duty of confidentiality. Every bar permits the use of unencrypted e-mail to send privileged communications. Still, wise lawyers often save the most sensitive client discussions for telephone or face-to-face conversations, not because of the process involved but because of the substance.

Content .People communicate differently in e-mail than they do in more formal writings. E-mails combine the often stupid and regrettable informality of telephone calls with the permanence of the Dead Sea Scrolls. It is not surprising that most of the recent important trials involving corporations and their executives have focused on e-mail evidence.

Even worse, e-mails sent or received on company computers belong to the company. A Wall Street Journal article reported that the federal government has posted thousands of Enron employees’ e-mails on the Internet to make them available for public scrutiny.

At the least, lawyers should encourage their clients to conduct telephone or in-person communications when the stakes are high.

Increased risk.E-mails pose a greater risk than other communication methods of waiving available protections. This highlights what is perhaps the most pernicious aspect of e-mail: It is just as easy to send an e-mail to 50 people as it is to one. Apart from the danger of inadvertent transmission, the ease of sharing e-mails creates enormous risks of waiving the attorney-client privilege and the work-product protection.

Ironically, some of e-mail’s ad-vantages create the greatest danger of waiver. For instance, the efficiency of e-mail “address lists” can backfire if an outdated list includes people whose receipt of a privileged communication would waive the protection.

To make matters worse, the rise of such technologically sloppy forms of communication as e-mail has paralleled courts’ increasingly unforgiving approach to waiver. In addressing communications outside the corporation, courts found a waiver when companies or their lawyers disclose privileged communications or work product to the government (even under strict confidentiality agreements), to outside auditors, or to participants in settlement negotiations. Courts are also finding subject matter waivers in these circumstances and even in cases of inadvertent disclosure.

Communicating with non-clients. Relationship issues.E-mail can turn a non-client into a client (at least for confidentiality and conflicts of interest purposes) when the lawyer did not intend to create such a relationship. An ABA Model Rule related to acquired information from prospective clients limits disqualification of lawyers to only those who receive information that “could be significantly harmful” to the prospective client. Even more significantly, the rule allows a lawyer’s firm to avoid imputed disqualification by screening an individually disqualified lawyer.

Many commentators suggest employing solutions such as click-through disclaimers on law firm websites or initiating elaborate pro- cedures to screen incoming e-mails, etc. Many of these suggestions would reduce or even eliminate the risks but would also make a law firm’s website so user unfriendly as to defeat its purpose.

Fortunately, there appears to be no upsurge in liability or disqualification cases finding inadvertent attorney-client relationships generated by hastily read e-mails. Still, law firms would be wise to add disclaimers to their websites, at the very least advising the public not to send confidential information and disclaiming any attorney-client relationship absent mutual agreement.

Disclaimers . Most lawyers try to reduce some of these risks by adding a disclaimer to their e-mails, but they usually put the disclaimer at the end (meaning that an inadvertent reader sees the whole e-mail before the disclaimer) or proclaim that all of their e-mails are privileged (which is demonstrably false). Do these disclaimers do any good? There seems to be little case law. No court seems to have issued a helpful analysis that might guide lawyers’ decisions about such disclaimers.

Unauthorized access.Some lawyers who seem obsessed with adding just the right threatening language to their e-mail disclaimers overlook a confidentiality threat much closer to home. Most (if not all) lawyers rely, at least in part, on outside consultants to install software, keep their computers running properly, repair or replace server connections, and the like. The ABA has warned lawyers to arrange confidentiality agreements with all third parties given access to their clients’ or their own privileged or confidential information.

Lawyers must also take care when they discard their old computers. How lawyers handle electronicclient files can have ethics implications because of the continuing duty to preserve client confidentiality. On a more practical level, discarding client files can have dramatic waiver effects.

Communicating with adversaries. Ex parte contact.E-mail communications may be forbidden by the prohibition on certain ex parte communications with employees of a corporate adversary. Courts and bars can choose from a number of approaches, ranging from prohibiting ex parte communications with any employees of a corporate adversary to placing off limits only those employees within a corporate adversary’s “control group.”

The ABA recently changed its approach to this issue. The old approach included a prohibition on ex parte contacts with employees of a corporate adversary whose statements “may constitute an admission on the part of the organization.” The change deleted that phrase, thus making such employees fair game for ex parte contacts.

Even when permissible under the ex parte contact rule, e-mails might still run afoul of limits that courts and bars place on deceptive conduct (for instance, a lawyer or secretary might send an adversary an e-mail from a home computer, purporting to be an interested customer or other third party). Most states’ ethics rules bar lawyers from engaging in any deceptive conduct. Some courts take a strict approach to lawyers’ participating in any in-vestigations involving deception. On the other hand, some courts have permitted lawyers to arrange for private investigators to portray themselves as consumers when investigating “palming off” or other intellectual property misconduct.

Metadata .Even intentional sharing of electronic documents with an adversary can raise ethics issues. Although many lawyers do not realize it, electronic documents sometimes allow recipients to essentially “look behind” the document and access the document’s history, when it was altered, and even specific changes that were made. This information is included in the term “metadata,” which is data about data. Never transmit a document without reviewing and disabling tracking software.

Wise law firms are now installing “scrubbing” software that prevents the transmission of such information.

Inadvertent transmission.E-mail and other electronic communications may be sent inadvertently to an adversary. Starting in 1992, the ABA recognized a duty to return privileged or confidential communications received inadvertently. As a corollary duty in a slightly different situation, the ABA later held that lawyers should allow the court to decide the fate of privileged or confidential information received from a party not authorized to have it.

The Ethics 2000 changes to the ABA Model Rules retrenched a bit, finding that lawyers who had inadvertently received confidential or privileged information simply should alert the sender rather than automatically follow the sender’s instructions.

Some lawyers involved in litigation enter into nonwaiver agreements with their adversaries, under which both parties agree to return privileged documents that they accidentally produce to the other. One court has found such an agreement inapplicable in the case of “gross negligence,” and non-signatories might still claim a waiver.

Thomas E. Spahn is a partner at McGuireWoods LLP in McLean, Virginia. He can be reached at tspahn@mcguirewoods.com.

For More Information about the Tort Trail and Insurance Practice Section

- This article is an abridged and edited version of one that originally appeared on page 12 of The Brief, Winter 2004 (33:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/tips/.

- Periodicals: The Brief, quarterly magazine; Tort Trial & Insurance Practice Law Journal, quarterly law review; TortSource, quarterly newsletter.

- Books and Other Recent Publications: The Lawyer’s Guide to Elder Injury and Accident Compensation, 2d ed.; Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality, 3d ed.; The Spine at Trial: Practical Medicolegal Concepts about the Spine; Creating Winning Trial Strategies and Graphics; Toxic Mold Litigation; International Litigation: Defending and Suing Foreign Parties in Federal Court in the United States; The Amicus Brief, 2d ed.; Annotated Financial Institution Bond, 2d ed.; also, 33 video programs with written materials, including Techniques for Direct and Cross-Examination; Deposition Practice, Strategy and Use; Accident Reconstruction; Marketing Yourself to the Jury; Avoiding Disaster at Trial.

 

 

 

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