1. www.laborlawyers.com ● Phone (908) 516-1068 Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® ORC EL&LG Group Ethics Update October 4, 2012 Presented by: Chris Mills Phone: (908) 516-1050 Email: cmills@laborlawyers.com

2. www.laborlawyers.com ● Phone (908) 516-1068 More on Metadata ABA & 14 jurisdictions have issued ethics opinions on what you may and may not do Latest is Washington State – May 2012 ABA-published survey of jurisdictions with opinions –http://www.americanbar.org/groups/departments_ offices/legal_technology_resources/resources/ch arts_fyis/metadatachart.htmlhttp://www.americanbar.org/groups/departments_ offices/legal_technology_resources/resources/ch arts_fyis/metadatachart.html Focus of all the opinions is on duties of sender, duties of receiver

3. www.laborlawyers.com ● Phone (908) 516-1068 Metadata Revisited RPC 1.6(a) –Duty not to reveal confidential information w/o client’s permission –Duty to act competently –Not just involving outside counsel or in context of litigation How to send documents? –Only PDFs to adversaries What about exchanging drafts of settlement agreements?? –Hard copy –Fax In-house counsel need to inquire what’s in place and use it –Insist that IT install metadata-scrubber program

4. www.laborlawyers.com ● Phone (908) 516-1068 Three Scenarios in Washington Opinion Scenario A –Settlement agreement prepared by in-house counsel and internally circulated as to terms –Various people comment on it (strengths and weaknesses of the claim), change wording –Counsel doesn’t scrub it before sending to Complainant’s counsel –Sent in Word format

5. www.laborlawyers.com ● Phone (908) 516-1068 Scenario A Complainant’s Counsel opens it in Word, turns on Track Changes and reads all the Metadata and demands more in light of comments It’s generally the sender’s problem –Sender at fault under RPC 1.6(a) for not taking reasonable steps to protect confidentiality Recipient lawyer has ethical duty to “promptly notify” sender that her document contains readily accessible metadata Recipient not required to refrain from reading it nor to return it Recipient can’t use “data mining software” to try to ascertain whether other metadata might have been scrubbed

6. www.laborlawyers.com ● Phone (908) 516-1068 Scenario B Same facts as A but sender discovers her error shortly after sending document and calls recipient requesting document not be read and deleted Recipient still can read what’s readily accessible Recipient doesn’t need to notify sender – she already knows Doesn’t have to return the document

7. www.laborlawyers.com ● Phone (908) 516-1068 Scenario C Sender uses software or mechanical solution to “scrub” metadata from document and believes it’s “clean” Recipient applies “data mining software” to document, uncovers the comments and demands more $$ No explicit prohibition of this in the ethical rules –BUT Wash. Committee holds it violates RPCs 4.4(c): “using methods of obtaining evidence that violate the rights of third persons” 8.4(d): “conduct that is prejudicial to the administration of justice

8. www.laborlawyers.com ● Phone (908) 516-1068 Are Sneaky Recordings by Lawyers Ethical? Ohio Supreme Court: Not inherently –Op. 2012-1, 6/8/12 1997 Ohio ruling was that it presumptively violates the RPC against dishonesty, fraud deceit and misrepresentation In 2001 ABA reversed Watergate-era ruling –Secret but lawful recordings are now OK –Two-party consent states still a problem –But Ohio is a one-party consent state “Public expectations of privacy have changed given advances in technology and the increased availability of recording equipment”

9. www.laborlawyers.com ● Phone (908) 516-1068 Surreptitious Recordings by Lawyers Not a per se violation of RPC 8.4(c) Certain acts connected with such recordings are still unethical –Lying about whether you’re recording –Using deceitful tactics to become a party to a conversation –Using the recording to commit a crime or fraud –Recording conversation with clients or prospects without their consent Inconsistent with lawyer’s duty of loyalty and confidentiality

10. www.laborlawyers.com ● Phone (908) 516-1068 Sneaky Recordings 13 other jurisdictions follow the “not per se violation” rule 10 jurisdictions make all surreptitious recording illegal and unethical 9 states say it’s generally unethical but allowed in some situations 4 states evaluate surreptitious recording on a case-by-case basis 13 states have not expressed an opinion on the issue

11. www.laborlawyers.com ● Phone (908) 516-1068 Don’t Do This

12. www.laborlawyers.com ● Phone (908) 516-1068 Run Errands For Client @ $125/Hour Louisiana Disciplinary Board recommends 2-year suspension rather than disbarment Lawyer bills $30,000 for legal work to a disabled client (Huntington’s Disease) Work actually involved running errands, taking client to Walmart No written retainer Didn’t deposit funds into trust account

13. www.laborlawyers.com ● Phone (908) 516-1068 Threaten to Smear Boss to Get Promotion In re Braunstein, NJ No. D-66 (May 9, 2012) Corporation Counsel for Newark files police report against subordinate Subordinate threatened discrimination suit and graft accusation unless he was promoted, paid $750,000 Charged with attempted theft by extortion, pleads guilty to lesser included offense Braunstein sent his threat by e-mail Cops later recorded him in a sting repeating the threat

14. www.laborlawyers.com ● Phone (908) 516-1068 Threatening Your Boss... Disciplinary Review Board recommended merely a censure Supreme Court says that’s too lenient Most lawyers who committed extortion were disbarred Merely “dumb luck” that he was stopped early in the extortion process He’s given 1-year suspension

15. www.laborlawyers.com ● Phone (908) 516-1068 Ethics Hypotheticals

16. www.laborlawyers.com ● Phone (908) 516-1068 Presented by: Chris Mills Phone: (908) 516-1068 Email: cmills@laborlawyers.com Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ® Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com The End