Lawyers Reporting Lawyers…Duty to Report in a Government Agency

Recently, the New York State Bar Association Committee on Professional Ethics opined that a government lawyer with knowledge of another government agency lawyer’s ethical violation that questions the lawyer’s fitness to practice law must report the information to a tribunal authorized to investigate the conduct, unless the information is confidential and the agency does not consent to its disclosure.

“Tribunal” is defined by New York Rule 1.0 as “a court, an arbitrator in arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a party’s interests in a particular matter.” [Emphasis added.]

If a report to a tribunal or other authority is necessary, the lawyer must determine if the government agency’s ethics office is considered a tribunal or other authority authorized to act upon such violation. If the ethics office is not considered a tribunal or such other authority under these standards, the government lawyer may report initially to the ethics office of the government agency. However, the lawyer may not defer to a decision by the ethics office not to report unless the reporting obligation involves an “arguable question of professional duty” and the decision of the ethics office not to report is a reasonable resolution.

Yet, it’s important to highlight that a mere suspicion of misconduct is not sufficient under Opinion 1120. A lawyer must have knowledge of said misconduct.

To read the opinion click here.

Metadata Fair Game in Texas?

In a recent opinion, the Texas bar panel adopted the minority view on metadata, which states that there is not an obligation to inform opposing counsel that he has sent a document containing metadata. Moreover, Texas rules do not prohibit searching for and  in extracting metadata from documents. Of the nineteen jurisdictions that have issued opinions with specific requirements regarding attorneys’ obligation when transmitting or receiving documents containing metadata, Texas is the third state to opine that its rules do not require notification to the sender of the document.

ABA Model Rule 4.4(b), provides that a lawyer “shall promptly notify the sender” after the receipt of “inadvertently sent” information about an electronic document; however, Texas has not adopted this part of the rule.  In fact, the Texas panel stated, “The absence of specific provisions in the state’s existing rules precluded it from following the lead of other committees that have found a duty to notify.”

Additionally, the Texas opinion indicates that the ethics rules “do not prohibit a lawyer from searching for, extracting, or using metadata” embedded in documents sent from opposing counsel. Currently, ten other state’s opinions forbid searching for or extracting metadata from the documents. On the other hand, two states allow lawyers to review readily accessible metadata, but note that lawyers may not use sophisticated forensic software to extract metadata from what is referred to as a “scrubbed” document. See e.g., Washington Informal Ethics Op. 2216; Oregon Formal Ethics Op. 2011-187 (2011, revised 2015).

The Texas opinion acknowledge other state opinions and notes that . lawyers may be subject to metadata restrictions if they are subject to the rules of other jurisdictions. Moreover, the Texas opinion cautions that the Texas Disciplinary Rules of Professional Conduct require a lawyer to “avoid misleading or fraudulent use of information the lawyer may obtain from the metadata.”

The Texas opinion highlights the importance of taking reasonable measures to protect client confidentiality in the realm of metadata. Texas notes that “reasonable measures” to the prevent the disclosure of confidential information in metadata depends upon the circumstances of the case and includes a review of   the sensitivity of the metadata revealed, the identity of the intended recipient, and other appropriate considerations.

For the full report, click here.

An Epidemic of Law Firm Bullies? Survey Reveals Disturbing Results

Big law industry experts Patrick McKenna and David Parnell polled 124 law firm leaders at the nation’s top 100 law firms regarding bullying in the legal field. The results were shocking: 93 percent of those polled reported “bullying” at their firms. Other offenses included lack of respect, not being a team player, having a “me-first” agenda, and poor management habits such as getting in on time.

Who are these bullies? What are firm leaders doing to address the issue? Firm leaders cite these offenders to be the high-earners, with three-quarters making average or above average profits per partner. It is no surprise, however, to see that for this reason only approximately forty-percent of managing partners surveyed admitted they were reluctant to reprimand these individuals. Moreover, 22 percent stated the discomfort prevented them from taking any action at all. Firm leaders assert that inaction derives from the discomfort aspect of confronting a fellow coworker regarding the issue.

Nevertheless, numerous law firm leaders are taking action to prevent further bullying at their firms. The survey showed that 59 percent had cut a partner’s compensation because of bad behavior and 52 percent asked partners to leave because of poor conduct.

The question is: What can firms do to prevent bullying in the workplace? According to McKenna and Parnell, firms lack suitable procedures for disciplining partners who act out of line. Firms should review their procedures and add clear and strict guidelines on how to handle these problems. Perhaps firms should offer incentives for those who adhere to firm’s cultural values and promote a safe and welcoming atmosphere for all. Nonetheless, addressing firm bullying on the spot can not only avoid further anxiety and hostile environments in the workplace, but it can also open clear communication lines for all the parties involved.

For the more information, click here.

Avvo’s Directory Akin to the Yellow Pages: Embedded Attorney Advertising Does Not Render a Profile Listing to be Commercial Speech

On September 12, the U.S. District Court for the Northern District of Illinois ruled in Vrdolyak v. Avvo, Inc. that Avvo’s publishing of online profiles of Illinois attorneys, which may contain advertisements for competing attorneys on the same page,  does not violate an individual attorney’s publicity rights. (Vrdolyak v. Avvo, Inc., 2016 BL 297789, N.D. Ill., No. 16 C 2833, 9/12/16).   Avvo Inc., maintains a website that publishes biographical information about every U.S. lawyer without seeking consent of the lawyers. A lawyer has the opportunity to claim his Avvo profile and customize his Avvo information. On an attorney’s profile page there may also be attorney advertisements for other attorneys.  Avvo provides information about lawyers for consumers in need of legal representation.

Avvo’s chief legal officer, Josh King, explained that the decision is the first to dismiss a complaint that sought to hold Avvo liable under a state law that prohibits using an individual’s identity for commercial purposes without that person’s consent. Avvo has previously been sued for claims including defamation, unfair trade practice, and inaccuracy of information just to name a few. Nevertheless, Avvo has prevailed in these cases.

The plaintiff, in this Illinois class action case, asserted that the publication of his biographical profile along with advertisements about competing attorneys that were published on the same page is impermissible and  constitutes “commercial speech, which does not receive full First Amendment protection.” Vrdolyak at 1. However, the court disagreed and found that the fact that another attorney’s advertisement was embedded on an attorney’s profile page did not render the entire page an advertisement.

Instead, the court found that Avvo’s listing of attorneys’ information is akin to a yellow pages directory, and therefore is protected by the First Amendment. Id. at 4.  For the full opinion, click here.