New York State Bar: Lawyers Offering Professional Services that are Indistinct from Legal Services Remain Subject to Rules of Professional Conduct

The New York State Bar Association (“NYSBA”) Committee on Professional Ethics has issued an advisory opinion stating that all of New York’s Rules of Professional Conduct apply to any non-legal service provided by a New York attorney when those services are indistinct from the attorney’s own legal services.

An attorney, who was also a Certified Public Accountant, inquired as to whether he could offer his accounting services to persons or entities with whom he lacked any prior personal or professional relationship. The services proposed were services that could be offered by either an accountant or a lawyer.

The advisory opinion applied the Rule 5.7(a)(1) factors to determine whether a “substantial congruence” exists between the proposed non-legal and legal services. The factors include:

  • Who the service provider is,
  • The substance of the service to be provided,
  • The proposed recipient of the service, and
  • The manner or means [by] which the lawyer offers the service.

Given that a lawyer or an accountant could offer the proposed non-legal accounting services the Committee concluded that there was a substantial congruence. The advisory opinion concluded that where a substantial congruence exists, all of New York’s Rules of Professional Conduct apply.

To read the full opinion, click here.

To Shred, or Not to Shred: That is the Question – Nebraska Permits Attorneys to Shred Physical Files

The Nebraska Supreme Court’s ethics committee has released an advisory opinion permitting attorneys to destroy physical copies of a client’s closed file so long as it is preserved in electronic form. However, the opinion advises that before a physical file may be digitized and subsequently destroyed, attorneys should consider:

  • the availability and cost of physical and electronic storage space,
  • ease of access to documents,
  • the potential need for original documents in future litigation,
  • preservation of client confidentiality, and
  • any other considerations that are pertinent to the contents of that file.

The advisory opinion was issued in response to a legal services organization’s question regarding whether digitally storing scanned images in lieu of physical storage would satisfy the Nebraska Rules of Professional Conduct, which require attorneys to preserve client files for a period of five years after termination of representation. However, the rules do not indicate whether lawyers are required to preserve those files in physical form. With the release of this opinion, the ethics committee has clarified that with the new advances in technology, it is no longer reasonable OR practical to keep physical or paper copies of every client’s files and thus allowed for the digitizing of files.

Find the full opinion here.

All Hands on Deck – Texas Welcomes Out of State Attorneys In Harvey Aftermath

Last week the Texas Supreme Court issued an order that permits licensed attorneys from other states to provide legal services to the victims of Hurricane Harvey through legal aid or pro bono programs. The order was one of a series of emergency orders aimed at alleviating the legal chaos sure to be left in the wake of the storm.

Though customarily, attorneys may only practice law in states where they are officially licensed, the Texas Supreme Court, empowered by Texas Statute 81.061, is permitting out-of-state attorneys to practice law in Texas for the next six months. The order requires that out-of-state attorneys register with the State Bar of Texas and agree to abide by the Texas Disciplinary Rules of Professional Conduct.

The order also allows attorneys displaced by Hurricane Harvey to practice in Texas remotely as if they were located in their home jurisdiction.

To read the emergency order issued by the Supreme Court of Texas click here. 

New York City Bar: Is A Client’s Confidential Information Secure at the Border?

Attorney’s traveling across the U.S. border may have to account for more than just their luggage. In fact, the New York City Bar recently issued Formal Opinion 2017-5, which offers guidance on dealing with the threat of disclosing confidential client information during a border search of electronic devices.

U.S. Customs and Border Protection (CBP) policy allows U.S. customs agents to review electronic information that is physically stored on a traveler’s device. However, an attorney has an affirmative duty to take “reasonable steps” to avoid disclosing confidential information not authorized by a client.

The New York City Bar’s opinion emphasizes  that under New York’s Rule 1.6(b)(6), attorney’s may not  reveal confidential client information unless it is “reasonably necessary” to obey a “law or court order.” But what determines whether disclosure is reasonably necessary? The opinion states that disclosure of clients’ confidential information is not reasonably necessary if there are “reasonable, lawful alternatives to disclosure.”

For example, an attorney may explain to an inquiring border agent that the device contains client confidential information and request that the materials not be subject to the search. An attorney may also ask to talk to a supervisor and should be prepared to produce state bar identification.  If it becomes necessary for an attorney to disclose clients’ confidential information to the border patrol, then the client must thereafter be informed about the disclosure under New York’s Rule 1.4.

Generally, attorneys should consider the risks of carrying clients’ confidential information while traveling, avoid transporting confidential information when possible, and evaluate what safeguards are reasonable to protect confidential information in the event that it is necessary to carry the information out of the country.

To read the full opinion click here.

Florida Contemplates Fee Sharing with Out of State NonLawyers

A proposed advisory opinion by The Florida Bar’s Professional Ethics Committee addresses fee-splitting with out-of-state lawyers when the out-of-state lawyer practices in a law firm with nonlawyer ownership. In the opinion, the committee states that a Florida Bar member should not be subject to discipline simply because a nonlawyer owner of an out-of-state law firm could receive a portion of the legal fees.

Partnerships with out-of-state lawyers are hardly new, but tensions between Florida’s Rules of Professional Conduct, and the organization and ownership of out-of-state-firms led the Florida Bar to clarify the matter.

Under Florida Rule of Professional Conduct 4-5.4, lawyers are prohibited from partnering or sharing legal fees with a nonlawyer. However, some U.S. jurisdictions—Washington, D.C. and Washington state—permit nonlawyer ownership of law firms.

The Florida Bar proposed advisory opinion follows in the footsteps of ABA Formal Opinion 464, and several other jurisdictions, in deciding that nonlawyer ownership of law firms in jurisdictions where permissible should not cause collaborating Florida lawyers to violate the prohibition against fee sharing set forth in Rule 4-5.4.

The underlying policy of Rule 4-5.4  concerns the improper influence of a nonlawyer may on a  lawyer’s professional judgment. However in the scenario analyzed in the proposed opinion, Florida Bar committee believes that a lawyer’s professional independence is not at risk simply because a nonlawyer owner receives a portion of an out-of-state lawyer’s fees.

Ultimately, the proposed opinion encourages attorneys to work with out-of-state lawyers despite differences in ownership structure, and allows clients to maintain flexibility in choosing counsel from other jurisdictions. 

To read the proposed opinion please click here.  

From the Florida Bar webpage:

Pursuant to Rule 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at a meeting to be held in conjunction with The Florida Bar’s Fall Meeting at 9:30 a.m. on Friday, October 13, 2017, at the Tampa Airport Marriott.Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than August 15, 2017.