When a lawyer leaves a law firm, who holds the work product privilege? Is the law firm the holder? Or, does the lawyer hold the work product privilege? Please see my article in the latest ABTL Report for an in-depth discussion of the recent case Tucker Ellis LLP v. Superior Court, 12 Cal.App.5th 1233 where the court discusses the issue, a matter of first impression in California. While lawyers may believe that we know the answer to this question, the statute, California Code of Civil Procedure section 2018.030, is not specific as to whether the law firm or the lawyer is the holder of the work product privilege after the lawyer leave the law firm. Accordingly, the court’s determination is based upon policy considerations. Like many recent cases, the matter concerned a lawyer’s email communications. The law firm’s policy on the point was also a significant consideration for the court in making its determination, and therefore something that a law firm should consider in addressing this issue at the practical level. Because lawyers change firms with some frequency, and may or may not take cases with them, the work product of a departing lawyer is in play. Reading the article and the opinion, will also make you think about what you are putting in email, given that it lives on after you have left the firm, and may be disclosed with potentially unanticipated harmful consequences, as it was in the Tucker case. While the opinion provides guidance, certain scenarios are not addressed and merit careful consideration if you are addressing this issue in your firm, or in your practice.
I will be speaking to the Orange County Bar Association presenting the latest Ethics Update 2017 on September 28, with my co-panelists Rob Sall, Kevin Mohr, and Bob Kehr. The program will cover the latest cases and ethics opinion summaries on legal fees, billing, attorney client privilege, conflicts of interest and the duty of confidentiality, as well as ethics rules, and the most recent updates on avoiding legal malpractice. Get three hours of ethics credit. Please contact me if there are specific issues you would like the panel to cover that would be helpful to your practice.
The Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. case, pending before the California Supreme Court, will provide California lawyers with further insight regarding whether an advance waiver of a conflict of interest is enforceable, and if so, under what circumstances. An advance conflict of interest waiver is a waiver given by a client to a law firm to permit the firm to engage in the future representation of a client that would otherwise be prohibited by ethical rules governing conflicts of interest. A key issue is what disclosure in connection with an advance conflict of interest waiver will be sufficient for informed consent to an advance waiver by a client. Recent judicial decisions have trended toward increased scrutiny of advance waivers of conflicts of interest. The California Supreme Court has the opportunity in the J-M case to bring clarity to issue.
My earlier article, Forfeiture of Fees Due to Conflict of Interest, in the OC Lawyer magazine, discussed the decision of the appellate court in the same case, and emphasized the importance of conflict management at the inception of every new matter. In the J-M case, we will see whether the Supreme Court’s decision will “upend countless agreements between lawyers and their clients and wreak havoc on the practice of law,” as the firm described the potential consequences, in the name of public protection.
The California Supreme Court also has the opportunity to provide further guidance to lawyers on this issue through the proposed Rules of Professional Conduct, Rule 1.7, Comment 10, which will address advance conflict waivers, assuming it is adopted by the Supreme Court as proposed. The proposed language would permit advanced waivers “in compliance with applicable case law.”
The proposed comment also provides further guidance regarding factors that will determine whether the advance consent will be enforceable. One key factor is “the extent to which the client reasonably understands the material risks that the consent entails.” Discussing the advance waiver with the client can help the client understand the significance of the waiver. Under the proposed comment, effectiveness can also turn on whether the lawyer provides a “comprehensive” explanation of the types of future representations that might arise. In this regard, specificity is helpful. The experience and sophistication of the client giving consent is also a factor that the proposed rule would take into consideration. Whether the client is independently represented by counsel in connection with providing the consent is another important factor. Clients can be given this opportunity, particularly with in-house counsel, to get independent advice before signing.
Carole Buckner is Senior Counsel and Deputy General Counsel to Procopio, Cory, Hargreaves & Savitch LLP. Links to her additional articles and her bio are here. You may also find Ellen Pansky’s recent article Don’t Waiver on Waivers in the LA County Bar Ethics Update of interest.
As a member of the California State Bar’s Committee on Mandatory Fee Arbitration, I will be speaking to the Long Beach Bar Association this week along with a panel of members of the Committee. We will be conducting training for fee arbitrators, with co-panelists Doug Hull, Director of the State Bar’s Mandatory Fee Arbitration program, Lee Strauss, of NBC Universal and Patrick Maloney of the Maloney Law firm, both members of the Committee. Each of us will draw upon our experiences as fee arbitrators – I serve on the Orange County Bar Association’s program.
Among the topics I will address are discovery and evidence in Mandatory Fee Arbitration. In order to keep the fee arbitration process streamlined, discovery is limited. Evidence is liberally admitted to facilitate client’s representing themselves. I will also be discussing the use of findings in fee arbitration. In my experience, fee arbitrators put significant effort into preparing findings, in part to help the parties make an informed decision about whether to pursue a trial de novo. These training programs are very robust and I highly recommend these sessions if you are interested in fee arbitration.
This proposed opinion out for public comment takes a very practical approach for attorneys on how to deal with third party websites that describe attorneys, their clients and their practices. Important points are included on using disclaimers on testimonials from clients and correcting inaccurate information posted by others about the attorney. The draft opinion also discusses claiming a profile on a third party website by exercising control over the profile, which triggers the lawyer’s ethical obligations, as well as a lawyer’s abandonment of a profile on a third party website. Whether the recommended approaches are practical in the digital world is one issue that may be evaluated further via the public comment process as this proposed ethics opinion moves forward. Many third-party websites may not facilitate the recommended actions.
June 1, 2017 (San Diego) – Seasoned lawyer, educator and ethics advisor Carole Buckner has joined Procopio as Deputy General Counsel. Carole will be providing legal guidance to Procopio’s more than 160 attorneys, working out of its downtown San Diego headquarters and reporting to General Coun… Continued on Procopio site
This story first appeared in the OC Lawyer magazine and the Orange County Bar Association website – April 2017
by Carole J. Buckner
The Disappearing Attorney-Client Privilege
As you record your billing entries to send to clients, you probably expect that your descriptions will be covered by the attorney-client privilege. You may not be thinking at all about what will happen to the invoices containing those time entries after the case is over. You may assume that information in invoices is protected by the attorney-client privilege even after the case is over. This used to be the case under the law providing that the attorney-client privilege continued even after litigation ended. But things changed with the decision of the California Supreme Court in Los Angeles Cty. Bd. of Supervisors v. Superior Court (ACLU of Southern California), 2 Cal. 5th 282 (2016). A majority of the court has determined that an attorney’s invoices to a client are protected by the attorney-client privilege so long as litigation is ongoing, but there is no categorical privilege covering attorney invoices to clients, so that “there may come a point when [the invoices] no longer communicate anything privileged.” Id. at 298.
The decision is controversial for several reasons. First, the court has changed the law pertaining to read the rest on OC Bar website
As many California attorneys are aware, now is the time for completion of our MCLE requirements as we are turning in our State Bar dues and certifying our MCLE compliance. Many are also aware that the State Bar is auditing attorneys to confirm compliance. One of those audited was the subject of a recent opinion from the Review Department of the State Bar Court, which issued a public reproval of the attorney involved for negligently misrepresenting her MCLE compliance. The unpublished opinion indicates that the attorney involved reported she had fully complied when in fact she had not taken any courses during the relevant reporting period. Charged with committing an act of moral turpitude, the attorney indicated that she had mistakenly recalled that she had completed the courses, but did not check and did not maintain any records. The attorney accepted responsibility for her mistake and revised the way she tracks her MCLE hours. What is the appropriate discipline in such a situation, particularly where the lawyer has a long unblemished legal career? The positions of the players involved in this decision reflect conflicting views.
After the hearing judge issued a recommendation of stayed suspension and probation, the Office of Chief Trial Counsel appealed seeking a 30 day actual suspension. On review the court determined that a reproval sufficed given that the attorney posed no threat to the public and taking all other relevant factors into consideration. The majority did find that the attorney’s failure to report her MCLE compliance accurately was an act of moral turpitude by gross negligence, although without intentional misrepresentation. The dissent disagreed that the attorney’s gross negligence, in the absence of any misrepresentation, constituted an act of moral turpitude. The dissent would have dismissed the matter stating, “To turn this matter into a discipline case, and worse yet, a case of moral turpitude, is a disservice to the attorney discipline system.”
The opinion reminds California lawyers that it is our responsibility to complete our required MCLE courses, and to maintain records of our MCLE compliance. You are invited to take the free MCLE course on Legal Ethics and Technology at Buckner Legal Education, here.
Sarah Jane Hughes has published an important new article on cloud computing and legal ethics, written from the perspective of the ABA Model Rules of Professional Conduct. Because California’s ethics rules have not yet had the benefit of an update to take changes in technology into consideration, the ABA Model Rules, including comments to those rules which provide additional guidance, are highly instructive. In her article, Hughes updates her prior work regarding the risks posed by storing clients’ data in the cloud, including data breach and government surveillance, with discussions of several recent high profile examples to illustrate the risks posed, including malware threats posed by hackers. Key risks come from data breaches (internal and external) as well as secret back doors in electronic devices including tablets and phones and the encryption breaking software of the National Security Administration. The article questions whether lawyers can rely on safe harbors based on data encryption given NSA capabilities. At the same time, she suggests that disclosure of client data should not constitute a waiver of the attorney client privilege, because it is not intentional or voluntary.
The article also details a scheme for classifying data in terms of three levels of security and provides a well organized range of strategies aimed at minimizing the risks of disclosure and protecting client data. These include understanding the contracts of cloud service vendors, managing issues with clients through disclosure and informed consent, and implementation of training and audit procedures. For sensitive matters she advocates considering reversion to low tech processes including the use of typewriters. She also details lawyers’ obligations regarding notification of clients in data breach scenarios. An excellent read for those tasked with implementation of data management in a legal environment. The topic of legal ethics and cloud computing deserves further attention as lawyers have navigated their practices to the cloud.