Every year, the New Jersey State Bar Association holds its Annual Meeting in Atlantic City. This year, for the first time ever, the Annual Meeting went virtual. Lawyers from CSG made history by participating in an ethics panel which drew the highest number of participants in the State Bar’s history.

Ronald Israel, Esq., Member,  and I were on a panel presenting “The Art of Avoiding Conflicts.” Joining us were a Presiding Chancery Judge, the Hon. Jeffrey Jablonski and a Complex Commercial Civil Division Judge, the Hon. Mary Costello, as well as a prominent criminal defense practitioner Brian Neary, Esq. (Law Offices of Brian Neary) and a well-known and well-respected family law practitioner and mediator, Grace Dennigan, Esq. (Dennigan, Cahill and Smith).

The seminar drew 992 participants from many different practice groups who were highly engaged. The interactive presentation highlighted concerns of the bar in the areas of Joint Defense Agreements, transitioning to and from private sector-public sector employment, investing in ventures with clients, and representing clients with Incapacities.

Takeaways?

Joint Defense Agreements are helpful to clients but tricky to navigate when conflicts arise. Be careful when drafting and think ahead for exit strategies.

Investing into ventures with a client requires that you scrupulously follow the Rules of Professional Conduct. Review RPC 1.8 and familiarize yourself with the “fair and reasonable” standard set forth in case law.

Clients with Incapacities present fact-sensitive challenges. Be aware of your responsibility to maintain as normal an attorney-client relationship as possible and of your obligation to protect their confidentiality. For minors, guardians may need to be appointed by the court. Check RPC 1.6 and 1.14.

Finally, transitioning between public and private employment has a few sets of guidelines to follow. Generally, see RPC 1.11 ( the “6 month rule”). But be aware of lifetime bans when your participation reaches a certain level, one-year bans for certain state officials and two-year bans on casino-related representation, all under the Uniform Ethics Code.

Be sure to check deadlines and read orders carefully, especially in today’s environment.

While once in a while, a court will take pity on you, best not to rely on the mercy of the court. In Damms v. Damms, 2020 WL 1870410, the Appellate Division, “in a close call” saved defendant’s counsel who failed to attend a Rule 4:21A arbitration (because the arbitration was mis-diaried by his office), resulting in a five million dollar award to plaintiff; failed to oppose a motion to confirm the arbitration award; and failed to timely file a notice of trial de novo, filing it one day late (because he misread the order and thought he had two more days to file it).

Despite referring to counsel’s conduct as mind-boggling and pure carelessness, both the trial court and the Appellate Division refused to place the sins of the lawyer on his client and vacated the arbitration award.

On April 10, 2020, the Pennsylvania Bar Association (“PBA”) Committee on Legal Ethics and Professional Responsibility issued Formal Opinion 2020-300, which outlines the ethical obligations for lawyers working remotely.  Lawyers must be particularly mindful of the ethical obligations identified in the Opinion in light of the shift to remote work necessitated by the COVID-19 pandemic.  Although Opinion 2020-300 only applies to Pennsylvania attorneys, attorneys licensed in all jurisdictions should heed the guidance and best practices identified in the Opinion.

The PBA issued Opinion 2020-300 following a number of questions received from attorneys, primarily involving the use of technology (e.g., email, cell phones, text messages, remote access, cloud computing, video chatting, and teleconferencing).  Accordingly, technology issues feature prominently throughout the Opinion.

In the Opinion, the PBA focused on the intersection of the recent shift to remote work throughout the legal industry and the ethical obligations set forth in Pennsylvania Rules of Professional Conduct (“RPC”) 1.1 (Competence), 1.6 (Confidentiality), 5.1 (Responsibilities of Supervising Lawyers), and 5.3 (Responsibilities Regarding Non-Lawyer Assistance).

As to RPC 1.1, the PBA stated that a “lawyer’s duty to provide competent representation includes the obligation to understand the risks and benefits of technology,” which in turn “includes the obligation to understand or take reasonable measures to use appropriate technology to protect the confidentiality of communications in both physical and electronic form.”  (Opinion, at 3).  In that regard, “attorneys must evaluate, obtain, and utilize the technology necessary to assure that their communications remain confidential.”

With respect to RPC 1.6, the PBA affirmed that an “attorney working from home or another remote location is under the same obligations to maintain client confidentiality as is the attorney when working within a traditional physical office.”  (Opinion, at 4).  Citing to comments to RPC 1.6, the PBA affirmed that “an attorney’s duty to understand the risks and benefits of technology” includes the obligation to safeguard client information against unauthorized access or disclosure.  In that regard, while working from home, a lawyer must “make reasonable efforts to ensure” that other members of the household or any visitors thereto cannot access client materials or communications.

The PBA also briefly summarized RPC 5.1 and RPC 5.3, stating that “a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm must make reasonable efforts to ensure that the firm has in effect requirements that any staff, consultants or other entities that have or may have access to confidential client information or data comply with” the RPCs “with regard to data access from remote locations and that any discussions regarding client-related matters are done confidentially.”  (Opinion, at 7).

Finally, the PBA provided some “best practices” for remote work.  Although directed to Pennsylvania attorneys, these best practices can be adapted to practices in other jurisdictions — such as New Jersey — as well.  Some “best practices” identified by the PBA in Opinion 2020-300 are:

  • Attorneys should ensure that all forms of confidential communications (including phone calls, emails, and video conferencing) remain confidential.  Be sure to create a private area to communicate privately with clients, and confirm that no one (including smart devices like Amazon’s Alexa) can hear or see those communications.  In the context of email, this may require the use of encryption.
  • When determining whether “reasonable efforts to ensure” confidentiality of client information have been made, an attorney should consider the facts of the particular circumstances, such as the sensitivity of the information, “the likelihood of disclosure if additional safeguards are not employed,” whether additional safeguards would be too difficult to implement, would be too costly, or would adversely affect the attorney’s ability to represent clients.  This analysis, again, may require the use of encryption, or might even “require avoiding the use of electronic methods or any technology to communicate with the client altogether[.]” (Opinion, at 10).  Attorneys should also consider whether their clients have imposed obligations concerning protection of their confidential information in addition to those imposed by the RPCs.
  • Attorneys should avoid using public internet or free Wi-Fi in performing work for clients or transmitting confidential or sensitive information, and should instead use a Virtual Private Network (VPN).
  • As in-person depositions and court appearances have been replaced with Zoom meetings and other forms of teleconferencing, attorneys should be mindful of whether those conferences are secure.  Meetings should not be public, but rather should require a password and a link directly to meeting participants.
  • Attorneys working from home offices should ensure their computers possess up-to-date antivirus software, avoid websites that could potentially corrupt their systems, and do not use USBs or flash drives from unknown sources.

In sum, in these unprecedented times, while navigating the new work-from-home environment, attorneys should not overlook the need to ensure that they are still mindful of their ethical obligations to their clients.

These days, more than ever, there is a yin and yang between bringing in as much revenue as possible at the risk of bringing in an unworthy client. How do we know when to say no?

Obviously, there is no one answer and it is dependent on both the needs of the lawyer and who the client is. But some tips include making sure you have the skill and knowledge to assist the client and not stray out of your skill set just because you need the money; asking for retainers and holding it until the end of the case; and considering the potential fee for the case as compared to the risks involved in taking on a new client.

Sometimes saying no may still protect you in the long run.

It is generally known and accepted that a client who sues its attorney waives the attorney-client privilege as to the alleged malpractice the client has placed at issue in the litigation.¹

The easiest examples of “at issue” waiver concern communications between the client and attorney, as well as the documents reflecting the attorney’s work in the underlying matter at issue.  But what happens when the client retains successor counsel to take over the representation and to sue the first attorney?  In the malpractice lawsuit, is the defendant-attorney entitled to obtain in discovery the communications between the client and successor counsel, and if so, to what extent?  What about communications reflecting the advice successor counsel gives the client in the underlying lawsuit if the defendant-attorney believes that advice was questionable and led to, for example, an unnecessarily bad settlement? Continue Reading Does Privilege Apply to Communications Between a Legal Malpractice Plaintiff and Its New Attorney in the Underlying Lawsuit? Caselaw Update, a Hypothetical and Some Practice Pointers to Consider for the Client, Defendant and Successor Counsel

1. Deadlines. Make sure that for any motion or deadline that is changed that the old one is deleted and the new one is circulated at least on Outlook. If there is any confusion about a deadline someone should get guidance from the judge and not assume anything. With regard to the April 27 upcoming end of the legal holiday, do not assume this will be extended. If you have something due, be prepared to file on April 27.

2. Confidentiality. If you have sensitive paperwork in your house belonging to a client do not throw it out. Save it for when you get back to the office and shred it (unless you have a personal shredder).

3. Be very careful with phishing attempts. You may not be as vigilant in catching these as you would be in the office.

4. Distractions. Do not try to read a lengthy document while cooking dinner, logging the kids into school, etc. Work during a concentrated period of time and triple check everything.

5. Do not dabble. Even if you are slow, do not take on a matter you are unfamiliar with. I would say stay in your lane, but no one is driving these days.

6. Legal advice on contracts you drafted. If you drafted a contract and a client is now asking whether they can break it because of a force majeure clause or is asking whether something is a material adverse effect, this may be a prior work conflict. What if you advise someone they can get out of a contract and a court disagrees? Have you admitted malpractice in how you drafted the contract?

You need to do what you can to minimize mistakes as best you can given the circumstances. Hopefully, these tips will be of assistance.

Stay safe.

A Washington, D.C. firm seeking fees resulting from a successful Freedom of Information Act application learned that transparency is a must, especially when seeking fees from the public fisc.

King and Spalding, LLP sought fees but attempted to file the application under seal, claiming that to reveal its rates, staffing strategies and detailed billing would somehow harm the firm competitively. That unsubstantiated and conclusory claim was rejected in strong terms: “Indeed, there is something untoward about Plaintiff asking to conceal their hourly rates and the work done from public view, while demanding hundreds of thousands of dollars from the public treasury as compensation.” King & Spalding, LLP v. United States Department of Health and Human Services, et al., Civ. No. 1:16-cv-01616, slip opinion at 4, decided April 7, 2020.

The court also noted the firm has made applications in other cases, so their fees and structures have already been subject to public scrutiny.

In any fee application, a court must assess not only the reasonableness of the rates, but the reasonableness of the hours expended. Takeaway? Lawyers need to be prepared to be open and transparent to a court’s inspection when seeking to shift fees. The bills should be detailed, the rates should be competitive, and the hours necessary as balanced against the result. When public money is sought, a higher degree of interest is presumed.

The N.J. State Appellate Division just reinforced guidelines for lawyers seeking  fees for work done in contested probate cases. Whether you represent the trustee, a beneficiary or challengers, if your hours are necessary and your rates are reasonable, you will be paid from the estate.

Decedent was young and had two minor children. He left one a $5,000,000 trust and disinherited the other. He also set up a residuary testamentary trust for that child and one for the benefit of his surviving family (parents, sister and the sister’s children). The mother of the disinherited child sued the estate for child support and settled the case by agreeing to a monthly support figure of $14,000, supported by the creation of a $1,000,000 trust. The settlement was opposed by Decedent’s  other child’s mother and by the beneficiaries of the residuary trust.

Fees were submitted by the trustee’s attorney, the disinherited child’s mother’s attorney, and the attorney for the favored child’s trusts and the surviving family’s trust.

The probate judge held that all parties, despite their “divergent” views, acted in the interest of preserving the favored child’s residuary estate by settling claims and avoiding protracted litigation, and that therefore all counsel were entitled to have reasonable fees paid from the estate. (Because the trial judge issued a conclusory finding that all attorneys billed a reasonable number of hours at a reasonable rate, the Appellate Division remanded the case for more specific findings on the entries).

Takeaway? Adversarial litigation intended to or resulting in protection of an estate will support a fee application from the estate.

In the Matter of the Estate of Keith R. O’Malley, Docket Nos. A-4084-17T1 and A-1276-18T1 (Decided March 10, 2020).

We hope this post finds you and your families well and safe. While ethics rules may not seem like the most pressing kind of concern right now, if you are providing legal advice now is the very time to ensure strict compliance to ensure deadlines are met and otherwise reduce the risk that a legal slip-up during the outbreak will turn into a malpractice suit.

Be Vigilant About Your Calendar

As anyone who works in the professional liability arena will tell you, routine scheduling failures and missed filing deadlines trigger a significant percentage of legal malpractice claims.

And with the coronavirus forcing people around the country to break their daily routines and cancel plans, the risk that distracted lawyers and staff will overlook a court alert email or forget to put an entry into calendaring software is high.

With all the other things on their minds, lawyers should make time to double-check that routine calendaring tasks and email checks are getting done on time and with the same level of attention. This is especially true in jurisdictions like New York that have essentially closed the courts for non-emergent matters and tolled dates for about one month.

Do Not Provide Quick Legal Advice

This best practice standard is even more important to follow with clients facing emergent issues with their lives and businesses. You must resist the temptation, however, to provide quick, off-the-cuff, legal advices, let alone best guesses. If you need to look into a legal issue or read a document more carefully (which should not be done on your phone), tell the client you need to get back to them.

For additional information pertaining to the coronavirus outbreak, please visit CSG’s COVID-19 Resource Center.

Basic rules: when you represent an organization, you must make it clear to employees who wish to retain you that there is a potential conflict of interest. Further, you cannot breach the attorney-client confidentiality by testifying before a grand jury about conversation had with your clients.

How could the General Counsel of Penn State, a former Justice of the Pennsylvania Supreme Court, have crossed these lines?

During the investigation into the repeated sexual abuse and cover up of those allegations againstJerry Sandusky, a former assistant football coach at Penn State, the GC took on the representation of Penn State’s President, the Athletic Director and the former Senior Vice-President for Finance and Business as the investigation by the Office of the Attorney General turned to a “what did you know and when did you know it” analysis. She accompanied the witnesses to the Grand Jury, prepped them, and when called before the Grand Jury herself, recounted their conversations.

The Court held that the GC violated Pa. RPC 1.1 Competence, 1.6(a) Confidentiality, 1.7 Conflict of Interest: Current Clients and 8.4 (d) Conduct Prejudicial to the Administration of Justice. (NJ RPC cites are equivalent).

Her failure to warn the clients about the potential conflict of interest led to the suppression of statements made before the Grand Jury. Echoing the Disciplinary Board, the Court added that her conduct resulted in  charges being quashed against the clients, “ . . . thereby prejudicing the administration of justice.” (An appellate court quashed all perjury, obstruction of justice and related conspiracy charges against the defendants. The President proceeded  to trial and was convicted on a remaining count; the other two officials each entered pleas of guilty to one count and testified against him).

The Court considered the high-profile and pressure-filled nature of the case, the GC’s admitted complete unfamiliarity with criminal law, and her previous unblemished record. It weighed those factors against her repeated violations  as noted above and ordered a public reprimand, finally bringing a close to this chapter.

Office of Disciplinary Counsel v. Baldwin, No. 2587 Disc. Docket No. 3 (Decided February 19,2020).