Wednesday, May 26, 2010

UK Risk Management and Insurance Update

Several interesting updates, resources and thinking from the UK legal landscape:
  • Legal Risk LLP published its annual UK law firm survey on professional indemnity insurance. The report breaks ours summary data regarding choice of broker, coverage levels and insurance providers.
  • Via the Orange Rag: Legal Futures just launched. This is a website designed to help reads understand the significant changes facing the UK legal market. "The site... covers issues of conduct, compliance and competence for lawyers within the wider context of the Legal Services Act and especially alternative business structures."
  • From Legal Futures, see an update about impending SRA Rule Changes as it revises its Code of Conduct. Current trends point to a regulatory framework that is more "outcomes focused," rather than one that attempts to lay out detailed rules.
  • Via the Legal Ethics Forum: "The Re-Organization and Re-Professionalization of Large Law Firms in the 21st Century," by John Flood, Professor at University of Westminster School of Law. An interesting article that explores changing law business models and organisational structures: "[if] the law firm itself is becoming more of a bureaucratic corporate entity rather than the traditional idealization of partnership...does it even make sense to talk of a 'legal profession'?"

Tuesday, May 25, 2010

Risk Roundtable Ethical Screening and Confidentiality Webinar Now Online

Designed for law firm general counsel, loss prevention and senior risk management staff, this webinar reviewed current professional rules and new case law developments supporting the need to enhance law firm ethical screening and confidentiality management practices. Session Topics Included:
  • Current US screening rules and requirements
  • New and evolving case law
  • Law firms response stratagies, including the role of technology in achieving compliance and mitigating risk

Panelists included Lucian Pera (President, Association of Professional Responsibility Lawyers; Partner, Adams and Reese LLP), Deborah Jeffrey (Loss Avoidance Partner, Zuckerman Spaeder LLP), and Pat Archbold, Head of IntApp's risk management practice group. The webinar recording is now accessible online.

Thursday, May 20, 2010

Proposed Updates to Texas Professional Rules Bring Confidentiality and Conflicts Implications

A set of proposed changes to Texas' Disciplinary Rules' has been published and is available on the Supreme Court of Texas web site along with a redlined document highlighting proposed modifications. See also an excellent summary provided via the Texas Lawyer. Key updates and proposed amendments to the rules include:
  • "Consent": Language clarifying that "consent" provided by a client in scenarios requiring consent must be "informed consent," based on a clear explanation provided by the lawyer. And that such consent must be provided in writing.
  • Proposed New Rule 1.00(c) -- Likely affecting future conflicts analysis, the new rule defines "affiliation" to include not only partners, members and associates of the firm, but also any lawyer who has a relationship with the firm that: "provides the lawyer with access to the confidences of the firm’s clients."
  • Proposed New Rule 1.17 -- Stipulates that a lawyer should not use or disclose confidential information provided by a prospective client, and that once receving such information is prohibited from representing an party adverse to the potential client in the same or a substantially related matter. This prohibition is waived if either the prospective client provides consent, or was instructed prior to discussions that it should not disclose any information which was confidential or would prevent the lawyer from representing a different client in the matter.

Tuesday, May 18, 2010

ABA Conference on Professional Responsibility

The ABA's 36th National Conference on Professional Responsibility takes place June 2-5 in Seattle: "Legal scholars, jurists and specialists in the professional responsibility field will gather for three days of intensive seminars covering a wide range of topics, including: ethical preparation of witnesses; conflicts; confidentiality and attorney-client privilege; the ethics of investigations; sanctions for trial conduct; SEC prosecutions of lawyers; prosecutors' special responsibilities under amended Rule 3.8; virtual law practice; and restrictions on the right to practice."

The program also includes an update and roundtable discussion led by the ABA Ethics 20/20 commission. For more details, including information about CLE credit, see their web site.

Monday, May 17, 2010

New Risk Resource for the UK community -

Recommind, a technology company providing search and information risk management tools today announced, a new resource to help European organisations understand and respond to a variety of information risk management and compliance issues. The initiative supported by partners including: The eDisclosure Information Project, Exterro, Field Fisher Waterhouse, IntApp, Legal Technology Insider, and the Law Firm Risk Roundtable Initiative.

The new web site will cover topics including eDisclosure, compliance, cloud computing, insider fraud, information barriers and confidentiality management.

In announcing the site, the European director of Recommind noted that: "There needs to be a much greater awareness and realisation that information risk isn’t going away and that it needs to be addressed urgently," highlighting this "multi-vendor effort to give organisations the resources and knowledge they need to convert information from a threat to an asset.”

Thursday, May 13, 2010

Internation Legal Ethical Conference Agenda Now Online

The International Legal Ethics Conference IV is (July 15-17 at Stanford Law School) just posted its conference agenda. Session topics include:
  • Confidentiality and Conflicts of Interest
  • Legal Culture and Legal Ethics
  • Ethics Under Pressure: Changing Regulation of Global Law Practice
  • Professional Values
  • Technology and Outsourcing

Wednesday, May 12, 2010

The Internet Highlights Lawyer Ethical Lapses

We've discussed risks tied to new internet technologies like social networking and blogging in the past and pointed readers to resources for enhnacing firm policies and practices. The National Law Journal just published an interesting article on the same topic: "Lawyers' Ethical Stumbles Increase Online."
  • Social networking " attorneys and all its potential dangers is being closely monitored in nearly every corner of the legal profession. Disgruntled clients, lawyers outing other lawyers, and bar counsel themselves are sparking investigations. Law firms host seminars and webinars on it. And bar counsel and bar associations bring it up at nearly every meeting."
  • "It's not as if lawyers never misbehaved before. But now they're making the same old mistakes -- soliciting for sex, slamming judges, talking trash about clients -- online, leaving a digital trail for bar counsel to follow. Legal ethics expert Michael Downey said lawyers' tendency to be risk-averse seems to fade away on the internet."
This article reviews a slew of embarassing, off color and inappropriate public comments and disclosures by legal professionals, enough to make any law firm think about reviewing and revising its own internal policies.

Tuesday, May 11, 2010

Law Firm Disqualification -- Expert worked for both sides of same matter

A firm was recently disqualified from a malpractice suit because an expert witness spent time working on the opposite side of the same matter before joining the firm. The expert at hand was not ethically screened or otherwise prevented from communicating with the team handling the same matter at his new firm, Bressler, Amery & Ross. In fact, he reportedly billed 15 minutes to the matter after joining opposing counsel. 

The expert: "testified that he had no recollection of the conversation with Reiser. And he called the disqualification motion a 'litigation stunt.'" He also vouched that he had no recollection of receiving any written or verbal confidential information while working on the opposite side of the matter. But the court saw the 15 minute time record as a smoking gun pointing to a clear violation of professional rules and the expert's protestations as "ringing hollow."

The disqualified firm may appeal, arguing that the only basis for the decision is the "appearance of impropriety," a standard it says has been "abandoned" by local New Jersey Rules of Professional Conduct. Clearly, appearances hurt in this instance -- the assignment of a lawyer to a previous matter, and the failure to employ any manner of ethical screen or information barrier when the lateral joined the new organization didn't help matters.

Monday, May 10, 2010

Law Firms and Information Governance

The Information Law Group published an interesting article on building and managing policies for handling personal and other sensitive information subject to regulatory controls such as HIPAA/HITECH. While the article focuses on corporate audiences, this subject matter is increasingly relevant to law firms as organizations find themeslves facing stricter legal and client requirements regarding information controls and confidentilaity management.

Because law firms have traditionally been grouped in a special category of information handler, they haven't always been held to such rigorous standards, instead being left to self-police and self-regulate based on rules of professional responsibility and ethics.

As this landscape changes the question of "where does responsibility for information governance and compliance live?" becomes increasingly relevant. (Information Governance refers to the policies, procedures, enforcement and reporting regarding how sensitive information should be and is being treated.) As the article notes:
  •  "One consequence of the growing body of laws, regulations, standards, and contractual requirements dealing with protected categories of personally identifiable information (PII) is a heightened awareness of the importance of establishing effective internal governance mechanisms. The organization needs to be clear on who decides, and how..."
The authors, and several other industry experts, make the case that Information Governance enforcement should be a core responsibility of IT organizations, with CIOs, CTOs and IT Directors being held accountable and reporting to senior management. Given the nature of the challenge at hand:
  • "In most modern companies, IT is used for data collection and reporting and, indeed, is critical to the success of the organization. Thus, internal and external auditors refer to IT management 'control objectives'...IT control objectives may include items such as access controls, encryption, and data retention policies as required to comply with PII rules or to manage PII risks."
Given the complexities and stakes involved, law firm risk stakeholders must work closely to support IT organizations managing firm information governance efforts.

Wednesday, May 5, 2010

Recent Opinions on Lawyer Mobility

Interesting update from Hinshaw on recent opinions regarding lawyer mobility. As they write: "These three matters reflect the growing push toward greater acceptance of the mobility of lawyers, in a world where restrictions based solely on state boundaries correspond less and less to the realities of law practice."

One decision from the New York State Bar addresses whether non-NY lawyers can serve as in house counsel for NY corporations and maintain a local office in NY while doing so. Interestingly, their ethics committee issues no final opinion, rather calls for clarification:
  • "The question... is a question of law, and is not answered by the New York Rules of Professional Conduct. The question is therefore beyond our jurisdiction and we offer no opinion on the question... this Committee urges the Appellate Divisions and/or the New York State Legislature to provide further guidance regarding whether and to what extent out-of-state lawyers - especially in-house lawyers who provide services solely to a corporate employer - are authorized to practice law in New York.”
More details on this and two other lawyer mobility situations in the Hinshaw newsletter.

Tuesday, May 4, 2010

Risk Article: A Treaty for Conflicts

From The Legal Ethics Forum: "A Treaty for Conflicts" proposes an interesting thought exercise:
  • "Let's say - I know it's counterfactual - that the Fortune 500 (or 1000) and the AmLaw 200 all got together and wrote their own uniform conflict and conflict waiver rules and all the corporate parties agreed that they would govern their attorney-client relationships going forward in so far as the rules allowed informed client consent to such an arrangement, which they largely do. You'd need all or nearly all to get any to sign, but assume it may be feasible."
  • "Or look at it this way: Would the Fortune 500 pick a different set of conflict rules if they had the power to get the courts to change the courts' rules? If so, then why can't they do it on a wholesale basis through a treaty? The challenge is to get them organized and focused on what may be their best interests. Then they can stop complaining that the rules don't make sense for big business and big law."
More detail and discussion on their web site.