Tuesday, March 30, 2010

Attorney's Work as Expert Witness Leads to Later Disqualification

Via Hinshaw's Newsletter: "A law firm was disqualified on appeal because one of the firm’s partners submitted a declaration as an expert witness on attorney fees for the opposing party at trial."

Opposing counsel argued the firm would need to eventually challenge the testimony of one of it's own lawyers. The court granted that an attorney-client relationship did not exist, but that the prospect of the firm challenging the testimony of its own lawyers wouldn't be proper. (And that the firm did not give its client notice and an option to waive the conflict.)

Wednesday, March 24, 2010

Reminder: Risk Roundtable Webinar Tomorrow

Just a reminder, the next Risk Roundtable webinar is taking place this Friday. The session will review current professional rules and new case law developments supporting the need to enhance law firm ethical screening and confidentiality management practices. More details on content and registration.

Thursday, March 18, 2010

California Bar Rejects Recommendation to Adopt Lateral Screening Rules

As reported by BNA, the California State Bar's board of governors adopted several proposed changes to the state's rules of professional conduct. However, one recommendation made by the drafting commission that was rejected was a motion to relax screening rules to enable ethical walls for lateral hires.

The commission proposed adopting some, but not all of the provisions of the recently changed ABA Model Rule 1.10 on conflicts, imputation and screening. The current rules do not address imputation, and case law on screening itself is murky on the topic. Unlike the Model Rule, the recommendations from the commission would not allow unilateral screening when the lateral attorney played a substatial role in the prior representation. They also added additional new requirements, including a provision that "...the screening firm must agree to provide to the client, at the firm’s expense, the opportunity to retain an independent lawyer to review and assess the firm’s screening procedures, and provide access to that lawyer." However, even with this more limited scope and stricter enforcement standards, the change failed to pass.

Keven Mohr, a law professor and consultant to the rules commission told BNA in an interview that public comment was nearly unanimous in support of the broader screening rules for laterals. He suggested that it may still be possible that the board of governors will revisit these specific rules, depending on future public comment.

Tuesday, March 16, 2010

Risk Deferred? HITECH Rules in Effect, but "Enforcement" Postponed (Maybe)

Firms subject to the HITECH Act should pay careful attention to developing news on the topic of enforcement. As discussed previously, these rules extend HIPAA confidentiality and information protection rules to entities including law firms.

While these rules were scheduled to go into effect in February, the government had promised more detailed guidelines would be published ahead of time, which didn't happen. Most recently, officials have sent signals suggesting that while the Act is in effect, enforcement of some parameters may be delayed. This link provides an interesting summary of the confusion. It appears that enforcement of the breach notification rules have gone into effect, with others pending.

The bottom line is that it still would be wise for prudent law firms subject to these rules, who have not taken measures to come into compliance, to use this reprieve wisely and get their houses in order (even if the government's is still a little disarrayed).

Thursday, March 11, 2010

Free CLE Webinar: Understanding New Ethical Screening Rules, Requirements and Case Law

The Risk Roundtable initiative is hosting a webinar later this month on ethical screening. Event panelists include Lucian Pera (President, Association of Professional Responsibility Lawyers; Partner, Adams and Reese LLP) and Deborah Jeffrey (Loss Avoidance Partner, Zuckerman Spaeder LLP). CLE credit for the session is pending. This event is co-sponsored by IntApp, provider of risk management software and services for law firms. Event details:

This webinar will review current professional rules and new case law developments supporting the need to enhance law firm ethical screening and confidentiality management practices.

In the past year, several changes have raised the profile of confidentiality and risk management issues related to information management at law firms. These include the ABA's modification of Model Rule 1.10 to enable the unilateral ethical screening of conflicted lateral attorneys, increasing client interest in firm practices and standards, and expanding regulatory pressures for firms operating both domestically and internationally.

This Session Will Explore Topics Including:
  • 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
For more information about this session and to request an invitation, visit: RiskRoundtable.com.

Sunday, March 7, 2010

2010 Law Firm Risk Survey Coninues

We have an update from the RiskRoundtable initiative about the 2010 Law Firm Risk Survey. This year, the initiative is running two surveys, one for North American firms and one for UK-based firms. Participation in the new exercise is strong this year. For information on the survey and to see if your firm is eligible to participate and receive a copy of the published report later this year, visit http://www.riskroundtable.com/ or email info@riskroundtable.com.