Monday, May 9, 2011

Bar Opinions on Conflicts, Screening, Outsourcing and Confidentiality

Several interesting bar opinions and commentary have been published recently:
  • Firms Should Run Conflicts Checks on (and screen) Hires Fresh out of Law School [North Carolina]: "The North Carolina State Bar Ethics Commission published a formal opinion addressing the duty to ensure that newly hired law graduates do not bring conflicts of interests from their prior law clerk experiences when they join a law firm. Law clerk conflicts are not imputed to the new firm and timely screening can resolve conflicts concerns."
  • Opinions on Outsourcing -- The National Law Journal presents an interesting overview of various (and sometimes diverse) opinions on outsourcing.
  • Ethical Legal Duties When Using Wireless (Wi-Fi) Networks [California]: "This question is particularly relevant to a common occurrence in the modern practice of law: the use of laptop computers to conduct research and email the client or others while being connected to the Internet wirelessly, either at home with a personal system or via a public wireless connection (e.g., in an airport or coffee shop). The California Bar established a six-part test for attorneys to determine whether they have met their duties of confidentiality and conduct in this context."
  • Proposed Ethics Opinion on Lawyer Use of Hosted "Software as a Service" Applications [Opinions from North Carolina and New York]: Another technology related issue as more law firms rely on software that is not hosted (or ultimately controlled) within their organization: "...the opinion requires that the attorney do a thorough job investigating the technology provider and any agreements with that providers to ensure confidentiality of the client data." See the recent update from the New York State Bar as well. Putting this all into practice, the Legal Ethics Forum raised concerns specifically about Google Docs, a hosted alternative to Microsoft Word.
  • Are law firm loss prevention communications discoverable? Conflict Bars Privilege -- "Some years ago, courts in New York and elsewhere wrestled with the question whether the attorney client privilege may be applied to in-house communications within a law firm. Now, it appears fairly settled that courts do not generally recognize internal firm communications to be privileged...[but] A recent Ohio case is one of the first to break away from this line of opinions."
And, finally, solo practitioners in Florida take note -- you are barred from referring to yourselves with plural pronouns (the royal "we," along with "us," "ours," and similar words) in advertisements. Also, take heed not to name your firm "Your Name and Associates," if your don't actually employ additional lawyers.

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