Wednesday, October 5, 2011

Risk News: Conflicts & Former Clients, Side-Switching Lawyers & Staff, New Data Privacy Bills

  • Ethically Speaking: Addressing conflicts of interest with former clients –  "One issue frequently encountered after years of practice is whether taking on a new client’s case will present a conflict of interest with a former client. Sometimes, it’s a tough call, especially when there are rarely ethics decisions directly on point."
    • The author explores this challenge in the context of the New York State Bar's Ethics Opinion 871 (issued May 31): "The committee then emphasized that the appropriate inquiry does not revolve around whether actual confidential information was obtained in the prior proceeding, but instead, the relevant inquiry is whether there was a perceivable risk that a competent lawyer handling the earlier matter would normally acquire information that would be adverse to the former client’s position in the current case."
  • Switching Sides from Corporate Work to Plaintiffs Firms – "How far will companies go to protect their secrets when employees leave? And how free are former employees to pursue jobs of their choosing?"
    • Reviews several interesting stories where lawyers and non-lawyers changed jobs, and faced significant opposition: "Robert Klein, a partner at Miami's Klein, Glasser, Park, Lowe & Pelstring, is not surprised by Allstate's aggressive posture. Klein represents lawyers who faced resistance from former clients when they switched sides. In recent years he's witnessed a dramatic increase in suits and disqualification motions by corporations against former lawyers. He says the complaints are often strategic, and many are lodged by insurance companies."
  • The Senate puts three data breach bills in play – For those tracking trends on state and federal data privacy laws affecting personal information many firms store and manage: "[In late September], the US Senate voted to approve three bills that deal with data privacy, security and breach notification. All three would preempt the existing state laws that deal with data breach notifications... this matters."

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