Wednesday, May 30, 2012

Associate's Searches Through Firm DMS Prior to Filing Lawsuit Not Grounds for Professional Discipline

Thanks to John Steele, publisher of the Legal Ethics Forum, for sending in the following disciplinary decision from the Massachusetts Board of Bar Overseers: "RE: Bar Counsel . Petitioner v. Kamee Beth Verdrager. Esq. . Respondent. BBO File No. C1-2008-0271"

The fact pattern here -- Before leaving the firm, an associated harvested and removed a number of documents from the firm's document management system:
  • "She believed she was about to be fired by the firm after she had claimed to be the victim of sex discrimination. Anticipating that she would file suit against the firm, she searched for documents maintained in that sector of the firm's computer document management system that was open to any lawyer or other staff member in the firm and was referred to as "public" at the firm."
  • "She accessed, copied, and e-mailed to her home a number of documents that she thought might support her claims against the firm, After the firm notified her that she would be laid off, she disclosed one of the documents she had copied and advised that she had more firm documents to buttress her discrimination claim."
  • "The firm then terminated her employment on the grounds that she had violated privacy rights and breached her duty of loyalty to the fiim by accessing and copying firm documents for her own purposes. The firm also filed a grievance with the Office of Bar Counsel, which later filed a petition for discipline."
In its decision, the BBO noted:
  • "Lawyers in the firm were encouraged to review public documents posted by others. Such review was a widespread practice among the firm's lawyers, whether in search of a template for a pleading or even to discover how many hours other partners and associates were billing. Given such a policy and practice, and the highly competitive environment it reflects, it follows that no one who failed to secure documents he or she did not want other lawyers to review should be heard to complain that others took the fmn at its word regarding the public nature of its unsecured documents. If documents were not secured they could - and in such a milieu there was a very good chance they would - be read by any interested person with access to the system."
Further, because the associate took care to avoid documents related to her specific case or marked privileged, it did not consider her activity to be a rule violation or otherwise inappropriate. Quite the opposite: "...the respondent accessed and copied materials that were freely available to her as an employee, a step any experienced plaintiffs lawyer would have advised a client to take."

This is an important data point for those looking to balance open internal access to information with the need to manage confidentiality controls. We've commented previously on the role technology can play in both enforcing restrictions and alerting management regarding suspicious or abnormal document access by law firm personnel.

No comments:

Post a Comment