Wednesday, September 19, 2012

On Waivable Conflicts of Interest...

Hat tip to the Legal Ethics Forum for the pointer to a new article published in the Rutgers Law Review: "What Conflicts Can Be Waived? A Unified Understanding of Competence and Consent."  From the abstract:
  • "Attorneys are frequently asked to represent more than one client in the same or related matters... Regardless of the setting, attorneys face the same challenge in deciding whether the conflict of interest posed by the joint representation can be waived by the clients."
  • "Under the Model Rules of Professional Conduct, the conflict of interest can be waived if (1) the clients provide knowing, informed consent to the joint representation, and (2) the attorney’s representation of the multiple clients will be competent..."
  • "In assessing whether the joint representation will be competent, however, the attorney encounters the enigma that has bedeviled practitioners, courts and commentators since the adoption of the Model Rules. A joint representation hampered by a conflict of interest materially limits the services that the attorney can perform for one client because of her competing duties to the other client. Thus, the challenge: how can we know which joint representations are competent (and therefore “consentable”) when nearly all suffer from material limits on the services that counsel can undertake for the clients?"

The articple proposes: "...a new test by which courts and practitioners can honor both the consent and competence elements of Model Rule 1.7(b)."
  • "In application, the proposed test calls for a rethinking of: the Supreme Court’s approach to conflict waiver in the criminal-defense setting; the analysis of courts that have considered conflict waivers in civil litigation and transaction matters; and the approach of attorneys who are charged with determining in the first instance whether to accede to client requests for a joint representation. Given the stakes for clients and counsel, it is time we understood why and when a conflict can be waived."

Tuesday, September 18, 2012

Upcoming Event: Washington DC Risk Roundtable

Plans are now set for our next Washington DC Risk Roundtable event. It's set forTuesday, October 30th and is co-sponsored by IntApp and Ames & Gough.

Many law firm IT and Risk Management professionals are taking a closer look at their information security strategy. While many firms have invested heavily in firewalls and malpractice insurance, many firms are considering cyber insurance, ISO 27001 certification and process and policy changes to address these new set of risks.

In this context, it’s vitally important that risk professionals continue to take steps to understand this changing landscape and minimize firm exposure.

This forum will include a review of news stories, issues, trends and developments affecting law firm risk management, and presentations by:

  • Eileen Garczynski, Vice President of Ames & Gough
  • Pat Archbold, Head of Risk Practice at IntApp
  • David Greenberg, law firm risk consultant
This group will discuss practical, proactive recommendations that firms can take back and implement to mitigate risk and protect firm assets.

Attendance is by invitation only and is limited to qualified law firms and personnel. Please contact for more details.

Monday, September 17, 2012

Inappropriate Removal of Client Files

We've pointed to stories like these before [see here and here]. Now comes another extreme example of controversy over handling client files, and more: "Florida Supreme Court suspends Winters and Yonker for misconduct in leaving Mulholland law firm, including theft for removal of Mulholland firm’s client files" [The Florida Bar vs. William Henry Winters and Marc Edward Yonkers, Case SC10-1333 (September 6, 2012)] --
  • "In a highly publicized (and very contentious) case, the lawyers were prosecuted by The Florida Bar for their alleged misconduct related to their actions before, during, and after leaving the Mulholland law firm."
  • "The Florida Supreme Court opinion found that the lawyers solicited clients of the Mulholland law firm to terminate that law firm and hire their new law firm to represent them, made misrepresentations to the Mulholland law firm, made copies of and took files belonging to the firm, and improperly used a third lawyer’s name in their firm name."
  • "According to the opinion, '(t)he Bar argues that Winters and Yonker’s ‘personal use’ of the Mulholland firm’s client files constituted acts of criminal theft under section 812.014, Florida Statutes (2001), and that theft inherently reflects adversely on a lawyer‘s honesty, trustworthiness, or fitness as a lawyer. We agree…Winters‘ and Yonker’s conduct in appropriating client files from their employer for their own personal use constitutes theft."
See the complete article for more details.

Wednesday, September 12, 2012

SRA Risk and Compliance Updates

SRA supervision reduces law firm risk, report on pilot finds -- "A report on the Solicitors Regulation Authority’s (SRA) pilot on supervision of low and medium-risk firms has concluded that the regulatory risks posed by participating firms fell during the period of supervision."

Compliance officer failures bolster SRA bid for automatic fining powers -- "The Solicitors Regulation Authority (SRA) is to seek powers to levy automatic fines for breaches of its rules to avoid a repeat of the embarrassment caused by hundreds of law firms failing to nominate compliance officers on time."

SRA set to press ahead with leniency scheme for law firm whistleblowers -- "The introduction of a leniency scheme for those who reveal misconduct at law firms and alternative business structures will today be debated by the board of the Solicitors Regulation Authority (SRA)."

Tuesday, September 11, 2012

ILTA Conference: Information Risk & Security Notes

The team at Carson Wolf posted an update on key information risk and security developments and discussions at the recent ILTA conference in Washington DC: "ILTA 2012 Wrap-Up."
  • "It is clear that for most law firms, the increase in clients specifying security requirements or conducting assessments of the law firm environment were the driving force behind security initiatives."
  • "To meet these increasing client security requirements some law firms are seeking ISO 27001 certification and there were two good sessions presenting firsthand knowledge on the challenges and rewards of ISO certification."
  • "Like any great community organization, ILTA sees the security challenges as an opportunity to serve its members and recently announced the LegalSEC initiative, a new working group focused on law firm security."
ILTA itself also made several session slide decks publicly available. Here are some relevant topics worth exploring:
  • Information Governance and Security Policies: Two Peas in a Pod [Link]
  • Differentiate Your RFP from the Competition with ISO Certification [Link]
  • Information Governance: The New Records Management [Link]
On the lighter side -- ILTA's in-house band, the Legal Bytes, performed several original songs, including "Unethical Walls," written by Frank Gillman. The complete lyrics are also available online. Here's a preview:

You say we’re partners, that much is true.
Yet there’s a conflict ‐ between me and you.
You won’t take a meeting, you won’t take my calls,
You just shut me out ‐ while you build your walls.

(The Risk Management Blog would welcome a recording, live or studio quality, if anyone has one to share...)

Monday, September 10, 2012

Upcoming Event: Charlotte Risk Roundtable

Our next US Roundtable event is set for Charlotte, North Carolina on September 26th, hosted by Parker Poe.

These sessions provide a excellent forum for risk, IT and related professionals to connect in a collaborative environment and explore news stories, issues, trends and developments affecting law firm risk management.

At this meeting we’ll also feature a presentation from Mark Brophy from Rogers Townsend & Thomas PC, who will provide an overview and update on ILTA's LegalSEC initiative, a working group developing information security best practices and an asset protection framework for law firms.

Attendance is by invitation only and is limited to qualified law firms and personnel. Please contact for more details.

Wednesday, September 5, 2012

UK Risk Roundtable Meetings (Bristol and Birmingham)

We've announced two upcoming Risk Roundtable events in the UK.
  • Bristol -- Wednesday, October 3rd
  • Birmingham -- Thursday, October 4th
The Risk Roundtable provides a forum for risk, IT and related professionals to connect in a collaborative environment. By attending this event, you will gain insights on:

  • Review of news stories, issues, trends and developments affecting law firm information security
  • The pros and cons of “Open” vs. “Closed” document management system (DMS) models
  • Update on industry ISO 27001 developments and approaches
  • A review of how law firms are leveraging technology to advance their information security initiatives

Join us and your peers to discuss the challenges you may be facing today managing your information risk. Attendance is by invitation only and is limited to qualified law firms and personnel. Please contact for more details.

Tuesday, September 4, 2012

Law Firm Information Governance

Law Technology News Reports on developments for a "Framework Proposed for Law Firm Information Governance."
  • "A Proposed Law Firm Information Governance Framework," in the form of a 52-page report, debuted today. It came out of a series of discussions on strategies for safeguarding law firm information that law firm leaders had in May at a symposium in Chicago.The report defines information governance in the context of law firms, clarifies what's involved to administer it, suggests security assessments, and explains how to implement such policies."
  • "Such approaches should help lawyers meet their professional responsibilities regarding client information, recognize regulatory and privacy requirements, and rely on participation and collaboration, the report continues. 'With information governance, firms are better able to mitigate risk, improve client service through increased lawyer productivity, and reduce the cost of managing the information needed to support the efficient delivery of legal services,' it states."
  • "'There are so many different definitions for information governance out there, but none that were very specific to a law firm environment,' said Rudy Moliere, director of information governance and records management at White & Case, in New York. Moliere co-chaired the meeting. 'Most of the time [in the meeting] was spent synthesizing our thoughts as opposed to debating what should be on there," he said. For law firm information and technology leaders, 'This will provide them with a road map,' Moliere said."
Participants in the information security working group included Brian Lynch from IntApp, Shawn Knight from Venson & Elkins, Brianne Aul from Reed Smith, Mark Lagodinski from Sidley Austin, Eric Mosca from InOutsource, Paul Singleton from Bingham McCutchen, and Susan Trombley from Iron Mountain.

For more information and detail, see the complete report.

Monday, September 3, 2012

Risk Roundtable Website Update & Other News

The Risk Roundtable website has been updated. We've moved to a new content management system which will make it easier to find information and resources.

As part of this effort, we'll be updating our industry risk events calendar (contact info@riskroundtable if you have a relevant event you think should be listed).

In related news, we'll be providing updates on upcoming regional roundtable meetings shortly. And more information about the results of our 2012 risk survey series.