Wednesday, February 13, 2013

Recent Ethics Opinions of Note -- Law Firm "Beauty Contests" and Cloud Services

New York Opinion: Formal Opinion 2013-1: Duties to Prospective Clients After Beauty Contests and Other Preliminary Meetings --
  • "Rule 1.18 codifies the established principle that New York lawyers owe duties to prospective clients even when no lawyer-client relationship ensues. Under the Rule, a lawyer who learns confidential information in a consultation with a prospective client may not use or reveal the information except to the extent permitted with confidential information of a former client, and the lawyer may not take on a materially adverse representation in the same or a substantially related matter when the information, if used in the matter, could be significantly harmful to the prospective client. These duties are less restrictive than the comparable duties owed to former and current clients in several respects, and ethical screens may be used to take on otherwise adverse representations."
  • "In this section we discuss the application of Rule 1.18 to three beauty contest scenarios, two in a litigation setting and the third in a transactional setting. Our analysis, however, is not limited to beauty contests and would apply in any situation where the prospective client communicates with a law firm about a possible representation (e.g., after making a request for proposal (RFP)), whether or not other law firms are approached."
  • "With regard to ethical screens, we stated in No. 2006-2 and continue to believe that such screens 'are an appropriate means to rebut a presumption of shared confidences or secrets' within a law firm. Thus, we believe that, if a law firm implements an ethical screen as contemplated in Rule 1.18(d), it may rely on the screen to comply with paragraph (b) as well as paragraph (c)."
The Florida Bar’s Professional Ethics Committee approves Advisory Opinion 12-3 approving cloud computing with caveats on confidentiality and other issues --
  • "The proposed advisory opinion concludes: 'In summary, lawyers may use cloud computing if they take reasonable precautions to ensure that confidentiality of client information is maintained. The lawyer should research the service provider to be used, should ensure that the service provider maintains adequate security, should ensure that the lawyer has adequate access to the information stored remotely, and should consider backing up the data elsewhere as a precaution.'"
  • "Bottom line: this Proposed Advisory Opinion 12-3 on cloud computing should be finalized by the PEC at its meeting in June and will then be reviewed by the Bar’s Board of Governors. If it is approved by the BOG, the Advisory Opinion will become final."

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