Wednesday, November 9, 2016

Conflicts, Ethical Screens and Electronic Paper Trails



Technology offers new opportunities to identify, address and mitigate risk. But it can also cut both ways -- preserving records of error, accident or omission. Over the years we've watched how standards for ethical walls and confidentiality management have evolved to keep up with the realities of how information is stored, accessed and managed. Consider a few examples [here and here] where, for example, internal access audits have played a role in discussions tied to conflicts, disqualifications and ethical screens.

This type of scenario is in the news again in: "Riker Danzig Must Review Database to Determine Disqualification Motion" --
  • "As a result of lawyers coming to and leaving the firm, Morristown's Riker, Danzig, Scherer, Hyland & Perretti must review its electronic database to see if it will be allowed to remain as counsel in a malpractice action... a three-judge Appellate Division panel said the firm, which currently represents the plaintiffs but which once represented one of the defendants, may have to be disqualified after an investigation determines who reviewed confidential files after lawyers were shuffled."
  • "In January 2014, a Riker Danzig attorney wrote an "Initial Case Analysis," which was placed in both a paper file and stored in the firm's database. The analysis, Sylvester said, was a "detailed case assessment" and strategy memorandum. On July 11, 2014, nine months after the estate lawsuit was filed in Bergen County, Sylvester and a number of other attorneys left Riker Danzig to joined Florham Park's Sherman Wells Sylvester & Stamelman. Riker Danzig was the Shoobe estate's counsel and Sherman Wells took over. Sylvester took the paper file with him, and the lawsuit was dismissed for an undisclosed reason on Aug. 27, 2014. However, a copy of the analysis remained in Riker Danzig's computer files."
  • "In April, Sylvester notified Riker Danzig of the conflict of interest. In response, Riker Danzig established what it called a "fire wall" to prevent Loalbo, along with attorneys who were also involved in the case, from accessing the file involving the Shoobe estate, including the initial case analysis... At the same time, a senior attorney at Riker Danzig, with the help of information technology personnel, reviewed the file to determine whether anyone had reviewed the analysis. That review showed that no one, other than the unidentified Riker Danzig senior attorney, had done so."
  • "The appeals court remanded the case to determine whether the Riker Danzig senior attorney only noted that the analysis existed, or whether he or she had read it. 'Reviewing anything more than the metadata concerning when the file was accessed, and perhaps a title to the document, would have unreasonably exceeded the need to determine the existence of a conflict,' Nugent said. 'In such case, there would certainly be a doubt as to the propriety of Riker's continuing representation of plaintiffs, and that doubt would be resolved in favor of disqualification.'"
  • "The firm has 20 days to file a certification from the senior attorney and the IT person who assisted him or her that generally describes the information that was accessed from the analysis and whether they reviewed the contents. The firm also must determine if the analysis could be deleted from its database and, if so, explain why the firm has not already done so. Riker Danzig has 30 days to access the file, in the presence of Sylvester and his IT person, to determine whether anyone other than the senior attorney accessed the analysis."
See the complete order.

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