Sweat the Small Stuff

A friend once told me that he was not comfortable using computers because he could not really understand how they worked. Compare it to a car engine, he said. A person does not need to be a mechanic to understand that gasoline gets sprayed into a cylinder, then it explodes, then a piston moves, etc. But all those electrons flying through chips, motherboards, cables, servers – who really understands how any of that stuff works?

One could say the same about client files and information. When a lawyer has a paper file with the pages neatly clipped in place and she puts that file in alphabetical order in a drawer of a big, sturdy, metal file cabinet, she knows exactly where it is and who has access to it (some lawyers claim to know exactly where their files are amongst multiple vertical stacks of paper in their offices, much as squirrels know where their nuts are buried. But I digress). The paperless lawyer knows their files are . . . where exactly? In a cloud someplace? Would that be a cumulus or a nimbostratus cloud?

None of us should be surprised that when lawyers combine our human tendency to be cautious or fearful of what we do not understand with our sacred obligation to safeguard confidential client information, it produces an abundance of anxiety. This is what most ethics discussions about confidentiality seem to focus on lately. Big fears about hackers, data breaches, HIPAA, e-mail security, metadata, the dark web, temporal anomalies, worm holes! One slip and Mrs. Lipschitz’s confidential divorce settlement will go viral and your law license will be shredded in a very public way.

Not so much. Don’t get me wrong. Lawyers certainly have an obligation to protect their client’s confidential electronic information. There can be big consequences for failing to do so: IT costs to fix breaches, pure embarrassment, hours lost to implementing new protections, worry over distressed clients and the unknown impact of unauthorized disclosures, and time lost to restoring data or recreating files. Breaches can turn your world upside down for days or weeks afterwards.

From an ethics perspective, however, hacks and attacks are not the types of confidentiality failures that typically get lawyers in trouble. Your duty under the Rules of Professional Conduct, as interpreted through ethics opinions in numerous U.S. jurisdictions, is to take reasonable measures to prevent hacks. Perfection is not required. Yes, lawyers should definitely have security systems in place that are reviewed and upgraded when necessary. They should use two-factor authentication to access critical systems, use a VPN if they intend to use wifi outside the office, and educate their employees to recognize and avoid phishing, spear-phishing, whaling, and other maritime-themed social-engineering e-mail scams. You cannot likely make your practice bulletproof from cybercrime but by taking reasonable precautions your law license should not be at risk. In fact, although lawyers are often the targets of hackers, there are very few discipline cases that arise from breaches, outside of “Nigerian Prince” and other certified check scams, which are less about confidentiality than they are about pure con artistry.

Instead, when it comes to confidentiality, it’s the small stuff that leads to discipline. It’s the slip of the tongue, the boastful indiscretion, or confused loyalty that is all about being human but not at all about the hazards of technology. In one case, a lawyer’s client in a personal-injury case backed out of a settlement and then fired the lawyer. The lawyer e-mailed the claims adjuster to convey what had happened. Reading between the lines, one suspects that the lawyer was concerned about what the adjuster would think of the lawyer and whether it might affect the lawyer’s future relationship with that adjuster. Part of the e-mail stated, “I advised [client] that he already accepted [the settlement] and there’s no rescinding his acceptance.”[1] That one sentence, devoid of any earth-shattering revelations, disclosed attorney-client privileged information and violated Rule 1.6, MRPC. The Minnesota Supreme Court affirmed the private admonition that had been issued to the lawyer.

This is typical of the level of violations in other cases. Saying just a little too much to a reporter without the client’s authorization. Responding to a client’s attempt to convince a credit-card processor to reverse a fee payment and offering gratuitous information about the client’s attitude or personal issues (fee disputes with clients are fertile ground for inappropriate disclosures of confidential information). Replying to a client’s one-star online review of your services by “setting the record straight” regarding what happened in the case. Recognizing the need to withdraw because of a conflict but disclosing the name of one client to the other.[2] Sending to the person who referred a client to you a copy of your e-mail defending your position in a fee dispute. Each of these scenarios resulted in a private admonition.

These situations have a common theme: emotion. Anger, resentment, embarrassment, frustration, hubris, and guilt lead lawyers to make mistakes. Perhaps they do bear some relationship to phishing schemes, which take advantage of lawyers being rushed or busy or gullible enough to click a link too quickly. It’s not the hackers who are going to get you; you’re more likely to get yourself. Pay attention to the small stuff to keep yourself out of trouble.

(Originally published in the January 2021 issue of Hennepin Lawyer)

[1] In re Panel File No. 41310, 899 N.W.2d 821, 824 (Minn. 2017).
[2] E. Cleary, “Summary of Admonitions” Bench & Bar of Minnesota (March 2000).

You’re Not So Special

Years ago, I heard a sermon about the way people carry secrets around with them. Not Rule-1.6-client secrets. Personal secrets borne of living a life: crimes committed, large and small; flings and affairs; errors and omissions, and so on. Most of us, the sermon suggested, have secrets we protect from disclosure at all costs. People can hold, bury, and guard their secrets so well and for so long that at some point they may not even be aware they are doing it. But secrets ultimately eat away at us. It’s difficult to be a whole, healthy person when your brain is busy maintaining your emotional forcefields and anti-disclosure missile systems.

One of the humbling aspects of being an ethics lawyer is that attorneys share their secrets with me. Some come spilling out over trembling lips. Others must be coaxed, after establishing some trust. I’ve been surprised over the years how many lawyers say to me “Everything I tell you is confidential, right?” Of course it is. I’m your lawyer.

Spoiler alert: there are no spoilers here. I’m not sharing the secrets lawyers share with me. But in representing lawyers over the last dozen years, some common themes have emerged which may help others who tote a heavy bag of secrets around with them.

One is the relief that lawyers experience from merely saying out loud what they have been holding inside. This is true of everything from “simple” errors in handling a client’s case —a missed deadline, a misread statute, a file mislaid for too long — to more serious lapses of judgment. The embarrassment associated with ethical lapses can become it’s own kind of creature. A boggart from the Harry Potter series – the creature that peers into your mind, figures out what you fear most, and then appears as that thing. The incantation a lawyer needs to vanquish it is to describe it to someone else.

Even after the facts are on the table, anxiety runs high amongst my clients. It is somewhat ironic that the lawyers who have committed a minor offense or perhaps are being investigated despite no apparent violation at all display more anxiety than lawyers accused of more serious misconduct. Conscientious lawyers, despite their overall competence and success, may experience acute anxiety from the uncertainty involved in the investigation process, second-guessing their own abilities or practice methods, and questioning why they bother practicing law at all. This anxiety can become, even for otherwise healthy lawyers, debilitating. A healthy person should not hesitate to seek informal or formal assistance when he or she finds that anxiety is regularly distracting them from or interfering with work, family, or other commitments.

Lawyers who choose to share their own history of mental illness or substance abuse, as well as the traumas that underly their disorders, also have a lot in common. There is a standard fear that sharing with one person means the whole world will know, which of course is not the case, especially when sharing with a lawyer. More concerning is the fear that the lawyer will be disciplined more severely for having a disorder, when in fact the opposite is actually true, as long as the lawyer is willing to take steps to understand and seek treatment for their disorder. Closely related to this is a fear that the lawyer will be labelled as someone who is disabled or defective, thus bringing a rapid end to the lawyer’s ability to find clients. One of the great benefits of seeking help through Lawyers Concerned for Lawyers or a 12-Step program is that you meet people just like you who are successfully living with their illness.

Lastly, one of the most remarkable patterns I have noticed in private practice is how understanding and forgiving lawyers’ friends are. I regularly see people, lawyers and non-lawyers alike, who are able to get past the human errors that lawyers commit and stand by them. There are people out there waiting to help you, if you let them in on the secret.

 

(Originally posted in the September 2019 edition of Hennepin Lawyer)

How to Draft a Conflicts Waiver

Seven rules of the Minnesota Rules of Professional Conduct require that a lawyer obtain “informed consent, confirmed in writing” to proceed with a representation despite an actual or potential conflict of interest. The comments to the rules offer some guidance regarding what types of circumstances one might take into consideration when deciding whether a conflict exists or is waivable, but offer precious little in the way of guidance for actually drafting a conflicts waiver.

“Confirmed in writing,” as explained in the definitions section of the MRPC, means a writing that confirms what was discussed orally about a conflict.The client’s signature is not required, although once you’ve bothered to write something down and send it to the client, it should take little more effort to have the client acknowledge receipt and content by signing the writing or by return e-mail.

What to write is the question. Brevity could be a problem. Merely saying “You agree that we have discussed this conflict and you waived it” does little to preserve your conversation with the client. If the conflict does arise or become unmanageable, the disgruntled client is going to say “Well, she never told me that might happen.”

Some conflicts waivers are written as though the lawyer was being paid by the word, cutting-and-pasting the entirety of Rule 1.7 into a retainer agreement and then say, “you consent to any conflicts.” The client is not expected to understand the rule; the lawyer is supposed to explain it to them. Close behind, sometimes attached to retainer agreements, are generic statements of firm “policies.” Mostly these concern billing but they sometimes include a section in fine print that begins “If this matter involves the representation of more than one client or if we have identified a conflict of interest, you agree . . .”

If there’s one defining characteristic of a good conflicts waiver, it is probably that it bears little resemblance to the last one you drafted. That is because good conflicts waivers are fact-dependent. Sure, you use similar language for common situations such as representing a husband and wife in drafting joint estate plans or for representing multiple victims of a car accident. But most waivers will be tailored to the facts of the particular case. More facts, less filler.

Here are the steps you should take to draft a conflicts waiver:

  • Analyze the situation. Determine how the interests of your clients overlap or collide with each other. Identify the correct ethics rule. Figure out if there even is a conflict. If there’s no conflict, be careful about asking for a waiver when you don’t need one because if the client or former client says no, you’ve now planted an idea in their head. If you proceed anyway, you may draw a disqualification motion or ethics complaint. Even if the motion or complaint seems frivolous to you, it will still need to be defended. On the other hand, remember that some conflicts are not waivable, because no reasonable lawyer would think that you could conduct the representation while completely protecting confidences and acting with undivided loyalty.
  • Explain your analysis to the client. Start writing where you started, by identifying the parties and their relationship to each other. For example, “We represent your bank in real estate transactions. Another of our clients is seeking a line of credit for his business.” Or “One of the witnesses in your case happens to be a client of ours in another matter.”
  • Describe whether there’s already a conflict or not. Joint representations often start off harmoniously; the conflict may be latent. Alternatively, perhaps your joint clients have potential, but remote, cross-claims against each other. Citing an ethics rule number is not by itself important, unless the client is a lawyer and the rule number would help define the scope of the issue.
  • Even where it appears there is no conflict between joint clients, describe how things could go bad. Use your imagination. There’s no need for gloom and doom, but if you come up with a couple of examples of what could go wrong, it helps a client understand what you mean by a “conflict of interest.”
  • Let the client know that it’s on you, the lawyer, to watch out for when the situation has changed and you either need additional disclosure and consent to continue the representation or you will be unable to continue.
  • Lay out the consequences of the conflict ripening and starting to stink. Usually, you will want to warn the client that you will have to withdraw from representation. There could also be costs and delay.
  • Reassure the client that you’ve analyzed all these factors and that you believe it’s reasonable to proceed with the representation. Perhaps that is because the conflict is remote and the clients will save money by using one attorney. Maybe success in a summary judgment motion will make latent cross-claims or witness testimony unnecessary. Perhaps you will set up an ethics screen that assures the client that her confidential information will not be shared with the attorneys in the firm who are working on unrelated transactional matters for the opposing party.
  • Last, get the client’s signature. You’ve just done all this work, you might as well lock it down.

(This article was originally published in the July 2019 issue of Hennepin Lawyer)

Hey, Lawyer – Can You Spare a Dime?

Allie Avocat is representing Carl Clint in his claims arising out of a car accident in which he was seriously injured. Clint has been out of work for nine months. Liability has been conceded and all that remains is litigation over his damages. There is a defense offer of $150,000 but Avocat believes the case is worth well in excess of $750,000. Clint’s savings have been exhausted and he is two months behind on his rent. He is concerned that he and his two children will be evicted from his apartment. He asks Avocat if she can advance him $4,500 against his settlement to cover his rent for the next three months.

Sorry, Mr. Clint. Despite the fact that it is clear that you will get a substantial recovery on your case, your lawyer can not lend you a comparatively small amount to help you avoid eviction. In fact, she could not even give you $50 to fill your gas tank. The Minnesota Rules of Professional Conduct, specifically Rule 1.8(e), say that would be a conflict of interest. Huh?

Rule 1.8(e) prohibits lawyers from providing “financial assistance” to a client in “pending or contemplated litigation” except in three situations. If a client is indigent, the lawyer may pay court costs and expenses on behalf of the client. There is no limit to the amount which can be paid. A lawyer may also advance, on behalf of any client, court costs and expenses, and can opt that repayment of those expenses will be contingent on the outcome. Again, there is no dollar limit in the rule. The lawyer can advance thousands of dollars in expert fees, accident-reconstruction fees, deposition costs, jury consultant fees, etc. The lawyer can require that her attorneys fees and those expenses are paid before the client gets any money out of the case.

The third exception provides that a lawyer may guarantee a loan that is “reasonably needed” to help a client like Clint “withstand delay in litigation” so that the client’s financial situation does not pressure him to settle prematurely. Repayment of the loan cannot be contingent on the outcome of the case. So, the lawyer cannot lend the client money herself but she can sign a guarantee that essentially allocates the same risk to the lawyer as making a loan.

The philosophy behind the restriction on financial assistance is neither immediately obvious nor is it clarified by the comment to Rule 1.8.  Comment 10 states that “Lawyers may not subsidize lawsuits brought on behalf of their clients,” because doing so “would encourage clients to pursue lawsuits that might not otherwise be brought” and because the assistance would give the lawyer “too great a financial stake in the litigation.” Paying or advancing litigation expenses “are virtually indistinguishable from contingent fees” (although the rule does not limit the practice to contingent fees) and “help[s] ensure access to the courts.” So, advancing thousands of dollars in litigation expenses is okay, but $50 for gas or a couple of months of rent is forbidden.

Yeah, it doesn’t make any sense to me either.

Also, if it’s a transactional matter, no worries. A lawyer may lend a client money for any purpose as long as it’s not related to litigation. Rule 1.8(a) governs such transactions, which include that the terms must be fair and reasonable, that the client have the opportunity to consult with independent counsel about the transaction, and that the required disclosures be confirmed in writing.

It is not clear from Rule 1.8(e) or the comment why reasonableness, the opportunity to consult with independent counsel, and written disclosure are sufficient for other loans to clients, even multi-million dollar transactions, but not when litigation is involved. And why would guaranteeing a loan that must be repaid not cause a lawyer to have “too great a financial stake” in the case when the expenses advanced by the lawyer could easily be more substantial than a loan to the client for living expenses?

Where does this leave Mr. Clint? Well, if Avocat has a wealthy friend with a big heart, she can arrange for the friend to make a loan to Mr. Clint and guarantee it. That’s right – the rule doesn’t say the loan has to come from a bank or other financial institution.

If Avocat has no wealthy friends or connections, Mr. Clint can get a loan from a “litigation funding” company. These companies have spread like Creeping Charlie over the past ten years. They offer loans, contingent on the client recovering funds, at interest rates of 20%, 25%, or higher, and a few fees thrown in for good measure. Most lawyers discourage clients from taking these abusive loans but the decision ultimately belongs to the client. Who, as we know, may be facing eviction or other desperate circumstances.

The conflict of interest rules are usually designed to protect clients from overreaching by lawyers. With Rule 1.8(e), the rule may hurt clients more than it helps them.
(Originally published in the Hennepin Lawyer, March 2019)

Opening the Door (Slightly) for Grads of Unaccredited Law Schools

The Minnesota Supreme Court appears ready to open the bar admissions door just a little wider – at least enough for some graduates of unaccredited law schools, modifying the recommendations of a year-long study and report (9 MB) by the Minnesota Board of Law Examiners (MBLE).

Under the present rules, there are essentially two ways to get admitted to the bar in Minnesota: by taking and passing the bar exam or by practicing law in another jurisdiction for five of the past seven years (different rules may apply to in-house counsel). But these routes to admission are only open to graduates of ABA-accredited law schools. If you went to one of a handful of unaccredited law schools in the United States (mostly in California) or graduated from a law school in a foreign country, you cannot be admitted to the Minnesota bar unless you go to law school again at an ABA-accredited school. In fact, I know several foreign lawyers who had to do just that. Minnesota is in the minority of jurisdictions that adhere to this strict rule.

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Lawyerist.com: Wash That Client Right Out of Your Hair

Many of the posts on Lawyerist focus on how to get good clients; we spend very little time talking about how to get rid of bad clients. As a general rule, the goal is to keep the clients around once they hire you. Nevertheless, for some clients, the lawyer’s advice should be limited to “don’t let the door hit you on the way out.”

Read this article over at Lawyerist.com >

Lawyerist.com: Pssst, Buddy—Wanna Buy a Client?

Running a successful law practice is all about getting clients. One way is by building a referral network, a frequent topic on Lawyerist. Another way is by advertising, such as in the yellow pages.

As traditional advertising methods wane, lawyers are getting excited by new methods of attracting clients through the internet. All those potential clients out there, yearning to find the lawyer of their dreams — all they need is a little encouragement. A little channelling. A system of connecting clients with lawyers. And lawyers will be eager to pay to have pre-screened clients sent their way – as long as they do not violate any ethics rules.

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Lawyerist.com: A family and friends plan for your law firm

A family member or close friend calls you one day with a “quick” question. Seems she has a dispute with a neighbor or she just got denied a promotion or she needs to tell the renter of her duplex to stop smoking in his unit. She knows you are really busy but was wondering if you would mind looking into it or just writing a letter or making a phone call for her. She hates to bother you but she does not know any other attorneys and really needs some help with this problem.

Read this article over at Lawyerist.com >

Lawyerist.com: Stop bashing BigLaw

As I surf around the blawgosphere, I have noticed that it seems to be in vogue for solo and small firm attorneys to take potshots at large law firms. If one read only the solo blawgs, it would seem all large law firms are lumbering, inefficient, selfish behemoths, so knocked off balance by this recession that they are about to keel over and smash their marble conference room tables. Then all the solo munchkins would come out of their hiding places in brightly colored garb, sing songs of freedom, and sign up all of the large firms’  former clients.

Read this article over at Lawyerist.com >