Risk Update

Some Copy on Copyrighting the Law (Georgia, Peaches & Pacer)

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More in the tune of legal ethics, I’ve been fascinated to see some stories percolate on the theme of access to the law — not representation, the actual words. Here are a few stories and updates of that ilk:

Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws” —

  • “When we last checked in with Carl Malamud and his Public.Resource.Org, they were celebrating a huge victory in Georgia, where the 11th Circuit had ruled that of course Malamud was not infringing on anyone’s copyrights in posting the “Official Code of Georgia Annotated” (OCGA) because there could be no copyright in the law.”
  • “Last week Malamud sent a letter describing how the state is now trying to block him from purchasing a copy of the OCGA. He’s not looking for a discount or any special deal. He wants to buy the OCGA just like anyone else can. And the state is refusing to sell it to him, knowing that he’s going to digitize it, put it online and (gasp) make it easier for the residents of Georgia to read their own damn laws…”
  • More history on this issue, and a call for interested parties to sign on to an amicus brief heading to the Supreme Court.

Can the law by copyrighted” —

  • “The question is at the center of a lawsuit involving YC-backed UpCodes and the nonprofit that develops the most widely used building codes in the U.S… UpCodes wants to fix one of the building industry’s biggest headaches by streamlining code compliance. But the Y Combinator-backed startup now faces a copyright lawsuit filed against it by the International Code Council, the nonprofit organization that develops the code used or adopted in building regulations by all 50 states.”
  • “The case may have ramifications beyond the building industry, including for compliance technology in other sectors and even individuals who want to reproduce the law. At its core are several important questions: Is it possible to copyright the law or text that carries the weight of law?”
  • “UpCodes’ first product, an online database, gives free access to codes, code updates and local amendments from 32 states, as well as New York City. For building professionals and others who want more advanced search tools and collaboration features, UpCodes sells individual and team subscriptions.”
  • “It argues that its use of building codes is covered by fair use. The ICC, on the other hand, claims that products like UpCodes’ database harm its ability to make revenue and continue developing code. The ICC wants UpCodes to take down the building code on which it claims copyright, and has also sued for damages.”
  • “A lawsuit filed by the state of Georgia’s Code Revision Commission in 2015 sought to stop it from publishing the Official Code of Georgia Annotated (OCGA) after founder Carl Malamud purchased a hard copy of the OCGA, scanned it and sent copies on USB sticks to Georgia legislators. The Code Revision Commission argued that the annotations they wrote placed it under state copyright, but the Eleventh Circuit ruled in Public.Resource.org’s favor last year.”
  • “One difference between the Public.Resource.org cases and UpCodes’ is that Public.Resource.org is a non-commercial group, a fact that strengthens their fair use argument. UpCodes, on the other hand, is a commercial company, which will become part of the fair use analysis if their case makes it to trial.”

Colorful titls from Above the Law at the end: “PACER, Or Your First Amendment Right To Go F**k Yourself For $0.10/Page” —

  • “Many have complained, but few have complained as eloquently as Seamus Hughes, the deputy director of George Washington University’s Program on Extremism. His op-ed for Politico is definitely worth reading. It highlights everything wrong with the PACER system, including its amazing profitability.”
  • “This money is supposed to be used to improve PACER and fund other U.S. Courts’ efforts. A visit to PACER makes it clear none of that money is being routed towards making PACER less awful. At least one federal court has ruled the way the U.S. Courts spend this money is illegal.”
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Risk Update

Quinn Edition: Cosby Conflict, Uber Argument, Soccer Defense & Lateral Dollar Drama

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Any firm can find itself making risk news for any number of reasons. This one just happens to have had several hits on radar this week:

Bill Cosby is fighting a $6.7 million lawyer bill” —

  • “Cosby says he hired Quinn Emanuel to represent him after ‘public claims of sexual misconduct against [him] began to snowball at the end of 2014,’ and that the firm ended up working on 10 different matters representing Cosby. At that point, Cosby had the firm on a retainer. However, Cosby claims that the partner in charge of his cases, Christopher Tayback, son of actor Vic Tayback, did not talk to Cosby about the specifics of the retainer contract prior to its signing.”
  • “Cosby is now serving three to 10 years in a state prison after he was convicted last year of drugging and sexually assaulting Andrea Constand at his home 15 years ago.”
  • “Cosby also accused AIG and Quinn Emanuel of failing to disclose a conflict of interest for not revealing the fact that the insurance company had previously and was continuing to use the firm’s services on other legal matters, and the firm had knowledge that AIG had filed declaratory relief actions against Cosby — seeking to avoid having to cover his legal fees to be paid to the very same firm.”

In Fight to Stay in Case Against Former Client Uber, Quinn Emanuel Faces Skeptical Judge” —

  • “The federal judge who will decide whether lawyers at Quinn Emanuel Urquhart & Sullivan get to pursue an antitrust case against former client Uber Technologies Inc. greeted a lawyer from the firm with extreme skepticism and a flurry of difficult questions Friday.”
  • “U.S. Chief Magistrate Judge Joseph Spero of the Northern District of California opened a hearing on Uber’s motion to disqualify the Quinn Emanuel lawyers by raising concerns about the similarities between the lawsuit he’s overseeing and an earlier suit where Quinn played the defense role for Uber.”
  • “Uber’s lawyers at Gibson, Dunn & Crutcher filed their motion to disqualify the Quinn lawyer in February. Uber contends that Quinn Emanuel represented it in at least 20 cases from 2012 to 2016 that delved into competition issues similar to the ones in the Sidecar case.”
  • “Spero also took issue with language included in declarations by Quinn lawyers, including firm co-founder and chairman John Quinn, which said that they ‘had no particular recollection’ of discussing antitrust issues that in-house lawyers at Uber claimed the firm had advised on. ‘My presumption has got to be that if the lawyer doesn’t remember it and the client does, that the client is right,’ Spero said.”

Soccer Charity Says Bid To DQ Quinn Emanuel A Distraction” —

  • “A soccer charity is pushing back on a bid to disqualify Quinn Emanuel from a trademark dispute against the U.S. Soccer Federation, calling the request a baseless distraction.”
  • “The move to disqualify Quinn Emanuel Urquhart & Sullivan LLP comes in a suit by the charity, called the U.S. Soccer Federation Foundation Inc., which is aiming to prove it can legally use the name after USSF pushed the charity to give it up in November. According to the charity, Raskopf was an associate with the now-shuttered Townley & Updike in the early 1980s when the firm was hired by USSF to obtain certain trademarks.”
  • “‘The mere existence of decades-old, uncontested registrations for non-foundation marks, for which other Townley & Updike personnel were primarily responsible, cannot bar Quinn Emanuel’s representation of the foundation for the simple reason that any such facts are irrelevant to this case,’ the charity wrote. The charity added that at the time, Raskopf was only four years out of law school, and the documentation doesn’t even establish what actual work, if any, he did with those trademarks.”

Quinn Emanuel Gets Suit Brought by Partners in NYC Spinoff Routed to Arbitration” —

  • “If the decision by a New York state judge stands and Quinn Emanuel prevails in arbitration, Selendy & Gay partners could be forced to turn over 10 percent of the fees they got from former Quinn Emanuel clients in the 18 months after they departed.”
  • “Partners at Selendy & Gay had argued that Quinn Emanuel’s effort to make them turn over a share of the legal fees they took with them violated state ethics rules, but Manhattan Supreme Court Justice Saliann Scarpulla ruled this week she could not evaluate that dispute.”
  • “In an emailed statement, Phillip Beck of Bartlit Beck, which represented Selendy & Gay’s partners alongside the firm of Vladeck, Raskin & Clark, saw a silver lining in the decision. He noted that the judge acknowledged his side’s arguments that Quinn Emanuel was simply using the fees provision as a cudgel to convince Selendy & Gay to not try to poach its associates.”
  • “Quinn Emanuel founder John Quinn previously told ALM that he wasn’t too worried about the dispute. ‘Last year was the best year we have ever had and, by reports, they have done well also,’ he said in an email for a February article. ‘The dispute is only about money and will eventually be resolved one way or another for an immaterial amount.'”
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Risk Update

Arbor Day Special: On Records Disposition (Risk, Reward & Elephants in the Room)

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Yesterday we shared an update from the world of records, and with today being Arbor Day we have a timely related story about paper to share. (Technically, it’s Arbor Day in the United States — our international readers in mind, I have now confirmed that the holiday is celebrated across the world, though at different times based on local climate and custom).

FileTrail, which has a clear commercial interest in advancing the cause of records management, published: “Beyond Paper: Automating the Destruction of Physical Records,” arguing not just for the risk mitigation benefits of keeping up with disposition, but also the economic benefits:

  • “This Arbor Day, we encourage all law firms to reflect on the state of their paper-based archives and in reducing the total volume of paper generated in the future.”
  • “In recent years, a growing number of law firms have been moving to “paperless” or paper-light systems, with electronic records regarded as the “official” record of the organization. Certainly, law firms have come a long way in reducing their usage of paper and helping to save trees — striking a positive note this Arbor Day. But for many firms, the elephant in the room is the large volume of physical records that have accumulated over decades — extremely costly to store and difficult to manage.”
  • “Many firms know they need a large-scale purge of physical records but procrastinate. Often, their hesitation is that it will take too long to go through each box to identify which files can safely be destroyed.”
  • “You may be shocked to find out the potential cost savings. One firm we work with estimated that by destroying 43,000 boxes — starting with physical records from client matters that have been closed for ten years or more — it would save more than $114,000 per year in storage costs and recoup the cost of destruction in less than two years.”
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Risk Update

Client RFPs + Records Management + IG = Business Development Opportunity

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Another flavor of original content to share with the community this week. Last we highlighted an in-depth interview on industry risk trends. This week I wanted to highlight a piece on our sister site Off the Record, featuring our discussion with John Churchill, Record Department Manager, Nelson Mullins.

As he notes, clients and prospects are increasingly requesting more detailed information in RFPs about information governance policies and procedures, including records management:

  • “As a result, the role of Records Management has become more prominent. The attorneys, Risk and General Counsel all value what we do now. Similarly, the CIO and the Security team also value our input and are trying to ensure that we’re more integrated with Security.”
  • “Legal technology is changing the role of the records manager. We’re expected to have a more well-rounded view. Records staff are now expected to be more technically savvy. It’s offering growth opportunities, including re-training. Most of the team is really up for the transition.”

See the entire interview for more detail on the evolving structure, role and prominence of record/IG at his firm, and how the organization is navigating its own path to becoming more ‘paper light.’

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Risk Update

Disqualification Discussion: Amicus Blocked, Waiver Waived

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5th Circuit Strikes Gibson Dunn’s Pro-Obamacare Brief for Recusal Issue” —

  • “A federal appeals court on Monday blocked the law firm Gibson, Dunn & Crutcher from filing a pro-Obamacare amicus brief because the submission would have caused the disqualification of an unidentified judge.”

  • “The U.S. Court of Appeals for the Fifth Circuit’s order pointed to a newly amended federal rule for appellate litigation and to a local court rule, both of which address circumstances where a court can reject an amicus brief if allowing it would force a judge to recuse.”

  • “Former Gibson Dunn partner James Ho was confirmed in 2017 to a seat on the Fifth Circuit… firm. Ho’s wife, Allyson Ho, is a Gibson Dunn partner in Dallas.”

  • “James Ho, who’d been a Gibson Dunn appellate partner continually since 2010, said in a U.S. Senate questionnaire at the time of his confirmation: ‘For a period of time, I anticipate recusing in all cases where my current firm, Gibson, Dunn & Crutcher, represents a party.’ He also said he would recuse in any case where his wife represents a side and that he would ‘evaluate any other real or potential conflict, or relationship, that could give rise to appearance of conflict.'”

  • “An amendment to the federal rules of appellate procedure that took effect in December 2018 said ‘a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.’ Several appellate courts had adopted local rules forbidding the filing of an amicus brief that could cause the recusal of one or more judge, and the new federal rule harmonized how courts were handling amicus briefs and recusals. There was some opposition to the proposed rule, including the argument that amicus-based recusals are rare and the fact that the rule could ‘prove wasteful if an amicus curiae pays an attorney to write a brief which the court then strikes.'”

Developer On Hook For $5.2M Despite Atty DQ, 8th Circ. Says” —

  • “A law firm that previously represented a historic Iowa building’s owner should have been disqualified from representing a bank suing the developer over lease payments, but the owner still must face a $5.2 million judgment despite the conflict of interest, the Eighth Circuit ruled Thursday.”

  • “Winthrop had represented Mako in 2011 and 2012 on a $6 million tax credit bond offering related to a $17 million restoration project for Badgerow. But U.S. District Judge Leonard T. Strand said the law firm’s representation of CRBT in the present case was acceptable because of a conflict of interest waiver signed by both the bank and Mako.”

  • “The appeals panel disagreed. Finding that the waiver — inked years before the litigation — was not signed by Mako with ‘informed consent,’ the panel said it did not lay out the ‘advantages, disadvantages, risks or benefits’ Mako would face by allowing Winthrop to serve as counsel for CRBT. But despite the insufficient waiver, Mako was not adversely affected by Winthrop’s representation of CRBT, the appeals court said, citing First Circuit precedent.”

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Risk Update

Supreme (Missed) Conflicts, Significant Conflicts Clash

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Breyer, Alito Say ‘No Way’ to Know About Conflict They Missed” —

  • “Two U.S. Supreme Court justices said there was ‘no way’ to know about a conflict of interest they missed in January when the court turned away an appeal involving a United Technologies Corp. unit.”

  • “Justices Stephen Breyer and Samuel Alito both owned stock in the company as of December 2017, according to their most recent financial disclosure reports, but neither disqualified himself as required under federal law.”

  • “‘Because the respondents waived the right to respond to the petition, there was no requirement based on the rules to provide a corporate statement,’ Breyer and Alito said in a statement issued by the court Monday. ‘The court has a diligent conflict-checking process but without a response there would be no way to find out there was a conflict.'”

  • “The statement responded to a report by Fix the Court, the watchdog group that discovered the missed recusal.” Fix the Court’s executive director stated: “Supreme Court justices, like any judges ruling on publicly traded companies, should be cognizant of potential conflicts at all times, and that includes an awareness of M&A activity of the companies in their stock portfolios. Better yet: the three justices who own individual stocks should divest from these holdings and invest solely in blended funds and retirement accounts like the rest of their colleagues.”

Not something you read every day: “PwC Seeks To Depose NY Atty In Conflict-Of-Interest Query” —

  • “PricewaterhouseCoopers told a California judge Tuesday it wants to depose a New York class action lawyer about possible conflicts of interest over his representation of both the city of Los Angeles and utility customers in separate lawsuits over PwC’s overhaul of LA’s billing system.”

  • “PwC wants to question him about allegations he worked as special counsel for the city while also representing the lead plaintiff in a class action against the city on behalf of LA Department of Water and Power customers…”

  • “After LADWP’s new billing system in 2013 sent out ludicrously inaccurate bills and overcharged tens of thousands of customers, Paradis represented Antwon Jones in his 2015 class action complaint against the city alleging PwC’s system led thousands of utility customers to be overbilled, according to a brief PwC filed Feb. 28. Los Angeles reached a $70 million settlement with the customers in 2016, with customers receiving a full credit to their account or a refund if their accounts were closed.”

  • “Around the same time, however, Paradis agreed to represent LADWP with regard to any potential claims against PwC, the brief said, but never told Jones that he would no longer be representing him in the class action.”

  • “PwC alleged in court filings that Paradis has a conflict of interest that was part of a larger scheme to work with the city to choose the lead plaintiff, Jones, and the attorney, Jack Landskroner of Landskroner Grieco Merriman LLC, to handle the class action lawsuit in an effort to get an agreeable settlement for LADWP.”

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Risk Update

Bankruptcy Rules & Parties, Madoff-related, Alleged Firm Conflicts

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Madoff Victims May Proceed With Suit Against Attorney” —

  • “Victims of Bernie Madoff’s Ponzi scheme convinced a federal magistrate judge April 11 that their class action against the attorney who represented them belongs in federal court. The investors sued Becker & Poliakoff LLP and Chaitman LLP alleging attorney Helen Chaitman improperly represented clients with competing interests while at the two firms.”

  • “‘The more money collected from some of her clients (the net winners), the more available to be distributed to her other clients (the net losers),’ the suit alleges. The two firms moved to dismiss, arguing the court lacks jurisdiction. But the court agreed with the investors that CAFA applies.”

  • See the decision here.

Bill Freivogel notes ” In Re Earl Gaudio & Son, Inc., 2019 WL 1429978 (C.D. Ill. March 29, 2019)” —

  • “We have written often of Section 327 of the Bankruptcy Act. It sets forth standards for the employment of professionals in bankruptcy proceedings. We have mentioned less frequently Rule 2014 of the Bankruptcy Rules, which sets forth disclosure requirements in connection with Section 327 applications. This includes disclosure of ‘all of the person’s connections with the debtor, creditors,’ and other parties ‘in interest.‘”

  • “In this opinion the bankruptcy judge denied large chunks of compensation for Debtor’s counsel (‘Law Firm’) and a corporate custodian (‘Bank’) for repeatedly failing to make required disclosures. They failed to disclose their work on trusts for Debtor’s owners and involvement in state court proceedings directly involving Debtor and its property. The court also found Law Firm’s accounting and billing accuracy woefully deficient. We see little point in providing further details here. We just wanted to re-emphasize the importance of Rule 2014 to bankruptcy practitioners.”

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Risk Update

Lawyer Escrow Risk, Consulting Conflicts & Million Dollar [sic] Sanction

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A bit of everything has caught my eye recently. First, an interesting reminder about financial risk and professional responsibility with regard to managing client funds: “What Lawyers Must Know Before Acting As Escrow Agents” —

  • “There is a strong case to be made that the moment an attorney agrees to serve as an escrow agent for a client, the attorney assumes some of the most important obligations attorneys are charged with in the legal profession. All too often, however, an attorney who serves as an escrow agent for a client is unaware of these obligations.”
  • “All too often, attorneys readily agree to serve as an escrow agent for a client without giving it a second thought, in order to facilitate the client’s payment of outstanding legal fees from the escrowed funds — entirely unaware of their potential obligations to third parties under the rules. Before taking on this role, attorneys should first evaluate whether or not any third persons who are not clients can claim or have claimed an ownership interest in the funds to be escrowed (for instance, any secured or contractual creditors that the client might have may have priority to the escrowed funds), and the duties that the attorney could owe to such third persons as an escrow agent.”
  • “Before agreeing to serve as an escrow agent for a client, attorneys should also consider that if, and to the extent that, such third persons exist, an attorney might be required to act contrary to the client’s interests, and his or her law firm’s interests, with respect to the escrowed funds.”

Next, an interesting story about the evolution of conflicts standards in other industries in the general news. In this case, consulting: “McKinsey Broke the Rules, Now It Wants to Rewrite Them” —

  • “A federal bankruptcy judge has authorized McKinsey & Co. to devise industry conflict-of-interest guidelines, even as the firm recently has paid $32.5 million to settle allegations that its undisclosed conflicts tainted its own bankruptcy work.”
  • “The surprising move by Judge David Jones of Houston will allow the big consulting firm to craft a conflicts protocol that will be used in a current chapter 11 case, Colorado coal miner Westmoreland Coal Co., and could serve as a model for all bankruptcy practitioners, including law firms and financial advisers.”
  • “In court papers, Judge Jones approved McKinsey’s request to develop new disclosure guidelines, saying: ‘The court hopes that the protocol to be developed by McKinsey will lead to a comprehensive national standard for all professionals.”

Finally, not the sort of title you read every day (and perhaps best accompanied by a certain sitcom’s theme music, or questions about who will own the movie rights to this story): “$1 Million Sanction Over Wilmette Condo Lawsuits Ordered By Judge” —

  • “A Cook County judge ordered a Wilmette man and his attorney to pay more than $1 million in sanctions amid years of legal wrangling among residents at a lakefront condominium.”

  • “Marshall Spiegel, a resident of the condo, and his attorney John Xydakis engaged ‘simply obscene’ and ‘egregious conduct’ by filing a serious of frivolous or false lawsuits during a legal battle over the condo association’s boards and its rules, according to Circuit Judge Margaret Brennan, who granted four sanctions orders on March 29.”

  • “Xydakis, of River Forest, said the ruling was retaliation against him for seeking to disqualify Brennan over a series of private conversations between the judge, her clerk and one of the opposing party’s attorneys. He said the judge’s phone records he obtained through a Freedom of Information Act request and the billing records of attorney Eugene Murphy show improper private conversations.”

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Risk Update

Time for Time Entry, Phishing, Cloud & Malpractice Risk

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Hat tip to Simon Chester at Gowling WLG for pointing out: “Email fraudsters impersonate Clifford Chance UK managing partner” — 

  • “The Solicitors Regulation Authority (SRA) confirmed that a number of emails have been sent misusing the name of Clifford Chance and Michael Bates, the magic circle player’s UK managing partner. The phishing-style emails invite recipients to review an attachment, which isn’t attached, regarding a client matter, according to the regulator’s alert.”

These security topics are timely. Last week, watching a webinar on integrating client OCG compliance into time entry software, jogged my memory on the topic of time and technology risk, and I thought I would share a few items of note.

First, on the topic of billing compliance see also: “Block Billing Gets Attorney Suspended” — 

  • “Ronald D. Hassan is a lawyer who admittedly engaged in “value billing” and “block billing” to calculate the amounts owed to him by the Public Defender Services (PDS) for his court-appointed representation of criminal defendants. Mr. Hassan’s billing practices resulted in impractical absurdities such as billing thirty or more hours on multiple days. He was charged with violating two separate provisions of the West Virginia Rules of Professional Conduct.”

Another interesting story about law firm time software risk caught my eye a few months ago, and I found myself exploring a chain of articles and reading a malpractice complaint.

As is widely reported, targeted spear phishing attacks are a known and growing problem for the entire industry. And according to an ABA survey published last year, one in five law firms experience a “cyber incident.” It’s actually noted that 20% of firms reported being the object of a cyber attack. The actual number may be higher.

And, as reported this week in the Texas Lawbook: “Four out of five corporate law firms operating in Texas have experienced a “cyber incident” or an actual data breach during the past two years, according to an exclusive new Texas Lawbook survey.”

The ABA also noted this fascinating incident: “Law Firm Cybersecurity Breach Opens Door to Lawsuit,” which notes this case Shore et al v. Johnson & Bell, Ltd (described here, but you have to scroll):

  • “The class action against Chicago firm Johnson & Bell is understood to be the first in which a law firm has been accused of exposing client information and failing to protect client data through inadequate security.”

  • “In the former, the claim states that the defendant operates a Webtime service developed by Rippe & Kingston, which the claimants say has not been properly configured and is running out of date software.”

  • “The claim, which Johnson & Bell has publicly called ‘baseless’ and ‘specious’ and says it will fully defend, seeks to compel Johnson & Bell to ‘implement industry standard protocols; to allow an independent third party firm to conduct a security audit; to inform Johnson & Bell’s clients that their confidential information has been exposed; and damages.'”

The complete complaint makes an interesting read.

To be fair to the vendor, it looks like the 100 lawyer firm’s IT standards were allegedly lacking… they hadn’t updated their self-managed, internet-facing system in several years.

But merits of this particular matter aside, no firm or vendor wants to see itself subject to this type of public attention and scrutiny. Like any category of serious risk, it’s always prudent to ensure your firm has its internal processes defined and up to date. And equally important that vendors are working carefully to ensure issues like these are addressed —  and updates are actually being implemented by clients. (I type as my Windows system informs me a mandatory shutdown is imminent…)

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Risk Update

Records, Retention & IG: Client Files and Client Identities

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From the Ethical Grounds Blog (which sounds like the makings of a great name for a firm’s in-house coffee bar…) comes some interesting commentary in the just issued NYSBA Ethics Opinion 1164 (Returning client files without keeping a copy; conditions on compliance): “When a client asks you not to keep a copy of the file” —

  • “A quick recap: Upon the termination of a representation, Rule 1.16(d) requires a lawyer to surrender ‘papers and property to which the client is entitled.’ The client is entitled to ‘the file.’ A lawyer may keep a copy of the file. A lawyer’s malpractice policy might include a provision that requires a lawyer to keep a copy of the file. Today’s question: what to do if a client directs a lawyer not to keep to a copy of a the file?”

  • “Former Employer alleged that Client had misappropriated propriety information, and that some of it was in the data that Client had provided to Lawyer; Client terminated Lawyer, and hired new counsel; Lawyer forwarded the file, but kept a copy, including back-ups of the digital data; Client and Former Employer settled; the settlement required Client to “retrieve and destroy” all of the digital data; Client asks Lawyer to destroy the digital data.

  • The NYSBA’s response: A lawyer has a valid interest in keeping a copy of a former client’s file. The general rule is that a lawyer may do even over a former client’s objection. In New York, a lawyer may condition not keeping a copy on the former client providing a release.”

  • “The lawyer’s interesting in keeping a copy of the file is not unqualified. There may be times when ‘extraordinary circumstances’ exist that favor requiring a lawyer to comply with a former client’s instruction not to keep a copy of the file. A lawyer may condition compliance with a former client’s instruction to destroy copies of the file on obtaining a release and hold-harmless agreement from the former client. A lawyer may condition compliance with a former client’s instruction to destroy copies of the file on creating and keeping an inventory of the material provided to the lawyer by the former client.”

Next, a different type of fight over client files: “Covington Told To Hand Whole Client File To Flynn Associate” —

  • “Michael Flynn business associate Bijan Rafiekian won an order on Tuesday [4/9/19] telling Covington & Burling LLP to hand over notes and documents related to a false foreign agent registration that Rafiekian is accused of causing the firm to make about work he and Flynn did for the Turkish government.”

  • “A Virginia federal judge ruled that Covington must hand over the entire client file including notes containing attorneys’ thoughts to Bijan Rafiekian, a former director of the Flynn Intel Group.”

  • “Last month, he subpoenaed Covington for its client file related to the foreign agent registration he’s accused of lying to the firm about, ‘including, but not limited to, notes, memoranda, timesheets, billing records and other documents.’ Covington opposed the demand, saying the material was irrelevant, protected by attorney-client privilege and mingled in a file with non-FARA and non-FIG related work for Flynn. The firm also claimed Rafiekian was not the firm’s client.”

  • “Yes, he is, U.S. District Judge Anthony J. Trenga decided on Tuesday. Judge Trenga pointed to the fact that Flynn and Rafiekian were the only directors and shareholders of FIG. Flynn was CEO and chairman of the two-person board, but the judge said that didn’t give him the sole right to Covington’s work for the company, which Rafiekian says he paid for in part. Instead, the judge said the pair are ‘comparably situated’ within the company under Delaware law.”

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