Bressler Risk Blog

Certainly seem to be seeing more stories about judges. Starting with: “NY judge resigns after conflict of interest in divorce case” —

• “A respected long-time upstate judge agreed to resign after he was caught dishing out orders from the bench that helped him in a divorce case he was working privately as a lawyer.”
• “New Paltz Justice Jonathan Katz was asked by authorities in late 2017 to sign an arrest warrant and order of protection — against the husband of a woman he was representing in their divorce. But rather than declare a conflict of interest, the part-time justice signed the documents — and continued representing the man’s wife in the contentious split, according to authorities.”
• “The protection order had been made without proving good cause and forced the husband out of the couple’s New Paltz home, a key thing Katz had been fighting for in the divorce, documents show.”

“In Stanford University fraud case, allegations of conflicts of interest and biases by San Francisco Judges” —

• “In ongoing fraud case between technology startup MedWhat and its CEO Arturo Devesa against its investor Stanford-StartX Fund LLC, as well as Stanford University, Stanford General Counsel Debra Zumwalt, and Stanford endowment CEO Robert Wallace, Cross-Complainant Arturo Devesa filed in San Francisco Court an Ex Parte application to recuse and remove part-time Pro Tem Judge Jeff Wohl. Temporary Judge Wohl is assisting full-time Judge Ethan Schulman as a subcontractor in making Motion to Compel recommendations in case.”
• “According to Ex parte application Judge Wohl has serious conflicts of interests in the case with his employer and with Stanford University, questioning his impartiality as a Judge. Mr. Wohl’s is not a full-time judge at the court or appointed by ballot, only a temporary one defined as Pro Tem used by Hon Ethan Schulman. Mr. Wohl’s full-time employer is private equity law firm Paul Hastings which has deep relationships to Cross-Defendant Stanford University and its Trustees, relationship to Stanford University’s Counsel Bahram Seyedin-Noor, financial interests in the proceeding and conflicts of interest in private equity. Upon Wohl’s refusal to remove himself from case given the conflicts of interest, Ex Parte asked Judge Ethan Schulman to recuse his part-time Judge assistant Wohl.”

More context on this drama here.

“How judicial conflicts of interest are denying poor Texans their right to an effective lawyer” —

• “For decades, Texans who can’t afford a lawyer have gotten caught in a criminal justice system that’s crippled by inadequate funding and overloaded attorneys. A growing body of caseload data — and a recent lawsuit — point to an even more fundamental hazard: the unchecked power of Texas judges.”
• “However, the problem goes beyond money. In Texas, the crisis is exacerbated by a key structural flaw: Indigent defense is largely overseen by judges. Contrary to the American Bar Association’s principles of public defense, which call for defense lawyers to be independent of the judiciary, judges in most Texas counties decide which lawyers get cases, how much they are paid and whether their motions — say, to reduce bail or test DNA — have merit. (Counties do have fee schedules for lawyers, but judges set the schedules and retain discretion over payment.)”
• “Given that judges are elected based, in part, on the efficiency of their courts, this is an inherent conflict of interest. ‘Whatever the judge wants to do, it’s probably not acquit your client,’ said Charlie Gerstein, a lawyer for Civil Rights Corps, a Washington, D.C., nonprofit that has spent the past several years challenging criminal justice abuses around the country. ‘The judge wants to move the docket. The judge wants to get reelected.’ (Civil Rights Corps filed the class-action lawsuit against the bail system of Harris County in 2016.) Lawyers trying to work a case properly — by devoting more time or requesting an investigator — face a quandary: Why make the effort if a judge can retaliate by appointing them to fewer cases or cutting their pay?”

For those of you, like your intrepid editor, who did not make it to the land of Disney the other week for the annual ILTA conference, I’m pleased to present several session recordings that caught my that, which those folks have been kind enough to post online.

Client Security Audits: I Get Them All the Time. How Can I Make Responding to Them Easier?

• Client security audits can be overwhelming and time consuming. Join us as we share best practices and methods to help manage client demands and how to leverage your client’s concerns to gain internal buy-in for enforcing optimal security changes in your organization.
• Takeaways:
  • More efficient and effective ways to respond to client audits
  • Learn what clients are really looking for in audits
  • Identify what questions you can say no to in an audit
  • Learn the current trends in client audits

Data Privacy – Everyone’s Getting In On It – Privacy From Europe to California and Beyond

• HIPAA, DFS, GDPR…data privacy regulations keep evolving. The implementation of the California Consumer Privacy Act (CCPA) is next on the horizon. Other states and the federal government are also considering similar laws.
• How will your existing procedures need to be revised in order to comply with the latest regulations? What lessons learned from other data privacy requirements can be applied as you navigate the ever changing landscape?
• Takeaways:
  • What do I have to do to prepare for the future?
  • What has been effective in the past that will help in the future?

Landscape of Information Governance for Small Firms

• As the number of requirements from clients and regulatory agencies increase, the need for an Information Governance program is becoming more important in firms of all sizes. In this session we will discuss how you can develop and implement a program that is right-sized for you.
• Areas of discussion –
  • What is information governance?
  • Who is responsible for managing the availability, usability and security within the firm?
  • Developing a program for managing data
  • How can technology assist?
  • Pain points
  • Managing change within the firm
• Takeaways:
  • Tips and tricks for doing simple things that make a difference
  • How to argue for more resources in this area
  • How to manage with no resources
  • How to convince firm that IG is important
  • How and what can be outsourced here?
  • How do you determine what is required?
  • What are the big firms doing that you can implement?
  • How do you get started?

Hidden Benefits of ISO Certification

• In this session you will learn the hidden benefits of becoming ISO certified. We’ll discuss how becoming ISO certified has helped firms clean up their own internal processes and apply the ISO methodologies to other areas of IT. We’ll also discuss how having the certification has helped firms with client audits and talk to other areas where they have gotten a return on their investment in the certification.
• Takeaways:
  • Improving internal processes/policies
  • Benefits to BD/Marketing
  • Identifying cost-free improvements
  • Return on investment

“California Supreme Court Holds Monster Energy Can Pursue Claim Against Attorney for Breach of Confidentiality in Settlement Agreement” —

• “The California Supreme Court ruled that where an attorney signs a settlement contract under the notation: ‘approved as to form and content,’ and where the terms of the contract repeatedly referenced both the attorney and the parties, it is not unreasonable for a court to find that just like the parties, the attorney is also bound by the terms of the settlement contract. However, the question of whether the attorney intended to be bound by the contract was a question of fact.”
• “Monster then filed suit against Schechter, alleging he breached the terms of the Agreement by speaking about it publicly. The Agreement had a confidentiality clause…The appellate court reversed, holding that an attorney’s signature under the words: ‘approved as to form and content’ does not objectively manifest that attorney’s intent to be bound by the agreement.”
• “The California Supreme Court reversed and found that Monster sufficiently established a probability of prevailing on its breach of contract claim, and Schechter’s anti-SLAPP motion should thus be denied. In reaching its ultimate ruling, the court analyzed whether Schechter was bound by the Agreement.”
• “The court found there was no question the Agreement purported to encompass both the parties to the litigation as well as their counsel, at least with respect to the confidentiality clause.”

“DWF trainee loses unfair dismissal claim over confidential emails” —

• “A trainee solicitor fired by listed law firm DWF for sharing confidential client information with a friend has failed in her unfair dismissal claim before an employment tribunal.”
• “In March 2017, DWF became aware that she had sent two emails to clients without them being checked by a supervisor or more senior colleague, in breach of its supervision policy. The resulting examination of her email account showed she had been sending emails containing client information to Ms Ramsay and to her own private email address.”
• “The material included legal advice which was subject to legal professional privilege; ‘key client news’ updates; a template zero-hours contract produced for a client; and papers relating to litigation with third parties that included their identity and personal medical information.”
• “The tribunal added: ‘She defended her actions by saying her actions were not done deliberately or for anyone’s gain. She argued that no harm had resulted, though conceded… that this was more a matter of luck.'”

“Cokinos Young, Ex-Marketing Director Trade Barbs In IP Row” —

• “A midsize Houston construction law firm and its former marketing director’s fight over allegedly stolen client contacts has escalated, with the former director alleging in Texas state court that the firm has engaged in a ‘frivolous scheme’ to keep her unemployed, and the firm challenging the claim under a free speech law.”
• “O’Brien alleged in her claim on Wednesday that the firm has wrongfully interfered with her employment opportunities. However, the firm said O’Brien’s claim fails under the Texas Citizens Participation Act, an anti-SLAPP law meant to discourage strategic lawsuits against public participation, because it relates to the firm’s right to petition the courts.”
• “On July 26, one day after the law firm filed suit, it obtained a temporary restraining order against O’Brien barring her from using any of the alleged confidential information of its clients and ordering her to return any in her possession. In its motion on Friday, the firm said O’Brien’s countersuit ‘fails to even allege what the tort is that Cokinos Young supposedly committed.'”
• “O’Brien told the court in her suit that she signed a confidentiality agreement when she started working with the firm, but not a noncompete agreement. Near the end of her tenure, she alleges that the firm began pressuring her into signing a noncompete agreement ‘when it realized that she had opportunities to work for different employers.’ She declined to sign the agreement, which she alleges is “so restrictive and intrusive” that she couldn’t trust the firm to ‘treat her fairly and had no further desire to be employed,’ so she resigned. O’Brien alleges that ‘enraged’ firm leaders.”
• “‘She’s suing us because we filed a lawsuit,” White [firm’s lawyer] said. ‘It’s pretty straightforward. … This is not a situation where an employer has decided to go after someone, we just want to make sure our information stays protected.'”

A few updates of note on the always-urgent topic of Outside Counsel Guidelines (OCG) and compliance challenges. This time perspectives from a few vendors and industry associations.

First, published in the latest ILTA Peer to Peer Magazine (via FileTrail): “Outside Counsel Guidelines & Client Retention Requirements:The Information Governance Opportunity” —

• “High-profile security breaches and tougher laws and regulations governing data protection and data privacy have led to heightened client awareness of the risks associated with poorly managed information. Law firms now face more client scrutiny of their information governance policies and procedures than ever before. RFPs from clients and prospects are requiring detailed information on how firms manage and apply IG, while clients’ outside counsel guidelines are making very specific demands regarding records retention.”
• “Audits to assess how firms are enforcing these requirements are also happening more frequently, causing a significant strain on internal resources. Clients requesting copies of their files can also cause a significant strain on firm resources, particularly if the firm does not have the right systems and processes in place to quickly gather and review the relevant records prior to release back to the client.”
• “Is your firm making the most of technology to manage client-specific IG and retention requirements? The challenge that most firms now face is significant, particularly if their own IG policies and programs need to be brought up to date.”
• “We’ll review some of the best practices which information governance and records management leaders have raised during a recent series of strategic briefings and discussions across the U.S.”
• “Download the full article published in the Summer 2019 issue of ILTA’s Peer to Peer magazine“

Next, the ALA has kicked off an interesting exercise: “New Survey to Examine Outside Counsel Guidelines From the Firm Perspective” —

• “The goal of outside counsel guidelines is to make the corporate/law firm transaction process more transparent and efficient. And their use is only growing—Altman Weil’s 2018 Chief Legal Officer survey found that 79% of legal departments provide guidelines for billing, expenses, matter staffing and matter management, and 66% are actively enforcing those guidelines.”
• “But are OCGs actually effective? Corporate legal department surveys seem to think so, but one new survey is hoping to receive more answers from the opposite side of the equation.”
• “The survey looks to help bridge that gap between corporate expectations and reality for law firms, providing figures on OCGs by practice area, firms’ level of compliance, partner/lawyer involvement in OCG compliance, and more.”
• “That makes standardization potentially a pipe dream for OCGs as long as this competition exists. But understanding in the form of a survey could be a first step towards at least some optimization of the process. And that could mean cost savings for law firms when they realize what’s at stake with non-compliance.”

Statistically, it looks like many are particularly interested in the latest developments tied to the Varsity Blues matter. So, here’s the latest: “Judge says Loughlin, husband can stick with their law firm” —

• “Actress Lori Loughlin and her fashion designer husband, Mossimo Giannulli, will be able to continue using a law firm that recently represented the University of Southern California, which is an alleged victim in the sweeping college admissions bribery case, a federal judge allowed Tuesday.”
  “But Magistrate Judge M. Page Kelley declined to rule on a different potential conflict of interest in the couple’s legal representation and said she would decide later, calling it more serious.”
• “The couple are accused of paying $500,000 to have their two daughters labeled as recruits to the USC crew team, even though neither participated in the sport. They have pleaded not guilty to charges of conspiracy to commit fraud and money laundering.”
• “Lawyers for the Los Angeles-based Latham & Watkins law firm, which Loughlin and Giannulli have retained for representation, said Tuesday that it represented USC in an unrelated real estate case that had been handled by different lawyers. Prosecutors had argued that retaining the firm could pose a serious conflict, especially if the firm’s lawyers questioned USC officials at trial or gathered information from the university during the case’s discovery phase.”
• “But in court Tuesday, Assistant U.S. Attorney Eric Rosen acknowledged that USC, as of this month, was no longer a client. Instead, he argued, there is a potentially greater conflict with Giannulli’s additional counsel from the firm Donnelly, Conroy & Gelhaar.”
• “The firm represents Davina Isackson, who, along with her husband, California real estate developer Bruce Isackson, has pleaded guilty to paying $600,000 in shares of stock to get their daughters into USC and the University of California Los Angeles.”
• “Judge Kelley said she would decide later on that potential conflict, a type that is ‘typically considered to be the most serious… This is the situation where judges most often remove lawyers from cases, if they are representing someone who is cooperating against another person,’ Kelley told Giannulli.”

“DQ’d Lawyers Must Pay PNC’s Atty Fees In Foreclosure Fight” —

• “A Florida federal judge has ordered two attorneys who were disqualified from representing homeowners in a foreclosure dispute to pay legal fees and costs to PNC Bank, after the lawyers used privileged information in an amended complaint they filed in the case.”
• “A May 2018 discovery production of documents from PNC in the federal suit inadvertently included an unredacted copy of the bank’s loan activity notes. As soon as he received this, Newhart alerted PNC’s counsel and said there may have been an inadvertent disclosure, according to a report by U.S. Magistrate Judge Daniel C. Irick.”
• “PNC asked Newhart to destroy the documents, but he refused and asserted any privilege had been waived through inadvertent disclosure. He did, however, promise to sequester the notes while he took up the issue with the court, according to the magistrate.”

“Conflict of interest? Questions persist about law firm working for both city and SNC-Lavalin” —

• “Questions about the relationship between an outside lawyer hired by the city and SNC-Lavalin has stirred up questions of conflict of interest. Norton Rose Fulbright, the law firm that advised the city on its LRT Stage 2 project, is the same firm that advises the controversial engineering giant that eventually won the $1.6-billion contract. Geoffrey Gilbert, a procurement and commercial law expert with the firm, wouldn’t disclose details about the bid scoring to council at a March 6 council meeting — even if council went into a closed session —because of confidentiality provisions of the Stage 2 procurement process.”
• “The matter raised questions for Somerset Coun. Catherine McKenney, who asked why a legal firm that represented the city and had also represented SNC-Lavalin was denying councillors information they were seeking. On Thursday, she said there should be a public declaration of a conflict of interest.”
• “In a statement to this newspaper this week, O-Train construction director Michael Morgan said Norton Rose Fulbright won the Stage 2 legal contract after a competitive process in 2016. The law firm had to disclose actual or potential conflicts of interest and was cleared by the independent fairness commissioner, he said. The city was ‘fully aware’ Norton Rose Fulbright had advised other private organizations, including SNC, on unrelated matters. It didn’t create a conflict of interest in the Stage 2 procurement, Morgan said.”

“Courts, Lawyers Must Address AI Ethics, ABA Proposal Says” —

• “Courts and lawyers should address emerging ethical and legal issues related to the use of Artificial Intelligence, a resolution up for a vote at the American Bar Association’s annual meeting proposes.”
• “The legal profession is known to be resistant to change, and it’s been slower than other industries to embrace modernization through legal technologies. But tech experts say lawyers’ lack of fundamental understanding of them will soon put them at a disadvantage if they don’t change their ways.”
• “If it’s adopted, the science and technology law section hopes to establish a working group to define guidelines for legal and ethical AI usage and to develop a model standard it would submit for adoption at a future ABA House of Delegate’s meeting.”
• “AI tools, for example, can be used by law firms to assist in legal research, trim document review time, and help revise contracts.”
• “Another point the resolution raises is that legal AI should be “audited and auditable,’ which speaks to its transparency and trustworthiness, Economou said. Nelson concurred that lawyers need to know more about the AI they’re using. Every AI is different, so we should be asking what data was used to develop it and by whom, she said.”

(I for one welcome our AI overlords, and meeting and besting the inevitable risk blogging bot in a fair Turing Tussle. I hear word the conflicts-clearing singularity may be nigh for that matter… Daisy, daisy…)

But before the we all start learning the three laws, we may first encounter rules about humans doing more in the legal profession: “Bloomberg Law: California reportedly “inundated” with negative comments regarding proposed new rules on who can practice law, while getting support at a public hearing for those that allow sharing fees with non lawyers” —

• “…according to a report in Bloomberg Law, ‘[t]he State Bar of California has been inundated with more than 400 comments in response to a series of sweeping proposed rule changes that include allowing nonlawyers to share in law firm profits and provide legal advice.’ More than 100 comments were filed to the bar in the first 24 hours after the group issued notice that the comment period had begun.”
• “Again, according to the story, the individual rule change that has received the most comments is the one that would authorize nonlawyers, with appropriate regulations in place, to provide certain types of legal advice and services. The new approach, suggested in order to provide access to legal services in areas of “critical need,” including evictions, and domestic violence and immigration cases, would provide an exemption to the rules banning unauthorized practice of law. As of Aug. 5, the state bar had received 12 comments in support of the proposal, but more than ten times that number against it.”

Of course some are enthusiastic: “Changing Ethics Rules Is Key To Law Firm Innovation” —

• “Innovation requires a clear vision, access to capital and world-class technology talent. These three ingredients are readily available around the U.S., but are largely inaccessible to law firms due to outdated, protectionist policies that prevent nonlawyers from being firm members, and from investing in law firms.”
• “Additionally, these policies are based on unproven, outdated concerns that restricting investment in and ownership of legal services to lawyers is necessary for client protection. There is not now, nor has there ever been, any data to support these policies. Indeed, the experience of law firms in the District of Columbia, where a change in the ethics rules in 1990 permitted nonlawyers to work and invest in law firms — including having ownership interests — demonstrates that the restrictions are not necessary.”
• “Technology is coming to the legal industry in a big way, and it is coming whether some in the legal community like it or not. The California bar task force recognizes that entrepreneurial lawyers should be the ones leading innovation. This can only occur when law firms have access to capital and access to talent.”
• “For some reason, lawyers like to think we’re different. That we’re above it all. We’re not, and if we don’t have the resources necessary to build technology — access to capital being number one — our industry will be changed by nonlawyers and/or foreign law firms in ways that we cannot control.”
• “In order to attract top technology talent into the legal space, law firms will have to offer them the same thing that Amazon, Uber, Netflix and Airbnb did: an equity stake.”

And on the ethics front, this one also caught my eye, for those interested in the professional rules about advertising and marketing: “N.J. Legal Ethics Panel Tackles What’s Off Limits for Search Engine Marketing” —

• “The Supreme Court’s Advisory Committee on Professional Ethics said in an opinion made public Tuesday that a lawyer may purchase a sponsored search keyword on a competing lawyer’s name. That would show the purchaser’s own law firm website in the results when a person types the competitor’s name in a search engine.”
• “However, the committee drew the line at another form of sponsored search marketing in which the lawyer pays to insert a hyperlink to his own website on the name of a competing lawyer. That would mean someone who clicked on the competitor’s name in a search result would be diverted to the purchaser’s website instead.”
• “The first practice is not fraudulent, deceptive or dishonest and is not prejudicial to the administration of justice, the committee said. But the second practice is ‘purposeful conduct intended to deceive the searcher for the other lawyer’s website,’ the committee said.”

“REV Group Can’t DQ Fund, Attys For Strategic Litigating” —

• “A federal judge has denied REV Group Inc.’s attempt to disqualify a pension fund and its counsel for allegedly colluding with counsel in a related state court stock-drop case against the specialty vehicle manufacturer, saying that dropping certain securities claims was a reasonable strategic move.”
• “U.S. District Judge Lynn Adelman ruled Wednesday that the Houston Municipal Employees Pension System and its lead counsel, Bernstein Liebhard LLP, can’t be disqualified for amending their consolidated investorsuit to drop Securities Act of 1933 violation claims so they could play out in a parallel state court action.”
• “‘Plaintiff’s amendment of the complaint can quite reasonably be characterized as a strategic choice undertaken in the best interest of the class, with the risk that some class members might pay litigation expenses in two separate actions outweighed, to plaintiff’s mind, by the increased likelihood of recovery,’ Judge Adelman wrote.”
• “The pension fund’s attorneys told Judge Adelman in April that their litigation strategy is ‘absolutely in the best interest of the Securities Act plaintiffs” and only strengthens the complaint. While the tactic may be a blow to REV’s defense strategy, it is nonetheless the fund’s right to voluntarily dismiss a claim with no explanation so long as it will benefit the Securities Act plaintiffs and doesn’t waste any court resources, the pension fund said.”

And via Bill Freivogel:

• “City of Fresno v. United States, 2019 WL 2536106 (Fed. Ct. Cl. June 19, 2019). This is a suit by a group of water users (“Group 1”) against the U.S. over Group 1’s entitlement to water. Another group of users (“Group 2″) moved to intervene to take positions adverse to Group 1. Law Firm represents Group 2. Group 1 moved to disqualify Law Firm because Law Firm currently represents a member of Group 1 on matters unrelated to this case, and because Law Firm formerly represented members of Group 1 on water allocation issues.”
• “In this opinion the court denied the motion because of Group 1’s delay in making the motion. This suit started in October 2016. Law Firm filed Group 2’s motion to intervene in May 2017. Group 1 began demanding that Law Firm withdraw in August 2018 and filed the motion to disqualify that month. Law Firm started appearing for Group 2 adverse to Group 1 on water allocation matters as early as 2014. Given all this, the court ruled that Group 1 simply waited too long to bring their motion. The court did discuss the current client and alleged former client conflicts, presumably to establish that no harm resulted from them. The court also discussed Law Firm’s long-time (and expensive) representation of Group 2, including the expertise on water allocation matters Law Firm developed during that representation.”

Recently published by ILTA, conflicts insights from risk consultants InOutsource: “Rethinking Conflicts — Leveraging Risk Management Insights Within the Firm” —

• “Over the past four years, we’ve seen a seismic shift in conflicts management, as firms migrate from legacy systems. The 2018 ILTA Technology Survey found that adoption of modern conflicts management solutions had grown by 50% year over year and by 650% over the previous three years.”
• “Even as firms embrace advanced conflicts software, they have been much slower to adapt their staffing approach and processes to a more centralized conflicts clearance model, exposing them to unnecessary risks and inefficiencies. There are many reasons for this organizational stasis, including challenges in making the business case to lawyers who may be reluctant to change the way the firm clears conflicts.”
• “In this article, we’ll explore several ways that firms can advance their transition to a more robust, more efficient, centralized model for intake and conflicts.”

And for those looking for more insight from them on the laterals front, see also this article they published via the ABA: “Leveraging Technical and Process Solutions to Bring Order to Lateral Attorney Vetting”

“Lawyer suspended for disclosing client info in ‘vindictive’ bid to collect fees” —

• “The Ohio Supreme Court has suspended a lawyer for threatening to disclose confidential information in a bid to collect a fee and then carrying out the threat.”
• “The nature of Shimko’s conduct was ‘unreasonable and vindictive,’ said the court, which rejected a recommendation for a lesser, two-year suspension.”
• “The court found that Shimko violated a disciplinary rule that generally bars lawyers from using information relating to the representation of a former client to the disadvantage of the former client.”
• “…he anticipated his total bill for reviewing the policies, preparing the engineer and representing him at the examination would be somewhere in the range of $2,300. After Shimko completed the work, he sent the engineer a bill for $4,350. The engineer informed Shimko he would pay only $3,300 in $500 monthly installments, then did as he said. Shimko sued for the rest of the fees.”
• “When the engineer’s new lawyer asked Shimko to drop the complaint, Shimko responded that the engineer had made false statements under oath that he had not worked or conducted business on the premises before they were destroyed by fire.”
• “Shimko had told the engineer he wouldn’t be charged for an initial telephone conference, yet he billed him $154 for the call. At his disciplinary hearing, Shimko testified, ‘My word is my bond until I change it, I guess.'”

“Does Mediation Confidentiality Protect Communications Between Two Parties on the Same Side of the Table?” —

• “The Ninth Circuit held last week that mediation-related communications between two parties on the same side of the table are inadmissible under California’s mediation confidentiality statute in subsequent litigation between those two parties. Apollo Education Group, Inc. v. National Union Fire Ins. Co., 2019 WL 3822322 (9th Cir. Aug. 15, 2019).”
• “Before trial, citing California’s mediation confidentiality statute, the defendant law firm sought to exclude all evidence of their discussions with the plaintiff immediately preceding, and during, the mediation concerning mediation settlement strategies, and defendants’ efforts to persuade the plaintiff to reach a settlement in the mediation. The trial court granted the motion, but the Court of Appeal vacated the trial court’s order on the ground that California’s mediation confidentiality statute is intended to prevent the damaging use against a mediation party of positions taken during the mediation, but not to protect attorneys participating in the mediation from the malpractice claims of their own clients.”
• “On further appeal, the California Supreme Court reversed, holding that while it understood the policy concerns of the appellate court with compromising the plaintiff’s ability to prove his legal malpractice claim, the plain language of the mediation confidentiality statute — rendering inadmissible “evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation” — was not confined to communications between mediation disputants, but also protected communications between the plaintiff and his attorneys, even if these did not occur in the presence of the mediator or the other parties.”

“Ethics Violations and the Rise of eDiscovery Technology” —

• “Given the readily available technology that greatly increases security of client data, eDiscovery review technology that substantially reduces overall review time and costs by surfacing up more relevant data faster, and the general availability of free eDiscovery education and resources, the question becomes whether a lawyer may be brought up on ethics violations or potentially face malpractice charges for intentionally or negligently (by virtue of her ignorance) failing to employ the appropriate technology?”
• “In other words, irrespective of the expertise that may be required in a matter, if the lawyer is not keeping up with the “benefits and risks” associated with ‘relevant technology’ in eDiscovery, then she may not be considered competent in that particular matter. The addition of these highly probative phrases were added in 2012. Interestingly enough, since 2012, 36 states in the country have modified their own state’s ethics rules to include the same or substantially same verbiage.”
• “Given the advancements in technology as a result of the sheer volume of data that is being created today, it is imperative that every lawyer either understand the basics of cybsersecurity and eDiscovery technology or work with another lawyer to ensure compliance within the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE) (or her particular states’ analogous laws).”