Bressler Risk Blog

“Lawyer who secretly changed origination credits to his benefit should be suspended, ethics panel says” —

• “An Illinois lawyer who inadvertently discovered he was able to alter origination credits on his office computer should be suspended for making changes that added more than $200,000 to his book of business, according to an ethics hearing board.”
• “Michael Joseph Shifrin should be suspended for one year for making the unauthorized changes through the law firm’s office management software, according to the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission.”
• “Shifrin made the changes between May 2014 and April 2018 when he was a nonequity partner… The law firm discovered the problem after another lawyer asked why some matters were not reflecting a split in origination credit. Shifrin was fired after first denying then admitting he had made the changes. He later repaid the amount of money he made from the scheme.”
• “In aggravation, Shifrin’s misconduct involved more than 200 acts in which he changed the credits. ‘We saw no indication that he would have ceased his actions had he not been caught,’ the hearing board said.”

“Ex-Willkie Co-Chair Faces Prison After College Scandal Plea” —

• “The former co-chairman of Willkie Farr & Gallagher LLPpleaded guilty to conspiracy and faces the possibility of going to prison after admitting he bribed a consultant with $75,000 to have him rig his daughter’s college board scores.”
• “‘I would like to emphasize that my daughter had absolutely nothing to do with this,’ Caplan told U.S. District Judge Indira Talwani in Boston federal court. ‘This was all mine.'”
• “When federal prosecutors unveiled the sprawling case in March, Caplan came to personify the extent some of the 33 parents charged were willing to cheat to get their kids into elite schools. Another 17 college coaches and test proctors were also charged in what the government said was the largest college-admissions scandal they’ve prosecuted.”
• “‘To be honest, I’m not worried about the moral issue here,’ Caplan, a graduate of Cornell and Fordham Law School, told Singer. ‘I’m worried about the, if she’s caught doing that, she’s finished.'”
• “Both Caplan and Huneeus pleaded guilty to one count of conspiracy to commit mail fraud and honest-services mail fraud. Under the plea deal, prosecutors said they’ll recommend that Caplan serve a term as low as eight months in prison and pay a fine of $40,000. He is scheduled to be sentenced Oct. 3. Huneeus, who will be sentenced Oct. 4, faces 15 months and a $95,000 fine.”

“California lawyer suspended for 30 days for failure to disclose client’s death while continuing to litigate matter” —

• “According to the stipulated facts, ‘Respondent learned of Alfeo Mattei’s death in or about June 2016 after the Court of Appeal remanded the case but failed to inform the court or opposing counsel, as required by Sonoma County Superior Court Local Rule 4.1(A). Local Rule 4.1(A) states “When a party to a case dies, the attorney for that party shall promptly serve and file a notice with the court.'”
• “The lawyer failed to inform the court (or opposing counsel) of the death of Alfeo, even though Alfeo was the only person who could testify about the landlord’s contractual intent since he other landlord (Leann) was not involved in the lease. The lawyer stated that he believed that he could establish intent by legal argument, by cross-examination or by use of an expert. He successfully opposed the tenants’ motion for summary judgment, and a trial was scheduled for April 2017.”
• “On the first day of the trial, opposing counsel asked the lawyer why Alfeo was not on the witness list and the lawyer did not answer… Opposing counsel then conducted an internet search during a break in the proceedings, learned that Alfeo had died, and informed the judge. The judge asked the lawyer if that was true, and the lawyer responded: “He has passed, yes.”. The judge sanctioned the lawyer approximately $31,000.00 for continuing to litigate the case for more than a year without informing the court or the opposing counsel of the death and the judge also reported the order to the California State Bar.”

And now, part two:

“Entire South Florida Firm Removed From Case for Keeping File Meant for Opposing Counsel” —

• “The firm had been removed from the case by a trial court after it failed to disclose to the opposing side that it had received a document sent to it in error. Instead, court records show it got — and kept — a handwritten statement the plaintiff had meant to send his lawyers but accidentally had transmitted to the other side. Plaintiff Kevin McCrea had intended to fax interrogatory answers to his attorneys but inadvertently sent them to the defense in July 2013.”
• “The Shapiro Blasi firm waited years before alerting opposing counsel to the error, according to court documents. Lead counsel for the defense, Stuart Weinstein, filed the appeal following Miami-Dade Circuit Judge Abby Cynamon’s 16-page order against him and his firm, finding Weinstein had not complied with rules of professional conduct.”

“Atty Posted Confidential Info In Face Of DQ Bid, Rival Says” —

• “An attorney representing families of banana farmers accusing Chiquita Brands International Inc. of funding murderous South American paramilitaries is blasting the class’ lead counsel for allegedly posting confidential material in response to his attempts at disqualifying the counsel.”
• “According to Wolf, the confidential deposition was improperly placed into the record earlier this month by lead counsel Terrence P. Collingsworth of International Rights Advocates, whom Wolf says should be disqualified for failing to establish an attorney-client relationship with more than 140 plaintiffs.”
• “Collingsworth on April 10 told the court that he posted the deposition in response to Wolf’s allegations that Collingsworth had bribed witnesses in the case. Collingsworth said the deposition illustrates that Wolf has stateda that he has no personal knowledge of any bribes paid by Collingsworth.”

Some interesting stories to share touching themes of client files, confidential information, and information risk management:

“Ex-Attys Seek To DQ New Counsel Handling $350M Shire Deal” —

• “The former lawyers of a whistleblower who helped reach a $350 million settlement with biotech company Shire over its marketing of a skin product asked a Florida federal court Monday to disqualify two attorneys and their firm for allegedly using stolen confidential emails to cut the former counsel out of a fee award.”
• “In his motion, Darken said Vinca’s current counsel have improperly used confidential emails from Barry A. Cohen PA, who also previously represented Vinca in the whistleblower suit, to challenge the charging lien filed by Darken, Cohen and Saady & Saxe PA for a cut of the attorney fees.”
• “McDonell and Hill have argued that the former counsels’ fee should be reduced because they ‘committed malpractice and malfeasance’ by employing Domenic Massari, a disbarred attorney, as a law clerk in the underlying litigation with Shire.”
  “Vinca claims his former counsel’s failures forced him to share the whistleblower award of the Shire settlement with the five other relators who filed FCA suits after his.”
• “Generally, the first whistleblower to file gets about 20 percent of the government’s recovery and any subsequent whistleblowers do not receive a cut, but in this case, U.S. District Judge James Moody Jr. decided to divvy up the proceeds, in part because of deficiencies in the initial eight-page complaint from Vinca and Sweeney, according to McDonell.”

“Cotchett Pitre Lawyers Deride Apple’s Sanctions Request as ‘Manufactured Controversy‘” —

• “Apple Inc. has sought sanctions against principals Joseph Cotchett and Mark Molumphy for what it claims was their ‘blatant and very serious violation’ of a protective order in lawsuits coordinated before U.S. District Judge Edward Davila of the Northern District of California. Apple proposed removing both lawyers from their appointed posts as co-lead plaintiffs counsel and barring them from viewing confidential documents in the case.”
• “The lawsuits alleged that Apple purposely slowed the speeds of certain iPhones, but Apple has countered that doing so was necessary to prevent the devices from having unexpected shutdowns.”
• “In their sanctions motion, Apple’s lawyers, Theodore Boutrous and Christopher Chorba, of Gibson, Dunn & Crutcher in Los Angeles, accused the Cotchett Pitre lawyers of disclosing ‘highly confidential’ documents, filed as sealed exhibits to their opposition to dismiss, in open court at a March 7 hearing over its renewed motion to dismiss the lawsuits. The documents involved internal discussions among Apple employees about how to respond to issues relating to the problems with iPhone batteries.”
• “Cotchett and Molumphy denied they violated the protective order. In an attached declaration, Cotchett insisted that he told Chorba at the start of the hearing that he planned to read from portions of the sealed exhibits. Chorba did not object but, at the end of the hearing, requested sealing the transcript of the hearing.”

Longtime readers are no doubt aware that I am a huge nerd. (Arguments of whether being in the field of risk itself makes that self evident for us all implied but not stated, less I offend any readers.) Thus titles and topics touching culture consistently catch my eye. And these are no exception.

First: “Buck Rogers Publisher’s Heirs Call IP Settlement A Fraud” —

• “The heirs to the publisher who popularized the sci-fi character Buck Rogers asked a Pennsylvania federal judge on Thursday to revive a case involving a rival family trust, arguing a settlement signed by the woman who claimed to represent their family’s interest was fraudulent.”
• “Robert Flint Dille and Lorraine Dille Williams said U.S. District Court Judge Wendy Beetlestone should set aside the March 4 settlement and dismissal of a case between the Dille Family Trust and the Nowlan Family Trust over the rights to Buck Rogers, claiming trustee Louise Geer had been removed from that role in February and that the attorney representing Geer had been improperly admitted to the case because of a conflict of interest.”
• “‘Louise Geer falsely contends that she was trustee of the trust when she and her husband Dan Herman authorized David Kloss’ retention to secretly and immediately thereafter ‘authorize’ the sale of trust assets to the Nowlan Family Trust in a settlement resulting in a stipulation to voluntarily dismiss on or about February 28, 2019,’ the brief supporting their motion says. ‘Mr. Kloss’s ‘retention’ as well as the ‘settlement’ reported to the court, prompting an ordered judgment by dismissal of this action on March 4, 2019, were all undertaken without the beneficiaries’ knowledge, authority or approval, and were antithetical to their interests. As such, the transaction was fraudulent and without force or effect.'”
• “Geer’s husband also had a conflict of interest and could not properly sponsor out-of-state attorney David Kloss’ appointment to represent the trust in Pennsylvania, the heirs said. Kloss also had a conflict of interest because Herman had represented Kloss’ firm in the bankruptcy action against the trust, the brief said.”

Having almost made it without mentioning Dr. Theopolis, we now turn to a wonderful essay, boldly authored by US General Counsel and Partner at Dentons Edward J. Reich: “Real-Life Lessons For Lawyers From ‘Game Of Thrones.'”

If I were a knight, I would knight him Ser Reich, for such a wonderfully creative and illustrative exercise, which I’ll share some of my favorites from:

• “But then I got to thinking: What if the various hands, maesters, council members and other advisers were attorneys? What possible lessons can these colorful characters impart to real-life lawyers? As it turns out, a great many. Provided that we assume — just for purposes of this article, of course — that the Model Rules of Professional Conduct were adopted by each of the Seven (ahem, Six) Kingdoms.”
• “Lord Varys. From the outset, the Spider claimed to be loyal to the realm, as opposed to any particular monarch. That’s a noble sentiment, but he didn’t quite convey that to any of the various rulers (or would-be rulers) that he purportedly served. Model Rule 1.13 requires a lawyer representing an organization (or, presumably, a realm) to make clear to the organization’s officers and directors (or king/queen) that the lawyer owes duties to the organization, not the individual. And to the extent that a conflict arose between the interests of the monarch and those of the realm (that is, the CEO and the company), then Varys should have disclosed that and possibly withdrawn from his counsel role. That said, when he finally was forced to come clean, you could say he got ‘fired.'”
• “Ser Davos. This guy switches sides faster than you can say valar morghulis. After first serving as Stannis Baratheon’s hand, he joined Jon, then professed loyalty to Daenarys, then ended up on King Bran’s Small Council.From a conflicts standpoint, we’d have to look at Model Rule 1.9 (duties to former clients) to see whether Ser D would land in hot water again (as if his experience with the wildfire wasn’t enough). While it’s hard to say that the successive representations aren’t substantially related, the better argument against a conflict is that there is no adversity (what with Stannis and Dany being defunct and Jon banished to a place beyond the Wall).”
• “Bronn. This guy also has a serious side-switching problem. But unlike Ser D, Bronn dropped his client (Tyrion) like a hot potato when Cersei offered him a wagon full of gold to off Tyrion and Jaime. Most jurisdictions are pretty clear that lawyers can’t get around a Model Rule 1.7 current-client conflict by dropping the client in favor of a more lucrative one. And his “ownership, possessory, security, or other pecuniary interest” in Highgarden came at the point of a crossbow, not with “fair and reasonable” terms and written disclosure about the advisability of getting “independent legal counsel on the transaction” as required by Model Rule 1.8.”
• “Lord Baelish. Model Rule 8.4 defines professional misconduct; Littlefinger just perfected it.”

(Now if only some creative soul out there would draft me a version of this for The Expanse… which I recommend for any GoT fans jonesing for a new show…)

A few weeks ago a lawyer working on a conflicts presentation asked me if it felt like there were more disqualifications in the air these days versus “back then.” I said my sense was that the flow is pretty constant, at least over the past decade. There was a time where firms may have opted to forgo a motion, but today conventional wisdom is that disqualification pursuits for reasons including tactical disruption of opponent efforts are common.

But I wonder what the true picture looks like. Sounds like an opportunity for any enterprising data analysts or scientists out there to dig in. (If you’re out there reading, let’s chat.)

Meanwhile, here are a host of interesting DQ activities I’ve noted in my propriety risk story queue, starting with: “In Huawei Case, Prosecutors Ask Judge to Remove Lead Lawyer” —

• “Federal prosecutors want to disqualify the former deputy attorney general who is defending the Chinese telecommunications giant Huawei Technologies in a bank fraud case because the government believes his previous work for it poses a conflict of interest.”
• “…prosecutors said the attorney, James M. Cole, should not be permitted to represent Huawei because he had been briefed on an undisclosed investigation while serving as a top prosecutor in the Obama administration.”
• “The filing is redacted, making it difficult to ascertain the exact nature of the investigation. But Mr. Cole’s tenure at the Department of Justice — from the end of 2010 to the beginning of 2015 — may have overlapped with the period when federal authorities were gathering information on Huawei and its business dealings.”
• “Mr. Cole is now co-head of the white-collar and investigations practice at the Sidley Austin law firm… The 26-page redacted motion said that Mr. Cole had refused a request to recuse himself, and that his representation of Huawei ‘poses real and irresolvable conflicts of interest.'”

“Four Lewis Brisbois Lawyers Excluded From Bias Case” —

• “Four attorneys with Lewis Brisbois Bisgaard & Smith LLP retained to take over a sex discrimination investigation from the director of human resources at Newman University are barred from defending the school against her whistleblower claims.”
• “The attorneys are disqualified because they possess evidence material to the determination of the claims and defenses in the case brought by the Wichita-based university’s former HR director, Mandy Greenfield, the U.S. District Court for the District of Kansas said May 24.”
• “Newman asserts that the reasons for her firing were discovered during the independent investigation by the law firm, making the lawyers Newman’s only witnesses.”
• Note: Only the lawyers, not the firm were disqualified.

“Pierce Bainbridge DQ’d From Manilow Films Copyright Suit” —

• “A California federal judge on Tuesday disqualified Pierce Bainbridge Beck Price & Hecht LLP from representing a production company suing a management company for Barry Manilow over the copyrights of two films featuring the singer performing, finding the firm has a conflict of interest involving the parties.”
• “U.S. District Judge Dale S. Fischer granted the disqualification bid by intervenor Garry Kief, as Pierce Bainbridge cannot represent the production company, Stiletto Television Inc., in the copyright case while also representing two owners of the company in separate litigation initiated by Kief, according to Tuesday’s order.”
• “Kief argued in his disqualification bid last month that because a California state court has disqualified Pierce Bainbridge from representing Stiletto Television in the separate litigation because the company’s interests are conflicted with that of Grove and Queen, the firm may not represent the production company in this case, according to court documents.”

And, stretching the above reference of a certain musician to conjure an admonition not forget about an influential music producer, here is the latest from Mr. Freivogel, who is always in my reading queue:

• “Chingee v. Canada, 2019 FC 532 (CanLII) (Fed. Ct. Canada May 1, 2019). Lawyer No. 1 did work for Indian Band in the 1980s on a title claim, and in the 1990s on an election dispute regarding interpretation of Indian Band’s election law. Lawyer No. 1 brought this action on behalf of Plaintiff against Indian Band seeking a declaration that Plaintiff is a “Headman” under a certain treaty. Lawyer No. 2 substituted for No. 1 under a notice of change of solicitor. Indian Band moved to disqualify No. 1 and No. 2. In this opinion the court denied the motion. In a fact-intensive analysis the court found that No. 1 did not learn anything confidential and relevant to this case in his earlier representations of Indian Band. It would appear that whatever information possibly relevant to this case held by Indian Band had been public for many years. Thus, No. 1 was not in a position to relay to No. 2 any confidential Indian Band information relevant to this case.”
• “Encore Energy, Inc. v. Morris Ky. Wells, LLC, No. 1:18-CV-00180-GNS-HBB (W.D. Ky. May 7, 2019). In this case Encore seeks a declaration that it is a “financial institution” within the meaning of 15 U.S.C. § 6801. Law Firm appeared for Morris. About seven years ago Law Firm represented Encore regarding enforcement of a covenant not to compete in an employment contract. Encore moved to disqualify Law Firm in this case. In this opinion the court granted the motion. The court said that in the earlier case Law Firm would have to show the nature of Encore’s business in order to establish the scope of the covenant not to compete. Thus, the matters are substantially related.”

“The Limited Engagement Letter and Legal Malpractice” —

• “One hires an attorney to handle a case and expects that the attorney will handle the entire case at a level of good practice to which a competent attorney should adhere. No? Well not necessarily, as Attallah v Milbank, Tweed, Hadley & McCloy, LLP 2019 NY Slip Op 00583 [168 AD3d 1026] January 30, 2019 Appellate Division, Second Department tell us.”
• “‘This engagement does not, however, encompass any form of litigation or, to the extent ethically prohibited in this circumstance, the threat of litigation, to resolve this matter. This engagement will end upon your re-admittance to the College or upon a determination by the attorneys working on this matter that no non-litigation mechanisms are available to assist you. The scope of the engagement may not be expanded orally or by conduct; it may only be expanded by a writing signed by our Director of Public Service.'”
• “The letter of engagement conclusively demonstrated that there was no promise to negotiate. There was only a promise to investigate and consider whether there were any options possibly available to urge the school to reconsider the plaintiff’s expulsion. Anything else, including the defendant’s failure to commence litigation against the school and the defendant’s alleged rendering of legal advice regarding the efficacy of the plaintiff’s commencing a defamation action against others, was outside the scope of the letter of engagement.”
• After various facts played out and an unhappy client sued, said the Court: “‘An attorney may not be held liable for failing to act outside the scope of a retainer (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428 [2007]). Therefore, since the defendant’s alleged failure to negotiate with the school, its alleged failure to commence litigation against the school, and its alleged failure to properly advise the plaintiff on the efficacy of a defamation action against nonschool parties fell outside the scope of the parties’ letter of engagement, dismissal of the cause of action alleging legal malpractice was warranted, pursuant to CPLR 3211 (a) (1), on documentary evidence grounds.'”

“Are Pre-Engagement Lawyer-Client Arbitration Agreements Enforceable?” —

• Hypothetical: “A former client brought a legal malpractice claim against Bob… After he read the state-court complaint, Bob was pleased and even felt a little vindicated because he was certain the court would send the malpractice case to arbitration. Why? Because Bob’s carefully crafted engagement letter attached a document titled ‘Engagement Terms and Policies.'”
• “That document included the following: ‘Any dispute, claim or controversy arising out of any fees, billing practices or this engagement shall be settled by binding arbitration before a single arbitrator in Philadelphia, in an arbitration that ABC Co. administers. The arbitrator’s decision shall be final and binding on the parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.'”
• “American Bar Association Formal Ethics Opinion 02–425 likewise states that ‘mandatory arbitration provisions are proper unless the retainer agreement insulates the lawyer from liability or limits the liability to which she otherwise would be exposed under common or statutory law.'”
• “Courts that have considered whether to enforce a pre-attorney client relationship arbitration agreement, including Mackin Medical v. Lindquist & Vennum, 2018 Phila. Ct. Com. Pl. LEXIS 146 (C.P. Phila. Dec. 26, 2018), have put teeth into Explanatory Comment 14 of Rule 1.8. Not by vaguely pontificating that ‘the client be fully informed of the scope and effect of the arbitration agreement.’ But by identifying the requirements for an agreement that satisfies their concerns.”
• “The result: a detailed road map for an enforceable pre-engagement lawyer-client arbitration agreement, which will allow the prospective client to make an informed decision regarding the proposed representation.”
• That roadmap comprises 11 elements. For that detail, see the full article.

These lawyer lateral movement stories never come as a surprise: “Clifford Chance Paris trio form partnership” —

• “A trio from Clifford Chance have launched their own firm, flagging freedom from conflict of interests associated with larger firms.”
• “The new independent firm will focus on preventing and resolving business-related disputes, through litigation and arbitration, as well as alternative negotiated solutions. Grandjean Avocats aims to provide corporations and their managers value added, highly personal, creative and efficient legal services.”
• “In addition to acting as counsel, all three partners aim to develop their roles as arbitrators and mediators, particularly since they say the size of their firm will enable them to avoid certain conflicts of interest inherent to larger firms.”

And: “2 Blank Rome White-Collar Partners Move to Norton Rose Fulbright” —

• “Two white-collar defense partners from Blank Rome in New York, including the former head of its white-collar and investigations practice, have decamped to Norton Rose Fulbright.”
• “A client conflict played a role in their decision to leave Blank Rome, said the two lateral partners, Carlos Ortiz and Mayling Blanco. Still, they said, Norton Rose’s team of lawyers around the world was the key selling point in their move to the firm.”
• “Ortiz said another ‘significant’ factor in the move was an opportunity to work with a client whose name he would not divulge that would have posed a ‘huge conflict’ at Blank Rome. He said he still had a great deal of respect for his former colleagues but stressed that the opportunities afforded by Norton Rose’s international reach and reputation were the most important factor in his and Blanco’s move.”
• “Grant Palmer, Blank Rome’s managing partner and CEO, wished the departing partners well in a statement. ‘Carlos and Mayling left the firm due to a potential client conflict issue, and we parted ways on excellent terms,” he said. “They are our friends and we look forward to continuing our strong relationship with them moving forward.'”

What’s interesting, but not suprrising, is the increasing focus on lateral due diligence generally across the profession: “In the MeToo Era, Lateral Candidates Are Going Under the Microscope” —

• “When assessing a prospective lateral partner candidate, those in charge of hiring at a law firm tend to consider a few common factors—ongoing work and client relationships and whether the candidate’s personality and approach will fit within the firm’s culture. But these days, in light of the MeToo movement that has called attention to workplace sexual harassment and misconduct, there are a few more questions that hiring partners might want answered before inviting a lateral on board, according to industry experts.”
• “The issues facing law firms in the MeToo era are not just academic. In the recent past, several reports have emerged about lawyers who switched firms, only to be dogged by sexual misconduct allegations soon after.”
• “…it’s unclear how common it is for a lateral hire to leave a new firm in the wake of a harassment or misconduct allegation. According to a recent survey of 50 firms by ALM Intelligence, 8 percent of respondents said that within the past five years they have had a lateral hire leave the firm because of actions the firm thought were unethical. A larger number, 40 percent, said they had lateral hires leave because of ‘behavioral issues’ involving staff or junior lawyers at the firm.“
• “The only way you can diligence this in a lateral context is asking the person if they’ve ever been accused of harassment,” Innocenti [Recruiter] says.
• “Ninety-two percent of firms said they have had a lateral leave within the past five years because he or she failed to bring the expected book of business, while 80 percent of firms pointed to an inability to form new client relationships as an issue that drove away laterals. Seventy-four percent of surveyed firms said they have had laterals leave because of issues fitting in with other partners.”

The folks at Ames & Gough have published their annual “Lawyers Professional Liability Insurers 9th Annual Claims Survey” —

• “In it’s ninth annual survey of lawyers professional liability claims, Ames & Gough examined the trend by polling 11 of the leading lawyers’ professional liability insurance companies that on a combined basis provide insurance to approximately 80 percent of the AmLaw 200 firms.”
• “The survey found the number of claims resulting in larger multimillion dollar payouts – as well as the dollar amounts involved – has surged in the past year; 2018 became the first year ever in which the majority of insurers surveyed had a claim payout of over $150 million. Furthermore, at least two settlements exceeded $250 million.”
• “Conflicts remain the biggest malpractice error. Year after year, the insurers surveyed have singled out conflict of interest (including perceived conflicts) as the most common alleged legal malpractice error. This year, seven of the 11 insurers surveyed cited conflicts either as the first or second leading cause of legal malpractice claims.”
• “Conflicts are especially problematic as more law firms seize opportunities for growth and expansion either through mergers or by bringing in lateral hires. According to the survey, there are times when a lawyer who changed firms can contaminate the new firm with what he or she learned at the old firm.”
• “‘To get control of this risk more firms are centralizing their conflicts of interest screening and managing the client intake process,’ Ms. Garczynski noted. ‘While that’s a step in the right direction, law firms still need to do a better job of flagging potential conflicts early and training their legal professionals on this issue. Firms unsure of how to properly screen a lawyer might consider working with an attorney who specializes in professional responsibility.'”

And for those who prefer to live on the edge: “Washington State Bar Decides Against Malpractice Insurance Mandate” —

• “The Washington State Bar Association’s board recently rejected a recommendation that it require the state’s licensed lawyers to obtain malpractice insurance.”
• “Washington’s decision last week came not long after the State Bar of California’s board also decided against moving forward with a malpractice mandate.”
• “Oregon and Idaho remain the only two states with a malpractice requirement for attorneys.”
• “While some board members agreed with mandate supporters that the percentage of uninsured lawyers was a consumer-protection issue, they suggested there were other ways of addressing the matter. One proposal was to examine the “South Dakota model.” In that state, lawyers who do not carry a minimum of $100,000 in insurance must disclose that information at the formation of the attorney-client relationship.”

It appears these issue are in the air, including in Georgia, where John Watkins from Thomson Hine opines on a proposed rule: “Malpractice Insurance Proposal May Require Changes in Current Insurance” —

• “Proposed Rule 210(a) states: ‘All active members of the State Bar of Georgia engaged in the private practice of law in Georgia must be covered by a policy of professional liability insurance, in an amount no less than $100,000 per occurrence and $300,000 in the aggregate, the limits of which are not reduced by payment of attorney’s fees or claims expenses incurred by the insurer for the investigation, adjustment, defense, or appeal of a claim.'”
• “There are many views pro and con about the State Bar’s proposed rule requiring lawyers have malpractice insurance. But there is a bigger problem with the proposed rule as written—if you have malpractice insurance, it almost certainly does not comply with the proposed rule and you probably cannot buy insurance that does.”
• “Thus if a large law firm has a professional liability policy underwritten by Lloyd’s syndicates on a typical policy form with $100 million per claim/$100 million aggregate policy limits, it would not comply with the proposed rule because the limits are not “per occurrence” and defense costs erode limits. I am quite certain that this is not what the State Bar had in mind when it proposed the rule, but the law firm with the hypothetical policy (and its lawyers) would technically be in breach if the proposed language is adopted.”

A few interesting technology-related risk and compliance stories of note.

I confess I’m personally waiting for the first report of Outside Counsel Guidelines that establish rules preventing any matter discussion within earshot of a smart device (including a phone). I suspect it’s only a matter of time, though my science-fiction forecasting sometimes leans a little dark.

But I’m not the only one thinking along these lines, as stories have surfaced of “accidental” monitoring by big tech (and just the general ethics and implications of the how these are designed and used). For lawyer specific analysis, see: “Lawyers’ Digital Assistants Raise Ethics, Privacy Concerns” —

• “Is my Amazon Echo spying on me? Recent years have witnessed the growth and proliferation of voice-activated virtual assistants like the Echo, Google Home and Apple Home Pod, which have picked up where Apple’s Siri left off: streaming music, scheduling appointments, sending texts, checking weather and preparing grocery lists, all without so much as the flip of a switch.”
• “Amazon’s Alexa, once activated by voice command, digitally records the owner’s instructions, which are then stored in the cloud until erased by future use. This has raised privacy issues, prompting at least one commentator to refer to digital assistants ‘as Trojan horses in the age of digital surveillance.'”
• “But there are ethical concerns for lawyers as well. The ethics rules require lawyers to preserve and maintain the confidentiality of client information, particularly in digital format… The risks associated with transmission of client confidential information electronically include disclosure through hacking or technological inadvertence. A lawyer’s duty of technological competence may include having the requisite technological knowledge to reduce the risk of disclosure of client information through hacking or errors in technology where the practice requires the use of technology to competently represent the client.”
• Attorneys who do use digital assistants may find it prudent to unplug or disable the microphones during client meetings or phone calls, and may seek to restrict their linkage to other sensitive databases. For example, attorneys might decide not to sync up their client databases with their digital assistants. The Amazon Alexa app has privacy functions which permit users to block the transmission of recorded messages to Amazon employees.”
• “One thing is for certain: Lawyers must continue to keep abreast of new developments in professional responsibility in addition to keeping up with evolving technology and the security risks that accompany new technology.”

On another technology note, a few readers noted this development, covered nicely by Karen Rubin: “Military prosecutor sent “bugged” e-mail to defense lawyers, says motion” —

• “But first, how does ‘web-bugging’ work? It involves placing a tiny image with a unique website address on an Internet server, and dropping a link to that image into the bugged e-mail. The image might be invisible or it might be disguised as a part of the document. It works by transmitting specified information to the sending party when the recipient opens the ‘bugged’ document.”
• “Three jurisdictions (Alaska, New York and, most recently, Illinois) have issued opinions pointing to the ethics issues that can arise when lawyers use such tracking devices surreptitiously to get a leg up on an opposing party.”
• “The latest web-bug development comes not in a staid ethics opinion, but in military proceedings in which a Navy lieutenant is charged with conduct unbecoming an officer, with connections to a high-profile war crimes court-martial involving a Navy SEAL and an Islamic State prisoner. The circumstances sound straight out of a thriller.”
• “As reported in the ABA Journal, earlier this month defense lawyers for Lt. Jacob Portier filed a motion accusing a military prosecutor of sending “bugged” e-mails to thirteen lawyers and paralegals, plus a reporter with the Navy Times. According to reporting by the Navy Times, Portier is accused of holding a reenlistment ceremony for a Navy SEAL next to the corpse of an Islamic State prisoner allegedly stabbed to death by the SEAL.”
• “The SEAL has pleaded not guilty to a charge of murder in the stabbing death, which occurred in Iraq in 2017, and the military case has drawn much attention, including from President Donald Trump, said the Navy Times.”

I confess that if you’re reading this by email, and click “download images,” your client will load an image from my mailing list provider, who will generate an aggregate report telling me that folks out there are reading these. (This is recommended and encouraged, as that knowledge is what’s keeping me going here.)

Next, noting Karen’s apt “straight out of a thriller” characterization. See also: “Judge in war crimes case against Navy SEAL weighs dismissal motion” —

• “The judge in the court-martial of a Navy SEAL platoon leader accused of war crimes in Iraq is weighing defense motions to dismiss the charges or otherwise remove the lead prosecutor and possibly the judge himself from the case.”
• “The hearing comes 11 days before Special Operations Chief Edward Gallagher is due to go on trial charged with killing a helpless, wounded Islamic State fighter in his custody and of shooting two unarmed civilians, a schoolgirl and an elderly man.”
• “The defense specifically has accused Navy lawyers of conducting illegal surveillance of defense attorneys and news media by way of electronic tracking software secretly embedded in emails sent to the defense.”
• “In court, prosecutors have said the email “auditing tools” they used were designed merely to detect the flow of emails without revealing their content, and were aimed at pinpointing the source of leaks from case files sealed by the judge.”
• “Timothy Parlatore, a civilian lawyer leading Gallagher’s defense, also said the Navy’s Judge Advocate General’s Office undermined fairness of the proceedings by issuing a statement last week saying the government was acting ‘as part of a lawful, authorized and legitimate investigation.'”
• “The case, being conducted at U.S. Naval Base San Diego, has attracted the attention of President Donald Trump… Trump said he was considering pardons for two or three American servicemen charged with war crimes, but might wait until they stood trial before deciding.”

Continuing our miniseries on judicial conflicts with a hat tip to the Legal Profession Blog for noting a few recent opinions, first from the South Carolina Advisory Committee on Standards of Judicial Conduct: “Docket Clerk’s Relationship Not Imputed To Judge” —

• “A municipal court judge’s docket clerk is in a relationship with a law enforcement officer for the same municipality. The docket clerk is responsible for scheduling cases and documenting events that occur in cases while in open court. The docket clerk is also responsible for case management, including recording final dispositions in Municipal Court cases and following instructions from the municipal judge(s). The docket clerk appears in court regularly and may be present at the same time that the law enforcement officer the clerk is dating appears to prosecute traffic cases. The municipal court judge inquires as to whether he or she must disclose to all parties the relationship between the docket clerk and the law enforcement officer, or if the docket clerk should be recused from handling those cases.”
• “In this case, the judge is not actually involved in a relationship with the law enforcement officer, and there is no cause to question the judge’s impartiality. Furthermore, the docket clerk merely performs ministerial duties regarding case scheduling and management. Thus, there is no need to recuse the docket clerk from cases in which the law enforcement officer appears. Likewise, there is no need for the judge to disclose the relationship of the docket clerk and the law enforcement officer to all parties.”
• Full text of opinion.

Next from the Florida Judicial Ethics Advisory Committee: “A Judge’s (Ap)parent Conflicts” —

• 1. Whether a judge whose lawyer-parent is no longer associated with former law firm must continue recusing from the law firm’s cases. ANSWER: No.
• 2. Whether judge whose parent owns building leased to a law firm must enter automatic recusal when the firm has a case before the judge. ANSWER: Yes, unless the parent’s interest can be classified as de minimis.
• Full text of opinion.