Risk Update

Confidentiality Concerns — Same-side Mediations Gone Sour, eDiscovery Ethics & More

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).”