“Ex-Holland & Knight Attorney Improperly Accessed Client File to Gain Upper Hand in Divorce Proceedings, Suit Alleges” —

• “Holland & Knight is being sued in Pennsylvania state court by a client for failing to flag a conflict of interest and safeguard confidential client information after one of the firm’s attorneys improperly accessed a client file to gain an advantage during his personal divorce proceedings.”
• “The suit, filed in Philadelphia’s Court of Common Pleas on Aug. 20, claims that as a result of Holland & Knight’s failure to detect a potential conflict of interest between then-partner Patrick McCabe and a new firm client, McCabe’s soon-to-be-ex-wife’s employer Philadelphia-based personal injury firm Fritz and Bianculli, McCabe and two other firm employees accessed Fritz and Bianculli’s confidential information multiple times from July 2022 to early 2024, violating client confidentiality protections.”
• “Fritz and Bianculli, the plaintiff in the action, alleges that Holland & Knight brought on the firm as a client around the same time as McCabe began his divorce proceedings in March 2022. The suit claims that during the divorce proceedings, McCabe accessed Fritz and Bianculli’s client file despite not being assigned to work on its matters and deduced his wife’s password and login information for her work computer, subsequently beginning to monitor and record communications between his wife and her employer.”
• “‘McCabe admitted such unlawful and unethical access by providing screenshots he took of the laptop during discovery in the divorce proceedings and certifying under oath that he had obtained this information by illegally accessing the Fritz and Bianculli email server,’ the suit alleges, suggesting that McCabe did so in an effort to substantiate his belief that his wife was having an affair with Brian Fritz, a leader at Fritz & Bianculli.”
• “In addition to monitoring Fritz and Bianculli’s confidential communications during his divorce, the suit claims that McCabe began to use information within those communications to harass his wife.”
• “‘on July 19, 2022, over four months after the filing of the divorce action, approached Kristy McCabe after an extended email monitoring session … and there informed Kristy McCabe that he … was going to kill her as a result of his unlawful access to these emails,’ the suit reads.”
• “After McCabe’s wife filed a second temporary restraining order in July 2023, the suit says Holland & Knight flagged the conflict between its representation of Fritz and Bianculli and McCabe, terminating the contract between the two firms and neglecting to inform Fritz and Bianculli of McCabe’s unauthorized file access. “
• “‘There was no explanation why the second restraining order triggered a conflict while the first restraining order did not,’ the suit alleges. ‘Holland and Knight intentionally omitted and failed to disclose that Defendant McCabe had routinely been accessing the confidential files at will[,] … failed to take any precautions to protect the confidential files from Defendant McCabe[,] … [and] failed to take any steps or employ any measures to limit which attorneys and/or staff could gain access to the confidential files.'”
• “After Holland & Knight disclosed the conflict and terminated its relationship with Fritz and Bianculli, the suit claims, McCabe continued to access the file and asked two of his colleagues, Donohue and Berg, to access the file on his behalf as well at the end of 2023 and beginning of 2024.”

“Worried your legal work could contribute to clients’ criminal conduct? New ABA ethics opinion shares guidelines” —

• “What are lawyers’ duties to assess the facts and the circumstances of every client’s or potential client’s situation—to ensure that the representation does not contribute or further the client’s criminal or fraudulent activity? This question is addressed in a new ethics opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility.”
• “Formal Opinion 513, released Friday, centers on Model Rule 1.16(a) of the ABA Model Rules of Professional Conduct. The rule was amended in 2023 because some lawyers were unwittingly involved in clients’ criminal or fraudulent activity or failed to pay appropriate attention to helping clients in activities, such as money laundering and financing terrorist activities.”
• “If a lawyer has ‘actual knowledge’ that their services will further a client’s criminal or fraudulent activity, the lawyer must decline the representation, according to the opinion. Likewise, if the lawyer has knowledge that there is a high probability that their services will further client criminal or fraudulent activity, the lawyer’s conscious and deliberate choice not to inquire and assess further represents the ‘knowing assistance of criminal or fraudulent activity.'”
• “Also, the opinion explains that the lawyer’s investigation must be ‘reasonable,’ rather than ‘perfunctory.’ The lawyer does not have to undertake a ‘dragnet-style operation’ to uncover every single fact about a client, according to the opinion.”
• “In a series of comments, the opinion notes that lawyers’ duties to assess the situation will vary, depending on the situation. Also, it explains that lawyers should follow ‘a risk-based approach,’ which classifies potential risk as either high, medium-high, medium, medium-low or low.”