Finders Keepers? I Don't Think So!

Although legal ethics rules can be counterintuitive, many ethical dilemmas can be resolved by the application of common decency and morality. One basic norm we were taught as early as kindergarten, is that when you find something that does not belong to you and you know its rightful owner, you return the property to that person.

Picture this: Somehow your opposing counsel ends up with your twelve pages of notes of a meeting you and your experts had preparing a defense for your client. Instead of returning to you your attorney work product, your opponent makes copies of your notes, shares them with co-counsel, and uses them to prepare a line of questions to impeach one of your experts at trial.

Does this seem like ethical behavior to you? I hope not. The Supreme Court of California declared this conduct unethical and disqualifed the errant lawyer and his firm in Rico v. Mitsubishi Motors Corp., Cal., No. S123808, 12/13/07.

The appropriate course of action that the plaintiff's lawyer should have taken was explained by the court:

When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.

Exploitive behavior of this type is a recipe for disaster. Perhaps some lawyers need to go back to kindergarten to learn that you simply don't take or use property that does not belong to you.

Waterboarding: Does this look like torture to you?

No, it's not a form of recreation, dude, but a means used by interrogators to extract information from prisoners. The technique of waterboarding involves strapping the person being interrogated on to a board as pints of water are forced into his lungs through a cloth covering his face while the victim's mouth is forced open. Waterboarding's purpose is to simulate drowning and produces the gagging reflex in the subject. This fear of drowning coerces confessions, admissions and information from the subject.

All countries, including the U.S., that are signatories to the United Nations Convention Against Torture and the Universal Declaration of Human Rights have pledged against the use of torture. Numerous experts have declared waterboarding is torture and countries, including the United States, have criminally prosecuted persons charged with employing waterboarding. According to Republican United States Senator and Presidential Candidate John McCain, who was tortured as a prisoner of war in North Vietnam, waterboarding is "torture", "no different than holding a pistol to his head and firing a blank" and can damage the subject's psyche "in ways that may never heal."

It has been reported that U.S. CIA agents used waterboarding to interrogate Guantanamo detainees as part of the War on Terroism. The use of waterboarding to interrogate prisoners has been justified by the Bush Administration because of valuable information the Government has obtained. For example, it has been reported that Khakid Sheikh Mohammed was waterboarded while being interrogated by the CIA. According to the Bush Administration, Khalid Sheikh Mohammed divulged information of tremendous value during his detention. He is said to have helped point the way to the capture of Hambali, the Indonesian terrorist responsible for the 2002 bombings of night clubs in Bali. According to the Bush Administration, he also provided information on an Al Qaeda leader in England.

In view of the reports that the U.S. Government had employed waterboarding as an interrogation technique, more than 100 law professors wrote an open letter ( http://hrw.org/english/docs/2006/04/06/usdom13130.htm ) urging then Attorney General Gonzales to declare that waterboarding is an unlawful form or torture prohibited under international law and the 2006 Defense Authorization Act prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody. The law professors quoted appropriate sections of the law:

The Convention Against Torture prohibits practices that constitute the intentional infliction of “severe pain or suffering, whether physical or mental.” The federal torture statute, 18 U.S.C. § 2340A, similarly prohibits acts outside the United States that are specifically intended to cause “severe physical or mental pain or suffering.”

Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward.

Waterboarding, when used against people captured in the context of war, may also amount to a war crime as defined under the federal war crimes statute 18 U.S.C. § 2441, which criminalizes grave breaches of the Geneva Conventions (in international armed conflicts), and violations of Article 3 common to the four Geneva Conventions (in non-international armed conflicts). Waterboarding is also an assault, and thus violates the federal assault statute, 18 U.S.C. § 113, when it occurs in the “special maritime and territorial jurisdiction of the United States,” a jurisdictional area which includes government installations overseas. In cases involving the U.S. armed forces, waterboarding also amounts to assault, and cruelty and maltreatment under the Uniform Code of Military Justice.

Of course, Alberto Gonzales and others under his direction, counselled the President that captured members of Al Quaeda and the Taliban were outside the scope of the Geneva Convention and other international law governing the treatment of prisoners of war. For a thorough analsis of the "torture memos" issued by the Office of Legal Counsel of the DOJ in 2002 see: http://lawofwar.org/Torture_Memos_analysis.htm

A lawyer has an ethical duty to competently advise a client when the client's actions are illegal, fraudulent or immoral. Certainly the Attorney General owes a duty to declare such conduct inappropriate and to advise the President to direct that such conduct not be employed or tolerated. Gonzales failed to discharge his duty to the client. Michael B. Mukasey, during his confirmation hearings to be the next Attorney General told the Senate that he refused to take a position on whether waterboarding is torture because he did not know enough about it!

This position is astonishing for a federal judge aspires to the next Attorney General and is seemingly not plausible. Torture, and water-boarding in particular, is one of the top issues facing the Justice Department, the subject of numerous lawsuits and one of the most obvious, predictable topics at the hearing. It has been discussed literally thousands of times in the media during the last six years. To say he is unfamiliar with the technique is incredible and disingenous.

On November 9, 2007, Michael B. Mukasey was confirmed to serve as the 81st Attorney General of the United States.

Worst Lawyer TV Ad

EZ Divorce Law--A Florida law firm has posted perhaps the most tacky lawyer ad I have witnessed to date. Check it out on YouTube:

http://youtube.com/watch?v=JXiJQVyLelM

Let me know what you think!!

Be Careful Who You Hire and Supervise Your Staff

Lawyers and law firms cannot be too careful, even if the trusted staff person is a long-term employee with a reputation for competence and integrity. Harvey Latney Jr., the part-time commonwealth’s attorney in Caroline County who maintains a practice in Richmond, discovered that Shelia Mae Boone, his secretary for 27 years, is a crook. She pleaded guilty in November to a federal bank fraud count related to the theft of at least $92,930 from an estate administered by Latney. Boone’s attorney claims that’s all his client took, but an attorney for Latney insists Boone stole about three times that amount from estates administered by Latney and from law firm accounts. An estate is suing Latney for more than $200,000, and he is contending that he can tap a legal malpractice insurance policy with limits of $100,000 per occurrence and $300,000 in total coverage. The insurer, ALPS, maintains that the claim is excluded under the policy.

Some policies, however, do contain an endorsement for fidelity claims arising out of employee theft. In fact, lawyers conducting real estate settlements in Virginia must have coverage for employee defalcation under state law, i.e., the Consumer Real Estate Settlement Practices Act (CRESPA).

Lawyers have an ethical duty under Rule 5.3 of the Rules of Professional Conduct to supervise and monitor the activity of non-lawyer staff in a law office and can be subject to discipline for failing to do so.

Confidentiality of Unsolicted E-Mail Messages

Is an Unsolicited E-Mail From a Prospective Client “Confidential?”

Here is the scenario: You're a lawyer and you have a website with some biographical information and description of the areas of practice in which you engage and the typical legal services you provide. You also post on the web site your e-mail address. A person sends you an e-mail saying that they need a lawyer because they were involved in an automobile accident. They also admit that they were drinking before getting behind the wheel and want advice about the legal issues. You open and read this e-mail, but then realize that you are representing a guest passenger that may have a claim against the driver that sent you the e-mail. Do you have a duty to keep the e-mail confidential or can you share the information with your client? Do you now have a conflict and must terminate the representation of the passenger, because you have received confidential information from the driver that you are ethically prohibited from using? Would it be wise to add a disclaimer or warning on the website that persons should not include confidential information if they send an unsolicited e-mail, or that any information sent via an unsolicited e-mail may not be kept confidential?

A number of state bar associations have issued opinions struggling with these issues. One bar legal ethics opinion holds that in the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an e-mail link on a law firm website must hold the information in confidence, even if the lawyer declines the representation. Massachusetts Bar Opinion 2007-01. The opinion also addresses whether the lawyer’s firm can represent a party adverse to that prospective client. Another bar's legal ethics opinion advises that a lawyer who provides web site visitors a means for electronic communication may effectively disclaim owing a duty of confidentiality to web-site visitors only the lawyer’s disclaimer is in sufficiently plain terms to defeat the visitors’ reasonable belief that the lawyer is consulting confidentially with the visitor. Simply having a visitor agree that an “attorney-client relationship” or “confidential relationship” is not formed would not defeat a visitor’s reasonable understanding that the information submitted to the lawyer on the lawyer’s web site is subject to confidentiality. California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal, Op. 2005-168.

I think it is reasonable to conclude that an unsolicited email sent to you and possibly several other attorneys, asking if you are interested in representing the sender, would not by itself create an attorney-client relationship. In that case, however, would the information contained in the unsolicited email be considered disclosed or released by the sender and not subject to attorney-client confidentiality? I think these are two separate issues and the fact that there is no attorney-client relationship does not answer the question as to whether the information contained in the e-mail must be kept confidential under Rule 1.6. Pre-retention communications by persons seeking a lawyer have typically been regarded as confidential even if no legal representation ensues. As the Preamble to the Rules of Professional Conduct states in pertinent part:

“Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.”

But what conduct on the part of the lawyer demonstrates that he or she has agreed “to considering whether a client-lawyer relationship shall be established?” Is this test met simply by virtue of the lawyer maintaining a web site in which persons may communicate with the lawyer via e-mail? Does a lawyer, by placing his or her phone number in the Yellow Pages Directory “agree to consider whether a client-lawyer relationship shall be established?”

It is well-settled that communications with a lawyer in which a person is seeking that lawyer’s assistance are protected as confidential, even if the lawyer does not agree to represent that person. All that is necessary is that the person has a reasonable expectation of confidentiality in regard to the communication with the lawyer. However, when a lawyer is unaware of the person’s communication, as in the case of an unsolicited e-mail, is the person’s expectation of confidentiality reasonable?

The answer seems self-evident until you consider this scenario. Mayor X calls a law firm and cannot get through to a lawyer so he leaves a message on the firm’s voice mail: “Hello, this is Mayor X and I need an appointment to see a lawyer right away. I just shot and killed my wife!” In this situation, no one in the firm is aware that the City Mayor has communicated with the firm. No one has invited this communication. Yet, most lawyers would conclude that they could not disclose this information outside the law firm and would be subject to bar discipline for doing so. So, perhaps there is a reasonable expectation that this information is confidential. Whether the information is conveyed via e-mail or by telephone makes no difference in the analysis. Both communications would be “unsolicited” but nonetheless treated as confidential. Thus, the analysis turns not on whether the communication was “unsolicited” but whether, under the particular circumstances, there is a reasonable expectation of confidentiality. Moreover, application of this test should be applied liberally in furtherance of the policy that supports privileged and confidential communications—to encourage a person to seek assistance of counsel and instill confidence that their communications will not be used to that person’s disadvantage.

The State Bar of Arizona's Committee on the Rules of Professional Conduct issued a recent opinion (No. 02-04) that addressed this issue directly. The majority of the Committee on the Rules of Professional Conduct determined that the receipt of an unsolicited email by an attorney did not result in an attorney-client relationship. The committee also concluded that the attorney did not have an obligation to maintain client confidentiality based upon the receipt of the unsolicited email and could disclose the information to the existing client.

In finding that a subjective test was applied by the Arizona Supreme Court to determine whether an attorney-client relationship existed, the committee acknowledged that Arizona courts "have considered the following factors: (1) the would-be client sought and received advice/assistance from a lawyer; (2) the nature of the services rendered; (3) the circumstances under which confidences were divulged; (4) the client's reasonable belief that an attorney-client relationship existed; (5) the client's expectation of confidentiality; and (6) payment of a fee (citations omitted)."

After applying these factors, the committee concluded that the limited personal information revealed through the email did not create an attorney-client relationship that would then require the attorney to maintain confidentiality and not disclose the contents of the email to the attorney's existing client. The committee also analyzed whether the attorney had an obligation to maintain confidentiality based upon duties owed by the attorney to a prospective client. The committee noted that the concept of prospective clients and the use of unsolicited email was an area of significant debate. In fact, part of the committee issued a dissenting opinion on this point. The majority opinion noted that further consideration must be given before determining whether an unsolicited email to an attorney would create an attorney-prospective client relationship and the obligations that stem from that relationship. The committee stated:

"If the attorney simply maintains an email address, then declining to extend certain duties of confidentiality to unsolicited email is consistent with the principles explained above. On the other hand, if the attorney maintains a Web site without any express limitations on forming an attorney-client relation, or disclaimers explaining that information provided or received by would-be clients will not be held confidential, the analysis changes. The absence of express disclaimers suggests that the attorney may have implicitly 'agreed to consider' forming a relation. Under these circumstances, duties of confidentiality may arise. Accordingly, the use of appropriate disclaimers with a Web site may be essential to prevent unsolicited email from being treated as confidential."

The dissenting opinion said that the email contact with the lawyer should be treated as confidential communication, based upon the dissenters' view that the unsolicited email declared the individual's intention to seek to retain an attorney, and such contact, in and of itself, should be held confidential because the prospective client intended that information to be kept confidential. The dissenting committee members concluded that the confidentiality rules prohibited the attorney from communicating the information received from a potential client through an unsolicited email to an already existing client, if that information relates to a claim that the potential client may bring against the already-existing client.

The Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York, in Formal Opinion 2001-1, came to a somewhat different conclusion. The Committee on Professional Judicial Ethics held that information provided in good faith by a prospective client to a lawyer through an email that was generated in response to an Internet Web site maintained by the lawyer would not disqualify the lawyer from representing a present client in the same matter; however, the information received in an unsolicited email should be held in confidence by the attorney and not disclosed to a present client unless the Web site adequately warns the prospective client that information transmitted to the lawyer will not be treated as confidential. This committee concluded that the receipt of a unilateral, unsolicited communication by a prospective client did not rise to the level of creating an attorney-client relationship so as to preclude the lawyer from representing a present client in the same matter. The committee, however, had more concerns regarding the ability of the lawyer to disclose the information received from the prospective client through the email. The committee stated its concern as follows:

"Thus, in the situation presented here, we believe that prospective clients who approach lawyers in good faith for the purpose of seeking legal advice should not suffer even if they labor under the misapprehension that information unilaterally sent will be kept confidential. Although such a belief may be ill-conceived or even careless, unless the prospective client is specifically and conspicuously warned not to send such information, the information should not be turned against her. Indeed, we see no reason that the other client should be benefited by the fortuitous circumstances that the lawyer approached by the prospective client turned out to be the same lawyer retained by the adverse party. Nor do we believe that zealous advocacy compels a different result. After all, there are many circumstances where a lawyer comes into possession of an adverse party's information and cannot use it. We recognize that this solution may not be a perfect one, and that there exists the possibility that the prospective client could still suffer at least some residual harm from the transmission of confidential information because the bell cannot be unrung and the lawyer cannot unlearn the information. However, the result is no different from other circumstances where an adversary lawyer gains inadvertent access to privileged information such as inadvertently produced privileged material."

The committee went on to suggest the use of a disclaimer to avoid the issue of disclosing confidential information:

"In this connection, in dealing with law firm Web sites, we note that an adequate disclaimer - one that prominently and specifically warns prospective clients not to send any confidential information in response to the Web site because nothing will necessarily be treated as confidential until the prospective client has spoken to an attorney who has completed a conflicts check would vitiate any attorney-client privilege claim with respect to information transmitted in the face of such a warning. If such a disclaimer is employed, and a prospective client insists on sending confidential information to the firm through the Web site, then no protection would apply to that information and the lawyer would be free to use it as she sees fit (footnotes omitted)."

Lawyers need to be cognizant of the potential ethic issues that can arise when they market and advertise their services, including the possibility of receiving an unsolicited e-mail from a prospective client. While an attorney-client relationship may not be created by the receipt of an unsolicited e-mail, the lawyer may nonetheless be required to keep the information confidential. Whether this duty of confidentiality may conflict the lawyer from representing another party will depend on the state's ethics rules and opinions. So far, the ethics opinions seem to conclude that the lawyer is not disqualified from representing another party merely because he or she received an unsolicited e-mail from a legal adversary.

Stay tuned.

How Do You Define Sex?

Remember President Bill Clinton, the Monica Lewinsky scandal, and his deposition testimony that he did not have sex with her because there was no sexual intercourse? Evidently, the Wisconsin Supreme Court agrees. The bar in Wisconsin brought ethics charges against a lawyer which included allegations of misconduct arising out of the lawyer persuading one client to share his girlfriend in a ménage à trois with the lawyer.

In a per curiam opinion, the court ruled that the lawyer's three-way romp did not violate the rule prohibiting sex “with” clients. Although the client was present when the lawyer had sex with the girlfriend, the court said the language of the rule clearly indicates that the prohibited act must involve intimate touching between a lawyer and a client, not just proximity. There was no evidence that such contact occurred here, it said. The Wisconsin rule required the bar to prove that the lawyer had "sexual relations" with the client. The bar's case was not clear as to the client's role in this sexual trist, so that particular charge of misconduct was dismissed.

However, this lawyer was such a crumb bum, that there were other ethics charges that did stick. Those charges included mismangement of client funds, use of cocaine and marijuana with clients, and having another client videotape the lawyer having sex with the client's girlfriend. Yuck!!

Surprisingly, the lawyer only got a three-year suspension for this highly reprehensible conduct. The case is In re Inglimo, Wis., No. 2005AP718-D, 10/18/07.

Justice Denied

Ali Saleh Kahlah al-Marri has been locked up for more than four years without being charged. Yes, amazing but it is true. Al-Marri — a student at Bradley University in Peoria, Ill. — had faced federal charges of credit card fraud, identity theft, and lying to the FBI in a post-9/11 investigation. But those charges were dismissed after Bush signed a one-page executive order in 2003 that declared al-Marri was an “enemy combatant” who must be imprisoned “to prevent him from aiding al Qaeda in its efforts to attack the United States.” The Justice Department has alleged that al-Marri attended an al-Qaida terrorist training camp in the 1990s, received funding from al-Qaida operatives, and had a laptop computer at his Illinois home that contained technical information about cyanide and other poisonous chemicals.

This week, Al-Marri's lawyers challenged the Bush Administration's terroism policy in court in the United States Court of Appeals for the Fourth Circuit, the most conservative of the Courts of Appeals, which has upheld the Bush Administration's postion in prior matters. Al-Marri's arguments likely fell on deaf ears as Judge J. Harvie Wilkinson III said he didn’t understand “all of the hoopla” surrounding al-Marri’s case, given that only a handful of people in the United States have been declared enemy combatants, unlike the roundup of German citizens during World War I and the large-scale internment of Japanese citizens during World War II. “We’re not talking about a dragnet,” he said. “We’re not talking about a sweep.”

Gregory Garre, principal deputy solicitor general for the Justice Department, told the court that both legal U.S. residents and U.S. citizens could be declared “enemy combatants” by the president and that there was no definite time period required for their release. That statement triggered a skeptical response from Judge M. Blane Michael. “You’re going to keep this man in custody for a lifetime. That’s what it looks like,” Michael said. “You don’t have a traditional war [with a definite ending]. You’re in uncharted territory.”

The Bush Adminstration relies on the Authorization for Use of Military Force, passed by Congress shortly after 9/11, which permits indefinite detentions of enemy combatants because the law gave the president the power to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11] attacks.” The Act would allow the U.S. to detain "enemy combatants" until the cessation of hostilities. Given the nature of the "war on terrorism, Judge Michael may be right that Al-Marri will be detained for the rest of his life!!

Attorney General Gonzales Does Not Use E-mail

The ABA Journal Online reports that US Atty General Gonazales and other top officials like Condolezza Rice do not use e-mail. The article states that White House officials may be concerned because of aggressive prosecutions based upon e-mail. Hmmm. . . . Makes you wonder what they have to hide, especially given the Attorney General's less than candid statements regarding his personal involvement in the firing of the 8 U.S. Attorneys.

You can find the article at http://www.abanet.org/journal/ereport/m30email.html

Well I'm Back

It's been a long time since I posted to this blog. In the interim, my son has joined the Marines and is at boot camp in Paris Island. My daughter is still "E the Intern" at the Saddleback Church in Orange County, CA. My office has finished its move to one floor above our original space.

The ethics issues of the day are as much political as they are ethical. First, is the issue about how the DOJ goes about detaining and trying the prisoners at Guantanamo Bay. We are told that very few of these approximately 285 detainees are actually charged with anything, but many have been in captivity since 2002. Those that are actually charged and to be tried for any offenses have military lawyers appointed to represent them. Two of these military lawyers appointed to defend detainees spoke at the Mid-Year Meeting of the Association for Professional Responsibility Lawyers in February at Miami Beach. They do not have access to the same information the Government has and uses against their client. In fact, the defense lawyers do not have the requisite security clearance to have access to the so-called evidence the Government uses to prosecute their client. The information could be based on second or third-hand hearsay, but there is no way for the defense lawyer to challenge its reliability.

Does this sound like a fair due process hearing? The Bush Administration and the DOJ take the position that the Gitmo detainees are not entitled to the constitutional protections afforded U.S. citizens that are arrested and charged with a crime. The weird irony is that these detainees, most of whom have not been accused of anything, are being held in isolation indefinitely, while persons who have been charged with a crime have more protections even though there is at least probable cause and therefore some evidence that they committted an offense. I am not saying that persons accused of a criminal offense should not have these rights. I am merely saying that persons who are being detained indefinitely without charges pending ought to have some procedural rights.

The second hot issue of the day is the Bush Administration's firing of some 93 United States Attorneys for "underperformance" issues--whatever that means. The extent to which Attorney General Alberto Gonzales and Karl Rove participated in the decisionmaking is unclear at this time. On Tuesday, March 20, the White House is expected to announce whether it will let former White House counsel Harriet Miers, political strategist Karl Rove and other presidential advisers testify before Congress — and whether it will release more documents to lawmakers, including additional e-mails and other items. That decision was to be made on Friday, but the White House asked for more time. The jury is still out on this one, but it will be interested in finding out what truly motivated the dismissals of these prosecutors. Legally, the United States Attorneys serve at the will of the President who holds the power to remove them from office.