Ethics Speed Round

March 29, 2017

Even the most seasoned lawyers need to review their basics once in a while. In a fun quiz format, this panel provided an opportunity to brush up on traditional ethics rules, emerging challenges in the era of digital communications, and basic attorney/client privileges.

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Question 1: Can I put logos of awards I’ve personally received in the footer of my emails, e.g., Super Lawyer 2017?

A. Yes
B. No
C. It depends

The Answer: It depends

In most states, logos are permitted at the footer. But in some states, like New Jersey, the logos would be considered advertising on their own, and a conspicuous disclosure would be required. If you use more than one logo, you’ll need to disclose each one.

Question 2: One of my current clients is ABC Hotels. I would like to take on another client: XYZ Hotels, ABC’s competitor. Is there a conflict?

A. Yes
B. No
C. Maybe

The Answer: Maybe

Economic adversity doesn’t automatically mean legal adversity, but there could be a material limitation. Look under the American Bar Association (ABA) Model Rule 1.7; your law firm may have confidential information that may affect your ability to represent both equally.

Question 3: If ABC consents to my representation of XYZ and waives the risk of conflicts, can ABC later sue me based on a conflict of interest claim?

A. Yes
B. No
C. It depends

The Answer: It depends

The waiver doesn’t automatically shield you from liability; it depends on what the waiver said. If it wasn’t adequate or wasn’t specific enough, or didn’t have conspicuous terms, it could be an issue.

Question 4: What steps should a law firm or legal department take to avoid the imputation of conflicts from a new lawyer to other lawyers in the firm or department?

A. Timely screen the new lawyer.
B. Avoid sharing any fee from the matter with the new lawyer.
C. Notify the former client and obtain its consent in writing.
D. All of the above.

The Answer: All of the above.

You need to screen the lawyer in a timely fashion, avoid sharing fees, notify the former client, and obtain consent in writing. ABA Model Rule 1.10 sets up the process to ensure that potential conflicts are avoided so they are not imputed to the new firm.

Question 5: The client in the attorney/client relationship is the party who owns the attorney/client privilege. Which of the following situations waives the privilege?

A. Client emails attorney information pertaining to a legal matter; however, client sends the email to the wrong address.
B. Client posts detailed information about contract negotiations on various social media platforms.
C. Client and attorney are in a conference call with opposing counsel, but client forgets to mute the line prior to asking attorney about a legal document not shared with opposing counsel.

The Answer: Client posts detailed information about contract negotiations on various social media platforms.

To keep the privilege, attorney/client communications must be confidential. This means they can’t be purposely be communicated to parties outside of the attorney/client communications. Posting information on social media is a way to waive the privilege. Other ways include forwarding to a third party (agency, family members, etc.) or asking for advice online.

Question 6: Which of the following is a question protected by the attorney/client privilege?

A. “Does the language in this ad comply with the FTC Act?”
B. “Do you think this ad campaign will work?”
C. “Should we fire Charlie?”

The Answer: “Does the language in this ad comply with the FTC Act?”

Attorney/client privilege protects confidential information, but only information about purely legal issues. If you’re giving an opinion, that’s not privileged.

Question 7: Which of the following questions is NOT protected by the attorney/client privilege?

A. “Do we need to include a privacy policy on our website?”
B. “Is the language in this flyer defamatory?”
C. “Do you have any suggestions to increase our market share?”

The Answer: “Do you have any suggestions to increase our market share?”

Many communications, including those made in social settings, do not relate to legal advice but to business or personal decisions. It would not be privileged.

Question 8: Client asks Lawyer to leak information about a new ad campaign to the press. Lawyer does so. Lawyer is later confronted by a reporter who asks: “Did Client ask you to leak that information?” Lawyer refuses to answer, claiming duty of confidentiality. Is Lawyer correct?

A. Yes
B. No
C. Maybe

The Answer: Yes

The lawyer has abided by confidentiality as defined in the ABA Model Rule 1.6, which states the lawyer may not reveal information related to the representation of the client unless the client has allowed it.

Question 9: Outside of work, Lawyer maintains a public Facebook page called “The ABCs of Ad Law.” Lawyer regularly posts about recent deals and cases, containing specific information about the matters and harsh criticisms of some of the parties. Has Lawyer violated the ABA Model Rule 1.6 duty of confidentiality?

A. Yes
B. No
C. Maybe

The Answer: Yes

ABA Model Rule 1.6c requires a lawyer to make reasonable efforts to avoid inadvertent or unauthorized disclosures of information. This post is not a reasonable effort. This rule was developed with social media in mind.

Question 10: Is my LinkedIn profile attorney advertising?

A. Yes
B. No
C. Maybe

The Answer: Maybe

It may depend on your state bar association. Some states may limit profiles to information education and employment history; other states allow lawyers to post more information without any advertising compliance. ABA Model Rules are modest in restrictions, but some states like Texas or Florida are stricter in approach. The state of New York will look at the primary purpose of the LinkedIn profile.

Question 11: I often contribute articles to a reputable legal news service. Can I include the words “expert” or “specialist” under my name in my author profile?

A. Yes
B. No
C. Maybe

The Answer: No

Unless you are certified as an expert in a particular area of law (there are some states you can get certification), it should be avoided. Even if you do have a certification, there may be jurisdictional rules that apply. For example, South Carolina permits claiming certifications, but you need to make sure you police the comments.

Question 12: Which of the following statements, if posted on a social media platform, could be improper attorney advertising?

A. “We won! Unanimous verdict, too! Happy happy, joy joy!”
B. “Just closed a million dollar deal! Spread the news. Head to www.JaneDoeLaw.com”
C. “New article posted! Go check it out!”

The Answer: “Just closed a million-dollar deal! Spread the news. Head to www.JaneDoeLaw.com”

This could constitute attorney advertising because it encourages reader to go to a website and improperly suggests that the attorney can close a million-dollar deal for all clients.

Question 13: A former client posts a glowing review of my firm, who represented her in a recent case, on our law firm Facebook page. Her review, while appreciated, contains a lot of language encouraging others to come to us for their legal needs. Is her post improper attorney advertising?

A. Yes
B. No
C. It depends

The Answer: It depends

Lawyers may not prompt others to post or use others to circumvent advertising ethics rules. The state of New York requires attorneys to monitor social media posts. Generally, as long as it complies with ethics rules, you should be okay. But when in doubt, remove the post.

Question 14: I intend to report my supervising attorney to disciplinary authorities for serious misrepresentations that he made during a recent matter. To make my case, I may have to reveal details about the matter. Am I required to get the client’s permission before reporting?

A. Yes
B. No
C. Maybe

The Answer: Yes

Generally, if information would be considered confidential under ABA Model Rule 1.6, the lawyer has to get client consent before sharing that information, even with a disciplinary tribunal.

Question 15: I am leaving my current firm to start my own private practice. Am I allowed to use the firm’s client lists to obtain financiers for my new practice?

A. Yes
B. No
C. Maybe

The Answer: Maybe

In some situations, the lawyer could obtain financing from clients, but only from those who are going to be leaving with that lawyer. ABA Model Rules 1.4 and 1.6 give the clients the ultimate choice if they are going to leave with a lawyer or stay with the current firm.

Question 16: My firm’s website includes a link that allows visitors to directly email attorneys at the firm. Is the firm required to include a warning or disclaimer concerning the confidentiality of the information that visitors send through the link?

A. Yes
B. No
C. Maybe

The Answer: Maybe

It depends on the technology that you put in place, where the link leads to, and where the mail is deposited. Does it go to the same mailbox as your public email? Do you have proper security measures around it? Make sure your IT folks understand the rules of disclosure (and inadvertent disclosure).


Q&A with Douglas J. Wood, Partner at Reed Smith LLP


Q. Is it the attorney’s duty to make sure the claims in reviews are true?

A. The rules about reviews are trying to prevent clients reading the review as an endorsement of you that leads them to contact you. I don’t think that the rules expect each attorney to police every person on that and constantly scrub the internet for comments. But if you are aware of an endorsement online and do nothing about it, it could be a more complicated issue.

Additional Materials for CLE Credit
Source

"Ethics Speed Round." Douglas J. Wood, Partner at Reed Smith LLP; Heidi Baltes-Braniff, Corporate Counsel at InterContinental Hotels Group; Mary Carragher, Chief Counsel of Trademarks at Mondelēz International, Inc.; Jennifer Magyar, Director of Global Contracts and Advertising at Subway. 2017 ANA Advertising Law and Public Policy Conference, 3/29/17.

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