“The Rise and Decline: Understanding and Effectuating Your Ethical Responsibilities In The Advent of Technological Advancements”

  1. Current Trends
  1. Clients are now using letters from their attorneys as “weapons” to negotiate with the opposing side without the assistance of their attorneys.
  1. This will generally void the privilege.
  2. Recommendation: in the first paragraph of communications to clients, tell them not to disclose.[1]
  1. Client communications containing both legal advice and advice related to business operations may not be privileged.
  1. Recommendation: keep communications regarding business advice and legal advice separate, and label the communications containing legal advice accordingly.[2]
  1. Distinguish between decision making and legal advice
  1. Corporate decision making is not privileged. Legal advice concerning corporate decision making is privileged.
  2. Interpretations of corporate policy is not privileged. Legal advice on the legal requirements for corporate policy is privileged.
  1. Clients assume copying an attorney on an email/communication makes the communication privileged – in most states, copying the attorney does not make the communication privileged. **Especially in the In-House counsel context – sending intra-office communications and CCing in-house counsel does not make the communications privileged.
  1. This applies to both in-house and outside counsel.
  2. Simply marking the communication as privileged does not necessarily make it privileged. It typically must contain the attorney’s impression of potential or ongoing litigation or legal advice/strategy. [3]
  1. Failure to properly maintain confidentiality of documents when using a cloud to store documents can void the attorney-client privilege.
  1. Recommendation: create a separate Cloud for storing attorney-client privileged materials and ensure the Cloud provider has adequate security measures in place.[4]
  1. Where reliance on a third party server located in a different state may have been ethically unreasonable in the past, it may today be viewed as more reasonable than hard-file storage that is more vulnerable to physical attack and natural disaster.[5]
  1. Availability of electronically stored information should be ensured.
  1. Recommendations:
  1. maintain electronic storage in more than one place
  2. verify viability of electronic storage vendor
  3. verify/negotiate cost of storage and vendor remedies in the event of nonpayment – ensure date retrieval upon termination of the vendor and that vendor does not retain rights to data
  4. require vendor to notify of unauthorized access to data[6]
  1. Prevent interception of emails when information is highly sensitive or likely to be intercepted.
  1. Recommendation: Encrypt highly sensitive and at-risk emails.
  1. The duty to protect electronic evidence includes not only proper electronic security measures, but also proper physical security measures so that a person cannot walk into a lawyer’s office and walk away with a laptop containing privileged information.
  1. Recommendation: ensure adequate physical security measures.[7]
  1. In re Gen. Motors LLC Ignition Switch Litig., 80 F. Supp. 3d 521 (S.D.N.Y. 2015)
  1. Faced with criminal investigations and lawsuits regarding faulty ignition switches, GM hired Jenner & Block to investigate. Over 41 days, they conducted over 350 interviews of 230 witnesses with the intention of keep same confidential pursuant to the attorney-client privilege. The results of these interviews were condensed into the “Valukas Report,” which was later redacted and published on GM’s website. Plaintiffs in the suit against GM subsequently filed a motion to compel production of various documents relating to the report. GM agreed to turn over some of the documents, but refused to turn over others, including the interviews, relying on the a/c privilege. Plaintiff argued GM waived the privilege by publishing the redacted materials on their website.
  2. Court held that Upjohn Co. v. United States[8]is the “foundational case on attorney-client privilege in the corporate environment” and protects not only information given by the lawyer to the client, but also information given by the client to the lawyer so that the lawyer could then advise the client; the interviews fell within this purpose. The court held that the situations in which a company may waive the AC are as follows: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together,” and that “such disclosure results in a subject matter waiver of undisclosed materials only in those ‘unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.’” The court found that GM “neither offensively used the Valukas Report in litigation nor made a selective or misleading presentation that is unfair to adversaries in this litigation, or any other,” therefore, fairness did not require a finding of waiver and further disclosure by GM.
  1. Conflicts Between Inside and Outside Counsel
  1. Conflicts arise when Employee and Employer each face fraud charges for the company’s allegedly fraudulent behavior.
  1. Employer will want to hide legal advice provided at the time of the alleged misconduct.
  2. Employee will want to present same as a defense.[9]
  1. “Judge Jesse M. Furman concludes there should never be a balancing test in civil cases, and that the corporation’s privilege assertion should always prevail — even if it critically undermines an individual’s ability to present a defense.”[10]
  2. The judge noted in this case that the decision is not as harsh as it seems because the company may indemnify the employee, but fails to consider that indemnification is not permitted in some jurisdictions. The judge’s reasoning was that ruling otherwise would undermine society’s value on attorney-client privilege.
  1. Structure investigations to protect information under attorney-client privilege
  1. Be clear that investigations are conducted by the attorney for purposes of obtaining legal advice
  2. In-house counsel can strengthen this argument by hiring outside counsel to perform the investigation – hiring outside counsel can help overcome the assumption that the investigation is for “business purposes.”[11]
  1. Ethical Issues Surrounding Technology and E-Filing
  1. Lawyer’s Ethical Obligations
  1. “Model Rule 1.1 (Competence) now includes a comment noting that, ‘[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’”[12]
  2. Keep information up to date – in one case, a lawyer’s belated appeal was denied for being untimely despite his excuse that he had never received notice of the judgment because he had not updated his email address.[13]
  1. Dangers of E-Filing
  1. Disclosing secrets or privileged information.
  1. In one case, attorneys mistakenly e-filed an unredacted affidavit containing a company’s trade secrets – the trade secrets were available via the New York State Electronic Filing System for several weeks before the mistake was realized and the record sealed.[14]
  1. Oversight
  1. A Maryland attorney failed to answer a key request due to an oversight by the paralegal monitoring the e-filing system. The court refused to let the attorney cure the mistake caused by the oversight of the paralegal and supervising attorney. [15]
  1. Metadata
  1. “Metadata is ‘information about a particular data set which describes how, when, and by whom it was collected, created, accessed, modified and how it is formatted.’”[16]
  1. “[M]etadata is information a word processing or document creation program keeps about the history of that document. This history includes changes, deletions, additions, which persons have accessed the document, and electronic notes that have been attached at various times. Such information is not visible on the screen, but it can be held in the background.”[17]
  1. “Mining” metadata is the process of “using computer algorithms to search vast collections of data for patterns.”[18]
  1. Ex.: “President-elect Hank Coxe gave the board a graphic example of what that means. He said a senior partner in his firm was working on a brief which was requested by another firm for a case it was working on. When the partner finished the brief, he offered to fax it, but the other firm asked that it be e-mailed.

That firm then mined it for metadata. What they got, Coxe said, was a history showing every change that had been made to the document, as well as who had worked on it. At one point, the client had been e-mailed for input and the client had replied by e-mail. Both had been attached to the document as it was being prepared and later deleted; and both communications were recovered by the other law firm.”[19]

  1. “January 6, [2006,] the Florida Bar took the position that mining metadata is unethical.”[20]
  1. Reducing and Removing Metadata
  1. Reducing Metadata
  1. “Word, PowerPoint, and Excel users should turn off the Fast Saves feature. To do this click on Tools, then Options, then the Save tab, and uncheck ‘Allow Fast Saves.’ Fast saves allows a computer to quickly save a file by not removing deleted text from it. When computers were much slower, it was perhaps a helpful feature. However, with more powerful computers in use today, you won’t notice any difference with this feature turned off.”[21]
  2. “WordPerfect has a feature called Undo/Redo History, it allows you to view past changes in a document in terms of what was cut, copied, and even deleted. Click on the Option button, and then uncheck ‘Save Undo/Redo Items with Document’ to turn it off. This does not remove all metadata.”[22]
  1. Removing Metadata
  1. “Converting files to PDF format with AdobeAcrobat will strip out most metadata. For this reason many law firms today have adopted a practice of sending only PDF documents to clients or opposing counsel, especially if the recipient doesn’t need to edit the document.”[23]
  2. Scrubbing Metadata in Microsoft Word:
  1. Create a copy of the original document
  2. Turn off “Track changes” and remove all visible comments.
  3. Delete any sensitive information/information you wish to redact.
  4. Use Microsoft office Document Inspector to check for unwanted metadata.
  5. Save the new document and convert it to PDF.
  6. Use the Sanitize Document tool in Adobe.[24]
  1. Scrubbing Metadata in Adobe 9:
  1. Select Document > Examine Document
  2. Select Expand All
  3. Click Remove and, in the dialog box that appears, Click OK
  4. Select Edit > Preferences
  5. Select Documents and, in the Examine Document Area, check the box to Examine Document when Closing
  6. Changes are not applied until document is saved[25]
  1. Scrubbing Metadata in Adobe X:
  1. Rom the Tools pane, in the Protection Panel, select Remove Hidden Information
  2. Select Expand All
  3. Click Remove and, in the dialog box that appears, click OK.
  4. From the Tools Pane, in the Protection Panel, select Sanitize Document.
  5. Click OK in the dialog box that appears.
  6. Changes are not applied until document is saved.[26]
  1. Commercial programs are also available for removing/scrubbing metadata from Word, Excel and Powerpoint documents. For example, Metadata Assistant by Payne Consulting Group (payneconsulting.com). This software sells for about $100.

[1]

[2]Id.

[3] Id.

[4]Robert G. Clyne & Alexander P. Conser, Attorney-Client Privilege and the Admiralty Practitioner in the Twenty-First Century, 89 Tul. L. Rev. 1179, 1201 (2015)

[5] Brett J. Trout, The Ethical Lawyer and the Tao of Technology, 48 Creighton L. Rev. 709, 729 (2015)

[6]Id.

[7]Id.

[8]449 U.S. 383, 394, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (holding that “the privilege protected interview notes and memoranda prepared by a corporation's in-house counsel during an internal investigation of illegal payments by employees.”).

[9]

[10] citing United States v. Wells Fargo Bank NA, 12-cv-7527 (S.D.N.Y. June 30, 2015)

[11]

[12]1.Eric J. Magnuson & Samuel A. Thumma, Prospects and Problems Associated with Technological Change in Appellate Courts: Envisioning the Appeal of the Future, 15 J. App. Prac. & Process 111, 124 (2014) (citing ABA Commission on Ethics 20/20, Introduction and Overview 4, 20_20_final_hod_introdution_and_overview_report.authcheckdam.pdf (Aug. 2012) (accessed Aug. 12, 2014; copy on file with Journal of Appellate Practice and Process)).

[13]Id.

[14] (citing HMS Holdings Corp. v. Arendt, 48 Misc. 3d 1210(A) (N.Y. Sup. Ct. 2015)).

[15] Kevin Crews, E-Filing from the Local Coffee Shop: A Practical Look into Confidentiality, Technology, and the Practice of Law, Fla. B.J., June 2013, at 82 (citingWilson v. John Crane, Inc., 385 Md. 185, 215 (Md. 2005)).

[16]Id. at 84.

[17]

[18]

[19]

[20]

[21]

[22]Id.

[23]Id.

[24]Florida Courts – E-Filing Authority.

[25] Removing Hidden Information V 9 and X – Adope Acrobat Pro.

[26]Id.