Proposed Opinions

Council Actions

At its meeting on April 25, 2014, the State Bar Council adopted the ethics opinions summarized below:

2014 Formal Ethics Opinion 2
Dual Representation of Trustee and Secured Creditor in Contested Foreclosure

Opinion rules that a lawyer may not represent both the trustee and the secured creditor in a contested foreclosure proceeding.

2014 Formal Ethics Opinion 3
Pro Bono Legal Services Provided by Government and Public Sector Lawyers

Opinion encourages government lawyers to engage in pro bono representation unless prohibited by law from doing so.

Ethics Committee Actions

At its meeting on April 24, 2014, the Ethics Committee voted to send the following proposed opinions to subcommittees for further or continued study: Proposed 2013 FEO 14, Representation of Parties to a Commercial Real Estate Loan Closing, and Proposed 2014 FEO 1, Protecting Confidential Client Information When Mentoring. The Ethics Committee also voted to publish revised versions of two proposed opinions and three new proposed opinions. The comments of readers on the proposed opinions are welcomed.

Proposed 2013 Formal Ethics Opinion 8
Responding to the Mental Impairment of Firm Lawyer
April 24, 2014

Proposed opinion analyzes the responsibilities of the partners and supervisory lawyers in a firm when another firm lawyer has a mental impairment.

Introduction:
As the lawyers from the “Baby Boomer” generation advance in years, there will be more instances of lawyers who suffer from mental impairment or diminished capacity due to age. In addition, lawyers suffer from depression and substance abuse at approximately twice the rate of the general population.1 This opinion examines the obligations of lawyers in a firm who learn that another firm lawyer suffers from a mental condition that impairs the lawyer’s ability to practice law or has resulted in a violation of a Rule of Professional Conduct. This opinion relies upon ABA Commission on Ethics and Professional Responsibility, Formal Opinion 03-429 (2003) [hereinafter ABA Formal Op. 03-429] for its approach to the issues raised by the mental impairment of a lawyer in a firm. For further guidance, readers are encouraged to refer to the ABA opinion.

Inquiry #1:

Attorney X has been practicing law successfully for over 40 years and is a prominent lawyer in his community. In recent years, his ability to remember has diminished and he has become confused on occasion. The other lawyers in his firm are concerned that he may be suffering from the early stages of Alzheimer’s disease or dementia.
What are the professional responsibilities2 of the other lawyers in the firm?3

Opinion #1:
The partners4 in the firm must make reasonable efforts to ensure that Attorney X does not violate the Rules of Professional Conduct.

Mental impairment may lead to inability to competently represent a client as required by Rule 1.1, inability to complete tasks in a diligent manner as required by Rule 1.3, and inability to communicate with clients about their representation as required by Rule 1.4. Although a consequence of the lawyer’s impairment, these are violations of the Rules of Professional Conduct nonetheless. As noted in ABA Formal Op. 03-429, “[i]mpaired lawyers have the same obligations under the [Rules of Professional Conduct] as other lawyers. Simply stated, mental impairment does not lessen a lawyer’s obligation to provide clients with competent representation.” Under Rule 1.16(a)(2), a lawyer is prohibited from representing a client and, where representation has commenced, required to withdraw if “the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.” Unfortunately, an impaired lawyer may not be aware or may deny that his impairment is negatively impacting his ability to represent clients. ABA Formal Op. 03-429.

Rule 5.1(a) requires partners in a firm and all lawyers with comparable managerial authority in the firm to “make reasonable efforts to ensure that the firm or the organization has in effect measures giving reasonable assurance that all lawyers in the firm or the organization conform to the Rules of Professional Conduct.” Similarly, Rule 5.1(b) requires a lawyer having direct supervisory authority over another lawyer to “make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” Taken together, these provisions require a managerial or supervisory lawyer who suspects or knows that a lawyer is impaired to closely supervise5 the conduct of the impaired lawyer because of the risk that the impairment will result in violations of the Rules.

When deciding what should be done in response to a lawyer’s apparent mental impairment, it may be helpful to partners and supervising lawyers to consult a mental health professional for advice about identifying mental impairment and assistance for the impaired lawyer. Id. As observed in ABA Formal Op. 03-429,

[t]he firm’s paramount obligation is to take steps to protect the interest of its clients. The first step may be to confront the impaired lawyer with the facts of his impairment and insist upon steps to assure that clients are represented appropriately notwithstanding the lawyer’s impairment. Other steps include forcefully urging the impaired lawyer to accept assistance to prevent future violations or limiting the ability of the impaired lawyer to handle legal matters or deal with clients.

Id. If the lawyer’s mental impairment can be accommodated by changing the lawyer’s work environment or the type of work that the lawyer performs, such steps also should be taken.6 “Depending on the nature, severity, and permanence (or likelihood of periodic recurrence) of the lawyer’s impairment, management of the firm has an obligation to supervise the legal services performed by the lawyer and, in an appropriate case, prevent the lawyer from rendering legal services to clients of the firm.” Id. Making a confidential report to the State Bar’s Lawyer Assistance Program (LAP) (or to another lawyers assistance program approved by the State Bar7) would also be an appropriate step. The LAP can provide the impaired lawyer with confidential advice, referrals, and other assistance.

Inquiry #2:

Attorney X’s mental capacity continues to diminish. Apparently as a consequence of mental impairment, Attorney X failed to deliver client funds to the office manager for deposit in the trust account. It is believed that he converted the funds to his own use. In addition, Attorney X failed to complete discovery for a number of clients although he declined assistance from the other lawyers in the firm. Some clients may face court sanctions as a consequence. Although Attorney X is engaging and articulate when he meets with clients, he no longer seems able to prepare for litigation and, on more than one occasion, Attorney X’s presentation in court was muddled, meandering, and confused.

What are the professional responsibilities of the other lawyers in the firm?

Opinion #2:
Attorney X has violated Rule 1.15 by failing to place entrusted funds in the firm trust account. He has also violated Rule 1.1 and Rule 1.3 by providing incompetent representation and by failing to act with reasonable promptness in completing discovery. These are violations of the Rules of Professional Conduct that may have to be reported to the State Bar or to the court. In addition, steps may have to be taken to provide additional ongoing supervision for Attorney X or to change the circumstances or type of work that he performs to avoid additional violations of his professional duties. The other lawyers in the firm must also take steps to mitigate the adverse consequences of Attorney X’s past conduct including replacing client funds.

Rule 8.3(a) requires a lawyer "who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects [to] inform the North Carolina State Bar or the court having jurisdiction over the matter." Only misconduct that raises a “substantial question” as to the lawyer’s honesty, trustworthiness, or fitness must be reported. As noted in the Comment,

[t]his Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.

Rule 8.3, cmt. [4].

If an impaired lawyer’s misconduct is isolated and unlikely to recur because the mental impairment has ended or is controlled by medication or treatment, no report of incompetent or delinquent representation may be required. See RPC 243 (an “isolated incident resulting from a momentary lapse of judgment” does not raise a substantial question about honesty, trustworthiness, or fitness). “Similarly, if the firm is able to eliminate the risk of future violations of the duties of competence and diligence under the [Rules] through close supervision of the lawyer’s work, it would not be required to report the impaired lawyer’s violation.” ABA Formal Op. 03-429.

However, reporting is required if the misconduct is serious, such as the violation of the trust accounting rules described in this inquiry, or the lawyer insists upon continuing to practice although his mental impairment has rendered him unable to represent clients as required by the Rules of Professional Conduct.8 In either situation, a report of misconduct may not be made if it would require the disclosure of confidential client information in violation of Rule 1.6, and the client does not consent to disclosure. See Rule 8.3(c).

Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” If the managing lawyers determine that the impaired lawyer cannot provide competent and diligent representation and should be removed from a client’s case, the situation must be explained to the client so that the client can decide whether to agree to be represented by another lawyer in the firm or to seek other legal counsel.

Rule 5.1(c) requires a partner or a lawyer with comparable managerial authority or with supervisory authority over another lawyer to take reasonable remedial action to avoid the consequences of the lawyer’s violation of the Rules. Even if the impaired lawyer is removed from a representation, the firm lawyers must make every effort to mitigate any adverse consequences of the impaired lawyer’s prior representation of the client.

Inquiry #3:
If the firm partners determine that Attorney X has violated the Rules and there is a duty to report under Rule 8.3, may they fulfill the duty by reporting Attorney X to the State Bar’s Lawyer Assistance Program (LAP)?

Opinion #3:

No. 2003 Formal Ethics Opinion 2 addressed this issue in the context of reporting opposing counsel as follows:

The report of misconduct should be made to the Grievance Committee of the State Bar if a lawyer's impairment results in a violation of the Rules that is sufficient to trigger the reporting requirement. The lawyer must be held professionally accountable. See, e.g., Rule .0130(e) of the Rules on Discipline and Disability of Attorneys, 27 N.C.A.C. 1B, Section .0100 (information regarding a member's alleged drug use will be referred to LAP; information regarding the member's alleged additional misconduct will be reported to the chair of the Grievance Committee).

Making a report to the State Bar, as required under Rule 8.3(a), does not diminish the appropriateness of also making a confidential report to LAP. The Bar's disciplinary program and LAP often deal with the same lawyer and are not mutually exclusive. The discipline program addresses conduct; LAP addresses the underlying illness that may have caused the conduct. Both programs, in the long run, protect the public interest.

Inquiry #4:

Attorney X announces his intent to leave the firm to set up his own solo practice and to take all of his client files with him. The other lawyers in the firm are concerned that, absent any supervision or assistance, Attorney X will be unable to competently represent clients because of his mental impairment.

What are the duties of the remaining lawyers in the firm if Attorney X leaves and sets up his own practice?

Opinion #4:

In addition to any duty to report, the remaining lawyers may have a duty to any current client of Attorney X to ensure that the client has sufficient information to make an informed decision about continuing to be represented by Attorney X.

As noted in Opinion #2, Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The clients of an impaired lawyer who leaves a firm must decide whether to follow the departed lawyer to his new law practice. To make an informed decision, the clients must be informed of “the facts surrounding the withdrawal to the extent disclosure is reasonably necessary for those clients to make an informed decision about the selection of counsel.” ABA Formal Op. 03-429.9 There is no comparable duty to former clients of the impaired lawyer as long as the firm avoids any action that might be interpreted as an endorsement of the services of the departed, impaired lawyer, including sending a joint letter regarding the lawyer’s departure from the firm.

The remaining lawyers in the firm may conclude that, while under their supervision and support, the impaired lawyer did not violate the Rules and, therefore, there is no duty to report to the State Bar under Rule 8.3. Nevertheless, subject to the duty of confidentiality to clients under Rule 1.6, voluntarily reporting the impaired lawyer to LAP (or another lawyer assistance program approved by the State Bar) would be appropriate. The impaired lawyer will receive assistance and support from LAP and this may help to prevent harm to the interests of the impaired lawyer’s clients.

Inquiry #5:

Associate lawyers and staff members are often the first to observe behavior indicating that a lawyer has a mental impairment. If an associate lawyer or a staff member reports behavior by Attorney X that indicates that Attorney X is impaired and may be unable to represent clients competently and diligently, what is a partner’s or supervising lawyer’s duty upon receiving such a report? 

Opinion #5:

If a partner or supervising lawyer receives a report of impairment from an associate lawyer or a staff member, regardless of whether the lawyer suspected of impairment is a senior partner or an associate, the partner or supervising lawyer must investigate and, if it appears that the report is meritorious, take appropriate measures to ensure that the impaired lawyer’s conduct conforms to the Rules of Professional Conduct. See Opinion #1 and Rule 5.1(a). It is never appropriate to protect the impaired lawyer by refusing to act upon or ignoring a report of impairment or by attempting to cover up the lawyer’s impairment.

Inquiry #6:

If an associate lawyer in the firm observes behavior by Attorney X that indicates that Attorney X is not competent to represent clients, what should the associate lawyer do?

Opinion #6:

The associate lawyer must report his or her observations to a supervising lawyer or the senior management of the firm as necessary to bring the situation to the attention of lawyers in the firm who can take action.

Inquiry #7:

An associate lawyer in the firm reports to his supervising lawyer that he suspects that Attorney X is mentally impaired. He also describes to the supervising lawyer conduct by Attorney X that violated Rules 1.1 and 1.3. The supervising lawyer tells the associate to ignore the situation and to not say anything to anyone about his observations including clients, other lawyers in the firm, or staff members. The associate concludes that no action will be taken to investigate or address Attorney X’s behavior. Does the associate lawyer have any further obligation?

Opinion #7:

A subordinate lawyer is bound by the Rules of Professional Conduct notwithstanding that the subordinate lawyer acts at the direction of another lawyer in the firm. Rule 5.2(a). If the associate lawyer believes that the duty to report professional misconduct under Rule 8.3 may be triggered by the conduct of Attorney X, the associate lawyer should discuss this concern with his supervising lawyer. If the supervising lawyer declines to address the situation, the associate lawyer should seek guidance as to his professional responsibilities from the lawyers at the State Bar who provide informal ethics advice.

Inquiry #8:

Assume that Attorney X is the sole principal in the firm and there is one associate lawyer. Attorney X displays behavior that may indicate that he is in the early stages of Alzheimer’s disease or dementia. There is no senior management to whom the associate lawyer can report. What should the associate lawyer do?

Opinion #8:

If the associate lawyer believes that the duty to report professional misconduct under Rule 8.3 may be triggered by the conduct of Attorney X, the associate lawyer should seek guidance as to his professional responsibilities from the lawyers at the State Bar who provide informal ethics advice. See Opinion #7. Regardless of whether Attorney X’s conduct triggers the duty to report, the associate lawyer may seek advice and assistance from the LAP or from another approved lawyer assistance program, or may contact a trusted, more experienced lawyer in another firm to serve as a mentor or advisor on how to address the situation.

Inquiry #9:
Assume Attorney X is a sole practitioner and the lawyers in his community observe behavior that may indicate that he is in the early stages of Alzheimer’s disease or dementia. What is the responsibility of the lawyers in the community?

Opinion #9:

The Rules of Professional Conduct impose no specific duty on other members of the bar to take action relative to a potentially impaired fellow lawyer except the duty to report to the State Bar if the other lawyer’s conduct raises a substantial question about his honesty, trustworthiness, or fitness to practice law and the information about the lawyer is not confidential client information. See Opinion #7. Nevertheless, as a matter of professional responsibility, attendant to the duties to seek to improve the legal profession and to protect the interests of the public that are articulated in the Preamble to the Rules of Professional Conduct, the lawyers in the community are encouraged to assist the potentially impaired lawyer to find treatment or to transition from the practice of law. A mental health professional, the LAP, or another lawyer assistance program can be consulted for advice and assistance.

Inquiry #10:
Do the responses to any of the inquiries above change if the lawyer’s impairment is due to some other reason such as substance abuse or mental illness?

Opinion #10:

No.

Endnotes
1. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 03-429 (2003) (citing George Edward Bailly, Impairment, the Profession, and Your Law Partner, 11 No.1 Prof. Law. 2 (1999)) [hereinafter ABA Formal Op. 03-429].
2. This opinion does not address the issues that may arise under the Americans with Disabilities Act of 1990, 42 US C. §§12101 et seq. (2003) (the ADA) relative to an employer’s legal responsibilities to an impaired lawyer. Lawyers are advised to consult the ADA and the Equal Employment Opportunity Commission’s website, eeoc.gov, for guidance.
3. “Firm” as used in the Rules of Professional Conduct and this opinion denotes “a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation, government entity, or other organization.” Rule 1.0(d).
4. “Partner” as used in the Rules of Professional Conduct and this opinion denotes “a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.” Rule 1.0(h).
5. It is improper for a firm to charge a client for additional supervision for an impaired lawyer if the supervision exceeds what is normally required to ensure competent representation unless the client is advised of the reason for the additional supervision and agrees to the charges. See Rule 1.5(a).
6. ABA Formal Op. 03-429 provides the following examples of accommodation:
A lawyer who, because of his mental impairment, is unable to perform tasks under strict deadlines or other pressures, might be able to function in compliance with the [Rules] if he can work in an unpressured environment. In addition, the type of work involved, as opposed to the circumstances under which the work occurs, might need to be examined when considering the effect that an impairment might have on a lawyer’s performance. For example, an impairment may make it impossible for a lawyer to handle a jury trial or hostile takeover competently, but not interfere at all with his performing legal research or drafting transaction documents.
7. One such program is the Transitioning Lawyers Commission (or “TLC”) of the North Carolina Bar Association, which considers issues of aging and cognitive impairment and helps lawyers to wind down their law practices to “retire gracefully.” See more at: tlc.ncbar.org.
8. ABA Formal Op. 03-429 cautions that when reporting an impaired lawyer pursuant to Rule 8.3, disclosure of the impairment may be necessary; however, the reporting lawyer should be careful to avoid violating the ADA.
9. ABA Formal Op. 03-429 counsels that, when providing a client with information about the departed lawyer, a firm lawyer “must be careful to limit any statement to ones for which there is a reasonable factual foundation.” This will avoid violating the prohibition on false and misleading communications in Rule 7.1 and the prohibition on deceit and misrepresentation in Rule 8.4(c).

Proposed 2013 Formal Ethics Opinion 12
Disclosure of Settlement Terms to Former Lawyer Asserting a Claim for Fee Division
April 24, 2014

Proposed opinion rules that, in a worker’s compensation case, when a client terminates representation, the subsequently hired lawyer may disclose the settlement terms to the former lawyer to resolve a pre-litigation claim for fee division pursuant to an applicable exception to the duty of confidentiality.

Facts:

Client hired Lawyer A to represent Client in a workers’ compensation matter. A year later, Client discharged Lawyer A and subsequently hired Lawyer B. Lawyer A filed a motion to withdraw as counsel while reserving her right to a legal fee. Lawyer B settled Client’s workers’ compensation case and the Industrial Commission entered an order approving the settlement and the legal fee to be paid from the proceeds of the settlement. Lawyer A asked Lawyer B for a copy of the Industrial Commission’s order. Client instructed Lawyer B to keep the settlement information confidential. Lawyer B therefore refused to provide Lawyer A with a copy of the Industrial Commission’s order, and also refused to disclose the settlement amount. However, Lawyer B asked Lawyer A to submit an accounting of Lawyer A’s hours in the case and Lawyer A’s hourly rate. Lawyer A refused to provide an accounting of her time without more information about the settlement. Lawyer A insists that she needs to know the settlement amount to determine the amount of the fee that is to be divided between the two lawyers. Lawyer A further asserts that before she can determine the amount of her fee, she must know which injury claims are subject to the settlement.

Inquiry:

May Lawyer B share the settlement details with Lawyer A?

Opinion:

Yes. Keeping a client’s information confidential is paramount among the duties a lawyer owes to the client. Unless Client consents to the disclosure of information about the settlement, or one of the exceptions set out in Rule 1.6(b) applies, Lawyer B may not reveal the details of the settlement to Lawyer A.

A client has the right to discharge his lawyer at any time. Where a lawyer with a contingency fee contract is terminated before the matter is concluded, the discharged lawyer has a claim for quantum meruit recovery from the proceeds of the matter. Covington v. Rhodes, 38 NC App. 61, 247 S.E.2d 305 (1978), disc. rev. denied, 296 NC 410, 251 S.E.2d 468 (1979). Furthermore, the discharged lawyer may file his claim for quantum meruit against the client or against the subsequent lawyer. Guess v. Parrott, 160 NC App. 325, 585 S.E.2d 464 (2003).

Rather than wait for Lawyer A to file suit, however, the better practice is to attempt to resolve a dispute before litigation. To this end, at the beginning of the representation, Lawyer B should counsel Client about the law pertaining to Lawyer A’s claim for a legal fee based on quantum meruit. Lawyer B also should explain to Client that Rule 1.6(b)(6) permits a lawyer to disclose confidential client information, without the client’s consent, “to respond to allegations in any proceeding concerning the lawyer's representation of the client,” and that the exception to the rule, as noted in the comment, “does not require the lawyer to await the commencement of an action or proceeding…” Rule 1.6, cmt [11]. Therefore, Lawyer B may disclose the details of the settlement to resolve Lawyer A’s claim for a share of the fee. Only that information relevant to the valuation of Lawyer A’s legal services may be disclosed.

Proposed 2014 Formal Ethics Opinion 4
Serving Subpoenas on Health Care Providers Covered by HIPAA       
April 24, 2014

Proposed opinion rules that a lawyer may send a subpoena for medical records to an entity covered by HIPAA without providing the assurances necessary for the entity to comply with the subpoena as set out in 45 C.F.R. §164.512(e)(ii).

Introduction:

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) required the US Department of Health and Human Services (USDHHS) to establish a set of national standards for the protection of certain health information including identifiable medical records of individual patients. Pursuant to this mandate, the USDHHS issued Standards for Privacy of Individually Identifiable Health Information (the Privacy Rule), which established national standards for the protection of protected health information. The Privacy Rule applies to any health care provider who transmits health information in electronic form in connection with certain specified transactions.1 

At issue in this inquiry is 45 C.F.R. §164.512(e) of the Privacy Rule, which pertains to disclosure of protected health information in judicial and administrative proceedings. Pursuant to 45 C.F.R. §164.512(e), covered entities may disclose protected health information in a judicial or administrative proceeding if the request for the information is in response to an order from a court or administrative tribunal. Such information may also be disclosed in response to a subpoena or other lawful process if certain assurances regarding notice to the individual or a protective order are provided. Specifically, a covered entity may disclose protected health information if the covered entity receives satisfactory assurance from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the requested protected health information was given notice of the request, or the covered entity received satisfactory assurance from the party seeking the information that reasonable efforts were made by such party to secure a qualified protective order. 45 C.F.R. §164.512(e)(1)(ii)(2013).

However, 45 C.F.R. §164.512(e)(1)(vi) allows a covered entity to disclose protected health information in response to a subpoena without receiving satisfactory assurance from the requesting party if the covered entity itself makes reasonable efforts to provide notice to the individual or to seek a qualified protective order.

Inquiry #1:

May a lawyer send a subpoena to an entity covered by HIPAA and demand compliance without providing the assurances set out in 45 C.F.R. §164.512(e)(ii)?

Opinion #1:

Yes, assuming the subpoena complies with the Rules of Civil Procedure.

As a matter of professional courtesy, if the lawyer does not provide the necessary assurances set out in the Privacy Rule, the lawyer may include a letter with the subpoena alerting the entity that certain health information may be subject to state and/or federal privacy laws and informing the entity that it may delay compliance with the subpoena for a reasonable amount of time to comply with any applicable privacy laws. See Rule 1.2(a)(2) (lawyer does not violate rules by treating others with courtesy). In addition to being a matter of professional courtesy, it may be in the client’s best interest to seek compliance with federal and state privacy laws to avoid subsequent objections to the disclosure of the produced materials that may cause delay, additional expense, or prohibit the use of the produced materials.

Inquiry #2:

Would the response to Inquiry #1 be different if the health care provider receiving the subpoena is also a client of the lawyer’s firm in an unrelated matter?

Opinion #2:

Assuming that the client seeking the medical records and the provider/client have the same interest in seeing that the medical records are produced in accordance with applicable law, the lawyer serving the subpoena may, with the informed consent confirmed in writing of both clients, provide advice to the provider/client relative to the requirements of the various privacy rules and may give the provider/client a reasonable amount of time to comply.

If the lawyer provides advice to the provider/client relative to the subpoena and a conflict arises pertaining to the subpoena (i.e., provider/client desires to quash the subpoena or, upon the provider/client’s failure to respond to the subpoena, the client seeking the medical records is required to file a motion to compel or a motion for sanctions), the lawyer may not represent either the client seeking the records or the provider/client relative to the enforcement of the subpoena, unless both clients give their informed consent confirmed in writing.

Endnote
1.  Summary of the HIPAA Privacy Rule, OCR Privacy Brief, US Department of Health and Human Services, Office for Civil Rights: hhs.gov/ocr/privacy/hipaa/ understanding/summary/index.html.

Proposed 2014 Formal Ethics Opinion 5
Advising a Civil Litigation Client about Social Media
April 24, 2014

Proposed opinion rules a lawyer must advise a client about information on social media if information and postings on social media are relevant and material to the client’s representation. The lawyer may advise a client to remove information on social media if not spoliation or otherwise illegal.

Facts:

A client has a legal matter that will probably be litigated although a law suit has not been filed. The client’s postings and other information on a social media website (referred to collectively as “postings”) could be used to impeach the client or are otherwise relevant to the issues in the law suit.

Inquiry #1:

Prior to filing a law suit, may the lawyer give the client advice about the legal implications of postings on social media websites and coach the client on what should and should not be shared on social media? May the lawyer give the same advice after a law suit is filed?

Opinion #1:

Yes. Lawyers must provide competent and diligent representation to clients. Rule 1.1 and Rule 1.3. To the extent relevant and material to a client’s legal matter, competent representation includes knowledge of social media and an understanding of how it will impact the client’s case including the client’s credibility. If a client’s postings on social media might impact the client’s legal matter, the lawyer must advise the client of the legal ramifications of existing postings, future postings, and third party comments. Advice should be given before and after the law suit is filed.

Inquiry #2:

May the lawyer instruct the client to remove existing postings on social media? After a law suit is filed, may the lawyer give the client such advice?

Opinion #2:

No, in general, relevant social media postings must be preserved.

The New York State Bar opined that a lawyer may advise a client about posting on a social media website and may review and discuss the client's posts, including what posts may be removed, if the lawyer complies with the rules and law on preservation and spoliation of evidence. NY State Bar, Ethics Op. 745 (2013). We agree.
A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent. Rule 1.2(d). The lawyer therefore should examine the law on spoliation1 and obstruction of justice and determine whether removing existing postings would be a violation of the law.

If removing postings does not constitute spoliation and is not otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media. If the lawyer advises the client to take down postings on social media, where there is a potential that destruction of the postings would constitute spoliation, the lawyer must also advise the client to preserve the postings by printing the material, or saving the material to a memory stick, compact disc, DVD, or other technology, including web-based technology, used to save documents, audio, and video. The lawyer may also take possession of the material for purposes of preserving the same. Advice should be given before and after the law suit is filed.

Inquiry #3:

May the lawyer instruct the client to change the security and privacy settings on social media pages to the highest level of restricted access? May the lawyer give the same advice after a law suit is filed?

Opinion #3:

Yes, if such advice is not a violation of law or a court order. Advice should be given before and after the law suit is filed.

Endnote
1. Black’s Law Dictionary defines spoliation as the intentional concealment, destruction, alteration, or mutilation of evidence, usually documents, thereby making them unusable or invalid. The doctrine of spoliation of evidence holds that when “a party fails to introduce in evidence documents that are relevant to the matter in question and within his control...there is a presumption, or at least an inference, that the evidence withheld, if forthcoming, would injure his case.” Jones v. GMRI, Inc., 144 NC App. 558, 565, 551 S.E.2d 867, 872(2001) (quoting Yarborough v. Hughes, 139 NC 199, 209, 51 S.E. 904, 907-08 (1905)).

Proposed 2014 Formal Ethics Opinion 6
Duty to Avoid Conflicts When Advising Members of Nonprofit Organization
April 24, 2014

Proposed opinion rules that a lawyer who provides free brief consultations to members of a nonprofit organization must screen for conflicts prior to conducting a consultation.

Inquiry:

A nonprofit organization of nonlawyer professionals provides its members with contact information for certain medical and other professionals who have agreed to provide the members with brief consultations to answer questions on various subjects that are relevant to the members’ professional practices.

The organization has asked Lawyer if she is willing to provide such consultations to its members concerning their legal questions. If Lawyer agrees, she will be described by the organization on its website as a member support legal resource. It will be clear that Lawyer is not an employee of the organization and that she has volunteered to provide such consultations directly to the organization’s members. Such consultations will be without charge to the members, and the organization will not compensate Lawyer for her services.

Lawyer will secure the informed consent of each inquiring member to the limited scope of such representation. However, Lawyer believes that it would be impractical for Lawyer to conduct a conflicts search on each member who calls her before she consults with that member concerning his or her legal question.

It is reasonable to suppose that some members who call Lawyer for a free consultation may, thereafter, wish to engage her to represent them on a paid basis. However, the initial consultation is not conditioned on such continued representation. Lawyer will conduct a conflicts check as to any member who seeks to engage her in an ongoing representation before commencing such representation.

Rule 6.5(a), Limited Legal Services Programs, provides:

A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

Is Lawyer’s initial consultation with members of the organization governed by Rule 6.5 such that Lawyer is subject to Rules 1.7 and 1.9(a) only if she knows that the representation of the client involves a conflict of interest?

Opinion:
No. Rule 6.5 does not apply. Comment [1] to Rule 6.5 states that “[l]egal services organizations, courts, and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services—such as advice or the completion of legal forms—that will assist persons to address their legal problems without further representation by a lawyer.” Rule 6.5 is designed to encourage lawyers to participate in nonprofit programs offering limited legal services on a short-term basis. Examples of such programs include legal-advice hotlines, advice-only clinics, or pro se counseling programs. See Rule 6.5, cmt. [1]. As noted in Comment [1] to Rule 6.5: “Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.” Therefore, Rule 6.5 relaxes the application of the conflict of interest rules.

Rule 6.5 was adopted in response to concerns that a strict application of the conflicts of interest rules may be deterring lawyers from serving as volunteers in programs providing short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. See Ann. Model Rules of Prof’l Conduct R. 6.5 (7th ed. 2009). Rule 6.5’s exception to the duty to avoid conflicts of interest applies only where it is not feasible for the lawyer to complete a comprehensive conflicts check prior to undertaking the representation. The proposed arrangement with Lawyer does not present such a scenario. Upon being contacted by a member of the nonprofit organization, it is feasible for Lawyer to complete a conflicts check prior to conducting the initial consultation. Therefore, Rule 6.5 does not apply and Lawyer has a duty to screen for conflicts of interest as otherwise set out in the Rules of Professional Conduct.

 

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