Adams and Reese Partner and legal ethics attorney Lucian Pera teamed up with Holland & Knight Partner and legal ethics attorney Trisha Rich to author “In the World of Legal Ethics, 10 Trends to Note from 2023,” published by Law360.
The article is a follow-up to a recent CLE webinar hosted by Pera and Rich – “2023 Legal Ethics Year in Review”.
Law360 is one of the most widely read global legal news sources with more than 2 million readers among attorneys, in-house general and corporate counsel, government officials, and business executives.
Below is the article with permission from Law360.
In The World Of Legal Ethics, 10 Trends To Note From 2023
By Lucian Pera and Trisha Rich (December 20, 2023)
Every year, for clients and friends, we review the latest interesting — and perhaps most important — trends and issues in the world of legal ethics and lawyering, with a particular focus on practical news lawyers can use, or need to know.
Our judgments are idiosyncratic and subjective and, as they say, your mileage may vary, but we offer here our list of the top 10 developments in ethics and lawyering in 2023.
10. "NewLaw" and Regulatory Reform: Talking 'Bout (R)evolution
For years now, we have been saying that we are currently deep within the most dramatic period of change in the legal profession and the business of legal services in more than 100 years.
Two big things are happening — changes driven by big economic forces, mainly technology and globalization, and reform of the regulation of legal services. These two forces are separate but interrelated.
So it is not just nonlawyer ownership and fee-sharing reaching Washington, D.C., Arizona, and Utah and paraprofessional licensure, and the gradual expansion of those services elsewhere, but the billions in new capital flowing into the law business — and not just in litigation funding.
The freshest news? Expect us to practice and work in this mixed environment of reform states and nonreform states for some years to come.[1]
9. Witness Preparation: "Possibly a Brother in Abilene"
In American Bar Association Formal Opinion 508, "The Ethics of Witness Preparation," published in August, the ABA's ethics committee has brought us a comprehensive treatment of virtually all the ethics issues on the ethics of preparing and handling witnesses.[2]
Topics covered include: what you can say and do in preparing a witness for testimony; what you cannot do; the ethics problems associated with communicating with a witness during her testimony, including lawyer misconduct in remote depositions and hearings; and precautions to address such possible misconduct, plus lots of helpful case citations. Perfect for a lunch-and-learn with the trial lawyers in your office.
Oh, and the brother in Abilene? The opinion opens quoting a scene from the HBO series "Deadwood," in which a lawyer unethically strategizes with his client, Wild Bill Hickock's killer, suggesting that a good defense to his murder charges might be vengeance if Hickock had, for example, killed a relative he may have in another town.
Sadly, the opinion takes no position on whether this version of the speech is ethical.
8. Client Intake Supervision: "Just a few questions before I connect you to Mr. Mason."
Since long before confidential secretary Della Street screened clients for the character Perry Mason, many lawyers have used trained nonlawyers to handle client intake. (For bonus points, name Mason's receptionist.)
ABA Formal Opinion 506, "Responsibilities Regarding Nonlawyer Assistants," published in June, reviews the ethics issues involved in the practice, primarily issues of supervision and the unauthorized practice of law.[3]
Under Model Rule 5.3, a lawyer has an obligation to supervise nonlawyer client intake personnel, including training and oversight. Issues addressed include defining what tasks nonlawyer intake personnel may and may not, undertake; what role they may and may not, have in forming the lawyer's attorney-client relationship; and what questions they may and may not, answer, focused on the prohibition on nonlawyers giving legal advice.
This is a very helpful opinion for an era when more and more lawyers are outsourcing their client-intake process to nonlawyer companies outside their firms or offices. Overall, using nonlawyers for client intake must be, in the words of the opinion, "carefully and astutely managed." (For the bonus: Gertie.)
7. Advance Waivers: A Toddler, a Teenager and a Jaded Vaudeville Actor
It was a good year in the courts for the enforceability of advance waivers of conflicts of interest.
Two federal district courts, the U.S. District Court for the Middle District of Florida and the U.S. District Court for the Southern District of New York, issued decisions upholding advance waivers, and each generously provided in their decisions the advance-waiver language they upheld — SuperCooler Technologies Inc. v. The Coca Cola Co. in July, and IBM Corp. v. Micro Focus (US) Inc. in June, respectively.[4]
Of course, practitioners should not use the language as gospel, but it is helpful to be inspired in drafting waivers by language held to have worked.
And U.S. Magistrate Judge Robert M. Norway of Florida summed up his ruling against Coca Cola, denying the disqualification of Paul Hastings LLP, in the ethics law money quote of the year:
Think of it this way. A magician performing magic tricks is perceived differently by different people. A toddler in the audience might be surprised and delighted to see the magician pull a rabbit out of his hat. Teenagers and adults in the audience may respond differently based on the number and types of magic shows they have experienced. But the seasoned vaudeville actor lurking just off the stage won't be surprised.
Here, Coca-Cola is most like the jaundiced-eyed vaudeville actor. Coca-Cola knew what Paul Hastings is, what Paul Hastings does, and the types of clients Paul Hastings represents. Based on Coca-Cola's familiarity of the risks involved, its representation by independent counsel, and the disclosure provided, I find that Coca-Cola knowingly waived the specific conflict here — that is, it understood and consented to Paul Hastings serving as counsel to an opposing party in future litigation matters.[5]
Even to the jaundiced-eyed ethics lawyer, Judge Norway's summary is, well, magical.
6. Deception in Investigations: Mission Impossible, Plant-Based Food Edition
The use of deception by lawyers, or those they supervise, in investigations has long been controversial, but also crucial to finding and proving the truth — think of the classic examples of housing discrimination testers or trademark infringement investigators.
The U.S. District Court for the District of Delaware decision this May in Impossible Foods Inc. v. Motif Foodworks Inc. is another in a fairly small set of cases that present and think carefully through these issues.[6]
In a plant-based food patent infringement case, the plaintiff patent holder uses private investigators who admittedly lied about their identities, even using fake names and creating fake companies, to pose as buyers of the alleged infringer's products and obtain product samples.
The court followed a line of cases holding that deceit or misrepresentation about identity and purpose did not violate ABA Model Rule 4.1 barring material misrepresentations of fact. Nor did the plaintiff's investigator's contacts with lower-level representatives of the represented defendant violate ABA Model Rule 4.2 by communicating with defendant's employees, where the contacts were not with personnel who might bind the company.
A good addition to the law on these questions.
5. Advising Clients on Communications With Represented Opponents: Here Are Your Talking Points
Under ABA Model Rule 4.2, represented nonlawyer clients have every right to communicate with each other, and they are not under the restrictions of the rule.
But ABA Model Rule 8.4(a) bars a lawyer from violating the rules through another person — including their client — for example, by sending the client to talk with the opposing, represented party.
D.C. Bar Legal Ethics Committee Opinion 385, "Advising Clients About Communications with Represented Opponents," published in April, provides guidance on the question of how much help a lawyer can give her client in planning for having these client-to-client communications.[7]
Clearly, the lawyer cannot participate in client-to-client communications, or listen in, or coach a client by text in real time. But a client is entitled to advice about exercising their right to have such communications, including whether they should have them or not.
The opinion explores the limits of lawyer advice, including to what extent a lawyer can script such communications — a gray area — and cautions against most efforts to provide the client with proposed settlement agreements to opposing parties. A good map to this little-charted territory.
4. Hot Documents: You won't believe the documents we got!
Lawyers these days are awash in information and documents — because all of us and all of our clients are.
This makes it more and more likely that the problems surrounding a lawyer coming into possession of documents or information that someone, someday, may allege they should have had, or kept, or used, will arrive on all of our desks or inboxes at some point.
This year, three decisions concentrated the mind and heightened our awareness.
In Hur v. Lloyd & Williams LLC, a lawyer faced and dodged disqualification in the Washington Court of Appeals in January after allegations of improperly using metadata about privileged emails sent to her client.[8]
The emails were privileged; the producing party failed to redact the metadata about the redacted emails; the receiving lawyer reviewed and used that metadata; and she shouldn't have.
In Cruse v. Cruse, a lawyer was disqualified as a likely witness in the U.S. District Court for the Western District of Oklahoma in March after receiving, Bates-stamping and producing in discovery, photos taken by one divorcing spouse from the other divorcing spouse's iCloud account.[9]
In Militello v. VFARM 1509, a corporate dispute over a cannabis business in the California Court of Appeal's Second Appellate District, a lawyer was disqualified in March for accessing and reviewing a number of emails between an opponent, who was a corporate director, and the opponent's spouse, thus running afoul of a confidentiality protection many of us forget as a source of hot documents — the marital communication privilege.[10]
Be careful out there.
3. Ethical Obligations Concerning Wire Transfer Scams: Just One Small Change to the Instructions
In February, we spotted the first known instances of lawyer discipline for failing to verify changed wire transfer instructions, leading to falling victim to scams, and causing losses of funds.
Three North Carolina lawyers were publicly reprimanded in what appear to be separate incidents.[11]
In these scams, a criminal usually hacks into the email systems of a party to an expected litigation settlement or business transaction, or their counsel, and, when the funds are about to be wire-transferred from one lawyer's trust account, the bad guy impersonates the recipient of the funds and issues a change in the wire transfer instructions designed to have the funds send to the bad guy.
What did these lawyers do wrong? They did not verify the wire transfer instructions with the recipient, in a manner that was both prudent and secure. North Carolina warned its lawyers about this scam in a written ethics opinion in 2015.
Apparently, the bar decided that their lawyers had been warned sufficiently and discipline was warranted for failing to safekeep funds. It's clearly time for all of us to up our game on wire transfer security and awareness.
2. Artificial Intelligence: "I'm sorry, Dave. I'm afraid I can't do that."
Thus spoke HAL 9000, the rogue AI in director Stanley Kubrick's masterpiece "2001: A Space Odyssey," denying astronaut Dave entry back into the spaceship Discovery.
Understandable perhaps, as it had discovered that Dave and his colleague were plotting to shut it down. In the year since OpenAI's ChatGPT launched, not only has generative AI had a more accelerated adoption than virtually any technology in history, it has launched an explosion of lawyer angst, hyperbole and high jinks.
That was the headline-grabbing sanctions decision issued by the Southern District of New York in the Mata v. Avianca Inc. case in June, in which a lawyer was sanctioned — and publicly shamed — for filing with a district court a ChatGPT-drafted court paper that included fake case citations.[12]
There has also been one reported instance of a convicted criminal defendant seeking a new trial on the basis of alleged ineffective counsel where he alleged that his lawyer incompetently used an AI tool to help craft his closing argument.[13]
AI has already infiltrated all manner of lawyer tools, from ediscovery platforms, to contract management tools, to legal research.
A vast array of existing ethics rules do clearly apply to our use of AI tools, including ABA Model Rules on competence, diligence, client communications, confidentiality, supervision and unauthorized practice — Rules 1.1, 1.3, 1.4, 1.6 and 1.9, 5.1 and 5.3, and 5.5, respectively.
Plus, some courts have perhaps overreacted by adopting local court rules and standing orders requiring disclosure to the court of use of AI tools.
The moral for the rest of us: Be aware of when your tools incorporate AI — whether you're using an AI-equipped legal research tool or a tool to predict how a judge will rule. Understand its intended use and how it works sufficiently before you use it. And be aware as best you can of Donald Rumsfeld's known unknowns, and even unknown unknowns, about the tool.
1. Cybersecurity: If a BigLaw Firm Can't Avoid Cyberattacks, Who Can?
When it comes to cybersecurity, who among us is safe? The answer: No one.
Cybersecurity continues to dominate the world of lawyer and law firm risk. But we soldier on, attempting to remain as aware as we can of the current cybersecurity risks and doing the best we can to protect ourselves and our clients against them.
Some of the 2023 high points include the continued sophistication of phishing attempts, and the need to protect against all manner of hacks, including ransomware. The tempo, seriousness and intensity of client demands for cybersecurity measures and visibility into law firms are all increasing.
Insurance remains a morass and a battleground for many firms, including increased premiums and more intense underwriting. Two possibly brighter notes: for solos and small firms, there has never been a greater ability to outsource cybersecurity protection to providers who are responding vigorously to customer demands to bake in security features to their products. And the move to ubiquitous cloud computing has aided this trend as well.
With that, we wish you the best for a safe and ethical 2024!
Lucian T. Pera is a partner at Adams and Reese LLP. He is a past president of the Association of Professional Responsibility Lawyers. Trisha Rich is a partner at Holland & Knight LLP. She is the Immediate Past President of the Association of Professional Responsibility Lawyers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Footnotes
- For a deeper take from Lucian, see his article here. {Lucian T. Pera, Ethics, Lawyering, And Regulation in a Time of Great Change: Field Notes from the (R)evolution, 74 S.C. L. Rev. 801, 2023, available at https://adamsreesepr.blob.core.windows.net/adamsreesepr/files/uploads/pdf/6509f5e57def7c002dbe92fb/file/4_Pera-Lawyering%20in%20a%20Time%20of%20Great%20Change.pdf.
- ABA Formal Opinion 508, The Ethics of Witness Preparation (Aug. 5, 2023), available at https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-508.pdf.
- ABA Formal Opinion 506, Responsibilities Regarding Nonlawyer Assistants (June 7, 2023).
- SuperCooler Techs., Inc. v. Coca Cola Co., Order, No. 6:23-cv-00187-CEM-RMN, 2023 WL 5284850 (M.D. Fla. July 17, 2023), and IBM Corporation v. Micro Focus (US), Inc., No. 22 CV 9910 (VB), 2023 WL 3902955 (S.D.N.Y. June 8, 2023).
- SuperCooler, supra.
- Impossible Foods Inc. v. Motif Foodworks, Inc., No. CV 22-311-WCB, 2023 WL 3790729 (D. Del. May 31, 2023).
- C. Bar Legal Ethics Cte. Op. 385, Advising Clients About Communications with Represented Opponents (Apr. 28, 2023), available at https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-385#:~:text=Given%20that%20a%
20lawyer%20cannot,%2C%20admissions%2C%20or%20binding%20agreements. - Hur v. Lloyd & Williams, LLC, 25 Wash. App. 2d 644, 523 P.3d 861 (2023).
- Cruse v. Cruse, No. CIV-22-181-G, 2023 U.S. Dist. LEXIS 37651, 2023 WL 2392737 (W.D. Okla. Mar. 7, 2023).
- Militello v. VFARM 1509, 89 Cal. App. 5th 602, 306 Cal. Rptr. 3d 200 (Cal. Ct. App. 2023).
- In the Matter of Jeremy C. King, No. 22G0098, North Carolina State Bar Grievance Committee (Feb. 20, 2023); In the Matter of Richard H. Morgan, No. 22G0281, North Carolina State Bar Grievance Committee (Feb. 20, 2023); In the Matter of William H. Morgan, No. 22G0710, North Carolina State Bar Grievance Committee (Feb. 20, 2023).
- Mata v. Avianca, Inc., No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023).
- See Josh Gertsein, "Pras Michel of Fugees seeks new trial, contends former attorney used AI for closing argument," Politico (Oct. 16, 2023), available at https://www.politico.com/news/2023/10/16/pras-michel-fugees-trial-ai-closing-argument-00121900.