Indiana Law Update – Professional Responsibility

I’m at the annual Indiana Law Update in Indianapolis – a 2 day continuing legal education seminar. The information provided is usually excellent, but it also has the benefit of getting one’s Continuing Legal Education requirements out of the way in one shot. I have the idea of just blogging some of the courses as a way of getting me to pay attention a little better than I usually do in these things. We’ll see how it goes.

First up is Donald Lundberg, a lawyer from the disciplinary commission with information on professional responsibility. First, watch out for representing multiple clients where their interests aren’t perfectly aligned.

Second, buyer & seller have the same lawyer and want to enter into a friendly negotiation/purchase agreement. Lawyer had both sign document acknowledging that he’d informed them of conflict, their right to separate counsel. Deal fell through. Buyer sued seller and the lawyer. Court of appeals upheld the trial court’s grant of summary judgment to the lawyer, saying that this was a conflict that could be waived by the client if the client was informed and consented to the conflict. That doesn’t relieve the lawyer of his duty to proceed competently, loyally, and diligently. If the conflict actually materializes such that the lawyer can’t proceed loyally, the lawyer has a duty to step aside.

Lawyer represents A in case against B in personal injury case. B goes to lawyer to sue C on a totally unrelated PI case. Not a good idea for the lawyer to take B on as a client or to drop representation of A so he can take on B’s perhaps more lucrative case.

Fee sharing cases – where lawyer A represents client for part of the time, then lawyer B takes up the case to conclusion. A wants paid for his work. B wants the whole contingency fee. The overriding presumption is that client shouldn’t have to pay more than one reasonable fee. Division of fees between attorneys should be relative to the work put in by each attorney.

James Dimos continued the professional responsibility discussion. He noted that a staggering percentage of corporate information is electronic. The phone is being used less. Paper is being used for a smaller percentage of communications.

Inadvertent disclosure – there is an increased risk of disclosing privileged or confidential information to the opposing side. In the past, this was a risk, but it is a greater risk now. It’s simply easier to transmit large amounts of information without closely reviewing what is leaving your office. Step 1 – pay attention to the recipient name in your e-mail. If you screw up, you have to tell your client what you did. (That’s gotta be a fun telephone call. But, it’s better than getting a phone call from Mr. Lundberg, nice guy though he is.)

Call back feature of the trial rules (proposed) – If you goof, you can send opposing counsel a notice of the disclosure. Opposing counsel is required to sequester the information until a determination can be made. (Opposing counsel has a duty to notify the attorney who goofed if opposing counsel becomes aware of receiving privileged information). This rule sounds reasonable to me, but there is a certain element of trying to unring a bell here.

Embedded data/meta data – The tracking changes feature of some word processors/author information, etc. What happens when you send over a contract with embedded comments not scrubbed? There is a split over whether merely looking for the metadata is a violation. All jurisdictions seem to agree so far that, at the least, you are required to notify the other side if you find some. However, metadata embedded in the normal course of a client’s business is discoverable and you can’t start destroying it in contemplation of litigation.

Blogging – Don’t know any attorneys who do that, but it came up. Definition of a blog was discussed. Very helpful. Am I creating an attorney-client information when one of you guys posts a comment and I respond? Maybe I need a brick of disclaimers attached to all of my comments. (The Indiana Law Blog was specifically referred to in a positive manner. No such luck for yours truly. Ah well.)

E-mails – If you get an unsolicited e-mail about a case you don’t want to take, you might consider sending a reply specifically telling the person if you’re not interested in handling the matter.

End of first session.