Oregon State Bar Bulletin DECEMBER 2015
A Year-End Ethics Audit
By Amber Hollister
As we rush toward the end of 2015, lawyers across Oregon are busy meeting year-end deadlines, tending to the needs of clients, cheering for their favorite sports teams, buying last minute gifts online and attending holiday parties. Understandably, honing your ethics know-how may not make it onto your seasonal to-do list. But traditionally, the year’s end is a time to step back and take account. Why not take a moment to see how you measure up?
This year’s pop quiz is focused on ethics quandaries raised by modern practice — cloud computing, eCourts, smartphones, social media and recent legal developments.
Pull out your pen, dust off your rules and answer the questions below. Then turn to the answer key for the correct answers and a discussion of the issues.
1. As part of your New Year’s resolution, you have decided to go paperless. You research cloud computing options online and decide that the most cost-effective option is Rip City Cloud, an online service that launched last month and is based in Ukraine. What should you do?
A. Grab your credit card and get started. Paperless is the wave of the future.
B. Move forward, but make sure that you pay for the service out of your lawyer trust account.
C. Review the terms of service and determine whether the service will reliably secure client data and keep information confidential, and it is otherwise consistent with your duty to provide competent representation.
D. Ask your law school buddy Rasheed to try the service first and see if he is satisfied.
2. Geoff, the CEO of a Colorado recreational marijuana business, wants to talk with you about expanding his business into Oregon. He needs advice on Oregon employment laws, OLCC permitting, banking laws and real estate matters. Can you provide him with advice?
A. Yes, because recreational marijuana is legal under Oregon law.
B. No, unless you provide the advice from Colorado.
C. Yes, qualified. You may provide legal advice, but if Oregon law conflicts with federal and tribal law on any issue, you must advise Geoff regarding the related federal and tribal law.
D. No, because marijuana businesses are illegal under federal law.
3. Your client Brandon calls you about a boundary dispute with a neighbor, Kiki. Brandon explains that he used his smartphone to record a conversation with Kiki about the boundary dispute while standing in his driveway. Brandon wants to email you the recording. When you ask Brandon if he had Kiki’s permission to record the conversation, he states he thinks Kiki knew he was recording, because he was holding his smartphone out the whole time, and it beeped at the start of the recording. What should you do?
A. Determine whether the recording was illegally obtained. If so, refuse the recording and advise Brandon to seek advice from a criminal defense attorney if necessary.
B. Listen to the recording and decide whether it can be used to Brandon’s advantage.
C. Call Kiki and disclose that Brandon made the recording.
D. None of the above.
4. You recently changed firms. After a couple of weeks in your new office, you realize that you are still receiving eCourt notices on cases that are being handled by your old firm. The notices list you as attorney of record. You are unable to represent the clients. What should you do?
A. Ignore the notices that dribble in. It’s your old firm’s problem.
B. Notify your former clients that you have left your former firm and are terminating your representation, and withdraw from representing them in the manner required by the court’s rules.
C. Forward the notices to your old firm and hope the situation fixes itself.
D. Call your former colleague Damian, and ask him to file a notice of substitution.
5. A divorce client tells you that her ex, who is represented by counsel, has been bragging on his FaceBook page about his new “under the table” job. The client informs you that her ex has unfriended her, but she knows he always uses the same password, BlazersFanForever. She offers to log in to his FaceBook page to show you his posts. What should you do?
A. Call the ex and recommend that he change his password.
B. Accept her offer. Review the page, take notes on the new job, and prepare a new spousal support calculation based on the additional income.
C. Decline her offer, but ask your legal assistant to “friend” the ex, so you can review the posts on your own.
D. Decline her offer to look at the page, and seek discovery on his FaceBook posts through the normal course.
6. You are representing Damon in the purchase of a large residential property on the banks of Lake Oswego. The seller, Arvydas, is represented by counsel. In the middle of the representation, Arvydas texts you to ask about the updates Damon has requested to an in-home basketball court. Can you respond with your client’s position?
A. Yes, because Arvydas texted you first and your client wants to get this deal done.
B. Yes, because Arvydas doesn’t want to talk about key terms of the deal and text messages don’t count.
C. No, because Arvydas is a represented party.
D. No, because you have a conflict of interest.
1. Answer C. Review the terms of service and determine whether the service will reliably secure client data and keep information confidential, and is otherwise consistent with your duty to provide competent representation. As outlined in OSB Formal Opinion No 2011-188, lawyers who contract with third-party vendors to store files in the cloud must keep the client information confidential, RPC 1.6(c), and must make reasonable efforts to ensure that the vendor’s conduct is compatible with the professional obligations of the lawyer, RPC 5.3(a). When it comes to online services, a lawyer should take the time to review the terms of service and carefully consider what safeguard are in place to protect client files. A lawyer should determine whether an online service complies with industry standards relating to confidentiality and security and whether the service agreement requires the vendor to preserve confidentiality of materials. Lawyers should also consider how the vendor backs up and stores its data and metadata. If the service is based overseas or does not have an established track record, it may be more difficult for the lawyer to recover data in the case of an emergency. Ultimately, the reasonableness of a vendor’s protective measures will be measured against the technology available at the time, which may change as industries develop and evolve. For an additional discussion of these issues, see “Going Paperless: Ethical considerations,” Helen Hierschbiel, Oregon State Bar Bulletin April 2009.
2. Answer C. Yes, qualified. You may provide legal advice, but if Oregon law conflicts with federal and tribal law on any issue, you must advise Geoff regarding the related federal and tribal law. Newly adopted RPC 1.2(d) provides, “a lawyer may counsel and assist a client regarding Oregon’s marijuana-related laws. In the event Oregon law conflicts with federal or tribal law, the lawyer shall also advise the client regarding related federal and tribal law and policy.” While users, producers and retailers of marijuana who comply with Oregon’s marijuana laws are protected from state criminal prosecution, their activities remain illegal under the Federal Controlled Substances Act and other related federal statutes. RPC 1.2(d) does not require that lawyers advise their clients about the details of federal and tribal law. Instead, lawyers are expected to identify the issues and refer their clients to lawyers with the appropriate level of expertise, if necessary.
3. Answer A. Determine whether the recording was illegally obtained. If so, advise Brandon to seek advice from a criminal defense attorney if necessary. The lawyer should determine whether the recording was illegally obtained. See ORS 165.540 (Obtaining whole or part of communication). Under the facts provided, it appears that Kiki knew or reasonably should have known that Brandon was making the recording. If the lawyer determines the recording was legally obtained, the lawyer may accept the recording and evaluate whether it would be helpful in the dispute. If the lawyer determines the recording is illegally obtained, the lawyer should advise the client of the illegality and recommend, if appropriate, that the client seek advice from a criminal defense lawyer. A lawyer who learns information that links a client to a crime is ordinarily prohibited from disclosing that information to others.See RPC 1.6(a) and OSB Formal Ethics Op No 2011-186. Lawyers should only accept evidence of a crime if they plan to make it available to a prosecutor. OSB Formal Ethics Op No 2005-105.
4. Answer B. Notify your former clients that you have left your former firm and are terminating your representation, and withdraw from representing them in the manner required by the court’s rules. When a lawyer leaves a firm and is unable to continue representing a client, the lawyer must comply with RPC 1.16 by giving the client advance notice that he or she will end the representation, moving the court to withdraw from the representation if required by law, and taking reasonable steps to protect the client’s interests as required by RPC 1.16. See ABA Formal Ethics Op No 99-141 (describing how to provide notice when an attorney departs a firm). For a departing lawyer, reasonable steps to protect the client’s interests may include informing the client or new lawyer of the status of the case and any pending issues or deadlines. See OSB Formal Op No 2005-70. Until an attorney withdraws from the representation, the lawyer continues to have a fiduciary duty to the client, including providing competent and diligent representation and communicating about the status of the case. RPC 1.1, 1.3, 1.4.
5. Answer D. Decline her offer to look at the page, and seek discovery on the FaceBook posts through the normal course. Under the circumstances described, the client’s proposed conduct may very well constitute a crime. See ORS 164.377 and Computer Fraud and Abuse Act 18 USC 1030 and Stored Communication Act 18 USC 2701. You should counsel your client not to engage in illegal conduct, but you may not reveal your client’s intentions because they are confiential. See RPC 1.6(a) and OSB Formal Ethics Op No 2011-186. You should not direct your legal assistant to “friend” the ex because lawyers are prohibited from communicating with a represented party, or directing others to communicate on their behalf. RPC 8.4(a)(1); OSB Formal Ethics Op No 2013-189. For more information on social media investigations, see “Think Before You Click: Aliases, Covert Activity and Social Media Investigations,” Amber Hollister, Oregon State Bar Bulletin June 2013.
6. Answer C. No, because Arvydas is a represented party. RPC 4.2 prohibits a lawyer from communicating with a person whom the lawyer knows is represented by counsel on the subject of the representation. Here, you know Arvydas is a represented party, and that he wants to talk about the subject matter of the representation. It does not matter that Arvydas initiated the conversation. Text messages are communication. Courts have interpreted RPC 4.2 broadly, finding a violation even where the lawyer is ignorant of the prohibition (In re Venn, 235 Or 73 (1963)), or acts negligently (In re McCaffrey, 275 Or 23 (1976)), or impulsively (In re Lewelling, 296 Or 702 (1984)) or where the communication was brief or not likely to cause serious harm (In re Hedrick, 312 Or 442 (1991)).
ABOUT THE AUTHOR
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free (800) 452-8260, ext. 312, or by email at firstname.lastname@example.org.
© 2015 Amber Hollister