Staying Out of Trouble: Learning from Other Lawyers’ Mistakes
Recent news regarding legal mishaps reveals that mistakes can be avoided if proper systems and procedures are in place. For instance, a court ruled that a client forwarding an email to a third party waived privilege. A lawyer was sanctioned for plagiarism of another attorney’s brief. A firm had to file notice of data breach due to an unencrypted USB drive. Let’s look at some of these examples and how to avoid them.
Example 1: Forwarding Email to Hotel Front Desk for Printing Waived Privilege!
Embroiled in impending litigation, the president of a company forwarded counsel’s email to the front desk of his hotel to print for him prior to a meeting. Though it was not discussed how the opposing party found out and got a copy of the email. Under California law if a client discloses an attorney-client communication to unnecessary third parties the client manifests an intent to waive privilege.
Whether assumed waiver holds true under various state and federal laws, the moral of this story is to advise the client NOT to share communications (emails, text messages, written documents, recorded voicemails, faxes, etc.) with anyone to maintain attorney-client privilege. Remind the client in the engagement agreement, on the invoice, and with the correspondence itself when reasonable.
You can also consider technical ways to reduce someone’s ability to share the information. Email encryption, client portals, password protection, and Information Rights Management can all at least ensure that someone must go through a few hurdles (and hopefully think harder about it) than simply hitting “forward” on an email.
Example 2: Backlash follows lawyer’s recorded celebratory comments about how he won his case
After a big win in a medical malpractice case, an attorney assembled the team to thank everyone for their efforts. The attorney discussed some aspects of the case, intimating that though the client might have been at fault they were able to exonerate him. This was recorded and briefly posted on the firm’s social media page. The firm took it down but not until after it was reposted by others and the story was picked up by the Los Angeles Times.
This created a backlash and the attorney had to make public apologies to his client, opposing counsel, and the medical and legal communities.
Two lessons to learn here. First, think twice about what you post to social media. It is forever. Second, no one in the firm should be filming a firm meeting. Since most everyone can blatantly or subtly record anything, anytime, anywhere on their smartphones, it may be incumbent on the firm to create a policy to enforce a prohibition on recording of firm meetings for the purposes of client confidentiality.
Example 3: Still sending data via unencrypted thumb drives in the mail? It will cost you.
A law firm submitted a data breach notification to the state of New Hampshire with an explanation about how the breach occurred. The firm sent an unencrypted thumb drive of a client files through the US Postal Service. The envelope arrived at its destination torn and empty. The firm contacted USPS, where they learned this was a common occurrence and the USPS representative said that the Manchester, NH post office had “several buckets” of thumb drives which had been torn free from their envelope in the mail sorting process.
Lessons? When sending electronic files on portable devices always encrypt the device. You can buy devices with encryption built in. Use strong packing materials, even consider wrapping envelopes in packing tape to make it harder to tear. Or consider a way to provide a secure link to the files via deal rooms, online storage, or another way – with appropriate security in place – to share the files.
Example 4: Sanctions for Lawyer’s Plagiarism of Opposing Side’s Motion
A Pennsylvania judge sanctioned an attorney and awarded plaintiff’s lawyers $8,483.55 in fees and costs for plagiarizing opposing counsel’s motion. The judge cited PA RPC 3.3 Candor to the Tribunal, PA RPC 8.4 (c) Misrepresentation, and PA RPC 1.1 Competence in the opinion.
The plagiarism was discovered in part because it repeated not only the language of opposing counsel’s motion, but also reproduced three editing errors and failed to change the names of the parties in several places.
No matter the rush you may be in to submit by a court’s deadline, plagiarism is not the answer. Time management skills are essential in law practice. Also, maintaining templates and clause libraries, saving research so you can easily retrieve citations, and other ways to ready yourself to respond quickly will reduce the urge to make an unwise decision.