ABA Standards for Imposing Lawyer Sanctions

At its midyear meeting in 2012, the ABA House of Delegates reaffirmed the ABA Standards for Imposing Lawyer Sanctions as originally adopted in February 1986 and amended February 1992. In addition, the House of Delegates rescinded its adoption of the commentary to the standards. Click here for the resolution as adopted followed by the Standards.

See in particular the section starting on page 59

The Connecticut ACLU has released its 2013 Guide to Privacy Rights in Connecticut. (Thank you ACLU CT!). From the perspective of a lawyer’s ethical obligations to protect client information one may wish to turn to page 59 on which begins the section entitled Personal Identifying Data Held By Private Companies. I haven’t looked yet to see if there is an exclusion for law firms (doubtful) or for firms smaller than a certain size (doubtful too). Technology in general and data protection in particular have added layers of complexity to the practice of law that one ignores at one’s peril.

At the Cyber Risk seminar held during the Annual Meeting last Monday (June 17, 2013) one of the panelists observed that HIPPA applies to law firms in possession of client health records – personal injury firms, both plaintiff and defense, especially med mal, come to mind.

It’s hard to imagine how lawyers – other than those at the largest firms perhaps or at firms specializing in privacy law- can afford to understand  all the “environmental risks”  that face the practicing lawyer. By environmental risks I mean laws that create risks other than the risk of malpractice in the traditional sense, i.e. missing a statute of limitations, for example. Now one needs to worry about data security in a way and to a degree that simply wasn’t necessary when client data was stored in basements, garages and other musty places that few would ever want to break into. Now it seems there is a long line of parties interested in accessing digital data for any number of reasons.

As efforts are made to com-modify and thus simply the production of legal services, making them less expensive, the environment in which law is practiced is becoming more complex and presumably more expensive.

CBA Annual Meeting Gets an A+.

I was only able to attend two seminars: Cyber Risks and Insurance: Understanding the Exposure, Knowing the Coverage, and Limiting the Risk; and  Zen & the Art of Googling. Both were superb top to bottom. The Annual Meeting’s theme, Transforming Your Practice For The Future, was well chosen and might well serve as the theme for annual meetings in the years to come.

My takeaways from the seminars:

Re: Cyber Risk

  1. Cyber Risks are real and potentially devastating, ESPECIALLY for smaller firms (both law firms and clients) because they typically don’t spend much if any time on the most crucial aspect of cyber risk management: PREVENTION.
  2. Unless one has a good cyber risk policy, one’s existing policies of insurance are unlikely to cover the losses attributable to data loss and invasions of privacy.
  3. For everyone, insurers included, cyber risk is a new, large and very scary territory.

Re: Google

  1. Google has “hidden” capabilities (such as Google Scholar and Legal Documents) that can be very useful for lawyers and that are relatively easy to use – if one knows about them.
  2. There are easy-to-learn techniques for using Google that make it much more likely your search results will be relevant.

Those who attended the annual meeting were given thumb drives containing the seminar materials. I don’t know if those materials are available for purchase from the CBA but if they are I recommend buying them if for no other reason than to get the materials relating to Cyber Risk.  (The materials prepared by the technology folks from Yale Law Library are available online but I don’t know if I am permitted to give the url.  I’ll try to find out. If I have permission, I’ll provide the url in a later post.),

Based on the two seminars I attended, the CBA offered great value to all who attended.  If you don’t belong to the CBA, consider joining.  Some lawyers ask, “Why should I join? What’s in it for me?” With respect, I think those are the wrong questions. A better question is “What can I do to contribute to the CBA and through it to the profession?” By not just becoming a member, but by participating in the various sections and committees, one will get a great deal out of belonging to the CBA and will have the satisfaction of knowing that one is part of the profession and contributing to it.  The profession needs good people to do good things as it undergoes such rapid change. One good thing is to ask “How can I help?” And then do what one can to help, whether one belongs to the CBA or not. That said, an easy place to start for those who are not members is to join.  Click here.

The Robert P. Lawry Lecture in Legal Ethics – Fred Zacharias – Do Lawyers have a Duty to Lie?

The surprising issue in this interesting lecture by Professor Zacharias is whether lawyers have a duty to lie to the court under certain circumstances. Beginning with Lord Brougham’s famous quote and referring to arguments by the always thoughtful and provocative Professor Monroe Freedman, Professor Zacharias gives an articulate explication of the potential justifications for lawyers lying to the court and to the consequences of acting on such a “principle.” The link is to the lecture as it appears on YouTube. I recommend it.