E-Discovery Requests – Are Your Clients Prepared? Are You? Part 2
This presentation was given on May 22, 2008 at Raymond James, 880 Carillon Parkway, St. Petersburg, Florida and sponsored by the St. Petersburg Bar Association In-House Counsel Section.
Documents include:
Continuing Legal Education Part Two
Attorney: Okay, carryover. [Referring to visual aid] What I was talking about before I put up the image of this handsome devil was all the innocuous-seeming devices that could be really ruinous, and the employee from hell, the guy with the horns and so forth that you need to watch out for,
Attorney: This is not so much a metaphor to help you communicate to people who need to know it as for the sort of thing I need to remind myself of always, and perhaps some of you out there might need to as well: I’m a lawyer. I think about how things can blow up. I think about how things can threaten. I’m not an entrepreneur. I’m not one of these people filled with boundless energy and optimism who make businesses work. And the danger is that you can convey these dark tidings in such a way as to push the business type in the direction of overcontrolling [and] overcompensating. That’s not their natural default setting, but it is mine, and it might be some of yours as well.
Attorney: Try to imagine a scenario whereby a company tries to enforce these policies by having someone like this [referring to visual aid] enforcing strict military discipline on the employees. I don’t know that that would work terribly well. What I said before was that you have to tailor these things to specific businesses [and] specific operating environments, and your business contact is an expert in respect to that. I certainly am not. Probably most of you are not. There is, of course, a point beyond which the attitude that I’m talking about – which is alertness to these sorts of threats – can be, or give rise to, a cure worse than the disease. The best illustration I can come up with for that was this [referring to visual aid]. This is probably an illustration of “live by technology, die by technology” . . . can you see how those warnings might have an inhibiting effect on things that are supposed to happen on a date?
Attorney: Likewise, there is a danger – perhaps most of you are not subject to it but I am – of making the croakings of doom unduly persuasive and dark. Take the extreme case. Let’s assume that I paint the technological picture so black that an employer bans computers altogether from the business. They go back to pencils, pads, and abacus-ses. Certainly there are an awful lot of productivity-enhancing computerized activities that have dangers. But the upside has always a downside. It is important that you structure your advice and bear in mind the attitudes of your listener in such a way that it doesn’t get translated into such a situation that the productive endeavors are squelched as well.
Attorney: When it comes to these policies – policies that we would recommend that clients adopt – certainly document retention policies, but also permissible use policies, things about not downloading things to the c: drive, not taking things off of the c: drive and putting them on the flash drive, and selling the flash drive on EBay, and so forth. More isn’t always better. Let me illustrate that with this, and then I’ll tell you more specifically what I mean. [Reference to visual aid]. The interesting thing is we’re actually headed in that direction. The Economist magazine did a projection based on the number of [shaving] blades. Apparently the power law curve would have us reach that after some length of time. But the current curve would have us get there right about now. I have to admit, shamefacedly, that I do have a six-blade razor in my life . . . and I like it. But no, more is not necessarily better. I’m not signing up for a Quintippio and here’s what I mean about that with respect to policies.
Attorney: If a policy gets so detailed and covers so much that it, well, “reads like stereo instructions” was the metaphor used earlier, what’s your compliance going to be like? There will be people who, despite good-faith effort, won’t understand it. There will be people who recognize that they expend more effort trying to comply with policies than do what they’re actually paid for. You’re going to have spotty compliance.
Attorney: And I could not agree more with what Mr. [Eric] Adams said with respect to these document retention policies, which was: if you’re going to have a policy, make sure the policy’s followed. Having a policy and not having it followed is a suicidally bad idea. Make sure the policy itself is kept in a reasonable balance. Keep it to a length that can be actually observed. Keep it to a level of simplicity so that it can be readily understood, readily applied, and so forth. That means that it will leave uncovered, no doubt, some contingencies that I, bless my little pessimistic soul, would probably like it to cover. But it will actually get more in the way of the clients, and that’s really the more important factor under the circumstances. Make sense?
Attorney: [Referring to visual aid]. Does anyone see a problem with this? Sir, you’re laughing in the back. Are you one of these nut jobs who think that NASA faked the Sun landings? [laughter] Well, what I’m getting at here: you saw Mr. Adams’ Pac-Man was about to devour the remaining little slip of paper information out there. Most of the documents are generated electronically, which means that they are subject to electronic manipulation. And they can be made to show things that do not reflect reality but rather reflect the hand of the malign artificer who is changing things. By the way, the things that I’m putting up here, you’ll see a little bit later, but there’s a site where they have PhotoShop competitions. They come up with a theme like “Fake History,” and people compete by taking photographs, altering them using PhotoShop, and then they get ranked and so forth. I don’t know if you’re familiar with that site. Anybody ever run across that site before? Worked with them? Okay. You can probably make out the logo on most of these little images that I put on the printout of the PowerPoint, but it’s www.worth1000.com, as in, “a picture is worth a thousand words.” Not all the pictures are all that interesting or all that fun. I tend to take the cream of the crop. But you will find some interesting things there.
Attorney: And just to illustrate this a bit farther [referring to visual aid] . . . If you ever see a frog that looks like that, are you going to call the police? Call the humane society? Call the zoo? I don’t know, but I will go ahead and represent to you that I’m fairly confident that no penguin ever – aviator goggles or no – went flying with the gulls like that. I’m fairly confident that no Amish speedwagon of that description ever competed in a NASCAR race. And I’m utterly certain that there’s no such thing as a hippopotapillar. [laughter]
Attorney: So, what should you be concerned about? That somebody’s going to fake-PhotoShop things? Well, I suppose that could come up in a corporate context. But what I’m thinking about is more along the lines of employee misconduct. And that is an area that can come back to bite you big time. This is something that has plagued me for the past fifteen years. Pre-digital, my initial exposure to it. That was a situation where, long story short, there was a 37(b) spoliation, death penalty sanction, punitive damages, so forth. I was brought in very late on the appeal end of it – actually on the certiorari petition end of it – which of course went nowhere. But it was a situation where an employee, attempting to cover his poster, did some things with documents that ended up looking like had been authorized by central casting. Now, dewy-eyed naïf that I was, I actually believed that central casting was innocent. I still do. I can still be dewy-eyed in that respect. But the danger is that someone not acting for the corporation will alter records in such a way that, when you have to make discovery response to an e-discovery request, the substitutions, the fakery, the hippopotapillar, will come into full light of day. And it’s sure going to look like your client has been engaged in some skullduggery. That sort of skullduggery is something that judges have no tolerance for. Hence, 37(b), et cetera.
Attorney: What I wanted to get across is the importance of bearing in mind how malleable, how changeable, how subject-to-tampering-with, e-documents of various kinds are. There are some exceptions to that, and to some extent this is limited by what I said before about the difficulty of erasing things. Usually the originals or “undoctored” versions will exist in some format somewhere and can be discovered as well. But that’s only going to happen if you’re casting a fairly skeptical eye on the documents that are produced by your own side, your own people. Which puts you in a situation of responding to an e-discovery request creating what is, essentially, almost an internal investigation. And that is something that is almost inevitable in this setting. It’s a matter of degree, but you have to turn the searchlight inward to look at your own document policies and your personnel involved, your procedures involved, and I’ll talk about some ethical implications of that in a minute.
Attorney: [Referring to visual aid] Okay, there’s the definition [of metadata] from the Florida ethics opinion: information about information, describing the history, tracking, or management of [an] electronic document. I’m not so much going to go into the actual definition of it or giving detailed examples of it. What I’m going to do is talk about three different metaphors for wrapping your head around it – unless, you’re probably up to speed already by now. But getting it across to people who need to know about it and who don’t have the sort of background with respect to discovery, and possibly, with computers that you may have.
Attorney: So, yes, metadata is the sort of thing that you get when you right-click on a file and say, “Properties”: when it was created, when it was accessed, and so forth. There’s much, much more to it than that. There can be documents that come back to embarrass a number of people, whereby earlier versions of a document are stored within the same file as the current version, so that you can roll it back to a prior iteration and you can see what the other person deleted. In fact, Kofi Annan, his office, the UN office, had a really serious embarrassment along those lines. It can come up a lot of different ways. Like I said, I’m not going to talk so much about the metadata definition and what it may consist of, as in ways of helping you help others wrap their minds around the idea that this stuff exists at all. Because once they understand that it exists, they can get the idea that they need to get control if it. They need to understand what it consists of. Perhaps [they need to] scrub it, if that’s the legitimate thing to do under the circumstances.
Attorney: Let’s start with the contraband cornstarch metaphor. [referring to visual aid and speaking to audience member] Ma’am?
Audience: Yes?
Attorney: I’ll ask you not to touch this just yet.
Audience: Okay.
Attorney: [to full audience] That is a scenario I’ve used every time I taught Professional Responsibility or Ethics. That is the beginning of the punch line. You have a client. You’re a criminal lawyer and you represent someone in a criminal matter. He is very happy with you. He has – you sprung him from jail on another matter. He’s about to flee the jurisdiction. He says, “By the way, I don’t want to have this on me in case I get stopped,” dumps it on your desk and says, “You’re doing a fine job and I’m recommending you to all my friends in Mexico,” hops on his Harley, and BRMMMMMM, he’s outta there. Okay. What do you do? [to audience member] What do you do?
Audience: You’re asking me?
Attorney: Yes, Ma’am! You have on your desk a glassine bag full of highly contraband cornstarch. What do you do? Being an ethical lawyer-type?
Audience: Leave the room, call my carrier . . . [audience laughter]
Attorney: Actually, that probably should have been the response to my earlier query about 4.4(b) – you have the duty to let somebody know when they have inadvertently sent you a confidential document, let him know so that he can call his carrier.
Audience: I’m a probate attorney. I would probably call the police.
Attorney: Any thoughts, anybody? Or at least the issue-spotting as to why she’s at a conundrum?
Audience: She doesn’t have a conundrum if she doesn’t open the bag. She should maintain plausible deniability of ignorance, right?
Attorney: Deniability I don’t know about . . .
Audience: He was sharing baking goods with her. It’s not cocaine.
Attorney: Uh-huh. Let’s assume, by the way, that it is cocaine. What if she reasonably believes it can be cocaine and she’s right? Sir?
Audience: You are in the crosshairs. A lawyer cannot participate in a crime. And he – there is no privilege as relates to a crime.
Attorney: Also, it’s not a communication.
Audience: My position would be to call the police and say, “I can’t identify where this came from, but . . . .”
Attorney: “You take it.” Okay. That is the least-bad solution, in all likelihood, at least according to the people that I’ve spoken with. There is not a good one. Other suggestions, over the course of the years, have been — I’ve done this at Inns of Court and various other settings as well – but one of them said “I’m going to throw it away.” That’s a problem. One, you’ve exercised dominion over it. You’ve established your own possession, not necessarily criminal possession, but possession.
Attorney: But from a standpoint of trying to wrap your head around metadata, what’s the biggest problem with destroying it or moving it or even touching it? Well, how about fingerprints? Fingerprints are evidence, right? Evidence of provenance, of where it came from, a connection between the possessor who put it on your desk and the actual contents itself, right? And if you throw away the bag, you probably not only have removed evidence of the instrumentalities of fruits of crime, but you probably destroyed that physical connection to that criminal. That’s not metadata. But it’s a pretty good metaphor for metadata. It can be highly significant whose fingerprints are on the bag, suggesting what mitts were on the bag of cocaine, right? Well, it can be highly significant who originated a document, where it originated, when it was last accessed . . . a long, long, long, long list of things. And that’s one way that you can explain it to the client . . . .
Attorney: How about this metaphor? Nonverbal communication. Words need not be spoken for meaning, significant meaning, to be conveyed. Here’s an example of that [referring to visual aid]. So, metaphor number one: fingerprints on the bag. That’s not metadata but might be something that would help someone who would otherwise has trouble grasping the concept, grasp the ideas that there are tags associated with data that can be very significant. This: nonverbal communication. Words are very significant, but sometimes things other than words, or accompanying words, are even more so, right? There wasn’t any doubt whatsoever about what was going on here.
Attorney: Context. I already picked on the probate lawyer. [to audience] Sir, may I pick on you?
Audience: Sure.
Attorney: Please, kindly read that.
Audience: Reads the following:
Attorney: Very good to me, man, you’re all over it. So you should have no trouble whatsoever with this [referring to visual aid]. How about it? Go ahead.
Audience: Read it in French or English? I don’t know that language.
Attorney: You did the first one just fine. What’s the matter?
Audience: I was whispering; you couldn’t hear it at the beginning.
Attorney: Oh, okay, fair enough! It says exactly the same thing only, yes, the scrambled-letter words are in French. It helps if you have a wife who’s from Quebec. But in any event, the reason you unscrambled the first part was that you got the coding of English on your brain. You were able to take a considerable amount of distortion and filter it out. Piece of cake. You are not, I assume, fluent in French. Therefore some difficulty.
Audience: My wife’s from Georgia.
Attorney: Ah, Okay. Georgia. Well, I don’t know that I could have set it up there in Georgian.
Attorney: But in any event, the third metaphor: that context, or background information, or background knowledge, can help you make a great deal of sense out of things that otherwise, at first glance, don’t make sense within themselves. So again, I’m less concerned with getting you the specifics of what metadata is or isn’t. It’s a deep subject. If you want to read up on that, type the word “metadata” into Google and zoom. You don’t even have to do it on Westlaw. You have a great deal of information at your beck and call. A recent article in the Florida Bar Journal on that, and then hits with this, lots more, you can get all you want.
Attorney: The hard part, I think, is getting the client contact from “Uh-uh, yeah, metadata bad, right, got it,” to actually getting some sort of understanding of what it is and basing an action on that realistic understanding. Going back to that very first image that I had up there, communication, if you know everything there is to know in this area and you communicate it accurately to the client, but the client can’t absorb it and turn it into meaningful, effective action, you haven’t achieved much, correct? So I don’t know that your client would actually need the metaphors. Probably, and perhaps most wouldn’t. But it would be such a bad thing if the client needed them and didn’t get them. You know your clients; you have a better idea of how to reach them; this might give you a sense of how to connect. Sir?
Audience: One of the things that some of the devices on metadata will do is – well, metadata will allow you to go back and take a look at prior drafts of a document -
Attorney: — mmm-hmmm, rolling it back -
Audience: — by essentially scrubbing the metadata, you can’t go back necessarily, at least with these rolled back you see the various drafts. The question I ask, though, if someone asks for a copy, in discovery, of all drafts of a document and you had scrubbed the metadata, don’t you have a problem?
Attorney: You have a huge problem. And that – well, it’s the same thing we’re going to get into with redaction, and that is: metadata’s a problem. Scrub it if you may legitimately do so. Redaction is if you’re allowed to legitimately do that. When are you allowed to legitimately do that? If you do so pursuant to policy, that will very much help. But the main consideration is going to be “should there be a litigation hold?” Are you in litigation in a matter where this is reasonably anticipated to come into play? So once the litigation situation has arisen, it’s too late. You can’t metadata-scrub.
Attorney: There are, as I say, the kind of programs that would let you do that – that will knock out the extraneous information and allow you to save, transmit, whatever else, only the information that you want to transmit. We’re going to talk about that a little bit more, not too much. But please do understand me to be saying that metadata’s a problem and you should kill it – I’m referring only to situations where it’s legitimate to kill it.
Audience: What is this? You quote this Florida ethics opinion on metadata, what is that? . . . Are they telling you what you can and can’t do?
Attorney: They’re telling you what you should and shouldn’t do. To some extent it deals with “can and can’t.” You can pull it up fairly easily, but I have a copy of it right here. The short answer is, it covers this whole subject. It’s not in great detail, but it’s a good place to begin with respect to specifics. And since you’re the one who asked, you get the copy.
Audience: Thank you.
Attorney: If anyone else would like a copy, it’s easily obtainable through the Florida Bar website. It has a link for ethics opinions. You can type the word “metadata” into it and that will pop up. But if you want it from me, send me an email and I will link it back.
Audience: The other observation I’m sort of waiting for in your talk is that in the discovery request, you should probably have specifically requested that thing.
Attorney: Yep. And multiple drafts, and all that other good stuff, to the extent that there’s a distinction between the two. Conceivably there exists a situation in which metadata is scrubbed legitimately pursuant to policy, but multiple physical drafts continue to exist. Or perhaps the multiple physical drafts were scanned, so that the original, let’s say, Microsoft Word document has been metadata-scrubbed and is saved, but there are other drafts of that same document saved in other formats. So that’s a situation where you’re right – you would request several different classes of metadata. But don’t think of that as being in the alterative to requesting the various drafts. Because a responsive document may exist to one or the other, but not both.
Attorney: Moving on, this is kind of funny. The Army had a report that it made public — I’ll try and keep this short in the interest of time – and it covered over a sensitive thing. The PDF version they produced, with these black blocks, when they produced the PDF files. Well, what did some enterprising reporter do but pull the document PDF and remove the blocks. You want to talk about metadata? This isn’t even metadata; this is just a document that can be edited. That’s a problem. If you have a situation where it’s legitimate for you to redact, you’ve got to make sure that information that you’re trying to protect is completely unretrievable to the extent that’s humanly possible.
Attorney: [Referring to visual aid] Isn’t that interesting name? SNAC? Particularly when you reflect that it’s a subdivision of the National Security Agency? Used to be super-secret and they used to say it was supposed to stand for “No Such Agency”? This is the bureau that does the . . . basically signals spying throughout the world. It produced an article on how to make sure that you don’t inadvertently trip over your redactions. I’ll just give you some idea of how important this can be.
Attorney: Now, how are you going to redact? This is not meant to be taken literally. This is largely a metaphor. But, again, let’s assume we’re in an e-discovery situation. Let’s assume that you are in a situation where you are allowed to redact. Let’s assume maybe there’s a ruling to that effect. You have to produce the document, but the document contains information that you legitimately can’t hold back. You do not want to pull it up in PDF and put a nice big black block over it and produce the PDF to the other side, because that gets peeled back. What do you want to do?
Attorney: I will tell you what will work. It’s labor-intensive and I’m not suggesting this as a comprehensive solution, but if you look at that first page of my document printout, that letter, that’s what I did. I took that letter and I exacto-ed out the bits I didn’t want people to see, and I put behind that a sheet of paper (you can affix that to the top of the copier) that said “redacted, redacted, redacted.” Why do you suppose I did that? Well, if you are redacting things . . .yes, ma’am, please?
Audience: You have to show [unintel].
Attorney: Right, because that’s relevant information in and of itself. Plus, if the redactions were subtle, it could look like you were altering a document and you’re not being forthcoming about having it altered, right? Well, in a situation like that, it ain’t comin’ back. You’ve taken the paper. You’ve cut out the language, and you indicated where it was by the word “redacted.”
Attorney: Why am I not contenting myself with just the usual elegant Spitzer . . . are you familiar with a website called The Smoking Gun? It had all these documents put up by like the Spitzer indictment – the indictments that refer to Spitzer as Client Number 9, I think? Well, commonly, we see that they used black magic marker. Why am I not satisfied with black magic marker, do you think?
Audience: You can see through it.
Attorney: You can see through it. There’s a significantly different index of reflection and refraction between the magic marker and the toner underneath it. Not uncommonly, when you run it through a photocopier you can just see through it. But even when you can’t, not uncommonly, if you put it up on Photoshop and you played with the contrast, oop! It comes right up. Which is why the only way I’m satisfied is if the text is just flat gone . . . those are the steps that I was talking about.
Attorney: But this is what I’m getting at more generally. And this is the part that can work more generally. I’m not suggesting that you Exacto-knife everything. It would be, probably, prohibitively manpower-intensive to do so. What I do recommend, though, is if you’re going to redact anything, do this. Pull it up in whatever format you’re going to manipulate it in, make your redaction, and then get it into another format. Printout would be nice. But if not that, some form of electronic file that has less capacity to have metadata, less capacity to retain within it the undisclosed information you’re trying to keep back. Like, for example, taking it down into .tiff or some other image file from the visually redacted part. By going down in sophistication, you’re decreasing the likelihood that the information essentially can be revived, because the more sophisticated the file, the greater the likelihood that it’s going to be helpful. That it’s going to help you by having prior versions recorded in ways that can be resurrected.
Attorney: [Referring to visual aid] There’s the ethics opinion that we were talking about before. You have an obligation to take steps to protect information. You have an obligation not to destroy it when it’s improper to destroy it. You see how those two things are intentioned, right? You have an evidentiary responsibility not to destroy it if it’s required, for example, in litigation. But subject only to that requirement, you have a Rule 1.6 duty of confidentiality not to let that information get into the public domain.
Attorney: Please note here, ” . . . material that the lawyer knows or reasonably should know is relevant to pending or reasonably foreseeable proceeding . . . .” “Reasonably foreseeable”? I’m with Mr. Adams. “Weasel words” bother me. That one bothers me. But in any event, it’s not a big stretch to see this as applying to metadata, but that is explored more in the ethics opinion that I referred to earlier.
Attorney: [Referring to visual aid] Here is something that I don’t think enough people know about. And you in-house counsel people are not off the hook with respect to this. You do realize that for most purposes an in-house counsel office is treated as a law firm for purposes of the ethical responsibilities of the attorneys therein? What do we have here? If you have managerial authority in the firm, or in the in-house counsel office, or wherever else, you’ve got to make sure that everybody else does the right things.
Attorney: There are two ways this can come back to bite you. One is that if you don’t take steps to prevent others from doing bad things, if you ratify things or if you become aware of them and don’t act on that knowledge, you become personally responsible, as well as the wrongdoer, for the ethical violation at issue. But this is something that I don’t think people are as aware of: the failure to have mechanisms in place is itself an ethics violation. If you have that kind of responsibility, you need to have those mechanisms in place to manifest, essentially, your managerial oversight in making sure that subordinate lawyers do not commit violations of the ethics standards. Again, it sounds pretty straightforward, but you would be surprised at how many people don’t do that and aren’t aware that it’s an independent source of problems. So I felt the need to throw this at you. When it comes to what the baby lawyers, let’s say, or the subordinate lawyers are doing or not doing with respect to the issues that we’ve been talking about here, that can be a problem.
Attorney: Even more fun [referring to visual aid]: nonlawyer employees. Essentially the same obligation. So what happens when a nonlawyer employee does, in reverse, the same thing that happened to me? Sends an incredibly hot doc[ument] by fax to someone else? Someone who shouldn’t have it? And, by the way, that happens all the time. Do you know why it happens all the time? Auto-dial is evil. Those little buttons on the fax machines. By the way, fax machines are going the way of the dinosaur. I know that. I know that we’re going to fax/emails. But the same thing happens there because of auto-complete, right? Know what I mean by auto-complete? You start typing in the email address, and whoop, the rest of it goes in? Well, you start typing in the name of the fax addressee, or the number, and whoop, it auto-completes. Someone pushes “send,” and we have a billion-dollar problem.
Attorney: I mean that literally. [At] Eli Lilly, there was a situation where one of its outside lawyers mistakenly emailed confidential information on XYZ information to Alex Barronson instead of Bradford Barronson, her co-counsel. Oops. Now, I believe Mr. Adams said that you shouldn’t write anything unless you are willing to have your mother read it. My similar metaphor is, “Always assume that something you write might end up with an Exhibit A sticker in the lower right,” but I also say, “You’ve got to be willing to see it published on the front page of the New York Times.” In this case, a little too literal. A story came out and it grossly negatively affected the bargaining position of the defendant in that situation. So that’s an example where auto-complete was a bad, bad, bad, thing.
Attorney: A similar thing with respect to fax auto-complete: going back to the dark ages and re-dial buttons, or the program buttons, you would have situations where the nonlawyer employee has this button here, which sends something to opposing counsel and, right next to it, this button here, which sends it to the client. How tough is it to hit the wrong button? And the confidential summary of negotiating positions, et cetera, goes off into the ether. All right. Now that employee is looking for another job. Problem solved, right? Well, maybe, if you – as a managerial type person – had policies and procedures in place to protect against that sort of thing, even if they failed. But if you didn’t . . . make sense?
Attorney: Now I’m going back toward spreading paranoia. I know I lurch back and forth between saying, “Watch out for this! Watch out for that! Don’t let it paralyze you! But don’t let this happen anyway!” Okay, it’s dynamic. It’s a trade-off. You have to continually go back and investigate it. [Referring to visual aid]. Oh, I had to do this one. [Audio-visual presentation]. So, yes. You have an ethical obligation and you have managerial responsibility within your firm or your legal department, to do this: [audio-visual presentation].
Attorney: Now let’s get to the really scary stuff for the in-house folks. We talked about this a little bit before. I think that usually e-discovery, responding to an e-discovery request, will take on at least some of the characteristics of an internal investigation. When you find that something has gone on that ought not, then it’s going to be an internal investigation. And what does that lead to that ought to cause nightmares to in-house legal folks? Right there: adversity between, well, basically, your client and your client’s sub-constituents. And that’s something that, again, a lot of people even in in-house corporate settings don’t necessarily wrap their heads around completely. I’m not insulting anyone present. I’m sure that no-one who is listening to these words would make these errors. But some of you are outside counsel, and you might need to make inside counsel aware of such things, so let’s go through it.
Attorney: You represent the corporation. You’ve been representing the corporation. You represent the organization, not its constituents, [that's] fairly straightforward. But that gives rise to implication that are not as immediately obvious. What happens when you reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing? You’ve got a situation where someone has done wrong. You have, perhaps, a supervisor for that person. There is a question, possibly, of liability flowing upwards-downwards-sideways. You have a very clear sense that there may well be a situation where your client, the corporation, is best-served by throwing one of these people off the bus. If you reach that conclusion, guess what? You’ve got to tell them. Well, that’s uncomfortable. It’s inconvenient. But if you don’t . . . problem!
Attorney: Another problem: you don’t represent the CEO either. You don’t represent any of the bigwigs at all. You represent the corporation. So what happens when someone like the CEO, or some other bigwig, says, “OK, we’ve got this problem. They’re looking at me. You represent me.” (“You” meaning in-house legal person.) Well, in-house legal person, or outside counsel for the corporation, represents the corporation. What do you do if there is adversity, or potential adversity, between the corporation and the CEO or whoever else? Trust me, the CEO is unlikely to be sympathetic to your position on that. But we have the ethical obligation to address it. And you have to go through the ordinary analysis for a simultaneous conflict, which I will pretty much spare you, [as long as you understand] that adversity.
Attorney: The right way to handle this, assuming that you need to, want to, have to, represent the CEO in addition to the corporation, is [to] get a waiver. And make sure that you meet this test, the four-factor test under [Florida Rule of Professional Conduct] 4-1.7(b). Go ahead and dot your I’s and cross your T’s on that. Memo to file covering your anatomy, right? Good thing to do. Sir?
Audience: This brings up another quandary. Basic advice in any setting when you’re working an internal investigation is not to reduce what you find to writing, on the theory that it is probably discoverable. Once you produce a conflict waiver, that is a discoverable document in which you are identifying, in some fashion [that] there is a basis for a conflict. How do you deal with that professional issue?
Attorney: I’m not sure I accept the premise that it would fall outside the attorney-client privilege for a good portion of that. That’s an unsatisfactory answer for right now. Let me throw out another unsatisfactory answer. I need the rule book for a minute. But in the model rules, I’m sure, and in the Florida rules I believe, there is a separate exception that covers outside counsel brought in for the purpose of conducting an investigation. I’m pretty sure [that] would take care of the confidentiality clause with respect to that. Like I say, I’m not one hundred percent on that answer, and if you want to shoot me an email and let me crack a few books, I can do a better job on it.
Attorney: [Referring to visual aid of Florida Rule of Professional Conduct 4-1.8(f)] Here’s another one that is a pretty good candidate for, “walk through the steps, cover yourself, document it,” subject to the stipulation that we just talked about a moment ago. You’re not allowed to accept compensation from someone else – someone other than the client – for representing the client. Well, if you just made the CEO legitimately your client – or, which probably makes more sense, a lower officer . . . – you’re obliged to follow that. You’re obliged not to let the corporation, or other officers who are in the corporation or employees of the corporation, pressure you about how you represent this other person who’s now part of your legal representation, as much a client as the corporation itself, now that you’ve done the proper thing with respect to the waivers and so forth. I almost never see this done. When people do the other things right, when they go through all the steps and do all the right posterior-covering, I seldom see any evidence that this was ever part of the equation. So I’d recommend that you ensure that you check that off as you go on.
Attorney: [Referring to visual aid of Florida Rule of Professional Conduct 4-5.4(d)] Here’s a fun one. Same sort of idea, but it is an ethical breach for you to allow the corporation to dictate your professional judgment as it relates to the representation of the corporate subordinate. It’s the same sort of thing, coming from a different angle. [Referring to visual aid] This one I’ll bypass.
Attorney: [Referring to visual aid of Florida Rule of Professional Conduct 4-4.2(a) and 4-3.4(f)] Here’s one that can come up in the metadata context. Again, I tend to focus on those ethical issues that are going to get you from the blindside. The most interesting ethical problems to me are the ones that – people who are ethical in the ordinary sense, people who are perfectly well-imbued with Sunday school morality and would never do a bad thing intentionally, nonetheless run afoul of this sort of thing. If you’re in a situation where you don’t want someone to independently be giving out the information, and you can see why the corporation would want to have a unified policy with respect to that, you can’t even ask unless – and you’ve got the employee bit, let’s assume – the “and” requirement has to be met separately. It has to be reasonable to believe, on the lawyer’s part, that the person’s interest will not be adversely affected by refraining from giving such information. Huh? Where did that come from? Why do you have to be bearing in mind this other person’s interests in giving out the information, assuming that it’s otherwise legitimate for this person to do so? I have never really understood where this came from. I did some research on it the last time I talked on this, and it still doesn’t make a heck of a lot of sense to me. For that reason, I think of it as counterintuitive. I think of it as the sort of thing that someone who is striving to be ethical and all good things might not see coming. And it could arise in the context of an e-discovery request.
Attorney: [Referring to visual aid of Florida Rule of Professional Conduct 8.5 and Model Rules of Professional Conduct 8.5(b)]. More potential for ethics conflicts, and here I’m talking about conflicts in the sense of conflict of laws. The Florida rules are not as specific about that as they might be, and bear in mind we’re talking about Internet-type settings in which you have communications banging back and forth across various jurisdictions. It’s very common, as the Comment says, for lawyers to take action in more than one jurisdiction, even if the actions are not constituting the practice of law. So it can be that two jurisdictions’ principles apply. Note the Model Rules have this language here, basically to resolve the issue and provide a safe harbor so that the lawyer could not be put in a situation where the lawyer is subject simultaneously to two competing ethical requirements.
Attorney: In the interest of time, I’ll spare you this example. You can read it in the printout. But this is a real-world situation. Again, I came late to the party on this one, but it was a real-world situation in which – due to a multi-jurisdictional series of events — a single law firm was subject to a mandatory requirement in one jurisdiction to do something that another jurisdiction forbade. Now, it doesn’t often happen that way, and increasing the ethics rules are far more standard because of the effect of the Model Rules that are being followed more and more closely. But, given that it’s so godawful when it happens, and given the nature of the – almost inherently interstate nature of the — Internet communications, [it's] a very good idea to bear this in mind.
Attorney: [The] last bit here is the idea that you can avoid some of these problems, at least, with outside counsel by going for a limited representation rather than representation for all purposes. [Referring to visual aid of Florida Rule of Professional Conduct 4-1.2(c)]. Most people are aware that this can be done. Informed consent in writing is required. I don’t know that everyone always agrees with that, but it’s a good idea to have a representation letter . . . representation agreement, something re-iterating the specific scope of representation. I am not suggesting that that will result in this [reference to audio-visual aid].
Attorney: I don’t suggest that it’s a cure for everything. I don’t know that it gets us out of all the other various problems. But, to the extent that you are in a situation where you’re deciding whether or not to take representation, some of these issues will probably present more than one possible way to square the circle.
Attorney: However, having thrown out a possible solution, I have to throw out, of course, a caveat. There’s always going to be something of a problem with how the client may respond to your proposing to give less than utter full service, and here’s my illustration of that [referring to audio-visual aid]. When it comes to that, I will rely upon your knowledge of your client; I’m just throwing out the alternatives for your use.
Attorney: And that is my time. I will not go past my time. I thank you for your patience!
Tags: electronic discovery, legal meta data, meta data, meta data security, publishing meta data
Florida Lawyer Articles | admin | 
December 18, 2008 9:02 pm | 
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