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Ethical Obligations and the Use of Technology

Session 2

Abbey Stemler

on 4 June 2013

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Transcript of Ethical Obligations and the Use of Technology

Session 2: Ethical Obligations and the Use of Technology Model Rules of Professional Conduct The American Bar Association's set of proposed ethical standards for the legal profession
Adopted by most states
Applies to the entire legal team--attorneys, paralegals, litigation support specialists, outside consultants Your supervising attorney is responsible for ensuring that every member of the legal team follow the ethics rules; otherwise, the attorney can be severely punished. MRPC 5.1 and 5.3 Paralegal does something unethical Attorney can be disciplined--disbarred, suspended, publicly admonished, etc. Duty of Confidentiality Attorney-Client Privilege Rule 1.6 of the MRPC requires that lawyers “not reveal information relating to representation of a client” unless the client gives informed consent to the disclosure in one of two situations:
1) The client has been advised of the consequences of disclosure
2) The disclosure was “impliedly authorized.” EXAMPLE 1: A lawyer may be impliedly authorized to disclose confidential information to other professionals and business consultants to the extent appropriate to the representation.

EXAMPLE 2: A lawyer is impliedly authorized to make arrangements, in case of the lawyer's death or disability, for another lawyer to review the files of his or her clients. The attorney-client privilege is a rule of evidence.

It forbids a court from requiring an attorney to reveal confidential information about the client, thereby protecting the client. The work product doctrine provides a limited protection for material prepared by the attorney, or those working of the attorney, in anticipation of litigation or trial. The Work Product Doctrine Different from both the attorney-client privilege and the duty of confidentiality.
The work product doctrine only concerns itself with information created by the attorney in anticipation of litigation or for trial.
The attorney-client privilege and the duty of confidentiality relate to information provided by the client regardless of whether it involves potential litigation. Types of Work Product Tangible Work Product Opinion Work Product memoranda notes witness statements legal team's conclusions legal theories mental impressions opinions Exempts from discovery or testimony
the work product of the legal team
that was prepared in anticipation of litigation I created this in anticipation of litigation That means you can't use it Inadvertent Disclosure of Confidential Information Q: If information is shared inadvertently with the other side, what happens? Answer: It depends It depends on the jurisdiction. There are three approaches

1) Automatic waiver: Privilege has been wiped away. There is nothing that will redeem the privilege, so the documents disclosed can be used by the other side

2) No waiver: The privilege is only destroyed when a client makes a voluntary and knowing waiver. Therefore, if the disclosure is inadvertent, there is no waiver.

3) Balancing test: Courts will use a balancing test to determine what is appropriate. Factors included in the test include:
The nature of the methods taken to protect the information
The efforts made to correct the error
The extent of the disclosure
Fairness Conflict of Interest The National Federation of Paralegal Associations' Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement states:

Canon 8: "A Paralegal shall avoid conflicts of interest and shall disclose any possible conflict to the employer or client, as well as to the prospective employers or clients." What's this mean for you? If you know information about one client (client A) that is directly adverse to the interest of another client (client B), the ethical rules may prevent you from participating in client B's case. Duty of Candor The ethical obligation to not mislead the court or opposing counsel with false statements of law or of facts that the lawyer knows to be false. This duty also requires an attorney to disclose adverse authority. If for example, a paralegal found a case that was adverse (goes against) the client's position, the paralegal's supervising attorney must submit the case to the court.
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