In 2018 there as was opinion issued by the American Bar Association and — for the life of me — I don’t understand why they wrote this opinion.
Formal Opinion 481 entitled, “A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error” was issued on April 17, 2018.
There’s nothing so earth shattering about requiring a lawyer to notify a client when there is material error. In fact, it’s obvious and basic. In fact, the drafters of this opinion go through a bunch of advisory opinions from across the country and confirm that the requirement has been around for a while. At one point they even admit that they’re really not presenting anything new.In addressing those other opinions they state, “These opinions provide helpful guidance to lawyers, but they do not—just as we do not—purport to precisely define the scope of a lawyer’s disclosure obligations.”
So why are you wasting this paper?
The next sentence sorta tells us: “Still, the Committee believes that lawyers deserve more specific guidance in evaluating their duty to disclose errors to current clients than has previously been available.” ABA Op. 481 at 4
If there’s any value to the opinion, it’s in the definition of when an error is considered to be “material.”They state, “…a lawyer must inform a current client of a material error committed by the lawyer in the representation. An error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.” ABA op. 481 at 4.
Oh, but this only applies if the client is a “current” client. That’s because even though a lawyer must inform a current client of a material error, “Rule 1.4 imposes no similar duty to former clients.” ABA Op. 481, at 7.
Believe it or not, but there are critics of our ethics rules. I know what you’re thinking, “How could that be? They are PERFECT.”I’m sorry to burst your bubble, but there really are scholars who have taken shots at the code.
One of the biggest complaints is that the current code amounts to nothing more than a how-to manual.How-to stay away from a grievance.Surely you’re wondering how that can be a bad thing!Well, staying away from grievances is good, but is that all our ethics code is really supposed to be about? The critics contend that the current code is harsh and devoid of the aspirational goals and the statements of morality that could be found in the predecessor codes. It’s a valid point, but I understand why the code is written that way.To get a real picture for what I mean, you need consider Watergate.Yup, the actual Watergate fiasco.
After the fallout from that disaster, the powers that be realized that many of the people implicated in the scandal were lawyers.Plus, many of the lawyers implicated— and many of their colleagues across the country — really didn’t take the ethics rules seriously.As a result, the authorities had to reform the code and I believe that’s why they created such a harsh set of rules.I believe that they took out the aspirational elements from the disciplinary rules because they had to reinforce the idea that there really would be disciplinary action if you acted inappropriately.The problem? In doing so, they removed all of the morality from the code.
The current code tells us how we “could” act.It tell us when our actions are subject us to discipline.it does not, however, tells us how we “should” behave.
That’s an important distinction.In other words, just because we “could” do something, does it mean we “should” be doing it?Just because some action taken in the course of our practice won’t subject us to discipline, is it still “right” to take that action?That disconnect is something the drafters have been considering since the publication of the modern code in 1983.And over the years you’ve started to see a flurry of new “professionalism documents” being adopted across the country.Basically, these professionalism codes are trying to reinforce the need to behave in a morally acceptable way.Though they are the product of individual states, the all seem to share the same sentiment— they are talking about how we “should” be behaving.
One word that you don’t see in many of these new professionalism documents is “zealous.”The reason is clear.The word zealous has been used by many lawyers to cover up all manner of sins (yes, that was a Watergate shout-out)I shudder to think about how many ethical violations have been committed in the name of zealous advocacy.I believe that the drafters have the same concern.I believe they know that lawyers push the edge too far, and try to cover it up by claiming to be “zealous.” Well, I believe that lawyers need to start thinking about behaving in a morally acceptable manner.We need to voluntarily aspire to behave better.And that might not be compatible with the old school definition of zealous (just for the record— I am old school age.But I’d like to think that I’m learning some new tricks).
I watched an ethics violation unfold right next to me today. So, of course, I had to vlog about it. Scroll below for the transcript if you don’t want to watch the video.
I’m on the road, minding my own business in my usual breakfast joint, enjoying my Spinach Feta Egg White Wrap and Grande Non-Fat Latte. The breakfast of Champions. Three guys sit down next to me and start to talk. Here’s what I know: these guys are lawyers and they are involved in a suit about a particular kitchen accessory. The guy against the wall flew in from Washington DC this morning and he appears to be an expert or specialized legal counsel of some sort.
It appears that the expert (that’s what I’ll call him) is going to give testimony today and these guys are talking about the best approach. They’ve talked about statistics and the design of the product at issue. The expert is laying out the various ways the team could approach the matter and he’s giving examples of testimony that’s been given in previous cases.
The reason I know the case is about a kitchen appliance [[arrow]] is because one of the lawyers brought one into the coffee shop and it’s sitting on the table next to them. The expert keeps putting his hand on it and talking about it. You don’t have to be Sherlock Holes to figure this stuff out. I heard the name of one of the the Judges involved in the case, I heard that they’ve submitted mediation statements, and I heard a whole lot of substance that this expert is going to be addressing.
The reason I know all of this is because I COULD HEAR EVERYTHING THEY WERE SAYING. I wasn’t eavesdropping, I was just sitting about 24 inches away from them at the next table in a public coffee shop.
This, people, is why I continue to have a job.
The very first thing we teach in law school about confidentiality is that you shouldn’t be talking about your clients’ matters in public places. I mean, the hypos we use talk about actually include restaurants in the fact pattern. It’s so basic, that if I were to mention this at the ethics program I’m delivering tomorrow, the lawyers in the firm would roll their eyes at me. “Who would be so stupid to do something like that?” they’d say. “Come on- talk to us about a more sophisticated issue.” But this is real life. And this happens all the time. Most of us who get into trouble don’t do something outlandish like steal from a trust account or forge a document. We make stupid mistakes because we let our guard down in every day situations.
Do you think those lawyers knew that they were sitting next to someone who investigates ethics grievances? Do you think they had any idea at all that I was sitting right next to them tearing them to ethical pieces? NO. Do you know why? Because they suffer from a malady that we all have at one time or another. “Little old me” syndrome. Do you really think that someone is listening to what I have to say? Little old me? Who really cares about listening to little old me?
The answer is everyone is listening to everything you say and everything you write. You have GOT to have a heightened state of awareness about these things. There is no such thing as “little old me.” It’s BIG OLD YOU and you’re a constant target.
Even though I’m going on about this for a while, this entire escapade actually happened very quickly. And I was just going to leave well enough alone because it seemed as if they were going to leave. But then, another guy showed up and he started speaking louder, which prompted one of the first guys to stand up and basically shout.
I couldn’t take it anymore. I packed my bag up, threw on my jacket and as I walked out I tapped the standing guy on the shoulder and said, “Could I steal you for a minute?” We walked a few feet away from the tables and I said, “I teach professional responsibility for a living. Stop talking about your client’s files in a public place like this. Someone’s going to overhear you and you’re gonna get smacked for it. I’m just trying to help you out.” He replied, “Oh, fair point.” And I left.
Every day this month I’m going to post a short message called, “Something Smart & Safe.” They’re short video messages that will give lawyers a drop of good direction. My first installment is begging lawyers to stop tweeting about politics — its got problems written all over it.
What happened in the news today should make all lawyers pause and look at the manufacturers of the hardware and software they’re using in their offices. Listen to this video for the info. Also, the post below has a bit more detail.
For years, the United States has been concerned that the Russians were using technology purchased by average consumers to steal secrets from the NSA. United States officials have been concerned that a popular anti-virus software product commonly sold in the US that’s developed by a a Moscow-based company called “Kapersky” is being used by the Russians to steal NSA technology. These past few months a series of newspaper reports made the concerns far more real. And today additional information was released that makes the matter even more concerning.
“The Wall Street Journal reported on Oct. 5 that hackers working for the Russian government appeared to have targeted an NSA worker by using Kaspersky software to identify classified files. The New York Times reported on Oct. 10 that Israeli officials reported the operation to the United States after they hacked into Kaspersky’s network.”1
The US is concerned that Russians Intelligence deliberately used the Kapersky software in it’s spying activities. These articles revealed that on October 25th Kapersky admitted that it’s software took the source code for an American hacking tool from someone’s personal computer. But they deny that it was part of a larger spying scheme. “Kaspersky said in the statement that it had stumbled on the code in 2014, a year earlier than the newspaper reports had stated…The company said logs showed that the consumer version of Kaspersky’s popular product had been analyzing questionable software from a U.S. computer and found a zip file that was flagged as malicious…While reviewing the file’s contents, an analyst discovered it contained the source code for a hacking tool later attributed to what Kaspersky calls the Equation Group. The analyst reported the matter to Chief Executive Eugene Kaspersky, who ordered that the company’s copy of the code be destroyed, the company said…It said no third parties saw the code, though the media reports said the spy tool had ended up in the hands of the Russian government.”2
In today’s Fortune magazine (November 13, 2017), we learn that UK officials are worried as well. The first line of that article reads, “The British spy agency GCHQ is concerned about Kaspersky Lab’s antivirus software being used to spy on people in the UK…”3 The magazine explains why UK officials are concerned: “Barclays has given millions of its banking customers free Kaspersky subscriptions. If those customers happen to work for the British military or government, the spooks fear, Kaspersky’s software might help the Russian intelligence services gain access to their information.”
Today there was another article that made me concerned for similar reasons. It appears that the U.S. intelligence services are worried that certain security cameras could be used by the Chinese government to spy on U.S. targets. The concern is about cameras made by Hangzhou Hikvision Digital Technology, a company owned in large part by the Chinese government. Their product, called, “Hikvision (pronounced “hike-vision”) was nurtured by Beijing to help keep watch on its 1.4 billion citizens, part of a vast expansion of its domestic-surveillance apparatus. In the process, the little-known company has become the world’s largest maker of surveillance cameras. It has sold equipment used to track French airports, an Irish port and sites in Brazil and Iran.” They were also used by the Memphis police and the U.S. military. Furthermore, “Consumer models hang in homes and businesses across the country. At one point, the cameras kept watch on the U.S. embassy in Kabul…Hikvision’s rapid rise, its ties to the Chinese government and a cybersecurity lapse flagged by the Department of Homeland Security have fanned concerns among officials in the U.S. and Italy about the security of Hikvision’s devices.”4
The report also notes that, “Some security vendors in the U.S. refuse to carry Hikvision cameras or place restrictions on their purchase, concerned they could be used by Beijing to spy on Americans. The General Services Administration, which oversees $66 billion of procurement for the U.S. government, has removed Hikvision from a list of automatically approved suppliers. In May, the Department of Homeland Security issued a cybersecurity warning saying some of Hikvision’s cameras contained a loophole making them easily exploitable by hackers. The department assigned its worst security rating to that vulnerability.”5
Hikvision, of course, denies that they are involved in any sort of inappropriate activity. “Hikvision says its equipment is safe and secure, that it follows the law wherever it does business and that it worked with Homeland Security to patch the flaws the agency cited.”6
The concern is that “Last year, hackers took control of hundreds of thousands of cameras, including many made by a Chinese rival of Hikvision, to launch a huge “denial of service” attack that security experts said made sites run by Amazon.com Inc., PayPal Inc. and Twitter Inc. unavailable for hours.”7
If I’ve said it before, I’l say it again. If they are worrying about it, you need to be worrying about it. If the government is worried that products like Kapersky and Hikvision can cause security risks, then you need to be conecnered as well. Why? The government secrets are targeted by the bad guys and lawyers’ secrets are also targeted nay the bad guys.
The government is worried that the Russians and the Chinese will use these technologies to steal secrets from the US. You need to worry that the Russians and the Chinese will steal secrets about your clients. Lawyers are targets That’s because the bad guys know that you are the gatekeeper for a lot of your client’s valuable information.
I believe that we have a three-part duty when it comes to these cyber concerns like this. We must Understand, Anticipate, and Act.
Modern ethics concepts require that you understand these dangers. My reading of recent opinions reveals that we have an ethical duty to understand obvious, well known cyber traps. What’s obvious and well known? You need to stay up to date on the latest concerns to know that. We have an ethical duty to maintain our competence and opinions have acknowledged that that duty evolves as technology changes.
The issues with these cameras and software products may not be considered to be “obvious” today but what about in a month from now when people have read all of these articles? The concern that these software and hardware developers could be using their products to steal information from valuable targets, including our clients, will soon be common knowledge.
You need to consider how these concerns can manifest in your particular practice. Do you use Kapersky as your anti-virus software? Are the security cameras in your office Hikvision products? Are the security cameras installed by your landlord Hikvision products? Did you even know that your landlord has cameras installed in your office? If they are not Hikvison or Kapersky, then what are you using? Who makes those products? I believe that the concept of Diligence (Rule 1.3) demands that you ask those kinds of questions so you could properly anticipate any potential traps.
Third, and Finally- Act
Here is where it gets dicey. What, if anything must you do? Listen, I don’t know if it’s time to stop using Kapersky or Hikvision. What I do know is that now is the time to start asking questions. Sit down with your IT people and discuss these issues with your cybersecurity consultants. Scrutinize the developers of the software and hardware that you’re using in your office and come to a decision.
But just as important as assessing the risk and determining if there is any action to take— document your decision. Set forth the research you did and memorialize your diligence. Make it clear that you gave this careful consideration and that you actually made an informed decision, rather than ignoring the problem.
Understand, Anticipate, and Act.
Now go look at your systems and talk to your people.