Documentation - Frequently Asked Questions

What Ethical Duties Involve Documentation?

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    Model Rule 1.6: Confidentiality of Information
    • Lawyers have a duty to keep information, including documents, relating to client representation confidential,1  and must take reasonable steps to avoid “the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”2   As the ethical rules note, this “fundamental principle” is important because it “contributes to the trust that is the hallmark of the client-lawyer relationship.”3
    • This duty of confidentiality applies to all documentation “relating to representation, whatever its source.”4 It is not exclusive just to confidential communications between a lawyer and client.5
    • A lawyer’s duty to keep documentation confidential continues indefinitely, even after the attorney-client relationship ends.6
    • Lawyers can avoid an ethical violation by competently safeguarding representation information even if the information is ultimately disclosed.7  The disclosure of confidential documentation will not usually result in an ethical violation so long as the lawyer takes reasonable steps to prevent access or disclosure of the information.8   Whether the measures are reasonable may depend on, “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.”9
    • Use of technology requires lawyers to use the precautions necessary to protect confidential information when employing the particular technology used.  Thus, a lawyer must take reasonable steps to prevent documentation from reaching unintended recipients when using technology to communicate.10   Although “[t]his duty…does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy,” it would nonetheless be wise for lawyers to use extra confidentiality protections because “[s]pecial circumstances…may warrant special precautions.”11  Broad factors to consider are, “the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.”12
      • Lawyers should err on the side of caution when using technology to create, modify, send, or upload documentation since vague ethical rules offer little clarity about what exactly constitutes a violation in this area.  Some states provide more guidance than others on the topic.  As always, be sure to check your local rules to see what they require.  
      • See “Technology” for further information on the risks that evolving technology raises with confidentiality.
    • There are some circumstances in which a lawyer may be permitted or required to disclose confidential information, but as a general precaution, disclosure should be avoided.  As always, be sure to check the requirements of your local rules.
    Model Rule 1.17: Sale of Law Practice
    • Documentation is ordinarily required when a lawyer or law firm sells a law practice.13   Lawyers who sell a law practice, or any part of a law practice, must provide written notice to all of the lawyer’s clients in most circumstances.14   At a minimum, the notice should include details regarding: “(1) the proposed sale; (2) the client’s right to retain other counsel or take possession of the file; and (3) the fact that the client’s consent to the transfer of the client’s files will be presumed if the client does not take any action…within ninety (90) days.”15 Further instructions specify that the identity of the purchaser should be included as well.16
    • Please be aware that the transfer of client documents is only one of many hurdles when selling a law practice, and requirements differ in each jurisdiction.  Ethical rules may also provide for alternatives when providing written notice is infeasible, such as when a client’s whereabouts cannot be determined. As always, be sure to check your local rules.
    Model Rule 1.18: Duties to Prospective Client
    • Careful use of documentation can help prevent a lawyer’s inadvertent disqualification as the result of information received from a prospective client.17 A lawyer who receives information from a prospective client during a consultation can be disqualified, along with his or her entire law firm, from representing both the prospective client and an existing client in the same or substantially related matter when information received could significantly harm either the prospective client or the existing client.18   However, one way to avoid such disqualification is if the lawyer obtains informed consent from both the client and prospective client and documents it in writing.19
    • Fortunately for lawyers, documentation can typically eliminate the threat of disqualification before a prospective client conflict ever arises. Lawyers can make a consultation conditional upon the prospective client providing informed consent in writing that any information revealed during the consultation will not bar the lawyer from representing a different client in the matter.20   A lawyer may also wish to expressly provide in the agreement that the prospective client consents to the lawyer’s subsequent use of information conveyed by the prospective client.21 If the lawyer accepts the representation of the prospective client, the lawyer must obtain a conflict of interest waiver from both clients.
    • See “Conflicts of Interest” for an in-depth discussion of the duties owed to prospective clients.
    Model Rule 7.5: Firm Names and Letterheads
    • Lawyers have an ethical duty to comply with certain limitations when creating special documentation like the firm name or letterhead.22
    • The law firm name is allowed to be a trade name.23 However, trade names cannot be misleading or imply a connection with a government agency or a public or charitable legal services organization.24
    • Multistate law firms must observe identification rules when using the same firm name in several jurisdictions.25 Documentation that singles out lawyers located at a specific office, like firm letter head, must indicate what lawyers are not licensed in that jurisdiction.26 As a general matter, however, multistate law firms are permitted to use the same firm name, web address, or other professional designations.27
    • Law firms must remove the name of a lawyer holding public office from the firm name, or from any communications on the firm’s behalf, until the lawyer resumes regular, active practice.28
    • Lawyers cannot imply that they are in a partnership, or are associated with another lawyer in a law firm, when they are not.29   This becomes especially pertinent when unassociated lawyers share office space; avoid misleading signage that may create the false impression of a law firm.30
    • The firm name and letterhead must comply with ethical rules that govern lawyer advertising.31 Lawyers should avoid making false or misleading statements that contain material misrepresentations or omit necessary facts.32 In addition, lawyers should be aware that even truthful statements can be unethical if they are misleading.33 As always, be sure to check the specific rules in your jurisdiction.
    Model Rule 4.4: Respect for Rights of Third Persons
    • Receiving documentation from another party can become an ethical issue when lawyers receive information that was not intended for them, whether through receipt of “paper documents, email [or] other forms of electronically stored information.”34 Sometimes lawyers send the right documentation to the wrong person,35 or send the right person the wrong documentation (incorrect papers are sent, or metadata is erroneously imbedded in documents).36
    • Lawyers have a duty to promptly notify the sender when they receive “a document or electronically stored information relating to the representation of the lawyer’s client and [he or she] knows or reasonably should know that the document or electronically stored information was inadvertently sent.”37 The rules do not address whether the lawyer must return it, or whether the disclosure waives any privilege to that information.38 It is generally in the lawyer’s professional discretion to delete the material or leave it unread unless applicable law provides otherwise.39  As always, be sure to check your local rules to see what they require.
    • The underlying problem is not new; sometimes lawyers make mistakes. However, technology makes it that much easier for mistakes to occur. Lawyers can now make colossal errors with a single click of a button from the comfort of their office chairs.
    • See “Technology” for best practices that allow lawyers to mitigate their risk of problems with technology.

1 See MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (1983) (amended 2013).

2 See MODEL RULES OF PROF’L CONDUCT R. 1.6(c) (1983) (amended 2013).

3 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 2 (1983) (amended 2013).

4 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 3 (1983) (amended 2013).

5 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 3 (1983) (amended 2013).

6 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 20 (1983) (amended 2013).

7 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 18 (1983) (amended 2013).

8 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 18 (1983) (amended 2013).

9 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 18 (1983) (amended 2013).

10 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 19 (1983) (amended 2013).

11 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 19 (1983) (amended 2013).

12 See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 19 (1983) (amended 2013).

13 See MODEL RULES OF PROF’L CONDUCT R. 1.17(c) (1983) (amended 2013).

14 See MODEL RULES OF PROF’L CONDUCT R. 1.17(c) (1983) (amended 2013).

15 See MODEL RULES OF PROF’L CONDUCT R. 1.17(c) (1983) (amended 2013).

16 See MODEL RULES OF PROF’L CONDUCT R.1.17 cmt. 7 (1983) (amended 2013).

17 See MODEL RULES OF PROF’L CONDUCT R. 1.18(d) (1983) (amended 2013).

18 See MODEL RULES OF PROF’L CONDUCT R. 1.18(c) (1983) (amended 2013).

19 See MODEL RULES OF PROF’L CONDUCT R. 1.18(d)(1) (1983) (amended 2013).

20 See MODEL RULES OF PROF’L CONDUCT R. 1.18 cmt. 5 (1983) (amended 2013).

21 See MODEL RULES OF PROF’L CONDUCT R. 1.18 cmt. 5 (1983) (amended 2013).

22 See MODEL RULES OF PROF’L CONDUCT R. 7.5 (1983) (amended 2013).

23 See MODEL RULES OF PROF’L CONDUCT R. 7.5(a) (1983) (amended 2013).

24 See MODEL RULES OF PROF’L CONDUCT R. 7.5(a) (1983) (amended 2013).

25 See MODEL RULES OF PROF’L CONDUCT R. 7.5(b) (1983) (amended 2013).

26 See MODEL RULES OF PROF’L CONDUCT R. 7.5(b) (1983) (amended 2013).

27 See MODEL RULES OF PROF’L CONDUCT R. 7.5(b) (1983) (amended 2013); MODEL RULES OF PROF’L CONDUCT R. 7.5 cmt. 1 (1983) (amended 2013).

28 See MODEL RULES OF PROF’L CONDUCT R. 7.5(c) (1983) (amended 2013).

29 See MODEL RULES OF PROF’L CONDUCT R. 7.5(d) (1983) (amended 2013).

30 See MODEL RULES OF PROF’L CONDUCT R. 7.5 cmt. 2 (1983) (amended 2013).

31 See MODEL RULES OF PROF’L CONDUCT R. 7.5(a) (1983) (amended 2013).

32 See MODEL RULES OF PROF’L CONDUCT R. 7.1 (1983) (amended 2013).

33 See MODEL RULES OF PROF’L CONDUCT R. 7.1 cmt. 3 (1983) (amended 2013); MODEL RULES OF PROF’L CONDUCT R. 7.1 cmt. 4 (1983) (amended 2013).

34 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).

35 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).

36 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).

37 See MODEL RULES OF PROF’L CONDUCT R. 4.4(b) (1983) (amended 2013).

38 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 2 (1983) (amended 2013).

39 See MODEL RULES OF PROF’L CONDUCT R. 4.4 cmt. 3 (1983) (amended 2013).

 

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