Archive for » August, 2014 «

Paralegals and attorneys beware!  According to a recent article in The Recorder, sending that email to the wrong person can be a possible legal malpractice claim in the future.

“Emails sent in certain practices, such as commercial or residential real estate and other commercial transactions, are at a higher risk of being forwarded to third parties without the attorney’s consent. Clients in these areas believe a title opinion or a corporate authority opinion that is good for one purpose is good for all purposes, but forwarding emails and opinions creates risks.

For the attorney, there is the risk that opinions, which were transmitted for a single purpose in a unique context, may be transmitted for use in connection with unintended purposes or unrelated contexts. For the client, there is the risk of the waiver of the attorney-client privilege. And for the recipient, there is the risk of detrimental reliance on an opinion that does not apply to facts and circumstances for which the email was forwarded.”

There are things the legal staff and attorney can do to protect itself in the event this occurs, such as adding content to the email footer that can be automatically attached by the system to every outgoing email. The footer can be used, among other things, to include an attorney-client privilege notice or to address the risks of forwarded emails by putting recipients on notice of the boundaries for acceptable and permissible use of the content of the email.

There are however, no magic words approved by the Court for this purpose.  Also, “Courts have generally held that such a label attached by an attorney means little in deciding whether a communication is entitled to protection under either the attorney-client privilege or the work product doctrine.”

The opinions of the American Bar Association, the Courts and the many state bar associations have varied on the effectiveness of such a footer. However, it appears there is some increased protection in the liability context if attorneys adopt language in their emails that parallels the inadvertent disclosure language applicable in the discovery context.

In California, generally, where it is evident the client had not made the disclosure, the lawyer did not intend to disclose confidential information and the inadvertently disclosed document was clearly marked as confidential, no waiver will be found. See State Compensation Insurance Fund v. WPS, 70 Cal.App.4th 644 (1999).

In California, once an attorney realizes privileged information has been received, the attorney must immediately notify the sender and attempt to resolve the issue. See Rico v. Mitsubishi Motors, 42 Cal.4th 807 (2007); State Comp. Ins. Fund v. WPS, 70 Cal.App.4th 644 (1999).

“While never sufficient to “un-ring the bell” once the privileged email has been read, inadvertent disclosure instructions can increase an attorney’s ability to potentially obtain some relief after discovery of the problem.”

As stated in this article, “as applied to a footer, the language addressing both the risk of forwarded emails or inadvertent emails might contain the following:

 

NOTICE: This email and all attachments are CONFIDENTIAL and intended SOLELY for the recipients as identified in the “To,” “Cc” and “Bcc” lines of this email. If you are not an intended recipient, your receipt of this email and its attachments is the result of an inadvertent disclosure or unauthorized transmittal. Sender reserves and asserts all rights to confidentiality, including all privileges that may apply. Pursuant to those rights and privileges, immediately DELETE and DESTROY all copies of the email and its attachments, in whatever form, and immediately NOTIFY the sender of your receipt of this email. DO NOT review, copy, forward, or rely on the email and its attachments in any way. NOTICE: NO DUTIES ARE ASSUMED, INTENDED, OR CREATED BY THIS COMMUNICATION. If you have not executed a fee contract or an engagement letter, this firm does NOT represent you as your attorney. You are encouraged to retain counsel of your choice if you desire to do so. All rights of the sender for violations of the confidentiality and privileges applicable to this email and any attachments are expressly reserved.”

The inclusion of the above description serves three purposes.

1) it highlights the communications as protected so an unintended recipient cannot claim he was unaware of the privilege issue until after the email was read; 2) it reinforces the intent to preserve and protect the privileged nature of the communication and makes clear no waiver was intended; and 3),perhaps the most significant, it distinguishes the email from other emails that may not be privileged.

Of course, emails still get read, even where they are unintentionally sent. These two steps—changing the footer and the subject line—at least provide some additional protections from those situations.

The above information can also be found in the book, California Legal Malpractice Law.  I have nothing to do with the writing, editing or distribution of this book.

I think I will be editing my footer immediately.  Hopefully, knock on wood, I will never have to worry about this but I would rather be safe than sorry.

 

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According to the ABA Journal, a Connecticut lawyer has been suspended for four months and barred from representing female clients for the rest of his career after he was accused of representing women in family law and domestic-violence cases in violation of a 2010 court order.

The disciplinary counsel had initially sought disbarment for lawyer Ira Mayo, alleging he had violated the court order at least 11 times, the Connecticut Law Tribune reports. Mayo agreed to the suspension and ban on representing women to resolve the disciplinary complaint.

Mayo was accused in two prior ethics cases, according to the Connecticut Law Tribune. In the first he was suspended for 15 months after he was accused of making unwanted advances to female clients referred to him by a group for abused women, the story says. In the second, he was banned from representing women in family law or domestic violence cases after he was accused of offering to waive attorney fees in exchange for a massage.

The short suspension for lawyer Ira Mayo outraged a woman who filed a recent grievance against Mayo after he represented her on assault charges in a domestic-violence case, the Connecticut Law Tribune says. Leah Castro called the short suspension “a slap on the wrist” and told Connecticut Law Tribune she believed he should be disbarred.

Some of the comments on this ruling are below:

“As an attorney, it is clear to me this man should be disbarred.  As a woman, the actions of the Connecticutt Discipline system indicates a problem with their valuation of these issues.  Consider if the discipline would be the same if this man repeatedly made unwanted sexual advances and actions against males.  I think not.  As a retired prosecutor, it is clear this man is a sexual predator.  Another reason to disbar.”

As a young solo practitioner in a small town I took over the office lease from a downsizing sole practitioner who specialized in small divorce actions – great location right across the street from the courthouse. Ground floor storefront + a great brick loft style mezzanine with a skylight.

He said that I could buy as much of the office furniture as I wished except for one piece and he pointed to a cheep looking 3’x3’x3’ laminated cube on which he had placed a coffee maker and cups. Puzzled, I asked “what is it”. He then pulled out a tab and out flopped … a spring loaded single bed. He then looked at me with a mischievous grin and quickly added “I have negotiated many a fee on this bed! It has too much sentimental value for me to part with.

He was not an attractive man; 60; fleshy, paunchy, and red cheeked from 5,000 too many liquid lunches. I was literally speechless.

Apparently this kind of thing used to go on 30 years ago, a lot. Until then I had never heard of the practice.”

“I’m sitting here trying to imagine how a guy like this will fit his predatory predilection into a “men’s rights” style divorce practice, and I fear that the state bar in Connecticut may have created the practitioner’s version of Frankenstein.”

“I’m sure the next time the judge calls for order in the court, every response will end with “. . .and hold the Mayo.””

“Can he represent transgendered clients?”

“Household name divorce lawyer Marvin Mitchelson, who made a name suing actor Lee Marvin for “palimony” (and breaking new ground with the California Supreme Court) was then flooded with palimony cases and leased a upmarket office in Century City office complete with a Jacuzzi soaking tub in an anti-room off of his office. He was later accused by two clients of rape and reputedly had a habit of meeting with clients naked in his hot tub. he was never prosecuted for sexual impropriety.  (He was later sentenced in 1993 to 4 years in prison for tax fraud.)”

I don’t know about any of you, but this “suspension” seems a bit odd and clearly raises some interesting questions about who Mr. Mayo can represent.  I would be interested to know what any of you think of this suspension.

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