Clifford’s Notes: The dilemmas of confidentiality

By Robert A. Clifford
Clifford Law Offices

”This memorandum, even if it’s authentic, which I doubt, I highly doubt, is protected,” Karen Crowder tells Michael Clayton, one of the lawyers at the firm that represents the company for which she is general counsel. ”It’s a cut-and-dried case of attorney-client privilege.”

Tilda Swinton won an Academy Award for her performance as Crowder in the movie, ”Michael Clayton,” a legal thriller that centers on a critical internal memo containing damaging information. I won’t ruin the ending for those of you who haven’t seen it. The short of it is, Clayton works for a powerful law firm that is representing a large corporation in a multibillion-dollar class-action lawsuit. One of the partners is feeling guilty about the harm the corporation has caused and is about to release this very incriminating internal memo of his client’s.

When that partner is killed, Clayton, played by George Clooney, discovers it as well, and finds himself in an ethical dilemma: whether to reveal client confidences that will surely cause the firm’s client to lose the case.

Aside from this movie, the issues surrounding the attorney-client privilege have been making real news in the past few months, following the controversial recent policies of the federal government that have eroded the privilege and work-product doctrine, particularly in a corporate context.

Various federal agencies have been pressuring companies and organizations to waive their privileges as a condition for receiving credit for cooperation during criminal investigations.

For an innocent man on death row, the privilege was the subject of a Chicago Sun-Times editorial (”Attorney-client secrets need some exceptions,” March 11, 2008).

And the U.S. Senate is considering S.186, the Attorney-Client Privilege Protection Act of 2007. The identical bill, H.R. 3013, passed the House last November.

The American Bar Association calls the bill and the ”proper balance between effective law enforcement and the preservation of essential attorney-client privilege, work product and employee legal protections,” with practical and clearly defined limits on a federal agency.

Proponents say it preserves the ability of prosecutors to obtain non-privileged factual material needed to punish wrongdoers and enforce the law. At issue are the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.

In Illinois, the Supreme Court adopted in 1990 the current Illinois Rules of Professional Conduct, which were largely based on the 1983 ABA Model Rules of Professional Conduct. The ABA then updated its Model Rules of Professional Conduct in 2002.

The Illinois Supreme Court, and the Illinois State Bar and the Chicago Bar associations established committees to review the ABA’s update. The result is a comprehensive proposed change to the Illinois Rules of Professional Conduct, which has been submitted to the Illinois Supreme Court.

The committees have proposed rules that include new language and even some new rules. For example, proposed Rule 1.13, ”Organization as Client,” clarifies the duties owed by a lawyer to an organization when the lawyer discovers wrongdoing on the part of an officer or employee of the organization. Rule 1.18 provides guidance and codification of precedent on ”Duties to Prospective Client.”

One of the most significant changes will be whether the Illinois Supreme Court will adopt official comments to the Rules — something new for Illinois — that are meant to better explain the intent and purpose of each rule.

For example, the comments dealing with Rule 1.6 on ”Confidentiality of Information” are nearly five pages long.

As in the fictional case of Michael Clayton, the comments suggest that if a lawyer learns about a client discharging toxic waste into a town’s water that creates a ”present and substantial risk,” the information must be revealed to authorities.

In the real case of the man on death row, proposed Rule 1.6(b)(3) acknowledges that there may be situations where crime or fraud can be prevented, rectified, or mitigated, but the privilege may not be broken when the person who has committed the crime employs the lawyer for representation concerning that offense.

The Chicago Lawyer discussed this issue recently in a lengthy article, ”When Ethics Clash with Morality,” March, 2008.

Significantly, proposed Rule 1.6 on confidentiality has been revised so that information received by a trained intervener, such as a mediator or arbitrator, also should be protected by the attorney-client privilege.

It must be remembered that the privilege belongs to the client, not the lawyer, and it enables open communication so that clients need not be concerned about confidentiality. After such scrutiny of the Illinois Rules of Professional Conduct by so many qualified attorneys throughout the state who really care, the rules still have the same underlying message in encouraging professional conduct and protecting the public:

• Play fair.

• Work hard for your clients and communicate with them.

• Don’t misrepresent anything to anyone.

And as the Bible teaches, don’t do anything to others that you don’t want done to you.

Diversity in Practice: Yes, I know, but …

By Arin N. Reeves, J.D., Ph.D.
The Athens Group

Barack Obama delivered a speech on race March 18 entitled, ”A More Perfect Union,” that captured the nation’s attention. In this speech, Obama called for a national conversation on race that is honest, collective, and immediate. Although Obama was widely praised for the courage and candor of his words, it is in the nuance of the ”yes, but …” responses to his speech where we see our country’s real racial fault lines. Voices like Bill O’Reilly on Fox News commented that, yes, a national conversation on race was a laudable goal, but white America was reluctant to talk about race because the margin of verbal error was too small and the threat of being labeled a racist was too high.

Many African-American voices (for example, blackcommentator.com) said, yes, the speech was brilliant and necessary, but they noted that African Americans were already engaged in a national conversation on race, just without their white counterparts.

Commentators like Daniel Schorr (npr.org) added yet another voice by, yes, applauding the speech, but simultaneously expressing disappointment that Obama can now no longer claim to represent the ”post-racial generation that had transcended America’s past racial division.”

I heard many of these and similar sentiments echoed in social settings and workplaces across this country. Always a yes, followed by a but.

Yes, we should talk about race, but who is going to start the conversation? Yes, I think race is an issue, but is it really the most important issue we face right now? Yes, we need to deal with race, but do we really need to talk about slavery? Can’t we just talk about what is going on today?

Yes, I want to bring up race, but I don’t want to be labeled as the angry minority. Yes, his speech was amazing, but do I really want to take on the task of educating all the white people in my workplace?

The ”yes, but …” responses pull the curtain back on this difficult-to-define, uncomfortable-to-broach, and impossible-to-ignore subject of race and reveal a few poignant truths:

It is easier to talk about race in theory than it is to approach the historical and festering wounds of our racial histories that lie along our nation’s racial divides. The necessary conversation we need to have is not a conversation on race itself — it is a dialogue on the consequences of racial stereotypes, racial prejudice, and racial identity.

It is easier to parse and critique Obama’s speech with co-workers than to discuss the possibility that racial bias continues to play a role in the racial composition of legal workplaces.

A national theoretical conversation on race is safer than a personal interaction with a neighbor or colleague.

The landscape of racial dialogue still has a perceptible line separating minorities and whites, with the former viewing race as an inseparable piece of everyday realities that needs to be constantly negotiated for survival and success, and the latter viewing race as a conversation into which they will enter when conditions are right and the emotional space is made safe.

The ”yes, but …” responses illustrate that we are all already talking about race - we are just talking past each other and not listening to each other.

For minorities, talking about race is a necessary reality, one that is raw, pained, and heavily laden with our own experiences, as well as the shared memories of our parents, grandparents, and communities.

For whites, talking about race is a difficult choice tinged with the risks of misunderstandings and blame, but it is still a choice.

We are talking about race as us versus them — a zero-sum game where each side realizes it can’t win, but it fights like hell to not lose.

It is in this context that diversity and inclusion attempt to create a new paradigm, a ”we” that melds the ”us and them” into a new definition of community.

Obama is right that we need a collective, honest, and immediate conversation to get us to this new paradigm. But before we can talk with each other, we need to actually trust each other. In this extraordinary election year, our cultural truths have confronted us. We don’t yet trust ”them” to understand ”us.” We cannot have a conversation yet because we do not have trust yet.

Minorities have to be able to trust that our experiences will not be discounted or softened to make the majority more comfortable.

Whites who grew up with race as background noise, a reality to be encountered only when a minority entered the room, have to be able to trust that honest verbal errors will not create character stains.

This trust cannot be created collectively or immediately; it has to be built one brave uncomfortable honest personal conversation at a time.

And, when enough of us can have real conversations on race in our neighborhoods, schools, and workplaces, we will be able to, on a national scale, say yes without the but.

3L and the City: Graduation and reflection

By Maria Vasos
Chicago-Kent College of Law

On May 18, 2008, I will officially graduate from law school and join the throngs of other survivors in the legal profession, (once, of course, I pass the bar).

As I reflect on my three years of study, I note that I was fortunate to have many positive, and only some not-so-positive, experiences. What stands out by far was my involvement in my law school’s criminal defense clinic. I strategically chose to do the clinic during the summer, when I did not have any classes to get in the way of my participation, including going to court on an almost daily basis.

And, I chose to do it after my second-year, after I had already taken evidence and two trial advocacy classes. I was able to assist on a full, two-week-long, felony jury trial from start to finish. The defendant was found ”not guilty” on all four counts and I was even thanked by him and his family for my help on his case.

Not only did the clinic strengthen my resolve to go into litigation, it more importantly strengthened my resolve to finish law school. It was often hard to get excited about legal writing memos about fake clients with fake problems. In the clinic, helping real clients, real people, fight the good fight, made all the difference.

On a related note, I was lucky enough to do two different externships as well that were also great hands-on experiences. I highly recommend clinics and externships to everyone in law school and think that at least one should be mandatory, similar to a residency program for doctors.

To that end, I generally enjoyed all of my practical skill courses, which I feel have helped prepare me for the actual practice of law, courses such as evidence, trial advocacy, and criminal litigation (affectionately referred to as, ”trial advocacy on steroids” by its professor).

This leads me to a terrible law school pitfall, the first-year curriculum, and unfortunately pretty much the rest of the ‘’substantive law” curriculum as well.

There is a reason why Harvard Law School announced in October that it would devote fewer hours to the traditional first-year curriculum and add practical courses, such as problem solving, into the mix.

The reason is that the entire first year of law school is useless, except as a battle of wills to weed out those who cannot stomach it. I am fully aware that I will have to re-learn what I need for the bar exam in July. I, like many others, am not certain as to how much of torts I actually even learned in the first place. God bless bar prep courses and supplements.

But, in my experience, most, if not all, of the other substantive law courses are completely ineffectual as well. When, in an actual legal career, would you need to memorize any law, because you could not look it up, much less Model Code that has not even been adopted? Dare I say, never. When would you be confronted with a five-page long hypothetical problem that you would have to dissect in its entirety and resolve in only two hours? Again, I venture that this would never happen.

Law students are failed in that respect because they can take all of these courses and upon graduation and passing the bar, only be prepared to be law students, not lawyers. Would society let doctors practice medicine without having even touched a human body or step foot in a hospital? Of course not. Why a law student can graduate, pass the bar, and be licensed to practice law, without having ever drafted a motion or stepping foot in a courtroom is beyond me.

I am told that this is the age-old debate between the legal academics and practitioners regarding just how much of a trade school law school should actually be. Obviously, you can see what side of the fence I am on.

But lastly, since I already compared law school with medical school, it stands to note that medical school is traditionally entirely pass-fail. This promotes cooperation in learning and fosters a low-stress environment for students, encouraging them to finish medical school and become successful doctors.

In contrast, law school has a harsh mandatory curve, so even if all of the students in a particular class did great on the final exam, a professor is only allowed to give 5 percent As, 10 percent A-minuses, 20 percent B-pluses, etc. So, the difference between an ”A” and a ”C” could be only five points.

And, most law schools require between a B-minus and C-plus grade point average to stay in school. One is in constant battle of the curve, with his or her equally competent peers, to stay in school, at least in the first year, when there are no other grades to balance the scales. This promotes extreme competition, stress, bad will, and higher attrition rates.

Many potentially excellent lawyers, who are not perfect law students, get downtrodden, abused, and overlooked in this perverse hazing system that confuses law students with sacrificial lambs, for no good reason, because, to reiterate, most of law school does not prepare you for actual legal practice anyhow.

All in all, am I glad that I went to law school and will be embarking on a career as a lawyer? Absolutely. If I had it to do all over again, knowing what I know now, would I have done things differently? No, I have no regrets.

Would I like to continue on with more years of law school, just for fun, and maybe pursue an L.L.M. or something? No, I am not a masochist.

In the Woodpile: Mistakes and the modern lawyer

By Shawn Wood
Seyfarth Shaw

To err is human, but to really foul things up you need a computer.
—Paul Ehrlich

Month after month, my inbox is flooded with solicitations for tech-law seminars. While I’m always struck by the sheer number of these programs and their inspired use of fear as a marketing strategy (”What Every Lawyer Must Know About E-Discovery”), I’m also amazed that these seminars consistently omit one of the most important ”tech” topics of all.

Specifically, I’d like to see a program called: ”How to Avoid Technology Mistakes That Make You Look Really Stupid.”

Professionals clearly need more instruction in this area, and I’m not just talking about minor errors like forgetting to attach a document to an e-mail or those ”all-firm” blasts that always begin with something catchy and sincere like ‘’sorry for the blast e-mail.”

Stories flow through every office about those three terrifying words ”Reply to All” and how a promising career can be sabotaged by sending the wrong e-mail to the wrong 800 people.

In our office, if you click ”Reply to All” in response to an e-mail, the IT folks installed a helpful prompt for the focus-impaired that says: ”DO YOU REALLY WANT TO REPLY TO ALL?” If this doesn’t work, I dropped a note in the suggestion box recommending a second prompt that says: ”HEY IDIOT, IF YOU KEEP SENDING THESE TO EVERYONE, THE FIRM WILL REVOKE YOUR E-MAIL PRIVILEGES.” If they implement my suggestion, I think I win a free taco.

In 2008 alone, there have been at least two incidents of lawyers ending up in the news after inadvertently hitting the ‘’send” button.

In February, The New York Times broke a story about confidential settlement discussions between Eli Lilly and the federal government. Portfolio.com subsequently reported that the drug company’s outside litigation counsel inadvertently sent a confidential e-mail intended for her co-counsel to a NYT reporter, who had a similar name and e-mail address.

This story shot through the blogosere with no shortage of schadenfreude that a mistake had been made by a ”high-priced” partner from a ”fancy” law firm. By the time the reporter clarified that he derived the details of his story from other sources and that the inadvertently sent e-mail consisted of only two sentences (merely stating that the government’s demand was in the ‘’stratosphere”), the damage was done. This story became a parable for the need to exercise greater care when communicating about confidential information.

The second recent e-mail gaffe involved the settlement of a lawsuit an insurer had filed against the Mississippi attorney general. The Associated Press reported that a Skadden, Arps, Slate, Meagher & Flom attorney representing the insurer was copied on an e-mail sent to reporters that contained a press release by the attorney general. The lawyer intended to forward the e-mail to her internal team while commenting that the attorney general should be held in contempt for misrepresenting the terms of a confidential settlement. Instead, she hit ”Reply to All.”

Her comments were sent to a dozen reporters. I suspect this problem could have been avoided by having an auto-prompt that says, ”ARE YOU SURE YOU WANT TO SEND THIS TO A DOZEN REPORTERS?” Remind me to add that to our suggestion box.

Beyond these inadvertent disclosures, the ever-increasing prevalence of blogging creates entirely new avenues for professional blunders.

My personal favorite goof on the blogging front occurred in the context of a medical malpractice trial in Boston last year. Dr. Robert Lindeman, a graduate of Yale University and Columbia University’s College of Physicians and Surgeons, was sued for allegedly failing to diagnose a patient’s diabetes. It turns out defendant Lindeman also maintained an anonymous blog under the screen name ”Flea.” (Ah, yes, sign me up for medical care by the dude who refers to himself as ”Flea.”)

Doc Flea, according to the Boston Globe, was maintaining a real-time blog during his own medical malpractice trial, in which he ridiculed the plaintiff’s case, revealed the defense strategy, and accused members of the jury of dozing. He also wrote about the plaintiff’s attorney Elizabeth Mulvey, who he nicknamed ”Clarissa Lunt,” and remarked about her habit of biting her nails, and reportedly mused: ”Wonder if she’s a pillow biter, too?”

So imagine the surprise of Doc Flea and his lawyer when, at the close of the day during cross-examination, Mulvey asked if Lindeman maintained a blog and whether he was Flea. After Lindeman answered yes to both questions (”D’oh!”), with Mulvey having telegraphed that she was prepared to delve into Flea’s colorful descriptions regarding the case (and everyone in the courtroom), the case promptly settled.

With this non-exclusive list of recent stories involving professional pitfalls, it seems appropriate to add ”avoiding stupidity” to the list of topics at the next round of tech law seminars.

In the meantime, I recommend reserving use of your computer for the really important things, like fantasy baseball, searching for new music on Pitchfork, or watching that Jimmy Kimmel-Ben Affleck video on YouTube.

Or, if nothing else, just avoid ever hitting ”Reply To All.”

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