Content
Bar Counsel Informal Advisory Ethics Notes -
By J. Scott Davis
Katahdin Counsel Recognition Program
Enduring Ethics Opinions - By David L. Herzer, Jr., Esquire - Professional Ethics Commission
New Ethics Helpline Phone Number - 207-623-1122
MTLA to Honor Justice Warren Silver
Bar Counsel Informal Advisory Ethics Notes - By J. Scott Davis
Question #1
Attorney served as "Lawyer for the Day" in a local District Court. One of the clients she met with was a 3rd offense OUI. The purpose of Attorney's limited representation (see MRPC 1.2(d)) was only to try to have that client make bail. Attorney consults with
client and client tells Attorney she really needs to get out of jail because her angry/difficult husband will harm her pets and destroy her personal property. Client gave other details about husband's conduct that did not then appear relevant. One week later,
client's husband contacts Attorney to commence a divorce action against his wife, that same "for the day" client. Is there a conflict from such limited representation of that client/wife re her OUI?
Answer
Yes - under MRPC 1.2(d) and by incorporation, 1.9, these facts cause Attorney to fall into conflicts that apply in such a limited representation matter and prohibit her from taking the husband's divorce case.
Question #2
Attorney has a potential client who formerly lived and worked in North Carolina. Client has returned to Maine but is scheduled (in December 2012) to have an unemployment hearing back in North Carolina. That hearing can occur telephonically and client has requested
Attorney to represent client. Attorney is only licensed in Maine but understands from client's report that no lawyer is required to serve as the advocate in the North Carolina hearing. Under the multi-jurisdictional practice rules, can Attorney help this client?
Answer
No, because Attorney is unlicensed to practice law in North Carolina and reportedly knows nothing about its employment laws. Both as a protection for this prospective client and for the Attorney, he should not advise her on North Carolina law. If he does, he
could potentially misinterpret those laws or otherwise improperly advise this client. That could harm client's pursuit of unemployment benefits as well as possibly provide a malpractice risk for the Attorney. While MRPC 5.5 now more completely addresses an
attorney's ability to conduct a multi-jurisdictional practice than what existed under the former Code of Professional Responsibility (Maine Bar Rule 3), the exceptions to Rule 5.5 are not applicable or relevant to this Attorney's dilemma. He should refer this
prospective client to legal resources in North Carolina and assist her in doing so.
Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the
attorneys in the office of Bar Counsel in the course of providing informal advice on the
Maine Rules of Professional Conduct, known as Bar Counsel's "Ethics Helpline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own
conduct or the conduct of a member of his or her firm. See
Board Regulation #28. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have
attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.
Katahdin Counsel Recognition Program
This year, the Maine Supreme Judicial Court is very pleased to honor 125 attorneys participating in the inaugural year of the Katahdin Counsel Recognition Program. Collectively, these attorneys have provided more than 13,600
hours of pro bono legal service to needy clients in their communities. Recognition events will be held at the following locations:
October 23, 2012 - 12:00pm
Biddeford District Court
November 5, 2012 - 3:00pm
Maine Supreme Court
Cumberland County Courthouse
November 7, 2012 - 12:00pm
Penobscot Judicial Center
November 9, 2012 - 12:00pm
Machias (pending event confirmation)
The County Bar Associations have been instrumental in organizing and supporting the Katahdin Counsel Recognition Program events, and their efforts are greatly appreciated. Please visit
http://www.courts.state.me.us/citizen_help/attorneys/katahdin/overview.html for additional information or contact
katahdin@courts.maine.gov with any questions.
Enduring Ethics Opinions - By David L. Herzer, Jr., Esquire - Professional Ethics Commission
The Ethics of Cloud Computing and Storage
So-called "cloud computing" includes any software and hardware package that allows a lawyer to transmit, manipulate, store, and retrieve data off the lawyer's premises - in the proverbial clouds - rather than on the hard drive seated on the lawyer's desk. It
includes platforms like web-based e-mail, online data storage, software-as-a-service ("SaaS"), platform-as-a-service ("PaaS"), infrastructure-as-a-service ("IaaS"), Amazon Elastic Cloud Compute ("Amazon EC2"), and Google Docs to name a few examples.
While the technology is perpetually renewing and reinventing itself, cloud computing triggers the same ethical obligations that lawyers always have owed to their clients. Think of it like a roadway intersection that is re-engineered and reconstructed to improve
the flow of traffic. The number of lanes may increase, the roadway markings may change, and the traffic control devices may be new, but the rules of the road for approaching vehicles remain the same for that intersection as for any outdated intersection. With
the expansion of remote data storage and processing services, or cloud computing, comes the need to observe the same, previously established ethical obligations attorneys always have followed in caring for client information.
Commentators on the ethics implications of cloud computing generally identify several current rules of professional conduct affected by the new technology, such as Rule 1.1 (competence), Rule 1.4 (communications with client), Rule 1.6 (confidentiality), Rule
1.15 (safeguarding client property), and Rule 5.3 (supervision of third parties).
With the shift from paper hardcopies to electronic data, the Maine Professional Ethics Commission issued Opinion #183 on January 28, 2004. The Opinion answered the question whether an attorney is obligated to keep a paper copy of correspondence if that correspondence
is converted to an electronic format and stored on a computer. Analyzing then applicable Rules 3.5(a) and 3.6(a) & (e) and Opinions #74 & #120, the Commission concluded that the ethics rules did not require the attorney to retain a paper copy in addition to
the electronic one but only under certain conditions. Those conditions generally ensured that the electronic format did not make the correspondence any less accessible to the client than a paper document. Rule 3.5(a) exists today within the current Rules of
Professional Conduct 1.15(f) and 1.16(d), and the 2004 Rule 3.6(a) & (e) have carried over into Rules 1.1, 1.3, 1.4, and 1.15(a) & (f). Note, however, that Rule 1.15(f) states that there is an obligation now to retain and safeguard client records that have
"intrinsic value in the particular version, such as original signed documents," rather than destroy them after conversion to an electronic format.
In 2008, the Commission came close to addressing the ethics of what currently is known as cloud computing. Opinion #194 discussed the ethical propriety of using third-party vendors to process and store electronic data comprised of the client's file. The scenario
posed included transmitting electronic recordings - presumably the lawyer's dictated correspondence, briefs and the like about the client's confidential information - for off-site transcription and transferring client files in the form of the electronic data
off-site for backup storage. The Commission relied on then Rules 3.6(a) & (h) and 3.13(c), as well as Opinions #74 & #134, to come to the conclusion that "with appropriate safeguards, an attorney may utilize transcription and computer server backup services
remote from both the lawyer's direct control or supervision without violating the attorney's ethical obligation to maintain client confidentiality." The 2008 version of Rule 3.6(a) & (h) can be found in the current Rules 1.1 and 1.6, and then Rule 3.13(c)
translates to current Rule 5.3.
What changes with evolving technology like cloud computing is not the overriding ethical constraints on counsel, but how those constraints are satisfied with respect to new challenges presented by the technology. What must the lawyer do to provide reasonable
and enforceable assurances that the third-party vendor will protect client confidences? How does the lawyer confirm the destruction of data held by the vendor when the client file is closed? Can the lawyer retrieve client files if the vendor closes its business?
A full discussion of how an attorney complies with the specific ethics rules implicated as to a particular proprietary "cloud" product is beyond the scope of this article. Ethics commissions in other jurisdictions and legal scholars have written extensively
on the nuts and bolts of acting ethically in the cloud, including providing checklists. See, e.g., Pennsylvania Formal Opinion 2011-200; North Carolina 2011 Formal Opinion #6 (January 27, 2012); and The American Bar Association, "Ethical Challenges on the
Horizon: Confidentiality, Competence, and Cloud Computing," 2012.
New Ethics Helpline Phone Number - 207-623-1122
To better field Ethics Helpline calls, the Board has established a dedicated phone line to accept recorded messages from members of the bar seeking "ethics" guidance. Bar Counsel will return calls on Monday, Wednesday and Friday
from 11:00 a.m. to 3:00 p.m. Keep in mind that Bar Counsel are authorized to respond to inquiries from members in good standing of the Maine bar who are asking about their own contemplated conduct. Bar Counsel must decline to render an opinion when an inquirer
asks a question about another attorney's conduct.
Be sure to add the new Ethics Helpline phone number to your contacts - 207-623-1122!
MTLA to Honor Justice Warren Silver
Members of the Bar are invited to attend the 2012 Maine Trial Lawyers Association (MTLA) Legends Dinner honoring Justice Warren M. Silver. The dinner will take place on October 18th at 7:00 p.m. at the Doubletree By Hilton (formerly
the Wyndham Hotel) in South Portland, to honor Justice Silver for his ongoing contributions to the Maine Legal Community and Civil Justice. Distinguished speakers for the evening include Honorable Donald G. Alexander, Terrence D. Garmey, Esq., S. Peter Mills,
III, Esq., and Ellsworth T. Rundlett, III, Esq.
Dinner will be preceded by a 6:00 p.m. reception in which we will honor all MTLA Past Presidents for their considerable efforts in building this great organization.
R.S.V.P. required by 10/14.
Click here to R.S.V.P. online. $85 per ticket ($65 for Judges.) Space is limited.