The white-collar bar is a varied and wonderful thing.
On one hand, there are the large-firm players — the FCPA mongers and the folks doing criminal antitrust work who fly all over the globe representing clients in lucrative conference room litigation that will rarely see a courtroom.
These cases are well-funded. Even if the client has a higher chance of French kissing the Chief Justice during the State of the Union address than of being indicted, as long as he’s indemnified by a large company, many firms will do everything they possibly can to be completely and fully ready for an indictment that will never come. I haven’t yet heard of a mock jury for a client in an investigation that isn’t going to be indicted, but I think that’s only because no one has thought it up yet. (And, to my friends currently representing such indemnified clients, you’re very welcome for the suggestion.)
For these folks, attorney-client privilege exists and is relatively easy to preserve. It’s good to be pre-indictment and it’s good to be indemnified.
But, for the rest of the folks accused of white-collar crimes, our Department of Justice is only too happy to make folks choose between a preserved attorney-client privilege and the Sixth Amendment.
You sometimes hear Biglaw litigators complain about courts not publishing enough opinions about discovery issues. Discovery (especially e-discovery) is such a major — and majorly expensive — part of the complex litigation in which large firms specialize, but there aren’t that many decisions on the books over such nuts-and-bolts issues as responsiveness, privilege, and work-product doctrines.
So it’s noteworthy that the Massachusetts Appeals Court just issued an opinion featuring extended discussion of the work-product doctrine. Some Boston Biglaw litigators will surely welcome the additional guidance on this subject.
But not all of Boston Biglaw will be pleased by this decision. Certainly not the major firm that could wind up getting hit with sanctions as a result….
I say “allegedly” not to suggest there’s any question over whether the partner owned the trolling company, but because the partner claims he had no involvement in the decision to sue his firm’s most prominent tech client. Even if he didn’t, it hardly sounds kosher.
Whatever his precise role, he might have gotten away with it, too, if it weren’t for that meddling privilege log…
Let me regale you with two recent examples of lawyers disclosing client confidences. There’s a lesson tucked into each.
First: An acquaintance sent me the résumé of, and asked me to speak to, a young lawyer. The idea was to give some general career advice, rather than necessarily to hire the person.
I’m a pushover, so I agreed to have a cup of coffee with the relatively new lawyer. Over coffee, he (or she, but I’ll use the masculine) explained that what he liked least about the job he’d just left (which was identified on his résumé) was being asked to do unethical things. My curiosity piqued, I asked for an example. He explained that he’d been asked to draft a contract that committed his employer to violating the law as part of the contractual relationship. (Think along the lines of, “We will ship the illegal weapons to you in New York.”) My young acquaintance said that he’d gone to the general counsel, who had instructed him to draft whatever contract the business wanted. The earnest young lawyer had solved the ethical problem by drafting a contract that, when read carefully, would prohibit the illegal conduct. (Think: “Under no circumstance will any weapons of any type be shipped pursuant to this contract.”)
I’m afraid I won’t be recommending this person for any jobs. . . .
Last time we checked in with Paul Ceglia — the Man Who Would Be King of Facebook — and his lawsuit claiming partial ownership of the social media giant, he was facing sanctions if he refused to provide Facebook with a very touchy document known as the Kasowitz letter.
Well, the production deadline has come and gone, and there’s no letter. You know what that means. All aboarrrd! Next stop, Benchslap City…
For a couple of centuries, we thought that American elections were precise: People voted; the government counted each vote; we knew which candidate received how many votes.
In the year 2000, we learned that elections are approximations. Votes are miscounted; chads dangle; we don’t in fact know precisely who received how many votes. Elections are a human process after all, and they can’t bear the weight when we insist on precision within the margin of error.
So, too, with litigation. I recently spoke to one of our outside litigators who had seemingly vanished from the face of the earth for several weeks. He told me that one of his clients had run into a now-typical e-discovery disaster: His client had overlooked some documents; a computer system had automatically deleted some other documents; when the client corrected the situation, it did so imperfectly; the judge (who came from a government background and had no experience in private civil litigation) was quick to spy “bad faith.” Why, this outside lawyer asked, don’t judges appreciate the difficulties presented by e-discovery?
My thesis (for today, anyway) is that e-discovery is like elections: It’s an approximation, and participants in litigation (parties, counsel, courts) should understand that it may not bear the weight when the judicial system insists on precision within the margin of error . . . .
My work life revolves around email. Because of the size of our company, and the geographical locations of my clients, I spend a majority of my day on email. Like many of you, I have a disclaimer below my signature stating that the correspondence is attorney-client privileged, and so on. But is it really? Many times, the answer is no. I know enough to use the disclaimer in an abundance of caution, but my clients often have no idea whether what they send across email is indeed privileged.
Like Susan Moon, I am often referred to as “council.” That’s fine, it doesn’t really bother me, and is rather innocuous. Sometimes however, a client will take it upon themselves to write in bold, ATTORNEY-CLIENT PRIVILEGED, within the subject line. And that does bother me. Folks with just enough legal knowledge to be dangerous, are often just that — dangerous. Now, the email may indeed be seeking my advice, or concern a legal matter within that client’s region, but the client should not assume that to be the case. The misunderstanding of the privilege could lead to problems in the future, say, in a discovery period….
A wise man once said: “There, but for the grace of God, go I.”
I think of this whenever there are claims of attorneys royally screwing up e-discovery. It’s easy to indulge in some schadenfreude and say, “What suckers!” But truthfully, many firms — even the big, prestigious ones — are more vulnerable than they’d like to admit.
This month, McDermott Will & Emery ended up in the bright, unpleasant spotlight, because a former client sued the firm for malpractice.
Why, you might ask? The firm allegedly botched a client’s e-discovery.
Keep reading to see how the Am Law 100 firm became the e-discovery dunce du jour….
I recently heard a panel of judges speak about e-discovery issues. Their opinions on several subjects varied, but on one subject they agreed unanimously: Clawback provisions under Federal Rule of Evidence 502 are valuable tools in most significant litigation, but they remain rarely used.
This piqued my interest, so I asked several in-house litigators (not necessarily at the place where I work) whether they routinely seek FRE 502 clawback provisions in their cases. The in-house lawyers do not. And I asked whether outside counsel routinely recommend seeking those provisions. Not surprisingly (because the in-house folks aren’t using them), outside counsel do not.
The judges think clawback provisions are a good idea; in most situations, it strikes me that the judges are right. So what are FRE 502 clawback provisions, and why are inside and outside counsel routinely missing this trick?
If you are considering a virtual law practice, you know that many of today’s solo firms started that way. But why are established, multi-attorney law firms going virtual?
Many small firms are successfully moving part—or even all—of their practice to a virtual setting. This even includes multi-jurisdictional practice spanning several states and practice areas, although solo and small partnerships are still the largest adopters of virtual law.
Can you do the same? The new article Mobile in Practice, Virtual by Design from author Jared Correia, Esq., explores how mobile technology bring real-life benefits to a small law firm. Read this new article—the next in Thomson Reuters’ Independent Thinking series for small firms—to explore how a mobile practice:
Reduces malpractice risk
Enables you to gather the best attorneys to fit the firm, regardless of each person’s geographic location
Leverages mobile devices and cloud technology to enable on-the-spot client and prospect communication
Transitioning in-house is something many (if not most) firm lawyers find themselves considering at some point. For many, it’s the first step in their career that isn’t simply a function of picking the best option available based on a ranking system.
Unknown territory feels high-risk, and can have the effect of steering many of us towards the well-greased channels into large, established companies.
For those who may be open to something more entrepreneurial, there is far less information available. No recruiter is calling every week with offers and details.
In sponsorship with Betterment, ATL and David Lat will moderate a panel about life in-house and we’ll hear from GCs at Birchbox, Gawker Media, Squarespace, Bonobos, and Betterment. Drinks, snacks, networking, and a great time guaranteed. Invite your colleagues, but RSVP fast, as space is limited.
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: firstname.lastname@example.org.
It’s that time of year again when JDs are starting to apply for 2L summer jobs and 2L summers are deciding which practice area to focus on.
For those JDs with an interest in potentially lateraling to or transferring to Asia in the future, please feel free to reach out to Kinney for advice on firm choices, interviewing and practice choices, relating to future marketability in Asia, or for a general discussion on your particular Asia markets of interest. This is of course a free of cost service for those who some years in the future may be our future industry contacts or perhaps even clients.
For some years now Kinney’s Asia head, Evan Jowers, has been formally advising Harvard Law students with such questions, as the Asia expert in Harvard Law’s “Ask The Experts Market Program” each summer and fall, with podcasts and scheduled phone calls. This has been an enjoyable and productive experience for all involved.