Loosening up, if not entirely removing “office shackles,” interests many lawyers — and never has it been easier thanks to many modern technology tools, apps and services. Here, we recap our presentation during the Second Annual SDCBA Law + Tech Summit.
By Edward McIntyre
A recent State Bar Court discipline opinion underscores that we, lawyers, should take a court’s order seriously — very seriously — at our peril.[1] The facts of the case drive the point.
By Lilys McCoy
I recently started using a fountain pen. Why, you may ask? Two reasons: First, I felt I needed to do a digital detox and returning to longhand seemed like a good way to start. Second, my writing hand, previously hardened by years of cursive script on legal pads, spiral notebooks and paper calendars, had become weak, and fountain pens are apparently easier on the muscles (that bit of wisdom was spot on, in case you wondered). I was almost surprised to see that the descendant of the quill is still being sold and supported, but it is . . . and in many different forms and by many different manufacturers.
As I contemplated my digital detox, I also considered the hard reality that I could never really, truly unplug. Absent a decision to live completely off the grid, I must accept some connectivity in my life. And, as an attorney, I must not only accept the networked life, I must embrace it. Our ethical duties require us to do so. Notably, the American Bar Association amended ABA Model Rule 1.1 in 2012 to include technological competence: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice including the benefits and risks associated with technology . . .” See, 2012 Amendment to ABA Model Rule 1.1 Competence, Comment 6, Maintaining Competence as referenced in SDCBA Legal Ethics Opinion 2012-1.
The San Diego County Bar Association, long a leader in the legal ethics space, decided in 2017 to lead in the legal technology space as well. In 2018 we hired one of the first Bar Association Member Technology Officers in the nation — the incomparable Adriana Linares — and launched expert law+tech education. This edition of San Diego Lawyer is dedicated, in part, to helping members become more technologically savvy. But technical competence must not be at the expense of other competencies. And, while indispensable and unavoidable, technology should be in service of what we do as lawyers, not the essence of what we do.
It’s #TechTuesday! Today we are sharing another video tip in our new series titled “Tech Tip in a Tenth“. These are short, targeted, and practical videos approximately 6 minutes in length, because, as Technology Committee Member, David Majchrzak said, “Who can’t spare a point one!?”
You ask yourself — “Can I abide by the policies in light of my ethical obligations under the new California Rules of Professional Conduct, effective November 2018?”
By Jan Maiden
In this new feature of San Diego Lawyer, Jan Maiden, former SDCBA Board member, recounts a situation in which a client threatened her license and how she addressed it.
By Edward McIntyre
Sara ushered two young women into Macbeth’s office.
“My friends, Samantha and Fiona, are opening their own firm.”
“Congratulations. A great adventure. Let’s move to the conference table.”
When all were seated, Macbeth asked, “How can we help?”
Fiona started. “We’ve been at large firms. Took things for granted. Now we have to be sure our firm does stuff right.”
Samantha joined. “There’s so much at the start. We’re grateful Sara suggested we meet you.”
“We’re happy to help. Let’s start at the beginning — new clients.”
Fiona laughed. “Best place to start.”
“You’re aware of the new rules?”
Both nodded.
“Let’s look at rule 1.7 — conflicts. It affects every new client. Each new matter.”
Macbeth opened his rules booklet and handed copies to Fiona and Samantha.
“Rule 1.7 (a) doesn’t change much. We can’t represent a client with interests directly adverse to another client without the informed written consent of each. Whether in the same or unrelated matters.”
Macbeth continued. “Now look at 1.7 (b). It requires informed written consent of each client if my responsibility to, or relationship with,” he started to tick the items off on separate fingers, “another client, a former client, a third person — or my own interests — will materially limit my representation of that client.”
Samantha looked up. “I’ve puzzled over that since I first read it.”
Macbeth set his booklet down. “We can talk about examples in a bit. First, how does a lawyer determine whether any such responsibility or relationship even exists? It starts with a practical problem.”
Fiona sighed. “A conflict check system. Something the firm always did. Our general counsel reviewed all new matters.”
Samantha shrugged. “We’re our general counsel now.”
Macbeth smiled. “Precisely. I can’t consider whether responsibility to someone, or a relationship, will materially limit representation of a new client — or a new matter for an existing client — until I identify the responsibilities and relationships each lawyer has.”
“Each lawyer?”
“Yes. If one lawyer has a conflict, it’s imputed to each firm lawyer.”
“Glad we’re only two. We can talk.”
“I suggest setting up your system from the beginning. Then, as you grow, it’ll be there for you.”
Sara added. “And save you from a world of hurt with disabling conflicts.”
Samantha opened a tablet and looked toward Macbeth. “ OK. Conflict check system.”
“Let’s start with the obvious. All current clients.”
Both nodded.
“Then, all clients you represented in the past. At your former firms. I suggest not only corporate, partnership and other entity names, but also fictitious business names. Also names of principal officers, directors and partners. Members of LLPs and LLCs. Then parent and subsidiary corporations — to determine if those relationships create a conflict.”
Fiona and Samantha both took notes.
“Be prepared to pick up corporate and partnership name changes. Entity clients sometimes merge. Get acquired. When you represent individuals, be aware of spouse or partner name changes after marriage or divorce. We also include names of insurers involved in any case.”
Fiona looked up. “Insurers?”
“Remember the tripartite relationship — if you represent an insured based on a contract of insurance, each is a client.”
“Right. Forgot. The firm didn’t do much of that.”
“You may not at your new firm. But I’d have a place for the information — if you do.”
Samantha spoke. “I can see an artificial intelligence-aided system really helping.”
Sara nodded. “ That’s what we have. Interactive. Fully automated.”
By Christopher W. Todd with a substantial assist from Susan R. Todd Esq. (retired)
The most recent issue of San Diego Lawyer is dedicated to Law + Tech – a major initiative by the SDCBA to help members and the legal community at large, use technology better. It’s also the reason I, Adriana Linares, have the honor of serving as the Bar’s Member Technology Officer. Earlier this year, we held a two day conference dedicated to the topic. Renee Stackhouse and I spoke to lawyers about “Serious Productivity Apps and Tips for the Mobile Lawyer”. One topic we included, is a favorite of mine, add-ons! I love good add-ons that improve my productivity and simplify time in front of my computer.
By Carole J. Buckner
An attorney working as in-house counsel must have a solid understanding of the attorney-client privilege. The application of the attorney-client privilege may differ for in-house counsel in several ways that are important for the attorney to bear in mind.
