legal ethics

Subscribe to legal ethics

We’ve had a great response to an Above the Law op-ed here that outlined the kinds of skills lawyers will need as artificial intelligence increases its foothold in law firms.

The piece makes clear that without the right kinds of skills, many of the benefits of AI will be lost on law firms because you still need an engaged human brain to ask the computer the right questions and to analyze the results.

But too much passivity in the use of AI is not only inefficient. It also carries the risk of ethical violations. Once you deploy anything in the aid of a client, New York legal ethics guru Roy Simon says you need to ask,

“Has your firm designated a person (whether lawyer or nonlawyer) to vet, test or evaluate the AI products (and technology products generally) before using them to serve clients?”

We’ve written before about ABA Model Rule 5.3 that requires lawyers to supervise the investigators they hire (and “supervise” means more than saying “don’t break any rules” and then waiting for the results to roll in). See The Weinstein Saga: Now Featuring Lying Investigators, Duplicitous Journalists, Sloppy Lawyers.

But Rule 5.3 also pertains to supervising your IT department. It’s not enough to have some sales person convince you to buy new software (AI gets called software once we start using it). The lawyer or the firm paying for it should do more than rely on claims by the vendor.

Simon told a recent conference that you don’t have to understand the code or algorithms behind the product (just as you don’t have to know every feature of Word or Excel), but you do need to know what the limits of the product are and what can go wrong (especially how to protect confidential information).

In addition to leaking information it shouldn’t, what kinds of things are there to learn about how a program works that could have an impact on the quality of the work you do with it?

  • AI can be biased: Software works based on the assumptions of those who program it. You can never get a read in advance of what a program’s biases may do to output until you use the program. Far more advanced than the old saying “garbage in-garbage out,” but a related concept: there are thousands of decisions a computer needs to make based on definitions a person inserts either before the thing comes out of the box or during the machine-learning process where people refine results with new, corrective inputs.
  • Competing AI programs can do some things better than others. Which programs are best for Task X and which for Task Y? No salesperson will give you the complete answer. You learn by trying.
  • Control group testing can be very valuable. Ask someone at your firm to do a search for which you know the results and see how easy it is for them to come up with the results you know you should see. If the results they come up with are wrong, you may have a problem with the person, with the program, or both.

The person who should not be leading this portion the training is the sales representative of the software vendor. Someone competent at the law firm needs to do it, and if they are not a lawyer then a lawyer needs to be up on what’s happening.

[For more on our thoughts on AI, see the draft of my paper for the Savannah Law Review, Legal Jobs in the Age of Artificial Intelligence: Moving from Today’s Limited Universe of Data Toward the Great Beyond, available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3085263].

 

One lawyer we know has a stock answer when clients ask him how good their case is: “I don’t know. The courts are the most lawless place in America.”

What he means is that even though the law is supposed to foster predictability so that we will know how to act without breaking our society’s civil and criminal rules, there is a wide variety of opinion among judges even in the same jurisdictions about the matters that make or break a case on its way to a jury.

Our friend’s answer came to mind while reading an interesting roundup of experienced trial lawyers over the weekend about why the trial of Bill Cosby outside Philadelphia resulted in a deadlocked jury and mistrial, announced on Saturday.

In the New York Times, the attorneys mostly fell into two camps: those who thought lead witness Andrea Constand presented the jury with credibility problems because of inconsistent testimony, and those who thought the judge’s decision to limit the admission of evidence of many other similar allegations substantially weakened the prosecution’s case.

My view is that the two reasons are linked: evidence that many women have made claims similar to Constands’ could easily have overcome the credibility problem if the jury had been able to hear about many of the other women who alleged Cosby had drugged and had sexual contact with them too.

In another case with identical facts and a different judge, the other accusers may have made it in — a great example of two things we tell clients all the time:

  1. Persuasive evidence is good, but admissible evidence is what you really want when you know you’re going to trial.
  2. A lot of legal jobs are now being done by computers, but while there are human judges they will differ the way humans always do: in a way that is never 100% predictable.

Admissibility

When we are assigned to gather facts in civil or criminal matters, all of the evidence we get must always be gathered legally and ethically. Otherwise it could easily turn out to be inadmissible. But even if you do everything right, admissibility is sometimes out of your control. The whole case can turn on it.

If all you are doing is trying to get as much information as you can without any thought of taking it to trial, then admissibility may not be much of a concern. Think about deciding whether someone is rich enough to bother suing using hearsay evidence; or finding personally damaging information that may be excluded as prejudicial, but even the thought of arguing a motion about that information would be too much for the other side to bear. It could increase the chance of a more favorable settlement for you.

In the Cosby case the information in question would have been very helpful to the prosecution.

Ordinarily the justice system doesn’t like to see evidence of other bad acts used in a case to paint a picture of  a defendant’s character. Rule 404 (b) of the Federal Rules of Evidence excludes this kind of thing, but allows admission of evidence of another act “as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

So the prosecution could have argued that all the other accusers making similar claims that they were drugged and subjected to sexual contact were evidence of Cosby’s intent, or a lack of accident, and may even have been seen as preparation for the time Constand went to Cosby’s home and was drugged.

But the judge wouldn’t let any of that in. In Pennsylvania, the rules in this section are tougher on the prosecution than are the federal rules. The state’s rule 404(b) (2) “requires that the probative value of the evidence must outweigh its potential for prejudice. When weighing the potential for prejudice of evidence of other crimes, wrongs, or acts, the trial court may consider whether and how much such potential for prejudice can be reduced by cautionary instructions.”

It seems that the judge was afraid that even warning the jury not to read too much into the other accusers would have prejudiced them even if he instructed them that the other accusers alone did not constitute proof of Cosby’s guilt — in this matter with Constand.

Unpredictability

The legal world is justifiably occupied in trying to figure out how to reduce costs by automating as many tasks as possible. Gathering of some facts can be automated, but not always, for the simple reason that facts are infinitely variable and therefore not wholly predictable.

Implicit in fact gathering is evaluating the facts you get, as you gather them. You are constantly evaluating because you can’t look everywhere, so promising leads get follow-up, the others don’t. Machines can scan millions of documents using optical character recognition because there are only so many combinations of letters out there. But the variety of human experience is limitless.

If machines can’t be trusted to properly evaluate someone’s story, imagine the problems if that story has never been written down. Think about all the things you would not want the world to know about you. How much of all of that has been written down? Probably very little. It was human effort alone that developed the other witnesses the prosecution wanted to call.

The only way a computer might have helped in this case would have been to predict – based on prior cases – which way the judge would rule in excluding the other evidence. Even that would be a tough program to write because these decisions turn on so many unique factors. But since judges are chosen at random, it wouldn’t have helped shape the decision about whether or not to charge Cosby.

Want to know more about our firm?

  • Visit charlesgriffinllc.com and see our two blogs, this one and The Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.
  • If you are member of the ABA’s Litigation Section, see my piece in the current issue of Litigation Journal, “Five Questions Litigators Should Ask: Before Hiring an Investigator (and Five Tips to Investigate It Yourself).

One of the most fruitful avenues of investigation is to look at material that nobody ever thought would harm them. That’s the kind of material people do not take great pains to hide. Why hide it when it won’t hurt you and there is so much else in the world to worry about?

Trusts set up in the Cook Islands that funnel their money via the Isle of Man and the British Virgin Islands are meant to be hard to find. The same for computer files that are erased – but erased inexpertly.

But in the category of things-we-never-thought-would-matter-much are the dull news releases praising the hiring of a new CFO in 2008, when that person went on to cause the company all kinds of problems the company should easily have been able to foresee. The news release comes off the website, but it’s there on the internet forever in a variety of places: news services that preserve it and the web archive that sucks up web material and keeps it – automatically.

risk and investigation.jpgThis topic came to mind today after the Wall Street Journal reported that the $6 billion settlement between Visa, MasterCard and millions of the cardholders’ merchants may come undone because of emails (just discovered) that were exchanged between opposing lawyers in the case.

The substance of the emails isn’t the topic of this posting, but rather how the emails were even discovered.

The opposing lawyers were old friends who socialized on the family level. It turns out that one of them was charged with her husband of conspiracy to commit wire fraud against her law firm and her client.

Once that happened, the firm began examining her emails closely and found the exchanges with her opposite and friend.

Her opposite and friend was probably as shocked as everyone else when the lawyer and her husband were charged, but it was too late. Everyday emails (which the article quoted experts and saying were ethically problematic) became headline emails because of events that one of the parties was unable to predict.

It’s a lesson that bears constant repetition: don’t write anything down that would cause you great personal embarrassment if for some reason it ever leaked out. That will cover crimes, ethical violations, and unforeseen circumstances that turn the everyday event into something that is memorable for all the wrong reasons.

Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why:

  • Recording could be illegal.

Some states allow tape recording conversations if one of the two people in the conversation is aware that a tape is rolling, but some require that both parties be aware. These include California, Florida, Illinois, Pennsylvania, Massachusetts, Connecticut and several more.

tape recorder.jpgWhat’s the problem with deciding you’re in a one-party state, calling up someone and letting the tape roll? Say the person you are calling has his phone forwarded to a two-party state. Even if you think you are calling someone down the street from you, how are you to know the phone isn’t ringing in Miami or L.A.?

  • Even if legal recording could be construed to be unethical for lawyers. Since we are lawyers, we pay the same close attention to the ethical rules as our clients do.

In a wonderful story in the current issue of the ABA’s Litigation News, (website here but current issue not on line yet), the ABA’s Lisa R. Hasday delivers a thorough  survey of the various ethical rules that govern phone recording. In short, it’s a minefield out there and any decision to tape is one that our clients would need to approve only after some serious reflection and research.

The one-party states fall into four categories.

  1. Surreptitious recording is not unethical  in Texas, Tennessee, North Carolina, Minnesota and a variety of other states. Of course, the same problem as avoiding a two-party state applies: a person sitting in Dallas calls a Houston number with the tape rolling, but the Houston number is answering the call in Orlando. Potential problem.
  2. Surreptitious recording is unethical except in certain circumstances in New York, Virginia, Colorado, Kentucky, Indiana and a few other states.
  3. Surreptitious recording is evaluated on a case-by-case basis in Arizona, Michigan and Wisconsin.
  4. Some states have no position on surreptitious recording. These include Georgia, New Jersey, Nevada, Louisiana and Arkansas, among others.

What’s the big deal courts make of taping when legislatures say it’s OK? It stems from ABA Model Rule of Professional Conduct 8.4(c) which has been adopted in most states, and says that lawyers commit professional misconduct if they “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

According to Hasday’s article, “courts have almost uniformly determined whether secret recording is misconduct based on additional facts surrounding the recording and not merely on the fact of the recording itself.”

The cases in which secret recording is most likely to be allowed involve the limited categories that have allowed attorneys to tell lies in the course of their duties: investigations into intellectual property infringement, housing discrimination, and for a lawyer’s self-preservation.

  • A recording could be legal and ethical, but is it admissible?

The decision to record a phone call is one that should be among the most heavily researched and carefully considered of the thousands of decisions a lawyer makes during the course of a matter. Even then, getting the recording admitted as evidence presents its own set of problems of authentication.

What kind of recorder is it? Is the operator competent? Were there any changes made to the recording? Are the speakers on the call identified? Did they speak without inducement?

Sometimes, making a recording of a phone may be a make-or-break decision in a case. But in our experience, recording has never been important enough to risk breaking the law, professional sanctions, and failure to get the material admitted.

 

“Three may keep a secret,” wrote Benjamin Franklin, “if two of them are dead.” While attorney-client privilege confers a lot of power on lawyers and their agents to keep a secret, the privilege is never absolute. It can be waived by the client anytime, and can be breached in all sorts of ways.

GettyImages_confidential.jpg

That’s why it’s unwise to promise an interview subject that what he tells us will forever remain confidential, no matter what.  

As investigators, we are sometimes asked by people we interview whether what they tell us can be kept “secret,” “just between us,” “confidential” or “off-the-record.” Those terms and other similar ones may have specific legal meanings under the rules of evidence, but can also mean different things to different people.

Good reporters always go over the ground rules of an interview if a subject seeks to put a limitation on what may be reported or disclosed to third parties.

Good investigators ought to do the same if asked. We’ve written before about the importance of using templates – a script of how an investigator will represent himself and the degree to which he will identify his client, in Trial Ethics: A Template Can Save Your Life.

In every one of our templates is a response to the question from the person we are seeking to interview, (if asked): “Can my comments remain confidential?”

Our answer tends to be something like, “Our firm has to share anything I hear from you with our client, but we won’t tell anyone else that you’ve told us anything unless a court orders us to do that.” This makes the investigator’s promise truthful, but doesn’t promise that what the person making the comments says will forever stay between that person and the investigator.

If we are hired by an attorney, then we will assert that anything we report to that attorney is protected by attorney-client privilege. As agents of the attorney, for the purposes of privilege it’s as if the attorney is doing the interviews we do.

But what happens if word gets out that we have done an interview, and the other side in litigation seeks a court order demanding that we hand over our notes or divulge the contents of our conversation? Our letter of engagement with attorneys promises that

we will promptly notify you [our client] and follow your direction with respect to any third-party effort, by subpoena or otherwise, to gain access to any document or information pertaining to this matter, including any effort to obtain testimony from us.

In other words, we’ll get our clients the information we learn in an interview, because our first duty is to our clients. And, we’ll fight as hard as our client would to preserve that secret. Beyond that, what happens to the information we report can be taken out of our control.

What works best for everyone concerned is that everything we promise is written down in an interview template and a letter of engagement. It helps our clients sleep better, and when they are happier, so are we.

GettyImages_106055172.jpgInvestigators need to be familiar with all the ins and outs of social media sites in order to best help their clients.  For example, through social media we’ve tracked down witnesses for litigation and beneficiaries of wills and trusts.  Social media is a great tool for uncovering evidence of adultery in a divorce case.  In addition, social media can provide evidence of intellectual property infringements or corporate policy violations. 

Unfortunately, keeping up with the changes in social media technology may be easier than keeping up with the changes in Internet law.  The legal community and the courts are still trying to figure out how social media, free speech, legal ethics and privacy laws intersect.  In fact, it seems like every other week there is an important judicial decision or ethical ruling regarding how social media can and cannot be used in legal and corporate investigations.

Case in point: earlier this month a federal judge in California significantly curtailed the social media postings that defendant Home Depot could obtain in an unlawful termination case brought by a former employee.  The Southern California magistrate judge explained that the federal rules dictating that electronic document requests be specific and directly relevant to the lawsuit apply to social media postings as well. Therefore Home Depot’s expansive request for all posts that reveal the plaintiff’s emotional state and every photograph she posted on her social media accounts was impermissibly broad.  

So what sort of social media information can investigators working for attorneys obtain for their clients? State Bar associations have been wrestling with this issue for the past several years. The general consensus appears to be that any information that a social media user made publically available to all members of a network can be obtained without restriction. (see the NYSBA Opinion #843 (9/10/2010) and Philadelphia Bar Opinion 2009-02 (March 2009)) This means that everything is fair game if the user’s privacy settings are turned off.

But what happens if the social media user has privacy settings that block access to anyone who is not a “friend?” In those cases clients will ask if we can overcome this pesky restriction and friend the person using an alias. Our answer is always an unequivocal “No, we can’t.”

Legal ethics decisions dictate that neither an attorney nor an agent working on their behalf, like an investigator, can gain access to any secure information if doing so requires either directly or indirectly deceptive behavior. This means an investigator can’t use an alias and pretend to know the social media user in order to be deemed a “friend” and be granted permission to otherwise restricted information. 

Keep in mind that even if the investigator does not use an alias, the act may be deemed unethical.  This is because the investigator has omitted a material fact to the social media user—namely that they were being contacted solely to obtain information for an attorney to be used in a pending matter.

The issue is much more complicated if the social media user is a represented or unrepresented party in a pending litigation.  If the person is a represented party, then under no circumstances can they be contacted without the prior consent of their lawyer.  And if they are unrepresented, then the lawyer can’t claim that they are disinterested in the issue at hand.  Furthermore, if the user is unrepresented, the lawyer has an obligation to correct any misunderstandings as to their role and to ensure that they don’t offer any legal advice if the social media user’s interests conflict with those of the attorney’s client. 

This blog takes no position on the merits of a motion filed to disqualify Kasowitz from representing plaintiffs in a lawsuit against SAC Capital Advisors and others.

We haven’t even read the motion, but are relying solely on a report from New Jersey state court on it via Bloomberg.

The fact pattern reads like an ethics exam question in law school, but the stakes are anything but theoretical. If the motion goes against Kasowitz the firm could be thrown off the case. It doesn’t get much worse than that.

The motion reportedly alleges that investigators hired by Kasowitz contacted a represented party, and then misrepresented the identity of their client in attempting to get information during an interview. Kasowitz says the motion if meritless.

If you were Kasowitz, what would you first ask your attorneys to produce when confronted with a motion like this? 

Item one would be the template that any lawyer ought to get from an investigator before the investigator picks up a telephone or talks to anyone outside the firm about a case. That template becomes a roadmap for how the principal (the lawyer) instructs his agent (the investigator) to behave as to the ethical questions that come up during an investigation.

Among the many questions a good template answers are:

  • How is the investigator representing himself? If the attorney approves a script that says the investigator will identify himself as the agent of a fictitious company, that’s a problem for the attorney. Or, the attorney could approve a template that gives the investigator’s real name and affiliation and says something like “I’m doing an investigation but I can’t tell you who my client is.” If the investigator then went off-script and got into ethical hot water, the attorney would have some protection.

Note: the more vague the presentation, the less likely it is that some people will talk to you. That’s the price you pay for refusing to lie. Happily, lots of people will still talk to you even if they have no idea who your client is. It’s remarkable but true.

  • Has the investigator taken adequate precautions against inadvertently talking to a represented party? Sometimes it’s hard to know if a person you’re talking to is a represented party, and therefore off-limits because of the no-contact rule. In the context of litigation, did the investigator say, “Before we get going I just want to make sure that you’re not represented by an attorney in this case. If you are, I’ll have to terminate this call.” Notes for each interview should clearly reflect that this question was asked and answered.
  • The same kind of question goes for privileged or confidential information. Make sure your investigator issues a warning before the interview begins in earnest that he wants no privileged or confidential information divulged. Then if it turns out to be part of the case you can have an argument about excluding that evidence, but ethically the law firm can say it did its best and shouldn’t be punished.
  • Last but of course not least, the questions themselves. In addition to inoculating the principal against an agent doing what he’s not supposed to do, it always makes sense to run a proposed list of questions past the attorney. It may be preferable given the facts of the case to start with one kind of question and to move to other subjects later on. Sometimes you may not want to telegraph the amount of information you already have. The way you ask a question and the order in which it’s asked could be critical in sending just the message you wish to send to that particular interview subject.