Recent N.Y. Ethics Opinions: May 2016

By Tyler Maulsby, Associate, Frankfurt Kurnit Klein & Selz

Here are summaries of ethics opinions issued in December 2015. The opinions were issued by the NYSBA Committee on Professional Ethics. NYLER will continue to provide updates on new ethics opinions issued by these and other ethics committees in New York State.

For information about how to obtain an ethics opinion from the NYS Bar Association Committee on Professional Ethics, please visit http://www.nysba.org/Ethics/.

NEW YORK STATE BAR ASSOCIATION OPINIONS

NYSBA Ethics Op. 1076 (Dec. 2015)
Blind Copying Client on Correspondence with Opposing Counsel

Opinion 1076 addresses whether a lawyer must obtain the consent of opposing counsel before the lawyer can blind copy (bcc) her client on correspondence with opposing counsel. The Opinion concluded that consent of opposing counsel was not necessary. The Opinion reasons that because the lawyer is an agent of her client, opposing counsel “should expect that the lawyer may share correspondence relating to the representation with the client.” As a result, the lawyer does not engage in “dishonesty, fraud, deceit or misrepresentation” in violation of Rule 8.4(c) when she sends her client copies of correspondence with opposing counsel. The opinion also notes that sending the client copies of correspondence with opposing counsel may, in certain instances, be the easiest way for the lawyer to comply with her duties under Rule 1.4(a) to keep the client reasonably informed about the status of the matter as well as the lawyer’s duty under Rule 1.4(b) to provide the client with information that is reasonably necessary for the client to make informed decisions about the representation. The Opinion cautions, however, that blind copying the client on emails with opposing counsel may not be best practice as the client could inadvertently “reply all” and risk disclosing confidential information.

The Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60757

NYSBA Ethics Op. 1077 (Dec. 2015)
Maintaining Only Electronic Copies of Retainer Agreements

Opinion 1077 addresses whether a law firm may institute a practice where it maintains scanned copies of retainer agreement and discards the originals. The Opinion concludes that a law firm can satisfy the requirement in Rule 1.15(d)(1)(iii) that it keep “copies” of retainer agreements for at least seven years by maintaining scanned copies of retainer agreements. Under Rule 1.15(d)(3), “copies” include “photocopies, microfilm, optical imaging, and any other medium that preserves an image of the document that cannot be altered without detection.” The Opinion concludes that scanned images fit the definition of “copies” in Rule 1.15(d)(3). The Opinion reasons that while a scanned image may be able to be “altered without detection”, that phrase in Rule 1.15(d)(3) only applies to “medium[s] other than the specific ones listed — that is other than original records, photocopies, microfilm, or optical imaging.” Since scanned copies are specifically listed in the rule, the lawyer does not need to conduct an independent inquiry into whether it can be “altered without detection.” In any event, however, the Opinion reasons that scanned copies may be able to meet that standard to a reasonable degree of certainty. Finally, the Opinion notes that while a law firm may maintain scanned copies of retainer agreements in lieu of the originals, the law firm’s storage system must be reliable enough to ensure that the copies are retained for the requisite seven years.

The Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60758

NYSBA Ethics Op. 1078 (Dec. 2015)
Communications with Deceased Client’s Family

In Opinion 1078 a lawyer was approached by the son of a former client who had died. The son asked the lawyer whether the lawyer ever drafted a will for the client or referred the client to other counsel for that purpose. According to the son, no estate proceedings have commenced and no administrator or executor has ever been appointed. The lawyer wishes to know whether he may answer the son’s questions. The Opinion concludes that the information at issue is not “confidential information” under Rule 1.6(a) and therefore the lawyer has no obligation to protect it. While the information may have been gained “during or relating to the representation,” it does not meet any of the other requirements in Rule 1.6(a) that would make the information confidential. Specifically, the information is not protected by the attorney-client privilege, is not “likely to be embarrassing or detrimental to the client if disclosed” and there is no indication that it was “information that the client has requested to be kept confidential.” The Opinion further concludes that even if the information could be considered “confidential information,” the disclosure may be “impliedly authorized to advance the best interests of the client” under Rule 1.6(a)(2). The Opinion reasons that the disclosure at issue may advance the interests of the lawyer’s former client because it “may assist the son in ensuring that any final wishes of his father are brought to light, and the disclosures may save the estate further time and expense of investigating in a futile search for a will.” While the Opinion concludes that the information at issue is not “confidential information,” the lawyer may request satisfactory confirmation of the father’s death before answering the son’s questions.

The Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60759

NYSBA Ethics Op. 1079 (Dec. 2015)
Charging for Paralegal Time

Opinion 1079 addresses whether a lawyer may charge clients for tasks performed by a “paralegal” when the person completing the tasks is a legal assistant who is neither a graduate of a paralegal program nor certified by any accrediting body. The Opinion concludes that there is no ethical prohibition on a lawyer charging a client for paralegal tasks that are performed by someone who is otherwise a legal assistant. Citing earlier opinions, the Opinion notes that a “paralegal” has been defined as “a lay person employed by a lawyer to perform certain law office functions for which legal training and bar admission are not necessary.” The Opinion concludes that the Rules “do not contain a requirement that a paralegal have any particular training or experience.” Similarly, because New York does not require paralegals to be certified, the use of the term “paralegal” does not imply certification and is therefore not misleading or deceptive when used to describe tasks performed by an uncertified layperson. The Opinion also reasons that beyond Rule 1.5(a)’s prohibition on excessive fees and expenses, there is nothing in the Rules that prohibits charging for the time of paralegals. The only requirement under the Rules is that the work of the paralegal be adequately supervised. Under Rule 5.3(a), the degree of supervision requires is that which is “reasonable under the circumstances, taking into account such factors as the experience of the person whose work is being supervised, the amount of work involved and the likelihood that ethical problems might arise in the course of working on the matter.”

The Opinion is available at: http://www.nysba.org/CustomTemplates/Content.aspx?id=60760

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