Porzio's 8th Annual Ethics & Eggs CLE Seminar Slide Deck

WELCOME 8th Annual Ethics & Eggs

Cracking the Code of Data Privacy: Ethical Approaches to Handling Sensitive Information Michelle D. Axelrod, Esq. Principal, Porzio, Bromberg & Newman, P.C.

Alfred R. Brunetti, Esq., CIPP/US, CIPM Principal, Porzio, Bromberg & Newman, P.C.

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Does your organization have a privacy compliance program (either stand alone or as part of your overall compliance program)?

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Who is responsible for privacy compliance at your organization?

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Types of Privacy Information Privacy - collecting & processing of personal information Bodily Privacy - physical, biological, behavioral being & activity

Territorial Privacy - intrusion on physical environment, tracking Communications Privacy - written, electronic, audio

Data Privacy is…

The use and governance of Personal Data (i.e. information linked or reasonably linkable to an identified or identifiable person) Concept based upon autonomy and having control over your personal information; how it is collected and how it is used or disseminated.

Rights given to Data Subjects Obligations placed upon Businesses Attendant Risk Management

Initially Sectoral and Now, ‘Comprehensive’ Some federal ‘sectoral’ data laws you may know: ➢ Health Insurance Portability and Accountability Act of 1996 (HIPAA) - healthcare ➢ Gramm-Leach Bliley Act (GLBA) - financial institutions ➢ Children’s Online Privacy Protection Act (COPPA) - privacy of children u13 ➢ Controlling the Assault of Non-Solicited Pornography and Marketing Act

(CAN-SPAM) - commercial email including opt-outs ➢ Telephone Consumer Protection Act (TCPA) - telemarketing ➢ Family Educational Rights and Privacy Act (FERPA) - student education records ➢ Genetic Information Nondiscrimination Act (GINA) - job related decision discrimination

The Building Blocks of Domestic Data Privacy Enforcement Biometric-specific data privacy laws (e.g. Illinois, Washington, Texas)

Federal Agencies enforcing by sector – FTC, the de facto privacy regulator, applying its unfair & deceptive powers as ‘gap fillers’

Class Actions (e.g. VPPA / BIPA / wiretap laws, e.g.

CIPA, PA)

State laws complementary to sectoral federal privacy laws (e.g. baby HIPAAs, financial regs, etc.)

‘Comprehensive’

consumer privacy laws (45% of U.S. population) + consumer health data laws

State Attorneys General; Privacy Agency (CPPA); HHS/OCR and DOJ enforcements

Common Requirements of Domestic DP laws Privacy Notices

Purpose Limitation / Data Minimization Rights to Access, Delete, Correct, Non-discrimination, opt out of certain processing Consent Protocols Data Processing Agreements

Right to Opt-Out of certain processing (e.g., sale, profiling, sensitive data)

Reasons for Compliance Federal Enforcement

Reputation

TRUST

Private Bar

State Enforcement

The Flow of Personal Data Applicants & Employees– submitting data

Employee & HR – updating & managing data

Payroll & Benefits – managing data

Customers / Consumers – providing / collecting data

Vendors & Business partners – transmitting & processing data

Personal Data

Now What?

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I know my organization:

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Common Ethical Points of Friction Balancing business objectives with data minimization Balancing business innovation with transparency Consumer Expectations versus Corporate Practices

Negotiating and Navigating data-touching agreements & relationships

Navigating the mitigation of risk in data processing activities

Categories of Sensitive Data Financial

Religion

Geolocation

Health

Sexuality

Child Biometrics

Race / Nationality

Some rarer categories: Trade Union membership (CA) Crime victim status Philosophical beliefs Contents of personal comms Political Opinion (GDPR)

New Jersey’s Categories of Sensitive Data Sensitive Data under the NJDPA: Personal data revealing…

Racial or ethnic origin Religious beliefs Mental or physical health condition, treatment or diagnosis Financial information (account no., account log-in, financial account or credit or debit card number + access info to permit access) Sex life or orientation Citizenship or immigration status Transgender / non-binary status Genetic or biometric data that may be processed for the purpose of uniquely identifying an individual; Personal data from a known child Precise geolocation (YELLOW = sets NJ apart)

The Best of Intentions John, a HR rep for retailer Spatulas n’ More, was advised that Joan - the long-time manager at its Morristown shop - has been diagnosed with a serious medical condition and will need to go on an immediate leave of absence. Because the manager’s medical condition is complicated and Joan is beloved by her co-workers, John wants to be transparent and strike the right tone when he explains to the other store employees why they’ll need to being picking up extra shifts.

To craft the perfect memo and be as accurate as possible about Joan’s condition, John turns to a popular free generative AI assistant to draft an internal memo to store employees about Joan. Without reviewing the tool’s Privacy Notice or Terms of Service, he copies the contents of several emails with Joan and the company’s internal SOPs on employee medical leave into the AI tool and it pumps out a memo that John immediately forwards for distribution.

Things to Think About…

Legal • Sharing confidential / sensitive information • Unrestricted sharing with AI • Existence or violation of policies Ethical • Oversharing • Expectation of privacy • Transparency • Supervision of AI production

Artificial Intelligence

AI OUTCOMES, WITHOUT SUPERVISION, CAN BE FLAWED, RESULTING IN BUSINESS RISK

CURRENT GENERATIVE AI PROGRAMS LEARN FROM INPUT DATA AND, THEREFORE, MAY NOT OFFER SECURITY FOR DATA

UTILIZE AI PROGRAMS IN A WAY THAT LIMITS THE RISK OF BIASES AND SHOULD MONITOR PROGRAMS ON A REGULAR BASIS

UNDERSTAND WHERE EMPLOYEES ARE UTILIZING AI PROGRAMS TO THEN UNDERSTAND WHAT CONTROLS AND TRAINING WILL BE APPROPRIATE

Right to Opt In or Opt Out • Sale • Targeted Advertising

Right to Opt OUT: ✓ Sale of personal data (ALL STATES) ✓ Processing for Profiling (ALL STATES except Iowa) ✓ Some Automated Decision Making (ALL STATES except Iowa, Utah)

• Profiling • Sensitive Data

Right to Opt IN: ✓ Processing of Sensitive Data (ALL STATES except California*, Iowa, Utah)

Easiest way to be Ethical (and not creepy)

DO WHAT YOU SAY (concerning Data Privacy) SAY WHAT YOU DO (with Personal Data)

Ethical Guardrails to keep you on track (preliminary guidance from NJ Supreme Court – January 2024) Generative AI: a subset of AI where machine-based systems create materials based on predictive models derived from training with large datasets

If you can’t do it as an attorney, AI can’t do it for you Truthfulness & Accuracy ▪ RPC 3.1 ▪ Non frivolous assertions with a reasonable belief for basis in law or fact ▪ RPC 4.1 ▪ No false statements of material facts or law ▪ RPC 8.4 ▪ No conduct that is dishonest, fraudulent, deceitful or a misrepresentation

Honesty & Candor ▪ RPC 3.3 ▪ No false statements of material fact ▪ RPC 1.2 ▪ Cannot use AI to create or manipulate evidence ▪ RPC 1.4 ▪ Comply with client’s reasonable request for information with sufficient explanation to make informed decisions

Confidentiality ▪ RPC 1.6 (also ABA Rule 1.6) ▪ Not reveal info relating to representation unless client consults after consultation ▪ Avoid intentional disclosure & make “reasonable efforts to prevent inadvertent or unauthorized access to information related to representation of client

Ethical Guardrails to keep you on track (Fair Information Practice Principles (FIPPs) – 1973)

Shipment Emergency Sarah is the chief operating officer at Pork Roll Universe, the most profitable distributor of porkrelated products in South Jersey. To stay profitable, the company keeps a very lean direct payroll and gets nearly all of its non-executive personnel from a temp staffing agency. Sarah finds out that their regular monthly shipment of snouts and tails has been delayed from Friday to Sunday morning. Unfortunately, their lone forklift operator, Frank, never works on Sundays because of his religious beliefs.

In an attempt to find replacement operator for the delivery, Sarah frantically calls and emails a temporary staffing agency and fully explains why Frank is unavailable for the Sunday shift and pleads for a qualified fill-in to take over Frank’s Sunday shift.

Things to think about…

Legal • Employee data • Internal Privacy Policy terms • Religious belief as sensitive data (opt in/out?)

Ethical • Oversharing • Expectation of privacy • Transparency

Understanding Your Data Flow & Lifecycle Work across functions to understand how data is collected, used, stored & shared in the Organization •

IT, HR, Finance, Business Affairs, Operations, Commercial, Others?

Leverage Existing Compliance Relationship

• Prioritize data gathering and understanding to create a more compliant organization • Allow organization to see the value • Staying within guidelines provides guards against enforcement/internal authority

Point Person(s)

• Each department doesn’t always need to have one • Consider Privacy Champions or Chief Privacy Officer/Data Protection Officer • Need constant communication with all the groups

Considerations for Business •

•

Proactive Prevention versus Reactive Remediation • • •

Leverage existing compliance infrastructure to adopt a proactive approach to data governance What Personal Data is being collected and how?

Is Personal Data being processed for legitimate and lawful business purposes in accordance with policies, SOPs and applicable law?

Consider what tools are already in place • • • • •

Policies related to how data is collected, used, and handled?

Is the company already acting transparently?

Notices and consents collected and maintained (consent management platforms) Opportunities to opt-out of certain processing activities Vendor Assessments / Contracts / Consents Thoughtful data governance can protect the privacy of personal data and increase security to reduce the likelihood of misuse, breach and liability

Customer Synergy Kevin is a tech-savvy marketing director for Break the Table, a small but growing chain of breakfast food trucks famous for their ridiculously large serving portions.

BTT has relied upon loyalty program promotions and an easy-to-use mobile app to increase its customer volume by nearly 400% in the last few months.

After seeing the long lines at one of their trucks, the owner of a local gym - hungry to find a pool of potential new gym members - contacts Kevin and offers to purchase the listing of customers who have signed up for the BTT loyalty program and who have signed up to receive text updates about BTT truck locations. Seeing the opportunity to easily feed his marketing budget, Kevin jumps at the offer.

Things to think about…

Legal • Consumer data rights • What do individual states require?

• What does the Privacy Notice say?

• Breach of Contract?

• Selling phone numbers without consent?

(Telephone Consumer Protection Act (TCPA) issue) Ethical • Transparency • Breach of Trust • Brand impact

Building a Compliance Framework

POLICIES, PROCEDURES & EMPLOYEE TRAINING

DOCUMENTING COMPLIANCE EFFORTS

KEEPING PACE WITH LEGAL UPDATES & EMERGING LAWS

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In the last 12 months, my organization has done the following:

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How to Start Pick the low hanging fruit first (Privacy Notices, tracking technologies) Contract examination (Data Processing Addendums)

Informative & accessible internal Policies and SOPs

Website Evidence Collection Report

Scrambling for Answers: Navigating Ethics in the Age of Emerging Tech Deirdre R. Wheatley-Liss, Esq. Principal, Porzio, Bromberg & Newman, P.C. Jill M. Williamson, Esq. Principal, Porzio, Bromberg & Newman, P.C.

I. Introduction • Overview of Technological Advancements: o o o

Artificial Intelligence (AI): Including generative AI and advanced analytics.

Machine Learning (ML): Algorithms that improve through experience.

Blockchain: Distributed ledger technology impacting data security and transactions.

• Purpose of Presentation: o

Explore ethical and practical implications of AI, ML, and blockchain.

o

Provide tools for advising organizations on responsible innovation.

• Relevance to Rules of Professional Conduct: o

Importance of aligning technological use with ethical obligations.

II. Ethical Considerations for Emerging Technologies 1. Competence (Rule 1.1) o Understanding Emerging Technologies: ▪ Obligation to comprehend AI, ML algorithms, and blockchain functionalities.

▪ Staying updated on technological advancements affecting legal practice.

o ABA Opinion 512, July 29, 2024: ▪ Emphasizes the duty of technological competence.

▪ Attorneys must understand the benefits and risks associated with AI and related technologies.

▪ Highlights the need for ongoing education in technology.

o Summary of Model Rule 1.1: Lawyers must provide competent representation, requiring legal knowledge, skill, thoroughness, and preparation, including understanding relevant technology.

II. Ethical Considerations for Emerging Technologies (cont’d) 2. Confidentiality (Rule 1.6) o Risks in AI, ML, and Blockchain: ▪ AI/ML data processing may expose client information.

▪ Blockchain's transparency can conflict with confidentiality due to immutable records.

o Managing Confidentiality Risks: ▪ Implementing robust security measures when using AI/ML tools.

▪ Evaluating blockchain platforms for privacy features.

▪ Consider where data is stored – AI Notetakers

o ABA Opinion 512: ▪ Stresses that lawyers must ensure AI tools do not compromise client confidentiality.

▪ Requires informed client consent when client information may be disclosure.

▪ Discusses possibility of inadvertently using data related to one client to assist another client if AI tool uses shared data

o Summary of Rule 1.6: Lawyers must not reveal client-related information without consent and must take reasonable efforts to prevent unauthorized disclosure.

II. Ethical Considerations for Emerging Technologies (cont’d) 3. Supervision (Rules 5.1 and 5.3) o Oversight of AI/ML Systems and Blockchain Applications: ▪ Ensuring that AI/ML tools and blockchain technologies align with ethical standards.

▪ Supervising non-lawyer assistants and technology providers.

o Florida Bar Opinion 24-1: ▪ Lawyers must not reveal client-related information without consent and Lawyers are responsible for actions of non-lawyers and AI tools under their supervision.

▪ Must ensure third-party AI services comply with professional obligations.

o Summary of Rule 5.1: Managerial and supervisory lawyers must ensure that subordinate lawyers conform to rules of professional conduct. o Summary of Rule 5.3: Lawyers must ensure that the conduct of non-lawyer assistants (or AI/ML systems) aligns with professional obligations.

II. Ethical Considerations for Emerging Technologies (cont’d) 4. Misrepresentation (Rule 4.1) o AI/ML Outputs and Blockchain Transactions: ▪ Addressing inaccuracies or biases in AI/ML-generated advice.

▪ Ensuring smart contracts on blockchain do not misrepresent terms.

o Florida Bar Opinion 24-1: ▪ Warns against unverified reliance on AI outputs that may lead to false statements.

▪ Attorneys must verify the accuracy of information provided by AI tools. o Summary of Rule 4.1: Lawyers must not knowingly make false statements of material fact or law to others during representation.

II. Ethical Considerations for Emerging Technologies (cont’d) 5. Algorithmic Bias and Discrimination o Understanding Bias in AI/ML: ▪ AI/ML models may inherit biases from training data.

▪ Potential for discriminatory outcomes in decision-making processes.

o Ethical Implications: ▪ Duty to prevent and address algorithmic bias.

▪ Ensuring fairness and compliance with anti-discrimination laws. o Relevant Rules: ▪ Rule 8.4(g): Prohibits conduct involving discrimination. o Summary of Ethical Concern: Lawyers must ensure technology does not perpetuate discrimination or bias, aligning with antidiscrimination rules.

II. Ethical Considerations for Emerging Technologies (cont’d) 6.

Fees (Rule 1.5) o Understanding Effects on Fees: ▪ ▪

New Technologies may make legal work more efficient.

Attorneys may be relying upon the ‘expertise’ of AI

o Ethical Implications: ▪ Fees and expenses must be reasonable.

▪ Hourly fees based on actual time spent ▪ Flat rate or contingency may need to be revised ▪ If client relying on expertise of lawyer, but AI tool is doing analysis, must be disclosed.

o Relevant Rules: ▪ Model Rule 1.5(a): requires a lawyer’s fees and expenses to be reasonable and includes a non-exclusive list of criteria for evaluating whether a fee or expense is reasonable.

▪ Model Rule 1.5(b): requires a lawyer to communicate to a client the basis on which the lawyer will charge for fees and expenses unless the client is a regularly represented client and the terms are not changing.

o Summary of Ethical Concern: Lawyers must ensure fees are reasonable and client is informed about the basis on which fees and expenses are charged.

III. Practical Applications for In-House Counsel 1. Internal Use of AI, ML, and Blockchain o AI/ML Applications: ▪ Automating contract review, legal research, compliance monitoring.

▪ Enhancing predictive analytics for case outcomes.

o Blockchain Applications: ▪ Secure record-keeping and transaction verification.

▪ Smart contracts for automating agreements.

o Risk Mitigation: ▪ Establishing protocols for validating AI/ML outputs.

▪ Ensuring blockchain implementations comply with legal standards.

III. Practical Applications for In-House Counsel (cont’d)

2. Guidance for Outside Counsel o Policy Establishment: ▪ Requiring outside counsel to disclose use of AI/ML and blockchain technologies.

▪ Setting standards for ethical technology use in service agreements.

o Verification Processes: ▪ Mandating verification of AI-generated legal documents and citations.

▪ Ensuring blockchain transactions are transparent and legally sound.

o Florida Bar Opinion 24-1: ▪ Advises on supervising third-party technology use.

▪ Emphasizes responsibility for outsourced services involving AI.

III. Practical Applications for In-House Counsel (cont’d)

3. Algorithmic Bias o Auditing and Compliance: ▪ Regularly auditing AI/ML tools for biases and discriminatory patterns.

▪ Ensuring blockchain does not enable unfair practices.

III. Practical Applications for In-House Counsel (cont’d) o Collaboration: ▪ Working with technologists and ethicists to promote fairness.

▪ Implementing corrective measures when biases are detected.

IV. Legal and Employment Impacts • AI, ML, and Blockchain in Employment Decisions o Use Cases: ▪ AI/ML in recruitment, performance evaluation, and workforce management.

▪ Blockchain for verifying credentials and maintaining employment records.

o Ethical and Legal Duties: ▪ Ensuring AI/ML algorithms do not discriminate based on protected characteristics.

▪ Compliance with employment laws and regulations.

o Florida Bar Opinion 24-1: ▪ Highlights the importance of understanding AI's impact on employment practices.

▪ Encourages vigilance against discriminatory outcomes.

IV. Legal and Employment Impacts (cont’d) o Summary of Employment Impacts: Lawyers must guide organizations to adopt AI, ML, and blockchain responsibly, ensuring alignment with anti-discrimination laws and ethical principles.

V. Addressing Broader Ethical Concerns 1. Algorithmic Transparency o Explainability: ▪ Advocating for AI/ML models that provide understandable results.

▪ Addressing the "black box" issue in AI decision-making.

o Blockchain Transparency vs. Privacy: ▪ Balancing the transparency of blockchain with privacy obligations.

▪ Implementing permissioned blockchains where appropriate.

V. Addressing Broader Ethical Concerns (cont’d) 2. Balancing Innovation and Diligence (Rule 1.3) o Proactive Assessment: ▪ Staying ahead of technological trends affecting legal practice.

▪ Diligently evaluating the implications of adopting new technologies.

o Florida Bar Opinion 24-1: ▪ Encourages lawyers to balance technological benefits with ethical considerations.

▪ Stresses the importance of due diligence in technology adoption.

o Summary of Rule 1.3: Lawyers must act with diligence and commitment to client interests, including staying current with technological advancements.

V. Addressing Broader Ethical Concerns (cont’d) 3. Ethical Audits o Regular Reviews: ▪ Conducting periodic audits of AI/ML tools and blockchain systems.

▪ Ensuring ongoing compliance with ethical and legal standards.

o Implementing Compliance Programs: ▪ Developing internal policies for responsible technology use.

▪ Training staff on ethical considerations and best practices.

VI. Recommendations and Resources 1. Developing Technological Literacy o Training Initiatives: ▪ Organizing workshops on AI, ML, and blockchain.

▪ Encouraging participation in continuing legal education on technology.

o Cross-Functional Collaboration: ▪ Working with IT, HR, and compliance departments to address technology impacts.

VI. Recommendations and Resources (cont’d) 2. Establishing Best Practices o Policy Development: ▪ Creating clear guidelines for the use of AI, ML, and blockchain.

▪ Addressing issues like data privacy, security, and ethical use.

o Client Communications: ▪ Informing clients about the use of emerging technologies in their matters.

▪ Obtaining informed consent when necessary.

o Florida Bar Opinion 24-1: ▪ Provides guidance on fee arrangements related to AI use.

▪ Advises on transparency in billing practices when using AI tools.

▪ Emphasizes that costs passed to clients must be reasonable and communicated in advance.

VI. Recommendations and Resources (cont’d) 3. Leveraging Guidelines and Opinions o ABA Formal Opinion 512: ▪ Discusses the use of generative AI tools in legal practice.

▪ Highlights duties of competence, confidentiality, and supervision.

o Florida Bar Opinion 24-1: ▪ Offers comprehensive guidance on ethical considerations in using AI. ▪ Addresses confidentiality, supervision, fees, and advertising.

o Additional Resources: ▪ State bar association guidelines on technology use.

▪ Industry best practices for AI, ML, and blockchain adoption.

VII. Conclusion • Recap of Challenges: o o

Summarize ethical and practical issues related to AI, ML, and blockchain.

Reiterate the importance of aligning technology use with ethical obligations.

• Call to Action: o o

Encourage proactive governance and continuous learning.

Emphasize the lawyer's role in guiding responsible innovation.

• Closing Tips: o o

Stay informed about technological developments.

Engage in ongoing dialogue about ethics and technology.

th 8 Annual Ethics & Eggs

Questions?

The Egg of Opportunity: Embracing Diversity and Inclusion Janelle Edwards-Stewart, Principal, Porzio, Bromberg & Newman

Lisa Love Co-Managing Partner, Love and Long, LLP

The Business Case Diversity and inclusion are good for business!

• Improved decision-making • Increased revenue • Reduced costs • Greater innovation • Increased employee productivity, engagement, and commitment

The Moral Case Diversity and inclusion are right.

• Fair treatment and equal opportunity should be ensured to all, regardless of race, gender, or other protected characteristic • Creating a workplace where all can achieve their potential is the goal and an ethical imperative

The Media UTAH LAWMAKER BLAMES 'DIVERSITY' FOR BALTIMORE BRIDGE COLLAPSE

Zoom Cuts DEI Team as Companies Retreat on Diversity Initiatives As diversity, equity and inclusion comes under legal attack, companies quietly alter their programs

Lowe’s ends some DEI policies, adding to trend Walmart the latest big corporation to scale back DEI

DEI backlash: Stay up-to-date on the latest legal and corporate challenges Ford becomes the latest company to scale back its diversity and inclusion policies

The Truth Consumers

Companies

▪ 61% of American consumers believe

▪ 1% decreased DEI efforts significantly ▪ 4% decreased DEI efforts moderately ▪ 17% increased DEI efforts significantly ▪ 24% increased DEI efforts moderately ▪ 36% maintained the same level of

DEI programs are “a good thing”

commitment

The New Administration & DEI

Academic Institutions

The New Administration & DEI

Workplaces

The New Administration & DEI

Workplaces

DEIB Professional Rule §1500.2 (g) Diversity, Inclusion and Elimination of Bias courses, programs and activities must relate to the practice of law and may include, among other things, implicit and explicit bias, equal access to justice, serving a diverse population, diversity and inclusion initiatives in the legal profession, and sensitivity to cultural and other differences when interacting with members of the public, judges, jurors, litigants, attorneys and court personnel. [effective January 1, 2018]

§1500.22 Each attorney shall complete a minimum of 24 credit hours of accredited continuing legal education each biennial reporting cycle in ethics and professionalism, skills, law practice management, areas of professional practice, diversity, inclusion and elimination of bias, or cybersecurity, privacy and data protection, at least four (4) credit hours of which shall be in ethics and professionalism, at least one (1) credit hour of which shall be in diversity, inclusion and elimination of bias, and at least one (1) credit of which shall be in cybersecurity, privacy and data protection…. Ethics and professionalism, skills, law practice management, areas of professional practice, diversity, inclusion and elimination of bias, and cybersecurity, privacy and data protection are defined in §1500.2. [revised effective July 1, 2023] (emphasis added)

Be Culturally Effective

How-to Workshop

QUESTIONS?

Ethics Over Easy: Examining Today's Hard-Boiled Headlines Carmen Andrade, Esq. Principal, Porzio, Bromberg & Newman, P.C.

Rachel A. Parisi, Esq. Principal, Porzio, Bromberg & Newman, P.C.

Kerri A. Wright, Esq. Principal, Porzio, Bromberg & Newman, P.C.

So, You Think it’s Confidential?

Internal Investigations and Privilege

The Headlines

The Headlines

You are In-House Legal Counsel for this [entity/school/company]

What ethical considerations are raised by these events?

What would you do first or differently?

RPC 1.6: Confidentiality of Information A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

RPC 1.13: Organization as the Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization.

What Happened Here?

Huguenot High staff knew of threats against student killed.

What Happened Here?

“The report, taken as a whole, was not created for the primary purpose of providing legal advice.” Lee BHM Corp. v. Sch. Bd. of Richmond, 2024 Va. Cir. LEXIS 4, at *15 (Richmond Cir. Ct. Jan. 16, 2024) “The privilege protects only those communications made for the purpose of obtaining legal advice from the lawyer.” Linde Thomson Langworthy Kohn & Van Dyke, PC v. Resol.

Tr.. Corp., 5 F.3d 1508 (D.C. Cir. 1993) “Factual investigations by themselves do not constitute the rendering of legal advice or assistance.” Lee BHM, 2024 Va. Cir. LEXIS *6.

When Your Professional Life Becomes Personal: A Netflix Story

The Headlines A former Netflix VP and YouTube global policy head was disbarred by District of Columbia Board on Professional Responsibility for misconduct in his own divorce litigation.

From the Perspective of an Attorney Acting in a Supervisory Role to the Attorney in Question:

What ethical considerations are raised by these events?

What would you do?

RPC 3.3. Candor Toward the Tribunal (a) A lawyer shall not knowingly: o (1) make a false statement of material fact or law to a tribunal; o (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client; o (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; or o (5) fail to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal, except that it shall not be a breach of this rule if the disclosure is protected by a recognized privilege or is otherwise prohibited by law. (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by RPC 1.6. (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

RPC 8.4. Misconduct It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice;

Untangling the Web When Relationships Sour: AttorneyClient Privilege Issues in a Family of Companies

The Headlines

The Headlines Company A, parent entity, and Company B, subsidiary entity, are advised by the same in-house counsel and same outside counsel prior to a corporate divorce

Company B and its “children” file for bankruptcy Company B’s children seek certain documents in discovery from Company A after they commence suit against Company A

The Headlines Company A claims the privilege protects those documents and communications, even against former family members.

Company B’s children, the debtors, claim the privilege was waived.

You are In-House Legal Counsel for this [entity/school/company]

What ethical considerations are raised by these events?

What would you do first or differently?

What Happened Here?

• HOLDING: • Legal advice provided by in-house counsel to a family of companies is analyzed under joint-client privilege • Can serve multiple clients on the same matter as long as all clients consent and there is no substantial risk of the lawyer being unable to fulfill her duties to them all • This privilege, including with respect to parents and subsidiaries, is subject to the “adverse litigation” exception with respect to documents within the scope of the joint representation Thus, the district court must on remand determine whether in-house counsel represented both corporate affiliates on the issue on which they were now adverse, and only to that extent would there be a waiver of privilege for in-house counsel’s work

RPC 1.7: Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer believes that the lawyer will be able to provide competent and diligent representation to each affected client

(2) the representation is not prohibited by law (3) the representation does not involve the assertion of a claim by one party against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing

Questions?

THANK YOU. 8th Annual Ethics & Eggs