2007 Issue 1 - New York City Bar Association

More documents

Recommendations

Info

P R O F E S S I O N A L A N D J U D I C I A L E T H I C S DR 1-104(D) articulates the supervisory responsibilities of a lawyer for a violation of the Disciplinary Rules by another lawyer and for the conduct of a non-lawyer “employed or retained by or associated with the lawyer”: D. A lawyer shall be responsible for a violation of the Disciplinary Rules by another lawyer or for conduct of a non-lawyer employed or retained by or associated with the lawyer that would be a violation of the Disciplinary Rules if engaged in by a lawyer if: 1. The lawyer orders, or directs the specific conduct, or with knowledge of the specific conduct, ratifies it; or 2. The lawyer is a partner in the law firm in which the other lawyer practices or the non-lawyer is employed, or has supervisory authority over the other lawyer or the non-lawyer, and knows of such conduct, or in the exercise of reasonable management or supervisory authority should have known of the conduct so that reasonable remedial action could be or could have been taken at a time when its consequences could be or could have been avoided or mitigated. Proper supervision is also critical to ensuring that the lawyer represents his or her client competently, as required by DR 6-101—obviously, the better the non-lawyer’s work, the better the lawyer’s work-product. Given these considerations and given the hurdles imposed by the physical separation between the New York lawyer and the overseas nonlawyer, the New York lawyer must be both vigilant and creative in discharging the duty to supervise. Although each situation is different, among the salutary steps in discharging the duty to supervise that the New York lawyer should consider are to (a) obtain background information about any intermediary employing or engaging the non-lawyer, and obtain the professional résumé of the non-lawyer; (b) conduct reference checks; (c) interview the non-lawyer in advance, for example, by telephone or by voice-over-internet protocol or by web cast, to ascertain the particular non-lawyer’s suitability for the particular assignment; and (d) communicate with the non-lawyer during the assignment to ensure that the nonlawyer understands the assignment and that the non-lawyer is discharging the assignment according to the lawyer’s expectations. The Duty to Preserve the Client’s Confidences and Secrets When Outsourcing Overseas DR 4-101 imposes a duty on a lawyer to preserve the confidences and T H E R E C O R D 142
F O R M A L O P I N I O N 2 0 0 6 - 3 secrets of clients. Under DR 4-101, a “confidence” is “information protected by the attorney-client privilege under applicable law,” and a “secret” is “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” DR 4- 101(A). DR 4-101(D) requires that a lawyer “exercise reasonable care to prevent his or her employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client.” See also EC 4-5 (“a lawyer should be diligent in his or her efforts to prevent the misuse of [information acquired in the course of the representation of a client] by employees and associates.”) In N.Y. City Formal Opinion 1995-11, this Committee addressed a lawyer’s supervisory obligations regarding a non-lawyer’s maintaining client confidences and secrets. This Committee noted that “the transient nature of lay personnel is cause for heightened attention to the maintenance of confidentiality. . . . Lawyers should be attentive to these issues and should sensitize their non-lawyer staff to the pitfalls, developing mechanisms for prompt detection of . . . breach of confidentiality problems.” We conclude that if the outsourcing assignment requires the lawyer to disclose client confidences or secrets to the overseas non-lawyer, then the lawyer should secure the client’s informed consent in advance. In this regard, the lawyer must be mindful that different laws and traditions regarding the confidentiality of client information obtain overseas. See N.Y. State Opinion 762 (2003) (a New York law firm must explain to a client represented by lawyers in foreign offices of the firm the extent to which confidentiality rules in those foreign jurisdictions provide less protection than in New York); Cf. N.Y. State Opinion 721 (1999) (“[i]f the lawyer would have to disclose confidences and secrets of the client [to the outside research service] in connection with commissioning research or briefs, the attorney should tell the . . . client what confidential client information the attorney will provide and obtain the client’s consent”). 8 Measures that New York lawyers may take to help preserve client confidences and secrets when outsourcing overseas include restricting access to confidences and secrets, contractual provisions addressing confidenti- 8. We do not mean to suggest that confidentiality laws and traditions overseas always provide less protection than in New York. See, e.g., M. McCary, Bridging Ethical Borders: International Legal Ethics with an Islamic Perspective, 35 Tex. Int’l L.J. 289, 313 (2000) (“Although difficult to imagine, a Muslim party or client may expect a higher degree of confidentiality than a [U.S.] lawyer is accustomed to.”). 2 0 0 7 V O L. 6 2 , N O. 1 143
Page 1 and 2:
THE RECORD OF THE ASSOCIATION OF TH
Page 3 and 4:
Of Note THE NEW YORK CITY BAR PRESE
Page 5 and 6:
O F N O T E cial Department, were p
Page 7 and 8:
R E C E N T C O M M I T T E E R E P
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
Page 21 and 22:
P R E V E N T I O N A N D P R O S E
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
P A U L R. M C D A N I E L devoted
Page 73 and 74:
P A U L R. M C D A N I E L The Repo
Page 75 and 76:
P A U L R. M C D A N I E L 2. It wo
Page 77 and 78:
P A U L R. M C D A N I E L Territor
Page 79 and 80:
P A U L R. M C D A N I E L the U.S.
Page 81 and 82:
P A U L R. M C D A N I E L An exemp
Page 83 and 84:
P A U L R. M C D A N I E L Conclusi
Page 85 and 86:
P A U L R. M C D A N I E L do busin
Page 87 and 88:
P A U L R. M C D A N I E L mestic i
Page 89 and 90:
Recommendations on the Selection of
Page 91 and 92: Recommendations on the Selection of
Page 93 and 94: J U D I C I A L S E L E C T I O N S
Page 119 and 120: W E B S I T E A C C E S S I B I L I
Page 137 and 138: Formal Opinion 2006-3 Outsourcing L
Page 139 and 140: F O R M A L O P I N I O N 2 0 0 6 -
Page 141: F O R M A L O P I N I O N 2 0 0 6 -
Page 147 and 148: Formal Opinion 2007-1 Applicability
Page 155 and 156: Formal Opinion 2007-2 Secondment of
Page 165 and 166: Report of the Task Force on the Law
Page 167 and 168: L A W Y E R ’ S R O L E I N C O R
Page 193 and 194:
L A W Y E R ’ S R O L E I N C O R
Page 195 and 196:
Page 197 and 198:
Page 199 and 200:
Page 201 and 202:
Page 203 and 204:
Page 205 and 206:
Page 207 and 208:
Page 209 and 210:
Page 211 and 212:
Page 213 and 214:
Page 215 and 216:
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Page 223 and 224:
Page 225:
show all

2007 Issue 1 - New York City Bar Association

Create successful ePaper yourself

Delete template?

Save as template?