Ethics Question of the Month - September 2019

Lawyer A has a corporate transactional practice at Law Firm X.  She announces to the firm that she is leaving the firm in two weeks to join Law Firm Y.  She lets the firm know which matters she will be taking with her to the new firm.  

Unbeknownst to anyone at Law Firm X, she photocopies some paper documents and downloads electronic versions of many other documents onto a flash drive. These documents are from client matters she handled for clients of law Firm X who are not going with her to Law Firm Y.  She intends to keep these documents in her personal files for use as forms in drafting documents for her new clients at Law Firm Y.  

Once she begins working at Law Firm Y, her new colleague, Lawyer B, asks Lawyer A for a form for a specific type of transaction.  Because Lawyer A only has a paper copy of that particular form, Lawyer A makes a photocopy of that document and gives it to Lawyer B.  Before she does so, she confirms that the client of Law Firm X identified in the document is not adverse to Law Firm Y. 

Lawyer B is so pleased with the form that he asks Lawyer A if she has any forms on another specific type of transaction.  Lawyer A replies that she does, but before giving him the document, she again checks conflicts and discovers that the client for whom it was prepared at Law Firm X is adverse to Law Firm Y.  Fortunately, the document is electronic and stored on her personal flash drive, so before providing it to Lawyer B she deletes all information that specifically identifies, or could reasonably lead to identifying, the client.  She provides the redacted document to Lawyer B.  

Which is most accurate? 

A.    Lawyer A has violated the ethics rules by not securing Law Firm X’s permission to take copies of documents from her matters at Law Firm X before leaving the firm.  
B.    Lawyer A violated the ethics rules by sharing an unredacted form with one of her new colleagues at Law Firm Y. 
C.    Lawyer A violated the ethics rules by sharing the redacted form with a colleague at Law Firm Y because the document was prepared for a client of Law Firm X and that client paid for its creation.    
D.    All of the above. 
E.    None of the above 

ANSWER: B.

Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct states that “confidential information” includes both privileged information and unprivileged client information.  

“Privileged information” refers to information protected by attorney-client privilege under Texas Rule of Evidence 503 or Federal Rule of Evidence 501.  

“Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

Rule 1.05(b)(1) states: 

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client to:

  • (i) a person that the client has instructed is not to receive the information; or

(ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.

While the Rule contains a number of exceptions in paragraphs (c) and (d), none of those apply here.  So what can an attorney do when she leaves her firm and wants to take documents that she prepared for clients? 

Texas Ethics Opinion No. 670 (March 2018) provides useful guidance.  The opinion states that an attorney may, upon leaving a firm, and at her own expense, make and retain copies of documents regarding client matters in which the attorney personally represented the clients while at the firm she is leaving.  The consent of neither the firm nor the clients is required to make and retain copies of these client documents, as long as the attorney is responsive to a former client’s request for copies of the documents retained by the lawyer.  

However, an attorney should be aware that all confidential client information, as defined by Rule 1.05, must be protected as long as the attorney retains the documents.   Therefore, the prudent attorney will take steps to ensure that only she has access to unredacted paper copies and that the electronic copies are stored in a manner that is not accessible by anyone at the new firm. Any documents that are provided to members of the new firm must be redacted of all confidential information prior to sharing.  If the documents are so specific and unique that even using a redacted document could reasonably lead to the discovery of client-specific information, those documents cannot be shared.   

In this scenario, the attorney had the right to make and take copies of clients’ documents from matters in which she personally represented those clients to use as forms in her next firm, and she did not need to notify either the client or Firm X that she was doing so.  She has a right to retain the documents as long as they are copies.  

Sharing the forms in the new firm is also acceptable as long as she redacts the documents of any identifying information to protect the clients’ confidentiality.  Here, she did delete all identifying information from the electronic form, so that does not violate Rule 1.05.  Unfortunately, she failed to make any redaction from the paper copy that she shared with a lawyer at Firm Y.  Disclosure of a client’s confidential information – including even the client’s identity – violates Rule 1.05.  

The best answer is B.    
 

Posted: 8/27/2019 12:00:00 AM by TCLE Editor | with 0 comments

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About Ethics Question of the Month

Ethics Question of the Month is a regular feature of the Texas Bar Journal created and sponsored by the Texas Center for Legal Ethics.

DISCLAIMER: The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts.  For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including their official comments) and other authorities and/or a qualified legal ethics advisor.

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