To Report or Not to Report

Most lawyers know that the Rules of Professional Conduct require lawyers to report certain conduct of other lawyers. Rule 8.3 provides that a lawyer who "knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the North Carolina State Bar or the court having jurisdiction over the matter." Are there exceptions to this Rule? Sure. First, not all rule violations trigger a report. The conduct must be serious enough to report; that is, it must raise a substantial questions as to the lawyers honesty and fitness to practice. Second, if the information to be reported is client confidential information and the client does not consent to reporting this information, then the Rule does not require disclosure. Third, a lawyer also has to have actual knowledge of a serious violation for the reporting requirement to kick in. Fourth, the duty to report does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. (Whew! That's us). Fifth, confidential information gained by a lawyer from a lawyer seeking assistance in a lawyer's assistance program (LAP) is excepted under the Rule.

Notwithstanding these exceptions, we understand that the State Bar has been issuing grievances on a growing basis for violations of Rule 8.3. In the past, this Rule was rarely invoked as a basis for discipline. Now if the State Bar sees any indication that a lawyer was aware of misconduct of another lawyer and failed to report it, the lawyer can expect to receive a grievance. The onus will be on the lawyer to demonstrate that an exception applies. If you know of lawyer misconduct and are trying to decide whether to report it, call the State Bar's ethics hotline ( 919-828-4620 919-828-4620 ) for advice first and document any applicable exception to the Rule. You'll need all the protection you can get.

Here Today, Gone Tomorrow

It is rare that a lawyer stays in one place for his or her entire career. Lawyers change law firms everyday. And yet, relatively few law firms have employment agreements with their lawyers. A lawyer's departure from a firm can be contentious. One way to minimize the trauma is to have in place an employment agreement that addresses issues such as 1) proprietary information of the firm, 2) notice to clients of the departing lawyer, 3) handling of client files, and 4) fee splitting arrangements, among others. The N.C. State Bar recently tackled the last of these issues in an ethics opinion, 2008 FEO 8. If you haven't reviewed your employment agreement in awhile, or if you are considering using one, take a look at this opinion first. The opinion states that any fee splitting structure between a departing lawyer and law firm that does not take into account the relative work performed by the departing lawyer after he leaves the firm may be suspect. I strongly recommend that law firms have an employment agreement with each new hire. It's better to be prepared, because. . . the firms, they are a changin'.

Think Before You Link

Social Networking is the craze these days, but are all social networking sites right for lawyers? It depends on how you use them. For example, I believe LinkedIn is a great tool for networking for lawyers. The relationship links created between individuals are defined, such as "colleague" or "business associate." LinkedIn's business and networking purpose is quite clear. On Facebook, however, everyone is a "friend." Think about what the consequences would be if a lawyer were to "friend" other lawyers, judges, and clients, or even persons the lawyer doesn't know very well. The nature of the relationship actually may be different than that of "friend." Could "friending" be misleading or could these e-defined relationships create unintended conflicts of interest? Just something to think about.

State Bar Tackles Cloud Computing

At the latest quarterly meeting, on April 15, 2010, the Ethics Committee of the NC State Bar voted to publish a new ethics opinion addressing the applicability of the Rules of Professional Conduct to cloud computing or software as a service (Saas). The proposed opinion, 2010 FEO 7, says that a lawyer may contract with a SaaS vendor provided that the risks that confidential client information may be disclosed or lost are effectively minimized. The opinion requires that lawyers take "reasonable precautions" to prevent information from being leaked or destroyed, and does not require that an attorney use "infallibly secure methods of communication." Nonetheless, the opinion goes onto list nearly 23 questions that a lawyer "should be able to answer" to conclude whether the risk to confidentiality and security of the client's information is minimal. One of the questions is "where does the SaaS vendor derive its funding?" Query whether this is information that any vendor would share.