Special Feature: CLE Article #17*
By Joseph Garin
The practice of law is constantly changing, and our ethical rules are doing their best to keep up. As things shift, it is crucial for lawyers to stay mindful of ethics. This article reviews three recent legal ethics topics: the “reply all” e-mail dilemma, the ins and outs of practicing law in our tech-driven world, and the ethical implications of new legal tech. In addition, here is the best part: this article is interactive! Read through the article, answer ten True or False questions, and earn some continuing legal education credit—all while lounging on your couch. This is an easy way to stay sharp on ethical issues and get credit for your time.
Reply all e-mail
Rule of Professional Conduct 4.2, colloquially termed the “no-contact” rule, states:
“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
The rule is clear in establishing the “no-contact” prohibition. What happens, though, when an opposing lawyer copies their client on a substantive, case-specific e-mail to you? Is it a violation of Rule 4.2 if you “reply all” to the e-mail, including the opposing client, with a substantive response? The American Bar Association Standing Committee on Ethics and Professional Responsibility recently considered this issue in ABA Formal Opinion 503.
In some states, sending a “reply all” response to an e-mail that includes an opposing party represented by another lawyer may constitute a violation of Rule 4.2. These states argue that there is no “implied consent” from the sending lawyer for the opposing client’s inclusion in the “reply all” response. On the flip side, some states hold the opposite view, suggesting that the opposing lawyer tacitly consented to a “reply all” response by including the client in the e-mail thread. It’s akin to discussing the case in an elevator where both clients and lawyers are present.
To clear all this up, ABA Formal Opinion 503 says lawyers who copy their clients on e-mails to other lawyers are inviting a “reply all” from that other lawyer. If the sending attorney does not want a “reply all” responding e-mail, that lawyer should not have copied their client. The ABA’s view is that the proper route would be to separately forward the e-mail to the client, thereby avoiding the risk of the “reply all” responding e-mail.
Remote depositions and witness preparation
The ethical duty of competence established by Rule 1.1 states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The rule requires that a lawyer make an effort to prepare a witness for deposition and establishes that inadequate preparation of the witness could violate the duty of competence.
Remote depositions present a new level of challenges for the unwary lawyer. Questions arise concerning the appropriate methods of preparing a witness for testimony and the permissible actions for attorneys during the deposition itself. ABA Formal Opinion No. 508, titled “The Ethics of Witness Preparation” (August 5, 2023), guides lawyers on permissible actions to prepare a witness to testify:
- Remind the witness that they will be under oath
- Emphasize the importance of telling the truth
- Explain that telling the truth can include a truthful answer of “I do not recall”
- Explain case strategy and procedure, including the nature of the testimonial process or the purpose of the deposition
- Suggest proper attire and appropriate demeanor and decorum
- Provide context for the witness’s testimony
- Inquire into the witness’s probable testimony and recollection
- Identify other testimony that is expected to be presented and explore the witness’s version of events in light of that testimony
- Review documents or physical evidence with the witness, including using documents to refresh a witness’s recollection of the facts
- Identify lines of questioning and potential cross-examination
- Suggest choice of words that might be employed to make the testimony clear
- Tell the witness not to answer a question until it has been completely asked
- Emphasize the importance of remaining calm and not arguing with the questioning lawyer
- Tell the witness to testify only about what they know and remember and not to guess or speculate
- Familiarize the witness with the idea of focusing on answering the question, i.e., not volunteering information
While it is appropriate to prepare a witness to testify, ethical rules establish clear boundaries between preparation and misconduct. Model Rule 3.4(b) mandates that a lawyer shall not “falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” A New York lawyer was disciplined for advising his client to “downplay” the frequency of their meetings while preparing for testimony. ABA Formal Opinion 508 cites to In re Meltzer, 21 N.Y.S.3d 63, 64 (2015), which considered the lawyer’s instruction to his client and another witness to “downplay” the number of times they met to prepare so that it did not appear they had “rehearsed the perfect story.” An instruction to lie violates Rule 3.4 and Rule 8.4, both of which protect the integrity of the legal profession.
Likewise, the ethical rules prohibit signals, text messages, private chat windows, and similar means of communication between a lawyer and the witness during testimony. In Florida Bar v. James, 329 So. 3d 108, 109—12 (Fla. 2021), a Florida lawyer was disciplined for sending text messages regarding testimony to the witness during a deposition. Based on this conduct, the lawyer was determined to have violated Florida’s equivalents to Model Rule 8.4 (commission of any act that is unlawful or contrary to honesty and justice), Model Rule 3.4(a) (obstructing another party’s access to evidence), and ABA Rule 8.4(d) (conduct prejudicial to the administration of justice).
Nevada case law and guidance from the Eighth Judicial District Court provide additional clarity on behavior during depositions. In Coyote Springs Inv., LLC v. Eighth Judicial Dist. Court, 131 Nev. 140, 149 (2015), the Court ruled that discussions between a witness and their lawyer during a break aren’t confidential unless the break was taken to protect a privilege, follow a court order, or file a motion to limit depositions. After the break, the witness’s lawyer must state on record (1) that a conference happened, (2) what it was about, and (3) if a privilege was claimed. The Eighth Judicial District Court published an administrative order to establish guidelines for behavior during depositions. See https://nvbar.org/wp-content/uploads/Administrative-Order-22-08.pdf All of this aligns with Rule 8.4, which underscores the obligation to maintain the integrity of the legal profession. A lawyer should consider these limitations when preparing a witness to testify.
Artificial intelligence
Artificial intelligence (AI) is expected to enhance efficiency and elevate the quality of work for lawyers as they integrate it into the practice of law. However, with these advancements come new ethical and legal risk challenges. The ethical rules establish boundaries, but figuring out how they apply to AI is still a bit of a mystery. This lack of clear guidance puts legal professionals in a tough spot as they adjust to AI in their work.
The rise of AI implicates several ethical rules:
- Rule 1.1 establishes the duty of competence and includes an ethical obligation for lawyers using AI to understand the risks of using AI. Rule 1.1, Comment 8 explains that lawyers should “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” Lawyers need to be mindful that the use of AI can present new ethical concerns.
- Rule 1.5 covers fees and establishes an ethical duty that a lawyer’s fees and expenses must be reasonable. The Florida Bar recently published a Proposed Advisory Opinion that instructs: “[r]egarding fees, a lawyer may not ethically engage in any billing practices that duplicate charges or that falsely inflate the lawyer’s billable hours. Though generative AI programs may make a lawyer’s work more efficient, this increase in efficiency must not result in falsely inflated claims of time. In the alternative, lawyers may want to consider adopting contingent fee arrangements or flat billing rates for specific services so that the benefits of increased efficiency accrue to the lawyer and client alike.” See Professional Ethics of the Florida Bar, Proposed Advisory Opinion 24-1, p. 7 (January 19, 2024).
- The International Association of Privacy Professionals explains that AI training models rely on data that “is often obtained by data scraping at a mass scale.” That data can contain sensitive information, creating a risk that someone’s private information could be revealed in the AI’s output. See https://iapp.org/news/a/what-does-ai-need-a-comprehensive-federal-data-privacy-and-security-law/. Rule 1.6 establishes an ethical duty for lawyers to protect confidential client information. It requires client consent to disclose confidences to a third party, including an AI platform. The Florida Bar’s Proposed Advisory Opinion states, “[u]se of a ‘self-learning’ generative AI raises the possibility that a client’s information may be stored within the program and revealed in response to future inquiries by third parties.”
- Rule 1.18 pertains to duties owed to prospective clients. It outlines the responsibilities of lawyers when potential clients consult them regarding potential legal representation, even if no attorney-client relationship ultimately arises. The Florida Bar explains that a lawyer cannot assign to AI tasks that require a lawyer’s personal judgment and participation such that they would constitute the practice of law. Lawyers should “include clear and reasonably understandable disclaimers limiting the lawyer’s obligations” when using a chatbot interface.
- Rule 3.1 establishes a duty for lawyers to present meritorious arguments in good faith and based on an extension, modification, or reversal of existing law. Rule 3.3 establishes an ethical duty of candor to tribunals. A lawyer violated these rules by using AI to draft a legal brief that included fictitious legal citations referencing precedential cases. Mata v. Avianca, 2023 U.S. Dist. LEXIS 108263 (S.D.N.Y. June 22, 2023). In a 43-page ruling, the court ordered that the lawyer send individually addressed letters via first-class mail to judges falsely linked to the nonexistent, fabricated legal opinions, in addition to paying a $5,000 sanction.
- Rules 5.1 and 5.3 outline responsibilities for overseeing subordinate lawyers and non-lawyer staff. Those in supervisory roles have an ethical obligation to ensure that the use of AI is appropriate and complies with ethical rules.
- The lawyer advertising rules and prohibitions on misleading or manipulative statements are concerns. Lawyers using AI must ensure they do not provide misleading information or act intrusively. A chatbot interface should be clearly identified to prospective clients to explain that they are interacting with an AI program, not a lawyer or firm employee. Lawyers should consider screening questions to limit chatbot interactions with individuals already represented by another lawyer. Finally, lawyers may advertise their use of generative AI, but they cannot claim to have a superior practice unless objectively verified.
Existing and emerging technologies bring both promise and complexity to the practice of law. As we navigate the integration of AI, address challenges like “reply all” e-mail incidents, and adapt to the nuances of remote depositions and witness preparation, legal professionals must carefully consider ethical implications. This dynamic landscape demands a commitment to ongoing professional development while upholding the foundational principles that define our esteemed profession.
About the author
Joseph Garin has represented more than 1,000 lawyers and law firms in cases in Nevada, Utah, Colorado, Michigan, and Illinois, including trials, discipline hearings, and appeals. He frequently teaches CLEs on legal malpractice and ethics and also works as an expert witness in cases involving attorney liability and fee petitions.
About the article
© 2024 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.
This article was originally published in the Communiqué (May. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-may-2024.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
*About the CCBA’s Article #17: “Legal Ethics Fun Facts” offers 1.0 Ethics Continuing Legal Education (CLE) credit to Nevada lawyers who complete the test and order form per the offer described in the May 2024 issue of Communiqué. See pp. 22–29 of the printed or PDF version (https://clarkcountybar.org/wp-content/uploads/2024/05/2024-5-Communique-web.pdf). The CCBA is an Accredited Provider with the NV CLE Board.