Timothy B. McCormack, attorney at law, writes about: Intellectual Property Legal Ethics: Professional Ethics & Intellectual Property Law

by Timothy McCormack
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Timothy B. McCormack, attorney at law, writes about: CLIENT RELATIONS: The Context Of Legal Ethics

A 1996 Consumer Report Survey indicated that the number one complaint from clients was that the attorney did not promptly return the client's phone call. The second most frequent complaint was that the attorney did not pay adequate attention to the client's case. Interestingly, a Lou Harris poll found that the least relevant reason clients leave a professional was that fees were unreasonable.

Why promptly return phone calls and have good communications with your clients" Almost 80% of all malpractice claims result from poor client relations. Additionally, greater than 75% of disciplinary complaints are based on issues related to client relations. Thus, it's important to maintain open channels of communication with a client. If there is a breakdown, have another member in the firm assist. Also, keep clients advised as to the status of their cases and well informed of deadlines in advance. Why keep clients advised" Because Washington's Rule of Professional Conduct 1.4 states that:

A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with a reasonable request for information.

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Additionally, RPC 1.3 states that: "A lawyer shall act with reasonable diligence and promptness in representing a client."

To help realize the mandates of RPC 1.3 and 1.4, technology has come to the aid of many busy attorneys by way of cordless telephones, cell phones, facsimile machines and electronic mail or "e-mail."

ATTORNEY-CLIENT PRIVILEGE AND ELECTRONIC COMMUNICATIONS

Rule RPC 1.6 on confidentiality states, "A lawyer shall not reveal confidences or secrets . . . ." A confidence is information received by the attorney that is protected by the evidentiary attorney-client privilege.

Secrets include other information that the attorney receives under his or her relationship with a client, where the client requests such information to be kept confidential or where disclosure of such information would be embarrassing or detrimental to the client.

The attorney-client privilege applies to all confidential communications made by an attorney and client. "Privilege remains an exception to the general duty to disclose" Garner v. Wolfinbarger, 430 F. 2d 1093 (5th Cir. 1970). Four elements are required to establish privilege. See United States v. Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). The four elements are: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar of a court; (3) the communication relates to a fact of which the attorney is informed by his client in confidence in connection to legal services; and (4) the privilege has been claimed and not waived by the client, i.e., the communication must be made in confidence and not made in the presence of third parties.

The professional duty to preserve secrets is broader than the attorney-client privilege. An attorney's obligation to keep secrets extends before and after the attorney-client relationship exists. Unlike the attorney-client privilege, the ethical duty to maintain secrets applies to information communicated by the client even in the presence of others.

Technology

Understanding the technology that is giving rise to the many new ethical questions is important. In fact, one state bar ethics opinion points out that because technology is developing so rapidly, "any analysis and advice in this area is subject to change as the technology changes." Pennsylvania Opinion 97-130, http://www.legalethics.com/states/97_130.htm.

Cordless Phones

Definition

"In one sense, the cordless telephone is just what the name implies, a telephone. It looks and sounds like a normal land-line telephone. When you use a cordless phone, you dial a telephone number and talk to the party on the other end of the line. In actual operation, however, the cordless phone uses a radio signal. The typical cordless phone consists of a base unit, attached to the land-based telephone line, and a mobile unit which transmits and receives the radio signals that carry the actual conversation to and from the base unit." U.S. v. Smith, 978 F.2d 171, 178 (5th Cir. 1992).

Interception of Cordless Phones

"As a factual matter, the broadcast of a cordless telephone can far more readily be intentionally intercepted or inadvertently overheard than a land-based call." David Hricik, Confidentiality and Privilege in High-Tech Communications, 8 No. 2 Prof. Law. 1, 18 (1997).

Provided by McCormack Intellectual Property PS and written by Timothy B. McCormack, attorney at law and technology lawyer.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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