Clear as mud? Understanding your ethical duties as a “dirt” lawyer

Nexsen Pruet, PLLC
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1.      Do you “reply to all” on emails? Should you?

With the ease of email communications, thought needs to be given before you respond to an email and hit “reply to all.”  With traditional correspondence by mail to opposing counsel, there is no question – you would never (ever) “cc” the adverse party client.  However, the water has become muddy with email correspondence. 

In real estate transactions, especially commercial, it is not uncommon to see multiple parties copied on an email.  For example, if Buyer’s counsel is sending an email concerning a commercial closing, you may see the following parties copied on the email:

  • Seller’s counsel;
  • Seller’s broker;
  • Buyer’s broker;
  • Lender’s counsel;
  • Tenant’s counsel;
  • And, of course, the Buyer-client (possibly multiple client representatives, including  Buyer’s in house counsel).

As an aside, the broker’s role is, in part, as a facilitator for the transaction. Brokers are not subject to the same rules regarding communications and you will frequently see emails between brokers copied to all parties (including Seller and Buyer and counsel for both)– making the “reply to all” even murkier.

The issue regarding “reply to all” emails concerns the potential violation of Rule 4.2 of the Rules of Professional conduct (called the “no contact rule”), which provides:

(a) During the representation of 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.  

Many issues arise in the context of “reply to all” emails:

  • What if the email communication is strictly non-substantive (such as an inquiry to set up an “all hands” conference call?
  • What if the email communication is strictly substantive (such as issues concerning environmental contamination of the site)?
  • What if the email is mixed (substantive and non-substantive)?
  • What if the response contains a derogatory comment concerning the opposing party or the opposing party’s counsel?
  • What if the original email included a “cc” to the sender’s client (in the example above, the original email is from Buyer’s counsel and assume there is a “cc” by Buyer’s counsel to Buyer)?
  • What if the original email did not include a “cc” to the sender’s client (in the example above, the original email is from Buyer’s counsel and assume there is no “cc” by Buyer’s counsel to Buyer)?
  • What if the recipient, in the “reply to all” email adds the adverse party to the response (in the example above, the original email is from Buyer’s counsel and there was no “cc” to Buyer, but Seller’s counsel, in the reply, affirmatively adds Buyer to the “reply to all” email)?
  • What does it take for an express waiver? (an example from a recent commercial closing was a line of text, in red and all caps, saying: “PLEASE REPLY TO ALL WHEN REPLYING TO THIS EMAIL”)(of course, this waiver only applies to that sender’s client and not to other “clients” in the email)
  • What does it take for an implied waiver?
  • Is an express or implied waiver consent for all future emails on that transaction? on other transactions between the same parties?

The North Carolina State Bar Ethics Committee has wrestled with this issue since at least July 2012 when the original Proposed 2012 FEO 7 was issued, which can be located in the Fall 2012 issue of The North Carolina State Bar Journal (page 51).  At the October 2012 meeting, the Ethics Committee voted to send Proposed 2012 FEO 7 to a subcommittee for further study.  In December of 2012, a meeting of the subcommittee failed to reach consensus, resulting in majority and minority drafts of the revised opinion.  On January 25, 2013, the Ethics Committee voted to publish a revised Proposed 2012 FE0 7 (not yet available as of the date of this manuscript).  The revised Proposed 2012 FE0 7 adopts a strict interpretation of Rule 4.2 and requires express consent (no exceptions/no implied consent) prior to sending a “reply to all” email which includes a represented party.

TIP:   email opposing counsel for express consent to “reply to all”

TIP:   if you have strong feelings on this topic, send your comments to the Ethics Committee before the revised proposed opinion is final (c/o Suzanne S. Lever, Esq., Assistant Ethics Counsel, The North Carolina State Bar, SLever@NCBar.gov)

2.      Networking for lawyers – what is required to participate as a “network lawyer”?

    A “network lawyer” in this context refers to a lawyer participating as a “network lawyer” in a third party network for referrals – akin to an internet referral source.   2012 FEO 10 is entitled “Participation as a ‘Network’ Lawyer for Company Providing Litigation or Administrative Support Services.

The inquiry is fact specific and loaded with conditions, covering:

  • Unauthorized practice of law issues (if the network is a corporation providing legal services);
  • Existing lawyer referral service limitations;
  • Exercise of independent professional judgment issues;
  • Communications with clients;
  • Competent representation;
  • Confidential information;
  • Prohibition of fee sharing with non-lawyers; and
  • Advertising and solicitation limitations.

A written agreement is recommended but not required.

    The opinion includes many “rejected” inquiries:

  • Inquiry 2 – if exclusive territory, the network is “essentially” a for-profit referral service;
  • Inquiry 3 – if higher fees are charged for other lawyers to join the network;
  • Inquiry 4 – if confidential information of the client becomes the property of the network;
  • Inquiry 5 – if restrictions are placed on the practice of law; and
  • Inquiry 6 – if the attorney is to provide a client list.

The last inquiry, Inquiry 7, refers to the infamous “robo signing” in the context of network employees signing foreclosure affidavits without proper review of the file.  The opinion includes an obvious admonition to lawyers not to use documents provided by a third party unless the attorney is in a position to verify that the documents are reliable.

    At its January 25, 2013 meeting, the State Bar adopted 2012 FEO 10.

3.      Referrals with title companies – what is allowed and what isn’t?

2011 FEO 4 concerns obligatory referral arrangements between an attorney and a title agency.  The facts are not specific, but suggest that a “referring party,” who has “some affiliation” with a title agency, is the one in a position to make referrals.  At some point, the “referring party” requires that the attorney procure title insurance from the particular title agency with which the “referring party” has the affiliation.

In response to the inquiry concerning this arrangement, 2011 FEO 4 (emphasis added) provides:

No.  The ethical duties set forth in the Rules of Professional Conduct prohibit a lawyer from entering into an exclusive reciprocal referral agreement with any service provider.  Such an arrangement impairs the lawyer’s ability to provide independent professional judgment…. In addition, the arrangement amounts to improper compensation for referrals…. Finally, such an arrangement creates a nonconsentable conflict of interest between the lawyer and the client ....

In most real estate transactions, the client delegates the choice of title insurer to the lawyer, who is charged with acting in the best interest of the client.  In determining what is in the best interests of the client, it is appropriate for the lawyer to consider among other things the fees charged for title insurance, the financial stability of the insurer and/or title insurance underwriter, the willingness of the title insurer to provide coverage regarding title matters, and the ability of the insurer to meet the needs of the client with regard to the transaction.

The lawyer may also consider the lawyer’s working relationship with a specific title insurer, particularly where the relationship may prove beneficial to the client.  This is true even where the client has been referred to the lawyer by someone affiliated with the specific title insurer.  The lawyer may, and should, strive to cultivate the types of business relationships and provide the quality of legal services that will encourage clients and other professionals to recommend the lawyer’s services.  What a lawyer cannot do, however, is permit a person who recommends the lawyer’s services to direct or regulate the lawyer’s professional judgment in rendering the legal services….

If the client indicates a preference as to a particular title insurance company that the lawyer does not believe is the best selection for the client, the lawyer’s role is to counsel the client so that the client may make an informed decision.  Ultimately, the choice of the title insurer in a real estate transaction is in the province of the client acting in consultation with the lawyer.

The remainder of the opinion deals with the duty of an attorney concerning an apparent violation of this opinion.

4.      Disavowing client relationship – is that “best practices”?

This issue is a variation of prior issues concerning dual representation and arose in the context of an inquiry by Root Edmonson with the North Carolina State Bar presented at the October 25, 2012 meeting of the Ethics Committee (copy of the Inquiry attached hereto as Exhibit A). 

The background facts: 

Seller:

The Bank that foreclosed upon land and took title as the high bidder

Seller’s Lawyer:

A law firm which regularly represents Seller (the Bank) – but which was not involved in the foreclosure (“Law Firm X” in the Inquiry)

Buyer:

Assume sophisticated and savvy – engages his/her own counsel

Contract:

--Provides closing is to be held at Seller’s Lawyer’s office

--Seller to pay those costs associated with transfer of title that local custom allocated to Seller and Buyer to pay the remaining costs

--Seller’s Law Firm to provide an opinion of title to title company affiliated with Seller to obtain a title insurance policy for the Buyer

Disclosure:

Seller’s Law Firm notified Buyer via a disclosure (“Independently Represented Buyer Acknowledgement”)  that  there would be no “attorney client relationship” between Seller’s Law Firm and Buyer (despite Seller’s Law Firm “providing services necessary and incidental to effectuating a settlement”)

There are many issues which arise in this Inquiry:

  • Is it permissible for the Seller’s Law Firm to charge Buyer a fee if Buyer retains its own counsel?
  • May the contract require the Buyer to pay the Seller’s attorney fees?
  • May Seller’s Law Firm provide an opinion on title to obtain a title policy for Buyer? Is providing a title opinion/obtaining a title policy tantamount to providing legal services to Buyer?
  • Depending upon the above, may  Seller’s Law Firm “disavow” an attorney-client relationship with Buyer?
  • Philosophically,

o   Is the disclosure from Seller’s Law Firm to Buyer in this context meaningful?

o   As a general rule, is it in a Buyer’s best interest to have his/her own independent counsel? what role does Seller’s Law Firm have in whether or not Buyer ultimately engages independent counsel?

In considering the issues, recall two limitations on title insurance:

  • a Lender cannot require a borrow to use a particular title insurance company (NCGS Section 75-17); and
  • a Seller cannot require a Buyer (in the context of a federally related mortgage) to use a particular title insurance company (RESPA, 12 USC Section 2608)

This opinion has generated many comments and some amount of controversy.  As of January 25, 2013, the Inquiry is still in subcommittee for study.

TIP:  it is not too late for you to voice your opinion on this Inquiry by contacting the Ethics Committee.      

5.       Social media – violating confidentiality?

      The State Bar rules for protecting client confidentiality are well known and little changed.  The only new issue is whether an attorney is carefully considering client confidentiality in the context of emerging social media.

      Rule 1.6 of the Rules of Professional Conduct provides:

(a) A Lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent….

In the context of social media, this rule remains in full force and effect.  Areas of concern:

  • Content on law firm web page;
  • Content on Facebook ®;
  • Content on Twitter ®;
  • Content on LinkedIn ®;
  • Content on Real Property listserv (now rp@listmanager.ncbar.org);
  • Content  on “DIRT” (listserv);
  • Content on blogs.

The duty to protect client confidentiality means that a “thinly disguised” fact scenario will not satisfy your duty.

6.      Social media – what are the recent developments for marketing?

A.  2012 FEO 8

2012 FEO 8 is entitled “Lawyer’s Acceptance of Recommendations on Professional Networking Website.”  This opinion expressly references “LinkedIn” and contains the requirements for “on line” recommendations and covers both the advertising restrictions and the confidentiality restrictions.

B.  2011 FEO 8

2011 FEO 8 is entitled “Utilizing Live Chat Support Service on Law Firm Website.”  This opinion sets forth the requirements for utilizing a “live chat” format for obtaining information from a prospective client.  The opinion cites an opinion from the Philadelphia Bar Association as persuasive authority:

The [Philadelphia Bar Association] opinion states that Rule 7.3 does not bar the use of social media for solicitation where a prospective client to whom the lawyer’s communication is directed has the ability “to ‘turn off’ the soliciting lawyer and respond or not as he or she sees fit.”  The Philadelphia Bar Association opined that “with the increasing sophistication and ubiquity of social media, it has become readily apparent to everyone that they need not respond instantaneously to electronic overtures, and that everyone realizes that – like targeted mail – emails, blogs, and chat room comments can be readily ignored, or not, as the recipient wishes.”

The opinion contains several admonitions:

  • Be careful to disclose that the live chat is not with a lawyer;
  • Be careful that no legal advice is given;
  • Be wary of inadvertently creating a lawyer-client relationship;
  • Be careful concerning the receipt of confidential information;
  • Be aware that information disclosed may have the unintended consequence of creating a conflict of interest for the law firm.

C. 2011 FEO 10

2011 FEO 10 is entitled “Lawyer Advertising on Deal of the Day or Group Coupon Website.”

As with the other opinions on social media, the opinion permits this form of advertising with certain disclosures and conditions,  described in detail in the opinion.

A footnote to the opinion states that “[i]n light of the many uncertainties of a legal representation arranged in the manner proposed, a lawyer may not condition the offer of discounted services upon the purchaser’s agreement that the money paid will be a flat fee or a minimum fee that is earned by the lawyer upon payment.  See 2008 FEO 10.”   

7.      Internet banking – any impact?

A.  2011 FEO 7

This opinion, 2011 FEO 7, is entitled “Using Online Banking to Manage a Trust Account.”  Using online banking is another permissible internet use for law firms, subject to certain requirements to protect client funds.

    A summary of requirements is as follows:

  • Exercise reasonable care to minimize risk of loss or theft;
  • Regular education of the firm’s managing lawyers on the changing security risks;
  • Comply with trust account rules regarding preservation of bank records;
  • Law firm must provide “multiple layers of security”;
  • Strong passwords; and
  • Use of encryption.

B.  2011 FEO 6

2011 FEO 6 is entitled “Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property.”  This opinion, regarding software as a service (“SAAS”), is cited as authority for online banking.  As with all of the internet opinions, there are conditions set forth in detail in the opinion.

8.      Since when do brokers have a lien?

New in 2011 was the creation of a lien for commercial real estate brokers.  The Act applies only to written brokerage agreements signed on or after October 1, 2011.

While a full review of the Act is outside the scope of this paper, it is included to make attorneys aware of this new lien.  A summary of key provisions follows:

  • Only a licensed broker may file a lien;
  • Lien rights are only for commercial real estate;
  • Lien rights are only pursuant to a written agreement (signed by the owner or authorized agent)(meaning probably only a listing broker can file a lien);
  • the broker must have performed;
  • the broker’s duties must be set forth in the agreement;
  • the agreement must set forth the conditions for, and the amount of, the compensation due; and
  • the lien only applies to the commercial real estate which is the subject of the written agreement.

For a thorough article on the new Act, see “A Summary of the Commercial Real Estate Broker Lien Act,” by Garth K. Dunklin, published in Volume 34, No. 1, of Real Property, by the Real Property Section of the North Carolina Bar Association (September 2012).

9.      Attorney fees – what  “real property” contracts are “business contracts”?

The right to collect attorney fees in a real estate transaction was historically tied to an “evidence of indebtedness” under NCGS Section 6-21.2.  What constituted an “evidence of indebtedness” was subject to debate.

Effective October 1, 2011, a new statute permits recovery of attorney fees pursuant to certain “business” contracts.  NCGS Section 6-21.6, entitled “Reciprocal attorneys’ fees provisions in business contracts,” provides a safe harbor for “certain” business contracts, which would then include certain real estate contracts.

Section 6-21.6 is not the answer to all prayers for real estate practitioners drafting contracts.  Excluded from the statute are:

  • Consumer contracts;
  • Employment contracts; and
  • Contracts with the North Carolina government or governmental agencies

Additional limitations of the new Act are:

  • the contract must be a written contract signed by all parties (“by hand”);
  • the attorneys fee provision must be reciprocal;
  • the award of attorney fees cannot exceed the money damages sought;
  • the statute lists 13 factors to be considered in determining the attorney fees to be awarded; and
  • the award of attorney fees will not be governed by any statutory presumption or the amount recovered in other cases.

TIP: A sample insert used by the author is attached as Exhibit B.

10.  Consideration – when is it “illusory”?

The case of McLamb v. T.P., Inc., 173 N.C. App. 586, 619 SE2nd 577 (2005)(cert. den.) is a modern day view of “illusory” consideration of old. 

In McLamb, the key facts were:

  • Plaintiffs desired to purchase lots at a subdivision to be developed by defendant;
  • Plaintiffs executed “Reservation Agreements” which the court interpreted as option contracts;
  • Plaintiffs paid a deposit of $500 per lot “as consideration”;
  • The deposit was fully refundable if plaintiff requested a cancellation or the deposit was transferred to the purchase contract as a credit toward the purchase price at closing;
  • Defendant later informed plaintiffs it was unable to obtain necessary permits to develop the project and terminated the reservation/option contracts;
  • Plaintiffs sued for specific performance; and
  • Although a sample reservation/option contract was not reprinted in the opinion, the court concluded “nothing in the reservations actually required (the developer) to develop the property upon which plaintiffs’ lots were to be located or to convey such lots to plaintiffs.”

The court’s first conclusion was that the reservation/option contracts did not actually constitute offers to sell. Thus, there could be no breach.

Instead of ending the opinion there, the court proceeded to analyze the nature of the consideration.  The court attempted to distinguish an option contract from a purchase agreement by explaining that an option is “a contract by which the owner agrees to give another the exclusive right to buy property at a fixed price within a specified time.” 

[Editorial Note:  In my practice, there is no practical distinction between an “option” and a commercial purchase contract as the typical commercial deal is to have a purchase contract with a free “look-see” period in which the earnest money is fully refundable if the buyer terminates prior to the end of the negotiated due diligence period.] 

The court was vexed by the fact that the $500 deposit was fully refundable and, if the closing occurred, the $500 was to be applied as a credit to the purchase price. 

[Editorial Note:  In my practice, the first question after “how much” to pay for the land is “how much” earnest money deposit will be required and is it refundable/applicable?  The earnest money deposit is considered “funny money” because the buyer usually gets it (all) back if the buyer walks.  A different story emerges if the buyer needs to extend the original due diligence period – then you see negotiated penalties for longer due diligence periods which are frequently non-refundable but still applicable.]

In plaintiffs’ support:

  • $500 cited “as consideration”;
  • $500 actually paid; and
  • “Plaintiffs … lost the benefit of the use of that money during the interim time period … [and] Defendant received the benefit of the use of this money to enable it to … both receive and/or qualify for financing and to earn interest …”

The court does not explain how options are different than purchase agreements or other contracts; likewise, the court does not address the practice of reciting “in consideration of $10.00 and other valuable consideration” as adequate consideration.  In a stinging rebuke of contracts with fully refundable deposits, the court cited a case which held that “consideration which may be withdrawn on a whim is illusory consideration which is insufficient to support a contract.”    The supporting authorities were two covenants not to compete cases.  The court distinguished money paid as a deposit toward the purchase price and money paid for the option itself.  The court cited many N.C. authorities for this proposition.  The court did not indicate if it would have ruled differently if the option had recited “$10.00 and other valuable consideration.”

In many contracts, earnest money is fully refundable and, in other cases, the earnest money may even be waived.  In such cases, is the consideration “illusory” as with the option contract in McLamb?

TIP:  To avoid the McLamb issue, consider inserting into your draft a provision for non-refundable earnest money in a nominal amount.  A sample is attached hereto as Exhibit C.

11.   At least mitigation of damages will always be around – or will it?

The case of Sylva Shops Limited Partnership v. Hibbard, 175 N.C. App. 423, 623 SE2nd 785 (2006) surprised many leasing lawyers.  See also Kotis Properties, Inc. v. Casey’s Inc., 183 N.C. App. 617, 645 SE2nd 138 (2007) (following Sylva Shops).

Prior to Sylva Shops, the established common law was that a landlord had a duty to mitigate damages.   See, e.g., Isbey v. Crews, 55 N.C. App. 47, 284 S.E.2d 534 (1981).  In Sylva Shops, the lease expressly provided to the contrary:

[Landlord] shall have no obligations to mitigate Tenant’s damages by reletting the Demised Premises.

The court had no difficulty finding that a shrewd landlord, who thinks to add this provision to the boiler plate in a commercial lease is entitled to enforce it.  The court noted that a different result might occur if the waiver of a right was accomplished through “inequality of bargaining power.”

This case provides two lessons for a transactional lawyer:

  • Whether or not there will be a duty imposed on the landlord to mitigate damages is up for negotiation between the parties;
  • No “historical” duties are sacred, if knowingly waived.

The court provided some insight to its rationale:

  • “[c]ourts will rarely inquire into the soundness of the bargain itself…. ‘Liberty to contract carries with it the right to exercise poor judgment as well as good judgment….’”
  • the court noted that the defendant did not argue that the lease provision was obtained as a result of inequality of bargaining power.
  • the tenant testified that “[n]obody was holding a gun to [our] head” to sign the Lease….

NOTE:  The opinion was expressly limited to “commercial” leases.

TIP:  If you represent a tenant and the shopping center landlord seeks to negotiate out the duty to mitigate, a compromise position is to acknowledge that the shopping center landlord is faced with other locations to lease and that it has no greater duty to lease the vacated premises than it does to lease out its other locations:

Landlord agrees to make equal efforts to market the Demised Premises together with its other vacant properties in an effort to mitigate Tenant’s damages.  Landlord shall neither favor nor disfavor the Demised Premises in the marketing of the space to potential tenants.  Further, Landlord shall not be required to enter into a lease for the Demised Premises at a rate below fair market rent or with a tenant that does not meet Landlord’s standards for economic viability which shall be judged in a commercially reasonable standard.

12.  What date was that closing anyway? Does it matter?

Ever since Beaman v. Head (In re: Head Grading Co., Inc.), Bankruptcy Case No. 05-02729-8 RDD, Adversary Proceeding No. D-05-00316-8-AP, nervous transactional lawyers have stayed awake at night worrying about whether “every” Note and “every” Deed of Trust ever prepared had matching dates.

In Beaman, the Note was dated July 29, 1998, and the Deed of Trust was dated July 28, 1998.  The Deed of Trust provided that it was given as security for a “Promissory Note of even date herewith.”  The bankruptcy court granted the Trustee’s Motion for Summary Judgment and held that the Deed of Trust was unenforceable.  The logic? That “North Carolina law requires deeds of trust to specifically identify the debt referred to therein.”

Without belaboring the rationale cited in the Beaman opinion, the impact was felt across the state.  The ruling was just plain harsh.  Two cases just handed down in 2013 are more forgiving. 

In January of 2013, the bankruptcy court handed down the case The Willows II, LLC v. BB&T (In re: Willows II, LLC), Bankruptcy Case No. 12-02876-8-SWH (2013 WL 139319).  While technically “distinguishing” Beaman instead of “over-ruling” Beaman, the net effect is to restore a more balanced view of a technical drafting error.  In Willows II, the court held that the Deed of Trust contained “sufficient information that specifically and uniquely [identified] the Note as the obligation secured”, notwithstanding a Note dated September 8, 2005 and a Deed of Trust dated September 7, 2005.   See also Hutson v. BB&T (In re: Wilson), Bankruptcy Case No. 10-81481C-13D, Adversary Proceeding No. 12-9025 (2/8/13) (Deed of Trust enforceable notwithstanding Note erroneously dated April 4, 2002 instead of April 4, 2003).

TIP:  Always, always, always make sure the Note and Deed of Trust are dated the same date.

TIP:  When issuing an opinion letter on loan documents always include an “assumption” that the loan documents will be dated the same date.

Attachments

Exhibit A – Root Edmonson Inquiry (dual representation)

Exhibit B – Sample contract provision for reciprocal attorney fees under NCGS § 6-21.6

Exhibit C – Sample “Consideration” language (including “independent consideration”)

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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Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.