May 18, 2017
2:15 PM - 5:00 PM Overland Park Convention Center 6000 College Blvd
Overland Park, KS
Ethics Minefields Created by the Yates Memo
Speakers: Scott Palecki and Panel Discussion with Alex Schulte and David Green
This session will survey issues and practical problems arising out of the Yates Memo dated September 9, 2015 Issued by Deputy Attorney General Sally Quillian Yates. Topics to be addressed include:
- Scope of representation – KRPC 1.2.
- Organization as client – KRPC 1.13.
- Communications with company employees and other “constituents.”
- Protecting company privilege.
- Up-the-ladder reporting.
- Potential conflicts of interest representing corporation and employees/constituents – KRPC 1.7 and 1.8(b), (g), and (h).
- Dealing with unrepresented persons – KRPC 4.3.
- Fairness to opposing party (the government) and counsel (the DOJ) – KRPC 3.4(f).
- Communication with Person Represented by Counsel – KRPC 4.2.
The September 9, 2015 Yates Memo, the September 13, 2015 Yates Comments, and the June 9, 2016 Assistant Attorney General Bill Baer Comments will be addressed. Ethics rules to be addressed include Kansas Rules of Professional Conduct 1.2, 1.13, 1.7, 1.8, 4.3, 3.4, and 4.2, related interpretive opinions and case law, including the September 2016 Tuomey CEO (Ralph Cox III) $1 million settlement with exclusion; and statutory and common law attorney-client privileges.
Roundup of Current Ethics Issues and Cases and Cybersecurity Ethical Issues
Speakers: Scott Nehrbass and Daniel Buller
- Just how “black-and-white” is that rule against a criminal matter being used as leverage in a civil matter? Compare KRPC Rule 8.4(d) with Colo. R. of Prof’l Conduct 4.5(a) (2008); ABA Ethics Opinion 92-363; Nick Badgerow, Rattling the Saber: The Ethics of Threatening Criminal & Disciplinary Prosecution, 61 J. Mo. B. 13 (Jan. - Feb. 2005); Richmond & Faughnan, Professional Responsibility in Litigation, at pp. 28-56 (2011); In re Pyle, 278 Kan. 230, 91 P.3d 1222 (2004) (involving attorney threat to turn the facts of the case over to the Disciplinary Administrator).
- Total Recall Technologies v Lucky, U.S. Dist. Ct., N.D. Cal, Case No. 15-02281 (April 4, 2016): Disclosure of attorney client privileged communications to non-employee/non-owner business confidant waived privilege.
- ABA Proposes Amendment to MRPC Rule 8.4 to explicitly make discriminatory or harassing conduct a violation of the ethical rules. “Amended Model Rule 8.4 contains new paragraph (g) that establishes a black letter rule prohibiting harassment and discrimination in the practice of law.” – Letter from ABA to Chief Justice Lawton Nuss, September 29, 2016.
- Do I really need to be licensed? Al Jazeera General Counsel fired after press learns he was never licensed in New York. No excuses with Supreme Court Rule 712.
- Robbing a Bank – It will cost you your license … Former Kovatch Mobile Equipment Corp GC Disbarred for Robbing a Bank., Pa. Supreme Court, No. 2253 Disciplinary Docket No. 3 (2016).
- GM Corporate Lawyers Escape Disciplinary Action in Ignition Switch fiasco. March 2016. KRPC 1.6 Confidentiality.
- No good deed goes unpunished: Be careful when helping out-of-state family members with legal problems. In re Panel File 39302, No. A15-2078 (Minn. Sup. Ct. Aug. 31, 2016).
- Is that bonus an excessive fee? Company attempts to use Rule 1.5 to disgorge wages from former in-house counsel. Chism v. Tri-State Construction, Inc., No. 72833-0-1 (Wash. Ct. App. May 9, 2016).
- Cybersecurity Ethical Issues
- Ethical and legal obligations relating to cybersecurity
- The evolving cyber-threat landscape and “reasonable” data security practices
- Brown v. Tellermate Holdings, Ltd., 2014 WL 2987051 (S.D. Ohio). Attorneys need at least a base level understanding of client data and systems and should involve experts when appropriate
- Anatomy of a data breach - the Target and Home Depot data breaches
- Federal and state cybersecurity laws
- Risk Assessment Tools
- Columbia Casualty Co. v. Cottage Health Sys, Sys., Case No. CV 15-03432 DPP (C.D. Cal., July 17, 2015). Lessons from an early cyber insurance case.