Formal Opinion 2017-5: An Attorney’s Ethical Duties Regarding U.S. Border Searches of Electronic Devices Containing Clients’ Confidential Information | Member & Career Services | NYC Bar

DIGEST: Under the New York Rules of Professional Conduct (the “Rules”), a New York lawyer has certain ethical obligations when crossing the U.S. border with confidential client information.  Before crossing the border, the Rules require a lawyer to take reasonable steps to avoid disclosing confidential information in the event a border agent seeks to search the attorney’s electronic device. The “reasonableness” standard does not imply that particular protective measures must invariably be adopted in all circumstances to safeguard clients’ confidential information; however, this opinion identifies measures that may satisfy the obligation to safeguard clients’ confidences in this situation. Additionally, Under Rule 1.6(b)(6), the lawyer may not disclose a client’s confidential information in response to a claim of lawful authority unless doing so is “reasonably necessary” to comply with a border agent’s claim of lawful authority. This includes first making reasonable efforts to assert the attorney-client privilege and to otherwise avert or limit the disclosure of confidential information. Finally, if the attorney discloses clients’ confidential information to a third partyduring a border search, the attorney must inform affected clients about such disclosures pursuant to Rule 1.4.
 
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Prosecutors drop charges against inauguration protesters after judge says they withheld videos–ABA Journal

BY DEBRA CASSENS WEISS

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Federal prosecutors dismissed all charges against seven inauguration protesters and reduced charges against three others after a Washington, D.C., judge criticized the government for withholding undercover videos recorded by an activist group.

Superior Court Chief Judge Robert Morin dismissed the charges Thursday at the request of prosecutors after he criticized the government for initially disclosing only one secret video of a planning meeting recorded by the group Project Veritas, report BuzzFeed News, the Huffington Post and Law & Crime.

Morin said last week that the government had withheld the full version of the meeting video. The government belatedly disclosed that there were 69 additional recordings, according to a motion filed by defense lawyer Andrew Clarke. Many videos included discussions of de-escalation tactics, he wrote.

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Fired DCJS director accuses commissioner of misleading oversight panel – Times Union

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The former director, Brian J. Gestring, headed DCJS’s forensic science unit before he was fired that month following an unrelated workplace misconduct investigation. In a letter sent Friday to the state Commission on Forensic Science, Gestring said that Green also did not disclose to the commission that the agency had three “catastrophic” cases in the past year in which it misidentified suspects who had been linked to crimes through DNA.

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Is there an ethical problem with attorneys ghostwriting for pro se clients?–ABA Journal

BY DAVID L. HUDSON JR.

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ABA Formal Opinion 07-446 also approves of lawyers ghostwriting for clients, viewing it as a “form of ‘unbundling’ of legal services.” The ABA opinion reasons that pro se clients receiving ghostwriting services should not be required to disclose that fact: “Because there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance, the nature or extent of such assistance is immaterial and need not be disclosed.”

“We conclude that there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer’s conduct,” the 2007 ABA opinion says.

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Pretty Good Procedures for Protecting Your Email | Electronic Frontier Foundation

BY GENNIE GEBHART

A group of researchers recently released a paper that describes a new class of serious vulnerabilities in the popular encryption standard PGP (including GPG) as implemented in email clients. Until the flaws described in the paper are more widely understood and fixed, users should arrange for the use of alternative end-to-end secure channels, such as Signal, and temporarily stop sending and especially reading PGP-encrypted email. See EFF‘s analysis and FAQ for more detail.
 
 

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Judge cites Instagram photos in sanctioning lawyer for family emergency excuse–ABA Journal

BY DEBRA CASSENS WEISS

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A lawyer who said she had missed a filing deadline because of a family emergency in Mexico City was sanctioned $10,000 by a federal magistrate judge who said Instagram photos showed she was actually in New York City at the time.

U.S. Magistrate Judge Michael Hammer granted a motion to sanction New York-based lawyer Lina Franco in an April 26 opinion, report Law360, the New Jersey Law Journal and NJ.com.

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Does Email Tracking Violate Ethics Rules? – Attorney at Work

By  | Apr.17.18 | Daily DispatchEthicsProfessionalism

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Spymail Violates the Rules of Professional Conduct

A recent Professional Conduct Advisory Opinion from the Illinois State Bar Association, (Opinion No. 18-01, January 2018) joined at least three other jurisdictions in concluding that the practice of using hidden email tracking software would be unethical for a variety of reasons. (See Alaska Bar Association Ethics Opinion No. 2016-01; New York State Bar Association Ethics Opinion 749; and Pennsylvania Bar Association Formal Opinion 2017-300.)

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