By Karen Rubin, Thompson Hine
Introduction: Karen E. Rubin, Counsel in the Cleveland office of Thompson Hine LLP, has been co-editing the firm’s ethics blog, The Law for Lawyers Today, since it began in 2014. The blog publishes extensively about legal ethics and professional responsibility and was most recently named one of the ABA Journal’s top 100 law blogs of 2016. Ms. Rubin is a member of the Ohio State Bar Association’s Ethics Committee and teaches legal ethics at the Cleveland-Marshall College of Law. As part of a continuing series of interviews focused on top bloggers on the LexBlog Network, MCC spoke with Ms. Rubin about the focus and relevancy of her blog to an in-house readership, touching on ethical pitfalls and traps the in-house community can safeguard against.
MCC: What inspired you to create your blog, The Law for Lawyers Today, and what did you hope to achieve?
Rubin: I and my co-editors, Frank DeSantis and Tom Feher, wanted to take the experience we had developed in counseling lawyers and law firms and make it more broadly available to the legal community. That of course includes the range of legal ethics issues that in-house lawyers have to deal with. We felt that in that sector in particular, law departments of all sizes could benefit from having timely and fresh content tailored to them that would inform them in tackling some of the issues that they face regularly. That was one of the primary spurs for creating The Law for Lawyers Today.
MCC: Certainly your niche here is top of mind to our readers and there are not a lot of substantive and up to date resources specific to in-house lawyers about ethics and professional responsibilities. Can you talk about that?
Rubin: In-house lawyers are hungry for this kind of information. Our readership numbers tell us that blogs like ours are very useful to in-house counsel when they come up against an ethics issue, whether it’s multi-jurisdiction practice, or attorney-client privilege, or whatever it may be. A law department might not have access to the current awareness resources we do in the ethics area; we can curate timely ethics information for those readers.
MCC: How can general counsel, chief legal officers and other in-house legal professionals ensure that they and their law department colleagues stay on the right side of the ethical line?
Rubin: There are three things to consider there. One, they need to have the issue of legal ethics on their radar. Two, they have to acquaint themselves with the rules of the road that are relevant to them. And three, they have to understand when they need to reach out for help in areas where there are ambiguities and they need assistance in navigating the complexities of ethical compliance.
MCC: What are some of the key aspects of ethics and professional responsibility that have the most impact on general counsel, chief legal officers or other in-house lawyers? Where are the traps?
Rubin: Several areas raise potential issues for in-house counsel. One is licensure and unauthorized practice. It is common for an in-house lawyer to be licensed only in a state other than where he or she is working. In most states, some version of Model Rule 5.5 creates a safe harbor for that lawyer to work for the corporate employer. But more and more states are coupling that harbor with particular in-house registration requirements, including fees. Being out of compliance can lead to embarrassment and worse. And falling out of compliance with the requirements of the licensing state – for instance, by failing to get enough continuing education credits – can disqualify the lawyer from working in the state where the employer is, because then they effectively aren’t licensed anywhere. It’s easy for in-house lawyers to inadvertently run afoul of these various regulations, and doing so has consequences.
Another issue in representing a corporate employer is maintaining the attorney-client privilege, both in general and in connection with conducting investigations. And of course the company’s cybersecurity is an enormous issue for corporate counsel, and there are some legal ethics issues there – especially competence.
MCC: There’s been a lot written about the evolving professional responsibilities of outside counsel regarding knowledge of technology. What about in-house lawyers? How much do they need to know about technology or navigating social media to meet their professional responsibilities?
Rubin: All the rules of professional conduct apply to in-house counsel just as they do to outside counsel. The ABA and a developing majority of the states have incorporated into these lawyer conduct rules a duty of technological competence, which requires lawyers to be aware of the benefits and risks of technology.
Cybersecurity is a primary concern and that also touches on technological competence. Last year a survey found that a company’s legal department is among those most likely to actually open a phishing e-mail. The answer seems to be training. Law departments that give their lawyers formal cybersecurity training find that they are less likely to engage in conduct that could make the organization vulnerable.
Another area that calls on in-house lawyers to be on their technology game is in counseling their corporate employer on social media policies.
Sometimes competence is best expressed in knowing when you need to turn to the expertise of others. In these high-risk areas, sometimes your duty is to involve other people who have technical expertise to advise you on how to best protect the company’s interest.
MCC: How can in-house legal professionals navigate social media safely? Specifically, can you talk about endorsements on LinkedIn?
Rubin: LinkedIn has been an undeniable success story in terms of its penetration into the lawyer market. An astounding proportion of lawyers have profiles on LinkedIn and it has proven to be a very valuable platform for networking, publishing and credentialing. But lawyers need to know how to benefit from LinkedIn while also adhering to lawyer conduct rules.
In recent years there has been a wave of state bar ethics opinions on social media, and many focus on platforms like LinkedIn in the context of lawyer advertising. Under a recent Ohio opinion, for instance, if a client endorses you on LinkedIn for having a particular skill, you have an ethics duty to monitor that and to make sure that the endorsement doesn’t misrepresent you. The Ohio rule prohibits marketing statements that can’t be substantiated. So if someone endorses you on LinkedIn for being “the world’s greatest tax attorney,” you would arguably have an ethical duty to be aware of that and not accept that endorsement, since it could be viewed as “unsubstantiated.”
Another possibly problematic issue with LinkedIn is if you accept endorsements and then always endorse people back. The majority of states’ ethics rules say that you can’t accept anything of value for recommending someone as a lawyer and also disapprove of any kind of reciprocal referral agreements. So a quid pro quo endorsement arrangement might be seen as improper. LinkedIn endorsements can be beneficial in building your professional brand and credentialing you, but you have to watch out for those potential issues.
MCC: And that last trap, how can in-house lawyers avoid privilege problems? Where are the pitfalls?
Rubin: Privilege issues for in-house counsel come from many different directions. In-house counsel has an opportunity to steer the client in the right direction with training for the organization’s employees and managers. It would be beneficial for them to understand the rudiments of privilege and how it functions. Some prevention at the front end can ameliorate or avert problems on the back end when an organization is facing litigation and communications are subject to discovery requests and scrutiny. The organization wants to be in a good position and that starts in advance of any litigation, with educating those communicators.
Managers might know that their communications with the company’s lawyers are privileged, but they might not understand the ins and outs of protecting that privilege. For instance, they might not use a privilege marking on a protected communication, or they might have a standard practice of marking everything that comes out of their department with a privilege stamp. Neither of those approaches is helpful when those communications are sought in litigation.
Another good talking point for managers is the limit on privilege. It’s often not well-understood that a court will protect communications among and between the organization’s lawyers and managers that relate to legal advice, but business advice is not similarly shielded by the attorney-client privilege.
Another limit on privilege that managers might not know about is that you can’t make all your communications privileged by simply funneling them through the legal department. By itself, copying the general counsel on a communication is not going to endow it with privilege or protect it from future discovery.
Another issue for in-house counsel is attorney-client privilege abroad. Our own courts vary considerably on how they treat the concept of privilege; foreign law on attorney-client privilege likewise varies in multiple ways. In this global economy where so many businesses must deal with foreign law, it’s helpful if in-house counsel understands the outline of privilege doctrine in the major jurisdictions where the company has contacts and needs to operate.