The Future of Inadvertent Disclosure: the Lingering Need to Revise Professional Conduct Rules

In recent years, the American Bar Association and state bars have deferred to lawmakers to create a legal solution to the problems associated with inadvertent disclosure. When Federal Rule of Evidence 502 was enacted in September 2008, lawmakers and commentators praised the new rule as a remedy to costly pre-production privilege review and as an answer to the uncertainties of waiver law. This article examines the numerous inadvertent disclosure issues that remain unanswered for litigators and transactional attorneys, and considers the new problems created by Federal Rule of Evidence 502. In 2009, transactional attorneys have no practical means to obtain the return of an inadvertently disclosed document; litigators have limited abilities to protect the content of a privileged document pending a waiver ruling; and all attorneys face uncertainty in addressing confidential information in metadata. Compounding these problems, Rule 502 incentivizes little or no pre-production privilege review (encouraging quick peek and clawback orders), even though there is a continuing risk of waiver under the rule. Further, determining professional conduct obligations to prevent and respond to inadvertent disclosure is often difficult given the various rules, ethics opinions, and cases that address the issue. The bar\u27s interests in confidentiality, compliance with professional conduct rules, and efficiency in an era of increasing inadvertent disclosures would be furthered by a professional conduct solution to these problems. This article proposes two professional conduct rule changes that complement Federal Rule of Evidence 502, but also stand alone to answer inadvertent disclosure issues for litigators and non-litigators

Attorney Negligence and Negligent Spoliation: The Need for New Tools to Prompt Attorney Competence in Preservation

Though case law typically suggests otherwise, attorney negligence is the primary cause of negligent spoliation of evidence. With the advent of ediscovery, it became markedly more difficult for attorneys to competently guide their clients through the steps necessary to preserve evidence¾particularly the categories of evidence most likely to help an opponent in a case. Unlike intentional spoliation instigated by an attorney, negligent spoliation is not the product of calculation. If an attorney were to undertake a cost-benefit analysis, negligent spoliation would not be a rational choice. The field of behavioral legal ethics provides insight into other reasons attorneys fail to develop competence in this area. Some attorneys may have a self-interested motive in taking a less than competent approach to preservation. For others, partisan bias may cause them to misjudge what evidence should be preserved or the amount of effort necessary to preserve it. Whatever the causes, the usual disincentives to attorney negligence are absent in this area. Malpractice liability, sanctions, and professional discipline are all unlikely in this setting. With an understanding of the current causes of negligent spoliation, this Article proposes new ways that rule-makers, opposing attorneys, and judges can apply pressure to encourage attorney competence in preservation. A Federal Rule of Civil Procedure requiring the initial disclosure of preservation efforts may prompt attorneys to act competently to preserve information at the beginning of the case. Even in the absence of such a rule, opposing attorneys and judges can communicate expectations to attorneys that may encourage competence and discourage negligent spoliation

Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor\u27s Touchstone

Joseph Collins was a successful business lawyer, with a sophisticated practice at Mayer Brown LLP. In January 2010, Collins was sentenced to seven years in prison for his role in a massive fraud that cost investors millions and sent his client Refco, Inc. into bankruptcy. At sentencing, the judge reportedly stated, “I think this is a case of excessive loyalty to his client.” Collins’ own testimony reflects a lawyer who believed he was zealously representing his client\u27s interests. But in reality, Collins’ conduct was not “loyal” to his client. He contributed to his client’s destruction. With the Collins example and others, I argue that business lawyers act as zealous advocates to their own clients’ peril. I explain that professional conduct rules are central to the problem. The advisor’s duties are relegated to a single rule that provides scant direction about how to advise. In the absence of direction, lawyers fill in the gaps with zealous advocacy. After examining the problems of the zealous advocacy mantra, I suggest that “fiduciary duty” would be a preferable touchstone for attorney-advisors. While it is true lawyers are already fiduciaries, fiduciary duty is not the focus for most lawyers. I argue that it should be. Using fiduciary duty as a framework, I propose professional conduct rules that would provide direction to business lawyers that is more consistent with their clients’ interests

Behavioral Legal Ethics Lessons for Corporate Counsel

This Article draws on legal ethics and behavioral science to explain what the corporate advisor should do, as well as what we have reason to believe he may do, when faced with a corporate client’s misguided—but potentially lucrative—scheme. Part I starts with the corporate lawyer’s consciously held conceptions and misconceptions about duty owed to her corporate client when company executives propose a plan that will create substantial liability for the company—when and if it is caught. This Part focuses on the legal ethics piece, without the behavioral science perspective, and discusses not only what the lawyer should know but what many falsely believe about their duty.Then, Part II turns to behavioral science and highlights some of the key factors that corporate attorneys are unconsciously influenced by as they try to decide how (or if) to address client conduct that may amount to a crime or fraud. This discussion moves from attorney self-interest, to obedience and conformity pressure, and concludes with partisan bias. While numerous other biases, heuristics, and situational factors can subtly impact any person’s decision making, these are some of the most salient influences for the corporate advisor. Both the consciously held beliefs and unrecognized influences can combine to lead a well-meaning corporate attorney astray. Research reveals that many will fail to advise against corporate misconduct, and some will even become enthusiastic participants in that misconduct.It is against this backdrop that Part III considers which interventions could lessen the risk of corporate attorneys providing poor advice to company agents on the brink of liability-creating conduct. Again, drawing on legal ethics and behavioral science, this discussion suggests the pressure points—from priming to education—that are most likely to result in positive changes in attorney advice. The Article concludes with thoughts on what corporate attorneys can learn from behavioral legal ethics in order to provide better advice to their corporate clients

Lawyers as Caregivers

This Article argues that clients—much like patients in a healthcare setting—need their lawyers to be caregivers. The Article opens by developing a definition of caregiving in medicine and law. It then turns to five key components of caregiving in medicine, explaining the substantial research that this care is crucial for patient satisfaction, trust, and healing. Medical educators have drawn on this research to better prepare medical professionals to be excellent caregivers. The Article then explores the evidence that an attorney’s clients have the same needs and suffer similar harm when attorneys fail to meet these needs. Next, the Article turns to the question of how law schools can better prepare students for the caregiving aspect of client representation. Finally, the Article concludes with thoughts on why an embrace of caregiving can separate good lawyers from great lawyers

Perinephric Pseudocyst in a Two-Month-Old Female Cat

Background: Perinephric pseudocyst is defined as an accumulation of fluid in fibrous sacs surrounding one or both kidneys, and may be located in the subcapsular or extracapsular region. Histologically, it is characterized by the absence of an epithelial lining to the cyst wall and the term pseudocyst is used. This condition have been reported sporadically in cats, and is associated with chronic kidney disease, mainly in older animals. The diagnosis is based on imaging tests and the prognosis is related to the severity of renal dysfunction. The aim of this report is to describe an unusual presentation of perinephric pseudocyst in a very young female cat.Case: A mixed-breed 2-month-old female cat was evaluated for presenting abdominal distension and anatomical deformities of the limbs. Renomegaly on the left side was noted during abdominal palpation. On presentation, the serum creatinine was 134 μmol/L. Urinalysis showed mild proteinuria, presence of squamous and transitional cells, and rare bacteria. The urine specific gravity was 1.044 and urine protein to creatinine ratio was 0.23. Abdominal ultrasonography revealed a large anechoic subcapsular cyst on the left kidney, in adittion to dilatation of renal pelvis and calyces. The excretory urography showed left renomegaly, and the nephrogram and pyelogram were not clearly observed in this kidney, indicating unilateral deficiency in renal filtration. The cat was referred to unilateral left nephrectomy but died shortly before surgery. At necropsy,marked left kidney enlargment was observed (6.5 x 4.5 x 1.5 cm), with a cystic aspect, occupying almost the entire abdominal cavity. The cystic content was translucent and was compressing the renal parenchyma, resulting in hydronephrosis. The capsule forming the cyst wall was composed of connective tissue, characterizing the perinephric pseudocyst.Discussion: Reports show cases of perinephric pseudocyst affecting mostly older animals, above eight years old. In one retrospective study of 26 cases, 73% were male and the mean age was eleven years, ranging from four to 18 years old. Another study of 13 cases showed a mean age of 16 years. In this report, unexpectedly, the patient was too young comparedto these other cases, but the clinical presentation was similiar. Being a young animal, in the absence of ureterolithiasis or history of trauma, it is suggested a congenital origin for the disease. Loss of renal function and azotemia may occur in about 90% of the cases by compression of the renal parenchyma by the pseudocyst or due to associated interstitial fibrosis. In this case, the serum creatinine concentration was above the reference value proposed for pediatric patients therefore, the cat may be considered azotemic. Beyond that, the excretory urography indicated no proper excretory function on the left kidney. It is proposed that the renal function was being compensated by the contralateral kidney. The clinical and imaging findings of this case are compatible with perinephric pseudocyst, which was confirmed by necropsy and histopathologicalexamination. This condition is not commonly reported in cats of pediatric age, althought it must be considered as a differencial diagnosis to cats presenting abdominal distension and renomegaly, even young ones. Imaging tests were important in this case, not only to direct the diagnosis, but also contributing in evaluating the renal excretory function.Keywords: perirenal pseudocyst, pararenal cyst, feline

Response to “Letter in response to ‘Students’ age and parental level of education influence COVID-19 vaccination hesitancy’”

[No abstract available

Students’ age and parental level of education influence COVID-19 vaccination hesitancy

Widespread vaccination in pursuit of herd immunity has been recognized as the most promising approach to ending the global pandemic of coronavirus disease 19 (COVID-19). The vaccination of children and adolescents has been extensively debated and the first COVID-19 vaccine is now approved in European countries for children aged > 12 years of age. Our study investigates vaccination hesitancy in a cohort of German secondary school students. We assessed 903 students between age 9 and 20 in the period between 17 May 2021 and 30 June 2021. 68.3% (n = 617) reported intention to undergo COVID-19 vaccination, while 7% (n = 62) did not want to receive the vaccine and 15% (n = 135) were not yet certain. Age and parental level of education influenced COVID-19 vaccine hesitancy. Children under the age of 16 as well as students whose parents had lower education levels showed significantly higher vaccine hesitancy. Conclusion: Identifying subsets with higher vaccination hesitancy is important for targeting public information campaigns in support of immunization.What is Known:• The willingness to receive COVID-19 vaccination among adults in Europe is about 70%, but data for children and adolescents is lacking.• The lack of immunization in younger cohorts represents a significant barrier to achieving herd immunity, and also leaves children and adolescents vulnerable to acute and long-term morbidity from natural COVID-19 infections.What is New:• Intention-to-vaccinate among children and adolescents is high (~ 70%); conversely, vaccination hesitancy is low.• Age and parental level of education influenced COVID-19 vaccine hesitancy among children and adolescents. © 2021, The Author(s)