Deborah Speaks at Upcoming CLE Programs

If you're looking for a meaty CLE program, catch Deborah at one of the following events this fall:

September 8, 2017:  At the Akron Bar Association's program for experienced lawyers, "Your Roadmap to Successful Retirement", Deborah will speak on Emergency Planning:  Deal Now with the "What Ifs".

September 27, 2017:  Deborah will join a panel with Larry Harris of Harris ADR, Bethesda, Maryland and Harold Coleman of the American Arbitration Association, Los Angeles at “Breaking In:  Starting Your Arbitration or Mediation Practice”, a joint CLE sponsored by the ADR Section and the Diversity & Inclusion Committee of the Cleveland Metropolitan Bar Association.

October 27, 2017:  At the Cleveland Metropolitan Bar Association's 44th Annual Estate Planning Institute, Deborah will discuss ethical issues facing estate planning attorneys.

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New Guide for Protecting Client Confidences from US Border Searches

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The increased incidence of U.S. Customs and Border Protection (“CBP”) searches of electronic devices has raised concern about protecting client confidential information.   A new formal opinion issued in July 2017 by the New York City Bar provides valuable guidance for lawyers.  

In April 2017,  CBP reported that its searches of electronic devices in the first six months of its fiscal year were nearly twice as frequent as in the previous sixth month period.  Although the percentage of travelers whose devices are searched remains very small, the increase in searches prompted the ABA to ask the Department of Homeland Security to revise its directives on searching a lawyer’s electronic device at the border.  Until the Homeland Security directives change, CBP agents assert broad powers to search electronic devices with or without reasonable suspicion of wrongdoing,  to demand an owner’s password to access the device, and to retain the device for further scrutiny.

The New York City Bar opinion identifies three steps lawyers can use to protect client confidential information from review at the border.

  • First, minimize the client confidential information contained on your device, and carry as few devices as possible.  The New York City opinion suggests travelling with a blank “burner” telephone or computer, using software securely to delete information from your device, and disconnecting your device from cloud and web-based services where data is stored.  A lawyer who needs access to client confidential information during his travels must be ready to remove sensitive information and disconnect from the internet before returning to the U.S.
  • Second, if a CBP agent asks to search your device, object.  A lawyer should inform the agent that the device contains privileged information, request that such material not be searched or copied, and ask to speak to a supervisor.  Producing one’s bar card or business card may help
  •  Third, if your device is searched, notify affected clients.  A lawyer’s duty to communicate with her client dictates that a lawyer subjected to the search of her device inform affected clients of the border search, and the extent to which client confidential information may have been viewed or seized.   

Any lawyer who travels out of the U.S. should review the New York City Bar opinion   To paraphrase the old credit card commercial, “don’t leave home without reading it.” 

 

Coleman now on Silicon Valley Arbitration & Mediation Center Tech List

Deborah has been admitted to the Tech List of the Silicon Valley Arbitration & Mediation Center. 

The Center works with businesses, law firms and universities to promote the resolution of technology disputes and related complex business disputes through mediation or arbitration by knowledgeable and experienced neutrals.  Membership on the Tech List is by invitation only, after peer review, and is evaluated annually.  Members of the Center's Tech List have assisted parties throughout the U.S. and the world to negotiate practical business solutions or to secure the efficient and private adjudication of their claims. 

 

WIDR Directory a National Resource to Find Arbitrators and Mediators

The Women in Dispute Resolution (WIDR) committee of the American Bar Association's Dispute Resolution Section, of which Deborah is a member,  recently published its searchable directory.    The benefits of bringing diverse perspectives to decision-making have been widely recognized. e.g. D. Burt and L. Kaster, "Why Bringing Diversity to ADR is a Necessity."  The WIDR Directory can help you find a knowledgeable mediator or arbitrator for a variety of cases throughout the country and internationally.  

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Appointment to CMBA Professionalism Conciliation Panel

I’m honored to have been appointed to the Cleveland Metropolitan Bar’s new 9 member Professionalism Conciliation Panel, formed to help improve how lawyers in Cuyahoga County deal with each other and with the courts.  The Panel uses the Statement of Professionalism issued by the Supreme Court of Ohio in 1997 and the Lawyers' Creed of Professionalism adopted by the CMBA in 2013 as the guiding principles for the program.  

Sweating the Small Stuff

You've heard "Don't sweat the small stuff", but that's exactly what lawyers have to do daily.  A misplaced comma or missing "not" can make a sentence mean the opposite of what you intended.  One day makes the difference between filing a complaint that will be heard, and one that is time-barred.  In re Application of Jia, a recent Ohio disciplinary case, reminds lawyers and those who aspire to the bar that details matter.

Lingya Jia was a 2013 law school grad who sat for the 2014 Ohio bar exam.  On the second day, two others taking the exam saw her twice filling in answers after time was called.  Jia may only have completed two more answers than time permitted, and she passed the exam despite the 16.7% penalty that the bar examiners assessed.  The character and fitness board recognized that the stress of the bar exam might account for her denying that she broke the rules. Yet the Supreme Court of Ohio held that Jia's failure to honor the testing deadline demonstrated that she lacked the requisite character, fitness and moral qualifications to become a lawyer at the time of the bar exam.   Jia was disciplined by requiring her to wait two years before reapplying for bar admission.

While Jia will get a "do over" with respect to her bar application, a lawyer cannot count on that opportunity in the practice of law.  The Jia case reminds lawyers to manage their work to comply with deadlines and time constraints, and always to act in a way that merits the trust of clients, courts and others, and the privileges we have as members of the bar.

Deborah Coleman included on 2016 "Best Lawyers" and "Super Lawyers" lists

Once again, Deborah has been honored to be recognized for her work in dispute resolution by inclusion in the 22nd edition of The Best Lawyers in America and Super Lawyers® Magazine/Ohio & Kentucky 2016.  Deborah brings all that she learned in years of litigating complex commercial and other cases to her work as an arbitrator and mediator.

New York appellate court broadens common interest privilege.

To establish that communications between lawyers with different clients are protected by  “common interest privilege”, pending or reasonably anticipated litigation is not a required element, a New York appellate court has held.  Ambac Assur. Corp. v. Countrywide Home Loans, Inc. 2014 N.Y. Slip Op. 08510 (N. Y. App. Div. Dec. 4, 2014).   

The “common interest” or “community of interest” privilege may protect, from third party discovery, otherwise privileged information shared by counsel for separately represented parties whose clients share a common legal interest.  This “privilege” is best described as an exception to the rule that privilege is lost when attorney-client privileged information is disclosed to a stranger to the relationship.  The "community of interest privilege" is most often invoked to protect communications made under a joint defense agreement, where the participants’ common legal interest is successfully defending pending claims.  Some courts have recognized legal interests other than defense of pending or threatened litigation that can support a claim of common interest privilege.  E.g. In re Regents of the Univ. of California, 101 F.3d 1386, 1390-91 (Fed Cir. 1996), cert denied sub nom Genentech, Inc. v. Regents of the University of California, 520 U.S. 1193 (1997)( common-interest doctrine "is not limited to actions taken and advice obtained in the shadow of litigation" and applies to parties’ common interest in securing the broadest possible patent). On the other hand, it is clear that for the privilege to apply,  parties’ common interest must be legal, and not solely commercial.  Duplan v. Deering Milliken, 397 F. Supp. 1146, 1172 (D.S.C. 1975).

Notwithstanding the recent Ambac decision,  counsel must be cautious in disclosing privileged information in a transactional context.  In Ambac itself, the appellate court ruling reduced but did not relieve the burden of Countrywide and Bank of America to show that a common interest privilege protected pre-closing communications that they and their counsel made pursuant to the institutions’ merger agreement.  The case law on “common interest privilege” varies by jurisdiction and by context.   One must consider carefully whether the overlapping interests of parties to a transaction are in fact identical, legal and not solely commercial.  Disclosures of privileged information should be made only under authority of a confidentiality agreement, and the extent necessary to advance an identified and truly common legal  interest.