Ethics in Brief: Ethics in Settlement Negotiations
By David Majchrzak
In the television series Friends, Ross and Rachel famously have a different interpretation of the expression, “we were on a break.” One believed that meant that the relationship was permanently over, allowing the pursuit of other relationships. The other clearly did not. Though this type of misunderstanding may be comical in the context of television entertainment, lawyers and clients alike generally want their file materials to be accurate and clear.
But that is one of the problems inherent in the increasing use of artificial intelligence notetakers. For those not familiar with the tool, notetakers are software, sometimes embedded in videoconference platforms that provide summaries, often very quickly during or following a conversation. It can be tempting to use this because it represents a way to avoid taking notes during the conversation so the participant can be more present. But the process raises some risks that lawyers should consider.
First and foremost, the notetaker may not accurately capture what was communicated. Notetakers work similarly to other generative artificial intelligence tools. A predictive language model forms the foundation for creating the notes. So, what was said will differ from what the notes reflect. That could mean changes in connotation. And, in any event, there are ways we communicate that the artificial intelligence does not discern, such as sarcasm.
Consider the following example. A probate client tells their lawyer that they are so upset that they could kill the sibling they are litigating their parents’ estate with. Attempting to both acknowledge the client’s feelings and perhaps relieve the tension, the lawyer sarcastically comments that is a sensational plan. Though both the lawyer and client understood the comment was said in jest, the notetaker does not and instead prepares a note that the lawyer advised the client that killing their sibling is a great idea.
Predictive language models have caused similar issues when used to generate law and motion documents. Though a well-written and well-argued paper could result, the risk that the brief will be inaccurate or somehow lacking has been famously realized many times. Just like a predicted brief may be based on the tool not considering that an opinion was voiced in dissent, a notetaker may not realize that the speakers in a conversation were dispelling notions, rather than advocating for positions.
To the extent lawyers want to use notetakers nonetheless, or permit their clients to use them during communications with lawyers, there are a few things to keep in mind. First, the nature of the technology is usually to record the information, albeit sometimes temporarily, to predict what a fair summary is. This, in itself raises two issues for lawyers. To the extent that the law requires it, they need to obtain permission to make such a recording. Second, there is an obligation to protect confidentiality. In this context, that means understanding the technology and making sure that no person outside of the lawyer and client will have access to that information.
If the lawyer is able to move forward from there and chooses to use the notetaker, then the output needs to be handled in the same way as other documents. The notes become part of the client’s file and, accordingly, must be preserved. Because of the potential issues with accuracy discussed above, the analogue to this mandate is that lawyers should review them promptly for errors, whether for simply being wrong or for failing to pick up the nuances in the conversation that impact the meaning of what is said. Lawyers should note any issues they spot and may wish to consider whether they should send the other people from the conversation a follow up communication for clarification. The notes may, in fact, be helpful in pointing out an ambiguity that the lawyer did not realize existed. Therefore, it could prove helpful in identifying a misunderstanding to clear up.
To the extent that a lawyer has a question about whether a notetaker should be used, a client conversation can be a good tool for assisting with that decision. As with any approach to handling the client’s matter, the lawyer may discuss the proposed use of the notetaker and discuss both the benefits and the risks of doing so.
As with any tool, there are risks of using notetakers generally. The type and degree of risks may vary between tools. But that is not to suggest that lawyers simply abandon the idea of using such tools. Indeed, they can be helpful to make sure that all of the participants can focus on what is being said, rather than being a half step behind as they take notes. But the decision whether to use them should be one based on a consideration of the above factors and whether there is a tool that both fits the purpose and permits the lawyer to fulfill professional responsibilities.
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Every year, it seems to happen shortly after the holiday season concludes. After bonuses have been paid and firms have made their annual distributions to partners and shareholders, lawyers start to move to new firms. Whereas movement within the profession is common and becoming even more so, lawyers have responsibilities within that process.
As a preliminary matter, conflicts need to be cleared. A lawyer cannot move to a firm where ethically precluded from doing so. Yes, that lawyer’s client at the firm they are departing can effectively stand in the way of that lawyer transferring to a firm representing another party in the same matter by refusing to give informed written consent.
Another common point of contention can be compensation the departing lawyer will be owed for contingency matters that have not yet resolved. But the often the largest issue surrounds how and when to communicate the move to clients who that lawyer has served.
A number of ethics opinions make clear that the departure of a lawyer who has substantially worked on matter is a significant development that clients should be made aware of. The primary reasons for this are twofold. First, the client gets to control their choice of counsel, as well as what counsel they would like to disengage from. That is, the clients, not the departing lawyer and the law firm, get to decide who will continue to assist them.
Second, even if the client would have a clear choice, whether it be to remain at the current firm or to follow the departing lawyer, either scenario constitutes a situation that the client should be apprised of since there could be a meaningful change in how the matter is staffed or otherwise supported.
To be clear though, not every instance of a lawyer leaving a firm requires a communication to a client. The most common reason is where the departing lawyer has provided minimal services to the client. Others could be where the lawyer has worked under the supervision of a lead attorney or on a team of lawyers such that the departing lawyer’s presence in the matter was all but invisible to the client. In such situations, it is relatively common that the departing lawyer has contributed a relatively small percentage to the quantity and quality of work and may have had so little communications with the client that, if asked, the client would not even identify them as one of the lawyers working on the matter.
That said, the mere fact that the departing lawyer is more junior does not, by itself, mean that no disclosure to the client is appropriate. Nor does it matter whether the client would be likely to follow the lawyer to their new firm. If there is a question whether the departure would matter to the client, it should be disclosed.
The general consensus of ethics opinions is that, whereas not required, it is a great idea for such communications to come from both the firm and the departing lawyer. Pragmatic dialogues, however, may result in different determinations, particularly in instances where it is relatively predictable that a longtime institutional client will remain with the firm or that a client with a special relationship with the departing lawyer will almost certainly follow them. But where the decision is less obvious, a communication from both firm and lawyer may provide a more comfortable circumstance for the client to respond to. Regardless of who sends the communication, it should generally include the three options of remaining with the firm, going with the departing lawyer, or selecting a new counsel. That may vary in situations where either the firm or the departing lawyer is unable to continue the representation. Such may be the case if, for example, the firm has nobody left who is qualified to handle the matter. Or the departing lawyer may be unable to take on the matter due to limitations within their new firm.
In some circumstances, the departing lawyer, the law firm, or both may elect to send separate letters to the client. The fact that the client may receive a communication from another does not change the requirement that the client still be advised of the options for continued representation. And the departing lawyer should be sure to observe obligations that they owe to the firm.
Particularly partnership level lawyers may have fiduciary obligations to the firm, such as notice requirements before advising clients about their impending move. And most lawyers may not openly solicit firm clients to follow them beyond stating the clients have that option. Accordingly, the departing lawyer should be careful neither to urge a client to leave the firm nor to disparage the firm they are departing from. Instead, communications should be objective and present clear options so the client is choosing. The goal is to put the client’s interests first. And that may be best advanced by not putting them in an awkward middle of a messy separation.
Regardless of which choice the client makes, the lawyer and firm should cooperate to make the transition as seamless as possible. If the client is remaining at the firm, that means the departing lawyer should reasonably communicate information necessary to continue to advance the representation. In case where the client is following the departing lawyer, the firm should ensure that client papers and property, including any remaining trust account balances be timely forwarded as the client requests.
Though these situations create new opportunities, there are a variety of obligations that accompany them. Those must be addressed by both the firm and the departing lawyer.
