Ethics and Professionalism for Lawyers in 2022 – please, take it personally

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As so many of us work in a hybrid environment, ethical issues arise for lawyers in this day and age, when transparency and technology in the practice of law are intertwined with personal lives are at an all time high. This paper will discuss how to use social media and technology in the practice of law and in your personal life, how to communicate effectively with parties, counsel, the court, the media, and witnesses, when sanctions are (and are not) appropriate, tales from the wild wild west, and best ethics practices for both in house and outhouse counsel.

I. Using social media and technology in the practice of law

Independent research studies conducted in 2018 by the American Bar Association (“ABA”) and Attorney at Work found that over 75% of respondent law firms use social media and that lawyers primarily use LinkedIn, Facebook, and Twitter. Jan L. Jacobowitz, Negative Commentary – Negative Consequences: Legal Ethics, Social Media, and the Impact of Explosive Commentary, 11 ST. MARY’S J. LEGAL MAL. & ETHICS 312, 330-31 (2021) at n.131 (internal citations omitted).

Importantly, these statistics primarily address social media use for branding and marketing and do not distinguish personal posts from professional ones. Evidence indicates that lawyers often present a blend of their personal and professional lives on social media. Interestingly, lawyers also use social media to connect and assist one another, as exemplified by a Texas Lawyers Facebook page that in 2018 reported over one million interactions since its 2014 inception. Jacobowitz, supra note 134. As of 2018, 11% of Texas lawyers belong to the Facebook group, characterized as the “state’s largest voluntary bar association.” Id. at n.135. Judges also use social media for personal purposes, to campaign in states where they must be elected, and to comment on legal cases and political events. Id. at n. 36 (citing Elizabeth Thornburg, Twitter and the #So-CalledJudge, 71 SMU L. REV. 249, 256–261 (2018).

More than 72% of adult Americans use social media to connect with one another, engage with news content, share information, and entertain themselves. John Browning, It’s 3 A.M.: Do you know what your staff just posted? Social media ethics pitfalls for appellate lawyers and judges, 22 J. APP. PRAC. & PROCESS 49 at n.1. (2022) (internal citations omitted). Facebook remains the most popular platform, with over 2.3 billion users worldwide, but sites like Instagram, Snapchat, Twitter, YouTube, and LinkedIn are also hugely popular. Browning, supra note 2. The amount of content generated or shared on social media platforms is staggering: Twitter alone processes more than one billion tweets every forty-eight hours, and in 2020 there were 7,000 tweets about just TV or movies every minute. Id. at n.3.

Lawyers are held to a higher standard than individuals without a law license and must adhere to applicable professional conduct rules, whether acting in real-time or posting on the internet, and whether posting professional or personal content.

Moreover, members of the legal profession have an ongoing duty to remain competent, including the obligation to understand technology’s benefits and disadvantages. Jacobowitz, supra note 141 (internal citations omitted). As of this Article’s writing, nearly forty states have adopted some version of the ABA 2012 amendment to the notes that interpret the duty of competence to include understanding the benefits and disadvantages of technology. Jacobowitz, supra note 142. For example, in Florida, the note to the Florida Rule of Professional Conduct regarding competence adds the ABA language and emphasizes that if a lawyer does not understand technology, they may need to employ a non-lawyer, whilst complying with the rule on confidentiality. Jacobowitz, supra note 143. Florida has also mandated that lawyers take 3 hours of technology CLE as part of their three year mandatory CLE cycle. Jacobowitz, supra note 144. On February 26, 2019, the Texas Supreme Court amended Paragraph 8 of the comment to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct, which deals with competent and diligent legal representation. Under the amended comment, maintaining proficiency and competence in the practice of law includes knowing “the benefits and risks associated with relevant technology.” Elizabeth Rogers, Remote Lawyering: Overcoming Privacy and Confidentiality Challenges for Attorneys, 83 Tex. B.J. 864, 884 at note 5 (citing Comment 8 to the Texas Disciplinary Rules of Professional Conduct, Rule 1.01).

Defining the benefits and disadvantages of technology within the context of the practice of law encompasses a large number of topics that range from the complex issues that arise in cybersecurity, coding methods for e-discovery, and the use of artificial intelligence to the more fundamental use of email and e-filing protocols. As a subset of technology, the understanding of social media falls on the mid-range of the spectrum depending upon a lawyer’s practice area, marketing plan, and personal use of social media. Jacobowitz, supra at p. 133.

Herein, I discuss social media landmines for lawyers in the context of three categories: lawyers or their staff discussing current events, lawyers or their staff commenting on cases, and lawyers or their staff responding to a client’s negative review.

II. Social media land mines for lawyers and their staff
A. Lawyers or their staff discussing current events

CBS fired a Vice-President for writing “Republican gun toters killed in Las Vegas don’t deserve sympathy.”, WASHINGTON POST, October 4, 2017. What practitioners can learn from this is that statements may not be a violation of duty of loyalty, or duty of confidentiality, but still could be an issue if violating a company’s policy and/or standards.

B. Lawyers or their staff commenting on cases

In 2018’s Formal Opinion 480, entitled “Confidentiality Obligations for Lawyer Blogging and Other Public Commentary,” the Committee imposed a heightened duty of confidentiality for lawyers who communicate publicly on the internet. This holding cautions lawyers to avoid revealing information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.

For attorneys considering commenting about their cases in blogs, tweets, Facebook posts, listservs, podcasts, and of course more traditional avenues of communication, the ABA views confidentiality as so fundamental to the lawyer-client relationship that it will apply even to information that may be publicly available and easily obtained.

A recent opinion from the Texas Professional Ethics Committee explains that the Committee considered the question of whether a lawyer violates the Disciplinary Rules of Professional Conduct by making statements to the media about a case pending on appeal in which the lawyer criticizes the opponent’s litigation tactics and reiterates the misconduct alleged in the underlying lawsuit. ABA Opinion No. 683, issued in March 2019.

The Professional Ethics Committee opinion began its analysis with a discussion of Rule 3.07 of the Texas Disciplinary Rules of Professional Conduct, prohibiting lawyers’ extrajudicial statements “that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.” Having set out the Rule, the opinion then goes on to differentiate between statements that ordinarily violate it – such as statements referring to the character, credibility, or reputation of a party – and statements that usually would not violate the Rule, such as statements about the general nature of the claims or defenses, or information that is contained in a public record.

C. Lawyers or their staff responding to a client’s negative review

Legal industry analysts estimate that over 80% of consumers looking to hire an attorney will consult online lawyer reviews from a variety of websites as their first step in deciding which attorneys to contact for an initial consultation. Blake A. Klinkner; How and When Should Attorneys respond to negative online reviews?, 41 DEC. WYO. LAW. 54 (Dec. 2018) (citing to Kevin Kent, 83 Percent of Clients Now Look at Lawyer Reviews, REVIEW TRACKERS (Aug. 3, 2015), https://www.reviewtrackers.com/lawyer-reviews/.). By way of comparison, online reputation managers recommend that businesses respond to every negative review. In the restaurant and hospitality industries, the general recommendation is that responses to negative reviews should be public; the idea here is that if subsequent persons observe a business apologizing and/or explaining the reason for dissatisfaction, then those persons will be more inclined to move past negative reviews and give the business a chance. Although tempting to respond to online reviews that are negative, ethical rules require that attorneys generally refrain from such responses, and attorneys in varying jurisdictions have received reprimand for responding to negative online reviews with confidential information pertaining to the reviewer. It is therefore important for hospitality counsel to understand when ethical duties impact counsel’s ability to respond to online reviews.

When deciding whether to respond to a negative online review, and how to respond, attorneys should keep in mind their ethical duties to past, present and potential clients. Particularly important is the duty to maintain confidentiality, and a failure to properly maintain confidentiality in responding to negative online reviews is where attorneys have run into trouble. A review of disciplinary actions and ethics opinions from around the country shows that attorneys may violate this duty of confidentiality when they directly and publicly respond to negative online reviews by revealing details about the review and the reviewer’s situation in an attempt to rebut the criticism of the reviewer. Id. (citing Negative Review? What NOT to Do, ETHICAL GROUNDS (Oct. 30, 2016), https://vtbarcounsel.wordpress.com/2016/10/30/negative-review-what-not-to-do/).

Therefore, if an attorney decides to respond to a negative online review, the attorney should keep Rule 1.6 in mind and refrain from publishing information that could reveal confidential information. Id. Attorneys can still provide a public response while still complying with Rule 1.6 by posting a general reply, devoid of any confidential details, which simply invites the reviewer to contact the attorney to discuss the reviewer’s concerns. Such a response will be beneficial to the extent it encourages the reviewer to contact the attorney directly to address any concerns, and may also have the beneficial effect of showing prospective clients that the attorney is responsive to concerns and criticisms.

In May 2020, the Supreme Court of New Jersey’s Disciplinary Review Board suspended a lawyer for one year for numerous violations of legal ethics rules. Charles Toutant, New Jersey Lawyer Suspended for 2 Years After String of Disciplinary Scrapes, LAW.COM (Oct. 8, 2020). Among these violations was the attorney’s response to a negative online review posted by one of his former clients approximately a year after the representation concluded. Rather than responding directly to the review, the attorney located the Yelp page for the former client’s massage business and posted this comment:

“Well, [client] is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

Id.

The attorney apologized for the post, admitted to it, and state he was very upset by [her] Yelp rating of the attorney’s practice. The attorney claimed that his client’s rating was made more than a year and a half after the conclusion of his representation and that his disclosures, i.e. her arrests, were public information and therefore he did not violate attorney-client privilege and subsequently took the post down.

The Review Board found that the attorney violated his former client’s confidentiality and distinguished information publicly available from generally known information. Id. In other words, the fact that information may be publicly available (e.g., in court records) but not generally known by people in the relevant community does not waive the attorney’s duty of confidentiality. Id. The New Jersey Supreme Court noted that it was “particularly disturbed by respondent’s use of social media in the Carroll matter to disparage a former client more than a year after the termination of the representation.” Id.

III. Understanding virtual communications with parties, counsel, witnesses, and the court
A. Virtual communications with parties

Counsel must take heed in contacting adverse parties, even virtually. In a case involving plaintiffs’ collective action alleging nonpayment of wages by a diner and its owners contrary to the Fair Labor Standards Act and New York labor law, the diner and its owners sought sanctions against plaintiffs, claiming plaintiffs’ counsel violated New York State Rules of Professional Conduct (NYRPC) by calling 12 potential plaintiffs and sending them a “cover letter” along with the court-approved notice and consent forms. Seeking an extension of the opt-in period, the plaintiffs argued that such conduct was necessary due to the failure of defendants to provide complete contact information for their employees. Denying plaintiffs’ extension motion, the court granted sanctions in favor of the defendants and against plaintiffs, finding that plaintiffs’ counsel impermissibly took matters in their own hands, and violated the district’s ethical rules by soliciting potential plaintiffs by telephone contrary to NYRPC 7.3(a)(1). NYRPC 7.3(a)(1) tracks the ABA’s Model Rule 7.3. Both are interpreted as prohibiting in-person and telephone solicitation of potential class members. NEW YORK LAW JOURNAL, p. 17, col. 2; Vol. 265; No. 87 (citing Shibetti v. Z Restaurant, & Lounge Inc., Cause No. 18-CV-856 (May 7, 2021).

B. Virtual communications with counsel

Over the last two years, I have seen an uptick in the lack of civility in opposing counsel. One of my clients agreed, stating, without any prompt from me, that “Ever since the pandemic, people have been uncivil. [People are] [c]limbing the corporate ladder to get what they want.”

The word “civility” has become popular in ethics opinions across the country. The Model Rules of Professional Conduct require that attorneys be fair to opposing counsel, refrain from engaging in prejudicial conduct toward the administration of justice, and maintain the decorum of the tribunal. Gary Gassman, Defining Civility as an Attorney, 55 TORT & INS. L.J. 557 at note 3 (Fall 2020). In addition, some states and local bar associations have adopted their own standards for civility that are more specific than the Model Rules. Gassman, supra, at note 4. For example, California has adopted Attorney Guidelines of Civility and Professionalism, which is a set of voluntary guidelines and goals regarding best practices of civility in the legal profession. Gassman, supra, at note 5. The District of Columbia Bar has adopted Voluntary Standards for Civility for attorneys to use as a guide for acting with civility in their legal practice. New York also has adopted Standards of Civility as well. Gassman, supra, at note 6.

State civility codes include, but are not limited to, recognizing the importance of keeping commitments and of seeking agreement and accommodation with regard to scheduling and extensions; being respectful and acting in a courteous, cordial, and civil manner; being prompt, punctual, and prepared; maintaining honesty and personal integrity; communicating with opposing counsel; and avoiding actions taken merely to delay or harass.

Unfortunately, some lawyers seem to ignore these suggestions or forget they apply, especially in virtual communications such as e-mail. Attorneys are not immune from sanctions for sending uncivil emails just because his or her opponent “started it.” In Florida, a series of back-and-forth personal attacks in emails between opposing counsel resulted in disciplinary proceedings and sanctions for both attorneys. In the most egregious example of incivility in those cases, one attorney used his knowledge that the other attorney’s son had a birth defect to insult his father in email exchanges that initially addressed simple scheduling issues. The attorney responded by calling his adversary inappropriate names, among other things. The Florida Bar filed complaints against both attorneys for violating two Rules Regulating the Florida Bar: Rule 3-4.3 (commission of any act that is unlawful or contrary to honesty and justice) and Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic). Ultimately, the offending attorneys were sanctioned for attacking each other personally and unprofessionally.

Disparaging emails need not be personal in nature to be uncivil, however: unfounded inflammatory comments criticizing opposing counsel’s work and motivations are also uncivil and can subject attorneys to discipline, even if those comments relate to disputed issues in litigation. In one example, after taking over the representation of a formerly pro se mother in a paternity action in Indiana, an attorney was disciplined for accusing opposing counsel of fraud, deceit, and trickery in filing the lawsuit in a certain venue and refusing to transfer to another.

C. Virtual communications with witnesses and third parties

Attorneys beware: conduct with third parties who are not involved in your case can still elicit an opportunity for ethical discipline. In Texas, an attorney hired a third party to conduct a “push poll” phone survey to determine any biases his client (a steel pipe manufacturer) may face in court. Witnesses, court personnel and others were contacted in poll. The court determined the conduct was abusive and highly prejudicial. “Attorney Rightly Sanctioned For Push Poll, Texas High Court Told”, LAW360 (2018).

It’s also helpful for practitioners to understand when sanctions are unwarranted. In Connecticut, a plaintiff sued defendants for breach of contract and related claims. An arbitration award was entered in plaintiff’s favor. After entry of judgment, the parties engaged in contentious post-judgment discovery. Plaintiff alleged that defendant Evan Taback was attempting to make himself judgment proof by transferring all his assets to his wife, who was not a party. In January 2020, Ms. Taback received a “friend” request on her Facebook account from the plaintiff’s attorney, David Shufrin. The request did not identify Shufrin as the plaintiff’s attorney or explain the reason for the request. Ms. Taback did not accept the friend request. Shufrin later explained that he was hoping to get information from Ms. Taback, a nonparty, regarding defendants’ alleged transfer of assets to her. Defendants moved for sanctions and to have Shufrin disqualified as plaintiff’s counsel. The court found first that Shufrin did not violate Rule 4.2 of the Rules of Professional Conduct because he did not contact a party known to be represented by counsel. First, Ms. Tabak was not a party to the proceedings. Second, Shufrin had repeatedly been advised by defendants’ counsel that they did not represent Ms. Tabak and that she was not represented. The record was insufficient to establish that Shufrin knew otherwise. Nonetheless, by failing to disclose in his friend request (1) his status as an attorney, (2) the identity of the party he represented, and (3) the reason for his request, Shufrin failed to comply with Rules 4.1(1), 4.3, and 8.4(3), which require an attorney, in representing a client, not to not make a false statement of material fact to a third person (Rule 4.1(1)), not to state or imply to an unrepresented party that the attorney is disinterested (Rule 4.3), and not to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(3)). Nonetheless, because Ms. Taback did not accept Shufrin’s friend request and no harm resulted from Shufrin’s conduct, the court found that sanctions and disqualification were unnecessary. The court denied the plaintiff’s cross-motion for sanctions against defendants’ counsel. Rosenay v. Taback, Cause No. CV15-6019447 (Conn. Sup. Ct. 2020).

Expert witnesses should be considered as well when weighing ethical concerns. An expert with whom I am currently working asked me during deposition prep, “Who is my client? It’s the insurance company, right?” Although the insurance company was paying his bills, I explained that in an insurance defense setting in Texas, the client is the insured—especially when, at my firm, we are prohibited from executing engagement agreements with experts since our firm is not paying the expert fees. This same expert also suggested that if he was talking too much during his Zoom deposition, I “should just flip [my] hair.” I explained that Zoom decorum should be treated as if we were in person – and that for the same reason I couldn’t step on his toe under a conference room table at an in person deposition, I should also not flip my hair on camera. Plus, it would ruin my blow out.

In that same case, which involves construction issues, the plaintiff has retained an electrical expert who is also the electrician performing the repairs at its property. When I questioned him in his deposition as to who his client was, he did not know the answer. He similarly did not know the answer to my question when I asked him under oath if he believed that it was a conflict of interest for him to serve as an expert and the contractor bidding the job to perform repairs for alleged defects made the basis of our lawsuit.

I can’t resist a shout out to Dr. Barth, as I insist on at least one during my presentations for HospitalityLawyer.com. I retained Dr. Barth in a hospitality case on behalf of my hotel client. Dr. Barth was retained to opine on the hotel’s standard of care surrounding a burglary of a room. Simultaneously, Dr. Barth was retained against my law firm’s restaurant client to opine on the restaurant’s standard of care for liquor service. Both lawsuits were pending at the same time. Conflict or no conflict? You decide!

D. Understanding virtual communications with the court

“Late-Filing Lawyer’s Excuse Undone by Vacation Photos on Instagram.” Court imposed $10,000 sanction because attorney filed a motion along with a request for an extension of time, claiming she had a made an unexpected trip to deal with a family emergency when she really was going on vacation. New York Law Journal (4.27.18)

IV. When sanctions are (and are not) appropriate

Never in my career have sanctions been filed against me personally until a recent case I handled at the trial court level on behalf of an international hotel, where Dr. Barth actually served as my expert. In my case, the plaintiffs filed eight separate motions wherein they requested sanctions. Towards the end of our matter, it seemed that every motion they filed requested sanctions. Probably the most egregious motion was when they requested sanctions awarded against a co-defendant when counsel for co-defendant cancelled one of the plaintiffs’ depositions when her family member suddenly died the morning of the deposition. One of the motions for sanctions was granted against my client when the associate judge found that my client had failed to supplement a verification for a set of interrogatories. Although we disagreed with the ruling, I recommended to my firm that my firm pay the sanctions fee, and not my client, as I did not believe it was my client’s fault. When my client filed a counter motion for sanctions against the plaintiffs for producing confidential documents in violation of the parties’ agreed confidentiality order, and prevailed, I was surprised when the plaintiffs’ counsel insisted that their own clients pay the sanctions, rather than the attorneys. Counsel should beware that it will not always be up to counsel to determine who pays sanctions.

In Kimberly Pletcher et al. v. Giant Eagle, case number 2:20-cv-00754, the U.S. District Court for the Western District of Pennsylvania, the court ruled that the plaintiffs’ counsel could not front the payment of his clients’ $10,000.00 sanction for delaying discovery, which was contradictory to an ethics opinion from the Pennsylvania Bar Association. James Boyle, Judge Won’t Budge On Lawyer Fronting Client’s Sanctions, March 7, 2022.

Senior U.S. District Judge Nora Barry Fischer ordered for two plaintiffs, Debbie Vidovich and Ben Zytnick to pay the sanctions, rather than their attorney. Judge Fischer even delayed her order to give the plaintiffs’ attorney time to request an ethics opinion on whether it was acceptable for counsel to pay the sanctions out of his contingency fee, with the understanding he would be repaid if the plaintiffs won or reached settlement.

Plaintiffs’ counsel filed an advisory opinion from the Pennsylvania Bar Association with the court, which argued that Rule 1.8(e) of the rules of professional conduct prohibit an attorney from providing financial assistance to a client for living expenses. The opinion says, however, that an attorney can advance “court costs and litigation expenses” with repayment contingent on the outcome of the matter, and the attorney can pay court costs on behalf of an indigent client.

“Payment of the sanctions is directly related to the litigation, unlike living expenses,” the bar association said. Judge Fischer upheld her initial order in spite of the advisory opinion, ruling that the non-binding advisory opinion did not carry enough authority to make her reconsider her order that the two plaintiffs pay the sanctions themselves. The ethics opinion is flawed, she wrote, because it relied on an exception to the rule for indigent clients, and plaintiffs were not indigent. Judge Fischer cited evidence including that plaintiffs purchased a retirement home for $625,000, spend about $400 a week on groceries, have taken expensive vacations with friends and receive $1,539 in monthly Social Security benefits.

Judge Fischer advised that “Permitting counsel to pay the award on their behalf would undermine the purpose of the sanctions.”

V. Tales from the wild wild west

I would be remiss and this paper and presentation would not be as entertaining (although perhaps less embarrassing for my fellow Texans) if I did not include some ethics blurbs about Texas. Names of the accused have been removed to protect their privacy.

In early May 2020, lawyers at a Dallas-based international law firm learned that the firm’s document services manager had made disturbing comments on Facebook related to his anger at retail businesses requiring shoppers to wear face masks during the pandemic. Referring to a local grocery store’s policy, he posted that any business insisting that he wear a mask “will get told to kiss my Corona ass and will lose my business forever.” The manager also discussed his handgun proficiency, stating “Do I have to show the lame security guard outside of a ghetto store my CV19 test results? I will show him my Glock 21 shooting range results.” He completed his rant with, “They have reached the limit. I have more power than they do … they just don’t know it yet.”

The firm responded by terminating the employee and released a statement acknowledging that the post was a violation of the firm’s values.

A former Houston district judge was arrested and charged with aggravated assault with a deadly weapon. She was in an argument with her estranged husband and went to his girlfriend’s home, where he was living. The judge allegedly argued with the woman and fired a shotgun that missed her, but hit her house. At the time of her arrest, she had a federal wire fraud case pending against her because she had used campaign funds for personal expenses. Since then the judge pleaded guilty to wire fraud and was sentenced to 36 days in jail and three years of probation.

A Justice of the Peace in San Augustine County was sanctioned after he got in an argument with a man who claimed the Justice of the Peace was driving on a residential street too fast. The Justice of the Peace pulled out his handgun and brandished it at the man.

Van Zandt County Justice of the Peace was sanctioned after she said that trucks driving to a solar farm near her home were being driven by Mexicans who were “illegal” and did not have driver’s licenses. She opposed the construction of the solar farm and was reporting the truck drivers to State Troopers when she made similar comments multiple times.

Comal County Court-at-Law judge was sanctioned for a tirade against a criminal-defense attorney whose client changed his mind about entering a plea agreement and wanted his case on a jury docket. The criminal defendant was allowed withdraw of the plea but the judge threatened to put the man in jail for wasting the court’s time. Initially, the judge denied doing this but later, blamed his behavior on low blood sugar from diabetes.

VI. Best practices for both in house and outhouse counsel

Outhouse counsel: That’s fun to say! This is my synonym for outside counsel. It’s better than doghouse. While I initially split this section into two parts—one for in house counsel and one for outhouse—I combined them, given that the only substantive Rule in the Model Rules of Professional Conduct that directly addresses in-house counsel is Rule 1.10, Imputed Disqualification. Rule 1.10 reminds all lawyers that the definition of “Firm” in Rule 1.0 includes “the legal department of a corporation or other organization.” As such, when one in-house lawyer is disqualified, the disqualification can be imputed to the entire in-house department. For example, although Rule 1.11 allows a confidentiality wall to segregate an attorney who previously “personally and substantially” worked on a matter for an adverse government agency. If the lawyer that previously “personally and substantially” worked on a matter came from another in-house job or private practice, however, then a confidentiality wall is ineffective and the entire in-house department may be disqualified.


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Author

Kendall Kelly Hayden, Member

Kendall focuses her practice in commercial litigation, with an emphasis in transportation and hospitality law, as well as retail, environmental and contamination issues, employment matters, medical malpractice defense, professional liability defense, product liability defense, and construction defect matters. She handles both individual and class action litigation, and has appeared before much of the federal bench in and around Dallas. Kendall began the practice of law handling exclusively insurance coverage matters, which provided her with a unique perspective to understand the nuances of commercial litigation. Kendall fosters relationships with colleagues across Cozen O’Connor’s many practice areas so that she is positioned to help clients identify appropriate counsel for any legal issue they might face. She serves as relationship partner for clients with a wide range of legal needs.

Kendall’s experience in the hospitality industry reflects multiple representative clients, including international golf management companies, hotels, and restaurants, boutique bed and breakfasts, party suppliers, spas, and country clubs. She has served as a guest lecturer on the topic of Legal Issues in the Hospitality Industry at the University of Houston’s Conrad N. Hilton College and regularly speaks at the annual Hospitality Law Conference.

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