OARC Update

WHAT YOU NEED TO KNOW

In this month’s What You Need to Know, we provide an update for the Licensed Legal Paraprofessional Program. We also profile an amendment to Model Rule 1.16, and a new ABA Formal Ethics Opinion.  

Licensed Legal Paraprofessional Program
 
The Licensed Legal Paraprofessional Program is holding its first exam April 30, 2024.  At this point, the application is expected to be available in early October, with the earliest submission date of November 1, 2023.  The Community College of Denver is starting the first LLP ethics class in October 2023 as well.  For updates, continue to visit the OARC home page and scroll to the icons below “Latest News” for links to new information.
 
Amendment to Model Rule 1.16

In August, the American Bar Association (ABA) adopted Resolution 100 which serves to amend Model Rule 1.16 and the Comments to the Rule.
 
As explained in the Background to the Resolution, “the impetus for the Resolution related to lawyers’ unwitting involvement in money laundering and terrorist financing or their failure to pay appropriate attention to ‘red flags’ relating to the proposed course of action by a client or prospective client.”  The amendments address a lawyer’s obligations to inquire further and assess both before and during a representation the risk that the client will use or is persisting in using the lawyer’s services to commit or further a crime or fraud.
 
The amendments to Comment 2 provide a list of factors to be considered when assessing the risk posed, including: (i) the identity of the client, such as whether the client is a natural person or an entity and, if an entity, the beneficial owners of that entity, (ii) the lawyer’s experience and familiarity with the client, (iii) the nature of the requested legal services, (iv) the relevant jurisdictions involved in the representation (for example, whether a jurisdiction is considered at high risk for money laundering or terrorist financing), and (v) the  identities of those depositing into or receiving funds from the lawyer’s client trust  account, or any other accounts in which client funds are held.
 
Comment 2 also includes a list of resources for guidance assessing risk, including:

• Financial Action Task Force Guidance for a Risk-Based Approach for Legal Professionals
• ABA Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing
• A Lawyer’s Guide to Detecting and Preventing Money Laundering (a collaborative publication of the International Bar Association, the American Bar Association and the Council of Bars and Law Societies of Europe)
• Organization for Economic Cooperation and Development (OECD) Due Diligence Guidance for Responsible Business Conduct
• U.S. Department of Treasury Specially Designated Nationals and Blocked Persons List 

The amendments to Model Rule 1.16 have not yet been adopted by any state.

ABA Ethics Opinion 508

In August 2023, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 508 The Ethics of Witness Preparation. The Opinion acknowledges that a lawyer’s competence and diligence obligations likely require witness preparation, which includes permissible conduct such as: reminding a witness they are under oath, emphasizing the importance of telling the truth, and suggesting appropriate attire and demeanor, among others. The Opinion explains, however, that witness preparation may violate the Rules if that preparation interferes with the integrity of the justice system or obstructs another party’s access to evidence. As the Opinion notes, advising a witness to give false testimony violates Model Rule 3.4(b)(the language of which is identical to Colorado’s Rule 3.4(b)).
 
Some types of witness coaching may also violate the Rules, including “programming a witness’s testimony, knowingly violating sequestration orders, and encouraging a witness to present fabricated testimony.” (P.5) The Opinion examines unethical conduct that attempts to manipulate “testimony-in-progress”, such as winking at the witness, kicking a deponent under the table, passing notes, and using suggestive objections. The Opinion also analyzes misconduct that occurs during witness testimony in remote proceedings, such as texting a witness, or surreptitiously communicating with the witness during the proceeding in an effort to manipulate the testimony. The Opinion concludes with a discussion of precautions to address such misconduct, including utilizing the court to put in place protocols for witness testimony to preemptively address potential unethical conduct.

ARE YOU READY? COURTS IMPLEMENT LIVE-STREAMING FOR CRIMINAL CASES

BE ON THE LOOKOUT

Recently, our office has fielded complaints involving a lawyer’s email being hacked, with the hacker then intercepting a wire transfer the lawyer was set to receive from opposing counsel. The hacker provided wire instructions to the transmitting lawyer. The transmitting lawyer unwittingly complied with the hacker’s wire instructions, believing opposing counsel sent the instructions.
 
Email security is the first line of defense against these scams. Consider more frequent password changes and/or implementing multifactor authentication for work emails and network access.  Next important steps are careful review of email communications by both the transmitting and receiving lawyers with an eye towards anything suspicious, and follow-up with opposing counsel should either lawyer identify red flags in the communication. In some cases, the safest route is to avoid email communication and utilize phone, video or in-person communication to discuss these types of transactions.
 
Our office addressed this topic in our September Newsletter last year: When Things Seem “Off”: Are You About to be Scammed?” As we note there--diligence means double- and maybe even triple-checking.

LEGAL ENTREPRENEURS FOR JUSTICE 2024

REMINDERS & UPCOMING CLEs