  
|
Return to Contents
|
|
|
|
|
|
|
|
|
|
|
|
T
he TPJ wants to hear from you! The Publications Committee will poll members concerning their thoughts on some of the “hot topics” of the day. During each quarter, the Committee will draft a question, which will be distributed to membership, through the Directors. Each question will direct you as to where to send your response. We will print the responses in the following TPJ, reserving the right to edit for space considerations. While we prefer to print a name and city with each response, we understand that some of you may prefer that we not print your name. We will honor this request, so long as the response is not contrary to the objectives of the Paralegal Division or the Publications Committee. We hope that this column provides a way for PD members to express themselves, constructively, on issues that impact our profession, our communities, and our country.
Question of the Quarter:
Deputy Assistant Secretary of Defense Charles “Cully” Stimson publicly criticized law firms for their pro bono representation of suspected terrorist detainees and encouraged corporate CEOs to force those firms to choose between “representing terrorists or representing reputable firms (companies).” Do lawyers have an ethical obligation to represent these individuals, if they do so, as part of pro bono service?
RESPONSE 1: It seems to me that to represent anyone who is trying to destroy our nation would be committing treason. Are we not bound to protect our nation?
—Monty L. Mayes, Arlington
RESPONSE 2: While I’d like to think that firms use the best of judgment as to what pro bono cases they take, would Deputy Assistant Secretary of Defense Charles “Cully” Stimson publicly criticize a criminal defense law firm for representing a suspected mass murder? Does profit to
|
|
implemented many Homeland Security measures to prevent that, we must still carefully guard the premise of “innocent until proven guilty”. The people who enforce our laws, the people who investigate possible subversives, the people who protect us are diligent, careful, and dedicated to their tasks. However, mistakes still happen. Evidence still sometimes points to the wrong person. As citizens, we cannot cede the protections of our Constitution.
If the question is, as part of pro bono service, I still think the answer is “yes” under appropriate pro bono guidelines. If a citizen can qualify to receive pro bono service, then it should be provided.
—Jane Middleton, Sherman
RESPONSE 5: I think all attorneys have an obligation to do pro bono work. I think the attorney should be able to choose the citizen or citizen group they want to perform work for. However, the key word is “citizen.” I do not agree that illegal aliens, including terrorists, have the same rights as U.S. citizens. Their representation at terrorist hearings should be solely up to them and the expense should be theirs. As a taxpayer I resent having to provide legal services to illegal individuals when our own citizens can not obtain needed legal services.
—Lisa Sprinkle, CPS
RESPONSE 6: My initial thought is that instead of pro bono U.S lawyers representing suspected terrorists, the suspects should be represented by lawyers from their country of origin at that country’s expense. If the charges are highly questionable and the suspects are American citizens, that is a different story.
—Donna R. Kay
RESPONSE 7: Giving aid and comfort to the enemy during the time of war is treason, anyway you look at it. Just because
|
|
|
|
the firm determine the worthiness of the case?
—Linda S. Harrell, Greenville
RESPONSE 3: In my opinion, Mr. Stimson is as full of crap as a Christmas goose. The detainee business has become too politicized. The military lawyers appointed as counsel for the detainees put their careers on the line if, and as they should as a true lawyer, put up an aggressive defense for their clients. The law firms should not be castigated for providing pro bono service. His remarks have the same sound and smell as DOJ’s “Thompson Memorandum” where DOJ lawyers threatened to go after companies, i.e., KPMG, if they continued to pay for employees attorney fees as called for in their contracts.
—Pete Siegel, San Antonio
RESPONSE 4: The question is “Do lawyers have an ethical obligation to represent these individuals (suspected terrorist detainees), if they do so, as part of pro bono service?”
I think the answer has to be – absolutely, yes.
If the question is, do lawyers have an ethical obligation to represent those individuals, the answer must be “absolutely”. In this time in our country, where we are so fearful of terrorist attacks and have
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
you are a rich and/or bored lawyer is no excuse. Terrorists do not deserve a lawyer, or a trial, they deserve and merit either a bullet or a hangman’s noose.
—Bob Harrison
RESPONSE 8: Simply, NO pro bono service for alleged terrorists or illegals. They have their own embassys that can represent them for any criminal charge in our country. We should not be using pro bono services for alleged terrorists against our government, but instead, utilize our pro bono for legal citizens that need our services, including supporting our border agents that are being charged for civil actions while securing our borders against illegals crossing the borders.
—Kathy Langley
RESPONSE 9: Have you ever had a friend accused of a heinous crime, found guilty, and imprisoned for life only to find out it was a case of mistaken identity? I did. My friend spent 7 years in prison accused of rape and murder, and just coincidentally, the actual perpetrator confessed to the crimes after my friend had been in jail for 7 long years. The key word in the op. ed. Question is “suspected”. Thank God that in our country, you are presumed to be innocent until you are proven guilty, and (although we probably all know the equality of representation is sometimes lacking), you are entitled to counsel at no cost, if you can’t afford it. Of course, we should provide those who can’t afford it representation. If it were your friend, would you want to make certain they were afforded the protection our constitution offers? Yes, 9-1-1 was horrendous; yes, I have an extreme dislike for those who would harm us to prove their dedication to some madman. Does that mean I would support the violation of the Constitution of the United States of America? Not on MY life.
—Nan Gibson, Houston
RESPONSE 10: It would be my opinion that representation of terrorists would be approached much the same as the defense of a criminal accused of a heinous crime. Certain rights probably need to be guarded for any individual in any dealings with the Court system. However, I could not
|
support extensive defense motions trying to prove them innocent.
Therefore, I would not think a firm should need to designate much time or resources to any one case of representation. Chances are any such representation would have to be pro bono as the terrorists are not likely to have funds for representation or if they could get them, would not choose to do so in this present-day twisted way of thinking. In short, I would think no more than 10% of a firm’s pro bono work would want to be focused on this type representation and use the remainder of offered services for more important representation.
Thank you for the opportunity to voice an opinion.
—Beth Barnett
RESPONSE 11: That question is exactly like asking a criminal defense attorney “how can you defend a murderer?”
I’m not going to cite chapter and verse (or Article and Case) but last I looked, the Bill of Rights of the United States entitled people to due process, which courts have (correctly in my opinion) interpreted to mean representation by counsel, and the courts have authority to designate attorneys to defend an accused, pro bono. I don’t know that the attorney has a choice not to represent someone once appointed—even when said attorney has no expertise in criminal law. Along the same line, one is still considered innocent until proven guilty in a court of law (except where the IRS is concerned). Merely being accused of murder or terrorism does not make one guilty of those crimes.
To paraphrase a famous quotation concerning the Holocaust, “first they came for the Gypsies, but I said nothing because I was not a Gypsy. Then they came for the Jews, but I said nothing because I wasn’t a Jew. Then they came for me.” We must vigorously defend our freedoms against those who would take them away in the name of “security.” Someone must guard the Guardian, and it is the obligation, duty, and indeed the honor, of the members of the Bar to stand guard, and make the government prove their case, no matter the accusation, in order to (attempt to) secure liberty for us all. The firms which
|
voluntarily provide such pro bono services are to be respected for their actions, not criticized.
—Laurie A. Kmieciak, Addison
RESPONSE 12: Yes. A “suspected terrorist detainee” is not (necessarily) a terrorist. And our assumption from the git-go that he is guilty and does not merit representation — even before any kind of investigation is conducted — reflects poorly on our morals, to say nothing of our ethical obligation.
More telling are the questions: How have we arrived at the point where we are debating the question of whether we should represent people who may be innocent? And why have we allowed our country to come to this point?
—Linda West, ACP, Dallas RESPONSE 13: No, they aren’t obligated to represent terrorists.
—Donna Chance
RESPONSE 14: “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. “For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”
H. L. Mencken
Defense lawyers very seldom like the people they defend. But as the quote from H.L. Mencken says, if we don’t stop the oppression at the beginning, it can’t be stopped at all. The State Bar encourages pro bono representation. There is nothing that says the lawyer should believe in the person’s innocence. In fact, most defense lawyers don’t even want to know if the client is guilty or innocent. They provide the best defense possible to protect human rights from being violated by the criminal justice system. For it is not the terrorist whom we wish to protect, but our own personal liberties and freedoms.
—Brenda K. Denny, CP, Amarillo
RESPONSE 15: In response to the SBOT/PD Question of the Quarter, I believe that regardless of the crimes the terrorist detainees are suspected of having committed, they are still innocent until
|
|
|
|
|
|
|
|
|
|
|
proven guilty and should be no less entitled to legal representation than any other suspect. Our system of justice will only be weakened by discriminatory determinations as to who receives pro bono representation and who doesn’t based on the unpopularity/shock value of the allegations. If we allow ourselves to become no better than the terrorists and the injustice their objectives represent, terrorism wins. —Natalie G. Taylor, San Antonio
RESPONSE 16: I find it outrageous that a DOD representative felt compelled to pub-
|
licly chastise any law firm who wished to represent a suspected terrorist detainee (unclear whether detainee is a U.S. citizen or not) by calling upon company CEOs to pressure their attorneys. The decision to represent or not represent an individual is not the prerogative or the business of the DOD. It is a law firm or independent attorney’s decision to provide pro bono assistance or charge a potential client, accordingly.
Aside from the constitutional issues this raises, this “encouragement” that CEOs are expected to pursue by reining in
|
their attorneys or law firms is tantamount to interfering with a client / attorney privilege.
Following this rationale by Deputy Assistant Secretary of Defense, Charles ‘Cully’ Stimson, it suggests anytime that a governmental agency does not like a particular legal practice by the SEC, ICC, etc., all the agency needs to do is publicly announce its disdain for such an offense and then have a CEO pressure a company’s law firm.
—Harry E. Watson
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ethical Considerations in Electronic Discovery
|
which data can reside by qualified information systems personnel and computer
forensics specialists.
The tools for managing discovery have evolved as well, from simply Bates numbering documents and preparing an index, to the use of web-based databases of electronic evidence. The courts have also kept pace with the progress in technology. District and county clerks are adding digital files and documents to allow for remote access via the Internet. More recently, state and federal clerks have pro-
|
|
|
|
Laurie Borski, Professional Ethics Chair
C
onducting discovery in litigation once required no more than a copier, some boxes and a handcart. Suddenly, it seems the discovery process has now evolved from digital documents to electronic discovery, or e-discovery as it is more commonly known. The definition of “discovery materials” is no longer limited to tangible items but now includes emails, spreadsheets, word processing documents and other data files. Data is various forms, and the quantity of production is measured not in reams or boxes but in megabytes or even terabytes. Identifying responsive documents once may have entailed a trip to the client’s office to
|
|
|
|
|
|
gressed from paper and fax filings to permissive or even mandatory electronic
filings.
In 2006, there were over 175 federal court opinions related to e-dis-covery issues. Over half of these opinions were devoted to discovery requests and spoliation/sanctions issues, with the remainder addressing the form of production,
|
|
|
|
search through boxes. Now that identification requires a search of all locations in
|
|
|
|
|
preservation/litigation holds, privilege/waiver issues and costs.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
While the technology has changed, the ethics of e-discovery are not far removed from that of traditional discovery. The duties owed to the client, the parties to the case and the court are unchanged. The major changes are simply in the technology employed and the quantity of data involved. Paralegals practicing in this area need to learn about e-discovery and the preservation and management of electronic evidence. Becoming a computer expert is not necessary, but you should realize that specialized knowledge could be required. Do not hesitate to call upon vendors and knowledgeable information systems personnel who can serve as valuable resources. Yo u may need to share the information learned on electronic discovery with your supervising attorney(s) or clients as well.
The Federal Rules of Civil Procedure were changed on December 1, 2006 to address electronic discovery, that is, the discovery of ESI or electronically stored information. Many states have already implemented similar changes or have proposed changes to address e-discovery issues.
In a nutshell, the federal rules changes:
(1) include ESI as a category under materials to be disclosed and in the description of materials included as business records;
(2) provide notice to the court early in the case that electronic discovery is contemplated; (3) compel discussion and agreement by the parties in the discovery conference as to how claims of privilege will be handled and whether these agreements will be memorialized in an order; and (4) the form or forms in which any ESI will be produced; (5) provide for limitations on production of ESI from sources not reasonably accessible because of undue burden or cost; (6) include a default form of production and specify that a party need not produce ESI more than one form; and (7) limit sanctions for failing to provide ESI lost as a result of routine, good-faith operation of an electronic information system.
One of a paralegal’s premiere ethical considerations in e-discovery is to know and honestly represent your limitations. Electronic data is fragile; merely powering on a computer can change the data on a
|
hard drive. And time is of the essence in recovering electronic data before deleted files are overwritten. A paralegal tasked with collecting electronic evidence should know that improperly harvesting data could result in irrevocable damage. This is not the time to employ “drag and drop” technology. Forensically sound copies of computer storage devices must be made using special hardware devices that are read only so as not to update or modify a file’s date and time stamps. Exact bit-for-bit copies replicate hard drives and include deleted files, unallocated space and file stack rather than just making a copy of active files. 2
Many production requests seek files such as emails, word processing documents, spreadsheets, HTML and .PDF files in their “native format” which allows for the examination of metadata. Depending on the file, this metadata can provide creation, edit and copy history, identify the owner and user of the computer(s) on which the file was created or edited and reveal the identity of persons who were blind copied on emails. 3
Additionally, each digital file contains a unique “digital fingerprint” called a MD5 hash. If the case involves questions of stolen data or file origin, such as in intellectual property litigation, an analysis of this MD5 hash can be performed. 2 Examination of the MD5 hash will also verify a complete capture of data. 3
Data can reside in many locations and is not limited to just desktop and laptop computer hard drives and server backup tapes. Given a proper production request and a demonstrable need for the information, data may have to be collected from sources external to the normal hardware and software of a computer system such as PDAs, cell phones, external media (flash drives, SD cards, CDs, DVDs), voicemail and e-fax systems, swap files, online storage and web sites. Id.
Given the universe of ESI that is potentially available and responsive, a paralegal should keep in mind the requirements for fairness in adjudicatory proceedings set out in the Texas Disciplinary Rules of Professional Conduct and the law regarding obtaining evidence set out in Texas statutes:
|
“A lawyer shall not unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.” 4
The right of a party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions, including Texas, makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. 5
Arm yourself with knowledge so you will be prepared to enter the brave new world of e-discovery!
|
|
|
|
1 Case Law Update and E-Discovery News, Kroll Ontrack, Jan. 2007, Vol. 7, Issue 1. (www.krol-lontrack.com)
2 Defensive Exit Interviews and Records Retention, Jason Park; Law Journal Newsletters, Employment Law Strategist, July 2006.
3 Tame the Digital Tiger, Lauren Rogers, Litigation Solution, Incorporated, October 2006. (www.lsilegal.com)
4 See Rule 3.04, Fairness in Adjudicatory Proceedings, Tex. Disciplinary R. Prof. Conduct.
5 See Texas Penal Code, §§ 37.09(a)(1), 37.10(a)(3).
The author wishes to thank Lisa Kish of Kroll Ontrack for sharing her presentation on Electronic Discovery: Tips, Tactics and Technology.
Laurie Borski is the Chair of the Professional Ethics Committee of the Paralegal Division. She has served on the PD Annual Meeting and Election Committees and is a past president of the Alamo Area Paralegal Association in San Antonio.
© Laurie Borski, 2007.
|
|
|
|
|
|
|
|
|
Texas Paralegal Journal © Copyright 2007 by the Paralegal Division, State Bar of Texas.
Top of Page
|
|
|
