Legal Issues in Museum Administration 2024 – the go-to annual conference for museum professionals and counsel – is taking place in Cleveland, OH, on May 1-3, 2024, in person or via live webcast.
Legal Issues in Museum Administration 2024 provides focused guidance on the institutional opportunities and legal issues facing museums today.
This year’s program conference will focus on how museums can best manage risks and identify opportunities in a rapidly changing landscape. As always, we will provide timely updates on ever-present legal issues, from key litigation to assessing developments in copyright and trademark, tax and employment law.
Join our panels for an exploration of these evolving issues and more:
Opportunities and challenges with AI and other new technologies
The impacts of climate deterioration and sustainability initiatives
Changing donor expectations
Financing pitfalls and how to manage them: Credit lines, collateral complications, audits, oversight committees, and more!
The risks and benefits of ADR and litigation, incl. subpoenas; demand letters; complaints; and litigation hold best practices
Music in museums: Music to your ears or a legal liability?
This year’s program also features two amazing receptions: the Rock & Roll Hall of Fame on Wednesday evening, and the Cleveland Museum of Art on Thursday evening.
Join us for the signature annual event for museum counsel and professionals and enhance your work in the coming year with new resources, business connections, and invaluable insights.
Join us for our upcoming program, Legal Issues in Museum Administration 2024, either in person or via live webcast on May 1-3, 2024! To learn more about this program and to register for the in-person course or live webcast, click here.
Lawyer Betty is referred a new client, Kathy, who needs some estate planning work. While Kathy has a large estate, her primary goal is ensuring that her daughter, Vicki, and Vicki’s family are adequately provided for upon Kathy’s passing. In conversations with Kathy, Betty learns that Vicki and her partner, Matt, are expecting a child. Betty assures Kathy that the estate plan will provide for Vicki and, ultimately, for the unborn child of Vicki and Matt. Betty prepares her usual estate documents, providing that, in the event of Kathy’s passing, the assets held in trust will be distributed to Kathy’s descendants per stirpes. In the event Kathy has no descendants, the trust provides that the assets would be distributed to Kathy’s heirs-at-law. Kathy signs all of the estate documents and is happy knowing that she has arranged her affairs.
A few years later, Betty receives a call that Kathy has died. The caller, who is the successor trustee of Kathy’s trust, informs Betty that tragically, Vicki predeceased Kathy. Betty assures the trustee that Vicki’s and Matt’s child, Audrey, is, of course, a beneficiary of the trust.
Over the course of the administration, Betty discovers that Matt is a transgender male and is actually the parent who carried Audrey in gestation and gave birth to her. Vicki and Matt never married. Vicki is not listed as a parent on Audrey’s birth certificate, was not biologically related to Audrey, and never adopted Audrey. Kathy’s trust defines “descendants” according to a traditional definition that references biological relationship and adopted children only.
Knowing that Kathy intended to provide for Audrey, Betty nonetheless instructs the trustee to distribute the trust assets to a descendant trust for Audrey under the trust. Kathy’s sister, Judy, however, who disapproved of Vicki’s relationship with Matt, brings an action contesting the trust administration, alleging that she is Kathy’s sole heir. The court agrees.
The result here is not consistent with Kathy’s intent. Does Kathy bear fault for not sharing with Betty the details regarding Vicki and Matt’s relationship and Audrey’s birth? Absolutely. Stories of clients not sharing full information are common. In such situations, it is important to ask ourselves why the client omitted relevant or important information. Kathy did not appear to be reticent about discussing Vicki, Matt, and their baby, but was Kathy uncomfortable sharing with Betty the modern structure of Vicki’s family? Could Betty have asked better questions to elicit the information? Had Betty looked at her boilerplate language in the last 10 years to consider whether her definitions have kept up with societal changes?
We are in a period of evolution of the definition of “family.” As planners, we need to be thoughtful about understanding our implicit biases and creating an environment of open communication with our clients about their families. Many clients, like Kathy, will have experienced negative reactions from those close to them about nontraditional relationships. Being thoughtful about the psychological impact of what lesbian, gay, bisexual, transgender, and queer (LGBTQ) clients and their families experience in the world can make us better able to elicit information and encourage open communication.
The Planner’s Role
Much like internists and family doctors, estate planners treat individuals and families from birth through death and everything in between. Given our unique position, we can do more than just solve problems—we can try to foresee issues and prevent them from blossoming into larger problems. Working with families, we can be more effective when we view our job as treating the whole person.
Planners are in the unique position of working with clients on planning at a very personal level. We can become a more complete resource for our clients by learning about and being prepared to advise our clients on the specific legal and societal issues facing the LGBTQ community as a whole.
Many lesbian, gay, bisexual, and transgender persons are not comfortable enough to discuss their sexual orientation or gender identity with their healthcare providers.1 Six percent of transgender people report having a negative experience with an attorney because of being transgender.2 While there is no study solely focusing on estate planners, we can infer that there are probably many persons who do not feel comfortable discussing their sexual orientation, gender identity, or that of their family members, with us. If we are more inquisitive in a thoughtful manner and become creative about how we “ask” for information, we may receive more details that will help us craft betters plans for our clients. To position ourselves to address the shortfalls in the law, we need to become educated about the particular issues LGBTQ persons face in their daily lives, the terminology to use when advising LGBTQ individuals and families, and ideas for preventing, resolving, and planning in anticipation of problems.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
The Practical Lawyer
Get access to The Practical Lawyer and other ALI CLE journal archives here.
Planning Techniques for Large Estates 2024 – the premiere program for estate planning practitioners and advisors working in the high and ultra-high-net-worth space – is taking place on April 25, 2024 via webcast.
Planning Techniques for Large Estates 2024 specifically addresses the complex planning needs of clients with significant wealth, including those with family offices.
This year’s program has been refreshed to focus exclusively on strategies for creating and implementing estate plans that minimize transfer taxes and preserve wealth for future generations. Our chairs have assembled a stellar faculty and curated a selection of advanced topics not regularly covered at other estate planning programs.
Hear the latest trends and gain sophisticated approaches regarding:
Use and structure of directed trusts
Tax benefits of qualified small business stock (QSBS)
The Corporate Transparency Act for family offices and private trust companies
Choosing jurisdictions for dynasty trusts
What client advisors need to know about Chapter 14 and Sections 2036 and 2038
Gift tax return audit checklist for pre-sunset exemption gifting
Join us for an information-packed program specifically tailored to the interests of experienced professionals advising and handling large and complex estates.
Join us for our upcoming program, Planning Techniques for Large Estates 2024, via live webcast on April 25, 2024! To learn more about this program and to register for the full day or half-day webcast, click here.
Electronic communications envelop us.1 From mobile phones and smart watches to email, texts, instant messages, social media, and video conferencing, we’re spending more hours engaging in remote communications through electronic interfaces than meeting in person or consulting over the phone. In the “old” days, a lawyer would dictate a memo to a stenographer or onto a Dictaphone. Now, we simply dictate directly into a voice memo, text, or email, which automatically transcribes what we say with unusual accuracy. When we travel to foreign countries, we often rely on electronic communication devices to translate text and speech.
We have become so dependent on our smartphones that, if we inadvertently misplace them, we not only feel adrift, but we also often have no way of calling many of our loved ones, because our electronic devices have replaced the need to memorize phone numbers.
Electronic communications are wonderful, but they can also raise unexpected ethical issues. This article explores just a few of these issues through the law professor’s favorite tool—the hypothetical.
“REPLY ALL” REGRETS
The Hypothetical
Overworked young lawyer Justin is rushing to meet a deadline. Ground lease and construction documents and deal points are being circulated by email among the landlord, the developer-tenant, and the lender.
As the lender’s representative, Justin receives an email from the developer’s lawyer concerning a major deal point. Everyone is copied on the email, including the developer herself.
The landlord’s attorney responds to the developer’s lawyer by copying2 everyone with her comments. Justin then responds by copying everyone with his comments. Justin’s email, like the landlord’s attorney’s email, has included the developer herself because the developer was part of the original email group sent out by the developer’s lawyer.
Does Justin’s action raise any ethical concerns?
Applicable Rules
The American Bar Association (ABA) Model Rule 4.2 prevents a lawyer from directly communicating with an opposing party represented by counsel without the consent of opposing counsel. The Comments state that the Rule applies to “communications with any person represented by counsel concerning the matter to which the communication relates.” The Comments do not suggest that it makes any difference whether the communications occur in person, by phone, or via electronic media.
While the Comments state that a lawyer may “seek a court order” if counsel is uncertain whether such communication is permitted, this is of no assistance to transactional lawyers in the midst of negotiating and closing deals.
Where is one to look for guidance in connection with this hypothetical? Is the fact that the sending lawyer copied the client sufficient to constitute actual or implied consent for the recipient lawyers on the other side of the table to “reply all,” including to the sending lawyer’s client? The reported bar opinions on this subject break down into one of three approaches:3
A lawyer who copies a client on a group email is not giving consent for the opponent’s lawyer to “reply all” to the group that includes the sending lawyer’s client;
A lawyer who copies a client on a group email is giving consent for the opponent’s lawyer to “reply all” to the group that includes the sending lawyer’s client; and
A lawyer who copies a client on a group email may or may not be giving consent for the opponent’s lawyer to “reply all” to the group that includes the sending lawyer’s client—it simply depends on the circumstances.
The “Never Reply All” Analysis
Ethics opinions from New York City, Illinois, Kentucky, North Carolina, and South Carolina reject implied consent and hold that a lawyer cannot “reply all” merely because the sending lawyer includes her client on the group email.
The New York City Bar discerns no difference between emails and letters, holding that “sending simultaneous correspondence to a represented person and her lawyer without prior consent violates the no-contact rule unless otherwise authorized by law.”4 The opinion, based on the then-extant New York DR 7-104(A)(1) no-contact rule, notes that the purpose of the rule “is to prevent situations in which a represented party may be taken advantage of by adverse counsel.”5 The opinion observes that such a “risk is magnified with email communications” where a client could respond before her lawyer does; it does not consider whether the sending lawyer has an obligation to properly instruct the client about not responding.6
The South Carolina Bar opinion expressly states that a receiving lawyer may never “reply all” without the express consent of the sending lawyer, and the “mere fact that a lawyer copies his own client on an email does not, without more, constitute implied consent to a ‘reply to all’ responsive email.”7 Like the New York City Bar, the South Carolina Bar finds no reason to differentiate between mailed communications and emailed communications.
The Kentucky Bar opinion holds there was no implied consent merely because a lawyer copied a client on an email to opposing counsel.8 The opinion recommends either forwarding the email to the client or blind copying the client; however, the opinion does not consider the possibility (raised in the Virginia Bar’s opinion, discussed below) that a blind copied client may then “reply all.”
Similarly, the North Carolina Bar recognizes that while consent may sometimes be implied, merely copying a client on an email does not constitute implied consent.9 Like Kentucky, North Carolina recommends either forwarding the email trail to the client or blind copying the client but does not address the potential risks.
The Illinois opinion holds that, while it “does not contravene a rule of professional conduct for a lawyer to cc the client when corresponding with another lawyer by e-mail,” nonetheless, if “the mere copying of one’s own client on an e-mail were considered to be an invitation to opposing counsel to do the same, the purposes of Rule 4.2 could be thwarted.” 10 The Illinois opinion, referring to the 2009 New York City Bar analysis, notes the possibility of a client reading and responding to an email before her counsel does, undermining the role of “the represented person’s lawyer as spokesperson, intermediary, and buffer.” Neither the New York nor Illinois opinion consider whether the represented person’s lawyer has an obligation to instruct her client not to respond to such emails.
While the Illinois opinion, on the one hand, states that Rule 4.2 seems to prohibit an implicit consent when the client is copied on an email, the opinion also recognizes that, under certain, limited conditions, consent can be implied. The opinion suggests, however, that the best course of action is either: (i) for the sending lawyer to forward the email trail to the client; or (ii) for a receiving lawyer to ask the sending lawyer for permission to “reply all.”11 The opinion does not discuss why the duty rests on the receiving lawyer and not on the sending lawyer who copied her client.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
This article is part of a continuing series of interviews between Rajiv S. Khanna and leading practitioners across the country, designed to provide personal and professional insights into various areas of the law.
Rajiv S. Khanna: Good morning, Devika. Let’s begin with a brief introduction.
Devika Kewalramani: Good morning, and thank you, Rajiv, for this opportunity. I’m what you might call a “lawyer’s lawyer.” As an ethics lawyer at a midsize law firm in New York City, my practice is focused on serving as outside ethics counsel to law firm and lawyer clients who need advice on ethical or professional responsibility matters. As law is a highly regulated profession, law firms and lawyers often seek counsel on ethical troubles before they turn into disciplinary problems. Ethical issues for a firm or a lawyer could arise in their law practices or private lives and can stem from their professional or personal conduct involving clients, adversaries, opposing counsel, colleagues, the court system, regulators, or even the public. My ethics practice focuses on ethics in the legal profession, but its subject matter reach is well beyond the profession itself, for example, how use of technology impacts a lawyer’s ethical duties. As a partner and leader of Moses Singer’s Law Firm Industry practice, I have practiced in this somewhat unusual yet dynamic field for almost two decades and it has been an extremely interesting and rewarding experience.
What are the typical situations in which other law firms need an outside ethics advisor?
Generally, law firms either have their own in-house general counsel or they do not. Most larger US and international law firms have internal ethics counsel who may also act in a dual capacity as their general counsel. While each firm does things differently, there are situations where firms will look outside their firms to obtain independent and objective advice on highly sensitive or serious ethics or professional responsibility matters that need to be resolved effectively and expeditiously. Some firms and practitioners may establish ongoing relationships with outside ethics counsel with the expectation that they can literally “pick up the phone” to seek ethics advice on issues they are grappling with.
The kinds of scenarios where firms may involve outside ethics counsel can vary in scope, scale and depth—it may depend on the firm’s practice setting, fields of work, size, structure, or culture. Legal ethics is an expansive and evolving practice area that raises a multitude of nuanced issues surrounding a lawyer’s obligations, especially in today’s changing legal landscape. Common and recurring examples of ethical issues include competence, conflicts of interest, client confidentiality, attorney-client privilege, unauthorized practice of law, client communication, engagement letters, and escrow account management. Firms often seek advice on how to address mistakes, client disclosure obligations, structuring arrangements with other law firms or non-lawyers, lawyer departures, use of new forms of technology, licensing and admissions, reporting obligations, mergers and acquisitions, and much more. In fact, a firm’s or lawyer’s use of social media, cloud computing, cyber-security, and artificial intelligence can raise difficult and complex legal ethics issues that can easily keep lawyers up at night.
These are just some of the types of situations that can implicate ethical or professional responsibility concerns. Some scenarios could involve clients, opposing parties, adverse counsel, the courts or third parties. Other situations could involve firm lawyers or other non-legal employees. The ethics issues that come up are rarely alike or easy, and firms or lawyers who seek outside ethics advice do so to be able to comply with the rules of professional conduct that govern their professional conduct.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
