ABA Journal

I suppose it says something about the current state of the profession that a lawyer would actually consider potential loss of document review work a significant “damage.”

The large firms will probably have to take a page from illicit drug cartels, and start making the document review attorneys report for work naked to ensure that they are not sneaking these valuable documents out on flash drives.  Given the small size of these portable drives (sometimes a/k/a “thumb drives”), cavity searchs might also be in order.

By B. McLeod on 2010 03 17, 8:26 am CDT

If they wanted to fire the temp, all they had to do was say he was using law firm computers for personal work. He was, and he admitted it.

But no. Someone had to turn it into a huge drama because, “Maybe it was nothing - but, but, but MAYBE I just foiled a huge corporate espionage PLOT. Just in case that’s true, we should ruin some guy’s livlihood so everyone knows I’m important and still have things to talk about even though I never leave this building…”

I hope they lose the case and someone learns a little lesson about not being a tool. I doubt it will happen - I knew too many people like this in law school and the condition seemed chronice- but it would be nice to see just one get called out on this behavior.

By Liz on 2010 03 17, 9:07 am CDT

This is why employment attorneys invariably counsel management to respond to inquiries from prospective new employers of former employees with confirmation that X worked at the firm from _____ to ______ in the position of a _______—and to provide nothing further.  Special Counsel could have been better handled by simply requesting a different temp, without explanation.

By AndytheLawyer on 2010 03 17, 10:51 am CDT

But, Andy -

It is this fear (and the tort law which backs it up) which allows incompetents and the evil minded, when dismissed because of their actions, to go on to the next job.  Embezzling from the new employer, or loafing more, or whatnot. 

In my state, a medical technician with a drug addiction went through this revolving door several times.  Since she injected herself with the narcotics before refilling them with water, with the result that the same, now unsterile, needles were used on patients, she left quite a string of hepatitis victims behind her.  Eventually she went off to prison, but this could have been stopped way earlier.

The problem is that on the one hand many lack the courage of their convictions, and on the other hand many just jump to conclusions.  Some minimal process can resolve this, but that takes effort.

For all we know from the blurb on this, Special Counsel might have been told it was unauthorized use of the computer.

By Walt Fricke on 2010 03 17, 1:45 pm CDT

Walt—no doubt embezzlers and medical care tamperers shouldn’t be enabled by silence to move on to another job.  But in those cases, the solution is to press criminal charges.

By AndytheLawyer on 2010 03 17, 2:01 pm CDT

If it was just a resume… housed on firm property no les… why not just turn it over?

By Bakes, Esq on 2010 03 17, 2:35 pm CDT

Well, technically the firm lawyer was trying to confiscate the temp’s personal property by taking the flash drive. I probably wouldn’t have bothered to complain - it’s not like a flash drive is expensive - but then again, retyping a resume is a pain. Really, I don’t think we can judge someone who has just been accused of being a corporate spy for not wanting to cooperate too much. I know I wouldn’t let a client hand over personal property like that.

You know, the more I think about this, the funnier this story becomes. I mean, really? You work on some stupid transaction at Wilmer Hale, and your unskilled, unmotivated temp has located and recognized the ONE document that could blow this case WIDE open, and now you’ve caught him IN THE ACT? He’s downloading it with big plans to sell it to the highest corporate bidder? Like there aren’t 30 other copies of the same email thread floating around in the three other companies in every doc review?

Does that really sound credible? I’d like to know: Did the attorney spring over the desk and hit “cancel,” like Harrison Ford in Whatever Pointless Action Movie Based on a Tom Clancy Novel? Or shake the computer and throw it on the floor to get at the “files,” like Ben Stiller in Zoolander?

By Liz on 2010 03 17, 3:18 pm CDT

My bad - it was Owen Wilson who threw the computer in Zoolander.

By Liz on 2010 03 17, 3:24 pm CDT

Client confidences are sacred.  Ever attorney who has passed the ethics exam must know this.

I don’t think the Wilmer attorneys over-reacted to the sight of a temp putting a flash drive into a firm computer.  Any sane firm computer use and documents security policy would forbid this out of virus and trojan concerns if nothing else.  Many firms issue specifically designated,  formatted and password protected drives for that reason.  Even on common sense grounds, the temp had no reason to squawk.  The law firm was doing its job.  The temp should het over himself.  Sheesh.

As for the communications between the temp agency and the client, that is another matter, but I suspect the firm and teh agency will be found to have acted within thier prerogative, especially since temps are “at whim” employees.

By Been There on 2010 03 17, 4:51 pm CDT

^^^^ yup

For purposes of confidentiality and corporate/network security flash drives are always problematic.  Article says he was updating his resume so likely he had a back up somewhere else…. he really wasn’t typing from scratch.  Even if he were ty[ing it from scratch… why was he doing so right then and there?  On company time… using company hardware?

Not hard to see a) why he’s a temp; b) why he wasn’t hired out after that.

By Bakes, Esq on 2010 03 17, 6:27 pm CDT

Ha - if a board full of lawyers think cooperating fully with some investigation which may or may not have merit, then no wonder criminal lawyers can never convince clients to shut it :)

The firm is going to bluster, and then they’re going to settle, and it’s all because of some self important moron associate, who had to turn it into a Big Deal, and who was probably already laid off last year and now working as a temp. This is the best story, and thread, of the month.

By liz on 2010 03 17, 6:36 pm CDT

To Liz:  You wrote “Ha - if a board full of lawyers think cooperating fully with some investigation which may or may not have merit, then no wonder criminal lawyers can never convince clients to shut it :)”

Respectfully, I think you miss the entire point.  A lawyer must vigorously advocate for his or her *client* and preserve that *client’s* confidences.  No argument there.  In this scenario, the temp was working for the firm, and the firm was representing a client whose data was potentially a few clicks away from getting onto an unauthorized flash drive.  The temp has the same duty to the client as the firm, and an additional duty of loyalty and cooperation as an employee.  In other words, the temp was advocating for no one but himself here, but his duties all ran to the client *first*, then to the employer second, and only therafter to himself.  The second the temp put himself before the client, he was in violation of the Rules of Professional Conduct.  It is always and foremost about the rights of client first (wthin the bound of the law); it is not about the attorney.  Any attorney who doesn’t get that should consider another profession.

By Been There on 2010 03 17, 7:12 pm CDT

Is a “temporary lawyer” one notch up from a “temporary, honorary lawyer”?

By B. McLeod on 2010 03 17, 7:16 pm CDT

The point is: There is absolutely no connection between advocating for and protecting client confidences, and trashing someone to an employment agency. Trashing someone’s livlihood is unecessary drama, and reveals an inability to handle the client’s business in a professional manner. 

A board full of lawyers really should be able to draw that line, but the personalities in this profession seem very prone to creating big, dramatic, and completely ineffectual scenes over irrelevant issues.

The firm could have fired the temp and protected the client’s vital emails without confiscating personal property, or harming the livlihood of some random temp. That they chose instead to involve themselves in a stupid lawsuit over an associate’s ego trip shows extremely poor judgment, and an inability to serve the client.

By liz on 2010 03 18, 8:19 am CDT

Perhaps “Special Counsel” is like many other legal employers, and decided Zhang must be disloyal, or he wouldn’t have been working on his resume.  Maybe he can still go on to find work with an agency called, “Really Special Counsel,” or “Really, Really Special Counsel.”

By B. McLeod on 2010 03 18, 9:11 am CDT

Ha! You’re right - the understated name reveals the agency to be the real underachievers in this story. Surely somewhere there’s an agency with the courage to name itself, “Truly Exceptional Counsel?”

By liz on 2010 03 18, 10:00 am CDT

“but the personalities in this profession seem very prone to creating big, dramatic, and completely ineffectual scenes over irrelevant issues.”

A very ironic statement if ever there was.  Aside from which, there is nothing from the facts to support the notion that the law firm “trashed” the temp.  He was caught saving a document to a flash drive and refused to turn the device over for inspection… showing his resume instead.  Apparently, he expected them to simply take his word for it in spite of his suspicious behavior.  That behavior gave rise to a reasonable inference of impropriety… which the firm properly reported to the temp’s employer.  All of a sudden were being subjected to “big, dramatic, and completely ineffectual scenes over irrelevant issues” on behalf of the temp.

By Bakes, Esq on 2010 03 18, 8:11 pm CDT

You know, I thought for once you’d lose a point on a fact you missed - that the flash drive was personal property - and NOT respond with an insult. Guess not.

Look, there’s no reasonable inference for the company - at least not unless they already had a policy against personal use of computers (not all do) or the use of flash drives. The temp let them look at the flash drive, but wouldn’t let them keep it. That’s reasonable. Then the firm had to go and give him damages.

They could have left it alone, but they didn’t. Just like you. You lost a point and then you threw in an insult to escalate it. That’s the personality I’m talking about. I may debate endlessly - I wouldn’t be a lawyer if I didn’t enjoy it - but at least I can stick to a point and I don’t use personal insults as a red herring.

By Liz on 2010 03 18, 9:05 pm CDT

Just to be clear: in your last post, Bakes, did not state the facts correctly. The temp let the associate and the partner VIEW the contents of the flash drive. He just didn’t allow them to KEEP his property.

By Liz on 2010 03 18, 9:09 pm CDT

Liz if you think that me pointing out the irony of your statement is a “personal insult” then maybe it’s time to change your behavior?  *shrug*

Since you want to nitpick… Zhang never showed the associate the content of the flash drive.  Not that it matters… having once worked as a temp out of college years ago, you’re only supposed to be working on client matters while on the client’s time.  There’s a presumption that anything produced or worked on in during work hours is the property of the client.  I also know for fact that many IT departments having an absolute prohibition on the use of portable flash drives for reasons already mentioned.  I’t fair to presume that a law firm, of all entities, would have a similar policy… but I don’t know that for fact. 

Assuming they do, it’s fair for them to ask that it be turned over for inspection.  You can feel free to disagree and we’ll leave it at that.  Me responding to you any further would only result in more baseless chatter about me personally insulting you.

By Bakes, Esq on 2010 03 18, 9:39 pm CDT

Bakes…you are the associate with the big ego, are you not?

By Bored on 2010 03 19, 8:49 am CDT

Consequences , Everyone. No big secret.

By largeweasel on 2010 03 19, 10:10 am CDT

Solution - law firms keep empty thumbdrives to give to felonious temps that try to make off with firm documents on their own thumb drives.

By AndytheLawyer on 2010 03 19, 11:49 am CDT

Why have open USB ports on review computers?  All you need is keyboard, monitor and mouse…  Most smart IT don’t ban drives, they just lock down computers for people who shouldn’t be having unprotected disk…

By WTKJD on 2010 03 19, 12:59 pm CDT

To AndytheLawyer “Solution - law firms keep empty thumbdrives to give to felonious temps that try to make off with firm documents on their own thumb drives. “

You have demonstrated (perhaps inadvertantly) that reality sometimes corresponds to common sense. 

Many law firms have policies that only firm approved and firm provided thumb drives, external hard drives, etc. can be connected to firm computers.  Those drives are password protected and with strong security features, so that the data is not wide open in case the drive is stolen or lost.  In addition, all usage of that drive can be tracked.  When insider info or IP is involved, the cost of such protocols is trivial compared to the liability and cost of a data breach. 

Frankly, some of the comments here about the associate’s reaction seem to arise from a lack of experience in high tech and sensitive financial environments.

By Been There on 2010 03 19, 1:02 pm CDT

To WTKJD “Why have open USB ports on review computers?  “

The same reason you give temps building keys.  At some point you have to assume that admitted attorneys are mature and responsible adults with an inkling of professional responsibility and an understanding of what “client confidences” means.  Oh wait .  .  .  .

By Been There on 2010 03 19, 1:08 pm CDT

Bored #21 wrote:

“Bakes…you are the associate with the big ego, are you not? “

Sure… I’ll play the part, if you assume the role of the idiot temp with no case.

By Bakes, Esq on 2010 03 19, 1:45 pm CDT

I need to express my protest to the blanket trashing of temporary attorneys by some commentators here.  Some highly compensated “superlawyers” are certainly incompetent, and rescued daily by their admin assistants, associates, paralegals (God Bless every one) and, yes, even temp attormeys.  Others assume too much about their privilege, and some of those are serving jail time for their miscalculations as we speak.

Conversely, some of the most talented dedicated attorneys I have worked with have been, are now, or may well become temporary attorneys. 

It is best to strive to make your words tender and sweet.  You never know when you may have to eat them.

By Been There on 2010 03 19, 2:24 pm CDT

I think the term must be a misnomer, except for those jurisdictions that allow a “temporary” practice status between the administration and scoring of the bar exam.  Once regularly licensed and sworn, a lawyer remains a lawyer until death or disbarment.

By B. McLeod on 2010 03 19, 2:41 pm CDT

I agree that the term “Temporary Attorney” is imprecise.  Some firms and agencies use the terms “Contract Attorney” or “Project Attorney” to mean the same thing. 

Given the vicissitudes of practice in today’s economic times (even for government attorneys), we are pretty much all “temporary” attorneys, anyway.  <g>

By Been There on 2010 03 19, 2:56 pm CDT

“I need to express my protest to the blanket trashing of temporary attorneys by some commentators here.”

Hmmnn… seems like you’re tilting at windmills there fella.  I don’t see anyone “blanketly trashing” temporary attorneys.

By Bakes, Esq on 2010 03 19, 3:10 pm CDT

Maybe he meant “common taters,” and was trying to post that particular comment in the praty patch?

By B. McLeod on 2010 03 19, 3:53 pm CDT

Two separate issues: first, doing personal work on the office computer; second (the focus of this story) a lawyer allegedly being defamed to third parties as a thief.

The second is the more important issue, it happens frequently that people are fired (sometimes for good cause) and the employer falsely defames them (not describing what they actually did but exaggerating/ying). The employee then (rightfully) sues. How is this any different in principle? Indeed, if I recall correctly (from memory, could be wrong) slander affecting professional reputation is one of the few species of slander for which damages may be awarded absent proof of specific damages (at least, in New York) because it is so serious.

The first issue wouldn’t be worth mentioning if some posters hadn’t gone on about it. It sounds like cause for dismissal IF it was a violation of policy (if there were a no-flash policy, no personal work, whatever). However, even if it was, (allegedly) falsely claiming the lawyer was a thief is not excused. But in the past I’ve worked on document reviews where one was explicitly permitted to use computers for personal reasons like checking e-mail or surfing the web so long as it was not in billable time, was explicitly permitted to print for personal reasons (charged 10 or 25 cents per page, but still permitted), etc. So one cannot validly conclude without more information that the lawyer’s behaviour was wrong (and even if it was wrong, he still could have been defamed by falsely claiming he stole review data, a far worse matter).

By df on 2010 03 19, 4:03 pm CDT

Just don’t ever bring personal stuff into a job like that.  Then they can take one look and see how personally committed you are to their de-humanizing job.

By Hef Bach on 2010 03 19, 6:31 pm CDT

Bakes: “Since you want to nitpickZhang never showed the associate the content of the flash drive. “

Story posted directly above Bakes’ comment: “Zhang says he refused, but he did show him the contents of the drive.”

By Liz on 2010 03 19, 8:40 pm CDT

“Zhang denied it, but he was then asked to hand over the drive by partner Bruce Berman. Zhang says he refused, but he did show him the contents of the drive.”

In context, the antecedent of the pronoun “him” is “partner Bruce Berman,” not an “associate.”  Zhang did not let an “associate” view the drive contents. To truly “nitpick,” let me point out there is no “associate” in the story.  Michael Layman, the other firm attorney involved, was identified as a “staff attorney” (usually one rung down from “associates” in the pecker order).

By B. McLeod on 2010 03 19, 9:04 pm CDT

McLeod… thanks for saving Liz the trouble of accusing me of insulting her again.

By Bakes, Esq on 2010 03 19, 9:26 pm CDT

Always happy to help out.

By B. McLeod on 2010 03 20, 1:24 pm CDT

Actually, we were both calling the attorney an “associate.” But Bakes can never admit a factual error, despite the voluminous record of these, or cop to an obvious insult (you’re really going to claim “no one on this thread insulted temps?”)

By LIz on 2010 03 20, 8:42 pm CDT

Comment removed by moderator.

By Bakes, Esq on 2010 03 20, 9:00 pm CDT