Monday Morning Answers

Friday’s quiz is HERE.  The answers follow the Honor Roll.

Honor Roll

  • Beth DeBernardi, Esq.
  • Andrew Delaney, Esq.
  • Robert Grundstein, Esq.
  • Jackie Chiles’ Lewd-Lascivious-Salacious-Outrageous Fun Bunch
  • Keith Kasper, Esq.
  • Patrick Kennedy, First Brother
  • Hal Miller, Esq.
  • Herb Ogden, Esq.
  • Team Pegasus
  • Jim Runcie, Esq.

Question 1

Today I’m dong a CLE for the Workers’ Compensation bar. Let’s take a question from their world.

Wood represents Plaintiff.  Wood has actual notice from Plaintiff’s health insurer that the insurer has a lien on any recovery.

Richards represents liability carrier.  In connection with settlement, Richards ask Wood to execute an agreement that Wood will personally indemnify and hold harmless the liability carrier for any of Client’s unpaid liens.

Wood agreed.

Which is most accurate?

  • A.   Wood violated the Rules of Professional Conduct
  • B.   Richards violated the Rules of Professional Conduct
  • C.   They both violated the Rules of Professional Conduct
  • D.  Neither violated the Rules of Professional Conduct

See, VBA Advisory Ethics Opinion 2013-01; Wood by creating a conflict of interest & providing financial assistance to a client; Richards by inducing Wood to violate the Rules.

Question 2

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said

  • “It’s ok as long as Client gives informed consent, there’s no interference with your professional judgment or your relationship with Client, and you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying for Lawyer to represent Client.  See, Rule 1.8(f)

Question 3

Large Firm represents Brady in the matter Brady v. Ryan.  Small Firm represents Ryan.

Associate leaves Small Firm to take a job at Large Firm.    Which is most accurate?

  • A.   Large Firm must withdraw from representing Brady.
  • B.   Large Firm may continue to represent Brady.
  • C.  Large Firm may continue to represent Brady if Associate is screened from participation.
  • D.  Large Firm may continue to represent Brady only if Associate did not participate personally & substantially in Small Firm’s representation of Ryan , and, Large Firm screens Associate from participation in the matter.

This is Vermont’s Rule 1.10(a)(2).  The Vermont rule is more broad than the ABA Model Rule.  When a lawyer changes jobs, the ABA rule allows the new firm to screen the attorney even if the attorney participated personally & susbstantially in the matter while at the old firm.  Also, Vermont Rule 1.10(a)(2)(ii) and (iii) impose significant requirements beyond mere screening.

In that Vermont’s rule is more broad than the ABA’s, there is some concern that it limits job opportunities in a small state.  The counter-argument is that client loyalty and confidences are paramount.

Question 4

Nationally, which is most common with respect to  Electronically Stored Information?

  • A.   Discovery sanctions for failure to preserve ESI; See, This Study
  • B.   Discovery sanctions for producing ESI  in an improper format
  • C.   Disciplinary sanctions for failure to preserve ESI
  • D.   Disciplinary sanctions for failing to request ESI in discovery

For more, the California State Bar’s advisory ethics opinion on handling Electronically Stored Information is HERE.  Last week, the Wisconsin Bar published this post on ethics, professionalism, and E-Discovery.

Question 5

Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.

Watergate.  See, ABA Journal, “Watergate’s Lasting Legacy is to Legal Ethics Reform, Says John Dean.” (that’s the Watergate complex, front left, on the banks of the Potomac, next to the Kennedy Center)

Watergate.jpg

Tips for Choosing a Practice Management System

Most of you know that when it comes to legal tech, I highly recommend Robert Ambrogi’s Law Sites Blog.  Ambrogi also writes a This Week In Legal Tech column for Above The Law.

Here’s the most recent column: 6 Questions To Ask Before Selecting A Practice Management Platform.

Read it.

A summary of the 6 questions:

  1. Do you want a cloud platform or a platform installed on site?
  2. How much do you want to pay?
  3. Does the system comply with security requirements and obligations under the Rules of Professional Conduct?
  4. Does it have the basic features that you need?
  5. Does it have the advanced features that you need?
  6. Does it feel right when you try it?

Again, read the article.

For part 2 of question 3, my view is that a lawyer’s obligation under the Rules of Professional Conduct is to take reasonable precautions to protect client data, whether the data is in transmission or at rest.  What are reasonable precautions?  I addressed that question HERE.

Still drinking coffee this morning?  You’ve got time to try this week’s legal ethics quiz before you hit the trails or slopes.

tech-ethics

 

Five for Friday #59 – Revised!

Welcome to another week of legal ethics trivia. I changed question 1.

Here are the rules:

  • There are no rules.  This is an open search engine, open book quiz.
  • Discussing questions & answers with colleagues & friends is encouraged & allowed!
  • Team entries welcome.  If you enter a team, bonus points for a clever team name
  • Please consider sharing the quiz with others
  • Email answers to michael.kennedy@vermont.gov
  • I’ll post the answers on Monday
  • All questions assume that the Vermont Rules of Professional Conduct apply

Question 1

Today I’m dong a CLE for the Workers’ Compensation bar. Let’s take a question from their world.

Wood represents Plaintiff.  Wood has actual notice from Plaintiff’s health insurer that the insurer has a lien on any recovery.

Richards represents liability carrier.  In connection with settlement, Richards ask Wood to execute an agreement that Wood will indemnify and hold harmless the liability carrier for any unpaid liens.

Wood agreed.

Which is most accurate?

  • A.   Wood violated the Rules of Professional Conduct
  • B.   Richards violated the Rules of Professional Conduct
  • C.   They both violated the Rules of Professional Conduct
  • D.  Neither violated the Rules of Professional Conduct

Question 2

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said

  • “It’s ok as long as Client gives informed consent, there’s no interference with your professional judgment or your relationship with Client, and you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Question 3

Large Firm represents Brady in the matter Brady v. Ryan.  Small Firm represents Ryan.

Associate leaves Small Firm to take a job at Large Firm.    Which is most accurate?

  • A.   Large Firm must withdraw from representing Brady.
  • B.   Large Firm may continue to represent Brady.
  • C.  Large Firm may continue to represent Brady if Associate is screened from participation.
  • D.  Large Firm may continue to represent Brady only if Associate did not participate personally & substantially in Small Firm’s representation of Ryan , and, Large Firm screens Associate from participation in the matter.

Question 4

Nationally, which is most common with respect to  Electronically Stored Information?

  • A.   Discovery sanctions for failure to preserve ESI
  • B.   Discovery sanctions for producing ESI  in an improper format
  • C.   Disciplinary sanctions for failure to preserve ESI
  • D.   Disciplinary sanctions for failing to request ESI in discovery

Question 5

Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.

the-quiz

Was That Wrong?

It’s been awhile since I’ve posted a Was That Wrong column.  In a way, that’s good.  Yet, lawyers never fail to entertain disappoint.  So, we have another entry.

For those of you unfamiliar with Was That Wrong, it’s based on the “Red Dot” episode of Seinfeld.  In the episode, George Costanza had sex in his office with a character known only as “the cleaning woman.”  His boss found out.  Here’s their ensuing exchange :

(Scene) In the boss’s office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Costanza’s response served as my inspiration for the Was That Wrong column.  The column takes a break from my regular posts.  It features stories of the absurd & outrageous from the world of legal ethics and attorney discipline, highlighting misconduct that I hope you’ll instinctively avoid without needing a CLE that urges you to do so.

Today’s entry comes from Michigan.  Here’s how I picture it going down if it were a Seinfeld episode:

  • Hearing Panel:  We’ll get right to the point.  It has come to our attention that, despite what your resume and websites say:
    • you were never licensed to practice law in either Connecticut or Missouri;
    • you were never a summer associate in 2003 at law firms in Connecticut, Missouri, and Michigan.
    • you were never awarded a Master of Liberal Arts from Harvard University;
    • you were never a member of the 1996 U.S. Field Hockey Squad; or
    • you never competed in the 1996 Olympics in Atlanta, Georgia
  • Lawyer:  Says who?
  • Hearing Panel Well, were you?
  • Lawyer:  Was that wrong? See, here’s the thing…..
  • Hearing Panel:  Disbarred.
  • Lawyer:  Well, you didn’t have to say it like that.

The order disbarring the attorney is HERE.

I’m not sure I can pick a favorite part of this case.  It might be when a member of the hearing panel asked the lawyer where he lived and, after a convoluted response, had to say “See, it’s not a trick question.  Where do you live now?”

In the end, Michigan’s Attorney Discipline Board stated that it agreed with a statement made by the hearing panel chair at the sanctions hearing. The statement is below, with the emphasis mine.

  • “I’ve been practicing for 62 years, I’m proud of my profession. I take this panel obligation very seriously and have for a good number of years. And I don’t want dishonest, deceitful,lying, conniving lawyers in my profession. I’ll tell you that right out. And you haven’t really – you haven’t really given me anything – any reasons why I shouldn’t put you in that category of a dishonest, deceitful, conniving. . .. Very frankly, I’m annoyed at your lack of response. I’m annoyed at the fact that you really didn’t acknowledge what you’ve done. You’ve misrepresented yourself all over the place. I don’t know why you think you can get away with this kind of conduct …. And I’m going to tell you something else while I’m telling you, you have seven years of college. You’re supposed to have some brains. You have the privilege of a law license from the state of Michigan. You have the privilege of belonging to one of the oldest professions. Okay? And you – from what I’ve seen, you don’t appreciate that. You haven’t given that the kind of appreciation and concern that I think it deserves.”

The Legal Profession Blog has the full story here.

costanza

Clients: Ease Their Experience

I’m not sure how to tie this to legal ethics, but I wanted to share it.  So, I’ll say this: Rule 1.1 of the Rules of Professional Conduct requires lawyers to provide competent representation.  I’m about to share with you an article that, at some level, suggests it’s possible that clients perceive competent representation as including a smooth ride along the way.  By “smooth ride,” I’m not talking results.  Rather, I’m referring to the ease of the client experience.

The post is HERE. It’s by Jack Newton, founder and CEO of Clio.  It appears on the ABA Journal’s site.

Referring to a survey conducted by CEB, Inc., of more than 75,000 consumers, Newton writes:

  • “CEB found that modern consumers are not seeking exceptional customer experiences. Instead, they prefer effortless experiences.”

From there, Newton referenced Uber and Amazon, noting that:

  • “For examples of a smooth experience, we can look to innovators of the 21st century. These companies have disrupted deep-pocketed incumbents by delivering truly effortless experiences.”

Check out the post.  Some of you might find it helpful.  You might ask yourself, “self, am I delivering an effortless experience to my clients?”  Indeed, as the Judiciary, we should be asking the same question: are we delivering an effortless experience to our consumers? If not, how can we make it closer to the type of experience that consumers expect?

Newton’s post also includes fascinating thoughts on data.  I’ve always been struck how resistant the legal profession is to using data. With respect to collecting fees, Newton notes that the:

  • “data paints a bleak picture: Out of an eight-hour workday, the average firm collects payment on only 1.5 hours of billable time. These unit economics would be devastating to almost any industry, and they help explain why—despite charging an average of $232 per billable hour—the average small-to-midsize firm struggles to make ends meet.”

Imagine representing a restraunt owner who tells you that of every 8 meals served, she only collects payment for 1.5?

Again, take a look at Newton’s post. It includes some excellent tips on using data to make your practice more efficient.

I agree with Newton’s conclusion:

  • “The winning law firms of the future will take a page from the disrupter’s playbook: Deliver truly effortless customer experiences while advancing a ruthlessly data-driven culture of continuous improvement internally. Combined, these two forces will reshape the face of legal services.”

In the end, I suspect it will be the lawyers who figure out how to make the client experience effortless who see a significant increase in the number of billable hours collected.  In that sense, competent representation will not only benefit your clients, it will benefit you.

 

Monday Morning Answers: Week 58

Go Falcons.

And that’s not a gut reaction to my Steelers losing to that team from south of Boston.  Matt Ryan went to BC.  So did I!  (for 3 semesters)  Tom Brady went to Michigan.  I didn’t.

So it’s simple. Go Falcons.

Friday’s questions are HERE. Answers follow the Honor Roll.  Bonus to Hal Miller for knowing I should’ve made it the “Jack Lambert Edition.”

lambert

HONOR ROLL

  • Beth DeBernardi, Esq.
  • Keith Flynn, Esq.
  • Robert Grundstein, Esq.
  • Keith Kasper, Esq.
  • Patrick Kennedy, First Brother
  • Hal Miller, Esq.
  • Rachel Thomspon, VLS 2017 (perfect score)

Question 1

To the extent any particular section of the Rules of Professional Conduct require a “signed writing,” which is most accurate?

  • A.   “Signed” is not defined anywhere in the rules.
  • B.   The rules do not refer to electronic signatures, but case law holds that an electronic signature counts as a “signed writing.”
  • C.   The rules clearly state that an electronic signature counts as a “signed writing.”  See, Rule 1.0(n)
  • D.  There is not a single rule that requires a signed writing.

Question 2

Attorney represents Ben in a matter against Tom.  Firm represents Tom.

Paralegal works for Attorney.  Paralegal used to work for Firm and worked on matters for Tom.

Which is most accurate?

  • A.   Attorney may not represent Ben
  • B.  Attorney may represent Ben if Tom gives informed consent.
  • C.   Attorney may represent Ben if Tom gives informed consent, confirmed in writing.
  • D.  Attorney may represent Ben and should screen Paralegal from participation in the matter.  See, Rule 1.10, Comment [4] (Conflicts of nonlawyer assistants are not imputed to the firm, but they should be screened from participation)

Question 3

Lawyer called me with an inquiry.  Lawyer asked whether she may deposit $150 of her own funds into her pooled interest-bearing trust account to cover bank fees.

What was my response?

  • A.  Yes, so long as $150 is an amount reasonably necessary to pay the feesSee, Rule 1.15(b).
  • B.   Yes.
  • C.   No.
  • D.   No, the rule limits attorneys to depositing no more than $100 of their own funds to cover bank fees.

Question 4

When a lawyer knows that a client expects the lawyer to provide assistance that is not permitted by the Rules of Professional Conduct, the lawyer:

  • A.   Must withdraw
  • B.   Must consult with the client as to the relevant limitations on the lawyer’s conduct.  See, Rule 1.4(a)(5).
  • C.  Must notify the tribunal
  • D.  Must remonstrate with the client and take any appropriate reasonable remedial measures.

Question 5

Continuing a theme . . . a lawyer who worked for the Bush administration was reinstated to the practice of law in November 2016.  The lawyer had been disbarred in 2008 following convictions for perjury and obstruction of justice.  The criminal trial involved allegations that the lawyer had leaked the name of a covert intelligence officer.

Part 1:   Name the lawyer.  Lewis “Scooter” Libby.

Part 2:  Name the covert intelligence officer.    Valerie Plame.

 

 

Affirmative Defenses and….Chickens

Yes.  You read that headline correctly.

I’m not sure how to categorize this post, other than it’s perfect for a Saturday morning.

From the folks over at Above The Law, I found this story.

  • Plaintiff filed a complaint
  • Defense attorney’s affirmative defenses included a request that the court strike the complaint as violating the Ohi0 Rules of Civil Procedure “by containing run-on sentences, multiple allegations in the same paragraph, conclusions, verbose exaggerations, and ‘stream of consciousness’ rhetoric”
  • Plaintiff’s attorney responded with motion to strike the affirmative defense.
  • The motion was supported by a memorandum that spanned 3 pages and consisted of 1, long, run-on sentence.
  • Plaintiff’s attorney attached the famed “Chicken Chicken Chicken: Chicken Chicken” paper to his response.

And, as the ABA Journal reports here,  defense attorney thought plaintiff’s motion to strike was fantastic!  Here’s an excerpt from the ABA Journal’s post:

(Subashi is the defense attorney, Tim Chappars is the plaintiff’s attorney)

  • “Subashi tells the ABA Journal in an email that he really got a kick out of Chappars’ response. ‘As I have told Tim, I thought his motion was one of the funniest and wittiest legal documents I have ever read,’ Subashi said.“ ‘I had added the additional verbiage to the Sixteenth Defense to see if I could get a rise out of Tim (we have had cases against each other for years, and I have the highest personal and professional regard for him),’ Subashi says. ‘We lawyers tend to take ourselves way too seriously, so this was a welcome departure from that trend.’ ”

I LOVE Attorney Subashi’s last sentence.

Side note: 2 of the past 3 presidents of the Vermont Bar Association are from Ohio.

Hmmm.

chicken

Five for Friday #58

Readers: we find ourselves at a historic moment.  Ethical vs. unethical.  On one of the biggest stages.

That’s right: Sunday night. Steelers vs. Patriots.  Winner goes to the Super Bowl.

(what else did you think I was referring to this weekend??????)

Reminder: only one of the teams has a quarterback who served the equivalent of a disciplinary suspension this season.  It’s not the Steelers.

Reminder: only one of the teams has a head coach who was fined for spying on opposing teams.  Yet another NFL version of a disciplinary sanction.  It’s not the Steelers.

But, for now, it’s time for Five for Friday!

  • Open book, open search engine, ask friends the answers.
  • Exception: Question 5
  • Team entries welcome & encouraged
  • Clever team names appreciated. See, “Team Poutine” during the weekend that Five for Friday was presented from Montreal
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please share the quiz with friends and colleagues
  • email answers to michael.kennedy@vermont.gov
  • I will post the answers on Monday

Question 1

To the extent any particular section of the Rules of Professional Conduct require a “signed writing,” which is most accurate?

  • A.   “Signed” is not defined anywhere in the rules.
  • B.   The rules do not refer to electronic signatures, but case law holds that an electronic signature counts as a “signed writing.”
  • C.   The rules clearly state that an electronic signature counts as a “signed writing.”
  • D.  There is not a single rule that requires a signed writing.

Question 2

Attorney represents Ben in a matter against Tom.  Firm represents Tom.

Paralegal works for Attorney.  Paralegal used to work for Firm and worked on matters for Tom.

Which is most accurate?

  • A.   Attorney may not represent Ben
  • B.  Attorney may represent Ben if Tom gives informed consent.
  • C.   Attorney may represent Ben if Tom gives informed consent, confirmed in writing.
  • D.  Attorney may represent Ben and should screen Paralegal from participation in the matter.

Question 3

Lawyer called me with an inquiry.  Lawyer asked whether she may deposit $150 of her own funds into her pooled interest-bearing trust account to cover bank fees.

What was my response?

  • A.  Yes, so long as $150 is an amount reasonably necessary to pay the fees.
  • B.   Yes.
  • C.   No.
  • D.   No, the rule limits attorneys to depositing no more than $100 of their own funds to cover bank fees.

Question 4

When a lawyer knows that a client expects the lawyer to provide assistance that is not permitted by the Rules of Professional Conduct, the lawyer:

  • A.   Must withdraw
  • B.   Must consult with the client as to the relevant limitations on the lawyer’s conduct
  • C.  Must notify the tribunal
  • D.  Must remonstrate with the client and take any appropriate reasonable remedial measures.

Question 5

Continuing a theme . . . a lawyer who worked for the Bush administration was reinstated to the practice of law in November 2016.  The lawyer had been disbarred in 2008 following convictions for perjury and obstruction of justice.  The criminal trial involved allegations that the lawyer had leaked the name of a covert intelligence officer.

Part 1:   Name the lawyer.

Part 2:  Name the covert intelligence officer.

here-we-go-steelers

 

 

 

 

 

 

Web Bugs: An Update.

Update:  So, I  received an e-mail stating that I’m “way off base” in “endorsing” the use of web bugs. Please review each of the posts I’ve made on the topic.  One is HERE, the other is HERE.  

I have not endorsed the use of web bugs or spy mail.

What I intended to convey is this: the fact that it may be wrong for someone to try to access information relating to the representation of your clients doesn’t relieve you from the duty to take reasonable precautions to prevent unauthorized access to that information. See, Rule 1.6, Comments 16 and 17.  

Do you have to store your paper files in a subterranean vault that’s equipped to survive an RPG attack?  No.  But you probably shouldn’t leave your file cabinets unlocked in a shared hallway, trusting that passersby will remember not to look at things that aren’t theirs.

Imagine a passerby looks through the files.  Are you willing to roll with the “but he shouldn’t have been looking!” defense to a formal charge that you violated Rule 1.6 by keeping your files unlocked in the hallway? If so, take a look at this decision from a hearing panel of the PRB.

Is there an affirmative duty to use available technology to protect against spy mail? I don’t know.  No matter the type of technology, including a type we can’t even imagine today, it will boil down to this: have you taken reasonable precautions to protect against the unauthorized disclosure of client information?

I will not be surprised if, someday, someone concludes that the duty to take reasonable precautions to protect against the unauthorized disclosure of information relating to the representation of a client includes using reasonably available technology to protect against web bugs & spy mail. In fact, as I mentioned in the first post, that’s almost exactly how the debates over metadata and encrypted e-mail have evolved.

cyber-security

 

 

Web Bugs

One of the questions at Thaw Bowl IV involved Web Bugs.  Due to several blank looks, I thought I’d re-visit the issue.

What are Web Bugs? I first blogged about them  HERE.  Think of them as e-mail tracking.  Some might call it ” spy mail.” Essentially, a web bug is a tool that allows a sender to track when an e-mail is opened, the device used to open it, and whether the e-mail is forwarded.

Last week, Chad Gillies posted an article on LinkedIn entitled “E-Mail Tracking: Is It Ethical? Is it Even Legal?”  His article had previously appeared in the January 11, 2017, issue of Bloomberg’s ABA/BNA Lawyer’s Manual on Professional Conduct.  Mr. Gillies made a PDF of the article available on LinkedIn. It’s HERE.  It includes a lengthy quote from my blog post on Web Bugs.

Mr. Gillies handles customer strategy and legal affairs for a MailControl.net .  The company’s website, which is HERE, bills it as a “the leader in enterprise and anti spy mail solutions.”

Anyhow, if you read my original blog post, you’ll not see anything in which I endorse the use of web bugs, e-mail tracking, or spy mail as ethical or consistent with the rules.  Rather, as Mr. Gillies points out, you’ll see a section in which I remark upon an advisory ethics opinion issued by the Alaska Bar Association.

The Alaska opinion is HERE.  The opinion concludes that the use of web bugs violates Alaska’s Rules of Professional Conduct.  It also includes the following language:

  • “The Committee notes that Rule 1.6(c) requires a lawyer to take ‘reasonable precautions’ transmitting a communication that includes a client confidence or secret so as to avoid allowing the information to come into the possession of unintended recipients, including information in electronic form.  The Committee does not interpret this duty as requiring the lawyer to presume that opposing lawyer will seek to ‘bug’ communications and requiring the lawyer to take active steps to detect and prevent such tracking devices.  As a practical matter, with rapidly changing technology and software that may be impractical or even impossible for the receiving lawyer to accomplish.  The Committee believes that the only reasonable means of protecting attorney-client communications and work product in this situation is to bar the lawyer sending the communication from using these types of tracking devices.”

This paragraph stood out to me.  Why?  As anyone who attended my CLEs on digital security in Montreal, Rutland, or Brattleboro knows, I’ve stressed that Vermont lawyers have a duty to take reasonable precautions to protect client data, whether the data is in transmission or at rest.   For more on reasonable precautions, click HERE.

With that in mind, here’s what I wrote in my original blog post:

From there, I added:

  • “No, I’m not arguing that a lawyer has a duty to sweep the office for bugs or listening devices once opposing counsel departs after visiting.  Rather, I simply wonder whether technology soon will have evolved to the point where it is not unreasonable for a lawyer to check an email for a web bug.”

So, I want to be clear: by suggesting that lawyers have a duty to protect against web bugs and spy mail, I am not suggesting that the rules allow a lawyer to use web bugs and spy mail.

That being said, I remain struck by the language in the Alaska Opinion.

I’ll close by repeating myself:

  • Lawyers have a duty to take reasonable precautions to protect client information.
  • There are bad people out there using spy mail and web bugs.
  • Lawyers have a duty to stay abreast of the benefits and risks of relevant technology.
  • There is technology available to protect against spy mail and web bugs.

So, as I wrote in my original blog post on web bugs:

“No, I’m not arguing that a lawyer has a duty to sweep the office for bugs or listening devices once opposing counsel departs after visiting.  Rather, I simply wonder whether technology soon will have evolved to the point where it is not unreasonable for a lawyer to check an email for a web bug.”

computer-bug