The Interwebs

Good morning!

So, later today, I’m presenting a CLE to the Washington County Bar Association.  The august group’s leaders asked that I talk about some of the ethical issues that arise from lawyers’ failure to understand use of social media.

Prepping for the seminar, I was struck by two things.

Some of you are quietly hoping they were both lightning bolts.   Nope.

Rather, I realized that for all I write about tech competence, (1) in college, I bought a Betamax, siding with Sony in the Format War against VHS; and (2) more recently, I thought Blockbuster would squash that little upstart called Netflix.

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Anyhow, for those of you interested in the topic, the folks over at Internet for Lawyer maintain this great list of the various advisory ethics opinions on social media.  As for me, I’ve blogged often on the subject  This post – Friends, Followers, and Legal Ethics – sums up my thoughts.

Finally, at the CLE, I’m going to mention this opinion from the titanic clash of Oracle v. Google.  As I reviewed it yesterday afternoon, I wondered whether the judge considered ending the opening sentence after the words “trial lawyers.”

  • “Trial judges have such respect for juries — reverential respect would not be too strongto say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

Social Media

 

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Competence & Woodsheds

In the summer, I like to get up very early and drink coffee on my steps.  Mainly, I like the quiet.  Today, there was an added bonus to my routine: I learned something new.

Until about 5:40 AM this morning, I’d never heard of the term “woodshedding.”  My initial exposure came by way of this ABA Journal post: Rethinking Woodshedding: Trust clients and let them speak freely, but carefully, when testifying.

Initially, I intended to craft a blog that linked to the post and discussed it in the terms of a lawyer’s duty of competence.  That is, what used to be considered an aspect of competent representation – woodshedding – might no longer be the best approach.  So, I decided to do a little research into “woodshedding.”

I’m glad I did.  Turns out, it’s a practice that, when taken too far, can be a violation of the Rules of Professional Conduct.

In the simplest of terms, “woodshedding” is the process of preparing a witness to testify.  The ABA post – again, it’s here – suggests that it’s time to rethink the practice.  Not because it’s unethical or inappropriate, but because, strategically, it might be a choice that causes more harm than good.

That’s where “competence” ends and we turn towards the ethics risks of taking woodshedding too far.

At some point, woodshedding crosses the line and becomes impermissible “coaching.”   A leading case on point is Ibarra v. Baker.  It’s an unpublished decision in which the U.S. Court of Appeals for the 5th Circuit affirmed, in part, a district court’s decision to sanction two attorneys who had crossed the line.  For an excellent summary of the case, check out this blog post from the law firm of Mouledoux, Bland, Legrand & Brackett.

In short, in a civil action against police officers, lawyers for the plaintiff became suspicious of deposition testimony by experts for the defendants.  They seemed to use certain words & phrases an awful lot.  The trial court shared their concerns and fined each defense lawyer $10,000 for improper coaching.

On appeal, the defense lawyers argued that they’d done what any competent lawyer would do: prepped their clients & experts for depositions.  The 5th Circuit disagreed.  The appellate court affirmed the sanctions, noting:

  • “An attorney enjoys extensive leeway in preparing a witness to testify
    truthfully, but the attorney crosses a line when she influences the witness to
    alter testimony in a false or misleading way.”

I found another case that’s much more extreme.  The ABA Journal reported it here.  Essentially, two New York attorneys were suspended for 9 months after “explaining” the law in such a way to a client as to allow her to pursue a fraudulent claim.

Tom Wilkinson is a frequent member of this blog’s #fiveforfriday legal ethics honor roll.  He’s an expert in professional responsibility & ethics, in particular ethics in litigation.  Tom’s also the former co-chair of ABA Litigation Section’s Committee.  Tom was quoted in this post that the ABA Litigation Section ran on the New York case that resulted in the 9 month suspension.  His comments are instructive.  When it comes to explaining the law to clients and witnesses, Tom says:

  • “That’s what lawyers do. However, if you explain the law with a wink, to suggest that the client should change the facts to conform to the law, that’s improper.”

So, woodshedding.  For one thing, there might be a more effective approach.  For another, even if a lawyer continues to use the old approach, the lawyer must remain cognizant not to cross the line to a shed too far.

See the source image

 

Avoid the Oopsies: Reply to Some, not All

Last September, I posted on the perils of autocomplete.   The post was prompted by the story of a lawyer who accidentally disclosed confidential client information to a reporter for the Wall Street Journal. How?  By failing to realize that the reporter’s email address had been added to a distribution list.  The ABA Journal has the story here.

Has that happened to you?

Today, I came across a post on Robert Ambrogi’s LawSites blog.  I love the title:

Created By A Lawyer, ReplyToSome Helps Prevent Email Oopsies

Give it read.  It discusses “ReplyToSome,” an add-in to Microsoft Outlook that was created by a lawyer to help lawyers avoid email mistakes.

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Social Media Posts Trip-Up Lawyer

I went to GW Law. It’s in D.C. When I was there, Washington didn’t have a major league baseball team.  But, Baltimore did.

Early in my 2L year, the Red Sox played a day-night double-header against the Orioles. My buddy Tom and I made the trek to the old Memorial Stadium.  (aside: it’s depressing to realize that my law school days pre-date Camden Yards. It didn’t open until the fall of my 3L year.)

I remember two things about the game.  The first is that Roger Clemens pitched & dominated.  Don’t take my word for it: per the magic of the interwebs, the box score is here.

See the source image

The second thing I remember is that I skipped class to go.  I have no recollection of doing so, but it wouldn’t shock me if, during the game, I made a stupid, off-hand comment to Tom along the lines of “if a foul ball lands near us, I hope the professor isn’t watching on tv!”

These days, Tom and I are both quite active on Instagram.  Had it been around then, we’d undoubtedly have posted pictures of ourselves reclining with beers in a near empty upper deck as The Rocket mowed down the O’s.  And, quite possibly, my professor would’ve seen.

Which brings me to today’s story.  It comes courtesy of the ABA Journal and Lawyer Ethics Alert Blog.

Last month, a federal district judge issued this order sanctioning a lawyer.  The lawyer had filed a request to extend a deadline, citing a family emergency that required the lawyer to be in Mexico for over two weeks.  In fact, the lawyer was not in Mexico as claimed. Rather, the lawyer was in both New York City and Miami, and was on vacation for at least some of the time.

How’d the lawyer get caught?

See the source image

That’s right, opposing counsel saw pictures the lawyer posted on Instagram.

#busted

 

At CLEs, I’ve often said that the duties of competence & diligence include (1) reviewing an opposing party’s publicly available social media; and (2) advising a client that the other side is looking at the client’s.  Now I suppose I can add:

(3) someone is checking yours.

 

p.s. – today’s story is so 2009.

 

 

 

 

ESI: there’s risk in failing to preserve.

Say it with me: competence includes tech competence.

In most of my posts on the topic, the unstated message is that a lawyer who fails to satisfy the duty of competence violates Rule 1.1 and risks having a sanction imposed against his or her license.

Here’s my post on Competence, ESI, and E-Discovery.  In it, I wrote that the duty of (tech) competence includes:

  • knowing that “it” exists,
  • knowing that clients, their adversaries, and witnesses have “it;” and,
  • knowing how to protect, preserve, produce, request, review, and use “it.”

What is “it?” It is Electronically Stored Information (“ESI”).

In addition, I cited to an advisory opinion from the State Bar of California that includes the following quote:

  • “Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”).”

Today, I blog to call your attention to other risks. Namely, the risk of having a court impose severe sanctions against you and your clients if you fail to preserve ESI.

Melinda Levitt and Peter Vogel are partners at Foley & Lardner.  Yesterday, The National Law Review posted their article Bad Preservation in eDiscovery is Still Very Costly! 

Give it read.

The article begins by reporting that there is both “good news” and “bad news” when it comes to discovery sanctions for failures to preserve ESI.

The good news is that relative recent amendments to the civil rules reserve the most severe sanctions for situations in which the failure to preserve resulted from an “intent to deprive.” As the authors note, “the ‘bad news’ is that bad preservation behavior continues.”

Next, the authors point out that:

  • “[i]t has been twelve years now since the federal rules were first amended and explicitly came to recognize ‘ESI’ – that is emails, electronic documents, excel spreadsheets, PowerPoints, and a myriad of other electronic materials – as documents” within the meaning of the discovery rules.”

They also point out that, over those 12 years, all of us have become increasingly reliant on technology, without necessarily developing any clue how it works.

Nevertheless,

  • ” . . . there are some basic things that people at least in the business community should have come to understand over the last 12 years. Among them are if litigation is occurring or is about to occur, a company is obligated to take reasonable steps to ensure that its relevant (or potentially relevant) ESI is preserved. That means getting out the word quickly – whether by way of a formal written litigation hold or otherwise – that employees and electronic systems managers/overseers need to take steps to stop either conscious or system-wide deletions or purges of potentially relevant ESI. By now, business owners, their IT employees, and their in-house and outside counsel really should have no doubt about this obligation and how to accomplish it. Granted, meeting this obligation can get dicey and difficult when it comes to things such as employee text messages, social media postings, telephone messages, and structured data. However, in terms of emails and basic electronic documents – the mainstays of business life – there should be no question or hesitation about what needs to be done.  

Then, the meat of their message:

  • “And yet . . . and yet, very recent decisions demonstrate that executives, managers and yes, even lawyers, either remain willfully ignorant of how these business systems work or are determined to pass the buck, having assumed that some mysterious “someone else” in the company was handling things. Well, while courts no longer can impose the most draconian of sanctions, no one should kid him or herself – judges continue to have very potent sanctions options available and are very willing to use them when confronted with preservation misconduct borne of ignorance, indifference or good old-fashioned boneheadness. The following are a few telling examples – and were issued in just the last few weeks – and each leaves us with the question – what were they thinking?”

From there, the article goes on to recount several cases in which significant discovery sanctions were imposed against lawyers and their clients as a result of failures to preserve ESI.  Some might strike a nerve.  If so, there’s still time to sign up for tomorrow’s first-ever VBA Tech Show.

Tech competence.  The lack thereof impacts much more than a lawyer’s license.

E Discovery

 

 

 

 

 

SCOTUS: defense counsel cannot concede guilt over a client’s objection.

In January, I blogged on a case that was pending before the United States Supreme Court. The issue: in a criminal case, can a lawyer concede a client’s guilt over the client’s objection?

As reported by the ABA Journal, the Supreme Court issued its opinion yesterday.  The answer: no.

The case is State of Louisiana v. Robert Lee McCoy.  From the SCOTUS opinion, a quick recap:

“Petitioner Robert McCoy was charged with murdering his estranged
wife’s mother, stepfather, and son. McCoy pleaded not guilty to first degree
murder, insisting that he was out of State at the time of the
killings and that corrupt police killed the victims when a drug deal
went wrong. Although he vociferously insisted on his innocence and
adamantly objected to any admission of guilt, the trial court permitted
his counsel, Larry English, to tell the jury, during the trial’s guilt
phase, McCoy “committed [the] three murders.” English’s strategy
was to concede that McCoy committed the murders, but argue that
McCoy’s mental state prevented him from forming the specific intent
necessary for a first-degree murder conviction. Over McCoy’s repeated
objection, English told the jury McCoy was the killer and that
English “took [the] burden off of [the prosecutor]” on that issue.
McCoy testified in his own defense, maintaining his innocence and
pressing an alibi difficult to fathom. The jury found him guilty of all
three first-degree murder counts. At the penalty phase, English
again conceded McCoy’s guilt, but urged mercy in view of McCoy’s
mental and emotional issues. The jury returned three death verdicts.
Represented by new counsel, McCoy unsuccessfully sought a new
trial. The Louisiana Supreme Court affirmed the trial court’s
ruling that English had authority to concede guilt, despite McCoy’s
opposition.”

A 6-3 majority held that a criminal defendant has a constitutional “right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.”

The Court’s opinion is rooted in the Sixth Amendment’s guarantee of effective assistance of counsel.  The Court held that the guarantee includes the right “to decide that the objective of the defense is to assert innocence.”  Indeed, “some decisions . . .  are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.”

Nevertheless, defense counsel does not remain at the whim of the client.  As the Court noted, “[t]rial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as ‘what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.’ ”

In the end, the Court concluded that the decision to maintain innocence during the guilt phase of a trial is not a choice about tactics, but a choice that goes to the very objective of the representation.  As such, the Sixth Amendment reserves it for the client.

So do the Rules of Professional Conduct.  In fact, the opinion interests me because it’s related to legal ethics.

In Vermont, Rule 1.2(a) of the Rules of Professional Conduct requires lawyers to “abide by a client’s decisions concerning the objectives of [the] representation.”  The rule goes on to state that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” Louisiana’s rule tracks Vermont’s; each tracks the Sixth Amendment.

Mr. McCoy’s objective was to be found not guilty. His lawyer conceded that he did not abide by his client’s objective. Here’s an excerpt from an affidavit that lawyer filed in one of the post-trial proceedings:

  • “I became convinced that the evidence against Robert McCoy was overwhelming ․ I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted. I consulted with other counsel and was aware of the Haynes case and so I believed that I was entitled to concede Robert’s guilt of second degree murder even though he had expressly told me not to do so. I felt that as long as I was his attorney of record it was my ethical duty to do what I thought was best to save his life even though what he wanted me to do was to get him acquitted in the guilt phase. I believed the evidence to be overwhelming and that it was my job to act in what I believed to be my client’s best interests .”

Alberto Bernabe is a professor at John Marshall Law School.  Professor Bernabe teaches torts & professional responsibility. He’s also a regular on this blog’s #fiveforfriday Honor Roll.  Here’s a portion of a blog that Professor Bernabe posted last fall after SCOTUS granted cert in the McCoy case:

  • “In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, ‘the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life.’  There is only one problem.  There is no such ethical duty.The duty of the lawyer is to represent the client and this includes following the client’s instructions as to the goals of the representation.”

At least insofar as it relates to the Sixth Amendment, the Supreme Court agrees.

(Professor Bernabe posted several links to the case’s history: they’re here.)

The decision to maintain innocence is the defendant’s.  It is a decision that is fundamentally different from the decisions about which witnesses to depose, which motions to file, and which arguments to make.

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Reruns

Remember reruns?  In the age of streaming content, I don’t know if reruns are even a thing anymore.  If not, good riddance!!

Seriously, was there anything as disappointing as waiting all week for the next episode of your favorite show only to have it be a rerun?

Aside: yes, we used to have wait all week for the next episode of our favorite shows.

As much as I despised reruns as a viewer, I love them as a blogger.  They’re the perfect antidote to writer’s block. So, here goes.

The VBA’s Tech Day is next month.  The agenda is fantastic.  It includes seminars on several topics upon which I’ve blogged in my nauseating ongoing effort to remind lawyers that the duty of competence includes tech competence.

Missed my posts?  Thank goodness for reruns.

Last October, I posted Competence, ESI, and E-DiscoveryIt referenced several topics, including:

  • admitting social media posts into evidence;
  • an attorney’s duties related to a client “taking down” or “scrubbing” social media posts;
  • practical tips on preservation letters regarding ESI.

VBA Tech Day includes seminars on each.

Last September, I posted Protecting Data: Cybersecurity TipsI followed up in February with  ABA Journal Provides Cybersecurity TipsEach post refers back to my post on the electronic transmission & storage of client information: The Cloud: What are Reasonable Precautions? Indeed, I’ve often blogged on Encryption & The Evolving Duty to Safeguard Client Information.

VBA Tech day includes seminars on encryption, cybersecurity, & data security.

Finally, I’ve blogged on using technology to become more efficient.  My post Fees. Is there an App for that? refers to an ABA Journal post that discusses how technology can help lawyers bill more than 2.24 hours per day that, on average, they currently bill.  And, in Tech Competence: It includes more than you might think, I cautioned that a lawyer who isn’t competent in basic tech runs the risk of violating Rule 1.5 by over-billing clients.

VBA Tech Day includes seminars on using technology to become more efficient at billing.

I think the networks might have used reruns to build anticipation for the final few episodes of a show’s season.  Most of those episodes ran in May.

Well, I’ve posted some reruns here today. Hopefully they build anticipation for VBA Tech Day.  A terrific conference on tech-related issues that will take place in, you guessed it, May.

See the source image

 

Got Tech Competence? The VBA Does.

Last week, the Professional Responsibility Board voted to recommend that the Vermont Supreme Court follow the lead of ABA and 31 other states and adopt a duty of tech competence.  Specifically, the Board voted to recommend that the Court amend Comment 6 to Rule 1.1 to read as follows:

  • “[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes to the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice, engage in continuing study and education and comply with all legal education requirements to which the lawyer is subject.”

I’ve blogged a zillion times on tech competence.  Yes, a zillion.  Remember, puffery isn’t unethical.

I’ve also blogged that lawyers shouldn’t fear tech, but embrace it.  And here’s a chance to do exactly that!

Next month, the Vermont Bar Association is presenting its first ever Tech Day.  It looks like a fantastic event.  For more, go here.  Or, read the VBA announcement below.

Remember: amendment or not, Competence includes Tech Competence!

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REGISTER HERE

VIEW FLYER HERE

If one of your goals this year is to learn all there is to know about using technology in your law practice, then this is the place to be! Whether it’s cloud computing, automating your law practice, emerging tech trends, security, office IT, e-discovery, encryption, social media evidence, billing or digital forensics and more, we’ve got you covered.

Our Tech Show CLE Seminars cover the topics you need to know to get your law firm up to speed with current legal technology tools. Technology can streamline your law practice and save you time and money on top of ensuring you are competent in your practice. As Bar Counsel Mike Kennedy often says, legal competence includes tech competence.

Of course, there’s much more to our Tech Show than the educational sessions. We have built in plenty of time to view demos, get personalized recommendations and network with our Sponsors and Exhibitors as well as to mingle with your colleagues at our luncheon and reception.

And last, by not least, you’ll find all the inspiration you need to streamline and prosper from our Keynote Speakers, Brian Kuhn of IBM Watson Legal and Edward Hartman, Co-Founder of Legal Zoom.

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tech-ethics

 

Lawyer Well-Being

The Vermont Bar Association’s 61st Midyear Meeting is set for this Thursday and Friday. Jennifer and Laura have a fantastic program in place.  It includes seminars on:

  • ESI and admitting electronically stored info into evidence; (TECH COMPETENCE!!)
  • legal ethics;
  • free speech in the workplace;
  • DACA and other hot topics in immigration law;
  • a primer on the new tax law;
  • legal issues related to sexual harassment & the #metoo movement; and
  • issues related to post-adoption contracts (PACA).

The meeting will also include several seminars on lawyer well-being, with Friday’s plenary session scheduled as the public introduction of the Vermont Commission on Well-Being in the Legal Profession.  For more info on the VBA meeting, please click here.

Given the meeting’s focus on well-being and mindfulness, I thought I’d re-post some prior blogs on the topic.  Here’s one that originally ran on Friday, March 2, as the introduction to the 108th #fiveforfriday legal ethics quiz.

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108

Warning: today’s post isn’t as light-hearted as some of the #fiveforfriday intros.

The Substance Abuse and Mental Health Services Administration is a branch of the U.S. Department of Health & Human Services.  In 2015, SAMHSA conducted a national survey on drug use and health.  The survey found that approximately 4% of Vermonters had experienced serious thoughts of suicide over the previous year.  The Vermont results are here.

There are approximately 2,700 lawyers with active licenses in Vermont.  If lawyers suffer at the same rate as other Vermonters, 108 Vermont lawyers have had serious thoughts of suicide over the past year.

108.

Okay, I know the math might not be accurate.  However, consider the following:

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Clinic released a study on lawyers’ behavioral health.  The ABA announced the study’s results here.

Per the announcement, the study revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  In addition, the study “determined that lawyers experience alcohol use disorders at a far higher rate than other professional populations, as well as mental health distress that is more significant.”

So, given that lawyers suffer at higher rates than other professionals, 4% might not be too far off.

Fact: in the past 3.5 years, 5 Vermont attorneys have committed suicide.

Fact: 2 of those 5 took their lives in 2018.

Fact: since September 2016, as many lawyers have had their licenses transferred to disability inactive status due to mental health or substance abuse issues as did in the previous 16 years.

There’s a problem.

Fortunately, the profession has started to address it.

In response to the ABA/Hazelden Study, three groups spurred creation of a National Task Force on Lawyer Well-Being.  The groups:

Last summer, the National Task Force published “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.”  The report makes a series of recommendations to the legal profession’s various stakeholders and urges state supreme courts to form committees to review the recommendations.

On January 2, 2018, the Vermont Supreme Court issued a charge & designation creating theVermont Commission on the Well-Being of the Legal Profession.  The Commission includes a representative from each of the stakeholder group mentioned in the National Task Force’s Practical Recommendation for Positive Change.   Each Commission member has formed a sub-committee to review the recommendations for that particular stakeholder group.

For example, I’m on the Commission as the representative from the “attorney regulators” stakeholder group.  My sub-committee includes one representative from each of the following: the Professional Responsibility Board, the Board of Continuing Legal Education, the Board of Bar Examiners, the Character & Fitness Committee, and the Judicial Conduct Board. I also appointed a lawyer who has long represented lawyers and judges in professional conduct investigations and prosecutions.  My sub-committee will review and report on recommendations that the Court’s various regulatory bodies ensure that lawyer health & wellness is prioritized throughout the licensing/regulatory scheme.

The Commission’s work will be the subject of the plenary session at the Vermont Bar Association’s upcoming midwinter meeting.  For more information, including how to register, please visit this site.

As I’ve blogged, the report from the National Task Force is a call to action.  In my view, we have duty to keep this issue on the front burner.

Why?

Because 108.  That number is far too high.

Other posts on this topic:

Tech Competence: Don’t Let the Web Bugs Bite

Last week, the Illinois State Bar Association (ISBA) became the 4th to opine that a lawyer violates the ethics rules by using secret email tracking software.  The opinion is here.  The opinion was reported by 2Civility .

Secret email tracking software?? What is this? 007, Archer, and Get Smart?

I wish.

Alas, it’s tech competence.  As in, Rule 1.1‘s duty of competence includes tech competence.

The Illinois opinion does a nice job framing the question that was presented.

  • “The present inquiry involves the use of email ‘tracking’ software, applications that
    permit the sender of an email message to secretly monitor the receipt and subsequent handling of the message, including any attachments.  The specific technology, operation, and other features of such software appear to vary among vendors. Typically, however, tracking software inserts an invisible image or code into an email message that is automatically activated when the email is opened. Once activated, the software reports to the sender, without the knowledge of the recipient, detailed information regarding the recipient’s use of the message. Depending on the vendor, the information reported back to the sender may include: when the email was opened; who opened the email; the type of device used to open the email; how long the email was open; whether and how long any attachments, or individual pages of an attachment, were opened; when and how often the email or any attachments, or individual pages of an attachment, were reopened; whether and what attachments were downloaded; whether and when the email or any attachments were forwarded; the email address of any subsequent recipient; and the general geographic location of the device that received the forwarded message or attachment. At the sender’s option, tracking software can be used with or without notice to the recipient.”

The ISBA concluded that an attorney who uses email tracking software engages in dishonest & deceitful conduct, and also impermissibly intrudes on opposing counsel’s attorney-client relationship.  As such, the use web bugs violates Rules 8.4(c) and 4.4(a). The ISBA’s conclusions track (pun intended) conclusions reached by New York, Alaska, and Pennsylvania.

The opinion isn’t surprising.  However, it includes a section that I find interesting.

Here’s the sentence that immediately follows the section of the opinion that I quoted above:

  • “There do not appear to be any generally available or consistently reliable devices or programs capable of detecting or blocking email tracking software.”

That’s an important statement.  Why?  I’m glad you asked.

Lawyers have a duty to take reasonable precautions against both the inadvertent disclosure of and unauthorized access to client information.  For example, while it might be wrong for a passerby to open your file cabinet and look inside, it’s probably not a good idea for you to leave the file cabinet unlocked on the sidewalk in front of your office.  That’s not a reasonable precaution.  Similarly, and ( i hope) more likely to arise, hacking is wrong and illegal. But, the general trend is towards a conclusion that a lawyer violates the rules by failing to encrypt client data that is electronically transmitted and stored.

So, is the failure to check for – protect against – web bugs a violation of the duty to take reasonable precautions to safeguard client data?

According to the Illinois State Bar, no.  Specifically, the ISBA noted that while the ethics rules:

  • “express a general duty that a lawyer should keep abreast of the benefits and risks associated with relevant technology as well as make ‘reasonable efforts’ to prevent unauthorized access to client information, requiring the receiving lawyer to first discover and then defeat every undisclosed use of tracking software would be unfair, unworkable, and unreasonable.”

I apologize for yet another block quote.  But, I think this is an important issue.  So, here’s why the ISBA thought it would be “unfair, unworkable, and unreasonable” to expect a receiving lawyer to defend against web bugs:

  • “It would be unfair for at least two reasons. First, it is unfair to require lawyers to use email and other electronic documents in communications regarding their practice and then interpret the professional conduct rules to enable the undisclosed use of tracking software to gain covert, unauthorized access to protected client information of opposing parties. Second, it is unfair to require lawyers receiving email, i.e., all lawyers, to assume that all email messages contain undisclosed tracking software because that approach places the burden of preventing
    unauthorized access to protected client information on the wrong party. The sending lawyer is the actor in these situations and controls whether, when, and what type of tracking software to employ. Tracking software is not, for example, a common functional aspect of electronic documents like metadata. As noted in ABA Formal Opinion 06-442 (August 5, 2006), metadata is embedded information that enables word-processing software to manage documents and facilitates collaborative drafting among colleagues. Unlike tracking software, which must be purposely, and usually surreptitiously, inserted into an email, metadata is a universal feature of every word-processed document. It is appropriate and reasonable to expect lawyers to understand metadata and other ubiquitous aspects of common information technology. But it would be neither appropriate nor reasonable to charge all lawyers with an understanding of the latest version of tracking software that might be chosen, and then employed without notice, at the option of opposing counsel.”

The ISBA opinion continues:

  • “Even assuming that ‘defensive’ software or devices capable of discovering and/or
    defeating tracking software were to become available, it would be unworkable to, in effect, force every Illinois lawyer to become and remain familiar with the various tracking programs on the market and then immediately purchase and install whatever new anti-tracking software or device that may, or may not, protect against the latest version. Given the typical rapid changes in technology, few, if any, solo or small firm lawyers could reasonably do so. Aside from creating sustained employment for IT consultants and software vendors, that approach would only precipitate an ‘arms race’ in which the developers and users of tracking software would always be a step ahead.”

I am not condoning a lawyer’s use of web bugs or surreptitious tracking software.  No more than I’d condone wiretapping opposing counsel’s phone. However, I am not sympathetic to the suggestion that tech evolves so rapidly that we shouldn’t expect lawyers to stay abreast of developments in technology.

Also, as I’ve blogged, the rationale for the conclusion that receiving lawyers have no duty to protect against tracking software that is designed to pierce the attorney-client relationship sounds an awful lot like what we used to say about whether lawyers had a duty to encrypt email, scrub metadata, or have a basic knowledge of common trust account (phishing) scams.

I’m fairly confident that someday, it will no longer be difficult or burdensome to detect and protect against email tracking software.  In other words, go back to the statement that’s bolded above.  Soon, I think it might be changed to:

  • “There appear to be many generally available and consistently reliable devices or programs capable of detecting or blocking email tracking software.”

When that day arrives, I doubt that “but they shouldn’t have used tracking software on me” will be a defense to a charge that a lawyer failed to take reasonable precautions to safeguard client data.  In any event, regardless of whether there’s an affirmative duty to protect against web bugs, I’d think a prudent lawyer would want to do so anyway.

In conclusion, don’t let the web bugs bite.  Not only that, remember that we’re likely soon to live in a world in which web bugs bite all involved with a particular communication.

Bugs