Back to Basics: The 7Cs never go out of style.

I meant to do this last week but forgot.  At least that’s my initial argument.  A fair and reasonable examination of the evidence might reveal that “I didn’t feel like blogging” is more accurate than “I forgot.”

Anyhow, it’s back to school season.  Per usual, I’m marking the occasion with a post that, really, is more “back to the basics” than “back to school.” And, when it comes the basics of legal ethics and professional responsibility, some things never go out of style.[1] Those things being the 7 Cs:

  • Competence
  • Communication
  • Confidentiality
  • Conflicts
  • Candor
  • Commingling
  • Civility.

Here’s a 15-minute video in which I share thoughts on each of the 7 Cs of legal ethics & professional responsibility.

Welcome back!


[1] Maybe my goal for the year should be to include a Taylor Swift reference in every blog post. Don’t worry, if I do, I promise I won’t include footnotes highlighting each reference.

Cybersecurity, data protection, and a lawyer’s duty of competence.

Given some of the looks and comments that I receive when broaching this topic at CLEs, I’m not certain that it’s an appropriate subject for a day typically reserved for “wellness” posts.  However, as I emerge from a summer blogging hiatus fueled by a disinterest in blogging, I’m less worried about sticking to the traditional schedule than I am in finding something – anything – to write about.  And today, “cybersecurity” not only presents itself as a topic, it does so in a manner that reinforces a notion that lies near and dear to this blog’s heart: competence includes tech competence.

Cybersecurity White Images – Browse 16,974 Stock Photos, Vectors, and Video  | Adobe Stock

To recap, V.R.Pr.C. 1.1 requires a lawyer to provide clients with competent representation. Under the heading “Maintaining Competence,” Comment [8] states:

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

The bolded language refers to “tech competence” and was added in 2018.  At the time, and as reported by LawSites, its addition made Vermont the 32nd state to adopt a duty of technology competence. The italicized language has existed since the rule was first promulgated in 1999.  I emphasized it to make clear that continuing legal education is a critical component of maintaining competence.

Which brings me to today’s point.

As reported by LawSites and the ABA Journal, New York recently became the first state to mandate CLE in cybersecurity and data privacy & protection.  From the LawSites post:

  • “Under the new requirement, all attorneys must complete one hour of training every two years in either the ethical obligations surrounding cybersecurity, privacy and data protection, or in the technological and practice-related aspects of protecting data and client communications. Only two other U.S. states mandate technology training as part of a lawyer’s continuing education requirement, Florida and North Carolina. While those states’ CLE requirements allow for training in a range of technology topics, which can include cybersecurity, New York’s is the first to focus its requirement on these topics.”

New York’s new rule is here. The ABA Journal notes that the rule allows lawyers to count up to 3 hours of cybersecurity CLE towards their required 4 hours of ethics CLE.  The ABA post goes on to state:

  • “The New York State Supreme Court’s Appellate Division adopted the cybersecurity CLE requirement based on a recommendation from the New York State Bar Association’s Committee on Technology and the Legal Profession. The NYSBA approved the committee reportin June 2020, according to the bar’s news center.”

This is important. The impetus for the new CLE requirement was not my counterpart in New York.  It was the bar association.  In other words, this isn’t bar counsel crying wolf over competence, tech competence, and the duty to take reasonable precautions to safeguard client data.

Am I saying that a breach is an ethics violation?

NO.

I, AM. NOT.

Again, a lawyer’s duty is to take reasonable precautions to safeguard client data. As I’ve always recognized, the fact that a lawyer or firm is breached or hacked does not necessarily mean that the precautions in place weren’t reasonable. Indeed, in yesteryear, the fact that a client’s paper documents ended up in unauthorized hands didn’t necessarily mean that the lawyer or firm charged with safeguarding those documents failed to take reasonable precautions.  For instance, it likely wouldn’t have been an ethics violation for a firm to fall victim to enterprising criminals who employed thermite to breach a secure cabinet within a secure room within a secure office within a secure building [i]

What I’m saying is this.

A lawyer’s professional obligations include providing clients with competent representation.  CLE is a way to maintain competence.  There’s now a jurisdiction that requires 1 hour of CLE in cybersecurity, privacy, and data protection.  That same jurisdiction allows lawyers to count up to 3 hours of cybersecurity CLE toward their required 4 hours of ethics CLE. In sum, no more eye-rolling at CLEs when I discuss cybersecurity and data protection.  The topic clearly goes to the duty of competence.

As always, let’s be careful out there.

******

[i] I’m obsessed with Better Call Saul.  This week’s series finale has left me thinking of ways to pay homage to the show.  My thermite analogy reminded me not of Better Call Saul, but of its predecessor, Breaking Bad. Specifically, the scenes in the Season 1 finale when Walt uses the innards of an old Etch-A-Sketch to make thermite that he and Jesse use to break into a warehouse to steal methylamine. In fact, the scenes themselves probably subconsciously caused me to use “thermite” in the analogy.

Some basics related to the duties that apply when a lawyer or law firm handles cryptocurrency.

Blogger’s Note:  many thanks to Tom Little for sending me the Ohio advisory opinion that is referenced below and that served as the impetus for this post.

Cryptocurrency

My sense is that not many Vermont lawyers or law firms often handle cryptocurrency.  Doing so is likely to become more common, especially for lawyers and firms whose clients regularly use cryptocurrency to conduct transactions. Thus, it makes sense to highlight the professional responsibility issues most likely to arise.

Caveat: I don’t understand even the basics of cryptocurrency. So, here, I’m not going to try to explain what it is or how it works. Rather, I will limit this post to sharing guidance that others have provided.  Namely, via the following advisory ethics opinions:

The opinions discuss three distinct situations in which a client or third party might ask to transfer cryptocurrency to a lawyer or law firm:

  1. to pay for legal services that have already been rendered.
  2. as an advance against legal services that will be provided in the future.
  3. to hold in escrow pending future use by the client.[i]

For me, the opinions lend themselves to a single overarching takeaway.[ii]

On this blog and at CLEs, I’ve long argued that new things don’t necessarily require us to rewrite the Rules of Professional Conduct. 

  • No matter the mode of communication, the duty is to employ reasonable precautions against unauthorized access to or inadvertent disclosure of client information
  • Whether using a file cabinet, the storage facility on Town Line Road, or the cloud, the duty is to take reasonable precautions to safeguard client property.
  • Yes, social media has provided new ways for lawyers to get caught. It has not, however, created or caused the underlying misconduct that has always been a violation of the rules, but is more readily apparent when done in a public medium.

That’s why a section of the D.C. opinion resonates with me:

“We do not perceive any basis in the Rules of Professional Conduct for treating cryptocurrency as a uniquely unethical form of payment. Cryptocurrency is, ultimately, simply a relatively new means of transferring economic value, and the Rules are flexible enough to provide for the protection of clients’ interests and property without rejecting advances in technologies.”

In other words, just because something is new doesn’t mean it’s unethical.

Rather, take the “tech” out of it and look to fundamental principles that have long been part of the foundation upon which the Rules were constructed:

  • legal fees must not be unreasonable,
  • client property must be safeguarded,
  • risks associated with the representation must be explained to the client,
  • no matter who pays, a client’s confidences must be protected, and a lawyer’s independent judgment must not be compromised, and,
  • business transactions with a client must be transparent and fair.[iii]

With these principles in mind, I should stop.  If I don’t, my second post in 2 months would go on so long that readers would wish I’d taken a permanent vacation from blogging.

Alas, I’d be remiss not to mention the following points, each of which is made in both the Nebraska and D.C. opinions.

  • Cryptocurrency is not fiat currency. It is property and must be treated as such. 
  • Before a lawyer or firm agrees to accept cryptocurrency as an advance fee, the lawyer or firm better know how to hold it safely.
  • V.R.Pr.C. 1.5 prohibits unreasonable fees. Comment [4] states that while a lawyer may accept property as payment of a fee, “a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a),” the rule that governs business transactions with a client. 
  • Indeed, the D.C. opinion concludes that Rule 1.8(a), which governs business transactions with a client, applies when (a) a client transfers cryptocurrency against which the lawyer will bill for legal services in the future; and (b) a client and lawyer agree to an ongoing relationship in which the lawyer will provide legal services in exchange for X amount of cryptocurrency per month.

Now I’ll stop.  For real.  For more, check out the opinions or give me a call.

As always, let’s be careful out there.

Related Posts

[i] The Nebraska and D.C. opinions focus on the first two, while the Ohio opinion addresses the third. 

[ii] My takeaway is not a substitute for reading the opinions themselves and may not be the same takeaway made by Disciplinary Counsel’s, a PRB hearing panel, or the Vermont Supreme Court.

[iii] In order, Rule 1.5, Rule 1.15, Rule 1.4, 1.6, and Rule 1.8.

Copying Clients on Emails to Opposing Counsel

As I’ve made the rounds this CLE season, one topic has proven especially provocative. While I’ve been blogging about it and mentioning it for a few years now, it has never generated as much discussion as it has lately. Here’s how I introduce it:

  • “How many of you have received an email from opposing counsel that opposing counsel copied to their client?”

Hands shoot up, heads nod vigorously, and eyes roll in exasperation.

Side note: when I introduce the topic, nearly everyone reports having received an email that opposing counsel has copied to their client. I find that somewhat amusing.  What are the odds that it’s only the recipients – and never the senders – who attend CLEs?

Anyhow, given the recent interest, here’s a post that I originally published in March.

legal ethics

******

March 23, 2022

I’ve long expressed concern about a lawyer copying a client on an email to opposing counsel.  I’m here to do so again.

A few weeks ago, Brian Faughnan posted his reaction to the Washington State Bar Association’s (WSBA) release of Advisory Opinion 202201.  I recommend Brian’s post.

Here’s the scenario presented in the WSBA opinion:

  • Lawyer A represents Client.
  • Lawyer B represents someone else in the same matter.
  • Lawyer A sends an email to Lawyer B.
  • Lawyer A copies the email to Client.

As have most to address the issue, the WSBA opinion focuses on the duties of the receiving lawyer.  That is, does the receiving lawyer violate Rule 4.2  by replying to all?  In a nutshell, the WSBA concluded:

  • “Short answer: It is the opinion of the Committee on Professional Ethics that “Reply All” may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.”

In its longer answer, the WSBA set out the factors that the receiving lawyer should consider when assessing whether the sending lawyer impliedly consented to a “reply-all.”  Then, the WSBA advised:

  • “To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.”

I don’t necessarily disagree. However, I continue to believe that the sending lawyer’s duties to the client are as important to the analysis. Indeed, as Brian noted in his blog post:

  • “What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion.”

I agree!  Here are few reasons why sending lawyers should think twice about the client cc.

Last year, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  I blogged about it here.  The Committee concluded:

  • “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.”

The Committee went on:

  • “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”

Now, as far as I know, the New Jersey opinion is the only to conclude that the mere fact of copying a client on an email to opposing counsel is consent for opposing counsel to reply to all. However, other jurisdictions have cautioned that it’s not best practice.

For instance, in Opinion E-442, the Kentucky Bar Association stated:

  • “Avoiding use of ‘cc’ also prevents the client to inadvertently communicate with opposing counsel by hitting the ‘reply all.’ ”

In Ethics Opinion 2018-01, the Alaska Bar Association urged caution, advising that there are situations in which lawyers who cc their clients on emails to opposing counsel risk waiving the attorney-client privilege.

Finally, in Formal Opinion 2020-100, the Pennsylvania Bar Association agreed with Kentucky and noted:

  • “When a client is copied on email (either by carbon or blind copy), the client or its email system may default to replying to all. In doing so, the client may reveal confidential information intended only for his or her lawyer or waive the attorney-client privilege.”

The opinions include helpful examples of how the privilege might be waived. In addition, each concludes that it’s best practice for the sending lawyer not to cc the client and, instead, to forward to the client the email that was sent to opposing counsel.

Of course, I’m sure many lawyers are yelling “but Mike!!!”  I get it.  Indeed, as Brian blogged:

  • “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

To be clear, I’m not stating that a lawyer violates the Rules of Professional Conduct by cc’ing a client on an email to opposing counsel.  Nor is it my role to do so. That’s a decision left to Disciplinary Counsel, a hearing panel, and, ultimately, the Vermont Supreme Court.  Also, I understand that there will be situations in which the sending lawyer impliedly consents to a reply-all or doesn’t cause any undue risk when copying a client.

Still, my role includes lending guidance. When doing so, I tend to urge lawyers to avoid risk. Hence, I agree with the numerous jurisdictions and commentators who think that it’s best practice not to copy a client on an email to opposing counsel. If only to avoid the risk of the client mistakenly replying to all.

I’ll end with this.  Many will think I’m making it up. I’m not, and I have the time stamps to prove it.

As I was drafting this post, I received an email from a criminal prosecutor.  Here’s what the prosecutor wrote:

  • “Hi Mike – I have a question about when a defense attorney cc’s a client on an email to me.  If memory serves, when responding, I should remove the client from the email chain as that could be considered contact with a represented individual.  Is that still the recommended practice?”

In my opinion, yes.  But in New Jersey? Maybe not.

More importantly, the prosecutor’s scenario demonstrates the risk in copying a client on an email to an opposing counsel.  Can you imagine if a criminal defendant mistakenly replies all and discloses information that is subsequently used against them?

As always, be careful out there.

*****

Related posts:

Advisory Opinions

A quick recap of the 7 Cs of Legal Ethics

Welcome to Friday!

I’m taking a week off from the quiz. Still, I don’t want to leave anyone without their weekly refresher in legal ethics & professional responsibility!  So, motivated by last night’s huge win by the Cs, I’m sharing a video in which I provide a brief (9:39) overview of the 7 Cs of Legal Ethics.

  • Competence
  • Communication
  • Confidentiality
  • Conflicts
  • Candor
  • Commingling
  • Civility

Enjoy the weekend!

There are reasons to consider not copying a client on an email to opposing counsel.

I’ve long expressed concern about a lawyer copying a client on an email to opposing counsel.  I’m here to do so again.

A few weeks ago, Brian Faughnan posted his reaction to the Washington State Bar Association’s (WSBA) release of Advisory Opinion 202201.  I recommend Brian’s post.

Here’s the scenario presented in the WSBA opinion:

  • Lawyer A represents Client.
  • Lawyer B represents someone else in the same matter.
  • Lawyer A sends an email to Lawyer B.
  • Lawyer A copies the email to Client.

As have most to address the issue, the WSBA opinion focuses on the duties of the receiving lawyer.  That is, does the receiving lawyer violate Rule 4.2  by replying to all?  In a nutshell, the WSBA concluded:

  • “Short answer: It is the opinion of the Committee on Professional Ethics that “Reply All” may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.”

In its longer answer, the WSBA set out the factors that the receiving lawyer should consider when assessing whether the sending lawyer impliedly consented to a “reply-all.”  Then, the WSBA advised:

  • “To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.”

I don’t necessarily disagree. However, I continue to believe that the sending lawyer’s duties to the client are as important to the analysis. Indeed, as Brian noted in his blog post:

  • “What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion.”

I agree!  Here are few reasons why sending lawyers should think twice about the client cc.

Last year, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  I blogged about it here.  The Committee concluded:

  • “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.”

The Committee went on:

  • “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”

Now, as far as I know, the New Jersey opinion is the only to conclude that the mere fact of copying a client on an email to opposing counsel is consent for opposing counsel to reply to all. However, other jurisdictions have cautioned that it’s not best practice.

For instance, in Opinion E-442, the Kentucky Bar Association stated:

  • “Avoiding use of ‘cc’ also prevents the client to inadvertently communicate with opposing counsel by hitting the ‘reply all.’ ”

In Ethics Opinion 2018-01, the Alaska Bar Association urged caution, advising that there are situations in which lawyers who cc their clients on emails to opposing counsel risk waiving the attorney-client privilege.

Finally, in Formal Opinion 2020-100, the Pennsylvania Bar Association agreed with Kentucky and noted:

  • “When a client is copied on email (either by carbon or blind copy), the client or its email system may default to replying to all. In doing so, the client may reveal confidential information intended only for his or her lawyer or waive the attorney-client privilege.”

The opinions include helpful examples of how the privilege might be waived. In addition, each concludes that it’s best practice for the sending lawyer not to cc the client and, instead, to forward to the client the email that was sent to opposing counsel.

Of course, I’m sure many lawyers are yelling “but Mike!!!”  I get it.  Indeed, as Brian blogged:

  • “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

To be clear, I’m not stating that a lawyer violates the Rules of Professional Conduct by cc’ing a client on an email to opposing counsel.  Nor is it my role to do so. That’s a decision left to Disciplinary Counsel, a hearing panel, and, ultimately, the Vermont Supreme Court.  Also, I understand that there will be situations in which the sending lawyer impliedly consents to a reply-all or doesn’t cause any undue risk when copying a client.

Still, my role includes lending guidance. When doing so, I tend to urge lawyers to avoid risk. Hence, I agree with the numerous jurisdictions and commentators who think that it’s best practice not to copy a client on an email to opposing counsel. If only to avoid the risk of the client mistakenly replying to all.

I’ll end with this.  Many will think I’m making it up. I’m not, and I have the time stamps to prove it.

As I was drafting this post, I received an email from a criminal prosecutor.  Here’s what the prosecutor wrote:

  • “Hi Mike – I have a question about when a defense attorney cc’s a client on an email to me.  If memory serves, when responding, I should remove the client from the email chain as that could be considered contact with a represented individual.  Is that still the recommended practice?”

In my opinion, yes.  But in New Jersey? Maybe not.

More importantly, the prosecutor’s scenario demonstrates the risk in copying a client on an email to an opposing counsel.  Can you imagine if a criminal defendant mistakenly replies all and discloses information that is subsequently used against them?

As always, be careful out there.

Related posts:

Advisory Opinions

 

Ontario Court Addresses Tech Competence as a Tool to Increase Court Access.

Before we start, here’s an old-fashioned challenge.  “Old-fashioned” in the sense that you are not allowed to do any research or to ask for assistance.

What is a Gestetner?

Anyone who  emails me the correct answer will receive a spot on the next #fiveforfriday Honor Roll in Legal Ethics.

19gadnnsbbmz0jpg

Last week on his LawSites blog, Robert Ambrogi posted Ontario Court Lays Down the Law on Technology Competence and Video ProceedingsThe post recounts a discovery dispute that resulted in this order.

In short, Plaintiff’s counsel wanted to conduct in-person witness “examinations.”  Ambrogi reports that an “examination” is the equivalent of a deposition.  Defense counsel objected to appearing in-person, asking instead to proceed remotely.

The order summarizes the competing arguments.

Plaintiff’s counsel, who is in Toronto, argued that “that he has gone to a Toronto Blue Jays game with thousands of fans. Society is opening and he should be able to examine for discovery in person. He adds that in his view it is the ‘best’ method to conduct an examination well and properly.”

Meanwhile, the Ottawa-based defense countered that “we are in the fourth wave of the pandemic. While some parts of society are re-opening with appropriate precautions, the defendants prefer not to get together in an examiners’ office with the parties opposite, staff, and the crowd of other counsel, parties, and witnesses often there for other cases.”

In the end, the court sided with the defense, ordering that, absent an agreement to appear in-person, the examinations would be done remotely.  In reaching its conclusion, the court made several observations on how tech competence can increase access.  For example,

  • “Arrangements so that litigants do not have to take a full day off work; drive downtown and pay $40 or more for parking; or take the bus for 90 minutes each way; are real savings that promote participation and access to justice.  If a lawyer can avoid travel and waiting time because she is working at her desk until she signs-on to a virtual examination or hearing, transaction costs are decreased for clients. Avoiding paying a lawyer to come to Toronto or to go to another place is also\significant cost savings for a client through virtual proceedings. Lawyers can participate in proceedings in multiple locations on the same day virtually. The increase in efficiency in their practices is substantial.”

Next, the court conceded that there are risks associated with virtual proceedings. Specifically, participants’ unfamiliarity with technology, off-screen coaching, and an informal setting that is not as likely to result in a “solemnity for the process.”

Nevertheless, noting that technology continues to evolve in helpful ways, the court concluded that, even when the pandemic ends, we shouldn’t necessarily “just go back to the way it was.” Doing so “assumes that the ‘good old days’ were actually good.”

Finally, and as Ambrogi reported, here’s where the court laid down the law on tech competence and court access:

  • “As to the balance of convenience and any other relevant matters, [Plaintiff’s counsel] submitted that just because virtual procedures are ‘easier and more convenient’ does not overcome the presumption that examination in person is the best way to examine a witness. Au contraire I say. Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time. With the current pace of change, everyone has to keep learning technology. Counsel and the court alike have a duty of technological competency in my respectful view.”

Then, after noting that more experienced attorneys might not be as familiar with technology as newer lawyers, the court stated:

  • “Technological change affects everyone. Once upon a time, I had to learn how to use a Gestetner (Google it) and then a fax machine. I do not accept that in person is just ‘better’. It can be in some cases. But if counsel just prefers it because he or she is more comfortable with it, ought we to reject the printer because I liked my Gestetner (and Word Perfect for that matter)? The balance of convenience favours easier and more convenient processes with accompanying cost savings.”

There you have it. Competence includes tech competence, and tech competence can increase access.

Who’d have thunk it?

Tech competence: do lawyers have a duty to follow the news?

The early days of this blog featured me harping on the duty of tech competence.  Long-time readers might remember the refrain: competence includes tech competence.

While they might not know it, two of my ethics gurus are Lucian Pera and Catherine Reach.   I consider each a friend of this blog and am particularly thankful for their thoughts and work on a lawyer’s duty to understand the risks and benefits that technology brings to the practice of law.

In the current issue of Law Practice Magazine, Lucian explores the idea that the duty of tech competence includes following the news.  After setting the groundwork by referencing the applicable Rules of Professional Conduct, Lucian writes:

  • “My pitch: As lawyers, we need to be alert to the news of hacks and cybersecurity incidents, whether specifically about lawyers or not, and we should have regular conversations with our tech gurus about them. They are teachable moments.  We need to train ourselves to be in regular learning mode. Because we can learn from others’ experiences and mistakes.”

From there, Lucian uses two cyber incidents – one widely reported, the other less so – to make the argument.  Lucian concludes:

  • “Our ethical obligations amid the dangerous tech environment in which we find ourselves demand that we stay informed about new threats and how we are positioned to protect ourselves.”

I’m no fan of the news and, but for sports news, avoid it on purpose.[1]  It’s part of my personal wellness campaign. Still, I agree with Lucian’s point.  And, as I blogged here, I agree that lawyers can learn cybersecurity lessons from other professions.

I know what you’re thinking: “Mike, that’s all well & good, but how do I stay up on tech news?”

Here’s one way: check out Catherine’s work for the North Carolina Bar Association’s Center for Practice Management.

Following up on Lucian’s article, Catherine posted Staying Up to Speed on Security. Catherine’s post includes helpful “resources to subscribe to or follow to keep up to date with the constantly shifting sands of cybersecurity.” It’s worth the read and might lead to the one tip that saves you from learning this stuff after it’s too late.

As always, let’s be careful out there.

Taylor-Swift-evermore

[1] Due to my news blockade, I only learned today – from a lawyer who called with an inquiry – that Taylor Swift did not win this year’s AMA Artist of the Year.  The Rules of Professional Conduct frown upon impugning judges’ integrity.  Alas, there can be no other explanation!

Emoji Law Update: Lawyer & Client Sanctioned For Submitting Fabricated Evidence.

In July, I posted Emojis and the duty of competence.  In it, I suggested that an aspect of competence is understanding that emojis have meaning.  Or, as Olga Mack pointed out in Bloomberg Law’s Emojis and Visual Literacy: A Guide for Lawyers, emojis are language and, as it always has, competent representation includes interpreting, explaining, and contextualizing language that affects your clients’ matters.

Some pushed back on my post.  A few lawyers emailed me to argue that it’s unreasonable to expect them to know what emojis mean.  I disagree.  “Emoji law” has been a thing for quite some time. For example, in 2017 and referring to a case in which a court concluded that emojis can convey intent, Vermont’s own Ed Adrian tweeted:

Today, I’m here to share a recent case in which the defendant in a sexual harassment case is probably pretty danged relieved that the defense team acted competently.  While the tech competence on display involved much more than understanding an emoji, the case should serve as a cautionary tale for any lawyer who takes the position “I don’t need to know about smiley faces and thumbs.”

Plaintiff used to work at a medical center.  Plaintiff informed management that Supervisor had sexually harassed Plaintiff.  Management fired Plaintiff.  Plaintiff sued, alleging that management retaliated against Plaintiff for complaining about Supervisor. This summer, United States District Court Judge Denise Cote issued an opinion dismissing the case with prejudice and imposing monetary sanctions against both Plaintiff and Plaintiff’s attorney.  Among others, eDiscovery Today, the Technology & Marketing Law Blog, and the ABA Journal reported the story.

The opinion includes an image of text messages that Plaintiff claimed to have received from Supervisor.  One of messages included the so-called “heart eyes” emoji: 😍.  The court described the image as “the primary piece of evidence that [Plaintiff] was harassed by [Supervisor].”  Then, the court inserted the image and wrote “[t]his image is a fabrication.”

Cutting to the chase, defense counsel’s forensic examination of the image determined that it could not have been received on the iPhone on which Plaintiff claimed to have received it.[1]  Among other things, Plaintiff’s iPhone’s operating system would not have displayed the “heart eyes” emoji as it appeared in the image.[2]

In July’s post, I quoted Kevin Lumpkin.  Kevin regularly appears on this blog’s #fiveforfriday legal ethics Honor Roll.  Kevin proved prescient on emojis & tech competence, including by stating “[t]he real trick is to put a potentially misleading emoji in context.”

Indeed.

My final thought will make some of you 😡.

When it comes to competence, there will be many situations in which “I don’t do emojis” won’t cut it.

Legal Ethics

[1] From a tech competence/eDiscovery perspective, don’t cut to the chase.  The opinion is worth reading.  Defense counsel’s tech competence involved understanding much more than a single emoji.

[2] In the eDiscovery Today post on this case, Doug Austin points out that Emojipedia shows what emojis look like on different platforms and in different versions of each.  The post includes pictures of how each of Apple’s operating systems depict the “heart eyes” emoji.

Tech competence: don’t take the wrong message from this NJ decision declining to sanction a lawyer.

When I created this blog, many early posts focused on technology.  Long-time readers probably remember the mantra “competence includes tech competence.”  Key points included:

  1. At some point, a basic understanding of technology that impacts client matters is required.
  2. Technology is always evolving.
  3. Even if you don’t know everything about a new technology, sometimes it helps to analogize to a “paper” or “real life” situation.

Weaved into the messaging was a reminder that “but I don’t even know how that stuff works!” likely won’t excuse a violation of the Rules of Professional Conduct.  Which is why today’s story so interests me.

As reported by the ABA Journal, the New Jersey Supreme Court recently dismissed disciplinary charges against a lawyer whose paralegal had obtained information directly from a represented adverse party via Facebook.  Law360 and Law.com also reported the opinion.

First, I’m going to summarize what happened. Then, I’m going to share several of the New Jersey Supreme Court’s statements with which I agree, and one that gives me pause.

What happened?

Flashback to 2007.  Yes, 2007.  Plaintiff, a police officer, was struck by a police car while exercising in the police station’s parking lot.  Plaintiff sued the police department.  Plaintiff claimed significant injuries.

Attorney represented the Department. In 2008, Attorney instructed Paralegal to “conduct internet research” into Plaintiff.  Paralegal found Plaintiff’s Facebook page.

With respect to what happened next, here’s what’s not in dispute:

At a time when Attorney knew that Plaintiff was represented, Paralegal became Facebook friends with Plaintiff.  Paralegal found a video showing Plaintiff wrestling.  Paralegal downloaded the video and gave it to Attorney.  Attorney believed that the video was made after Plaintiff was struck by the police car.  So, another lawyer in Plaintiff’s firm asked questions about the video during Plaintiff’s deposition.  Afterwards, Attorney forwarded the video and other postings to Plaintiff’s Counsel.  Never having consented to direct communication with Plaintiff, Counsel filed an ethics complaint against Attorney.

Not all was undisputed.  At a disciplinary hearing that, for reasons not important here, did not happen until April 2018, different versions of what else happened next emerged.

Paralegal’s version:  for a while, Plaintiff’s Facebook account was public, Paralegal monitored the account, and reported publicly available information to Attorney.  The account became private. Paralegal told Attorney that the only way to continue to monitor the account was to become Facebook friends with Plaintiff.  Attorney did not seem to understand Facebook privacy settings or friend requests and instructed Paralegal to send a message that would grant access to Plaintiff’s postings.  Paralegal sent a Facebook message to Plaintiff stating that Plaintiff looked like Paralegal’s favorite hockey player.  Plaintiff responded with “flirtatious messages” and a friend request.  Paralegal accepted the request and resumed monitoring the account.

Plaintiff’s version:  the account was always private.  Paralegal sent a friend request that Plaintiff accepted.  Plaintiff messaged Paralegal, asking who Plaintiff was.  Paralegal replied that Plaintiff looked like Paralegal’s favorite hockey player.  Nothing in Paralegal’s profile or reply indicated that Paralegal worked with Attorney.

Attorney: I told Paralegal to conduct internet research.  Back then, I didn’t know what it meant to be Facebook friends or that Facebook offered various privacy settings.  I did not tell Paralegal to friend Plaintiff.   I told Plaintiff to monitor any information about the lawsuit that Plaintiff posted to the internet. I believed that information posted to Facebook was available to all and that the duties of competence and diligence that I owed to my client required me to review such information.

Over many years, the case worked its way through New Jersey’s disciplinary system.  Eventually, at the trial level, a Special Master concluded that Attorney did not violate the Rules of Professional Conduct.

On review, the Disciplinary Review Board (DRB) concluded otherwise, determining that Attorney violated (1) the rule that prohibits communication with represented persons; (2) the rule that prohibits dishonesty (Paralegal’s failure to identify Paralegal’s role was a misrepresentation by omission); and (3) the rule that required Attorney to ensure that Paralegal’s conduct conformed with Attorney’s professional obligations.

In the end, the New Jersey Supreme Court dismissed the charges, concluding that they had not been proven by clear and convincing evidence. To a large degree, the court’s opinion recognizes that the ultimate decision turns on witness credibility and that the Special Master – not the DRB or the court – was in the best position to assess credibility having presided over the evidentiary hearing.

Still, several of the court’s statements bear noting.  Because while the court declined to sanction Attorney, it also made clear our duties with respect to tech competence.

For instance,

  • “[Attorney] may have had a good faith misunderstanding about the nature of Facebook in 2008, as the special master found; but there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms.”

The court went on:

  • “When the communication is ethically proscribed, it makes no difference in what medium the message is communicated. The same rule applies to communications in person or by letter, email, or telephone, or through social media, such as Facebook.”

Finally,

  • “Lawyers must educate themselves about the commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven.”

I don’t disagree with any of the quoted statements.  I’m especially a fan of refusing to find port in the storm for the “the defense of ignorance.”  Yet, it’s another statement that gives me pause.

Essentially, a single statement underpins the court’s opinion:

  • “What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute to [Attorney] in 2008 when Facebook was in its infancy.”

I get it.  Really, I do.  But, for practicing lawyers and their nonlawyer assistants, I urge caution.

On tech competence, people in my practice area have been clear: we are long past the day when we will provide “hard and fast” pronouncements on each new technological development.  Rather, lawyers are reminded that technology will continue to develop and, as it does, lawyers remain under a duty to ensure that their use of technology complies with the Rules of Professional Conduct.[i]

Whether 2030, 2025, or sooner, there will be a new way to communicate that none of us has ever imagined.  In my view, the New Jersey opinion should not be viewed as suggesting that, with brand new technology, lawyers can use first, ask questions later.  That is, with respect to the conclusion that a technology’s “infancy” may excuse a violation, I’d be very careful in how I define “infancy.” Indeed, as I read the NJ opinion, both Paralegal and Plaintiff were well-versed in how Facebook worked. It was only Attorney who was not.

Also, for two reasons, don’t forget my point about analogizing to “paper” or “real life.”

First, when the day comes that an assistant asks you if you want to communicate with a represented person via the assistant’s Ansible, I hope your reaction isn’t “I wonder what Ansible is.”  Instead, I hope warning bells go off as you respond, “we can’t communicate with a represented person!!”[ii]

Second, I suppose an assistant might resort to Ansible without asking you first.  So, remember: if someone brings you information that seems too good to be true, it just might be.

Competence includes tech competence.  As always, be careful out there.

Social Media

[i] See, ABA Formal Opinion 477R

[ii] It’s okay if you clicked on the Wiki entry for Ansible before realizing that that you’d been asked to communicate with a represented person.  As an old coach, it’s best to make mistakes in practice, learn from them, and not repeat them in games.