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.

“This is a cautionary tale for every attorney who litigates in the era of e-filing.”

Today’s post recounts the second story whose genesis lies in yesterday’s lunchtime walk to Beansie’s.  The first is here. While each story relates to tech competence, the relationship ends there and the two do not need to be read in order.  And, no, I didn’t go again today. But I was tempted!

Beansies

Anyhow, today’s headline was meant to catch your attention.  If you’ve already forgotten, here it is again:

  • “This is a cautionary tale for every attorney who litigates in the era of e-filing.”

The headline is the opening line of this decision issued Monday by United States Court of Appeals for the Fifth Circuit.  The ABA Journal reported the story here.

I’ve not done any research.  So, for all I know, this issue has been litigated in Vermont state courts or the United States District Court for the District of Vermont.  Nevertheless, I’m sharing the story because my sense it that “cautionary tales” for litigators warrant doing so.

In a nutshell, Attorney represented Client in a personal injury action against Employer. Shortly before an agreed upon deadline to file dispositive motions, Employer’s Counsel filed a motion for summary judgment.  Attorney did not learn that the motion had been filed.   According to the opinion,

  • “That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed.”

Four days after the motion was filed, Attorney contacted Employer’s Counsel to discuss settlement.  No agreement was reached and, apparently, the summary judgment motion did not come up.

Shortly thereafter, the deadline to respond to the motion passed.  Not knowing of the motion, Attorney did not file a reply.  Within a week of the reply deadline passing, a federal district court entered judgment in favor of Employer.

A week later, Attorney again contacted Employer’s Counsel to discuss settlement.  It was only then that Attorney learned that the district court had granted the motion for summary judgment.

Attorney moved to alter or amend the judgment.  As reported by the ABA Journal, Attorney “did not see any notice of [the] summary judgment motion because his email system sent it to a folder labeled ‘other.’  All prior case filings had gone to his firm’s main email box.”

The district court denied the motion to alter or amend the judgment.  A 3-judge panel of the Fifth Circuit affirmed.  Relying on precedent, the appeals court concluded that the district court did not commit “manifest error to deny relief when failure to file was in [Attorney’s] reasonable control.”  Rather, the court noted:

  • Attorney had agreed to receive notice by email;
  • Notice of Employer’s motion was sent to the email address that Attorney had provided; and
  • Attorney “was plainly in the best position to ensure that his own email was working properly – certainly more so than the district court or [Employer].”

The court added that Attorney “could have checked the docket after the agreed deadline for dispositive motions had passed.”

The ABA Journal post includes additional information that interested me.

  • “[Attorney] says his firm had never had a problem with e-filing or with the email system. The opposing counsel never separately notified [Attorney] of the filing and continued settlement talks with the apparent knowledge that [Attorney] wasn’t aware of the pending motion, [Attorney] says.”

This reminds me of (1) a debate that Judge Hoar led when the bar was discussing the “professionalism” requirement many years ago; and (2) a hypothetical that Andrew Manitsky presented to the audience during a VBA seminar on “Ethics in Negotiation” that he, Tad Powers, and I presented.

The ABA Journal goes on:

  • “After [Attorney] learned of the granted summary judgment motion, his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system, he says. The firm tried to open the email, but it had been corrupted.  [Attorney] says that, in his opinion, the 5th Circuit’s “lawyer beware” decision implies that e-filing lawyers will have to check the docket by the dispositive motion deadline and will have to make sure motions have been filed.”

Again, I haven’t looked for any Vermont decisions that address this issue.  Still, and as always, be careful out there.

Tech Competence, Screen Sharing, and Client Confidences.

Around 1PM, it felt like (another) day without a blog post.  Then, I went to lunch.

My office is in downtown Burlington.  Today, and despite the heat, I chose to walk to Beansie’s.

Beansies

Waiting for my cheeseburger topped with peppers & onions, I checked my email.  There, I found the first of two stories to post.  Perusing my phone while I ate my burger in the shade[1], I found the second.  Each involves technology.  As we know, a lawyer’s duty of competence includes tech competence.

Story 1

A Vermont lawyer forwarded me an email from another lawyer in the same firm.  The co-worker wrote:

  • “I’m in a deposition – other attorney’s email notifications keep popping up on screen share.  Seems like that could risk divulging attorney-client privileged information.”

Yes. Yes, it could.

I can sense some of you disagreeing.  You’re thinking “what could be privileged about an email notification?”

Well, I don’t know.  That’d be for a court to decide in the context of an attempt to compel disclosure.

But I do know this.

Rule 1.6 of the Vermont Rules of Professional Conduct prohibits a lawyer from disclosing information relating to the representation of a client. As I’ve oft stated in this space, Comment [3] makes clear that the rule’s prohibition is broader than the privilege.  The comment notes that the privilege applies “in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”  It goes on to state:

  • “The rule of confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.  A lawyer may not disclose information except as authorized or required by the Rules of Professional Conduct or other law.”

Neither the Rules nor other law include an exception for “it popped in while I was sharing my screen.”

The internet includes a plethora of resources on the various ways to avoid this problem.

I present a lot of CLEs via Zoom, WebEx, and Teams and often share my screen throughout a presentation.[2]  I’m petrified of having an email notification pop up and disclose (to some extent) a confidential inquiry of bar counsel.  So, I go old-fashioned.  When presenting, I close Outlook and all chats functions.

As always, be careful out there.

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Note: In that I strive to avoid TLDR in the comments, Story 2 will follow later today or early tomorrow.  Stay tuned.

[1] Many readers know my preference for summer over winter. I suppose this week’s weather has some considering whether to ask, “how do you like summer now?”  Just as much as I did before!  Because in January, I wouldn’t be able to walk over to Beansie’s in shorts and t-shirt and enjoy my lunch outside.

[2] I also make sure that the only screen open is the one that I intend to share and that I choose that particular window instead of “screen 1” when I start the share.

Emojis & the duty of competence.

Long-time readers probably remember the phrase “competence includes tech competence.”  I suppose, then, we should have known that today’s post would eventually be published.  Still, I expect the collective response to be something along the lines of:

☹️ 😠 😧 🤬 😱😒 😖

The duty of competence likely includes understanding that emojis can be critical to your client’s matter.

Earlier this week, I found Bloomberg Law’s Emojis and Visual Literacy: A Guide for Lawyers. The post fascinated me.  The author, Olga Mack, reminds lawyers that our work for our clients often includes language. Specifically, interpreting its meaning, explaining it, and putting it into context.  As Mack points out, emojis are a form of language.

For instance, imagine a client comes to you to enforce a contract.  One of the first things you’d do is ask to review the contract. What if the contract is a series of text messages that end with the other person replying to your client 🤝 🖊️🤝 🖊️?

Mack makes that exact point early in the post by asking:

  • “Can the handshake emoji 🤝 convey the sender’s contractually binding acceptance of preceding terms?”

The post so interested me that I did a bit of research.  The results included Above The Law’s Is Emoji Law Going To Be A Thing?  Consider this paragraph:

  • “Anytime some kind of ‘new’ form, method, or medium of communication pops up, people worry that courts will struggle to understand them and it will lead to vast miscarriages of justice. And you can see why. If your boss starts texting you ‘eggplants’ and ‘peaches,’ a dumb-ass judge might think that he’s just suggesting a recipe, but you know what’s really up. Our courts are going to have to become emoji literate, sooner rather than later.”

Confused?

Well, my research also included asking several Vermont lawyers if they’ve had to argue over or litigate the meaning and interpretation of emojis.  A State’s Attorney informed me that there’s been at least one criminal case involving youths, the exchange of pornography, and the use of the peach emoji 🍑 to signify a bare behind.

Back to the ATL post.  The author goes on:

  • “But, unlike some other olds, I’m not too worried about it. Judges and juries have a long and relatively successful history of ruling on issues that they do not even begin to understand. We don’t need to worry about a judge misinterpreting the latest emoji-speak for ‘sex’ or ‘crime’ or ‘let’s kill your husband.’ What we need to worry about is making sure that our soon-to-be coming crop of ‘emoji interpretation experts’ get recognized under Daubert to explain this to a judge or jury.”

And isn’t that where the duty of competence comes in? Understanding that your job will include trying to convince someone what your client meant when using an emoji or reasonably understood from another’s emoji?

Kevin Lumpkin regularly appears on this blog’s #fiveforfriday legal ethics Honor Roll.  I asked Kevin if he’s ever had to litigate the meaning of an emoji.  He hasn’t, but shared some thoughts that I think capture the competence issue perfectly:

  • “Based on limited experience with an emoji in one of my cases, I would think that the analysis turns on context and testimony just like interpretation of slang, sarcasm, or jest would. As far as competence goes, I would think that the biggest thing for attorneys to understand is that they need to be able to explain an emoji’s use in context to ensure that is interpreted correctly.  Kind of a like a prosecutor is really good at eliciting testimony to translate messages that cryptically reference drug activity.”

Kevin added:

  • “The real trick is to put a potentially misleading emoji in context correctly.  As an example, the skull emoji has overtaken the laughter emoji to indicate that something is funny.  Depending on the circumstances, I could see that being misinterpreted.  To make your gun emoji example[1] more complicated, not every platform displays every emoji uniformly, and then gun emoji has actually changed over time and wasn’t always consistent across platforms.  Depending on the timing, sender could be seeing a fake-looking super soaker type gun on their phone and recipient could be seeing a revolver on theirs!  If sender’s attorney assumes that the recipient’s view of the gun emoji is the one their client saw and doesn’t investigate the potential difference, that’s bad news!”

Yes, it is!

As the National Law Review noted in An Emoji is Worth 1,000 Words:

  • “Context matters. The same emoji can be texted by the same person to different people and mean something completely different. Legal professionals need to be mindful of this. Often context will only be found in further discovery—interrogatories, depositions, etc., but only if you know what questions to ask.”

In other words, don’t assume the emoji means what you think it means.

Elizabeth Kruska is the President of the Vermont Bar Association’s Board of Managers and another frequent member of the #fiveforfriday Honor Roll.  Elizabeth clued me into the Vermont Supreme Court’s opinion in State v. Harwood. It’s an opinion in which an emoji played a bit part, thus requiring the Court to include a footnote indicating that:

  • “An emoji is a “small digital image or icon used to express an idea, emotion, etc., in electronic communications.” Emoji, Oxford English Dictionary (3rd ed. 2013), https://www.oed.com/view/Entry/389343

So, emojis are working their way up![2]

I’ll conclude with this.

As technology, society, and the way we communicate changes, a lawyer’s duty remains the same: to provide the client with competent representation.  There will most certainly be situations in which understanding the meaning and use of emojis is central to satisfying the duty of competence.

With ❤️,

Bar Counsel.

emojis

[1] I’d posited to Kevin “Is a ‘gun’ emoji sufficient to constitute a criminal threat?”

[2] The Court’s opinion so interested President Kruska that she started “poking around a bit.”  In addition to her law practice, Elizabeth is an adjunct professor at VLS.  A student asked Elizabeth to supervise a research project. Elizabeth agreed and the project resulted in the student authoring a paper on the use of emojis as evidence.  Elizabeth and the student are revising the paper for publication in an upcoming edition of the Vermont Bar Journal.  Once it appears, I intend to link to it.

Tech Competence and . . . flipping the bird?

It’s been a while since I’ve posted.  I love easing my way back into blogging with quick hitters.  So, without further ado:

Tip #1.   During a remote hearing, whether angry at yourself, opposing counsel, the court, or a screen that’s blank, frozen, or otherwise not working properly, don’t “flip the bird” at your camera.

Tip #2.  If you forget Tip #1, be honest when the court asks you what it just saw.

Today’s post comes thanks to a tip from Catamount Law’s Samantha Lednicky.  Last week, Sam sent me this order issued by the Michigan Court of Appeals.  The ABA Journal and Detroit Free Press have coverage.

I leave further reading to curious minds.

Flip the Bird

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Go here for all my posts categorized or tagged as “tech competence.”