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

Related Posts:

Preparing for a remote hearing? Maybe check your client’s screen name

Tech Competence & Cats

Tech Competence Posts:

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

Proposed Florida Opinion would allow mobile payment of legal fees as long as lawyers protect client confidences and safeguard funds.

I know a guy who runs an NCAA tournament pool.  He told me that most participants paid via Venmo or PayPal.  A few, however, sent checks in the mail.  Hearing this made me realize that there are people who do not know how mobile payment apps work.

Last week, the Florida Bar’s Professional Ethics Committee approved Proposed Advisory Opinion 21-2.  The proposed opinion concludes that Florida’s ethics rules do not prohibit a lawyer from accepting payment via apps like Venmo & PayPal if the lawyer:

  1. protects client confidentiality; and,
  2. takes reasonable steps to safeguard funds held in connection with a representation.

This press release summarizes the proposed opinion. It now goes out for comment and will considered for final adoption in June.

Next week, I’ll blog about the opinion’s consideration of the trust account rules.  Today, I’m more interested in the first part of the opinion.  In my view, it provides helpful reminders and guidance on tech competence and client confidentiality.

Some of you might be wondering: what does a mobile payment app have to do with client confidentiality?  Well, there you have it: tech competence.  You need to know what you don’t know.

Like the Florida opinion, let’s use Venmo as an example.

Venmo is more than just a payment processor.  In a way, it’s a social media platform.  Here’s language from the Florida opinion:

  • “For example, Venmo users, when making payment, are permitted to input a description of the transaction (e.g., ‘$200 for cleaning service’). Transactions are then published to the feed of each Venmo user who is party to the transaction. Depending on the privacy settings of each party to the transaction, other users of the application may view that transaction and even comment on it.”

To illustrate the point, if you download the Venmo app, here’s what you’ll see before you log-in or sign-up:

IMG_5777

From the third transaction in the feed, we know that Skye F and John G had a virtual coffee date.  Let’s hope that their privacy settings are such that one or the other’s significant other didn’t find out.

As an aside, did the date not go well? Is that why Skye charged John??  Anyhow, I digress.

Now, apply this to real life.  Yes, accepting mobile payments might make it easier to run your law office.  However, things might become more difficult if your privacy settings are such that the entire world, including John G’s unsuspecting spouse, learns from Venmo that your firm charged John G. for “divorce consultation.”

Here’s the answer, courtesy of me logging into Venmo and opening my privacy settings:

IMG_5778

Finally, here’s a great paragraph from Florida’s proposed opinion.  The first sentence aside, it applies to every single circumstance that involves information relating to the representation of a client:

  • “For lawyers, accepting payment through a payment-processing service risks disclosure of information pertaining to the representation of a client in violation of Rule 4- 50 1.6(a) of the Rules Regulating The Florida Bar. Rule 4-1.6(a) prohibits a lawyer from revealing information relating to representation of a client absent the client’s informed consent. This prohibition is broader than the evidentiary attorney-client privilege invoked in judicial and other proceedings in which the lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The ethical obligation of confidentiality applies in situations other than those in which information is sought from the lawyer by compulsion of law and extends not only to information communicated between the client and the lawyer in confidence but also to all information relating to the representation, whatever its source. Likewise, a lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation. The obligation of confidentiality also arises from a lawyer’s ethical duty to provide the client with competent representation. This includes safeguarding information contained in electronic transmissions and communications.”

From there, the opinion makes several suggestions.  To me, they boil down to this one:

  • “The lawyer must make reasonable efforts to understand the manner and extent of any publication of transactions conducted on the platform and how to manage applicable settings to preempt and control unwanted disclosures.”

That’s all for now.  Next week I’ll discuss the section of the opinion that deals with the trust account rules.

Related post:

NJ Committee concludes that a lawyer who copies a client on an email to opposing counsel impliedly consents to “reply-all.”

Updated, 4:24 PM on 3/26/21 to include the advisory opinions linked at the end of the post.

Here’s the situation:

  • Attorney represents Blue.
  • Lawyer represents Red.
  • Attorney emails Lawyer and copies Blue.

For years, lawyers in Lawyer’s shoes have informed me how much it bothers them for Attorney to copy Attorney’s own client on an email to opposing counsel.

Earlier this month, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  The Committee concluded “that lawyers who include their clients in the ‘to’ or ‘cc’ line of a group email are deemed to have provided informed consent to a ‘reply all’ response from opposing counsel that will be received by the client.”  Thus, in my example, Lawyer would not violate Rule 4.2 by “replying-all” to Attorney’s email.

The opinion doesn’t surprise me.  Given the nature of email, I expected that someone would eventually conclude that “cc” invites a “reply-all.”  Still, I urge caution.

As the Committee acknowledges, New Jersey is the first jurisdiction to reach this conclusion.  The opinion cites to advisory opinions from five other states that reached the opposite.  The Committee states:

  • “Many of these opinions caution the sending lawyer that it is inadvisable to include the client on the email, acknowledging that the sending lawyer may be ‘setting up’ opposing counsel for an ethics violation. The Committee finds that these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”

In its coverage of the New Jersey opinion, JDSupra urges caution as well:

  • “Best practices also suggest that attorneys should avoid copying their clients on emails they send to opposing counsel so as not to imply consent for opposing counsel to communicate with the client. Any email sent to opposing counsel can just as easily be forwarded to a client.”

I agree, albeit for a different reason.  I’m not as concerned that the receiving lawyer might reply-all as I am that the sending lawyer puts their client at risk of doing the same, thereby disclosing confidential information to opposing counsel. Thus, to me, the lawyer who copies a client on certain emails to opposing counsel risks running afoul of Rule 1.1 (competence) and Rule 1.6 (confidentiality).

Still, the New Jersey opinion is interesting.  First, the Committee compared letters to conference calls:

  • “There is no question that a lawyer who receives a letter from opposing counsel on which the sending lawyer’s client is copied may not, consistent with Rule of Professional Conduct 4.2, send a responding letter to both the lawyer and the lawyer’s client. In contrast, if a lawyer were to initiate a conference call with opposing counsel and include the client on the call, the lawyer would be deemed to have impliedly consented to opposing counsel speaking on the call and thereby communicating both with the opposing lawyer and that lawyer’s client.”

Then, the Committee concluded that a group email is more like a conference call than a letter:

  • “Email is an informal mode of communication. Group emails often have a conversational element with frequent back-and-forth responses. They are more similar to conference calls than to written letters. When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers. The clients are mere bystanders to the group email conversation between the lawyers. A ‘reply all’ response by opposing counsel is principally directed at the other lawyer, not at the lawyer’s client who happens to be part of the email group. The goals that Rule of Professional Conduct 4.2 are intended to further – protection of the client from overreaching by opposing counsel and guarding the clients’ right to advice from their own lawyer – are not implicated when lawyers ‘reply all’ to group emails.”

In addition, the Committee concluded that it would be unfair to require the receiving lawyer to sort through the email addresses of those copied to determine who should and should not be included on the reply.  That is, that in this day & age, the general norm is that a “cc” invites a “reply-all.”

Unsurprisingly, the Committee cautioned receiving lawyers against replying directly to the copied client without including the sending lawyer on the reply.

As always, be careful out there.

Update:  here are six opinions from other states, each of which advises that the receiving lawyer may not “reply-all” to an email in which the sending lawyer copies sending lawyer’s client.  All but the Pennsylvania opinion are cited in the New Jersey opinion.

Legal Analytics

 

Tech Competence & Cats

Back when I blogged more often than I do now, I’d post about tech on Tuesdays.

Today, I didn’t intend to blog. Alas, in the past hour, numerous readers have emailed or texted me the same story.  Initially, it came from lawyers. Then, my friend Waskow texted me and my brother, with my brother replying, “I hope this makes the blog.”

When the non-lawyers chime in, who am I not to share a cautionary tale involving tech competence?

Lawyers: may your careers in law never require you to tell a judge “I’m not a cat.” 

If the Florida Bar’s tweet doesn’t work for you, it’s on YouTube here.

Social Media isn’t the Problem

Last fall, I posted Social Media & Legal Ethics: Keep it Real.  Echoing a point I’d stressed at a recent CLE, it’s a post in which I argue that when it comes to violations of the Rules of Professional Conduct, social media isn’t the issue.  Rather, the issue is conduct that is unethical even if never posted to social media.

Today, I’m here to argue that a comparison of three recent headlines proves my point.

Respectively, the headlines are from Law & Crime, the ABA Journal, and the Tennessean:

  1. Nashville lawyer suspended after posting how to make murder look like self-defense.
  2. Lawyer suspended for Facebook advice on how to shoot an abuser and avoid a conviction.
  3. Tennessee Lawyer Suspended for Telling Woman How to Get Away with Killing Her Ex.

Unlike the first two, #3 doesn’t reference social media.  But doesn’t it convey all you need to know?

Don’t advise people how to get away with murder!

Social Media

The opinion from the Tennessee Supreme Court is here. The first line of the opinion is:

“This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

True enough.

But it’s also a case that is a cautionary tale on the ethical problems that can befall lawyers who advise people on how to get away with murder.

Sure, posting the advice to social media might make it more likely that you get caught, but social media isn’t the problem.

The problem is the advice!

Here, there’s no difference between the lawyer giving the advice in a private room or crowded bar and the lawyer posting the advice in a Facebook comment.  Nevertheless, we seem intent on convincing lawyers that social media poses ethical risks when, in fact, social media only provides lawyers with a medium to advertise conduct that is otherwise unethical.

Social media doesn’t make it wrong.  Doing it makes it wrong.

This said, I’m relieved by an aspect of the Tennessee decision.  The lawyer argued something to the effect, and I paraphrase, “obviously I was kidding! Who would be so dumb as to post something like that to social media if they weren’t being sarcastic?!?”

Indeed.

Still, had the Tennessee court agreed, it would’ve provided the ultimate out: “the fact that I put it on in social media is proof that I didn’t engage in misconduct.”

No.

The fact that you used social media to engage in or publicize conduct that is unethical is proof that you violated the rules.

Related Posts

Phishing Scam

Over the past two days, many of you may have received emails from “Dropbox Transfer” that purport to include files sent to you by a lawyer.  It is likely a phishing attempt.  Don’t click on links, open attachments, or download files without first contacting the attorney who supposedly is trying to transfer files to you.

It has happened to me twice.  Each time, I’ve received two emails purporting to be from the same attorney.   In other words, yesterday I received two emails purporting to contain “Dropbox Transfers” from Attorney A.   Today, I received two emails purporting to contain “Dropbox Transfers” from Attorney B.

Let’s pretend the emails purport to come from me.   Here are the common characteristics.  Note: where the phishing emails include hyperlinks to email addresses, I’ve replaced @ with (at) and . with (dot).

  • There is no salutation.
  • The emails are from “Dropbox Transfer <no-reply (at ) dropbox (dot) com”
  • The emails indicate “Michael Kennedy  from Bar Counsel sent you XX-XXXX.pdf”
  • The emails indicate “you can download these files now or until December __.”
  • The emails indicate  “Questions? Ask Michael Kennedy (ourcompany11 (at) iname (dot) com)”
  • The emails indicate “Download files.  Here what thy sent you.”
  • There is no signature.

Clearly, my email adddress is not “ourcompany11 (at) iname (dot) com”

As always, be careful out there.

Hill Street Blues

Is there a duty to encrypt email?

Given that it’s Friday, I’ll start with a quiz question:

Which is most accurate? A lawyer must _____

  • A.  encrypt an email that contains information related to the representation.
  • B.  encrypt an email that contains “sensitive information.”
  • C.  encrypt an email that contains privileged information.
  • D.  act competently to protect the confidentiality of information related to the representation of a client, including by taking reasonable precautions to protect against the inadvertent disclosure of or unauthorized access to that information.

The answer is D.

I understand that practicing lawyers with professional responsibility inquiries want “yes” or “no” answers. However, bar counsel types who provide ethics guidance often don’t get as specific as lawyers would like. In no area is that more common than protecting client information.

Decades ago, I’m guessing that my predecessors didn’t answer “yes” or “no” when asked “am I required to buy one of those fancy new file cabinets that has locks on each drawer?”  Rather, they replied “you are required to take reasonable precautions to protect client information.”  Whether the inquirer’s personal circumstances made file cabinets sans locks unreasonable would’ve depended on the circumstances.  For instance, were the file cabinets in a locked closet to which only the lawyer and staff had access? Or were the file cabinets in storage room that the law firm shared with other businesses that rented space in the building?

Indeed, in 2017, the ABA’s Standing Committee on Ethics & Professional Responsibility declined to set “hard and fast rules” for storing client’s electronic information. In Formal Opinion 477, the Committee essentially announced that it’s not going to review every new advance in technology. No matter the next new thing, the duty remains the same: take reasonable precautions to protect client information.

Earlier this week, Professor Bernabe posted Does a lawyer have to encrypt e-mail messages? In it, he linked to LexBlog’s Encryption Ethics. I like the LexBlog post. The author makes clear that there will come a day when the failure to encrypt is deemed unreasonable. Here’s the post’s concluding sentence:

  • “But as encryption and other safeguards get less expensive and cumbersome, your duty to implement these measures will undoubtedly increase.”

I’ve been saying the same thing for years. In 2015, I said it To encrypt or not to encrypt?  I said it again in 2017’s Encryption and the Evolving Duty to Safeguard Client Information.  In each post, I referenced various advisory opinions that make clear that, someday, technology will have evolved to the point at which it is no longer reasonable to choose not to encrypt email.  Similarly, there will come a time when it is not reasonable to use modes of information transmission or storage that do not encrypt the information in transit or at rest.

As I’ve run out of coffee and fret about having time to draft a Five for Friday post, I fear that I’ve lost focus.  So, I’ll leave you with this:  yesterday’s reasonable safeguards might be wholly unreasonable tomorrow. At the very least, take some time to think about how you and your firm are handling electronically stored client information.

Safeguarding data

Updates on Leaving a Firm, Tech Competence, and Regulatory Reform.

Today’s post updates/revisits topics I’ve previously discussed:

  • duties to clients when a lawyer leaves a firm.
  • Tech competence: it’s been 16 years (!) since Zubulake.
  • Arizona adopts significant regulatory reform.

Duties to Clients when a Lawyer Leaves a Firm

In September, I posted Leaving A Law Firm: Breaking Up Is Hard To Do.  The post highlights the duties that a departing lawyer and firm owe to clients. It’s based (mostly) on a formal advisory opinion that the ABA issued in 1999.

Then, in December, I posted this update after the ABA Standing Committee On Ethics And Professional Responsibility issued Formal Opinion 489: Obligations Related to Notice When Lawyers Change Firms. 

Update: Last month, the Ohio Board of Professional Conduct issued Formal Opinion 2020-06: Lawyer Departing a Law Firm.  The opinion tracks the most recent ABA opinion.  Summary:

  1. When a lawyer with “principal responsibility” for a client matter departs a firm, the lawyer is required to communicate the impending departure.
  2. Preferably, notice should come from both the firm and the departing lawyer.
  3. The departing lawyer should not notify clients of the impending departure before notifying the firm.
  4. Neither the departing lawyer nor the firm should state or imply that the client is the firm’s or the lawyer’s or take any action that interferes with the client’s right to choose counsel (including a new firm altogether).  Client choice remains paramount!
  5. Given the prior professional relationship, both the departing lawyer and firm may indicate a willingness to continue to represent the client.
  6. If no remaining lawyers can provide competent representation to the client, or if a conflict at the new firm prohibits the client from following the departing lawyer, the firm and lawyer must work to assist the client to find new counsel.

Thank you Professor Bernabe for the tip.

Tech Competence: it’s been 16 years (!) since Zubulake

The blog was founded on the slogan “Competence Includes Tech Competence.”  In January, and following a CLE in which I was fortunate to present with a group of highly competent litigators, I posted Competence & E-Discovery. I think it’s an okay refresher.

Last week, I fell down a rabbit hole of old articles on legal ethics and found an ABA Journal post from 2014: Looking back on Zubulake, 10 years later.  To me, it’s an interesting and informative review of the landmark decision, a decision that, really, thrust “tech competence” into the parlance.

Arizona Adopts Regulatory Reform

Last week, I blogged about the Utah Supreme Court’s decision to adopt significant changes to the Rules of Professional Conduct and the manner in which the provision of legal services is regulated. In short, acknowledging that the rules can serve as a barrier to accessing affordable legal services, the Utah Court issued Standing Order 15 which:

  • allows lawyers to share fees with non-lawyers;
  • allows lawyers to practice in entities that are owned or managed by non-lawyers; and,
  • repeals the rule that prohibits sharing fees with lawyers in other firms.

Update: The day after my post, the Arizona Supreme Court adopted similar reform  Per this press release, the “goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help. These new rules will promote business innovation in providing legal services at affordable prices.”  The changes:

  • create a process to license paraprofessionals who will be authorized to provide limited legal services in certain types of cases, including going to court with clients;
  • repeal the rule that prohibits fee sharing with a lawyer in another firm; and,
  • repeal the rule that prohibits non-lawyers from having ownership interests in law firms.

Legal Ethics

Scam Alert: imposter pretending to be a lawyer you know.

Recently, many Vermont lawyers received a barrage of emails, texts messages, and phone calls from someone pretending to be Vermont Attorney.  The contacts did not come from numbers or accounts associated with Vermont Attorney.  In each, the recipient was asked to purchase gift cards for Vermont Attorney’s nieces and nephews.

One recipient replied that he would do anything to help Vermont Attorney, but only after speaking to Vermont Attorney.  The recipient immediately received a phone call from a number other than Vermont Attorney’s.  The caller was a male with a foreign accent who claimed to be Vermont Attorney.  Vermont Attorney is not male and does not have a foreign accent.

There’s a positive aspect to the story.  As Vermont Attorney noted in an email to me:

  • “The really amazing thing is most everyone immediately responded.  Such a great thing to have a bar that protects each other!”

Indeed!

For more:

COVID-19 scams target older adults, prey on fears | Local News ...