CC, BCC, and a lawyer’s duty of competence.

I can hear you now.

  • “Mike, what the heck do CC & BCC have to do with my duty of competence?”

Thank you!! The fact that you know you have a duty of competence is music to my ears!

Now, back to your question.

In my view, the duty of competence includes a duty to have a basic understanding of the benefits and risks of using technology while representing a client.  For example, understanding the risks of “CC-ing” or “BCC-ing” a client on an e-mail to opposing counsel.

So, to bcc or not to bcc?  That is the question.  It’s a question worth considering, if only not to suffer the slings and arrows of angry clients & frustrated opposing counsel.

I’ve blogged on this issue before:

The posts reference advisory opinions from North Carolina and New York.  The opinions list the reasons not to “cc” clients, “bcc” clients, or “reply-all” to an email in which opposing counsel “cc’d” a client.   Any or all can lead a lawyer right into the danger zone.

Seriously Lana, call Kenny Loggins.

Last month, the Alaska Bar Association issued Ethics Opinion 2018-01: E-Mail Correspondence with Opposing Counsel While Sending a Copy to the Client.  The opinion is consistent with those issued by the North Carolina and New York bars.

Here’s a summary of the Alaska Bar’s opinion:

  • A lawyer has a duty to act competently to protect a client’s confidences.
  • A lawyer has a duty not to communicate with a represented party on the subject of the representation.
  • Lawyers are encouraged not to “cc” or “bcc” their clients on electronic communications to opposing counsel.
  • A more prudent practice is to forward the client a copy of a sent e-mail.
  • At the outset of any matter, lawyers should agree on a “cc” and “reply-all” protocol.
  • Absent a protocol, s lawyer has a duty to inquire whether opposing counsel’s “cc” to opposing counsel’s client is permission to “reply-all.”

Good recommendations.

Stay safe out there.  And, remember: competence includes tech competence.

Image result for hamlet to be or not to be

 

 

 

 

 

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Competent Advice & Privacy Settings

Rule 1.1 requires lawyers to provide clients with competent representation.  As nearly everyone who has read my blog twice knows, my position is that competence includes tech competence.

It’s also my position that a lawyer has a duty to provide a client with competent advice as to the impact, if any, that the client’s social media will have on a matter.

Let me be clear.

I often hear “but, Mike, I don’t want to have a Facebook account.”  I am not saying that you are required to.  Rather, I’m saying that you should know that your clients most likely do and, further, that information posted to a client’s Facebook account might impact the matter in which you are representing the client.

Here’s the latest.

Per the ABA Journal, a New York court ruled that the defense may discover photos that a personal injury plaintiff posted to Facebook and set as “private.”  The opinion is here.

The upshot:  it’s likely not competent to advise clients “don’t worry, as long as you keep it private, the other side won’t be able to access it.”

The case is one in which the plaintiff fell from a horse.  She sued, alleging that the defendant’s defective mounting of the stirrups caused the fall.  Among other things, plaintiff contends that her injuries prohibit her from many activities that she used to enjoy.

During her deposition, plaintiff testified that, prior to her fall, she had regularly posted photos to Facebook.  The defense requested access to the photos, which plaintiff had set to “private.”  Plaintiff declined to provide access.

The defense moved to compel production of the photos.  The defense argued that the photos bore on the credibility of plaintiff’s assertion that she had previously engaged in the activities that, now, she claimed she could not.

Plaintiff’s attorney countered that the single public photo on plaintiff’s Facebook account did not contradict her deposition testimony.  As such, the argument went, the defense had not established that access to the private portion of the account was likely to lead to the discovery of relevant information.

The trial court compelled production.  An appellate court modified the order to compel, limiting it only to photos that plaintiff intended to introduce at trial.  In the end, the New York Court of Appeals reinstated the trial court’s order. In so doing, the Court set out the various factors that a trial court should consider in response to a motion to compel production of information stored electronically on a social media platform.

I won’t go into the court’s decision in length.  Here are two key takeaways:

  1. As I’ve often said, electronically stored information is no different from any other information.  Or, in this case, photographs posted to Facebook are no different than photos that grandma slid behind plastic in that old, musty, album.
  2. A quote from the NY Court’s opinion (citations deleted):
    • “Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private.But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient
      privilege  But when a party commences an action, affirmatively placing
      a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

Remember: competence includes tech competence.

Social Media

Monday Morning Answers #105

I’m not positive, but methinks this week’s is the largest Honor Roll ever!

Friday’s questions are HERE.  Thanks to all who sent in responses.   I especially enjoyed hearing & reading so many wonderful stories of grandmothers & grandfathers who sound so similar to mine.  Today’s answers follow the honor roll.

67FCDEE4-4A0B-4B58-9AB7-151422E4069A

Honor Roll

Answers

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Rule 3.1 governs meritorious claims.  Prospective, Current, and Former are types of clients for the purposes of the conflicts rules.

Question 2

Attorney called me with an inquiry.  She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.”  Most likely, what issue did Attorney call to discuss?

  • A.  The duty to report a client’s fraud
  • B.  The duty to act competently to safeguard client data stored in the cloud
  • C.   Duties to a client who suffers from a diminished capacity
  • D   File delivery & the question of “what is the file?”

I might have phrased this one poorly.  Option “A” certainly could happen, as a lawyer’s mental impressions and notes might include information that must be revealed pursuant to Rule 1.6(b).   However, here, I was getting at whether an attorney’s notes and mental impressions are part of “the file.”  For more on this topic, including a link to an ABA Formal Advisory Opinion, see this post.

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry.  Lawyer said “client said she’s fine with it, so do you think that I have ________  ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________   _________.  Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of conduct.”

Informed Consent, Rule 1.0(e).

Question 4

Attorney called me with an inquiry.  Attorney was concerned that her she and her firm had been “pwned.”  What did we discuss?

Whether Attorney & Firm had:

  • A.   suffered a breach of electronically stored client data.
  • B.   fallen for a trust account scam.
  • C.   violated the rules while responding to a negative online review.
  • D.  been duped by an adversary who intentionally posted “fake evidence” on a social media platform.

Hello gamers! I wasn’t familiar with the term “pwned” until I read the ABA Journal’s cybersecurity tips.

Question 5

Hint: in honor of my grandfather’s Chicago roots, and in anticipation of a blog I intend to post next week . . .

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

Al Capone

ABA Journal Provides Cybersecurity Tips

Rules 1.1 and 1.6 operate to impose a duty to act competently to safeguard information relating to the representation of a client.  The duty includes taking reasonable steps to protect against the unauthorized or inadvertent disclosure of (or access to) electronically stored client data.

In 2018, the ABA Journal will publish a year-long series on cybersecurity.  Last month, and as part of the series, the ABA Journal posted 5 cybersecurity steps you should already be taking.  I recommend it.  A quick summary:

  1. Check to see if you’ve been pwned.
  2. Consider a password manager.
  3. Improve the strength of your passwords.
  4. Use 2-factor (or multi-factor) authentication.
  5. Encrypt your devices.

Again, read the post.  It’s not long, and the tips are as simple as they are valuable.

Finally, don’t forget that the Vermont Bar Association is offering its first ever Tech Day on May 16.  It’s shaping up to be a fantastic CLE.

cyber-security

Service via Instagram

It has been over two years since I first blogged on tech competence.  As regular readers know, my opinion is that competence includes tech competence.

Here’s the latest:  Above The Law and Canadian Lawyer have the story of a Toronto lawyer who received permission to serve an adversary via direct message on Instagram. The lawyer made the request after unsuccessful attempts to serve the defendant in person and by e-mail.

Remember: as I’ve often said, the rules don’t require lawyers to have or to use social media platforms.  However, my position is that Rule 1.1’s duty of competence includes providing clients with competent advice as to the impact (or not) that their social media platforms will have on any particular matter.  This includes the impact of information that clients make available on social media, and, as today’s story illustrates, the impact of merely having a social media account through which messages can be delivered.  For instance, imagine a client’s claim never being brought for no other reason than you didn’t think to check whether the defendant could be “found” on social media.

@vtbarcounsel

See the source image

Tech Competence: Tips and a Conference

As Olivia might sing, let’s get techical, techical.

Last week, the Professional Responsibility Board voted to recommend a series of amendments to the Vermont Rules of Professional Conduct.  The package will be forwarded to the Supreme Court for publication for comment.

Rule 1.1 requires lawyers to provide clients with competent representation.  Among other things, the Board will recommend that the Court amend Comment [6] to Rule 1.1 so as to add language that is highlighted & underlined:

  • “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.”

As of September 2017, 28 states have adopted the amendment.

If you’re concerned about tech competence, fear not!

  • On May 16, 2018, the Vermont Bar Association will present its inaugural Tech Day. Save the date! It’s scheduled to take place at the Sheraton-Burlington and will include several practical seminars.
  • Yesterday, Robert Ambrogi’s LawSites blog posted tips related to tech security, including a suggestion to consider client portals.

Finally, I’ve blogged often on this topic.  Related posts include:

 

 

Confidences, Conflicts & Electronically Stored Information

To answer ATCQ, this is the scenario:

  • Lawyer works at Firm and represents Kennedy.
  • No other attorney at Firm works on Kennedy’s matter.
  • Lawyer leaves Firm.
  • Kennedy decides to go with Lawyer.
  • Firm sends hard copy of Kennedy’s file to Lawyer.

Ok.  That’s the easy part and isn’t very complicated.  Since easy & uncomplicated make for boring blogs, let’s add this:

  • Lawyer represents Kennedy in matter against Brady.
  • Brady seeks to retain Firm.
  • Kennedy v. Brady is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm.

Can Firm represent Brady?

The fact that the matter is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm does not end the analysis.  Nor does the fact that Firm delivered the paper file to Lawyer.

Rule 1.10 applies.  Subsection (b) says:

  • “When a lawyer has terminated association with a firm, the firm is not thereafter prohibited from representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
    • (1) the matter is the same or substantially related to that in which the formally associated represented the client; and,
    • (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.”

In the hypo, Firm will argue that none of its lawyers has information protected by Rules 1.6 and 1.9(c) because (1) none of them worked on Kennedy matters; and, (2) Firm delivered the file when Lawyer left.

But do they?

What if an electronic version of Kennedy’s file (or a portion of thereof) remains on Firm’s servers?  If the information is “material” to the matter, does Firm “have” that information as contemplated by Rule 1.10(b)?

Here’s an opinion from New Jersey.  The answer is “maybe.”  Essentially,  the court said that Firm “has” the information if a remaining lawyer has actual knowledge of the information and has accessed substantive portions of the electronic file.  The court, however, indicated that limited access made to investigate a potential conflict is not necessarily disqualifying.

If you’re interested, give the opinion a read.  Also, to avoid this dilemma, it might be worth a self-assessment as to how your firm handles electronically stored information when clients follow a departing lawyer.

By the way, if you missed it yesterday, here are the results of the poll question: Who is on your Mt. Rushmore of U.S. Supreme Court justices?  The post includes this week’s question: your top 3 fiction novels focused on the law or a lawyer/lawyers.

Laptop-and-computer-file-folders

 

 

Have you heard the one about the $1 million fee award that walked into a spam filter?

It’s no joke.

UPDATE:  After reading my original post, a lawyer shared a story with me and authorized me to share it with you.  I’ve appended the story to this column. Because I think the story might serve as a valuable tip, I’m re-posting this blog to help draw attention to it. 

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

UPDATE – here’s the abridged version of the story that a lawyer shared with me after reading my original post.

  • Lawyer represented Client.
  • Throughout matter, Lawyer & Client communicated via e-mail.
  • Matter went to a bench trial.
  • In a written decision, Trial Court found against Client.
  • Lawyer scanned the decision and attached it to an e-mail to Client.  In the body of the e-mail, Lawyer asked “Do you want to appeal?”
  • 31 days after decision was issued, Client called Lawyer and asked “have we heard anything from the trial court?”
  • Lawyer investigated and determined that the e-mail to Client was stuck in outgoing mail and had never left Firm’s server.
  • Over Opposing Party’s objection, Trial Court granted Lawyer & Client leave to file an untimely appeal.
  • On appeal, the Vermont Supreme Court granted Opposing Party’s motion to dismiss the appeal as untimely.

Lawyer’s firm took two lessons from the experience: (1) Lawyer regularly checks Lawyer’s spam folder & outgoing mailbox; and, (2) rather than relying on e-mail silence, Firm adopted a protocol to call clients on important issues, such as the decision whether to appeal.

 

Tech Incompetence

Have you heard the one about the $1 million fee award that walked into a spam filter?

It’s no joke.

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

Tech Incompetence

 

 

 

Competence, ESI, and E-Discovery

I’ll say it again: Rule 1.1’s duty of competence includes tech competence.

To me, the duty includes:

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

What is “it?”

It is Electronically Stored Information (“ESI”).  Nearly every lawyer who has a client, has a client whose lawyer needs to know about ESI.  Indeed, I can’t think of a practice area in which a lawyer need not know about ESI.

  • Whether civil, criminal, probate, or family court, with so many of us so active on social media, ESI is a treasure trove of evidence.  Wondering how to admit a text, tweet, or social media post into evidence?  Check out the Evidence in Practice seminar at next week’s Annual Meeting of the Vermont Bar Association.
  • Wondering about your duties if a client asks about “scrubbing” or “taking down” social media posts?  The Pennsylvania Bar has issued some guidance.
  • For those of you practicing in the Vermont Superior Court’s Civil & Family Divisions, VRCP 26(a) lists the methods by which a party may obtain discovery.  Among them: a Rule 34 request to produce ESI.  Rule 26(b)(2)(A) imposes specific limitations on the discovery of ESI.  The federal rules of civil procedure have similar provisions.
  • Doing any estate work? There’s a new  Vermont law on digital assets.
  • Those of you who are in-house or general counsel . . . do you have some idea as to what ESI your client has, where it’s stored, and how long it’s kept? Have you talked to your client about its policy on employees using personal devices to access company data? Today, Above The Law posted some practical tips on preservation letters, including tips related to preserving & producing ESI.

I could go on & on. It is everwhere.

In 2015, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2015-193.  The opinion responds to the question “[w]hat are an attorney’s ethical duties in the handling of discovery of electronically stored information?”  Here’s the digest:

  • “An attorney’s obligations under the ethical duty of competence evolve as new
    technologies develop and become integrated with the practice of law. Attorney
    competence related to litigation generally requires, among other things, and at a
    minimum, a basic understanding of, and facility with, issues relating to e-discovery,
    including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”

Give the full opinion a read.

I assume most lawyers understand this, but here’s the critical point I want to make:  ESI is something that can be preserved, produced, and used.  Not knowing how to handle the discovery of ESI is no different from not knowing how to handle the discovery of paper documents.

 

If you’re new to ESI, here’s a primer that the ABA issued several years ago.  It’s a good start, but only a start.

E Discovery