Competence & E-Discovery

A lawyer’s professional responsibilties include:

  • providing clients with competent representation;
  • abiding by the rules of a tribunal;
  • acting competently to prevent the inadvertent disclosure of a client’s otherwise confidential or privileged information;
  • not assisting a client or another person unlawfully to obstruct access to evidence; and,
  • not assisting a client or another person unlawfully to alter, conceal, or destroy documents and material that have potential evidentiary value.

tech-ethics

At the YLD Thaw in Montreal, I sat on a panel that presented E-Discovery & Me: Facebook, Metadata & Beyond.  Kevin Lumpkin moderated, and I was joined by Jennifer McDonald, Daniel Martin, and Matthew Preedom.

The seminar left me with a new appreciation for the “tech” issues that lawyers confront daily.  It also left me incredibly impressed with the tech competence of my fellow panelists.  To say I was the weak link would be an understatement.

Thus, I hesitate to write this blog. Mostly from a competence perspective, but also because the topic is so vast that I could easily go too long & too far astray.  I’ll do my best to stay focused.  Today’s points:

  1. The duty of competence applies in discovery.
  2. The duty of competence includes providing clients with competent advice related to preserving & producing ESI.

Note, I intentionally used “discovery” instead of “e-discovery.” I’ve heard lawyers suggest that their duties are different, perhaps less stringent, with e-discovery.

Wrong.

Never have we presented, and never will we present, an ethics CLE in which we stress that the duty of competence includes providing clients with competent advice on the preservation & production of paper documents.  It’s a given.

It’s also a given with ESI.

In 2009, Vermont amended Rule 34(a) of the Rules of Civil Procedure. The amendment tracks the 2006 amendment to the Federal Rules of Civil Procedure.  The Reporter’s Note is not confusing.  The amendment:

  • “is intended ‘to confirm that discovery of electronically stored information stands on equal footing with paper documents’ and to make clear that a request for ‘documents’ that does not differentiate paper documents and electronically stored information should be understood as including the latter.”

No reasonable lawyer would conclude “I don’t really need to know how to advise my client on the preservation & production of paper documents.”  And, for more than a decade now, the discovery rule has been that ESI “stands on equal footing with paper documents.”

In short, ESI is discoverable, subject to the same discovery rules as information that is on paper. To produce ESI, your client must have preserved ESI.

For example: do you know whether:

  • your client has ESI that might be relevant to the representation;
  • the custodian(s) of that data;
  • the client’s policies on data storage/destruction.

In 2015, the State Bar of California issued Formal Opinion 2015-193.  The question presented: “what are an attorney’s duties in the handling of discovery of electronically stored information?”

I urge you to read the entire opinion.  In my view, the most important paragraph is this one:

  • “We start with the premise that ‘competent’ handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case. The ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side. If e-discovery will probably be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide
    the client with competent representation. If an attorney lacks such skills and/or resources, the attorney must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist.”

I appreciate the paragraph’s emphasis that lawyers need to know what they don’t know. I appreciate two other points.

First, the paragraph tells lawyers what they need to know:

“Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent cocounsel or expert consultants) the following:

  • initially assess e-discovery needs and issues, if any;
  •  implement/cause to implement appropriate ESI preservation procedures;
  • analyze and understand a client’s ESI systems and storage;
  • advise the client on available options for collection and preservation of ESI;
  • identify custodians of potentially relevant ESI;
  • engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
  • perform data searches;
  • collect responsive ESI in a manner that preserves the integrity of that ESI; and,
  • produce responsive non-privileged ESI in a recognized and appropriate manner.”

(Aside: I’d add this: in between preservation and production, lawyers often take possession of a client’s information, whether in paper or electronic form.  The duties to clients include acting competently to safeguard the information while it’s in the lawyer’s possession.  With ESI, that includes competently assessing whether to store the ESI in-house or to retain a e-discovery vendor to host the ESI.)

Second, the paragraph makes it clear that it’s okay not to know how to do those things.  Of course, a lawyer who doesn’t must (1) associate with someone who can competently handle those tasks, whether a lawyer or nonlawyer; or (2) withdraw from or decline the representation.

In closing, I’ve never received a disciplinary complaint alleging that a lawyer failed to provide competent representation on issues related to the preservation and production of ESI.  Someday I will.

For now, keep in mind that the risk is greater than a disciplinary investigation. There’s risk to the client.

Here’s Rule 37(f) of the Vermont Rules of Civil Procedure:

  • Failure to Preserve Electronically Stored or Other Evidence.  If electronically stored or other evidence that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from the loss of the evidence, may order measures no greater than necessary to cure the prejudice.” (emphasis added).

I’ve often blogged that setting reasonable expectations early in the representation is a good way to avoid disciplinary complaints.

Another is to avoid “measures” ordered by a court against a client.

 

 

“Like” To Win a Prize!

Early last decade, Kevin Ryan and I traveled around Vermont doing a presentation on legal ethics & social media.  Here’s a hypo we used:

  • Lawyer creates Facebook page for Firm.  Lawyer offers $25 to the first 25 friends who “like” or “share” the Firm’s page.  Discuss.

Now, given that it was early last decade, many in our audiences wondered why we were discussing something that would never happen in real life.

Alas . . . Kev, we told ’em so!

Late last decade, the North Carolina State Bar adopted 2019 Formal Ethics Opinion 6: Offering Incentive To Engage With Law Practice’s Social Networking Sites.  

(I didn’t notice the opinion until Sunday.  That’s when the Professional Responsibility Blog linked to the Louisiana Legal Ethics Blog’s post Top Ten Legal Ethics Developments in 2019.  Thank you Professors Bernabe & Ciolino!)

Anyhow, the NC opinion is straightforward.  A lawyer asked whether he could offer entries into a prize raffle to anyone who connected with his firm’s social media platforms.  The NC State Bar answered:

  • “No. If a social media platform will broadcast or display a user’s connection or interaction with Lawyer’s law practice social media account to other users of the platform, Lawyer may not offer prize chances in exchange for activity on or with his social media accounts.”

Per the opinion, the incentive program would violate Rules 7.2(b) and 7.1(a).

Rule 7.2(b) prohibits a lawyer from giving anything of value to someone to recommend the lawyer’s services.  Per the NC Opinion, free entry into a prize raffle is something of value, and a public “follow” or “like” is a recommendation.  By rule, the former cannot be given in exchange for the latter.

Rule 7.1(a) prohibits a lawyer from making a false or misleading communication about the lawyer’s services.  On this issue, the opinion says:

  • “The purpose behind Rule 7.2(b)’s prohibition on offering something of value in exchange for recommending services is to ensure that recommendations for a lawyer’s services are based upon actual experiences or legitimate opinions of the lawyer’s service, rather than financial incentive. The displayed “like” of a law practice may indicate some prior experience with the law practice or the personnel associated with the practice upon which the user’s “liking” of the practice is based. Similarly, the credibility attributed to a particular social media account could be influenced by the number of account followers or subscribers. When the “like” or follow of a law practice’s social media account is based upon the user’s interest in a prize giveaway, the incentivized “like,” follow, or other interaction received by Lawyer and displayed on social media is misleading in violation of Rule 7.1(a).”

Vermont’s versions of Rule 7.1(a) and 7.2(b) are identical to North Carolina’s.

I don’t know how I feel about the opinion.

On one hand, I get it: the lawyer’s plan violates the rules as they are written.

On the other, like many of you, I use “likes” (and tools like Yelp & Amazon reviews) ALL THE TIME when trying to find a product or service provider. Am I influenced by “follows,” “likes,” and positive reviews?  Yes.

But I’m also aware that many of us “like” pages for no other reason than someone we know asked us to “like” their page.  Or maybe even to become eligible to get something for free.  That is, I’m not under any illusion that all my friends who like another friend’s business have hired that friend and received satisfactory service.

In my mind, the important question isn’t whether someone hired a service provider based on the provider’s likes or endorsements.  No, the important question is, once hired, did the client receive competent service at a reasonable price?

There you have it.  As always, be careful out there.

Image result for facebook likes"

Internet Use Leads To Disciplinary Sanction

The headline you just clicked on is misleading.  And intentionally so.

In this space and at seminars, I’ve noted the profession’s willingness to blame technology for attorney misconduct.  Specifically, our willingness to attribute bad behavior to technology when, in fact, technology did nothing but reveal conduct that was unethical long before it made it to the interwebs.  To wit:

The posts involved lawyers who, respectively,

  • failed to communicate with a client;
  • lied to a court; and,
  • stole money from a youth soccer league,

In none of the three did tech cause or really have much to do with the misconduct.

Anyhow, on Sunday, Professor Bernabe blogged about a disciplinary case in which a lawyer’s use of technology and the internet eventually resulted in a sanction being imposed against the lawyer’s license.  The post is here.

To be clear, Professor Bernabe DID NOT use a misleading headline that attributed a lawyer’s dishonesty to technology.  But it wouldn’t surprise me to learn that, somewhere, someone did. In reality, technology was not the problem.

The facts.

In 2017, a Kansas lawyer reported to the CLE office that he had completed 760 minutes of CLE in a single day.  Specifically, 400 minutes of “live” credit, and 360 minutes of watching online, on-demand CLE courses.

Upon noticing that the lawyer had claimed more than 12 hours of CLE in one day, the Executive Director of the CLE Commission called the lawyer.  The ED asked the lawyer if he had watched the online presentations while sitting in the “live” seminar.  The lawyer answered “no.”  Rather, he told the ED that, while sitting in the “live” seminar, he logged into the online site to print out certificates of attendance.  The ED asked the lawyer to contact the online provider and obtain & produce records that would show the times at which he had logged in & out.

Time to make a long story less long.

In fact, the lawyer watched 360 minutes of online CLE while attending 400 minutes of “live” CLE.  Thus, the Kansas Supreme Court concluded that the lawyer violated the rule that prohibits dishonest, deceit, and misrepresentation by answering “no” when asked if he’d watched the videos while sitting in class.  In September, the Kansas Court publicly censured the lawyer.**

Technology certainly provides more opportunity to get caught.  For example, if, 15 years ago, a had a lawyer reported attending 8 hours of CLE and then returning home to watch 6 more on VHS, nobody would’ve been able to prove that the lawyer didn’t actually watch the VCR that night.  Yet, a false certification as to having done so would have been no less dishonest than the false denial that today’s lawyer made to the ED of the CLE Commission.

Today’s story isn’t about tech or the internet.  It’s about dishonest conduct.  In short, if you show up for a date with someone who listed their hair color as “brown” and their head looks like mine, it’s not the dating site’s fault.

Age group champ baby!

Race

ps: what a difference 30 days makes: running in shorts, short sleeves, and warm sunshine.

** the Court also dinged the lawyer for not knowing that the Kansas CLE rules don’t allow double-dipping.  Watching one CLE while attending another appears to violate the Kansas requirement to view online CLE in a setting suitable for learning.

NC Advisory Opinion on Reviewing & Accessing Social Media Platforms

Yesterday, I came across the North Carolina State Bar’s 2018 Formal Ethics Opinion 5.  It “reviews a lawyer’s professional responsibilities when seeking access to a person’s profile, pages, and posts on a social network to investigate a client’s legal matter.”  As such, it’s blogworthy.

Social Media

The opinion opens with an important point: technology is ever evolving. Social networks and social media platforms are no different: their features “are constantly changing.”  The duty of competence includes keeping abreast of the benefits and risks of relevant technology.  This echoes Comment 8 to Vermont’s Rule 1.1 and is the exact point I’ve tried to make when addressing the duty to safeguard client information.

Next, the opinion addresses five questions.   My synopsis:

  1. Yes, it’s okay to look at information that is public.  Note, however, that repetitive viewing for no other reason than to cause the person to receive notice that you looked can rise to the level of impermissible harassment.  In other words, competence likely includes knowing which platforms notify a person that someone has viewed their profile.  I blogged on that very point here.
  2. No, you may not use deception to access a restricted (or private) portion of a person’s social network presence.
  3. Yes, it’s okay to request access to restricted (or private) portions of an unrepresented person’s social networks.  As long as the request does not include deception or dishonesty, and as long as you correct any misunderstanding that the unrepresented person has of your role.**
  4. No, you may not send a request for access to restricted (or private) portions of a represented person’s social networks.  To do so would violate the rule that prohibits communicating with a represented person on the subject of the representation.  Nor may you direct a third person to do the same.
  5. Yes, you may request and accept information from a third party who has access to the restricted (or private) portions of a person’s social networks.  You may not, however, direct or encourage a third person to use deception or misrepresentation to gain access.**

For more, check out the entire opinion.

** Note: the opinion makes quite clear that it does not “obviate” the Comment to Rule 8.4 that authorizes a lawyer to advise “a client or, in the case of a government lawyer, investigatory personnel, of action the client, or such investigatory personnel, is lawfully entitled to take.”

Other resources

Don’t Fear E-Filing

This year, the Vermont Judiciary will start the rollout of its Odyssey Case Management System (“CMS”).

In January, Judge Kate Hayes, Andy Stone (the Judiciary’s CMS Project Director) and me presented a CLE on the new system.  Our CLE opened the Vermont Bar Association’s YLD Thaw.  The VBA has graciously made the material available here.  Judge Hayes & Andy addressed practical issues, while I touched on ethics issues associated with e-filing.

This will sound odd coming from a blogger who built this blog on the mantra “competence includes tech competence.”  But, with respect to the ethics issues associated with the new CMS, my message is this:

  • Don’t get too caught up in the tech aspect of it.  The fact is, your duties will be no different than in a paper-based system.  That is, the duty to provide clients with competent representation will include understanding what the rules of electronic filing require.

On that note, I have good news.

E-filing isn’t new.  It was introduced in the state courts in 2010.  In addition, many of you practice in the federal District Court and Bankruptcy Court.  E-filing is a thing in each.  In all my time here, I’ve received fewer than 3 complaints alleging that a lawyer’s lack of tech proficiency negatively impacted a client’s matter.

The Vermont Judiciary has adopted rules for electronic filing.  As I understand it, a committee is looking at prposed changes to the rules.  If and when those changes are made, they will be available on the Judiciary’s website.

The CMS rollout will progress in stages.  That is, the Judicial Bureau, the Environmental Unit, the Supreme Court, and the various units (counties) will come online over time.  As courts in which you appear transitionto CMS, you should familiarize yourself with the rules for electronic filing.

Fear not.  Remember: fewer than 3 complaints.

Also, when it comes to technology, it’s usually not “tech” that gets a lawyer in trouble. It’s using tech to do something that would’ve been unethical if done without tech.

For instance, lawsuits against stooge defendants are a problem whether filed electronically or on paper.

(The same post includes a digest of cases & opinions in which lawyers were sanctioned for disclosing client confidences in response to negative online reviews.  Remember, it’s not the fact that the confidences were disclosed online that’s the problem: it’s that they were disclosed!)

Similarly, as I blogged here, comments that would’ve been inappropriate in a telegram to a client are no less inappropriate because they were made via Messenger.

Which gets me to final point: whether by smoke signal, spoken word, typed document, or electronic submission, dishonesty is unethical.

Preparing for the Montreal seminar, I asked attorney regulators in states that have moved exclusively to e-filing to share with me any cases in which lawyers were disciplined for conduct involving “e-filing.”  Here are some of the responses:

  1.  “The worst ethical dilemma/violation I have experienced with e-filing involved a recently terminated associate from a Regional Workers Comp Firm.  He called me to tell me that once his firm terminated him a managing partner ordered a surviving associate to ‘pull all his files and draft and e-file Motions to Withdraw stating [the terminated lawyer] is no longer with the Firm…’  The Partner then directed the associate/assistant to e-file the Motions under terminated attorney’s name and file with [the terminated lawyer’s] e-file credentials!!!!  Terminated attorney received email notifications on several Motions and Orders granting the Motions before he was able to call the Clerk’s office and state that someone was filing under his name without his permission.”

Yes, believe it or not, impermissibly using another lawyer’s e-filing credentials, and forging that lawyer’s e-signature, is a problem.  And it’s a problem that has little to do with “tech.”

2.  “We have had a couple of instances of one lawyer allegedly e-signing opponents                   counsel to an unagreed to stipulation.”

Yes, believe it or not, fraudulently “signing” opposing counsel’s name is a problem.  And it’s a problem that has nothing to do with “tech.”

3.  “Mike, here’s one for you … a lawyer ‘e-filed’ a declaration with the expert signing            electronically (“/s/”) … but the lawyer knew the expert refused to sign … our court              suspended the lawyer for 90 days.”

Yes, believe it or not, fraudulently “signing” an expert’s name to a declaration that you know the expert had refused to sign herself is a problem.  And it’s a problem that has nothing to do with “tech.”

Finally, I became aware of a case in which a United States Bankruptcy Court (not Vermont’s) raised concerns over a lawyer’s lack of proficiency at filing electronically.  So, the court assigned the lawyer “homework.”  The “homework” was to re-file 9 documents, without any mistakes, and without assistance from another lawyer.

The lawyer paid another attorney to file the documents.

As a result, the bankruptcy court suspended the lawyer from practicing before it. Again, intentionally disobeying a court order has little to do with “tech” or “e-filing.”

Will e-filing be new to some of you? Yes.

Will you have to learn things along the way?  Yes.

Will some of you need help figuring out how to e-file?  Yes.

Is mandatory e-filing likely to put your license at risk?  No.

As I’ve indicated, it’s not e-filing itself that trips up attorneys.  Rather, it’s engaging in conduct that would’ve been unethical at every moment in the entire history of a regulated practice of law.

Don’t fear tech.  Don’t fear e-filing.

Image result for images of e-filing

 

 

Ghost Posts. Or are yours real?

To borrow a phrase from Larry David and Teri Hatcher, my blog posts are real and they’re spectacular!  Apparently not all law blogs can truthfully say the former.

Last month, the ABA Journal posted Ghostwriting for law blogs? Ethics are murkyIt’s a topic that’s new to me, one not raised in any of the ethics inquiries or formal disciplinary complaints that I’ve responded to and reviewed over the years.  The ABA Journal post includes insight from some of the more well-known voices on both professional responsibility and tech ethics.

But let’s back up for a moment.  You might be asking your self: “self, what is Mike even talking about?”  Good question.

The ABA’s post references this article that Kailee Goold posted to Ohio + Legal Ethics in June 2014. In it, Attorney Goold wrote:

  • “What are We Talking About?

    The ghost-blogging I’m talking about is when an attorney pays someone else (a non-attorney) to write articles published under the attorney’s name on the attorney or law firm’s website. As a result, the world thinks the attorney wrote it when the attorney had little to no part in its creation.”

Again, not an issue I’ve encountered.  But, an issue that raises ethics concerns.

Many law blogs are part of a lawyer’s website.  Websites communicate information about the services that the lawyer provides. Per V.R.Pr.C. 7.1,

  • “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement as a whole not materially misleading.”

The final sentence of Comment [1] is “whatever means are used to make known a lawyer’s services, statements about them must be truthful.”

Also, V.R.Pr.C. 8.4(c) prohibits a lawyer from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation.”

So, let’s say that a firm focuses on Practice Area.  And let’s say that the firm’s website includes a blog dedicated to Practice Area.  Does the firm violate the rules by paying a content developer to ghostwrite the posts and then posting them under the “byline” of one of the firm’s lawyers?

My gut reaction was “is it really THAT misleading?” But then I paused.  Because whenever we start asking whether something “is really THAT misleading,” we’ve established that it is, in fact, misleading.

In that it never arises, I don’t want to belabor the issue.  Suffice to say, if your website or blog includes posts that you paid someone else to ghostwrite, check out the articles referenced above.

Finally, I proof read by reading aloud.  Reading this blog about law blogs aloud reminded me of two things.

First, it reminded me of Elizabeth Kruska & Wesley Lawrence, perennial members of the #fiveforfriday Honor Roll in Legal Ethics.

Why them?

Because, like me, I know they’re fans of the second thing that reading today’s post aloud reminded me of: the world’s greatest law blog – The Bob Loblaw Law Blog.

See the source image

 

Judges and their Facebook Friends

Last year, I blogged on the Florida case in which a lower level court held that, standing alone, a judge’s Facebook friendship with a lawyer is not sufficient to disqualify the judge from a matter in which the lawyer appears.

I wrote:

This makes sense to me.  As with almost everything tech-related, I try to use analogies to non-tech stuff.  For example, if you learned that a lawyer who regularly appeared before a judge belonged to the same health club, or went to the same church, or was in the same law school class as the judge my guess is that you wouldn’t reflexively yell “conflict! disqualify the judge!”

No, you might ask something as simple as, “do they actually know each other? If so, how well? Do they do stuff together?”

In my view, Facebook is no different.  Florida’s Third District Court of Appeal agrees. The opinion presents a fantastic analysis of what it means, if anything, to be Facebook friends with someone.

The decision directly conflicted with another from a different Florida district.  So, the Florida Supreme Court agreed to resolve the issue.

Today, the Court issued its opinion.  For those of you who like to cut to the case, here you go:

  • “We hold that an allegation that a trial judge is a Facebook ‘friend’ with an
    attorney appearing before the judge, standing alone, does not constitute a legally
    sufficient basis for disqualification.”

I like the opinion.  I like it because it resolves a “tech” issue by analogizing to how we did things pre-tech.  To summarize:

  1. Since well before Facebook and social media, Florida law has recognized “that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”
  2. There’s no reason to treat a Facebook friendship any differently than a “traditional” friendships.  In fact, it’s likely that Facebook friends are less friendly than traditional friends.
  • “In short, the mere fact that a Facebook friendship’ exists provides no
    significant information about the nature of any relationship between the Facebook
    ‘friends.’ Therefore, the mere existence of a Facebook ‘friendship’ between a
    judge and an attorney appearing before the judge, without more, does not
    reasonably convey to others the impression of an inherently close or intimate
    relationship. No reasonably prudent person would fear that she could not receive a
    fair and impartial trial based solely on the fact that a judge and an attorney
    appearing before the judge are Facebook ‘friends’ with a relationship of an
    indeterminate nature.”

From there, the Florida Supreme Court observed that its decision is consistent with the majority of states that have addressed the issue.

Finally, remember: just like real-life relationships, a Facebook friendship or other social media connection might create an appearance that provides a basis to inquire further.  So maybe it’s best to avoid such connections.

For now, here’s the final paragraph from the Florida opinion:

  • “In some circumstances, the relationship between a judge and a litigant,
    lawyer, or other person involved in a case will be a basis for disqualification of the
    judge. Particular friendship relationships may present such circumstances
    requiring disqualification. But our case law clearly establishes that not every
    relationship characterized as a friendship provides a basis for disqualification. And
    there is no reason that Facebook ‘friendships’—which regularly involve
    strangers—should be singled out and subjected to a per se rule of disqualification.”

Regular readers know my response:

Image result for facebook like symbol

 

Court Adopts Comment on Tech Competence

The first rule in the Vermont Rules of Professional Conduct requires lawyers to provide clients with competent representation.  I’ve long argued that Rule 1.1’s duty of competence includes tech competence.

Last week, the Vermont supreme Court promulgated amendments to Rule 1.1.  The amendments add three new comments, including one that makes it clear that, in fact, the duty of competence includes tech competence.  As amended, Comment [8] now reads:

Maintaining Competence

[8] 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 technologygy, engage in continuing study and education and comply with all continuing legal education requirements to which a lawyer is subject.

As reported by Robert Ambrogi’s LawSitesBlog, Vermont becomes the 32nd state to adopt the duty of tech competence.

Take a look at the picture that Bob uses on his blog:

Image result for lawyer technology competence

No more.

Don’t confuse the meaning of the new comment. It does not require lawyers to know how to use every new gizmo, gadget, or app.  It’s far more practical than that.

For instance, do you understand the risks and benefits of using certain technologies to transmit confidential communications? Or the risks and benefits of mobile payment services? Have you thought about disabling autocomplete? Do you advise clients against being too social?

Also, don’t sleep on the other new comments. As legal outsourcing becomes more prevalent, the new comments provide helpful guidance.

The new comments take effect on December 10.

Related Posts

 

 

Secure Communications

Tech competence is an ever present theme on this blog.  Regular readers know the refrain:  “competence includes tech competence.”

The duty includes acting competently to protect the confidentiality of electronic communications.  I’ve blogged twice on e-mail encryption:

At seminars, including this morning’s for the VBA’s Basic Skills Program, I’ve stated my opinion that lawyers should at least consider client portals.  Thus, it was with great joy that I stumbled upon this post in the ABA Journal:

Give it a read. It’s a good intro to portals and other alternatives to e-mail.

Finally, don’t forget that it’s often the simple things that result in the accidental or inadvertent disclosure of client confidences.  For instance, not disabling auto-complete, or, exposing a client to the perils of an unintentional “reply-all.”

Safeguarding data

Social Clients

Earlier this month, the ABA Journal posted a blog in its “ethics” section: Celebrity attorneys face challenges, ethical pitfalls.   I enjoyed it as much from the pop culture slant as I did from the “it’s my job” slant.

However, speaking of the “it’s my job” slant, I want to mention three things.

First, over the past year, the news has been filled with lawyers making public statements about their clients and former clients.  So much so that several times I’ve been asked what I think about it.

Regular readers know what I think it.  I’m a big believer in two concepts:

  1. Hey Lawyers! STFU!!!
  2. Can’t Keep Quiet? Try Harder.  

As Thomas Edison said:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”

(aside: choosing not to blog is probably one of the opportunities of which I should take advantage.)

Second, despite my big belief that silence is a virtue, I was intrigued by two arguments in the ABA Journal’s post.  Specifically, the arguments that (1) at times, the duties of competence & diligence require a lawyer to speak out in a client’s defense;  and (2) the rules prohibiting such conduct run afoul of the First Amendment.  Alas, I can count on 2 fingers the number of Rule 3.6 complaints we’ve received in the past 15 years.  So, I am not so intrigued to do more than mention my intrigue.

Finally, there’s a little nugget in the article that, in my view, is great advice not just for lawyers who represent celebrities, but for lawyers who represent, well, clients.

Referring to lawyers who represent famous people, the article says:

  • “Client and entourage use of social media can compromise a defense. Ethically, attorneys have to make sure their clients and their team understand ground rules and place limitations on social media use related to the case.”

Trust me, I understand that very few of my readers represent the Vinny Chases of the world.  Nonetheless, I think the second sentence is critically important even for lawyers whose clients don’t have their own versions of E, Turtle, and Johnny Drama.

Why?

Because these days, entourage or not, what client isn’t on social media???  And that’s where the very next paragraph in the ABA Journal post comes in.  Quoting Ann Murphy, a professor at Gonzaga University School of Law, the post notes:

  • ” ‘Attorneys, as part of their ethical duties, must now counsel their clients on the use of social media,’ Murphy says. ‘Once it is out there, it is out there. Even if someone deletes a Facebook post—it likely has been saved as a screenshot and is of course subject to discovery,’ she adds. ‘Personally, I think the best advice is tell the client that any posts about his or her case must be viewed in advance by the attorney.’ “

That’s a fantastic tip.  Professor Murphy – if perchance you find this blog, In Few I Trust. Go Zags! 2019 national champs!

See the source image

Now, I can hear some of you now – “mike, am I supposed to know what my client puts on social media?”

Well, opposing counsel will.  So unless you’re comfortable finding out about that damning tweet or post at deposition or in mediation, then my response is:

See the source image

At the very least – and by “very least” I mean “barest of bare minimums” – I think lawyers have a duty to communicate to their clients the risks associated with posting info to a public forum.

Hmm…I guess this is where I can finally reference Hall & Oates.  When it comes to advising clients on the risks of posting too much to social media, it might be this:

  • Private eyes, they’re watching you.  They see your every move.  And they definitely see what you put out there to be seen.

Anyhow, while the ABA Journal article focuses on the risks associated with representing famous clients, it includes a tidbit that applies to any lawyer who has a client on social media: what happens on social media rarely stays on social media.

Tech competence.  It’s a thing.

By the way, among my friends, I’m definitely E.  My brother is almost definitely Drama.  Alas, while we have several candidates for Turtle, not many for Vinny.   And at risk of offending my friends, the “many” in that previous sentence?  It’s pronounced with a silent “m.”

Hint: this post doesn’t mention Ari Gold.  Which means his name might be of utmost importance later in the week.

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