Tech Ethics

A Tool to Track Court Orders & Local Rules on the Use of AI.

Michael Leave a comment

In January, the Duke Center on Law & Tech launched Responsible AI in Legal Services (RAILS). The initiative’s mission is to:

  • “Bring together a cross-industry group of leaders (judiciary, corporations, law firms, tech providers, access to justice orgs, etc.) to support the responsible, ethical, and safe use of AI to advance the practice of law and delivery of legal services to all.”

Although I only learned about RAILS today, I’m already appreciative of the tab Resource: AI Orders.  It includes a link to the RAILS AI Use in Courts Tracker.  The Tracker “contains court orders, local rules, and guidelines from the U.S. and other countries [and] allows for search and filtering capabilities based on factors such as jurisdiction, date, and other key terms.”[1]

I’m not aware of any court orders, local rules, or guidelines having been issued in Vermont. So, why is the tracker important?

The Honorable Paul Grimm is a retired federal judge and current law professor at Duke Law School.  The RAILS resource page includes words from Judge Grimm. 

First, Judge Grimm noted:

  • “the headlines in the last year in particular have included many stories about litigants and attorneys who faced or were subjected to sanctions for having filed court papers prepared by GenAI applications that contained citations to fictitious legal authority, or cited actual cases, but which did not actually support the argument for which they were cited.”

He added:

  • “These were entirely self-inflicted injuries because no lawyer or party should file any court paper without independently confirming the accuracy of the facts and legal authority cited.”[2]

Finally:

  • “In reaction to these lapses, an increasing number of judges and courts have issued a profusion of standing orders, pretrial orders, court rules, general orders, and case management orders that imposed various obligations on litigants and counsel to certify the use of AI technology and the accuracy of their filings. While well intentioned, the sheer number of these orders and lack of uniformity their provisions can cause considerable confusion to litigants and practitioners who may have to appear in many different courts. In this dynamic environment, what is needed is a ‘one-stop’ source for finding all of these orders that will allow litigants and attorneys to make sure they are aware of, and comply with, these court requirements.” (emphasis in the original).

While most readers practice here, some likely practice elsewhere. So, to the extent the tracker might help them, I’m highlighting it today.

I appreciate two other aspects of the RAILS resource page. 

The first is that it calls attention to the difference between “AI” and “Generative AI.” 

Tech competence indeed.

The second is that it acknowledges that “few” of the court orders and local rules identified by the tracker “govern behaviors that are not already addressed by existing rules of professional responsibility.”  I appreciate this acknowledgement because while I agree with RAILS that “the lack of consistency in terminology and scope of these orders may create confusion and compliance challenges for attorneys navigating the AI landscape,” I also believe that the current Rules of Professional Conduct encompass the scope of misconduct that might result from the use of AI, as well as the use of whatever new “thing” that technology brings us next and next and after that.

As always, let’s be careful out there.

[1] Notably, RAILS takes no pride of ownership.  Their resources page also links to the Ropes & Gray Court Order Tracker, another tool to track “standing orders and local rules on the use of AI.”

[2] As I’ve repeatedly argued, it’s often not technology that’s the problem. Imagine that a partner asks an associate to draft a memorandum of law.  If the partner submits the memo without checking the cases cited by the associate, and if those cases are fictitious, we wouldn’t focus on whether to adopt orders regarding the use of associates.  We’d focus on the partner’s failure to check the cites!

RELATED POSTS

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

Michael

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.

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

Michael

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.

Michael 1 Comment

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.

menu

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.

Competence & E-Discovery

Michael 1 Comment

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!

Michael 1 Comment

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

Michael 1 Comment

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

Michael 1 Comment

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

Michael

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?

Michael 1 Comment

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 murky. It’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