ESI: there’s risk in failing to preserve.

Say it with me: competence includes tech competence.

In most of my posts on the topic, the unstated message is that a lawyer who fails to satisfy the duty of competence violates Rule 1.1 and risks having a sanction imposed against his or her license.

Here’s my post on Competence, ESI, and E-Discovery.  In it, I wrote that the duty of (tech) competence includes:

  • knowing 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”).

In addition, I cited to an advisory opinion from the State Bar of California that includes the following quote:

  • “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”).”

Today, I blog to call your attention to other risks. Namely, the risk of having a court impose severe sanctions against you and your clients if you fail to preserve ESI.

Melinda Levitt and Peter Vogel are partners at Foley & Lardner.  Yesterday, The National Law Review posted their article Bad Preservation in eDiscovery is Still Very Costly! 

Give it read.

The article begins by reporting that there is both “good news” and “bad news” when it comes to discovery sanctions for failures to preserve ESI.

The good news is that relative recent amendments to the civil rules reserve the most severe sanctions for situations in which the failure to preserve resulted from an “intent to deprive.” As the authors note, “the ‘bad news’ is that bad preservation behavior continues.”

Next, the authors point out that:

  • “[i]t has been twelve years now since the federal rules were first amended and explicitly came to recognize ‘ESI’ – that is emails, electronic documents, excel spreadsheets, PowerPoints, and a myriad of other electronic materials – as documents” within the meaning of the discovery rules.”

They also point out that, over those 12 years, all of us have become increasingly reliant on technology, without necessarily developing any clue how it works.

Nevertheless,

  • ” . . . there are some basic things that people at least in the business community should have come to understand over the last 12 years. Among them are if litigation is occurring or is about to occur, a company is obligated to take reasonable steps to ensure that its relevant (or potentially relevant) ESI is preserved. That means getting out the word quickly – whether by way of a formal written litigation hold or otherwise – that employees and electronic systems managers/overseers need to take steps to stop either conscious or system-wide deletions or purges of potentially relevant ESI. By now, business owners, their IT employees, and their in-house and outside counsel really should have no doubt about this obligation and how to accomplish it. Granted, meeting this obligation can get dicey and difficult when it comes to things such as employee text messages, social media postings, telephone messages, and structured data. However, in terms of emails and basic electronic documents – the mainstays of business life – there should be no question or hesitation about what needs to be done.  

Then, the meat of their message:

  • “And yet . . . and yet, very recent decisions demonstrate that executives, managers and yes, even lawyers, either remain willfully ignorant of how these business systems work or are determined to pass the buck, having assumed that some mysterious “someone else” in the company was handling things. Well, while courts no longer can impose the most draconian of sanctions, no one should kid him or herself – judges continue to have very potent sanctions options available and are very willing to use them when confronted with preservation misconduct borne of ignorance, indifference or good old-fashioned boneheadness. The following are a few telling examples – and were issued in just the last few weeks – and each leaves us with the question – what were they thinking?”

From there, the article goes on to recount several cases in which significant discovery sanctions were imposed against lawyers and their clients as a result of failures to preserve ESI.  Some might strike a nerve.  If so, there’s still time to sign up for tomorrow’s first-ever VBA Tech Show.

Tech competence.  The lack thereof impacts much more than a lawyer’s license.

E Discovery

 

 

 

 

 

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

To: the prosecution. With love, the Defendant’s lawyer.

89 years ago today, almost to the minute, seven men were murdered in Chicago’s Lincoln Park neighborhood.  The incident became known as the Saint Valentine’s Day Massacre. Al Capone is widely regarded as the criminal mastermind behind the killings.

As bar counsel, I’m intrigued by one aspect of the events that led to Capone’s conviction and incarceration.  My intrigue lies in the so-called Mattingly Letter.  It’s a letter that Capone’s tax lawyer provided to treasury agents and that was eventually used against Capone at trial.

Douglas Linder is a professor at the University of Missouri-Kansas City School of Law. He has a website dedicated to Famous Trials.  Among others, Professor Linder has written on the trial of Al Capone.

Per Professor Linder, as of 1929, Capone had never filed a federal income tax return.  So, the Department of Treasury launched an investigation into whether Capone had committed income tax evasion.

Lawrence Mattingly was Capone’s tax lawyer. In April 1930, Mattingly agreed to let “revenue agents” interview Capone.  The transcript of the interview is here.  Here’s an excerpt of what would become a key segment:

  • Revenue Agent RALPH HERRICK: I think it is only fair to say that any statements which are made here, which could be used against you, probably would be used.
  • LAWRENCE MATTINGLY, Capone’s tax lawyer: Insofar as Mr. Capone can answer any questions without admitting his liability to criminal action, he is here to cooperate with you and work with you.
  • HERRICK: What records have you of your income, Mr. Capone-do you keep any records?
  • CAPONE: No, I never did,
  • HERRICK: Any checking accounts?
  • CAPONE: No, sir.
  • HERRICK: How long, Mr. Capone, have you enjoyed a large income?
  • CAPONE: I never had much of an income.
  • HERRICK: I will state it a little differently-an income that might be taxable?
  • CAPONE: I would rather let my lawyer answer that question.
  • MATTINGLY: Well, I’ll tell you. Prior to 1926, John Torrio, who happens to be a client of mine, was the employer of Mr. Capone, and up to that point it is my impression that Mr. Capone’s income wasn’t there. He was in the position of an employee, pure and simple. That is the information I get from Mr. Torrio and Mr. Capone.

A few months later, Mattingly met again with federal agents.  As the meeting ended, he provided the agents with this letter.  Mattingly opened the letter by stating:

  • “The following statement is made without prejudice to the rights of the above-mentioned taxpayer in any proceedings that may be instituted against him. The facts stated are upon information and belief only.”

He closed by conceding:

  • “I am of the opinion that his taxable income for the years 1925 and 1926 might fairly be fixed at not to exceed $26,000 and $40,000 respectively and for the years 1928 and 1929 not to exceed $100,000 per year.”

Several months later, a grand jury indicted Capone.

Eventually, Capone and the government reached a plea agreement under which Capone would’ve served 2.5 years.  A judge rejected the plea, stating:

  • “The parties to a criminal case may not stipulate as to the judgment to be entered. It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a Federal Court.”

As trial neared, the government obtained information establishing that Capone had likely bribed a significant portion of the jury pool.  The prosecution team notified the judge. Per Professor Linder, here’s what happened next:

  • “Judge Wilkerson took his seat at the bench and looked out over the packed courtroom. He called the bailiff to the bench. ‘Judge Edwards has another trial commencing today,’ he told the bailiff. ‘Go to his courtroom and bring me his entire panel of jurors; take my entire panel to Judge Edwards.'”

At trial, the government sought to introduce the Mattingly Letter through the agent to whom Attorney Mattingly had delivered it.  The defense objected.  The court admitted the letter as proof that Capone had made certain statements, albeit not as proof of those statements.  (yeah, right.)  A transcript of the testimony surrounding the letter’s admission is here.

The prosecution referred to the letter during its closing argument.  That portion of the summation, which I found enthralling, is here.  Here’s my favorite part:

Referring to Attorney Mattingly, the prosecutor argued:

  • “He had tried to get the revenue agents to say that the admission would not be used against his client; now, in the letter, Mattingly is saying it himself. The letter says, “‘his statement is made without prejudice to the taxpayer in any criminal action that may be instituted against him.'”

The prosecutor continued:

  •  “Suppose a speeder, when stopped by an officer, should say; ‘I am telling you this without prejudice, officer; I don’t want it used against me; but I was going 50 miles an hour.’ Suppose a gambler could tack a little sign on a roulette, ‘This device is not to be used as evidence against me.’ Suppose a murderer could put a sign on his gun, “This weapon is not to be used as evidence against me.’ What a refuge for criminals that would be! And yet, that is what we have here, ‘I am telling you this, but it is not to be used against me.’ “

In the end, Capone was convicted and sentenced to 11 years in prison.  Admissions from his own tax attorney appear to have played a significant role in the conviction.

Competence.  Client confidences.  You be the judge.

Valentine

An intriguing aside: one of the government’s key informants in the Capone investigation was Eddie O’Hare.  O’Hare held the patent for the mechanical rabbit that lures greyhounds around a race track. He also ran dog tracks for Capone.  Eddie was murdered shortly before Capone was released from prison.

The intriguing aside?  Eddie’s son, Edward, was a naval pilot. He was the Navy’s first “flying ace” and the first member of the Navy to receive the Medal of Honor in World War II. He was shot down in combat in 1943 and never found.  Chicago’s O’Hare Airport is named for him.

 

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

 

 

 

Throwback Thursday

I resort to this construct whenever I’m fresh out of ideas.  Two days of mind-numbing proctoring at the bar exam will do that.

Loyal readers know that I urge lawyers to adapt to technology. A search of “tech competence” on the main page of this blog returns several posts.  My primer on tech competence is here.

Some other great resources:

Don’t want to adapt to technology? Or, maybe you feel like you’ve adapted enough?  I have two thoughts.

First, there’s no such thing as “i’ve adapted enough.” You know who has “adapted enough?”  The lawyer who still uses a typewriter that let’s the lawyer preview a line of text before hitting return.  The duty is ongoing.  Indeed, here’s Comment 8 to Model Rule 1.1:

  • [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 technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Second, here’s where Throwback Thursday comes into play.  Look what I found while cleaning last night.  Don’t want to adapt?  Neither did these guys…..until it was too late. To them, sending DVD’s by U.S. Mail was sufficient.  There was no need to adapt to a technology that we know as “streaming.”

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Cannabis: when you can’t “just say no”

My post on the ethical issues associated with marijuana is HERE.  A quick summary: the key ethical concern is whether lawyers violate Rule 1.2(d) by providing clients with advice and assistance on a matter that is legal under state law but illegal under federal law.

Many lawyers are too quick to write off the issue as not impacting their practicing or clients. They say:  “Mike, ‘no’, I don’t need to worry about the ethics of marijuana. It could never impact my practice.”  Oh really?

For example, labor lawyers – imagine this:

  • Employee, a quadriplegic, has a prescription for medical marijuana;
  • he uses it at home, off the clock, to treat debilitating muscle spasms;
  • state law prohibits employers from firing employees for engaging in lawful activities off the job;
  • during a routine drug test, Employee tested positive for cannabis;
  • Employer immediately terminated Employee

Employee goes to Lawyer for advice.  Employer goes to Attorney for advice.  Put yourself in the shoes of either, what say ye?

Here’s what the Colorado Supreme Court said. If you’d rather not the read the entire opinion, the ABA Journal summarized it HERE.  In short, the Colorado court concluded that because marijuana is illegal under federal law, its use isn’t lawful and is a valid basis for termination.

The ABA article raises several other scenarios in which lawyers find themselves struggling to give competent advice on issues related to marijuana, and confused as to how to do so without violating the ethics rules.  Here are a few more:

  • does an attorney assist a client to violate federal law by representing the client in connection with an application for a state-issued license/permit to operate a medical marijuana dispensary?
  • if the client receives a permit, does a real estate attorney assist the client to violate federal law by representing the client in connection with purchase of land upon which to build the dispensary? what about the attorney who represents the dispensary before the local zoning board?
  • you represent a bank. are you familiar with the Department of Treasury’s Financial Crime Reporting Network’s memorandum that provides guidance on the Bank Secrecy Act and expectations regarding marijuana related businesses?
  • A criminal defense client’s conditions of release prohibit her from violating the law.  She has a prescription for medical marijuana.  She asks for advice as to whether she will violate her conditions by using the medical marijuana.
  • Family law practitioners: client asks you to file a motion to modify a parent child contact order.  Client’s ex has a prescription for medical marijuana, but Client doesn’t want “the kids around marijuana because it’s illegal!” Have you thought about what advice you’d give in this situation?

So, yes Virginia, this is an issue that might impact you.

I have collected a power point presentation that refers to ethics opinions issued in several other states.  If you would me to send it to you, please let me know. Also, we will discuss these issues on January 15 at the YLD Thaw.

Tomorrow, Thursday, I will try to post an early, holiday-themed version of Five For Friday.

Is looking harassment?

Dedicated readers know that I’ve written on tech competence.  If you’ve heard me once, you’ve heard me 1000 times:  competence includes tech competence.

Colorado recently adopted an opinion on the issue.  The opinion isn’t terribly notable in that it is consistent with nearly every other advisory opinion on the topic.  However, it raises an interesting question: when does permissible viewing become impermissible harassment?

Here’s the issue:  some social media platforms alert the user whenever his or her profile has been viewed.  A notable example:  LinkedIn

In 2012, the Association of the Bar of the City of New York opined that

  • “Attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result of the research. Attorneys may not research jurors if the result of the research is that the juror will receive a communication. If an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may run afoul of the Rules of Professional Conduct.”

The opinion was consistent with another issued in 2011 by the New York County Lawyers’ Association.

The ABA rejected New York’s approach.  In Formal Opinion 466, the ABA concluded that “the fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”

Colorado’s recent opinion echoes the ABA’s.  However, Colorado cautioned attorneys not to look too much.  Specifically, the Colorado committee noted that:

  • “Colo. RPC 4.4(a) provides that in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. A lawyer who engages in repetitive viewing of an individual’s social media profile could potentially violate Colo. RPC 4.4(a) if the lawyer knew the other person would receive notice each time the lawyer viewed the profile, the lawyer had no other legitimate purpose for the repetitive viewing, and the repetitive viewing rose to the level of harassment or intimidation. To constitute a violation of the Rules, this would have to be an extreme situation, and it would be an exception to the general opinion expressed herein.”

Vermont’s Rule 4.4(a) is the same as Colorado’s.  So, while competence includes researching publicly accessible information, viewing for no other reason than to let the person know you did might not be allowed.

Competence Includes Tech Competence

Rule 1.1 requires lawyers to provide clients with competent representation.  It is the first rule in the Vermont Rules of Professional Conduct.

Now, the rules aren’t arranged in some sort of hierarchy of importance. It’s as important to comply with Rule 8.4 as it is to comply with Rule 1.1.

But it’s the first rule, which might mean that it’s the VERY FIRST THING the ubiquitous “they” thought of when they thought “what should the rules be?”

The Vermont Supreme Court is considering whether to  follow the ABA’s lead and adopt a comment that makes it clear that the duty of competence includes a duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  ABA Model Rule 1.1, Comment 8

Comment or not, it’s inconceivable that the duty of competence does not include understanding technology and how it impacts your clients.

Consider these questions:

  1.  You represent a company.  Do you know whether the company provides its employees with mobile devices? What does the company do with the old ones that employees trade in? Do you know how to advise your client on preserving ESI?  When does the duty to preserve ESI kick-in?  Do you even know what “ESI” means?  Opposing counsel asks for discovery in native format.  Is your response “wait…what?”
  2. You represent the plaintiff in a personal injury case.  Your paralegal informs you that the client recently posted to YouTube a GoPro video he took while boarding Stowe’s Nosedive trail.  A few minutes later, your client calls and asks if he should take down the video.  What’s your response?
  3. You represent a criminal defendant.  The state has an eyewitness who is 100% certain that your client did it.  Your client, however, tells you that the eyewitness checked-in on Foursquare some 45 miles from the scene of the crime at the exact time the crime is alleged to have taken place.  Do you know how Foursquare works? Would you be able to authenticate and admit the check-in?
  4. You communicate with your clients via text.  When the representation ends, Rule 1.16(d) requires you to deliver to the client “papers and property to which the client is entitled.”  Are texts “property” to which the client is entitled? Are they “writings” ?  If so, do you know how to move them from your mobile device to the file?  What if the client files an ethics complaint that alleges that you never communicated with her? Would you be able to retrieve and produce the text messages that prove otherwise?
  5. Your practice focuses on estate planning. Have you heard of digital assets?
  6. Do you know how to use technology and social media to create compelling demand packages or settlement offers for your clients?  If you’re in trial, are you using magic markers and an easel while the other side is using state-of-the art technology to present evidence?
  7. Jury draw is next week. Is it ethical to review a juror’s internet presence? Is it ethical not to?

I ask these questions to try to convince you it’s no longer okay for attorneys to say “i don’t use technology” or “I don’t do social media.”  You know what? Your clients are using technology. Your clients are using social media. And their use of technology and social media may very well impact the matters in which you are representing them. Are you able to provide your clients with competent advice?

You don’t have to be an expert or know how to write code. However, it strikes me that the lawyer who chooses not to understand how technology and social medial will impact her clients does so at her own peril.

Oh – your client’s opposing party is a blogger.  Are his blog posts self-authenticating?

Thanks for reading. For those interested in reading more, here are some thoughts & resources:

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“ESI” is “electronically stored information.”  The discovery thereof is governed by Rule 34 of the Federal Rules of Civil Procedure and Rule 34 of the Vermont Rules of Civil Procedure.  The California State Bar recently issued an advisory ethics opinion outlining an attorney’s ethical duties in handling discovery of electronically stored information.  It’s here.  For a discussion of the opinion and many of the issues it raises, go here.  Not sure you’re ready to “do social media & technology?”  Well, take a look at this tale of a default judgment issued for discovery violations related to ESI?  Or this primer on “how NOT to produce” ESI.

This update from Gibson Dunn is one of the most comprehensive I’ve found.

Several states have issued advisory opinions related to the ethics of social media.  Opinions from Florida and Pennsylvania include guidance on advising clients to “clean up” social media platforms.  The most famous case on the topic might be this one, and it resulted in a 3 year suspension of the attorney’s license and a significant monetary sanction in the underlying civil case.

New York State Bar Association, Commercial& Federal Section, Updated Social Media Ethics Guidelines, June 29, 2015:  HERE

North Carolina State Bar Association, Formal Ethics Opinion 14-08, January 23, 2015 (discusses lawyer accepting “friend” request or other social media contact from judge):  HERE

Massachusetts Bar Association, Ethics Opinion 2014-5 (discusses when a lawyer may “friend” an unrepresented adversary): HERE

American Bar Association, Formal Opinion 466, Lawyer Reviewing Jurors’ Internet Presence, April 24, 2014:  HERE

Washington State Bar Association, Advisory Opinion 201402, (ethical issues of online endorsements & ratings):  HERE

State Bar of California, Standing Committee on Professional Responsibility & Conduct, Formal Opinion Interim No. 12-0006, December, 2014 (under what circumstances are lawyer blogs subject to the Rules of Professional Conduct)  HERE

New Hampshire Bar Association, Ethics Committee Advisory Opinion 2012-13/5, Social Media Contact with Witnesses in the Course of Litigation, June 20, 2013: HERE

San Diego County Bar Association, Legal Ethics Opinion 2011-2, May 24, 2011 (discusses lawyer sending “friend” requests to high-ranking employees of opposing party):  HERE

Philadelphia Bar Association, Professional Guidance Committee, Opinion 2009-02 (March, 2009) (discusses lawyer sending “friend” request to unrepresented witness whose testimony is favorable to adverse party):  HERE