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

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

I can hear you now.

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

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

Now, back to your question.

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

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

I’ve blogged on this issue before:

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

Seriously Lana, call Kenny Loggins.

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

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

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

Good recommendations.

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

Image result for hamlet to be or not to be

 

 

 

 

 

North Carolina Extends Rule Requiring Disclosure of Exculpatory Information to ALL Lawyers

It’s been quite a week for my Dad.

Not only did he share a great story that I recounted as I presented Justice Dooley with the VBA’s Matthew Katz Award for Judicial Independence, he also cued me into a new ethics rule in North Carolina.  (My dad moved to NC several years ago).

Most of you have a general understanding of the “Brady Rule” or “Brady violations.”*   Brady v. Maryland is the case in which the United States Supreme Court held that the government violates an accused’s right to due process when it withholds exculpatory evidence that is “material either to guilt or to punishment,” and regardless of whether the prosecutor acted in good or bad faith.

As do all states, Vermont has a disciplinary rule that imposes duties upon prosecutors.  It’s Rule 3.8.  Rule 3.8(d) requires a “prosecutor in a criminal case”

  • “[to] make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by order of a tribunal.”

I’ve consistently stated that, in my opinion, Rule 3.8 is more broad than Brady.  The ABA’s Standing Committee on Ethics & Professional Responsibility is of the same opinion.  Similarly, in a disciplinary case decided in 2015, the D.C. Court of Appeals held that Rule 3.8 “requires a prosecutor to disclose all potentially exculpatory information in his or her possession regardless of whether that information would meet the materiality requirements” of Brady and its progeny.

I bolded “prosecutor in a criminal case” for a reason.  In Vermont, and every other state, the disclosure requirement applies to the prosecutors who are prosecuting a case.  In 17 states, the rule applies to information discovered after a conviction.  But again, only to prosecutors.

Until now.

My dad mentioned it to me when we spoke two days ago.  I looked it up this morning, and he was right.  As the ABA Journal reports here, North Carolina adopted a rule that requires all lawyers, including lawyers in private practice, to reveal exculpatory evidence of which they become aware after a conviction.  More specifically, the rule, which is here, applies when

  • “a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted.”

The rule requires the lawyer to disclose the evidence or information to the appropriate prosecutorial agency, as well as to the state or federal public defender.

As more wrongful convictions come to light, I expect more states will follow North Carolina’s lead.

In any event, a good weekend for my dad.  And it might get better.  Not only is he rooting for North Carolina, he’ll win a not insubstantial amount of money in my pool if South Carolina wins it all.  He’s got things pretty well covered.

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*Speaking of the Brady Rule and Brady violations, long-time readers know my feelings on Tom Brady, his role in the genesis of this rule, and the vast, repeated, and numerous ethics violations committed by Brady and the Patriots.

 

 

 

 

 

 

SEO, Keywords, & Honesty

I’m not sure what to make of this one.

Last month, the Professional Ethics Committee for the State Bar of Texas issued Opinion 661.

The Committee concluded that

  • “A lawyer does not violate the Texas Disciplinary Rules of Professional Conduct by simply using the name of a competing lawyer or law firm as a keyword in the implementation of an advertising service offered by a major search-engine company.”

What’s that mean?

  • I interrupt this  blog to remind you that I first posted on tech competence HERE . Now, back to your regularly scheduled programming.

In an oversimplified nutshell, it means this.

Let’s say I have a family law practice in South Burlington.  Let’s also say that the most well-known and sought after family law attorney in Chittenden County is Rochester Flyte.  How do I drive traffic to my website? I know: competitive keyword advertising. Using search engine optimization, I’ll buy keywords from Big Search Engine.  I buy the keywords you’d expect:

  • “divorce”
  • “attorney”
  • “lawyer”
  • “family law”
  • “Burlington”
  • “Chittenden County”
  • “Vermont”
  • and all combinations of the above

Then, I buy one more phrase: “Rochester Flyte.”

So, when someone uses Big Search Engine to search “Rochester Flyte divorce attorney Burlington,” my website appears very high on the list of results, if not first.

Per the Texas opinion, I did nothing wrong.  Eric Goldman is a Professor of Law at Santa Clara University Law School.  He agrees.

The Texas Committee stated that in its opinion:

  • “the use of a competitor’s name as a keyword in the factual circumstances here considered would not in normal circumstances violate [the rules]. The advertisement that results from the use of [Rochester Flyte’s] name does not state that [Mike Kennedy & Rochester Flyte] are partners, shareholders, or associates of each other. Moreover, since a person familiar enough with the internet to use a search engine to seek a lawyer should be aware that there are advertisements presented on web pages showing search results, it appears highly unlikely that a reasonable person using an internet search engine would be misled into thinking that every search result indicates that a lawyer shown in the list of search results has some type of relationship with the lawyer whose name was used in the search.” Opinion 661, pp. 2-3.

In concluding that such conduct isn’t dishonest, deceptive, deceitful or fraudulent, the Texas Committee appears to have been swayed by the theory that “every other business allows it, so we should too,” noting that:

  • “[i]n the opinion of the Committee, given the general use by all sorts of businesses of names of competing businesses as keywords in search-engine advertising, such use by Texas lawyers in their advertising is neither dishonest nor fraudulent nor deceitful and does not involve misrepresentation.” Opinion 661, p. 3.

Texas reached the opposite conclusion as North Carolina.

  • Another interruption.  Many of you know I like basketball. Well, I’m no fan of Carolina basketball.  So any blog that compares opinions of the Texas and North Carolina state bars will include a reminder that Texas, led by one of my favorite coaches, Shaka Smart, took down UNC last December – the buzzer-beater portending another in Carolina’s future.

In 2010, the North Carolina State Bar issued Formal Ethics Opinion 14.   In the Tar Heel state, where my father lives and to which I’m more and more attracted each day, it would be unethical for me purchase the “Rochester Flyte” keywords.  Why?  Well, as the NC State Bar concluded:

  • “[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.”

So, there you have it.  I’m not sure what makes me hesitant about allowing Lawyer A to buy Lawyer B’s name as a keywords in an SEO marketing campaign.  Indeed, people like Professor Goldman are far smarter & more informed than I on this issue (and probably many others).

Still, it just doesn’t feel right.  The Texas opinion stresses that it’s okay as long as my website isn’t misleading or otherwise dishonest once visited by the person who searched “Rochester Flyte divorce burlington.”.  But I tricked him into getting there….or did I?

Taking the interet out of it, imagine that I rented an office around the corner from Rochester Flyte’s.  And that I put up a sign in front of his that said “law office around the corner.”  Imagine that people searching for Flyte’s office followed the sign and ended up at my office.  Would that be okay merely because I truthfully & honestly identified myself once they arrived?

Maybe.  Maybe not. Or maybe it’s a terrible analogy. I don’t know.

Which is where I am on this issue: I just don’t know. To be clear, I haven’t exactly informed myself.  Besides the Texas and North Carolina opinions, the only thing I’ve read on point is one entry Professor Goldman’s blog. I suppose that, in the end, Professor Goldman will sway me.  After all, as a former point guard, I’m susceptible to being swayed by anyone associated with the school Steve Nash attended.  But, for now, I don’t know what to think.

Which is what many of you have been saying for years.