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

 

 

Avoid the Oopsies: Reply to Some, not All

Last September, I posted on the perils of autocomplete.   The post was prompted by the story of a lawyer who accidentally disclosed confidential client information to a reporter for the Wall Street Journal. How?  By failing to realize that the reporter’s email address had been added to a distribution list.  The ABA Journal has the story here.

Has that happened to you?

Today, I came across a post on Robert Ambrogi’s LawSites blog.  I love the title:

Created By A Lawyer, ReplyToSome Helps Prevent Email Oopsies

Give it read.  It discusses “ReplyToSome,” an add-in to Microsoft Outlook that was created by a lawyer to help lawyers avoid email mistakes.

Image result for oops

 

Can a lawyer be sanctioned for revealing information that’s a matter of public record?

Today’s question: does the 1st Amendment prohibit the Supreme Court from sanctioning a lawyer who reveals client information that is public record?

Here’s how the issue would arise.

Rule 1.6 prohibits lawyers from revealing information relating to the representation of a client.  There are some exceptions.  They are:

  • disclosure is impliedly authorized to carry out the representation;
  • the client consents to disclosure;
  • disclosure is required by Rule 1.6(b); or,
  • disclosure is permitted by Rule 1.6(c).

As you see, “it’s public record” is not one of the exceptions.

Rule 1.6 applies to current clients.

With respect to former clients, Rule 1.9(c)(2) prohibits a lawyer from “revealing information relating to the representation as these rules would permit or require with respect to a client.”  Basically, the rule refers back to Rule 1.6 and does not include an exception for information that is “public record.”

Similarly, Rule 1.9(c)(1) prohibits a lawyer from using “information relating to the representation to the disadvantage of the former client except as these rules would permit or require, or when the information has become generally known.” (emphasis added).  As I’ve blogged several times recently, the ABA’s Standing Committee on Ethics and Professional Responsibility has opined that information that is in the public record is not necessarily “generally known.”  Here are the blog posts:

The October post includes cites to several cases that stand for the notion that the prohibition against disclosing information relating to a representation is not lessened by the fact that the information is public record.  Or, for a more detailed explanation how broad the confidentialy rules are, the ABA’s Litigation News ran this article by Edward Feldman.

But there’s an important case that holds otherwise.  The case is Hunter v. Virginia State Bar.

Attorney Hunter blogged.  His posts caught the attention of the Virginia State Bar and resulted in a disciplinary prosecution.  The  VSB charged Attorney Hunter with violating the advertising rules.  Those charges aren’t relevant here.

What is relevant is that the VSB also charged Attorney Hunger with violating Rule 1.6 “by revealing information that could embarrass or likely be detrimental to his former clients by discussing their cases on his blog without their consent.”

At a disciplinary hearing, the VSB put on evidence that Hunter’s former clients “believe that the information posted was embarrassing or detrimental to [them], despite the fact that all such information had been previously revealed in court.”

Hunter was publicly admonished following a conclusion that he had violated both the advertising rules and Rule 1.6.

In an intermediate-level appeal, a circuit court upheld the advertising violations, but dismissed the 1.6 charge on the grounds that the rule, as applied, violated the 1st Amendment. An appeal to the Virginia Supreme Court followed.

On appeal, the VSB conceded that the blog posts were about former clients, contained information that was public, and would have been protected speech if disseminated by the news media or anyone other than Hunter.

The Supreme Court noted that it had been “called upon to answer whether the state may prohibit an attorney from discussing information about a client or former client that is not protected by attorney-client privilege without express consent from that client.”

The Court’s answer:  no.  Specifically,

  • “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

The issue has gained some traction lately, largely in response to the ABA’s most recent formal advisory opinion.  Here’s an excerpt from a blog I posted last week.  It refers to criticism of the ABA’s opinion that “public record” is not necessarily “generally known.”

************************************************************************************

“On that point, the opinion is not without criticism.  Check out the post from Above The Law.   Among other things, the author, Robert Ambrogi, writes:

  • “So a lawyer may not ‘reveal’ information that is contained in a public record. But how can someone reveal something that is already public? To reveal is to make something public that was secret.”

Interesting point.  I don’t necessarily disagree. However, on the flip side, what if you went through a messy divorce 10 years ago?

Imagine that it went to trial.  At trial, details emerged that remain embarrassing today.  Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press.  The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript.  Public? Yes.  Generally known? No.

How would you feel if your lawyer blogged the details tomorrow?”

************************************************************************************

Josh King is Chief Legal Officer at Avvo.  He commented on my post:

“Having hired lots of lawyers over the last 20+ years, of course I wouldn’t want them blabbing about my matters without my consent.

But there’s a difference between a best practice and what the law can prohibit. I’m quite sure that Rule 1.6 can’t constitutionally be applied to discipline a lawyer for stating something that is in the public record.”

Josh runs a blog called Socially Awkward.  He posted a much more detailed response there. You can read it here.

Keith Lee has a blog at Associate’s Mind.  In response to Josh’s post, Keith tweeted a quote from the Hunter decision:

 

Lee Tweet

Michael Cicchini is a lawyer in Wisconsin.  In 2015, the Vermont Law Review published his article On The Absurdity Of Rule 1.9.  Here’s an excerpt:

“Rule 1.9 is an absurdly broad rule that perpetually bans attorney speech  for all purposes and with regard to all information, including information in the public domain. The rule has no rational, underlying policy, and is not even rooted in clients’ actual expectations regarding confidentiality . . . Instead, Rule 1.9 should be interpreted to permit an attorney to discuss, write about, or otherwise disclose publicly-available information relating to a former client’s case, provided the attorney does not contradict the former client’s position in that case.”

I don’t know that I have a position, mainly because I’ve never had to think about it.  I know that most bar counsel types believe in the idea that “public record” is not “generally known” and, therefore, is not an exception to the general prohibition against disclosure stated in Rules 1.6 & 1.9.  More practically, I simply believe that it’s a good idea not to talk about a former client’s matter, even if the matter received widespread media coverage.  Also, for lack of a better word, it makes me squeamish to think of a lawyer disclosing information about a former client that, while public, almost nobody else knows.

Still, I’m sensitive to the First Amendment argument. And, despite my personal opinion that one should take advantage of every single opportunity to keep one’s mouth shut, I feel like the pendulum has started to swing swung back towards the debate’s equilibrium.

So, what say you? I’m a piece of clay.  Mold me.  Again, here’s the scenario:

  • You went through a messy divorce 10 years ago.  Mike represented you. The divorce went to trial.  At trial, details emerged that remain embarrassing today.  Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press.  The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript.  Public? Yes.  Generally known? No.  Yesterday, Mike blogged about them.

Should Mike be sanctioned? Discuss in the comment section, but keep it civil.  Or, take this poll.

Be Quiet

 

 

 

 

ABA & Client Confidences: It’s Deja Vu All Over Again.

Last December, I blogged on ABA Formal Opinion 479.  It’s an advisory opinion in which the ABA’s Standing Committee on Ethics and Professional Responsibility stressed that lawyers should not assume that they are free to disclose client information merely because the information is in a public record.

That’s a point that I made in my post Hey Lawyers! STFU!

To bring you up to speed, here’s the analysis with respect to current and former clients:

Current Clients

  • Rule 1.6(a) states that a lawyer “shall not reveal” information relating to the representation of a client unless (1) disclosure is impliedly necessary to carry out the representation; (2) the client consents to disclosure; or (3) one of the exceptions in paragraphs (b) & (c) is met.
  • Notably, “it’s public record” is not one of the exceptions in paragraphs (b) & (c).

Former Clients

  • Rule 1.9(c)(1) prohibits a lawyer from using information relating to the representation of a former client to the former client’s disadvantage unless the information is generally known.  The fact that something is public record does not mean that it is generally known.
  • Rule 1.9(c)(2) states that a lawyer “shall not thereafter reveal” information relating to the representation of a former client except as the rules otherwise authorize or permit. Nothing in the rules authorizes a lawyer to reveal information merely because the information is in a public record.

On March 6, the ABA released advisory opinion 480.  The opinion purports to address the duty of confidentiality as it applies to lawyers who blog.  The ABA Journal and Above The Law reported on the opinion.   In addition, Trisha Rich and Allison Martin Rhodes, law partners at Holland & Knight, blogged on the opinion here.

The opinion strikes me as a bit odd.

First, for an opinion that purports to address lawyers who blog, it really doesn’t.  Indeed, parts of the opinion come off as, how shall I say it, “less than tech savvy.”  For example, the opinion refers to Twitter accounts as a “microblogs . . . that ‘followers’ (people who subscribe to a writer’s online musings) read.”

Twitter is more than a place to read online musings.  Per the Pew Research Center’s latest numbers, 24% of U.S. adults use Twitter, and 46% of those who do visit Twitter every day.  Speaking only for myself, Twitter is where I get my news. I don’t go for “musings.”  I doubt so many Americans do either.

Next, as Attorneys Rich and Rhodes point out,

  • “The unusual thing about the latest opinion, though, is that it breaks very little new ground. The main point of the opinion is simply to reinforce to lawyers that their obligations of confidentiality always apply, even where a lawyer is communicating electronically.”

Indeed, the opinion makes me wonder why someone asked for it.  I mean, really.

As many of you know, whether by following this blog or attending my CLE presentations, I often urge lawyers not to fear tech.  Tech doesn’t require new rules. It’s simply a new forum in which the same old rules apply.  For example, many of the questions you should ask a potential cloud storage vendor are remarkably similar to the questions you’d want answered before renting a unit at the Store-All facility out on the Old County Road.

More specifically, would you have needed an advisory opinion to tell you not to reveal client confidences in op-ed pieces for your local paper? I doubt it.  Then why would you need an advisory opinion on whether it’s okay to reveal client confidences in a blog post?

Again, as Rules 1.6 and 1.9 make clear, unless one of the exceptions is met, IT IS NEVER OK TO REVEAL CLIENT CONFIDENCES.

Anyhow, the opinion isn’t entirely a restatement of the obvious. It includes a helpful tip on a pet peeve of mine.

At many of my seminars, lawyers pose “hypotheticals.”  Some are so detailed that I’d guess that half the audience knows who the lawyer is talking about.

Remember, “but I was at a CLE & said it was a ‘hypo’!” is not one of the exceptions listed in Rule 1.6.  Indeed, as the most recent ABA opinion reminds us:

  • “A violation of Rule 1.6(a) is not avoided by describing public commentary as a
    ‘hypothetical’ if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.”

Finally, as I alluded to above, the opinion reinforces the notion that “it’s public record” is not license to reveal information. On that point, the opinion is not without criticism.  Check out the post from Above The Law.   Among other things, the author, Robert Ambrogi, writes:

  • “So a lawyer may not ‘reveal’ information that is contained in a public record. But how can someone reveal something that is already public? To reveal is to make something public that was secret.”

Interesting point.  I don’t necessarily disagree. However, on the flip side, what if you went through a messy divorce 10 years ago?

Imagine that it went to trial.  At trial, details emerged that remain embarrassing today.  Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press.  The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript.  Public? Yes.  Generally known? No.

How would you feel if your lawyer blogged the details tomorrow?

In any event, from a practical standpoint, in law & life, I think it’s often best to heed the words of Thomas Edison:

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

 

Be Quiet

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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Tips for Choosing a Practice Management System

Most of you know that when it comes to legal tech, I highly recommend Robert Ambrogi’s Law Sites Blog.  Ambrogi also writes a This Week In Legal Tech column for Above The Law.

Here’s the most recent column: 6 Questions To Ask Before Selecting A Practice Management Platform.

Read it.

A summary of the 6 questions:

  1. Do you want a cloud platform or a platform installed on site?
  2. How much do you want to pay?
  3. Does the system comply with security requirements and obligations under the Rules of Professional Conduct?
  4. Does it have the basic features that you need?
  5. Does it have the advanced features that you need?
  6. Does it feel right when you try it?

Again, read the article.

For part 2 of question 3, my view is that a lawyer’s obligation under the Rules of Professional Conduct is to take reasonable precautions to protect client data, whether the data is in transmission or at rest.  What are reasonable precautions?  I addressed that question HERE.

Still drinking coffee this morning?  You’ve got time to try this week’s legal ethics quiz before you hit the trails or slopes.

tech-ethics

 

Tech Competence as Access

False advertising? Guilty as charged.

tech-ethics

No, this post isn’t part of my series on Ethics as Access: Using the Rules of Professional Conduct to Increase Access to Legal Services.

However, the only reason it isn’t is that the Vermont Supreme Court’s Advisory Committee on the Rules of Civil Procedure has yet to act upon the recommendation that Vermont adopt Comment 8 to Rule 1.1 of the Rules of Professional Conduct. The proposed comment makes it clear that the duty of competence includes a duty of tech competence.

I first reported on the recommendation here.  As of September 30, and according to Robert Ambrogi’s phonemenol LawSites Blog, 25 states had adopted Comment 8.

Here, the recommendation has been before the civil rules committee for nearly two years.

Wait…are you thinking “why is the civil rules committee reviewing proposed amendments to the rules of professional conduct?”  Me too.

It’s inexplicable to me why, in Vermont, the committee that advises the Court on the Rules of Civil Procedure vets proposed amendments to the Rules of Professional Conduct.  I’d assume that the Professional Responsibility Board would play that role. After all, when it promulgated Administrative Order 9, the Court vested responsibility for, and supervision of, the Professional Responsibility Program with, that’s right, the Professional Responsibility Board.

Further, the Board employs a full-time bar counsel who, you know, blogs about issues related to attorney ethics. Finally, as most of you are udoubtedly aware, the Rules of Professional Conduct are not part of the Rules of Civil Procedure. Indeed, Rule 16 of Administrative Order 9 clearly states that “[d]isciplinary proceedings are neither civil nor criminal but are sui generis.”

One might think that just as proposed changes to the Rules of Civil Procedure shouldn’t go through the PRB, proposed changes to the Rules of Professional Conduct shouldn’t go through the Civil Rules Committee.

But one might think a lot of things.

And, anyhow, I digress.  Back to tech, ethics, and technological competence as access.

Not sure how to fit in pro bono work?  Here’s an interesting post from the ABA on how technology is making it easier to do pro bono work.

As I’ve preached, competence includes tech competence. I’ve also blogged about pro bono work.  If you accept the proposition that competence includes tech competence (which the ABA and 25 states have accepted), and if you believe in pro bono work, then remember that tech can make it easier for you to comply with Rule 6.1’s aspirational goal.

For all my posts on tech ethics, go here.