Ethics and Social Media (2 hours) Suzanne Valdez May 19-20, 2016 University of Kansas School of Law
Advances in Technology and Potential Ethical Pitfalls University of Kansas Recent Developments CLE May 19, 2016 Road Map I. Technology Update change in Model Rules to accommodate technology II. Communication with the client and pitfalls with electronic mediums III. Confidentiality and inadvertent disclosures IV. Discovery and social media V. Interacting with judges on social media VI. Advertising and law firm websites 1
Technology Update Terminology updated Rule 1.0(O) Writing or Written denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio, or videorecording and email. A signed writing includes an electronic sound, symbol, or process Rules affected Rule 1.2 (c); 1.5(b) and (d); 1.7(b)(4); 1.8; 1.9 Rule 4.4(b) adds ESI (including metadata); plus comment Comments added or amended Rule 1.0, Comment (1) Confirmed in writing Rule 1.0, Comment (9) Screened Rule 1.1, Comment (8)*** Rule 1.3, Comment (3) Comments to Conflicts of Interests rules Rule 1.18, Comment (2) Rules 7.2 and 7.3 add comments Methods of Communication with Client Rule 1.4 Phone (land line, cordless phone, cell phone, work phone, home phone) Text Email (Personal email, work email) Email through secure website U.S. Mail; Other forms? ***Communication with a client must be secure for use by you and your client; a technology checklist is helpful 2
Communication with client and pitfalls with electronic mediums Rule 1.4 requires the lawyer to communicate with the client about all matters related to the client s representation; it is one of the four fiduciary duties a lawyer owes his client Rule 1.6 Confidentiality is a two-fold obligation, which (1) prohibits the lawyer from divulging confidential information; and (2) requires the lawyer to protect against disclosure Rule 1.1 Competence, cmt 8 requires the lawyer to keep abreast of risks and benefits of technology; cmts 18 and 19 of Rule 1.6 discuss acting competently to preserve confidentiality. Confidentiality & Inadvertent Disclosures Rule 1.6 (c) requires reasonable steps to protect against inadvertent disclosure of confidential information This rule requires the lawyer to use communication mediums that are secure against inadvertent disclosure This also requires the lawyer to ensure that the client s means of communicating with the lawyer is secure Comments added to Rule 1.6 Comments 18 and 19 address preserving confidentiality; requires the lawyer to act competently to safeguard confidential information and to make reasonable efforts to prevent access or disclosure; comments lists factors 3
Inadvertent Disclosures - Relevant Rule: 4.4 (b) Rule 4.4 (b) provides that a lawyer who receives a document or ESI relating to the representation of the lawyer s client and knows it was sent inadvertently shall promptly notify the sender Comment 2 The purpose of the rule is to allow the sending lawyer to take protective measures. Comment 3 Comment leaves it to the professional judgment of the lawyer as to whether to delete, read, or use the information sent Be aware of rules, such as claw-back provisions, that may require lawyer to return the document, and not use it Inadvertent Disclosures the receiving attorney s duty A look at Aerojet-General Corp. v Transport (18 Cal.App.4 th 996, 1993) Issue is what is the duty(ies) of the lawyer who inadvertently receives client confidential documents from opposing side during discovery? No misconduct of lawyer Receiving lawyer cannot purge information learned from his mind Receiving lawyer s professional obligation to his client demands that he use the info on his client s behalf. Does Aeorojet go too far as a matter of legal ethics? Claw back provisions mostly protect attorney-client privilege 4
Discovery & Social Media Ethical issues: (1) Posting about a client or a case (2) Criticizing a judge (3) Using social media to investigate a case It is easier to violate ethical rules in cyberspace than in person. Discovery & Social Media Many ethical rules are implicated: Rule 1.6 - Confidentiality Rule 4.1 Truthfulness in statements to others Rule 4.2 Communication with person represented by counsel Rule 4.3 Dealing with unrepresented person Rule 4.4(a) Respect for third parties Rule 8.4(a) - Misconduct Rule 3.5(a) & (d) Impartiality and decorum of the tribunal Rule 8.2 Judicial & legal officials 5
Interacting with judges on social media Ethics opinions suggest that the burden rests with the judge to ensure there is no impropriety Rule 8.2(b) requires a lawyer who is a candidate for judicial office to comply with Model Rules of Judicial Conduct Rule 3.5(a) Impartiality and decorum of the tribunal ABA Formal Op. 13-452 Judges use of ESM does not necessarily compromise their duties any more than use of traditional and less public forums (But a Fla. Sup. Ct. Op 2009-20 opined that lawyers and judges could not be friends on Facebook. Advertising Rule 7.1 Communications Concerning a Lawyer s Services Language of rule unchanged Added Comment 2 Be wary of violating Rule 1.6 (confidentiality) by listing case info on firm webpage Rule 7.2 Advertising Language of rule unchanged See Comment 1 for Rule 7.1 See also Comment 2 to Rule 1.18 (duties owed to prospective clients) 6