AVOIDING ROUGH SEAS: AN ETHICAL ATTORNEY S GUIDE TO TECHNOLOGY
PRESENTERS Diane M. Potts, Esq. Deputy Attorney General, Child Support Enforcement Chicago, Illinois John Cardoza, Esq. Managing Attorney Ventura County Child Support Services Nicholas J. Palos, Esq. Support Magistrate Kings County (Brooklyn, NY) Family Court
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and practice, including the benefits and risks associated with relevant technology.. ABA Model Rule 1.1, Comment 8
Workshop Objectives This CLE workshop will Alert the participants to the ethical issues which arise as technology continues to impact the practice of law Demonstrate the intersection between substantive law and the law governing the practice of law Probably raise more issues than we answer
Workshop Methodology Our troupe of players will present a series of vignettes involving legal ethics issues. At the conclusion of each vignette, the players will lead a discussion of various issues raised in the performance. The various vignettes may not be IV-D specific, as Legal Ethics transcend individual practice areas
CAUTION: FAILURE TO ENGAGE IN THE DISCUSSION OF THE ISSUES PRESENTED MAY BRING ABOUT LAW SCHOOL FLASHBACKS.... VOLUNTEERS WILL BE CHOSEN
ACT I Client? Maybe... Not
An office, somewhere in Notta County
Jane Doe Jane.Doe@doeco.com (234)567-8910 I need assistance getting my husband to support our children. He has said he ll take our company down if I press this, but I know he can provide for these children. He has taken all of our joint accounts By clicking on send you acknowledge that no attorney-client relationship has been established. An attorney client relationship will only be established upon execution of a written retainer agreement
GHF: Jane: GHF: Jane: GHF: Jane: Good afternoon and welcome to Goethe Hidit & Fast. How may I help you today? Well, I think I need a lawyer to get support from my husband for my children. Okay, tell me a little about your situation. John and I have been married for nine years and we have three children. He moved out last month and is not supporting them I think he s going to file for a divorce me after her moves in with his new girlfriend. Why do you think that? He took all of our bank records with him, except for my private accounts, the ones he does not know about.
GHF: : Jane: GHF: Jane: GHF: Jane: GHF: So, there are assets he does not know about Of course. I ve seen this coming for months and I ve been preparing for this. I have no intention of telling him about those accounts So you want our help in making sure he does not learn about those account, correct? Among other things. I have a list of things I want to accomplish. Such as? I want control of our company. If I get that, he can have anything else. Ok. I think I have enough information. Someone from the firm will get back to you in a day or so.
Websites and Solicitation of Business Applicable Rules Model Rule 4.1(a) Model Rule 7.1 Model Rule 7.3(a) Model Rule 8.4(c) Bar Opinions ABA Formal Opinion 10-457 AZ State Bar Opinion 02-04
Websites and Solicitation of Business o Use of live chat services o Model Rule 7.3(a) o A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer s doing so is the lawyer s pecuniary gain o NC Formal Opinion 2011-8 o Philadelphia Bar Opinion 2010-6
Maintaining confidentiality of information o Duty of Confidentiality o Model Rule 1.6 o A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Maintaining confidentiality of information o Prospective Client o Model Rule 1.18 o o o A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter may be a prospective client. Individual cannot make disclosure unilaterally Use of material learned during such discussion to the extent Model Rule 1.9 permits use of such material when obtained during representation with a former client.
Maintaining confidentiality of information o Warnings, Disclaimers & Cautionary Statements o Creation of Attorney-Client Relationship o NM Bar Opinion 2000-1 o NC Bar Opinion 2000-3 o NYCBA Formal Opinion 1998-2 o UT Bar Opinion 96-12 o VT Ethics Opinion 2000-04
Maintaining confidentiality of information o Warnings, Disclaimers & Cautionary Statements o Confidentiality of Visitor Information o California Opinion 2005-168 o Provision of Legal Advice o Representation of Adverse Party o A lawyer may condition conversations with a prospective client on the person s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter
Maintaining confidentiality of information o Warnings, Disclaimers & Cautionary Statements o Clarity of the Disclaimer o California Opinion 2005-168 o Prominence of the Disclaimer o DC Bar Opinion 302
Supervision of Legal Personnel Model Rule 5.1 Reasonable efforts to ensure that the office has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct Potential liability for misconduct of attorneys being supervised
Supervision of Non-Legal Personnel Model Rule 5.3 Reasonable efforts to regulate conduct as compatible with the Rules of Professional Conduct Ethical responsibility if non-legal personnel being supervised violate the Rules of Professional Conduct.
ACT II Connection Conundrums
At the Notta County Child Support Office, Legal Division
Ethical issues in the use of email Ethical duties to consider Competence Model Rule 1.1 Confidentiality Model Rule 1.6(a) Respect for the Rights of Third Parties Model Rule 4.4(b)
Ethical issues in the use of email Duty to provide competent representation A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. MRPC 1.1
Ethical issues in the use of email Duty to maintain Confidentiality A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). MRPC 1.6(a)
Ethical issues in the use of email Respect for the rights of third parties A lawyer who receives a document relating to the representation of the lawyer s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. MRPC 4.4
Ethical issues in the use of email Duty to maintain Confidentiality Communication by email is only as secure as the recipient permits it to be Recipient s carelessness Employer policies Disclosure of confidential information may result in a loss of the attorney client privilege
Ethical issues in the use of email Attorney-client privilege is NOT an ethical issue. All privileges are rules of evidence Substantive law intersects ethical obligations
Ethical issues in the use of email Duty of Competence requires the attorney to be aware of who may have access to the client s email Whether an inadvertent disclosure of confidential information constitutes a waiver of attorneyclient privilege is matter of substantive law A court will determine if the privilege has been waived
Ethical issues in the use of email Use of Employer provided computer may result in a loss of the attorney-client privilege, as well as work-product protection 322 B.R. 247 (SDNY 2005) 4 Part Test 1. Does Employer maintain a policy banning personal use of company email or web access? 2. Does company monitor employee use? 3. Do third parties have a right of access to the computer or emails? 4. Has company notified employee of policy?
ACT III A Cloudy Day in Notta Town
A Conference Room in the Child Support Services Offices
Why Cloud Computing? Software as a Service (SaaS) Accessed by web-browser Data stored on providers hardware Software continuously upgraded by provider Subscription service vs. license Accessible
When Considering the Cloud Consider these obligations: Competence Model Rule 1.1 Communication Model Rule 1.4 Confidentiality of client information Model Rule 1.6 Safekeeping of client property Model Rule 1.15 Supervision of non-lawyer assistants Model Rule 5.3
When Considering the Cloud Bar Ethics Committees have spoken: CT Informal Opinion 2013-07 FL Opinions 12-3 IA Ethics Opinion 11-01 ME Opinion 194 MA Opinion 12-03 NH Advisory Opinion 2013-13/4 NYSBA Ethics Opinion 842 OR Opinion 2011-188 PA Formal Opinion 2011-200
Choosing a Cloud service provider Due Diligence requirement when selecting provider At a minimum, one should investigate: Reputation of provider Law governing the terms of the service agreement Enforceable obligation to keep client information confidential Procedure to notify attorney if client information is subpoenaed Security measures to prevent unauthorized access to information Back-up and data recovery procedures Who owns the data Where is data stored Disposition of data if relationship terminates
ACT IV Just the (visible) facts, folks
In the Notta County Child Support Services offices
Metadata Data about data o Tracking changes o Comments o Data used to create data Formulae Algorithms Templates
Several ethics rules are implicated Competence Model Rule 1.1 Diligence Model Rule 1.3 Confidentiality Model Rule 1.6(a) Fairness to opposing party and counsel Model Rule 3.4
Several ethics rules are implicated Respect for rights of third persons Model Rule 4.4 Supervisory obligations Model Rule 5.1 Model Rule 5.3 Misconduct Model Rule 8.4
Mining for Metadata Active Search & Use Permitted ABA Formal Opinion 06-442 MD Formal Ethics Opinion 2007-09 CO Formal Opinion 119 DC Ethics Opinion 341 VT Opinion 2009-1 WI Ethics Opinion EF-12-01
Mining for Metadata Active Search and Use Prohibited AL Ethics Opinion 2007-02 AZ Ethics Opinion 07-03 FL Opinion 06-2 ME Opinion 196 MS Opinion 259 NH Opinion 2008-2009/4
Mining for Metadata Active Search and Use Prohibited NYCLA Opinion 738 NYS Opinion 749 NC Opinion 2009-1
Mining for Metadata Hybrid OR Formal Opinion 2011-187 PA Formal Opinion 2009-100 WA Opinion 2216 WI Ethics Opinion EF-12-01
OBLIGATIONS OF SENDING ATTORNEY ( SA ) o o o Act competently to avoid revealing a client s confidential information Use reasonable care to ensure that metadata that contains confidential information is not transmitted Cannot act to limit the duty to use reasonable care to avoid disclosure of confidential information contained in metadata
OBLIGATION OF RECEIVING ATTORNEY ( RA ) WHEN RECEIVING CONFIDENTIAL INFORMATION Where SA notifies RA that confidential information is in the metadata, RA should not view and must follow instructions of SA If RA discovers confidential information in metadata, RA must give notice of discovery to SA Several opinions adopt the presumption that any metadata which contains confidential information was sent in error
Metadata within documents may constitute tangible evidence Subject to subpoena Subject to discovery demands Can bring about sanctions if scrubbing of metadata occurs in context of litigation
In discovery digging for digital dirt can be a goldmine when done properly. It can also be an ethical nightmare when mistakes,, even unintentional ones, are made.
In general, gaining access to information by trickery or deception is prohibited Ethical Principles Implicated Dishonesty in course of representation is prohibited Model Rule 8.4 Knowingly making false statements to a third party is prohibited Model Rule 4.1 Cannot have non-lawyer engage in prohibited activity Model Rule 5.3(b)(1)
In general, gaining access to information by trickery or deception is prohibited Bar Association Opinions ABCNY Opinion 2010-2 ABCNY Opinion 2012-2 MA Opinion 2014-5 NYCLA Opinion 743 NYS Opinion 843 OR Opinion 2013-189 Philadelphia Bar Association Opinion 2009-02 San Diego County Bar Association Opinion 2011-2
New York State Bar Association is reviewing proposed Social Media Ethics Guidelines 3.A: A lawyer may view the public portion of a person s social media profile or public posts even if such person is represented by another lawyer. Be aware the network may send a message alerting the person who s profile is being viewed 3.B: A lawyer may request permission view the restricted portion of an unrepresented person s social media website or profile, Must use full name Own profile must be accurate May not create a different or false profile in order to mask identity Must provide accurate information when asked
New York State Bar Association is reviewing proposed Social Media Ethics Guidelines 3.C: A lawyer shall not contact a represented person to seek to review the restricted portion of the person s social media profile unless an express authorization has been furnished by such person
New York State Bar Association is reviewing proposed Social Media Ethics Guidelines 3.D: A lawyer shall not direct an agent to engage in specific conduct, or with knowledge of the specific conduct by such person, ratify it, where a lawyer may not engage in such conduct.
Questions??? Comments???
Questions? Need More Information? Feel free to contact us. Diane Potts, Esq. dpotts@atg.state.il.us John Cardoza, Esq. John.Cardoza@ventura.org Nicholas Palos, Esq. npalos@nycourts.gov