21 ST CENTURY ETHICS: A SURVEY OF ETHICAL ISSUES IN MODERN LEGAL PRACTICE

Transcription

1 21 ST CENTURY ETHICS: A SURVEY OF ETHICAL ISSUES IN MODERN LEGAL PRACTICE

2 Introduction Technology has changed the practice of law and continues to shape the profession, impacting everything, including the ethical issues facing lawyers. The topics covered in this CLE include the general duty of competence with technology in law practice, social media, modern advertising, cloud computing, and virtual law offices.

3 Must Lawyers Use Technology? See Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005) (lawyer admonished for not using Google to find a non-resident defendant after filing a Long Arm affidavit asserting the defendant s address could not be found). See Griffin v. Maryland, 192 Md. App. 518 (2010) (court approves of statement found in law review article that states it is a matter of competence for lawyers to investigate social networking websites).

4 Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010, en banc). The court allowed a new trial based on a juror's nondisclosure of his litigation history. It noted, however, that Plaintiff's counsel discovered the information using Missouri's automated case record service after the trial. Acknowledging a lack of a Supreme Court rule governing this area, the court imposed an affirmative duty on attorneys to make online investigation of potential juror s prior litigation history a key part of their jury selection process in light of advances in technology allowing greater access to information.

5 A Duty of [Technological] Competence See Va. Rule 1.1, cmt. [6]: To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education in the areas of practice in which the lawyer is engaged. Attention should be paid to the benefits and risks associated with relevant technology. Va. Rule 1.6(d): A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this Rule.

6 ABA Formal Op /24/14

7 ABA Formal Op /24/14 The auto-generated third-party notice to a subscriber that their profile had been viewed likely would not violate Rule 3.5 because "the lawyer is not communicating with the juror, the social media provider is. I think a lawyer's duty of diligence and competence permits if not requires the lawyer to gather whatever public information is available about a juror."

8 Juror Misconduct Juror in Detroit posted on Facebook before the trial was over. It was gonna be fun to tell the defendant they re guilty. Defense attorney s son finds the post. $250 fine for violating oath and 5 page essay on 6 th Amendment! Defense Attorney had asked for jail time!

9 Blogging A blog is a web site where a writer posts writings that are organized chronologically. Blogs are popular outside the legal context and have gained popularity in the legal field over the last ten to fifteen years. Legal blogs exist on almost every subject. LexBlog s 2012 annual State of AmLaw 200 Blogosphere reported that 78% of the 200 largest law firms in the United States were blogging.

10 Blogs to Check Out (from 2013 ABA Journal Blawg 100) Divorce Discourse iphone J.D. The Droid Lawyer IPWatchdog The Legal Watercooler

11 Ethics and Social Media Online connections carry the same ethical pitfalls as in-person interaction with potential clients and others. Remember, the same rules apply to your online presence as they do to any type of communications.

12 Can This Get Me in Trouble? Public defender revealed client confidences relating to pending matters in her blog. Public defender lost her job of 19 years. Public defender was disciplined by the Illinois State Bar. In the Matter of Peshek (Illinois Bar Complaint) Remember Rule 1.6: A lawyer shall not reveal information protected by the attorneyclient privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

13 Can This Get Me in Trouble?

14 Can This Get Me in Trouble?

15 Can This Get Me in Trouble? Lawyer suspended for 18 mos. for improper response to criticism posted on website. disclosed confidential information in response to clients Internet complaints about his fees or services in two instances People v. Underhill (Colo. August 12, 2015). The couple posted complaints about Underhill on two websites. He responded with internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions, in contravention of Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client) and Colo. RPC 1.9(c)(2) (a lawyer shall not reveal information relating to representation of a former client).

16 Can this Get Me in Trouble?

17 What is the Take Away Here? A helpful Venn Diagram The Internet Privacy

18 Advertising Case Results Rule 7.1(b) applies to this. Disclaimer must Put the case results in a context that is not misleading (or potentially so) State that case results depend upon a variety of factors unique to each case, and State that case results do not guarantee or predict a similar result in any future case undertaken by that lawyer.

19 Hunter v. Virginia State Bar Criminal defense lawyer blogged about past victorious cases on his firm s website. Posts included names, evidence, and charges against them. Supreme Court of Virginia held that former Rule 7.2(a)(3) was constitutional as applied to the blog and was properly regulated speech. Thus, lawyer must post the required disclosures. Rule 1.6 was unconstitutional as applied to the blog, and a lawyer can post information previously disclosed in a public courtroom in a closed case.

20 Endorsements People can like lawyers on Facebook and endorse lawyers on LinkedIn. These may be recommendations under Rules 7.1 & 7.3 Remember, you adopt the statements of others who post on your social media site.

21 Svitlana Sangary

22 Svitlana Sangary Sangary attorney in California. Had a large number of publicity photos on her website of her and celebrity or political figures. Problem is that they weren t real she photoshopped herself into them. September 11, 2014 Judge recommended six-month suspension due to her (a) deceptive advertising; (b) failing to cooperate with a disciplinary investigation; (c) failing to promptly release client file.

23 Direct Solicitations Rule 7.3 governs Direct Contact with Potential Clients Solicitation is targeted communication started by the lawyer directed to specific potential client that offers to provide legal services The same rules apply to electronic solicitation 2013 Amendments removed ban on in person solicitation!

24 Send it to the Cloud

25 Legal Ethics Opinion 1872 and Cloud Computing Attorneys must use reasonable care to protect client confidences under Rule 1.6. Lawyers must: exercise care in the selection of the vendor, have a reasonable expectation that the vendor will keep the data confidential and inaccessible to others, and instruct the vendor to preserve the confidentiality of the information. The lawyer will have to examine the third party provider s use of technology and terms of service in order to know whether it adequately safeguards client information, and if the lawyer is not able to make this assessment on her own, she will have to consult with someone qualified to make that determination.

26 Virtual Law Offices This is a form of e-lawyering. A VLO is a practice where legal services are provided online and thus accessible anywhere. It may be a component to a brick and mortar traditional firm or could be an entirely online enterprise.

27 Applicable Legal Ethics Opinions Legal Ethics Opinion 1791 states that in-person communications and meetings with clients are not required. Legal Ethics Opinion 1818 states that one can operate a paperless office, storing and providing client files in electronic form only. Legal Ethics Opinion 1872 addresses cloud computing and executive office suites. A non-exclusive office space or virtual law office that is advertised as a location of the firm must be an office where the lawyer provides legal services. (1) How often does lawyer use space? (2) do non-lawyers use space? (3) does signage indicate office is a law office?

28 Selecting a Provider: Questions

29 Selecting a Provider: Questions Where are users? Where is data processed? Where is data stored? Where is the disasterrecovery and backup site? Where will support be based? Will support have access to confidential data? Will subcontractors or outside personnel have access?

30 Selecting a Provider: Questions Does the customer have the right to approve in advance the transfer of data? Who can access the data? Will there be different access levels? Who will supervise the project? Will there be monitoring and auditing policies and procedures?

31 Inadvertent Disclosure Inadvertent disclosure occurs when you send privileged information to another person, and you did not intend to do so. The inadvertent production of a privileged document is a specter that haunts every document intensive case. Walton v. Mid- Atlantic Spine Specialists, P.C., 694 S.E. 2d 545, 551, 280 Va. 113 (2020), quoting New Bank of New England v. Marine Midland Realty Corp., 138 F.R.D. 479, (E.D. Va. 1991).

32 Inadvertent Disclosure For most disclosures, LEO 1702 applies. LEO 1702 requires recipient to notify sender and abide by sender s wishes. Rule 4:1(b)(6)(ii) applies to inadvertent disclosures made in pretrial discovery. LEO 1871 applies this rule and 1702 to hypothetical where attorney finds privileged documents in discovery. A court decides if privilege survives disclosure; counsel must sequester information until then.

33 Inadvertent Disclosure Walton v. Mid-Atlantic Spine Specialists, P.C., 694 S.E. 549, 552, 280 Va. 113 (2010) applies a five prong test to see if privilege survives. Reasonableness of precautions to prevent disclosure Time taken to rectify the problem Scope of Discovery Extent of Disclosure Interests of Justice