The Ethos of Lawyers in a Networked World: Privacy, Privilege and Evolving Parameters

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Egbert Willis
8 years ago
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2 The Ethos of Lawyers in a Networked World: Privacy, Privilege and Evolving Parameters Tanya L. Forsheit, Esq., CIPP/US Partner, InfoLawGroup LLP tforsheit@infolawgroup.com

3 Lawyer Use of Technology Recent state bar opinions have a direct impact on: the confidentiality of client personally identifiable information (PII) and attorney-client privileged information; multi-jurisdictional legal practice; and attorney use of technology and social media.

information (PII) and attorney-client privileged information;

4 Lawyer Use of Technology (cont.) Lawyers must take reasonable precautions to ensure that their clients confidential information remains secure American Bar Association Ethics 20/20 Working Group on the Implications of New Technologies

their clients confidential information remains secure

5 Agenda ABA Commission on Ethics 20/20 Proposals and White Papers State Bar Rules and Advisory Opinions Relationship of Rules of Professional Conduct/ABA Proposals to state, federal and international regulation of PII The Future of the Regulation of the Profession Interactive Hypotheticals Q &A

Conduct/ABA Proposals to state, federal and international regulation of

6 ABA Commission on Ethics 20/20 Technology and Confidentiality Technology and Client Development Uniformity, Conflicts of Interest, and Choice of Law Outsourcing Alternative Litigation Financing Alternative Law Practice Structures Inbound Foreign Lawyers Rankings

Interest, and Choice of Law Outsourcing Alternative Litigation

7 ABA Commission on Ethics 20/20 (cont.) Revised Draft Proposals Relating to Technology, Outsourcing, and Inbound Foreign Lawyers issued September 2011, comments were due November 2011 Initial Draft Proposals for Comment on Choice of Law Issues Relating to Nonlawyer Ownership Interests in Law Firms issued December 2011 Discussion Paper for Comment on Alternative Law Practice Structures issued December 2011

September 2011, comments were due November 2011 Initial Draft Proposals for Comment on Choice of Law

8 ABA Commission on Ethics 20/20 (cont.) Good Resource: Summary of Actions by the ABA Commission on Ethics 20/20 issued December 28, 2011

9 State Bar Rules and Advisory Opinions Lawyer use of cloud computing Outsourcing issues Multi-jurisdictional practice Who can you friend on Facebook? Connect with on LinkedIn? Follow on Twitter? Should you?

10 State Bar Rules and Advisory Opinions (cont.) New York State Bar Association Formal Opinion 842 California State Bar Standing Committee on Professional Responsibility and Conduct Formal Opinion on Confidentiality and Technology Arizona State Bar Opinion 09-04

State Bar Standing Committee on Professional Responsibility and

11 Why Privacy Professionals Should Care Relationship of Rules of Professional Conduct/ABA Proposals to state, federal and international regulation of PII

12 What is the Future of Regulation of the Profession? Lawyers Privacy Professionals Lawyers who are privacy professionals

13 Interactive Hypotheticals Hypo #1: Multinational general practice law firm BigLawGood recently merged with another multinational general practice law firm, BigLawBetter. BigLawGood has always hosted its and document management on internal servers owned by the firm and managed by firm IT personnel. BigLawBetter entered into an enterprise-wide agreement two years ago with BigCloudProvider - BigCloudProvider hosts all of BigLawBetter s and documents in the cloud. BigLawBetter insists that BigLawGood should transfer all of its and files to the BigLawBetter cloud and eliminate the need for certain IT staff salaries and costly server fees.

BigLawBetter entered into an enterprise-wide agreement two years ago with BigCloudProvider - BigCloudProvider hosts all of BigLawBetter s email and documents in the

14 Interactive Hypotheticals (cont.) Hypo # 1 (cont.) Is there any reason why BigLawGood should not immediately transition its and document management system to BigLawBetter s cloud? BigCloudProvider tells BigLawGood that it is Safe Harbor certified but will not disclose the location of its data centers. How do this impact BigLawGood s analysis as to whether it should place its electronic files into BigLawBetter s cloud?

15 Interactive Hypotheticals (cont.) Hypo #1 (cont.) BigCloudProvider offers and mobile storage encryption solutions. BigLawBetter has not taken advantage of this service, thinking it is excessive and will create hassles for clients that don t use the same system. Should BigLawGood insist on use of the encryption offerings? A few months after the merger, the combined firm notices an article in the newspaper indicating that the government has seized several servers belonging to BigCloudProvider in connection with the government s ongoing investigation of several hackers associated with a hacktivist group. BigLawGood and BigLawBetter contact BigCloudProvider asking whether the government has obtained access to any of the firms data, but BigCloudProvider won t answer any questions and the contract is silent on the issue of subpoenas. How could this situation have been avoided?

Should BigLawGood insist on use of the encryption offerings?

16 Interactive Hypotheticals (cont.) Hypo #2: BigLawGood implemented a major rebranding campaign over the two years prior to the merger, part of which involved the creation of firm Twitter, LinkedIn, and Facebook accounts. BigLawGood s director of marketing is responsible for maintaining and updating the Twitter, LinkedIn, and Facebook pages, and monitors the Internet for stories that may be of interest to firm clients. The marketing director also tweets and posts to LinkedIn and Facebook all articles and blog posts published by firm attorneys. BigLawBetter has no social media presence. BigLawGood starts following BigCloudProvider and retweets some of BigCloudProvider s posts about the cost efficiencies associated with using cloud computing. BigCloudProvider thanks BigLawGood for the RTs and tweets that BigLawGood is one of the best law firms out there. Any problem with any of this?

BigLawGood s director of marketing is responsible for maintaining and updating the Twitter, LinkedIn, and Facebook pages, and monitors the Internet for stories that may be of interest to firm clients.

17 Questions? Q & A

18 The Ethos of Lawyers in a Networked World: Privacy, Privilege and Evolving Parameters Tanya L. Forsheit, Esq., CIPP/US Partner, InfoLawGroup LLP tforsheit@infolawgroup.com

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