11 27 07 Ezor Attorney E Mail Ethics Presentation

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Ethics issues for attorneys using technology in their practices

Ethics issues for attorneys using technology in their practices

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  • 1. E-mail Ethics: Rules and Best Practices for Attorney Use of E-mail and the Internet Professor Jonathan I. Ezor Director Institute for Business, Law & Technology Touro Law Center When Spam Isn’t Spam November 27, 2007 [email_address]
  • 2. Computers and Technology Embedded in Legal Practice
    • Document creation and management
    • Communication with clients, courts, government
    • Back office management
    • Legal and business research
    • Advertising and marketing
    • Courtroom presentation and practice
  • 3. All Professionals Face Issues Depending On Technology
    • Reliability of hardware/software can affect business
    • Employee abuse of Internet leads to lost productivity
    • Costs of acquisition, support can be extensive
    • Vulnerability to viruses, spyware
  • 4. Legal Practice Raises Additional Concerns
    • Confidentiality
    • Unauthorized practice
    • Verifiability of sources
    • Uneven “playing field” in courtroom
    • Electronic discovery
    • Others
  • 5. Internet Technology Enables Mobile Workforce
    • Telecommuters working from home
    • Sales and other traveling employees
    • Wired, wireless access widespread
    • Outsourcing spreading labor force worldwide
    • Handhelds include Internet access
    • Office apps include remote capabilities
  • 6. Mobile Workers Open Doors
    • Many bring corporate data to the outside
    • Home or third party computers vulnerable to compromise
    • Accessing corporate network via insecure connection
      • Wired/wireless sniffers
      • Shoulder surfers
    • E-mailed, paper files can get lost, missent
      • 1990: Intel and AMD’s Mike Webbs
      • Dumpster diving
      • Kinkos
  • 7. Portable Devices Add to Concerns
    • Mirroring brings corporate data onto mobile computers
    • Laptops can be lost or stolen
    • Not just an issue for PCs
      • PDAs store documents as well as calendars
      • Hiptops, cellphones receive e-mail containing data
    • Small storage units contain massive information
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  • 12. Attorneys: Confidentiality is Not a Privilege
    • Attorneys required to maintain confidentiality
    • Encryption not required for e-mail, but must take appropriate precautions
    • Failure can lead not only to sanctions, but real-world consequences for clients
    • Problem compounded by lack of IT knowledge at many small firms
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  • 16. Attorney Advertising: E-mail, Web Sites a Concern
    • NY courts regulate attorney advertising
    • Rules include restrictions, requirements for e-mail and online advertising
      • Subject must include “Attorney Advertising”
      • No nicknames or tradenames implying success may be used—issue for domain names
      • All computer communications must be retained for 1 year
      • Web sites (including changes) must be preserved
      • Attorneys may not solicit for services in real-time or interactive-accessed online communication other than from existing close contacts
    • http://www.courts.state.ny.us/rules/attorney_ads_amendments.shtml for more information
  • 17. Unauthorized Practice: Where In The World is The Client?
    • Many Web sites offer legal information, form documents which could be “practicing law”
    • Almost impossible to limit where site will be viewed
    • Disclaimers, careful review of text essential
    • Issue faced by in-house counsel as well
  • 18. Verifiability of Sources: Can the Internet Be Trusted?
    • Web offers attractive alternative to traditional and electronic research
      • Zero- or low cost
      • Easy cut-and-paste
      • Clients balk at paying Lexis/Westlaw fees
    • Younger professionals turn naturally to Internet
    • Some information available only/first on ‘Net
  • 19. Double Trouble of Internet: Reliability and Currency
    • Difficult to determine whether Web sites are accurate, complete
      • Legitimate-looking sites can be fraudulent (“phishing”)
      • Few sites offer guarantees of accuracy
      • Can be problem to determine who owns/runs site
    • Even official sites may not be current
    • Need to check “pocket part,” whether literal or figurative, before relying on material
  • 20. Litigation Technology: High Stakes, Frequent Mistakes
    • Courtroom technology increasing
      • Presentation graphics
      • Multimedia exhibits
    • Well-funded litigants with high-tech “toys” may dazzle jury
    • Unfamiliarity with technology can impede rather than help case
    • Best approach: Careful choice of technology, extensive rehearsal
  • 21. NORTHERN DISTRICT OF CALIFORNIA https://ecf.cand.uscourts.gov/cand/faq/tips/redacting.htm
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  • 24. Electronic Discovery: Giving and Receiving
    • Many cases now hinge on digitally-stored materials
      • E-mail
      • Memoranda
      • Web sites
    • Unfamiliar attorneys may request too little, produce wrong/too much material
    • Critical to enlist computer forensics consultants
  • 25.  
  • 26. Malicious Hacking:
    • Long Island law firm brought Web server in-house
    • Consultant failed to close security holes
    • Firm ended up hosting Eastern European porn server
    “ The Case of the Law Firm Porn Server”
  • 27. With Digital Records, Backups Required by Ethics and Best Practices
    • Firms keep documents, client records electronically
    • Natural, man-made disasters can make them inaccessible
      • 9/11 and other terrorist attacks
      • Hurricanes
      • Blackouts
    • Failure to make backups could be grounds for sanctions
    • Not just onsite but offsite backups critical
  • 28. Strict Controls Needed for Firm Information
    • Clearly articulated policies about access, saving
    • Encryption at all levels
      • Access
      • Transmission
      • Storage
    • Ensuring logoff, password changing
    • Personal, company-owned portable devices covered
    • Privacy laws require additional processes
  • 29. For More Information Please Contact: Professor Jonathan I. Ezor Director, Institute for Business, Law and Technology (IBLT) Touro Law Center 225 Eastview Dr., Central Islip, NY 11722 Tel: 631-761-7119 Fax: 516-977-3001 e. [email_address]