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An overview and recommendations on ABA Ethics 20/20

An overview and recommendations on ABA Ethics 20/20

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Abaethicspapers1104 Abaethicspapers1104 Presentation Transcript

  • Briefing on ABA Commission on Ethics 20/20: Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools Issues Paper Concerning Client Confidentiality and Lawyers’ Use of Technology _____________________________ Presented by Carolyn Elefant Law Offices of Carolyn Elefant Creator, MyShingle.com November 4, 2010
  • ABA Ethics 20/20 Commission
    • Created in 2009, with intent to:
      • perform a thorough review of the ABA Model Rules and U.S. system of lawyer regulation in the context of advances in technology and legal practice development. Our challenge is to study these issues and, with 20/20 vision, propose policy recommendations that will allow lawyers to better serve their clients , the courts and the public now and into the future.
    • --ABA Commission on Ethics 20/20,
    • www.abant.org/ethics2020/home.html
  • Commission’s Current Focus
    • Social Media
      • Issues Paper Concerning Lawyers Use of Internet Based Client Development Tools
    • Cloud Computing Applications
      • Issues Paper Concerning Client Confidentiality and Lawyers’ Use of Technology
    • Comments due December 15, 2010
  • Why Ethics 20/20 Matters for Solo & Small Firm Lawyers
    • Social media and cloud computing are leveling the playing field by reducing cost of marketing and practice management
    • Social media helps educate clients, exchange ideas and advance the law
    • Cloud LPM tools reduce practice management costs, minimize malpractice risks and improve quality of service
    • Technology needed to support collaborative ventures between solo and small firms to replace big law
    • Clients, from consumers to larger businesses, are demanding different ways to access legal services including online
    • Quasi-legal providers like Legal Zoom have unfettered rights to advertise online, and real lawyers hobbled by regulation can’t compete
    • Collectively, technological advancements help realize the
        • goal of meaningful access to justice
  • Concerns About the Ethics 20/20 Proposals and Process
  • Vendor Agend-er Vendors can add value to Ethics 20/20 and their views must be included. But it’s lawyers and our clients whose interests are on the line. Vendors’ interests in Ethics 20/20 proposals any financial support provided to the ABA should be disclosed in comments.
  • What About Clients? No mention of increasing client access or client hunger for increased information No documented accounts of clients mislead online!
  • Those Making the Rules Aren’t Playing the Game Informal Survey: None of 20/20 Commission Members have their own blog Found only 1 with a personal Facebook page None of Twitter Does the Commission have the understanding to regulate this area? If not, all the more reason to educate them
  • Micromanagement and Overreaching Proposals sap lawyers of any discretion and takes away confidence to judge our own conduct: chilling effect Micromanages relations traditionally best left to lawyers and clients, BUT… Overreaches, and ignores prevailing state and federal laws on data security
  • Summary of the Proposals
  • Use of OnLine Tools for Marketing
      • Commission seeks guidance on the following:
        • Lawyers’ “mixed use” of social media (e.g. using Facebook page for friends and advertising)
        • Lawyer sponsored “chatrooms” and FB pages (e.g., Sokolove “Yaz” FB Page)
        • Testimonials at 3rd party sites
        • Regulation of blogs as advertising and specific rules on ghostblogging
        • Guidance for lawyers who upload documents to JD Supra (e.g., confidentiality issues)
        • Pay per click advertising (Google Ads and others) - is it an impermissible payment for recommendation in violation of MR 7.2?
        • Amend MR to specify that certain websites are subject to advertising rules (including ban on deceptive communication, creation of AC relation, UPL and disclosure of client identity w/out consent, and First Amendment considerations
        • Should Commission amend rules? Make Whitepaper recommendations? Issue best practices?
    • We are bound by ethics rules but need to exercise discretion
    • Problem with proposing additional regulation to address new media is that it has a chilling effect on ethically-inclined lawyers while doing nothing to stop those who push the line.
    • How do lawyers currently assess compliance?
      • Cocktail party standard: Passing out business cards at a cocktail party or PTA is no different from interactions on FB
      • Social media offers more protection since users must always affirmatively “accept” and can “block” CANSPAM guards against spam
      • Discretion - most lawyers are private about disclosing/protecting client identities. If not, we lose biz. JD Supra - docs are public, so it’s a discretion call. (Anyone complain about LEXIS/Westlaw reselling briefs?)
    • Potter Stewart Test: I’ll know it when I see it
    • (what if lawyers set up a fake med clinic?
    • How is this different?)
    Issues for Solos and Small Firms
  • No Recognition of New Consumer Awareness and World of Third Party Platforms
    • Lawyers online are competing with quasi-legal providers and can’t be placed at substantial disadvantage
    • Regulation of 3rd party platforms impedes CONSUMER’s CLIENT’s rights to comment
      • Differential state rules put lawyers at disadvantage
    • Today’s consumers are internet savvy
      • They understand how to assess ratings sites
      • Not fooled by testimonials at 3rd party sites like “My lawyer was best in the world”
      • Not confused when someone lists “energy law” as LinkedIn specialty
      • Is the purported confusion created by lawyers who don’t know how to use these sites - or legitimately by clients?
      • Rules against deception will always apply, both by Model Rules and FTC Disclosures.
  • Need Safe Harbor for Lawyer Discretion in Social Media
    • As lawyers, discretion is our middle name! We interpret law and advise clients for a living.
    • Rules not appropriate for rapidly changing technology. We need room to exercise our discretion to apply ethics obligations:
      • Safe harbor for lawyers who research ethics before diving in. Get rid of the chilling effect.
      • ABA should be prohibited from accepting $s from marketers or firms with suspect practices
      • At most, suggest best practices as examples.
      • Publicize ANY client complaints about deceptive practices so that lawyers can self-correct
      • Make ethics rules available w/out copyright so that lawyers can research them
      • At the end of the day, it is OUR license, OUR clients. We should not have to rely on pricey outside counsel or vendor assurances. But draconian sanctions are not fair either.
  • Blogging
    • Blogs that express opinions or provide substantive information ARE NOT advertising any more than law journal articles. To say otherwise, demeans their value.
    • Distinguish from advertising blogs:
      • See factors in Stern v. Bluestone and Holtzman v. Turza, ND Ill Aug 3, 2010
        • Educational v. promotional?
        • Canned content v. original?
        • Firm branding occupying majority of the site
    • Blogs that constitute ads are subject to MR 7 prohibiting deceptive practices:
      • Ghostwriting and ghost communicating - deceptive when posted as first person. Should not be prohibited but disclosed (would you send a proxy to a cocktail party). Problem is deception - not competence (in my view).
      • Lawyers who use copyrighted content w/out attribution subject to ethics review (as with plagiarism)
  • Attorney Websites
    • ABA Copyrighted Rule on Websites (Op. 10-457) Good summary of current practices and mores, ten years too late.
    • Websites properly treated as advertising.
    • Sole change needed:
      • UNIFORM rule or best practices to govern websites and other social media conversations since attorneys practice in multiple jurisdictions
      • UNIFORM practices should apply to all SM and online interactions. The world is no longer flat, and SM traverses jurisdictional boundaries. Provincial crazy-quilt rules must go; they impede commerce, disadvantage lawyers who practice in multiple jurisdictions and impose added transaction costs.
  • Pay per Click
    • My own view - often costly and ineffective, does not necessarily yield desirable clients. AND Pay per click is NOT a First Amendment issue (regulates form, not content) But…
    • Pay per click as Google or FB ads or Total Attorneys is not a fee for referral. It’s performance based marketing that gives lawyers of lower cost access.
    • Alternative: large firms buy up ads and dominate, then trade referrals back and forth or hire contract attnys to handle cases in different states.
    • Pay per click may need additional disclosures but otherwise, should not be barred.
  • Client Confidentiality and Lawyers Use of Technology
    • Overview of potential issues re: use of technology:
      • Client confidentiality concerns related to cloud
      • Is cloud computing outsourcing?
      • Confidentiality related to “local” technology (smartphones, onsite, passwords)
      • Cyberinsurance
  • Client Confidentiality and Lawyers Use of Technology
    • Commission seeks guidance on these issues:
      • Overall: Should Commission have rules, best practices or Whitepaper? Should Commission set up its own Tech Site for guidance?
      • Confidentiality in cloud
        • Duties to investigate vendor re: back up, security, clarify data ownership
        • Negotiate more favorable terms if not available
        • Policies for notification of data breach
        • Standards re: encryption
        • Need to retain independent tech consultant where knowledge is not sufficient
      • Is cloud computing outsourcing?
        • Would require lawyer oversight of cloud just like oversight of independent contractors
        • This approach will require client consent to use
      • Confidentiality related to “local” technology (smartphones, onsite, passwords)
        • Policies for wifi, password protection and incryption
      • Cyberinsurance
        • What are options? To what extent are security issues covered by malpractice
  • Overarching Approach
    • Define the baseline. Nothing is risk free.
      • Papers can be stolen in open court.
    • Acknowledge the benefits of user friendly cloud tech and help transition to it rather than obfuscate.
      • Lower cost of service and more effective delivery
      • Mobility - helps on other fronts like retention of women in the profession
      • Way of the world. Clients want access!
    • Evaluate risk management.
      • No need for technoverkill. High security needs more protection, public docs need less
      • For drivers’ license, SS numbers, CC numbers - ABA has no business regulating this. If we lawyers do business in commerce we need to play by the “big boy” rules
    • Should not impose higher or lower burdens than required by state law unless necessary to protect client confidences or privilege
    • Uniform standards are imperative!
      • 50 different state rules on access is untenable
      • Will raise cost of tech development and stifle innovation
  • Best practices combined with vendor certifications
    • Best Practices
      • Encourages competition and innovation. Avoids monopoly by select vendors
      • Gives lawyers discretion to choose appropriate tools for practices
      • One best practice: find ways to avoid collection of sensitive data (Fed courts and PACER)!
    • Vendor Certification
      • Some solos and small firms would prefer to just choose vendors from a check list (like IOLTA approved banks). Make this an option (not mandatory)
    • Group bargaining power
      • Individual firm can’t get concessions from vendors. ABA and state bars should collaborate to get concessions just as GSA did for government agencies on Facebook
    • Uniformity is imperative!
      • If ABA and states could pool resources, they could create a TechFund that would be useful
      • W/out uniformity, added costs for solo/small firms in multiple jurisdictions and for vendors
    • RiskMatters, Not Size
      • Some solos deal with critically sensitive information. They don’t deserve exemptions from rules. High risk demands more security, irrespective of size.
      • Don’t want solos to appear “lax”
  • Considerations About the Cloud From Box.net Basic practices: SSL, Firewall, PW (even with free systems) Does data at rest need to be encrypted? Recent paper shows 88% of breaches due to human error Human error enhanced where features are interactive Overall system security is more important than encryption at rest
  • Cloud as Outsourcing
    • Only a lawyer!
      • Acknowledge the benefits of user friendly cloud tech and help transition to it rather than obfuscate.
      • Lower cost of service and more effective delivery
      • Mobility - helps on other fronts like retention of women in the profession
      • Way of the world. Clients want access!
    • Sets dangerous precedent: do we treat phones and bank as “outsourcing?”
    • Clients should not have to give consent to tech uses.
    • That said, ABA can develop best practices for evaluating cloud companies, or list of certified suppliers.
  • Data Breaches and Management
    • Certain data subject to federal and state law retention requirements
    • ABA should not be regulating that! Regulation of cloud insofar
      • Acknowledge the benefits of user friendly cloud tech and help transition to it rather than obfuscate.
      • Lower cost of service and more effective delivery
      • Mobility - helps on other fronts like retension of women in the profession
      • Way of the world. Clients want access!
    • Sets dangerous precedent: do we treat phones and bank as “outsourcing?”
    • Clients should not have to give consent to tech uses.
    • That said, ABA can develop best practices for evaluating cloud companies, or list of certified suppliers.
  • Recommendations for Ethics 20/20: Online Marketing
    • Rules too static for changing times, perhaps best practices
    • Allow lawyers to use discretion, with safe harbor for those who act in good faith
    • Lift the copyright wall on ABA and state ethics opinions to facilitate compliance
    • Do not regulate hybrid lawyer uses of social media or third party platforms - encroaches on rights of clients to communicate about, and interact with lawyers
    • Do not lump bonafide bloggers in the “advertising category”
    • Websites are understood to be advertising, but must have uniform rules
    • Pay per click is not a “fee for recommendation” but it is not First Amendment either (it’s not content!)
    • ABA and bar associations should not accept sponsorship dollars from vendors with ethically suspect practices
  • Recommendations for Ethics 20/20:Confidentiality
    • No rules since industry is in flux. Combination of “best practices” and vendor certification (like bar-certified IOLTA banks)
    • Best practices must be uniform to avoid confusion, inefficiency and transaction costs for lawyers in multiple jurisdictions.
    • Do NOT treat cloud computing as outsourcing - creates dangerous precedent and requires client approval of lawyer decision (is phone service outsourcing? Banking?)
    • Transition from rules to risk assessment
      • What is baseline acceptability? What are benefits? What are risks.
      • Solo & small firms shouldn’t be exempt from security - depends on risk requirements Allow lawyers to use discretion, with safe harbor for those who act in good faith
    • Is one hundred percent encryption at all levels of interactive software necessary?
      • Studies show 88% of breaches derive from human error not lack of encryption
    • ABA and bars must negotiate terms with suppliers. Individual lawyers lack bargaining power
    • ABA should defer to state and federal laws on management of personal data and breach notification -
      • One best practice: discourage lawyers from storing credit cards, SS numbers, etc..
      • May be a burden but identity theft is serious - lawyers should be bound by state and federal laws, not self-created regulation
  • Thank You! Get Involved! Read the Issues Papers! File Comments! For additional information or if you would like permission to recirculate this presentation, contact Carolyn Elefant, [email_address] , 202-297-6100 @carolynelefant Facebook/carolynelefant