TECHNICAL REVOLUTION/ETHICAL EVOLUTION - PBI 2014

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On June 29, 2011, the ABA Commission on Ethics 20/20 released a number of proposed amendments to the Model Rules of Professional Conduct. The area of technology received significant attention in two areas: “Lawyers’ Use of Technology and Client Development” and “Lawyers’ Use of Technology and Confidentiality”. The Commission had concluded in its initial report “that no new restrictions are necessary in this area, but that lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values.”

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TECHNICAL REVOLUTION/ETHICAL EVOLUTION - PBI 2014

  1. 1. Presented by Cynthia Sharp • Professional CLE Speaker • Attorney Business Coach
  2. 2. Event Sponsor: Featuring Cynthia Sharp The Sharper Lawyer TECHNICAL REVOLUTION/ ETHICAL EVOLUTION ETHICAL EVOLUTION 2 March 17, 2014 @thesharperlawyer
  3. 3. Preliminary Thoughts •I would be really happy if we could cover the following: •I decided to attend “Social Media” because: 3 @thesharperlawyer
  4. 4. Wake Up To Social Media! 4 @thesharperlawyer
  5. 5. 5 @thesharperlawyer
  6. 6. Attorneys Using Social Media 15% 43% 56% Quadrupled in 2 years! 6 @thesharperlawyer
  7. 7. Attorneys Using Social Media 7 @thesharperlawyer Legal Tech Survey Report
  8. 8. Attorneys Obtaining Clients Through Social Media 8 @thesharperlawyer Legal Tech Survey Report
  9. 9. The Cultureist 9 • 2,405,518,376 Worldwide Internet Users • 78.6% North Americans on Internet • Over 1 billion Social Network Users @thesharperlawyer
  10. 10. 10 Facebook Friends Cynthia Sharp Bruce Steiner Ron Fatoullah @thesharperlawyer
  11. 11. 11 Facebook Friends Cynthia Sharp Bruce Steiner Ron Fatoullah @thesharperlawyer
  12. 12. Facts About •100% of Fortune 500 Companies Have Executives on Linkedin •238 Million Members •Every Second - 2 New Member Joins 12 @thesharperlawyer
  13. 13. 13 1.6 billion search queries 500 million tweets @thesharperlawyer
  14. 14. Social Media Practical Applications 14 • Marketing • Practice Area • Develop Internal Social Media Policy • Compliance Procedures • Criminal Defense • Civil Litigation • Litigation/Research Tool @thesharperlawyer
  15. 15. Social Media •New Case Law •Interesting Ethical Issues 15 @thesharperlawyer
  16. 16. Digital Immigrant or Digital Native? 16 @thesharperlawyer
  17. 17. Social Media as a Marketing Tool 17 STRATEGY BRAND PROFILE EXECUTION @thesharperlawyer
  18. 18. Information About Legal Services •Protected Form of Commercial Speech •Subject to Rules 7.1 - 7.5 18 @thesharperlawyer
  19. 19. Information About Legal Services • Rule 7.1 - Communication Concerning a Lawyer's ServicesRule 7.2 - AdvertisingRule 7.3 - Direct Contact with Prospective ClientsRule 7.4 - Com munication of Fields of Practice and SpecializationRule 7.5 - Firm Names and Letterheads 19 @thesharperlawyer
  20. 20. 20 @thesharperlawyer
  21. 21. American Bar Association Formal Opinion 10-457 21 @thesharperlawyer
  22. 22. Free Commercial Speech or Regulated Attorney Advertising 22 @thesharperlawyer
  23. 23. 23 @thesharperlawyer
  24. 24. blawgsearch.justia.com 24 @thesharperlawyer
  25. 25. 25 @thesharperlawyer
  26. 26. 26 @thesharperlawyer
  27. 27. •Endorsement Feature •“Specialties” Field •“Answers” Section 27 @thesharperlawyer
  28. 28. 28 @thesharperlawyer
  29. 29. Use Common Sense! 29 @thesharperlawyer
  30. 30. 30 @thesharperlawyer
  31. 31. 31 @thesharperlawyer
  32. 32. 32 @thesharperlawyer
  33. 33. 33 @thesharperlawyer  Jennifer Ellis @JLE_JD  Mar 4    My answer to What are the legal restrictions in compiling a database mined of public social network profiles? http://qr.ae/t3OpR 
  34. 34. www.lextweet.com 34 @thesharperlawyer
  35. 35. Research Tool Write down 3 ways that you use the internet to research 35 @thesharperlawyer
  36. 36. www.jdsupra.com 36 @thesharperlawyer
  37. 37. Citation Forms Developed Rittman, S. (Spring 2008). Don’t Use the “R” Word. Retrieved on January 25, 2011 from www.mo-legal-ethics.org www.mo-legal-ethics.org 37 @thesharperlawyer
  38. 38. legalonramp.com 38 @thesharperlawyer
  39. 39. Litigation Tool 39 @thesharperlawyer
  40. 40. Mining Information •Vetting Jurors •Pretexting (“Friending”) 40 @thesharperlawyer
  41. 41. 41 @thesharperlawyer
  42. 42. Internet Research by Jurors 42 @thesharperlawyer
  43. 43. Discovery •Warn clients not to discuss their case online •Standard Applied: Reasonably calculated to lead to discovery of admissible evidence •Notice to produce 43 @thesharperlawyer
  44. 44. Technical Revolution - Ethical Evolution Ethical Evolution 44 @thesharperlawyer
  45. 45. Confidentiality Notice This electronic transmission and any attached documents or other writings are confidential and are for the sole use of the intended recipient(s) identified above. This message may contain information that is privileged, confidential or otherwise protected from disclosure under applicable law. If the receiver of this information is not the intended recipient, or the employee, or agent responsible for delivering the information to the intended recipient, you are hereby notified that any use, reading, dissemination, distribution, copying or storage of this information is strictly prohibited. If you have received this information in error, please notify the sender by return email and delete the electronic transmission, including all attachments from your system. This electronic transmission and any attached documents or other writings are confidential and are for the sole use of the intended recipient(s) identified above. This message may contain information that is privileged, confidential or otherwise protected from disclosure under applicable law. If the receiver of this information is not the intended recipient, or the employee, or agent responsible for delivering the information to the intended recipient, you are hereby notified that any use, reading, dissemination, distribution, copying or45 @thesharperlawyer
  46. 46. Ethical Evolution •Terminology •Competence •Confidentiality •Communication •Duties to Prospective Clients •Receipt of Erroneously Sent Document •Supervision of NonLawyer Assistants •Advertising 46 @thesharperlawyer
  47. 47. Terminology MRPC 1.0 Terminology (o) Writing or Written Comment 9 to MRPC 1.0 {Screening} 47 @thesharperlawyer
  48. 48. “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” - Comment 6 to MRPC 1.1 (as amended) Competence 48 @thesharperlawyer
  49. 49. Redaction Issues Long gone are the days when the attorney duty of confidentiality imposed by Model Rule 1.6 was satisfied by maintaining a fireproof steel locked filing cabinet behind a secured office door. The technological revolution has taken us beyond the world of desktop computers with a dedicated server to the stratosphere of cloud computing and the genius of smartphones and electronic tablets.The portability of our “second brain” results in additional ethical responsibilities that must not be ignored. Lawyers’ obligations have radically changed in light of the methods by which confidential client and personal information is now carried and stored. 49 @thesharperlawyer
  50. 50. Data Disaster 50 @thesharperlawyer
  51. 51. Duty of Confidentiality MRPC 1.6 51 @thesharperlawyer
  52. 52. Communication “... A lawyer should promptly respond to or acknowledge client communications.” - Comment [4] of MRPC 1.4 (as amended) 52 @thesharperlawyer
  53. 53. Duties to Prospective Clients “...[a] person becomes a prospective client by consulting with a lawyer about a client-lawyer relationship with respect to a matter”. - Comment 2 to MRPC 1.18 (as amended) 53 @thesharperlawyer
  54. 54. Does a Communication Constitute a Consultation? •Did the lawyer encourage or solicit inquiries about a proposed representation? •Did the person encounter any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations? Were those warnings or cautionary statements clear and reasonably understandable? Did the lawyer act or communicate in a manner that was contrary to the warnings or cautionary statements? 54 @thesharperlawyer
  55. 55. Receipt of Erroneously Sent Documents Lawyer receiving electronically stored information that he or she knows or reasonably should know was sent inadvertently must  promptly notify the sender of the mistake (Model Rule 4.4(b))  Duty to notify extends to metadata. (Comment 2) 55 @thesharperlawyer
  56. 56. Recommended Metadata Scrubbers Metadata Assistant: http://www.payneconsulting.com/products/metadataretail/ iScrub: http://esqinc.com/section/products/2/iscrub.html Workshare Protect: http://www.workshare.com/products/wsprotect/ Metadact: http://www.litera.com/Products/Metadact%AE.aspx 56 @thesharperlawyer
  57. 57. Do You Secure PDF Files Before You Transmit? Suggested Office Policy: “When there is no legitimate reason to transmit an editable document, we will always send SECURE PDFs.” “When there is no legitimate reason to transmit an editable document, we will always send SECURE PDFs.” 57 @thesharperlawyer
  58. 58. You Cannot Delegate Ethical Responsibilities Model Rule 5.3 requires attorneys who outsource work to non-attorneys to “make reasonable efforts to ensure that the non-lawyers’ services are provided in a manner that is compatible with the lawyer’s professional obligations”. 58 @thesharperlawyer
  59. 59. Attorney Advertising Rules Lawyers may pay Internet-based lead generators for generating client leads, as long as the lead generator does not “recommend” the lawyer.   (MRPC 7.2, Comment 5) Only a “target communication initiated by the lawyer” directed to a “specific person” that “offers to provide” legal services is a solicitation. Communications to the general public, including Internet banners, are not solicitations. (MRPC 7.3) 59 @thesharperlawyer
  60. 60. “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 2 - “A lawyer's work load must be controlled so that each matter can be handled competently.” Rule 1.3 60 Diligence @thesharperlawyer
  61. 61. www.evernote.com 61 @thesharperlawyer
  62. 62. www.pomodorotechnique.com 62 @thesharperlawyer
  63. 63. Law Firm Social Media Policy 63 @thesharperlawyer
  64. 64. Online or In Line •Keep client confidences •Avoid appearance of establishing client- attorney relationship •Be polite •Don’t fight •Don’t bad mouth law firm, colleagues or judges. 64 @thesharperlawyer
  65. 65. Moving Forward •Did you learn anything new today? •Did you gain any insight into yourself or someone else? •Do you plan to change any of your behaviors as a result of today’s session? @thesharperlawyer
  66. 66. Evaluations 66 @thesharperlawyer
  67. 67. @thesharperlawyer
  68. 68. Connect with Cindy like us follow us follow us share with us The Sharper Lawyer connect with us @thesharperlawyer
  69. 69. The Sharper Lawyer now offers a complimentary half hour coaching session. Email Cindy for more details! cindy@thesharperlawyer.com @thesharperlawyer
  70. 70. Thank You The Sharper Lawyer www.thesharperlawyer.com

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