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Best Practices Regarding Technology

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Best Practices Regarding Technology

Technology is rapidly changing the way lawyers provide services. This is so especially in light of the Covid-19 pandemic, which creates new and different ethical challenges to confidentiality, cyber fraud and securing data, marketing and advertising concerns, and client communications. This webinar will address a myriad of new problems lawyers are facing and some practical suggestions and solutions that arise out of the changing manner and pace of the practice of law. This webinar will also cover several ABA Model Rules of Professional Conduct.


Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022

See more at https://www.financialpoise.com/webinars/

Technology is rapidly changing the way lawyers provide services. This is so especially in light of the Covid-19 pandemic, which creates new and different ethical challenges to confidentiality, cyber fraud and securing data, marketing and advertising concerns, and client communications. This webinar will address a myriad of new problems lawyers are facing and some practical suggestions and solutions that arise out of the changing manner and pace of the practice of law. This webinar will also cover several ABA Model Rules of Professional Conduct.


Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022

See more at https://www.financialpoise.com/webinars/

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Best Practices Regarding Technology

  1. 1. 1
  2. 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
  3. 3. 3 Thank you to our Sponsor, Sunburst Digital.
  4. 4. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 5
  5. 5. Meet the Faculty MODERATOR: Michelle Gershfeld - Law Offices of Michelle Gershfeld PANELISTS: Bernard Burk - Visitor, Penn State Law George Kuney - University of TN College of Law Gerald Meyer - MoloLamken LLP Kathryn Nadro - Sugar Felsenthal Grais & Helsinger LLP 6
  6. 6. About This Webinar Best Practices Regarding Technology Technology is rapidly changing the way lawyers provide services. This is especially so in light of the COVID-19 pandemic, which creates new and different ethical challenges to confidentiality, cyber fraud and securing data, marketing and advertising concerns, and client communications. This webinar will address a number of new problems lawyers are facing and some practical suggestions and solutions that arise out of the changing manner and pace of the practice of law. This webinar will also address several ABA Model Rules of Professional Conduct, and Ethics Opinions construing them. 7
  7. 7. About This Series Legal Ethics – Best Practices Corporate scandals make the headlines periodically, but businesses and the lawyers that work with them face ethical challenges every day, even in situations that are legally compliant. This webinar series examines ethical issues confronted by lawyers in a variety of contexts. The panelists consider and recommend different approaches to ethical decision- making and lawyers responsibilities and concerns, especially in light of the impact of the COVID-19 pandemic. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 8
  8. 8. Episodes in this Series #1: Best Practices Regarding Technology Premiere date: 2/16/22 #2: Hot Off the Presses- Recent Cases & Decisions Premiere date: 3/30/22 #3: How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts Premiere date: 5/4/22 9
  9. 9. Episode #1 Best Practices Regarding Technology (Throughout this PowerPoint, “RPC” is used to cite any ABA Model Rule of Professional Conduct. The Model Rules have been adopted in varying forms in all 50 states and the District of Columbia in the same or a similar numbering format as the Model Rules.) 10
  10. 10. Ethical Practice in a Time of Pandemic In a period of pervasive remote practice, which is likely to continue in some respects and to some degree for some time (even after the pandemic ends), do lawyers’ legal or ethical obligations differ? ABA Ethics Op. No. 498 (2021): • There has never been a requirement that a lawyer maintain or work from a distinct brick- and-mortar office • So the Rules haven’t changed, but your circumstances probably have • Lawyers must be mindful of how remote practice may weaken or remove some of the guardrails on which we’ve historically relied in in-person practice 11
  11. 11. Ethical Practice in a Time of Pandemic ABA Ethics Op. No. 498 (2021): Special risks in remote practice: • Competence: Remote practice requires much greater dependence on technology to communicate; store, retrieve, and transfer information; etc. ✓ Model Rule 1.1 Comment [8]: “To maintain the requisite knowledge and skill [to be competent], a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” ✓ You have to learn enough about the tech you’re using to choose tools that are safe, reliable, and secure. And use them lawfully (e.g., watch out for unconsented recording) • Communication: ✓ Model Rule 1.4(a): Whether interacting face-to-face or through technology, lawyers must “reasonably consult with the client about the means by which the client’s objectives are to be accomplished; . . . keep the client reasonably informed about the status of the matter; [and] promptly comply with reasonable requests for information. . . .” ✓ Lawyers usually interact with clients remotely, so this is nothing new. 12
  12. 12. Ethical Practice in a Time of Pandemic ABA Ethics Op. No. 498 (2021): Special risks in remote practice: • Confidentiality: Model Rule 1.6(a): You must not “reveal information relating to the representation of a client” (absent a specific exception, informed consent, or implied authorization) • Model Rule 1.6(c): You must “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” What’s “reasonable” depends on the circumstances, including the sensitivity of the information and the costs and impediments of more effortful measures. • Things to watch out for in remote practice: ✓ The security of your communications software (e.g., precautions against “Zoom-bombing” or virtual lurkers) ✓ The security of the area around you (e.g. members of your family, roommates, third parties who may be within sight or earshot). Beware “smart speakers” and digital assistants! ✓ The security of the area around those with whom you are communicating (e.g., who is within sight or earshot of the clients, colleagues, or agents with whom you’re communicating) See ABA Formal Ethics Op. No. 477R (2017) for many helpful suggestions 13
  13. 13. Ethical Practice in a Time of Pandemic • Management: Lawyers within a practice organization who have management authority: ✓ Model Rule 5.1(a): Partners and other managers must “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” ✓ Model Rule 5.3(a): Partners and other mangers must “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance” that nonlawyer staff’s and independent contractors’ “conduct is compatible with the professional obligations of the lawyer” ✓ Those “reasonable efforts” include “internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct.” Model Rule 5.1 Comment [2]. That includes not only formulating and adopting policies and procedures, but disseminating them and training personnel in their use and application. ✓ Managers who fail to meet these responsibilities are personally responsible for the ethical violations of those under their management and have committed the ethical violation of failure to manage 14
  14. 14. Ethical Practice in a Time of Pandemic • Supervision: ✓ Model Rule 5.1(b): Lawyers having “direct supervisory authority over another lawyer” must “make reasonable efforts to ensure that the [supervised] lawyer conforms to the Rules of Professional Conduct.” ✓ Model Rule 5.3(b): Lawyers having “direct supervisory authority” over nonlawyer staff or independent contractors must “make reasonable efforts to ensure that the [supervised nonlawyers’] “conduct is compatible with the professional obligations of the lawyer” ✓ Perfection is not required, but reasonable supervisory efforts are ✓ Supervisors who fail to meet these responsibilities (to make reasonable efforts) are personally responsible for the ethical violations of those under their supervision and have committed the ethical violation of failure to supervise 15
  15. 15. Ethical Practice in a Time of Pandemic • Management and Supervision in a law firm were never easy, but they are significantly harder now because work is not centered around a particular brick-and-mortar location where most lawyers can be found most days. Pitfalls to watch for: ✓ Choice and implementation of technology consistent with ethical obligations is essential (see ABA Formal Ethics Op. No. 477R (2017)); letting everyone figure it out for themselves is a recipe for disaster. BYOD policies must be implemented with care ✓ Special policies and procedures governing remote practice may be needed (for example, procedures to process paper mail and deliveries if the office is often empty) ✓ Special training in ethical compliance when using technology in remote practice is needed ✓ Monitoring and followup to check for compliance by managers and supervisors must be part of regular firm procedures 16
  16. 16. Ethical Practice in a Time of Pandemic ✓ Training in regular office policies and procedures must continue ✓ With hallway encounters infrequent or absent, supervisors must make special provision to communicate with those they supervise. Given the stress and isolation that may attend remote work for many, supervisors should monitor wellness as well as diligence and ethical compliance There are resources available to help managers and supervisors (whether in large firms or small ones) address the new challenges of remote practice. See, e.g., ABA Formal Ethics Op. No. 498 (2021); and ABA Formal Ethics Op. No. 477R (2017), both of which contain many useful specific strategies and cite resources with others 17
  17. 17. Inadvertent Disclosure of Confidential Information • Ethical and Legal Implications for Sending Attorneys • Act reasonably to prevent inadvertent disclosure ✓ RPC 1.1 competence; RPC 1.6(c) confidentiality. Comment [18] adds that Rule 1.6 is not violated if disclosure occurs despite an attorney’s reasonable efforts • Common instance: In discovery and in electronic communication with opposing counsel 18
  18. 18. Inadvertent Disclosure of Confidential Information • Ethical and Legal implications for Sending Attorneys • Prevention ✓ Privilege Review (in litigation) ✓ Care in Using Email, such as checking email addressing before sending and marking privileged documents privileged • Planning ✓ Clawback Agreements and Order – Fed. R. Evid. 502 ➢ Do not borrow standard from Fed. R. 502(b) ➢ Seek client informed consent. Why? • Acting reasonably to mitigate the damage when inadvertent disclosure inevitably occurs 19
  19. 19. Inadvertent Disclosure of Confidential Information • Ethical and Legal Obligations of Receiving Attorneys • RPC 4.4(b) or Case Law ✓ “Notice only” approach – This is the Model Rules approach followed by the majority of state RPC 4.4(b): “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.” ✓ “Notice+” approach – A receiving attorney must provide notice to the sender and take other steps to protect the confidential information 20
  20. 20. Inadvertent Disclosure of Confidential Information • Ethical and Legal Obligations of Receiving Attorneys • In civil litigation in federal court, FRCP 26(b)(5)(B), Fed. R. Evid. 502 clawback agreements, and case law should also be considered. ✓ If the document was disclosed in discovery, the receiving attorney will have to protect the confidentiality of the document in the short term, but may decide to seek a court ruling that the privilege was waived, which will turn on the clawback agreement or order (if there is one) or the court’s application of the waiver standard found in Fed. R. Evid. 502(b). FRCP 26(b)(5)(B): “If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.” 21
  21. 21. Storage and Communication of Client Information RPC 1.6(c): “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client” (emphasis added). Comments 18 and 19 to RPC 1.6: In determining which measures are reasonable to protect against inadvertent or unauthorized disclosure of confidential information under the circumstances, lawyers should consider: ▪ The sensitivity of the information ▪ The likelihood of disclosure if additional safeguards are not employed ▪ The cost of employing additional safeguards ▪ The difficulty of implementing the safeguards, and ▪ The extent to which the safeguards adversely affect the lawyer’s ability to represent clients. 22
  22. 22. Storage and Communication of Client Information Application of Rule 1.6(c) raises a number of questions when lawyers are considering technological protections such as encryption, firewalls, passwords, or other measures. •Overview: Act reasonably; no hard-and-fast rules • ABA Formal Ethics Opinion No. 477R: Each practice should adopt a process to: ▪ Assess risk ▪ Determine responsive security measures ▪ Verify effective implementation, and ▪ Update your approach in light of developments. 23
  23. 23. Storage and Communication of Client Information • Assess Risks: Understand the Threats to Data – Especially Electronic Data – In Its Various Locations ✓ Such as: unauthorized access; unauthorized disclosure; viruses; document transfer to portable devices (and subsequent loss). • Act Reasonably in Determining Default Rules for Data Storage Locations and Communication Methods ✓ See generally RPC 1.1, 1.6 ✓ Act Reasonably when using Cloud Computing and Storage 24 • Evaluate When Additional Measures are Needed to Protect Particular Kinds of Client Information
  24. 24. Cloud Computing and Storage • ABA 2020 Cloud Computing Tech Report • Results are based on pre-COVID information • Cloud computing aka “web services” or “hosted services” in practical terms: ✓ A web-based software service or solution ✓ Software or services that can be accessed and used over the internet using a browser (or app) where the software itself is not installed locally on the computer being used by the lawyer accessing the service ✓ Data is processed/stored on remote servers (rather than on local computers and hard drives) 25
  25. 25. Cloud Computing and Storage • Bottom Line: Reasonable care standard • Common themes: ✓ exercise care in selecting vendor; ✓ review terms of service; ✓ ensure that vendor protects confidentiality and access; and ✓ investigate security measures and any security lapses. 26
  26. 26. Cloud Computing and Storage • What do you do if your practice experiences a data breach? • ABA Formal Ethics Op. No. 483 (2018): “Lawyers’ Obligations After an Electronic Data Breach or Cyberattack” 27
  27. 27. About the Faculty 28
  28. 28. About The Faculty Michelle Gershfeld - MGershfeldlaw@gmail.com Michelle Gershfeld is a bankruptcy attorney, debt negotiator and personal financial life coach who advises people who are in debt, or building wealth, by identifying and overcoming obstacles that lie in their path to securing worry-free, financial wellness. Michelle’s private practice, Law Offices of Michelle Gershfeld, provides services to clients in financial distress to create a strategic, customized plan for each unique financial situation. Michelle defends foreclosures and evictions when necessary, and will assist clients to move forward with dignity, despite current hardships. Michelle also works with commercial clients to reorganize outside of a formal bankruptcy filing, which effectively serves businesses at reduced costs. 29
  29. 29. About The Faculty Bernie Burk - bernie.burk@bernieburk.com Professor Bernard Burk is currently visiting at Penn State Law in University Park, PA. Aspen Publishing recently published his new textbook on legal ethics, entitled Ethical Lawyering: A Guide for the Well-Intentioned (with Nancy Rapoport of the University of Nevada at Las Vegas School of Law, and Veronica Finkelstein, Asst. U.S. Attorney for the E.D. Pa. and adjunct at Drexel University School of Law and Rutgers-Camden). In addition to his teaching and publishing Prof. Burk engages in consulting and expert witness work in the areas of legal ethics and professional conduct. 30
  30. 30. About The Faculty George Kuney - gkuney@utk.edu George W. Kuney is a Lindsay Young Distinguished Professor of Law and Director of the Clayton Center for Entrepreneurial Law at The University of Tennessee College of Law in Knoxville, Tennessee. He holds a J.D. from the University of California, Hastings College of the Law, an M.B.A. from The University of San Diego, and a B.A. in Economics from the University of California, Santa Cruz. Before joining the UT faculty in 2000, he was a partner in the Allen Matkins firm’s San Diego office. Previously he practiced with the Howard Rice and Morrison & Foerster firms in his hometown of San Francisco, doing litigation and transactional work largely in the context of business restructuring and insolvency. He teaches business law courses including Business Associations, Contracts, Contract Drafting, Commercial Law, Consumer Bankruptcy, Debtor-Creditor, Mergers and Acquisitions, Representing Enterprises, and Workouts and Reorganizations. Kuney has written a number of books and articles and given presentations about business, contracts, and commercial law and insolvency- related topics. He advises clients nationwide regarding bankruptcy, restructuring, reorganization, and related subjects. He is admitted to the bar in California and Tennessee. 31
  31. 31. About The Faculty Gerald Meyer - gmeyer@mololamken.com Gerald Meyer’s practice focuses on complex business litigation, white collar criminal matters and investigations, and appellate litigation. He has represented businesses, senior corporate officials, and individuals in a broad array of subject matters, including securities litigation, class actions, antitrust law, and constitutional law. He has tried cases to verdict and drafted and argued dispositive, discovery, and evidentiary motions in trial courts across the country. He has argued appeals before the Seventh Circuit, and has briefed appeals in the Supreme Court of the United States and numerous courts of appeals. Before joining MoloLamken, Mr. Meyer was an associate with Skadden, Arps, Slate, Meagher & Flom LLP in Chicago. He has represented companies and individuals in a wide range of tax planning matters, including mergers and acquisitions, restructurings, securities offerings, and issues involving tax-exempt organizations. Mr. Meyer also served as a law clerk to Judge Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit and to Judge G. Steven Agee of the United States Court of Appeals for the Fourth Circuit. 32
  32. 32. About The Faculty Kathryn Nadro - knadro@sfgh.com Kathryn (“Katie”) Nadro leads Sugar Felsenthal Grais & Helsinger’s Data Security and Privacy practice. Katie advises clients on a diverse array of business matters, including data security and privacy compliance, commercial and business disputes, and employment issues. Katie works with individuals and businesses of all sizes to craft successful resolutions tailored to each individual matter. Katie is a Certified Information Privacy Professional (CIPP/US) and counsels clients on a variety of data security and privacy issues, including breach response, policy drafting, program management, data collection, vendor management, and compliance with ever-changing state, federal, and international privacy law. Katie also has broad litigation experience representing companies and individuals in contract, non-compete, discrimination, harassment, fiduciary duty, and trade secret litigation in state and federal court. With a background as both in-house and outside counsel, Katie understands that business objectives, time, and resources play an important role in reaching a favorable outcome for each client. 33
  33. 33. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 34
  34. 34. About Financial Poise 35 Financial Poise™ has one mission: to provide reliable plain English business, financial, and legal education to individual investors, entrepreneurs, business owners and executives. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/

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