How did this lawyer fare?
“I have to confess to this Court, I am not
computer literate. I have not found presence in
the cybernetic revolution. I need a secretary to
help me turn on the computer. This was out of my
James v. National Financial (Del. Chancery)
•“Professed technological incompetence is not an
excuse for discovery misconduct.”
Discuss: Adventures in e-discovery
Joe Attorney is hired to defend Acme against a sexual bias claim by a discharged
employee. Opposing Counsel asks Joe to stipulate to terms for e-discovery. They
include allowing a search of Acme’s computer network by OC’s e-discovery vendor,
using stipulated search terms. OC offers a clawback agreement that would permit
Acme to claw back inadvertently produced documents that are privileged or work
Joe would be the first to admit he’s no e-discovery expert, but OC’s terms seem
reasonable and his client has assured him its network has no compromising
evidence, so he agrees. When OC’s vendor visits Acme and conducts its
unsupervised search of the network files, it finds proof that Acme has deleted
potentially relevant files. It also retrieves several potentially privileged documents
and provides them to OC.
ABA 20/20 Commission
“Technology has irrevocably changed and continues to alter
the practice of law in fundamental ways. Legal work can be,
and is, more easily disaggregated; business development can
be done with new tools; and new processes facilitate legal
work and communication with clients. Lawyers must
understand technology in order to provide clients with the
competent and cost-effective services that they expect and
ABA Model Rule 1.1,
• “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.”
27 states have adopted Comment 8
• New Hampshire
• New Mexico
• New York
• North Carolina
• North Dakota
• West Virginia
Florida Supreme Court: Sept. 29, 2016
The comment to rule 4-1.1 (Competence) is amended to add language
providing that competent representation may involve a lawyer’s
association with, or retention of, a non-lawyer advisor with established
technological competence in the relevant field. Competent
representation may also entail safeguarding confidential information
related to the representation, including electronic transmission and
communications. Additionally, we add language to the comment
providing that, in order to maintain the requisite knowledge and skill, a
lawyer should engage in continuing study and education, including an
understanding of the risks and benefits associated with the use of
Slight variation from ABA Model Rule
“To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, engage in continuing
study and education, including an understanding of the benefits and
risks associated with the use of technology, and comply with all
continuing legal education requirements to which the lawyer is subject.”
• The italicized language is the same as the ABA rule except for the
addition of the words “an understanding of.”
• Query why the court added those three words and what their
significance may be.
CA Formal Opinion No. 2015-193
“Not every litigated case involves e-
discovery. Yet, in today’s technological
world, almost every litigation matter
potentially does. The chances are
significant that a party or a witness has
used email or other electronic
communications, stores information
digitally, and/or has other forms of ESI
related to the dispute.”
Either be competent in e-discovery or
associate with others who are
CA Formal Opinion No. 2015-193
• ‘Competent’ handling of e-discovery has many
dimensions, depending upon the complexity of e-
discovery in a particular case.
• The ethical duty of competence requires an attorney to
assess at the outset of each case what electronic
discovery issues might arise during the litigation.
• If e-discovery will probably be sought, the duty
requires an attorney to assess his or her own e-
discovery skills and resources as part of the attorney’s
duty to provide the client with competent
Attorney should be able to:
1. Initially assess e-discovery needs and issues, if any.
2. Implement/cause to implement appropriate ESI preservation
3. Analyze and understand client’s ESI systems and storage.
4. Advise the client on available options for collection and
preservation of ESI.
5. Identify custodians of potentially relevant ESI.
6. Engage in competent and meaningful meet and confer with
opposing counsel concerning an e-discovery plan.
7. Perform data searches.
8. Collect responsive ESI in a manner that preserves its integrity.
9. Produce responsive non-privileged ESI in a recognized and
Duty to supervise
• Can meet the duty through association with outside
attorney, outside vendor, subordinate attorney or even
• Attorney must maintain overall responsibility for and
remain engaged in the work of the expert.
• Attorney must educate everyone involved about:
• The legal issues in the case.
• The factual matters impacting discovery, including
witnesses and key evidentiary issues.
• The obligations around discovery imposed by the law
or the court.
• Any risks associated with the e-discovery tasks at
Duty of confidentiality
“In civil discovery, the attorney-client
privilege will protect confidential
communications between the attorney
and client in cases of inadvertent
disclosure only if the attorney and
client act reasonably to protect that
“A lack of reasonable care to protect
against disclosing privileged and
protected information when producing
ESI can be deemed a waiver of the
Back to the hypothetical
• Competence evaluation. Attorney should have made evaluation early in case, prior to case management
conference, to assess e-discovery needs and attorney’s capabilities to deal with them.
• Should have sought help. Because he was not competent in e-discovery, he should have sought expert
consultation about the e-discovery issues before agreeing to any stipulation or to e-discovery search terms.
• Should have guided client. Even after attorney stipulated to search of client’s network, he took no action to
instruct or supervise client regarding the direct network search, nor did he try to pre-test the agreed search
terms or review the data before the network search, relying on his assumption that client’s IT department
would know what to do, and on the parties’ clawback agreement.
• Could have been prevented. Had e-discovery expert been consulted at outset, the expert could have taken
steps to protect Client’s interest, including helping to structure the search differently, or drafting search
terms less likely to turn over privileged or proprietary material. An expert also could have assisted Attorney
in his duty to counsel Client of the risks in allowing a third party unsupervised access to Client’s system and
to mitigate those risks.
• Failed to supervise. By allowing OC’s vendor unfettered access to his client’s network, and by not giving his
client instructions that could protect the client, the attorney violated his duty to supervise. The exposure of
possible spoliation and of confidential documents could possibly have been prevented. In addition, the
lawyer never warned his client about the legal effects of deleting data.
• Failed to exercise reasonable care. Because the attorney failed to consult with an e-discovery expert, the
client’s privileged documents were exposed. Although the clawback agreement protected against
“inadvertent” disclosures, it could be argued that, because of the attorney’s negligence, the disclosures
were not inadvertent. If nothing else, it is likely that the client would have to litigate the clawback issue.
20 ethics panel
1. Lawyers may use the
2. Must take reasonable
steps to minimize risk to
and client files.
The ethical issues at stake
• Lawyers have duty to safeguard confidential
• Lawyers have duty to protect client property,
including client files, from loss.
• Lawyers have a duty to be competent in
North Carolina 2011
“A law firm may use SaaS if reasonable care is taken to
minimize the risks of inadvertent disclosure of
confidential information and to protect the security of
client information and client files.”
“A lawyer must fulfill the duties to protect confidential
client information and to safeguard client files by
applying the same diligence and competency to
manage the risks of SaaS that the lawyer is required to
apply when representing clients.”
“The degree of protection to be afforded client information
varies with the client, matter and information involved. But
it places on the lawyer the obligation to perform due
diligence to assess the degree of protection that will be
needed and to act accordingly.”
“Whatever form of SaaS is used, the lawyer must ensure
that there is unfettered access to the data when it is
needed. Likewise the lawyer must be able to determine the
nature and degree of protection that will be afforded the
data while residing elsewhere.”
Iowa State Bar Ethics Opinion 11-01
“A competent lawyer using cloud computing must understand
and guard against the risks inherent in it.”
“There is no hard and fast rule as to what a lawyer must do with
respect to each client when using cloud computing. The facts
and circumstances of each case, including the type and
sensitivity of client information, will dictate what reasonable
protective measures a lawyer must take when using cloud
“Competent lawyers must have a basic understanding of the
technologies they use. Furthermore, as technology, the
regulatory framework, and privacy laws keep changing, lawyers
should keep abreast of these changes.”
New Hampshire 2012-13/4
Massachusetts Bar Ethics Opinion 12-03
“Lawyer remains bound to follow an express
instruction from his client that the client's
confidential information not be stored or
transmitted by means of the Internet.”
“He should refrain from storing or transmitting
particularly sensitive client information by
means of the Internet without first seeking and
obtaining the client's express consent.”
Jan. 25, 2013
Lawyers may use cloud computing if
they take reasonable precautions to
ensure that confidentiality of client
information is maintained, that the
service provider maintains adequate
security, and that the lawyer has
adequate access to the information
stored remotely. The lawyer should
research the provider to be used.
Florida Opinion 12-3
• “The main concern regarding cloud computing relates to confidentiality. Lawyers have
an obligation to maintain as confidential all information that relates to a client's
representation, regardless of the source. Rule 4-1.6, Rules Regulating The Florida Bar. …
A lawyer has the obligation to ensure that confidentiality of information is maintained
by nonlawyers under the lawyer's supervision, including nonlawyers that are third
parties used by the lawyer in the provision of legal services.”
• “Additionally, this Committee has previously opined that lawyers have an obligation to
remain current not only in developments in the law, but also developments in
technology that affect the practice of law. Florida Ethics Opinion 10-2 . Lawyers who
use cloud computing therefore have an ethical obligation to understand the technology
they are using and how it potentially impacts confidentiality of information relating to
client matters, so that the lawyers may take appropriate steps to comply with their
Opinion 12-3: Due diligence
• Ensuring that the online data storage provider has an enforceable
obligation to preserve confidentiality and security, and that the provider
will notify the lawyer if served with process requiring the production of
• Investigating the online data storage provider's security measures, policies,
recoverability methods, and other procedures to determine if they are
adequate under the circumstances.
• Employing available technology to guard against reasonably foreseeable
attempts to infiltrate the data that is stored.
Opinion 12-3: Access to data
• Lawyers must be able to access the lawyer's own information without
• Others should not be able to access the information.
• But lawyers must be able to provide limited access to third parties to
• Yet must be able to restrict their access to only that information.
Opinion 12-3: Other considerations
• Reputation of the service provider.
• Location of service provider.
• User agreement and choice of law or forum for disputes.
• Limits on service provider's liability.
• Retention of information in event of termination.
• Access to data on termination of the relationship.
• Whether agreement creates "any proprietary or user rights" over the data.
• Password protection and encryption.
• Whether information also stored elsewhere by the lawyer in the event the lawyer
cannot access the information via "the cloud."
1. Company due diligence
Is this a solid company
with a good operating
Do others recommend the
What is in the TOS and
2. Unrestricted access to data
• Can I get my data
whenever I want?
• Is the data stored
elsewhere in the event
I’m denied access?
3. Termination of relationship
• If I terminate the service, can I retrieve my data?
• If the service is terminated due to my nonpayment, what happens
to my data?
• If the company shuts down, can I get my data?
• Will the data be available in a non-proprietary format?
“At LexisNexis we believe strongly that the data you place in LexisNexis
Firm Manager belongs to you! To provide you with the comfort that you
retain control of your critical client-privileged information and work
• “Your administrator can export your data at any time.
• “If you cancel your subscription, we maintain your data online for 6
months. … At any time you can decide to purge your data, removing it
from LexisNexis systems.
• “If you purge your data, your client privileged work product is removed
from our systems … [and] from our backup tapes as well.”
Protection of confidentiality
Lawyer must ensure “that the online data
storage provider has an enforceable obligation
to preserve confidentiality and security, and
that the provider will notify the lawyer if
served with process requiring the production
of client information.”
-NYSBA Ethics Opinion 842
9. Physical security of data centers
24x7 on-site security.
Video monitoring of
At least two power
HVAC systems with
N+1 redundancy to
keep climate at the
and humidity levels.
zoned detection and
of all systems.
Data center seals of approval
SOC 1/SSAE 16/ISAE 3402 (formerly SAS 70 Type II).
•Auditing standards verifying that controls are in place to protect financial information.
•Can apply to:
•Data centers and colocation facilities.
•Payroll processing companies.
•Loan servicing companies.
•Medical claims processors.
•Reporting option specifically designed for data centers, SaaS vendors, and cloud-based businesses.
•System processing integrity.
•Confidentiality of information.
•Privacy of personal information.
10. Extra security: client-side encryption
• Client-side encryption for Mac, Windows,
iOS and Android.
• Works with Dropbox, Box, Google Drive
• Can share with others, but they must also
• Client-side encryption for Dropbox and
• Aggregates all your accounts into one
Discuss: ‘retards’ and ‘losers’
Attorney Mitchell to Attorney Mooney:
"I do not think I deserve the jerk comment. I was actually on the internet trying to find out
what type of retardism you have by checking your symptoms, e.g. closely spaced eyes, dull
blank stare, bulbous head, lying and inability to tell fiction from reality, so I could donate money
for research for a cure. However, apparently those symptoms are indicative of numerous types
of retardism and so my search was unsuccessful. Have a great day Corky. I mean; Mr. Mooney.“
Attorney Mooney to Attorney Mitchell:
"Thanks Sparky … more evidence of the jerk you are … the fact that I have a son with a birth
defect really shows what type of a weak-minded coward you truly are. … I am sure your
parents, if you even know who they are, are very proud of the development of their sperm cells
… if you need to find the indications of "retardism" you seek, I suggest that you look into a
mirror, then look at your wife — she has to be a retard to marry such a loser like you … Then
check your children (if they are even yours. … Better check the garbage man that comes by your
trailer to make sure they don't look like him).
Bar v. Mooney
Mitchell: Suspended for 10 days and ordered to
attend an anger management class.
Mooney: Public reprimand and ordered to take a
class on professionalism.
Rule 3-4.3, Commission of any act that is unlawful
or contrary to honesty and justice.
Rule 4-8.4(d), Conduct in connection with the
practice of law that is prejudicial to the
administration of justice.
Florida Ethics Opinion 00-4, July 15, 2000
“While the Professional Ethics Committee has yet to issue an opinion on the
confidentiality implications of using e-mail to communicate with clients, almost all
of the jurisdictions that have considered the issue have decided that an attorney
does not violate the duty of confidentiality by sending unencrypted e-mail.
“However, these opinions also generally conclude that an attorney should consult
with the client and follow the client’s instructions before transmitting highly
sensitive information by email. …
“Thus, sending the e-mail unencrypted would not be an ethical violation under
ABA Opinion 99-413 (1999)
In general, a lawyer may transmit information relating to the representation of a
client by unencrypted e-mail sent over the Internet without violating Model Rule
1.6(a) because the mode of transmission affords a reasonable expectation of
privacy from a technological and legal standpoint.
Lawyers are cautioned to consult with their clients and follow their clients’
instructions as to the mode of transmitting highly sensitive information relating to
the clients’ representation. Particularly strong protective measures are warranted
to guard against the disclosure of highly sensitive matters.
ABA Opinion 11-459 (2011)
In certain circumstances, email does not carry the same reasonable expectation of privacy::
• When the client uses an employer’s computer or smartphone or an employer’s e-mail account,
the employer may obtain access to the e-mails. Employers often have policies reserving a right of
access to employees’ e-mail correspondence via the employer’s e-mail account or devices.
Pursuant to internal policy, the employer may be able to obtain an employee’s communications
even if the employee uses a separate, personal e-mail account.
• Third parties may be able to obtain access to an employee’s electronic communications by issuing
a subpoena to the employer.
• Third parties may have access to attorney-client e-mails when the client receives or sends e-mails
via a public computer, such as a library or hotel computer, or via a borrowed computer.
• Third parties may be able to access confidential communications when the client uses a computer
or other device available to others, such as when a client in a matrimonial dispute uses a home
computer to which other family members have access.
ABA Opinion 11-459 (2011)
“Given these risks, a lawyer should ordinarily advise the employee-client about the
importance of communicating with the lawyer in a manner that protects the
confidentiality of e-mail communications. … In particular, as soon as practical after
a client-lawyer relationship is established, a lawyer typically should instruct the
employee-client to avoid using a workplace device or system for sensitive or
substantive communications, and perhaps for any attorney-client communications,
because even seemingly ministerial communications involving matters such as
scheduling can have substantive ramifications.”
ABA Opinion 11-459 (2011)
“A lawyer sending or receiving substantive communications with a client via e-mail
or other electronic means ordinarily must warn the client about the risk of sending
or receiving electronic communications using a computer or other device, or e-mail
account, to which a third party may gain access. The risk may vary. Whenever a
lawyer communicates with a client by e-mail, the lawyer must first consider
whether, given the client’s situation, there is a significant risk that third parties will
have access to the communications. If so, the lawyer must take reasonable care to
protect the confidentiality of the communications by giving appropriately tailored
advice to the client.”
Texting is a written communication
“The Florida Bar Board of Governors has determined that texts sent unsolicited to
potential clients are a form of written communication that must comply with the
requirements of Rule 4-7.18(b), and that lawyers who send text solicitations should
ensure that recipients are not charged for text solicitations, that text solicitations
comply with all state and federal law, including FCC regulations, and that recipients
are permitted to "opt out" of receiving text solicitations.”
-The Florida Bar Best Practices for Effective Electronic Communication
Discuss: Facebook boastings
• “Another great victory in court today! My client
is delighted. Who wants to be next?”
• “Case finally over. Unanimous verdict!
• “Won a million dollar verdict. Tell your friends
and check out my website.”
• “Won another personal injury case. Call me for
a free consultation.”
• “Just published an article on wage and hour
breaks. Let me know if you would like a copy.”
CA Rule 1-400, governing advertising and
1. There would have to be a “communication,”
which the ethics panel suggested should
apply in the broadest sense of the word.
2. The communication would have to concern
the lawyer’s “availability for professional
CA Formal Opinion 2012-186
“Another great victory in court today! My client is delighted. Who wants to be next?”
• “The addition of, ‘[w]ho wants to be next?’ meets the definition of a ‘communication’
because it suggests availability for professional employment.”
“Case finally over. Unanimous verdict! Celebrating tonight.”
• Not a communication. “Attorney status postings that simply announce recent victories
without an accompanying offer about the availability for professional employment
generally will not qualify as a communication.”
“Won a million dollar verdict. Tell your friends and check out my website.”
• A communication covered by the rule.
“Won another personal injury case. Call me for a free consultation.”
• A communication covered by the rule because of second sentence.
“Just published an article on wage and hour breaks. Let me know if you would like a copy.”
• Not covered. “Attorney is merely relaying information regarding an article that she has
published, and is offering to provide copies.”
Discuss: Friend a witness
During her deposition, a non-party witness says that she
regularly uses Facebook to post personal information and
Suspecting that the content of the witness's Facebook page
might impeach her testimony at trial, the attorney asks his
paralegal to “friend” the witness on Facebook. The paralegal
would state her real name, but would not reveal that she is
affiliated with the attorney or the true purpose of her friend
The paralegal does as the attorney asked and the witness
accepts the friend request.
• ABA Model Rule 4.1
• ABA Model Rule 8.4
• Philadelphia Bar Opinion 2009-02: Attorney may
not use an intermediary to access a witness’
social media profiles for impeachment
purposes. The Committee found that this type
of pretextual friending violates Rule 8.4(c),
which prohibits the use of deception, and Rule
4.1 because such conduct amounts to a false
statement of material fact to the witness.
PA Bar Formal Opinion 2014-300
May advise clients about the content of their social networking websites, including the
removal or addition of information.
May connect with clients and former clients.
May not contact a represented person through social networking websites.
May contact unrepresented person, but may not use pretext to view private information.
May use information on social networking websites in a dispute.
May accept client reviews but must monitor those reviews for accuracy.
May comment or respond to reviews or endorsements, and may solicit such
May endorse other attorneys on social networking websites.
May review a juror’s Internet presence.
May connect with judges provided the purpose is not to influence the judge in official
Discuss: Revealing undies
During a murder trial, the defendant’s family
brought him a bag of fresh clothes to wear in
court. As correction officers inspected the
clothes, the defendant’s public defender took a
cell-phone photo of his leopard print underwear
and posted it to her private Facebook account
with the caption, “proper attire for trial.”
Someone who saw the post notified the judge.
Discuss: Weasel face
At the end of a trial, while the jury was deliberating, an
assistant state attorney thought it would be funny to post
a poem about the case on his Facebook page. In the
poem, the ASA referred to opposing counsel as “weasel
face” and the defendant as a “gang banger.” In addition,
the ASA said that the judge and the jury were confused
and not a single ounce of evidence, professionalism or
integrity existed during the trial.
Somehow, the poem was leaked and published in a local
newspaper. When confronted about it, the ASA argued
that he had posted the poem on his personal and private
Facebook account only for friends and family to see.
The Grievance Committee compelled the ASA to
attend an Ethics School and Professionalism
Workshop and to issue an apology letter to the
judge and opposing counsel.
FL Bar Advertising Guidelines: Social Media
• Pages of individual lawyers on social networking sites that are used solely for social purposes, to maintain
social contact with family and close friends, are not subject to the lawyer advertising rules.
• Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject
to the lawyer advertising rules. These pages must therefore comply with all of the general regulations set
forth in Rules 4-7.11 through 4-7.18 and 4-7.21.
• Unsolicited invitations sent directly from a social media site via instant messaging to a third party to view or
link to the lawyer’s page for the purpose of obtaining, or attempting to obtain, legal business must meet
the requirements for written solicitations under Rule 4-7.18(b), unless the recipient is the lawyer’s current
client, former client, relative, has a prior professional relationship with the lawyer, or is another lawyer.
• Any invitations to view the page sent via e-mail must comply with the direct e-mail rules if they are sent to
persons who are not current clients, former clients, relatives, other lawyers, persons who have requested
information from the lawyer, or persons with whom the lawyer has a prior professional relationship.
• Instant messages and direct e-mail must comply with the general advertising regulations set forth in Rules
4-7.11 through 4-7.18 and 4-7.21 as well as additional requirements set forth in Rule 4-7.18(b).
• A page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on
networking sites are not required to be filed for review. In contrast with a lawyer’s page on a networking
site, a banner advertisement posted by a lawyer on a social networking site is subject not only to the
requirements of Rules 4-7.11 through 4-7.18 and 4-7.21, but also must be filed for review unless the
content of the advertisement is limited to the safe harbor information listed in Rule 4-7.16.
Stupid Facebook tricks
A young lawyer appeared in front of Texas Judge
Susan Criss and requested a trial continuance because
of a death in the family. Judge Criss granted the delay
and then checked the lawyer's Facebook page.
“There was a funeral, but there wasn't a lot of grief
expressed online. All week long, as the week is going
by, I can see that this lawyer is posting about partying.
One night drinking wine, another night drinking
mojitos, another day motorbiking.”
The lawyer came back into court and asked for a
second continuance. Judge Criss denied the request
for another delay in the trial and turned over her on-
line research to the senior partner in the lawyer's
FL Judicial Ethics Opinion
A judge may not add lawyers who may appear before
the judge as "friends" on a social networking site, or
permit such lawyers to add the judge as their
“[L]isting lawyers who may appear before the judge
as ‘friends’ on a judge's social networking page
reasonably conveys to others the impression that
these lawyer ‘friends’ are in a special position to
influence the judge. … The issue … is not whether the
lawyer actually is in a position to influence the judge,
but instead whether the proposed conduct, the
identification of the lawyer as a ‘friend’ on the social
networking site, conveys the impression that the
lawyer is in a position to influence the judge.
Florida Opinion 14-1, June 25, 2015
A personal injury lawyer may advise a client pre-litigation to change privacy settings
on the client’s social media pages so that they are not publicly accessible. Provided
that there is no violation of the rules or substantive law pertaining to the
preservation and/or spoliation of evidence, the lawyer also may advise that a client
remove information relevant to the foreseeable proceeding from social media
pages as long as the social media information or data is preserved.
FL Mediator Ethics Opinion 2010-001
May a certified mediator designate
mediation clients (parties) or
attorneys who participate in
mediations with the mediator as
“friends” on a social networking site,
and permit clients or attorneys to
add the mediator as their “friend”?
A certified mediator may designate
mediation clients (parties) or
attorneys who participate in
mediations with the mediator as
“friends” on a social networking site,
and permit clients or attorneys to
add the mediator as their “friend”. A
mediator should keep in mind that
doing so may limit the clients with
whom the mediator may work in the
What about Twitter?
Lawyers who post information to Twitter … are subject to the
lawyer advertising regulations set forth in Rules 4-7.11 through 4-
7.18 and 4-7.21. A lawyer may post information via Twitter and
may restrict access to the posts to the lawyer’s followers, who are
persons who have specifically signed up to receive posts from that
lawyer. If access to a lawyer’s Twitter postings is restricted to the
followers of the particular lawyer, the information posted there is
information at the request of a prospective client and is subject to
the lawyer advertising rules, but is exempt from the filing
requirement under Rule 4-7.20(e). Any communications that a
lawyer makes on an unsolicited basis to prospective clients to
obtain “followers” is subject to the lawyer advertising rules, as with
any other social media as noted above. Because of Twitter’s 140
character limitation, lawyers may use commonly recognized
abbreviations for the required geographic disclosure of a bona fide
office location by city, town or county as required by Rule 4-7.12(a).
-Florida Bar Standing Committee on Advertising Guidelines for
Video sharing sites
• Videos of individual lawyers used solely for purposes
unrelated to the practice of law are not subject to the
lawyer advertising rules.
• Videos used to promote the lawyer or law firm’s practice
are subject to the lawyer advertising rules.
• Invitations to view or link to the lawyer’s video sent on
an unsolicited basis for the purpose of obtaining, or
attempting to obtain, legal business must comply with
requirements for direct written solicitation under Rule 4-
7.18(b), unless the recipient is the lawyer’s current
client, former client, relative, has a prior professional
relationship with the lawyer, or is another lawyer.
• Videos posted solely on video sharing sites are
information at the request of the prospective client and
therefore not required to be filed with The Florida Bar
An email arrives from LinkedIn notifying you that a
connection of yours has endorsed you as being skilled in
litigation. The person who endorsed you is someone you
know only through the Internet. You have never met or
The person has no first-hand knowledge of your skill in
litigation. However, you have published several articles
about litigation-related topics in bar journals and online.
Let’s imagine that someone offers to endorse me
who has no basis for assessing my skills in a particular
area. … Or imagine that someone offers to endorse
my skills or knowledge in an area I know very little
about. For example, one of my contacts offered to
endorse me in the area of “International Law,” even
though I know very little about the subject. If I accept
endorsements of this sort (i.e., endorsements from
people who have not worked with me or
endorsements of skills/knowledge I don’t have), it
seems to me that my acceptance of the endorsement
and making it visible to my contacts would be
misleading and violate Rule 7.1.
Another possible problem is if I offer to endorse
someone only if that person endorses me or if I
accept an endorsement on the condition that I offer a
reciprocal endorsement. It seems to me that these
arrangements could be viewed as offers to give
“something of value” (i.e., an endorsement) in
exchange for a “recommendation,” potentially
violating Rule 7.2(b).
-Andrew Perlman, Legal Ethics Forum
What's more, any extension of testimonial
advertising restrictions to third-party reviews or
endorsements is 100% preempted by 47 USC 230.
Under CDA 230, attorneys cannot be liable for
comments posted by third parties (assuming those
third parties haven't been employed by the attorney,
And that's to say nothing of the fact that no
meaningful restriction on third party reviews for
lawyers could survive constitutional scrutiny anyway.
I realize not every attorney wants to be a test case
for the stupidity of their state's attorney advertising
regulations, but no one should lose sleep over
-Joshua King, General Counsel, Avvo
Florida Bar Advertising Guidelines
“Although lawyers are responsible for all content that the lawyers post on
their own pages, a lawyer is not responsible for information posted on the
lawyer’s page by a third party, unless the lawyer prompts the third party to
post the information or the lawyer uses the third party to circumvent the
lawyer advertising rules. If a third party posts information on the lawyer’s
page about the lawyer’s services that does not comply with the lawyer
advertising rules, the lawyer must remove the information from the
-The Florida Bar Standing Committee on Advertising Guidelines for
Networking Sites, May 9, 2016
But: Rule 4-7.13 prohibits testimonials
(A) regarding matters on which the person making the testimonial is
unqualified to evaluate;
(B) that is not the actual experience of the person making the testimonial;
(C) that is not representative of what clients of that lawyer or law firm
(D) that has been written or drafted by the lawyer;
(E) in exchange for which the person making the testimonial has been given
something of value; or
(F) that does not include the disclaimer that the prospective client may not
obtain the same or similar results.
So do LinkedIn endorsements violate ethics?
It is significant that LinkedIn provides the ability to "hide" endorsements
others have given you. (You can hide any single endorsement or choose
to hide all endorsements by default.)
If someone gives you an endorsement that you believe is false or misleading,
and if you do not remove it, then you are effectively accepting it and
allowing it to be communicated to anyone who views your LinkedIn profile.
To my mind, that brings it within the purview of Model Rule 7.1.
Discuss: Blogging public defender
A lawyer created a blog to chronicle her work as a public defender. She wrote
about actual cases, but never identified clients by name.
In one post, the lawyer described her conversation with a client just after the
client's sentencing. After leaving the courtroom, and after having told the
judge that he did not use drugs, the client now wanted to go back before the
judge and tell him that he was on Methadone.
The blog post described the lawyer’s response: “Huh? You want to go back
and tell the judge that you lied to him, you lied to the pre-sentence
investigator, you lied to me? And you expect what to happen if you do this?
I'll tell you what would happen; the sentence just pronounced would be
immediately vacated and you'd go to prison, that's what would happen.”
How it turned
Lawyer was suspended for 60 days.
In re: Kristine Ann Peshek, Illinois Supreme
Court, May 18, 2010.
Lawyer received a public reprimand for posting
comments about a judge on a blog including:
“Evil Unfair Witch; seemingly mentally ill; ugly
condescending attitude, she is clearly unfit for
her position and knows not what it means to be
a neutral arbiter, and there is nothing honorable
about that malcontent.”
The referee found the statements not only
undermined public confidence in the
administration of justice but also were prejudicial
to the proper administration of justice (Rule 4.8-
• The Florida Bar v. Conway, 996 So.2d 213 (Fla.
CA Formal Opinion No. 2016-196
• Blogging may be a communication if the blog expresses the attorney’s availability for
professional employment directly through words of invitation or offer to provide legal
services, or implicitly through its description of the type and character of legal services
offered by the attorney, detailed descriptions of case results, or both.
• A blog that is an integrated part of an attorney’s or law firm’s professional website will be
a communication to the same extent as the website of which it is a part.
• A stand-alone blog, even if discussing legal topics within or outside the authoring
attorney’s area of practice, is not a communication unless the blog directly or implicitly
expresses the attorney’s availability for professional employment.
• A stand-alone blog on a non-legal topic is not a communication subject to the rules and
statutes regulating attorney advertising, and will not become subject thereto simply
because the blog contains a link to the attorney or law firm’s website.
1st Amendment right to blog?
In Virginia, criminal defense lawyer Horace Hunter had a blog where he
wrote about cases he handled and other criminal law issues. The bar issued
Hunter a public admonition over his blogging and ordered him to add a
disclaimer stating that his blog is advertising.
He appealed the bar’s determination, asserting that it violated his First
The bar argued that, by blogging about his cases, Hunter violated the rule
against revealing client information. Hunter countered that the bar's
interpretation of the rule was unconstitutional because the matters
discussed in his blogs had previously been revealed in public judicial
“The VSB argues that it can prohibit an attorney from repeating truthful
information made in a public judicial proceeding even though others can
disseminate this information because an attorney repeating it could inhibit
clients from freely communicating with their attorneys or because it would
undermine public confidence in the legal profession.
Such concerns, however, are unsupported by the evidence. To the extent
that the information is aired in a public forum, privacy considerations must
yield to First Amendment protections. In that respect, a lawyer is no more
prohibited than any other citizen from reporting what transpired in the
-Hunter v. Virginia State Bar, February 28, 2013
But be nice on
your blog to
“The right to free speech under the federal and
Florida Constitutions does not preclude the
disciplining of a lawyer for speech directed at the
-The Florida Bar v. Wasserman, 675 So.2nd 103
Applicability of rules
Florida’s lawyer advertising rules apply to all forms of communication
seeking legal employment in any print or electronic forum, including but not
limited to newspapers, magazines, brochures, flyers, television, radio, direct
mail, electronic mail, and Internet, including banners, pop-ups, websites,
social networking, and video sharing media.
No filing requirement for websites, social networking sites and video-sharing
Direct e-mail must be filed for review.
FL Advisory Opinion A-
00-1 (Revised) 1/29/16
A lawyer may solicit prospective clients
through Internet chat rooms, defined as real
time communications between computer
users, only if the lawyer complies with the
rules on direct written communications and
files any unsolicited communications with
The Florida Bar for review.
Lawyers may respond to specific questions
posed to them in chat rooms. Lawyers
should be cautious not to inadvertently
form attorney-client relationships with
Not a solicitation
“The Board of Governors is unpersuaded by the reasoning of opinions from
other states that conclude that participation in chat rooms, merely because
it occurs in real time, is a form of prohibited solicitation. The underlying
purpose of the prohibition against direct solicitation is the inherently
coercive nature of direct conversations. … [W]ritten communications via a
chat room, albeit in real time, do not involve the same pressure or
opportunity for overreaching.”
Follow rules for written communications
“The Board therefore concludes that a direct solicitation via a chat room is
permissible, but only if the communication complies with all the requirements for
direct written communications set forth in Rule 4-7.18(b). Requirements of Rule 4-
7.18(b) include, e.g., no contact within 30 days of an accident, beginning the
communication with the word “advertisement,” providing information about the
lawyer’s qualifications and experience, use of the first sentence “if you have
already retained a lawyer for this matter, please disregard. . . ,” and the like.
“The Board’s decision is limited to participation in a chat room that does not
involve live face-to-face interaction, e.g., via video telephone or video
teleconference (such as Skype). Live face-to-face interaction by video would
implicate the possibility of undue influence and pressure that is meant to be
prohibited by Rule 4-7.18(a).”
File for review
“Direct solicitations in chat rooms must be filed with The Florida Bar for
review in compliance with Rule 4-7.19. Filing is required only when the
solicitation is unsolicited by the consumer.
“This opinion should not be interpreted as suggesting that a lawyer must file
responses to specific requests for information about the lawyer or the
lawyer’s services in a chat room that were initiated by a prospective client
and not at the prompting of the lawyer.
“A lawyer may also respond to the posting of a general question such as
‘Does anyone know a lawyer who handles X type of matter?’ without filing
the response for review by The Florida Bar.”
“The Board cautions lawyers that they may inadvertently form a lawyer-
client relationship with a person by responding to specific legal inquiries,
which will require that a lawyer comply with all Rules of Professional
Conduct, including rules regarding conflicts of interest, confidentiality,
competence, diligence, and avoiding engaging in the unlicensed practice of
ABA Rules: ‘Prospective client’
In 2012, the ABA amended ABA Model Rule 1.18, Duties to a Prospective
Client. Most notably, it changed the definition of "prospective client" from
one who "discusses" with a lawyer the possibility of forming a client-lawyer
relationship to one who "consults" with a lawyer about the possibility.
That was a tightening of the rule made specifically in response to the
increasing variety of electronic communications among lawyers and the
ABA Comment to Rule 1.18
A person becomes a prospective client by consulting with a lawyer about the
possibility of forming a client-lawyer relationship with respect to a matter. Whether
communications, including written, oral, or electronic communications, constitute a
consultation depends on the circumstances.
For example, a consultation is likely to have occurred if a lawyer, either in person or
through the lawyer’s advertising in any medium, specifically requests or invites the
submission of information about a potential representation without clear and
reasonably understandable warnings and cautionary statements that limit the
lawyer’s obligations, and a person provides information in response. …
In contrast, a consultation does not occur if a person provides information to a
lawyer in response to advertising that merely describes the lawyer’s education,
experience, areas of practice, and contact information, or provides legal
information of general interest. Such a person communicates information
unilaterally to a lawyer, without any reasonable expectation that the lawyer is
willing to discuss the possibility of forming a client-lawyer relationship, and is thus
not a "prospective client."
ABA: Information v. advice
“With respect to context, lawyers who speak to groups generally have been
characterized as offering only general legal information. With respect to
content, lawyers who answer fact-specific legal questions may be characterized
as offering personal legal advice, especially if the lawyer is responding to a
question that can reasonably be understood to refer to the questioner’s
individual circumstances. However, a lawyer who poses and answers a
hypothetical question usually will not be characterized as offering legal advice.
To avoid misunderstanding, our previous opinions have recommended that
lawyers who provide general legal information include statements that
characterize the information as general in nature and caution that it should not
be understood as a substitute for personal legal advice.”
-ABA Formal Opinion 10-457
Another concern with answering questions in consumer Q&A forums is that
it may constitute the unauthorized practice of law if you answer questions
from outside your state of admission.
Here again, it is appropriate to provide general, non-specific information.
For example, you may post an answer suggesting that someone contact his
or her local bar association to seek a referral to a lawyer. But avoid providing
specific information about the law in states where you do not practice.
Opinion 00-4, July 15, 2000: Virtual lawyering
An attorney may provide legal services over the Internet, through the
attorney’s law firm, on matters not requiring in-person consultation or court
Opinion 06-1, 4/1/06:
Electronic file storage
Lawyers may, but are not required to, store files
electronically unless: a statute or rule requires
retention of an original document, the original
document is the property of the client, or
destruction of a paper document adversely
affects the client’s interests. Files stored
electronically must be readily reproducible and
protected from inadvertent modification,
degradation or destruction.
Ethics Opinion 06-2, Sept. 15, 2006: Metadata
A lawyer who is sending an electronic document should
take care to ensure the confidentiality of all
information contained in the document, including
metadata. A lawyer receiving an electronic document
should not try to obtain information from metadata
that the lawyer knows or should know is not intended
for the receiving lawyer. A lawyer who inadvertently
receives information via metadata in an electronic
document should notify the sender of the
information’s receipt. The opinion is not intended to
address metadata in the context of discovery
Subsequent to Opinion 06-2. Provides:
“A lawyer who receives a document relating to the representation of the
lawyer's client and knows or reasonably should know that the document was
inadvertently sent shall promptly notify the sender.”
Rule 4-4.4(b), Comment
“Subdivision (b) recognizes that lawyers sometimes receive documents that were
mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or
reasonably should know that such a document was sent inadvertently, then this rule
requires the lawyer to promptly notify the sender in order to permit that person to take
protective measures. Whether the lawyer is required to take additional steps, such as
returning the original document, is a matter of law beyond the scope of these rules, as is
the question of whether the privileged status of a document has been waived. Similarly,
this rule does not address the legal duties of a lawyer who receives a document that the
lawyer knows or reasonably should know may have been wrongfully obtained by the
sending person. For purposes of this rule, "document" includes e-mail or other electronic
modes of transmission subject to being read or put into readable form.
“Some lawyers may choose to return a document unread, for example, when the lawyer
learns before receiving the document that it was inadvertently sent to the wrong address.
Where a lawyer is not required by applicable law to do so, the decision to voluntarily
return such a document is a matter of professional judgment ordinarily reserved to the
lawyer. See Rules 4-1.2 and 4-1.4.”
Opinion 07-3, 1/16/09: Unsolicited Info
• A person seeking legal services who sends information unilaterally to a lawyer has
no reasonable expectation of confidentiality regarding that information.
• A lawyer who receives information unilaterally from a person seeking legal
services who is not a prospective client within Rule 4-1.18, has no conflict of
interest if already representing or is later asked to represent an adversary, and
may use or disclose the information.
• If the lawyer agrees to consider representing the person or discussed the
possibility of representation with the person, the person is a prospective client
under Rule 4-1.18, and the lawyer does owe a duty of confidentiality which may
create a conflict of interest for the lawyer.
• Lawyers should post a statement on their websites that the lawyer does not
intend to treat as confidential information sent to the lawyer via the website, and
that such information could be used against the person by the lawyer in the
Opinion 10-2, Sept. 24, 2010: Storage Media
A lawyer who chooses to use Devices that contain Storage Media such as printers,
copiers, scanners, and facsimile machines must take reasonable steps to ensure that
client confidentiality is maintained and that the Device is sanitized before disposition,
1. Identification of the potential threat to confidentiality along with the development
and implementation of policies to address the potential threat to confidentiality.
2. Inventory of the Devices that contain Hard Drives or other Storage Media.
3. Supervision of nonlawyers to obtain adequate assurances that confidentiality will
4. Responsibility for sanitization of the Device by requiring meaningful assurances
from the vendor at the intake of the Device and confirmation or certification of
the sanitization at the disposition of the Device.
Ethics Opinion 12-2 (9/21/12): E-portal login
A lawyer may provide their log-in credentials to the E-Portal to trusted
nonlawyer employees for the employees to file court documents that have
been reviewed and approved by the lawyer, who remains responsible for the
filing. The lawyer must properly supervise the nonlawyer, should monitor the
nonlawyer’s use of the E-Portal, and should immediately change the lawyer’s
password if the nonlawyer employee leaves the lawyer’s employ or shows
untrustworthiness in use of the E-Portal.