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Ethical Dangers of Technology in the Law Practice

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A four-hour presentation on legal ethics and technology presented by Robert Ambrogi for the Solo & Small Firm Section of the Florida Bar in May 2017.

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Ethical Dangers of Technology in the Law Practice

  1. 1. Ethical Dangers of Technology in the Legal Practice Solo & Small Firm Section of the Florida Bar Danube River Robert J. Ambrogi, Esq. May 2017
  2. 2. What we’ll cover Technology Competence.Chapter 1 Cloud Computing.Chapter 2 Email and Communications.Chapter 3 Social Media.Chapter 4 LinkedIn.Chapter 5 Blogging.Chapter 6 Marketing and Advertising.Chapter 7 Other Florida Issues.Chapter 8
  3. 3. Chapter 1: Technology (in)Competence
  4. 4. 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 bailiwick.”
  5. 5. James v. National Financial (Del. Chancery) •“Professed technological incompetence is not an excuse for discovery misconduct.” •Sanctions awarded.
  6. 6. 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 product. 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.
  7. 7. 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 deserve.”
  8. 8. ABA Model Rule 1.1, Comment 8 • “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.”
  9. 9. 27 states have adopted Comment 8 • Arizona • Arkansas • Colorado • Connecticut • Delaware • Florida • Idaho • Illinois • Iowa • Kansas • Massachusetts • Minnesota • New Hampshire • New Mexico • New York • North Carolina • North Dakota • Ohio • Oklahoma • Pennsylvania • Tennessee • Utah • Virginia • Washington • West Virginia • Wisconsin • Wyoming
  10. 10. 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 technology.
  11. 11. 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.
  12. 12. 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
  13. 13. 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 representation.
  14. 14. Attorney should be able to: 1. Initially assess e-discovery needs and issues, if any. 2. Implement/cause to implement appropriate ESI preservation procedures. 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 appropriate manner.
  15. 15. Duty to supervise • Can meet the duty through association with outside attorney, outside vendor, subordinate attorney or even the client. • 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 hand.
  16. 16. 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 privilege. “A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege.”
  17. 17. 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.
  18. 18. Part 2: Lost in the Cloud
  19. 19. Is cloud computing ethical?
  20. 20. 20 ethics panel agree … 1. Lawyers may use the cloud. 2. Must take reasonable steps to minimize risk to confidential information and client files.
  21. 21. The ethical issues at stake • Lawyers have duty to safeguard confidential client information. • Lawyers have duty to protect client property, including client files, from loss. • Lawyers have a duty to be competent in technology.
  22. 22. 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.”
  23. 23. “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
  24. 24. “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 computing.” “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
  25. 25. 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.”
  26. 26. Florida Opinion 12-3, 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.
  27. 27. 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 ethical obligations.”
  28. 28. 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 client information. • 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.
  29. 29. Opinion 12-3: Access to data • Lawyers must be able to access the lawyer's own information without limit. • Others should not be able to access the information. • But lawyers must be able to provide limited access to third parties to specific information. • Yet must be able to restrict their access to only that information.
  30. 30. 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."
  31. 31. 1. Company due diligence Is this a solid company with a good operating record? Do others recommend the company? What is in the TOS and privacy policy?
  32. 32. 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?
  33. 33. 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?
  34. 34. “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 product: • “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.”
  35. 35. 4. Password protection • Passwords required? • Is two-step verification available? • Automatic log-out? • Account monitoring for suspicious activity?
  36. 36. 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
  37. 37. 6. Data encryption
  38. 38. SSL = encryption in transit
  39. 39. Encryption at rest
  40. 40. 7. Data back-up • Data backed up at least daily. • Back-ups to multiple locations.
  41. 41. 8. Network security • Firewalls. • Intrusion detection. • Virus detection. • Network usage. • Application usage. • Port scanning.
  42. 42. 9. Physical security of data centers Building access and security 24x7 on-site security. Multi-level access verification. Video monitoring of entrances and internal. Uninterruptible, redundant power At least two power grid connections. Battery banks. N+1 on-site generators. Cooling system HVAC systems with N+1 redundancy to keep climate at the optimum temperature and humidity levels. Fire detection and suppression Automatic, multi- zoned detection and suppression. Off-site alarm monitoring and dispatch. System monitoring Real-time monitoring of all systems.
  43. 43. 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. •SaaS providers. •Payroll processing companies. •Loan servicing companies. •Medical claims processors. SOC 2 •Reporting option specifically designed for data centers, SaaS vendors, and cloud-based businesses. •Evaluates: •System security. •System availability. •System processing integrity. •Confidentiality of information. •Privacy of personal information.
  44. 44. 10. Extra security: client-side encryption • Viivo.com. • Client-side encryption for Mac, Windows, iOS and Android. • Works with Dropbox, Box, Google Drive and OneDrive. • Can share with others, but they must also install Viivo. • Safeboxapp.com. • Client-side encryption for Dropbox and other systems. • Boxcryptor.com. • Odrive.com. • Aggregates all your accounts into one system.
  45. 45. You need only be reasonable … not paranoid
  46. 46. Chapter 3. Email Insecurity
  47. 47. Email behavior
  48. 48. 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).
  49. 49. The Florida Bar v. Mooney & Mitchell Mitchell: Suspended for 10 days and ordered to attend an anger management class. Mooney: Public reprimand and ordered to take a class on professionalism. Violations: 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.
  50. 50. Email confidentiality
  51. 51. 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 normal circumstances.”
  52. 52. 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.
  53. 53. 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.
  54. 54. 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.”
  55. 55. 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.”
  56. 56. Citrix ShareFile
  57. 57. Enlocked
  58. 58. virtru
  59. 59. Delivery Trust
  60. 60. Redact Assistant (PayneGroup)
  61. 61. What about texting?
  62. 62. 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
  63. 63. Chapter 4. Anti-Social Media
  64. 64. Discuss: Facebook boastings • “Another great victory in court today! My client is delighted. Who wants to be next?” • “Case finally over. Unanimous verdict! Celebrating tonight.” • “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.”
  65. 65. CA Formal Opinion 2012- 186 CA Rule 1-400, governing advertising and solicitation: 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 employment.”
  66. 66. 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.”
  67. 67. Discuss: Friend a witness During her deposition, a non-party witness says that she regularly uses Facebook to post personal information and photographs. 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 request. The paralegal does as the attorney asked and the witness accepts the friend request.
  68. 68. Analysis of hypothetical • 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.
  69. 69. 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 endorsements. 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 duties.
  70. 70. 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.
  71. 71. Outcome The public defender was fired.
  72. 72. 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.
  73. 73. Outcome 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.
  74. 74. 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.
  75. 75. 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 firm.
  76. 76. FL Judicial Ethics Opinion 2009-20 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 "friend.“ “[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.
  77. 77. 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.
  78. 78. FL Mediator Ethics Opinion 2010-001 Question 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”? Answer 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 future.
  79. 79. 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 Networking Sites
  80. 80. 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 for review.
  81. 81. Chapter 5. LinkedIn
  82. 82. Discuss: Endorsements 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 spoken. 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.
  83. 83. 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
  84. 84. 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, of course). 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 LinkedIn endorsements. -Joshua King, General Counsel, Avvo
  85. 85. 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 lawyer’s page.” -The Florida Bar Standing Committee on Advertising Guidelines for Networking Sites, May 9, 2016
  86. 86. 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 generally experience; (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.
  87. 87. 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.
  88. 88. Chapter 6. Blogging
  89. 89. 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.”
  90. 90. How it turned out Lawyer was suspended for 60 days. In re: Kristine Ann Peshek, Illinois Supreme Court, May 18, 2010.
  91. 91. 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- 4(d)). • The Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008).
  92. 92. 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.
  93. 93. 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 Amendment rights. 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 proceedings.
  94. 94. “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 courtroom.” -Hunter v. Virginia State Bar, February 28, 2013
  95. 95. But be nice on your blog to judges “The right to free speech under the federal and Florida Constitutions does not preclude the disciplining of a lawyer for speech directed at the judiciary.” -The Florida Bar v. Wasserman, 675 So.2nd 103 (1996).
  96. 96. Chapter 7. Marketing & Advertising
  97. 97. 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 sites. Direct e-mail must be filed for review.
  98. 98. 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 computer users.
  99. 99. 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.”
  100. 100. 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).”
  101. 101. 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.”
  102. 102. Inadvertent relationship “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 law.”
  103. 103. 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 public.
  104. 104. 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."
  105. 105. 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
  106. 106. Unauthorized practice? 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.
  107. 107. Chapter 8. Other Florida Issues
  108. 108. 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 appearances.
  109. 109. 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.
  110. 110. 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 documents.
  111. 111. Rule 4-4.4(b) 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.”
  112. 112. 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.”
  113. 113. 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 future.
  114. 114. 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, including: 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 be maintained. 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.
  115. 115. 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.
  116. 116. Mandatory Tech CLE
  117. 117. ambrogi@gmail.com www.lawsitesblog.com @bobambrogi

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