Avoiding Technical Fouls:Selected Ethical Issues in Advertising, Social Media, and Cloud Computing

Avoiding Technical Fouls:
Selected Ethical Issues in Advertising,
Social Media, and Cloud Computing
Kevin M. O’Shea, Esq.
Sulloway & Hollis, P.L.L.C.
“Keeping You in the Know” CLE Program
Old Republic National Title Insurance Company
June 18, 2014

Introductory Notes
 Citations to Rules of Professional Conduct in this presentation are
citations to New Hampshire’s Rules of Professional Conduct, unless
otherwise stated or cited in reference to Non-New Hampshire
authority.
 Citations to Non-New Hampshire authority on a similar or analogous
rule are not meant to imply that the issue would be resolved in that
same manner under New Hampshire’s Rules of Professional Conduct.
 Thanks are given to my associate, Greg Silverman, for assisting me with
summarizing and updating my initial research.
 This program is not intended to be comprehensive; use your own
professional judgment in acting on these matters under New
Hampshire’s rules.
2

Agenda
 Advertising
 LinkedIn
 Are Facebook and Twitter Regulated Attorney Advertising?
 Group Coupons or Daily Deals for Discounted Legal Services
 Social Media
 Liability for Posting
 Responding to False Accusations/Bad Reviews
 Cloud Computing
 Confidentiality
 Security
 Employee Risks
 Listservs
3

Reference Materials
 Tab A:
 Selected New Hampshire Rules of Professional Conduct,
 Selected New Hampshire Ethics Committee’s Comments,
 Selected Comments to the ABA Model Rules of Professional
Conduct
 Tab B:
 Selected Articles, Cases and Other Materials Cited in the
Presentation
4

Advertising: The Rules
 Rule 7.1. Communications Concerning a Lawyer's Services
 A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer’s services.
 A communication is false or misleading if it:
 (b) is likely to create an unjustified expectation about results the
lawyer can achieve, or states or implies that the lawyer can achieve
results by means that violate the rules of professional conduct or
other law
5

 Comment 3 to Model Rule 7.2
 “…electronic media, such as the Internet, can be an important source of
information about legal services, and lawful communication by electronic mail is
permitted by this Rule...”
 Rule 7.2 (c)
 (c) Any communication made pursuant to this rule shall include the name and
office address of at least one lawyer or law firm responsible for its content.
 Rule 7.3(c)
 soliciting professional employment from a prospective client known to be in need of
legal services in a particular matter shall include the word "Advertising”…
beginning and ending of any…electronic communication
 unless the recipient of the communication is a person [within one of the
enumerated exceptions of 7.3 (a)]
6

 Rule 7.4 Communications of Fields of Practice
 A lawyer may communicate the fact that the lawyer does or
does not practice in particular fields of law. A lawyer shall
not state or imply that the lawyer is a specialist except as
follows:
a) "patent attorney"
b) "admiralty," "proctor in admiralty"
c) a lawyer who is certified as a specialist in a particular field of law by
an organization that has been accredited by the American Bar
Association may hold himself or herself out as a specialist certified
by such organization.
7

Advertising: LinkedIn
Profile Disclaimer Needed?
As an advertisement? As Specialist?
 DISCLAIMER: New Hampshire Rules of Professional Conduct prohibit
attorneys from stating or implying that the lawyer is a specialist except under
certain circumstances; however a lawyer may communicate the fact that s/he
practices in particular fields of law.
 Nothing in this LinkedIn profile is meant to state or imply that Kevin O'Shea
is a specialist, but rather identify his areas of practice.
 Moreover, nothing in this LinkedIn profile is meant to create an unjustified
expectation about results that Kevin O'Shea can achieve, or states or implies
that he can achieve results by means that violate the rules of professional
conduct or other law; or compares his services with other lawyers’ services,
unless the comparison can be factually substantiated.
 To the extent that this LinkedIn profile is deemed to be Advertising, Kevin
O'Shea of Sulloway & Hollis, PLLC, with an office address of 9 Capitol Street,
Concord, NH 03301 is responsible for its content.
8

Advertising: LinkedIn
What about those pesky “endorsements”?
 A Florida bar staff opinion would prohibit LinkedIn users to
“endorse” attorneys for certain skills such as commercial
litigation are subject-area expertise.
 John S. Leinicke and Geoff Moysa, Ethics of Your Social Media
Profile, For the Defense, January 2014, at 86-87.
9

Advertising: Facebook & Twitter
Are Facebook, LinkedIn and Twitter
Regulated Attorney Advertising
 No New Hampshire Authority
 But, the NH Supreme Court has disciplined attorneys in connection
with statements made on websites.
 See In re Richmond’s Case, 152 N.H. 155, 161 (2005) (attorney
violated Rule 7.1 by misrepresenting the extent of his experience in
this practice area on his firm's web site).
10

 Nevertheless, it is unclear whether New Hampshire would:
 Recognize the distinction made by Texas that
 Where access to a Facebook Page or Twitter Account is limited to existing
clients and personal friends there is no regulated advertising
 Blogs or status updates considered to be educational or informational in
nature are not advertising subject to review.
 State Bar of Texas Advertising Review Committee Interpretive Comment 17
 Or the distinction made by Kentucky
 If the information on a LinkedIn page is analogous to those categories
found in Martindale-Hubbell, it is not regulated advertising.
 Amy D. Cubbage, “Fear and Loathing in Cyberspace or How Not to
Fear Social Media” Kentucky Bench & Bar March 2012 at 17
11

Query : Is communication on Facebook, Twitter or a Blog
an impermissible “real time” solicitation
(for legal services)?
 But see NH Ethics Committees’ Comment 2 to Rule 7.3
 Recognizing the growth of interactive technologies that may cause
the prospective client to feel immediate pressure to respond
12

Query : Can communication on Facebook or Twitter
create Potential Client Duties?
 But see Ethics Committee Comment 2 to Rule 1.18
 “Not all persons who communicate information to an attorney
unilaterally are entitled to protection under this Rule.”
 “A person who 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.”
13

Advertising: Group Coupons or Daily Deal
Providing Discounted Legal Services through
“Group Coupons” or “Daily Deal” Services,
NH Bar Ethics Op. 2013-14/8
14

 Group coupon services generally use two
different models:
 the “coupon deal” and
the “prepay deal.”
 Prepaid Deal:
 a business sells a voucher, perhaps for $250, entitling the
buyer to obtain goods or services usually selling for a higher
price, say $500.
15

 Prepaid Deal:
 The Ethics Committee believes it is unlikely a prepaid deal
could be construed to comply with the rules.
 Rule 1.15(a) requires that unearned legal fees must be deposited
into designated trust accounts.
 Prepaid deals typically
 collect fees from all participating subscribers,
 withhold the service’s share, and
 pay the remainder to the vendor in a single lump sum,
 without identifying who the funds came from.
16

 Coupon Deal:
 a business sells a coupon,
 entitling the buyer to obtain goods or services at a discount,
 The buyer pays for the goods or services only at the time of
the actual purchase.
17

 Coupon Deal:
 Rule 1.1 requires that lawyers be provided competent
representation to their clients.
 The coupon deal model prevents the lawyer from undertaking
these steps prior to the subscriber accepting the offer.
 As a result, the lawyer must make the determination as to
whether it is possible to provide competent representation to
the subscriber as soon as they present the coupon.
 If the lawyer is unable to provide the services the subscriber
requests it must decline representation pursuant to Rule 1.16 and
give the subscriber a full refund pursuant to Rule 1.5(a).
18

 Coupon Deal:
 Rule 1.7 or Rule 1.9:
 A lawyer may be prevented from providing legal services offered
due to the representation of a current or former client.
 The ABA concluded that the mere purchase of a coupon deal does
not make the buyer a current or prospective client.
 The buyer could be a prospective client if it has provided the
lawyer with information regarding the possibility of forming a
lawyer-client relationship.
19

 Coupon Deal:
 Rule 1.7 or Rule 1.9:
 a lawyer may be prevented from providing legal services
offered due to the representation of a current or former client.
 The Committee advises a lawyer offering a coupon deal that they
include in the communication relating to the deal an explanation
that, until a consultation between the buyer and the lawyer takes
place, no client-lawyer relationship exists and may ever exist if the
lawyer is unable or otherwise declines to provide the
representation.
20

 Rule 7.1:
 An offer for discounted legal services made through a coupon
deal must be an offer to provide legal services at an actual
discount from the lawyer’s established standard fees.
 The offer should
 expressly state what specific services are being offered,
 any condition that affect how and whether the services are
rendered,
 whether the offer has an expiration date, and
 a statement regarding the terms and conditions under which the
buyer will receive a refund, if the buyer does not redeem the deal.
21

 Conclusion
 Offering legal service through a coupon deal is “fraught with
peril.”
 To offer a coupon deal, the lawyer must carefully review the
policies and practices of the coupon service, and ensure that
the offer can be made consistent with the applicable ethical
obligations.
22

Social Media: Liability for Posting
Query: whether an attorney can be disciplined for
comments made on other websites under an online
moniker?
23

Social Media: Liability for Posting
 Sarah Mui, Should Web comments be grounds for
an ethics probe?, ABA Journal Blawgwhisperer,
January 10, 2014
 A University of Denver law professor filed a request to the
Illinois’ attorney registration and disciplinary commission for
an ethics investigation against lawyer licensed in Illinois
regarding “sexualized comments about her appearance and
other disparaging remarks made her concerned for her safety”
on five different websites.
 No New Hampshire Authority, but consider
 Astles' Case, 134 N.H. 602 (1991) (attorney disbarred for
dishonesty in connection with mortgage application for his
family home).
24

Social Media: Responding to Bad Reviews
Ethics Corner: Can Lawyers Respond to False
Accusations Online?,
N.H. Bar News, February 19, 2014
25

 Ethics Corner: Can Lawyers Respond to False
Accusations Online?, N.H. Bar News, February 19,
2014
 A lawyer asked the Ethics Committee the best way to respond to a
client who posted on the Lawyer Review site, AVVO.
 “[The attorney] took her money ($2,500) for a hearing that [the
attorney] knew [he] could not win.”
26

 Rule 1.6(b)(3) provides that a lawyer may reveal
confidential information to the extent he/she
reasonably believes necessary “to respond to
allegation in any proceeding concerning the lawyers
representation of the client.”
 Many legal ethicists read Rule 1.6 strictly in light of
the importance of client confidentiality and suggest
that a proceeding must have been commenced or
foreseeable before confidences may be disclosed.
27

 The Committee urged the questioner to adopt the advice
offered by AVVO’s counsel prior to responding to the client.
 The counsel wrote “there are very effective ways to respond to
negative reviews that don’t involve saying anything about the case
and risking disclosure of client confidences.”
 “It is less important to set the record straight than it is to commute
that the lawyer is responsive, professional and takes client
feedback seriously.”
28

 Ethics Corner: Can Lawyers Respond to False
Accusations Online?, N.H. Bar News, February 19,
2014
 The Committee noted that while the questioner’s inquiry
related to a web posting, the analysis of AVVO’s general
counsel also applied equally to other forms of public
communications such as newspapers, books or oral comments.
29

Cloud Computing: Rule 1.1 (Competence)
The Use of Cloud Computing in the Practice of
Law, NH Bar Ethics Op. 2012-13/4
30

Cloud Computing: What is it?
 Three Types:
 Data Storage
 On line back-up and document storage/management services
(Dropbox, iCloud, Google Docs, Microsoft Office 365)
 Internet Based Email
 IMAP (AOL, Yahoo, Hotmail, or Gmail)
 Software as a Service (“SaaS”)
 account management, timekeeping, and billing
31

Cloud Computing: Rule 1.1 (Competence)
 Rule 1.1 Competence
 The Committee stated that there was no hard and fast rule
as to what a lawyer must do with respect to each client when
using Cloud computing but must understand and guard
against the risk inherent in it.
 The facts and circumstances of each case will dictate what
reasonable protective measures a lawyer must take when
using Cloud computing.
32

Cloud Computing: Rule 1.6 (Confidentiality)
 Rule 1.6 Confidentiality of Information and Rule
1.0(e) Informed Consent
 Confidentiality applies not only to matter communicated in
confidence by the client
 but also to all information related to the representation,
whatever its source.
 Lawyer may reveal such information if client gives informed
consent or if the disclosure is impliedly authorized.
33

 ABA Model Rule 1.6
 Factors to be considered in determining the reasonableness
of lawyer’s efforts to prevent unauthorized access or
disclosure of client information stored in the Cloud include
(without limitation):
34

 ABA Model Rule 1.6
 sensitivity of the information,
 likelihood of disclosure if additional safeguards are not
employed,
 cost of employing additional safeguards,
 difficulty of implementing the safeguards, and
 extent to which the safeguards adversely affect the lawyers
ability to represents clients.
35

Cloud Computing: Rule 1.15 (Safekeeping Property )
 The Use of Cloud Computing in the Practice
of Law, NH Bar Ethics Op. 2012-13/4
 The New Hampshire Supreme Court has held that the
contents of the client’s file belong to the client and that,
upon request, an attorney must provide the client with the
file. Electronic communications are also part of the client’s
file.
 Data stored in the Cloud must be returned to the client and
deleted from the Cloud after representation is concluded or
when the lawyer decides to no longer preserve the file.
36

Cloud Computing: Rule 5.3
(Responsibilities Regarding Nonlawyer Assistants)
 The Use of Cloud Computing in the Practice
of Law, NH Bar Ethics Op. 2012-13/4
 What was once a matter of documents and file cabinets is
now on-line; this means a provider of Cloud computing
services, in effect, is a non-lawyer retained by a lawyer.
 The lawyer must make reasonable efforts to ensure the
provider understands and is capable of complying with its
obligation to act in a manner compatible with the lawyers
own professional responsibilities.
37

Cloud Computing: Rule 5.3
(Responsibilities Regarding Non-lawyer Assistants)
 The Committee stated the Rules of Professional Conduct do
not impose a strict liability standard
 but that the lawyer who uses Cloud computing must take
reasonable steps to ensure that sensitive client information
remains confidential and secure.
 The lawyer must ensure that IT professionals and other
support who engage with a Cloud computing provider are
preforming their work in the manner consistent with the
lawyer’s professional duties.
 The issues which an attorney must consider before using a cloud
computing service include the following:
38

Cloud Computing: Cloud Computing Considerations
 Is the provider of cloud computing services a reputable
organization?
 Does the provider offer robust security measures?
 password protections or other verification procedures limiting
access to the data;
 safeguards such as data back-up and restoration;
 a firewall, or encryption;
 periodic audits by third parties of the provider's security; and
 notification procedures in case of a breach.
39

 Security Measures:
 Is the data stored in a format that renders it retrievable as well as
secure?
 Is it stored in a proprietary format and is it promptly and
reasonably retrievable by the lawyer in a format acceptable to the
client?
 Does the provider commingle data belonging to different clients
and/or different practitioners such that retrieval may result in
inadvertent disclosure?
40

 Security Measures
 Will the provider retain the data – and, if so, for how long – when
the representation ends or the agreement between the lawyer and
provider is terminated for another reason?
 The data must not be destroyed immediately and without notice or
compromised in case of nonpayment
 Disaster recovery plans
 Is a copy of the digital data stored on-site
41

 Who “Owns” the Data?
 Some providers routinely inform those accessing their service
that it is the provider−not the user −that "owns" the data.
 If the provider owns the stored data, the lawyer may run afoul of
Rule 1.15, which requires that the client's property "be identified
as property of the client."
 To comply with Rule 1.15, the provider may not "own" the data
stored in the cloud.
42

 Protecting the Rights of the Client:
 Where are the provider's servers located and what are the privacy
laws in effect at that location regarding unauthorized access,
retrieval, and destruction of compromised data?
 If the servers are located in a foreign country, do the privacy laws
of that country reasonably mirror those of the United States?
 If the servers are relocated, will the provider notify the lawyer in
advance?
43

 Protecting the Rights of the Client
 Do the terms of service obligate the provider to warn the lawyer if
information is being subpoenaed by a third party, where the law
permits such notice?
44

 Do the terms of service obligate the provider to warn the
lawyer if information is being subpoenaed by a third party,
where the law permits such notice?
 Such a provision may be especially timely given that the Senate
Judiciary Committee recently considered, but rejected legislation
which would have expanded law enforcement agencies' access to
privately stored data.
 What is the provider's disaster recovery plan with respect to
stored data?
 Is a copy of the digital data stored on-site
45

Employee Risks
Mark Hansen, 4 Types of Employees Who Put Your
Cybersecurity at Risk, and 10 Things You Can do to
Stop Them, ABA Journal Tech Show, March 28, 2014
46

Employee Risks
 4 Types of Employee Risks
 Security softie: Knows very little about security and
poses a threat by using their work computer at home or
letting family members use it.
 Gadget Geek: Comes to work armed with a variety of
devices that get plugged into their PC.
 Squatter: uses company IT resources in ways they
shouldn’t.
 Saboteur: who will hack into areas to which they don’t
have access or infect the network on purpose.
47

Employee Risks
 Tips to Combat the Risks
 Set up a communications and training program so
employees know all of the do's and don’ts when it comes to
technology.
 Make sure the IT staff keeps all systems up to date.
 Have a security assessment performed by an outside
vendor.
 Encrypt all data.
 Insist that employees regularly change their passwords.
48

Employee Risks
 Tips to Combat the Risks
 Have a comprehensive information security program in
place.
 Practice constant security awareness.
 Offer ongoing security training to employees.
 Implement limited-access and least-privileged policies.
 Make sure that all information placed in the hands of third
parties is secured.
49

Listserves
 The Rules and Etiquette for NHBA E-mail
Discussion Groups remind us that:
 “e-mail is not private, even when you think you know who all of
the subscribers are. Messages can be forwarded easily, or
shared with others. Be circumspect in your comments.”
50

Listserves
 Oregon State Bar Formal Opinion No. 2011-184
(March 2011)
 Framing a question as a hypothetical is not a perfect
solution.
 Lawyers faces a significant risk of violating [Rule] 1.6 when
posing hypothetical questions
 if the facts provided permit persons outside the lawyer’s firm to
determine the client’s identity.
 Where the facts are so unique or where other circumstances
might reveal the identity of the consulting lawyer’s client even
without the client being named,
 the lawyer must first obtain the client’s informed consent for the
disclosures.
51

CLE Disclaimer
This material is presented with the understanding that the presenter does not
render any legal, accounting or other professional service. It is intended for
educational and informational use by attorneys licensed to practice law in New
Hampshire.
Because of the rapidly changing nature of the law, information contained in this
publication may become outdated. As a result, an attorney using this material
must always research original sources of authority and update information to
ensure accuracy when dealing with a specific client’s legal matters or the lawyer’s
matters. In no event will the presenter be liable for any direct, indirect or
consequential damages resulting from the use of this material.
The views expressed herein are not necessarily those of the presenter's law firm or
the presenter.
Presenter asserts and reserves all rights in his materials and asserts no rights to
materials owned by others.
52

Questions? Comments?
Kevin O’Shea
koshea@sulloway.com
Sulloway & Hollis, PLLC
603-224-2341
53

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