Presentation examining ethics within various areas of law: litigation, transactional, and general counsel

1. Aaron Vick
Cicayda Chief Strategy Officer
Ethics in Legal Tech
- 2018 CLE -

2. ABA 20/20 Commission
recommended updates to
ABA Model Rules defining the
need to understand
technology.
2012
Delaware Supreme Court amended
Lawyers’ Rule of Professional
Conduct and created the
Commission on Law & Tech
2013
US Supreme Court
approved FRCP
amendments in re
electronic discovery
2015
State Bar of California’s
Proposed Ethics Opinion
No. 11- 0004
2014
Industry Spotlight on
Technology
Florida Bar
implemented required
technology CLE credit
2017

3. ABA Model Rule 1.1
LawSites www.lawsitesblog.com/2015/03/11-states-have-
adopted-ethical-duty-of-technology-competence.html
ABA’s Amended Comment 8 to
Model Rule 1.1 reads as follows:
Maintaining Competence
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.

4. State Adoption of
Technology Competence
LawSites www.lawsitesblog.com/2015/03/11-states-have-
adopted-ethical-duty-of-technology-competence.html
Acknowledge technology
competency
Formally Adopted Rule 1.1

5. Ethics &
Technology
Across All Areas
of Practice
Legal promotion via
technology such as social
media under ABA Model Rule
7 & Proposed Changes
Online Advertising
Ethical decisions regarding
the choices created by
emerging companies.
(i.e. car AI risk assessment)
General Counsel
Social Media
investigations, ESI
collections, competency of
client technology
Litigation
Emerging technology such
as Blockchain, regulatory
changes defining securities
Transactional

6. General Counsel
Machine-learning software trained on the
datasets didn’t just mirror those biases, it
amplified them.
Google, Microsoft, and others have all
acknowledged the need to monitor implicit
bias within development of ML & AI.
Wired - https://www.wired.com/story/machines-taught-by-
photos-learn-a-sexist-view-of-women/

7. Lawsuits regarding algorithms
“Tesla did not do what no manufacturer has
ever done—“develop and implement
computer algorithms that would eliminate
the danger of full throttle acceleration into
fixed objects” even if it is caused by human
error…Tesla disputes that there is a legal
duty to design a failsafe car.”
Forbes -
https://www.forbes.com/sites/patricklin/2017/04/05/heres-how-
tesla-solves-a-self-driving-crash-dilemma/#dc1201d68139
General Counsel

8. Transactional
“ABA Model Rule of Professional Conduct
5.5 restricts the unlicensed practice of law.
Like the ABA, various states have
criminalized the unauthorized practice of
law.”
Developers, not attorneys, are creating
smart contracts within the blockchain.
LTN – Decrypting the Ethical Implications of Blockchain Tech

9. Transactional
Blockchain/ICO/Securities
KYC
Security Or Token?
International Regulations?
Securities Exchange Commission
LTN – Decrypting the Ethical Implications of Blockchain Tech

11. Marketing Legal Services
“Proposed revisions would consolidate
current Model Rules 7.1, 7.2, 7.3, 7.4,
and 7.5 into two directives covering attorney
advertising.
Proposed Model Rule 7.1 ("Communications
Concerning a Lawyer's Services") would
incorporate much of current Model Rule 7.2
regarding attorney advertising. Proposed
Model Rule 7.2 ("Solicitation") would revise
and consolidate the current Model Rules
governing solicitation of clients,
communications regarding fields of practice
and specialization, and firm names and
letterheads.
American Bar -
https://www.americanbar.org/publications/litigation-news/top-
stories/2017/proposed-aba-model-rule-changes-address-social-
media-advertising.html

12. ATTORNEY ADVERTISING Guideline No. 2.A:
Applicability of Advertising Rules
A lawyer’s social media profile that is used
only for personal purposes is not subject to
attorney advertising and solicitation rules.
However, a social media profile, posting or
blog a lawyer primarily uses for the purpose
of the retention of the lawyer or his law
firm is subject to such rules. Hybrid
accounts may need to comply with attorney
advertising and solicitation rules if used for
the primary purpose of the retention of the
lawyer or his law firm.
New York Bar - https://www.nysba.org/socialmediaguidelines17/
Marketing Legal Services

13. How Has Technology Changed Discovery?
 How We Communicate
 The Amount We Communicate
 How We Store Records
 Less Paper / More ESI

14. State Bar of California’s
Proposed Ethics Opinion
No. 11- 0004
calbar.ca.gov

15. FRCP Rule 37(e) states
ESI loss is sanctionable
when firms fail to take
“REASONABLE STEPS” to
identify and preserve data
Litigation - FRCP

16. Reasonable Steps
Identify
Facts &
Unknowns
Facts &
Unknowns
Who are the users?
Who are the IT staff?
Any third parties?
Proprietary systems?
On prem/cloud data?
Mobile/Social/IOT?
Deleted data?
Retention Policies?
Confirm
Key
Witnesses
Key Witnesses
What systems did
they use?
Did they maintain
online and offline
email?
Where did they store
data?
Do they have personal
backups?
Create
Notice and
Q&A
Notice and Q&A
Include obligation to
keep documents and
data
Issue Notice (improper
procedures are
sanctionable)
Create varied Q&A
Define
Collection
Scope
Collection Scope
The scope is defined by
compiling all the known
information collected
during the prior steps:
Who?
What?
Where?
When?

17. Litigation - FRCP
Duty to Preserve
Duty to Preserve
The Hold Notice
• Is a defensible process
• Reuse templates
• Informs many at once
• Sends auto-reminders
• Identifies custodians
• Maintains records
• Is “reasonable step” #1

18. Electronically stored information
(ESI), for the purpose of the
Federal Rules of Civil Procedure
(FRCP) is information created,
manipulated, communicated,
stored, and best utilized in digital
form, requiring the use of
computer hardware and
software.
Litigation - FRCP

19. Meet & Confer/Early Case Management
Electronic discovery requires cooperation between
opposing counsel and transparency in all aspects of
preservation and production of ESI. Moreover, where
counsel are using keyword searches for retrieval of ESI,
they at a minimum must carefully craft the appropriate
keywords, with input from the ESI’s custodians as to the
words and abbreviations they use, and the proposed
methodology must be quality control tested to assure
accuracy in retrieval and elimination of “false positives.”
It is time that the Bar—even those lawyers who did not
come of age in the computer era—understand this.
Litigation - FRCP
William A. Gross Constr. Assocs., Inc. v. Am.
Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y.
2009) 256 F.R.D. at 136

20. Meet & Confer/Early Case Management
26(f)(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:
(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a
statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery
should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or
forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on
a procedure to assert these claims after production—whether to ask the court to include their agreement in an
order under Federal Rule of Evidence 502;
(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what
other limitations should be imposed; and
(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c)
Litigation - FRCP
Cornell - https://www.law.cornell.edu/rules/frcp/rule_26|

21. Litigation – Social Media
“As more and more attorneys find useful
background and investigative research
information in the social networking profiles
of opposing parties, potential witnesses,
experts, etc. more and more State Bar
associations are issuing Legal Ethics
Opinions discussing whether or not (or
under what circumstances they can) view
these profiles to collect information about
these types of people.”
Net for Lawyers - https://www.netforlawyers.com/content/legal-
ethics-opinions-lawyers-attorneys-social-media-investigative-
background-research-0045

22. Aaron Vick
Cicayda Chief Strategy Officer
Ethics in Legal Tech
- 2018 CLE -