Be very quiet…I’m hunting Jurors!

Ex parte communications with prospective jurors and members of a sitting jury have long been prohibited.[1] (See Rule 3.5(b)). But the advent of social media has created a difficult wrinkle because lawyers are using social media to research both prospective and sitting jurors. That isn’t frowned upon, per se.  In fact, the New York City Bar Association recognized that this type of research is consistent with a lawyer’s fundamental duties. It noted that, “…standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.” [2]

The problem is that part of the lawyer’s investigation process through social media could include communicating with the jurors, thereby violating Rule 3.5(b).  There could be friending, exchanges of messages, or a lawyer might just observe a juror’s social media page.  The issue is trying to figure out which of those actions actually constitute a “communication” that violates the Rule. The authorities are concerned because “social media…can blur the line between independent, private research and interactive, interpersonal ‘communication.’”[3]

The City Bar didn’t make many waves when it opined that “friending” a juror constituted a prohibited communication.[4]  That’s pretty much a no-brainer.  It shook things up slightly, however, when it stated that simply researching a juror’s social media page could constitute a communication.

The Bar was concerned about situations where a lawyer researched the jurors page and the website sends a message to the juror letting them know that the lawyer had viewed the juror’s page.  How could this happen? Consider these two specific examples: LinkedIn automatically generates a message that tells a user who has viewed the profile recently.  Also, Twitter lets a user know the identity of a new follower.  The City Bar considered those type of platform-generated messages to be considered “communication” under the rules. [5] They stated that the key factor was the effect that such knowledge would have on the receiver (in this case, the juror).[6]

The Bar held that “it is the ‘transmission of,’ ‘exchange of’ or ‘process of bringing’ information or ideas from one person to another that defines a communication”[7] and that in the world of social media, “this focus on the transmission of information or knowledge is critical.”[8] In a situation where a juror was notified that a lawyer was viewing the juror’s social media page “…the researcher imparted to the person being researched the knowledge that he or she is being investigated.”[9]  The City Bar believed that “The transmission of the information that the attorney viewed the juror’s page is a communication that may be attributable to the lawyer and even such minimal contact raises the specter of the improper influence and/or intimidation that the Rules are intended to prevent.”[10] In addition to being intimidating, the knowledge of that research might “tend to influence the juror’s conduct with respect to the trial.”[11] Thus, the key question is whether the juror would have learned of the lawyer’s research.[12]

Note that the City Bar made a distinction between whether the lawyer knew that the notice would be generated, or whether it was inadvertently sent.  The former was considered to be a clear violation of the rules, but the Bar wouldn’t say if they thought that the rules were broken if the message was sent by the social media page inadvertently.[13] They said it “might constitute a prohibited communication even if inadvertent or unintended.”[14] Either way, they see the communication as a no-no.

But—lest you think that the ethics world is a boring place—there is a bit of controversy on the topic.  The ABA has also opined on the topic and came down with a contradictory (and in my opinion, troubling) result.

In Formal Opinion 466 (April 24, 2014) the ABA’s Standing Committee on Ethics and Professional Responsibility evaluated the same question that NYC considered.  Knowing that Rule 3.5 prohibits communications with jurors, they considered whether a lawyer can investigate a juror/potential juror’s social media page.  The ABA resolved the easy question the same way as the City Bar. That is, overt contact with a juror (like friending) is a prohibited communication that violates Rule 3.5(b).[15]  The ABA came down differently, however, on the tough question—whether a lawyer may passively review a juror’s social media page if that review will become known to the juror. In that scenario, the ABA disagreed with NYC. The ABA thinks it’s okay.

According to the ABA, a lawyer is not communicating with a juror when a website sends an automatically generated notice to the juror telling them that the lawyer was reviewing their website. They stated, “This Committee concludes that a lawyer who uses a shared ESM platform[16] to passively view juror ESM under these circumstances does not communicate with the juror.  The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM.”[17]

What’s amazing, is…that’s it.  That’s pretty much the crux of the decision.  The opinion is almost devoid of analysis.[18]  The only statement that in any way resembles some deeper thought is an analogy.  The opinion states, “This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.”[19] Personally, I think the ABA has it all wrong.

When a lawyer passively investigates a juror’s social media page, that lawyer is reading the details to the page.[20] They are inspecting the contents and looking for information.  It’s a lot less like driving down the street near a juror’s house and lot more like standing on the juror’s lawn peering over their bushes through the picture window in their living room, or rifling through the juror’s garbage cans.  I believe it’s more intrusive than the drafters of the opinions make it out to be. And intrusive can be intimidating.

But the ABA never talked about the potential intimidation.  They failed to explore that key underlying issue all together. They simply made a distinction about who is actually initiating the communication.  Since the website sent the message, it’s not a lawyer communication.

The mistake the drafters are making is focusing on the technical manner in which the message is sent.  The issue is not about who (or what) sent the communication, rather, it’s about what triggered that communication.  The impetus for the system sending a communication to the juror was the lawyer’s research.  The website-generated communication was only triggered because the lawyer made an appearance on the juror’s webpage.  The lawyer’s snooping caused the message to be sent.

The concern that prompted the City Bar opinion was the fact that knowledge of the lawyer’s presence on the juror’s social media page could be intimidating.[21] The message, regardless of who sent it, makes the juror aware that they are being watched. The key factor to the City Bar was the effect that such knowledge would have on the receiver (in this case, the juror).[22]  That’s why they stated that “even such minimal contact raises the specter of the improper influence and/or intimidation that the Rules are intended to prevent.”[23]

To date there haven’t been any other states that have chimed in on the matter.

I would expect that when other states opine on the matter that they will review the rationale behind the City Bar opinion in a more meaningful way and it will be interesting to see how they decide. My gut tells me that many jurisdictions will side with the City Bar view and I think that’s a good thing. I agree with them—the knowledge of a lawyer poking around on someone’s social media page could be somewhat intimidating.  But there’s a practical problem with all of this.

The problem is that the courts are also claiming that diligence demands that we research the public internet life of jurors.  In some cases they are even encouraging us to do so.[24] So how do we reconcile those two mandates?  Do we just stay away from sites like LinkedIn and Twitter because we know that they generate these messages?  But what if that changes—maybe we know which sites generate automatic messages today, but the functionality of these platforms change daily. The answer is competence.

This is a perfect illustration of how understanding social media and technology is becoming a core competency. There is a way to fulfill your mandate of researching jurors while also avoiding these type of computer generated messages. It means, however, that you need to have an intimate understanding of the individual platforms.

A well-versed user would know that you could adjust your own LinkedIn settings so that your identity isn’t revealed to other users when you view their profiles.  A person who understands Twitter knows that you can watch what another user says without actually “following” them.  Could that all change? Yes.  And when it does, you need to know about it.  You need to stay abreast of how all these platforms work…and that’s why knowledge of social media is becoming a core competency.

 

[1] New York City Bar Association, Formal Opinion 2012-2 at 1

[2] NYC Opinion 2012-2 at 2

[3] NYC Opinion 2012-2 at 2

[4] NYC Opinion 2012-2 at 3

[5] NYC Opinion 2012-2 at 2

[6] NYC Opinion 2012-2 at 4

[7] NYC Opinion 2012-2 at 4

[8] NYC Opinion 2012-2 at 4

[9] NYC Opinion 2012-2 at 4

[10] NYC Opinion 2012-2 at 5

[11] This quote actually comes from a different opinion out of New York City.  NYCLE Committee on Professional Ethics, Formal Opinion No. 743, Issued May 18, 2011 at 3.

[12] NYC Opinion 2012-2 at 3

[13] NYC Opinion 2012-2 at 5

[14] NYC Opinion 2012-2 at 2

[15] ABA Opinion 466 at 4

[16] “ESM” stands for “electronic social media” in this opinion.

[17] ABA Opinion 466 at 5

[18] This is all a bit surprising.  ABA opinions are normally well thought out writings that delve into the rationale behind their decisions.  In this case, however, the opinion is far too superficial.

[19] ABA Opinion 466 at 5

[20] …to the extent those details are available to be seen- we’re not talking about pages that are behind a privacy wall.

[21] NYC Opinion 2012-2 at 5

[22] NYC Opinion 2012-2 at 4

[23] NYC Opinion 2012-2 at 5

[24] See NYC Opinion 2012-2 at 2 where it references the Missouri case of Johnson v. McCullough, 306 S.W.3d 551, 558-59 (Mo. 2010).

You Gotta Do What You Gotta Do

Recently a lawyer was telling me about some bad conduct that happened at their office. They had a run-in with a senior partner and the lawyer I was speaking with seemed pretty sure that the senior partner’s actions constituted a violation of the ethics rules. Before I could even ask if they were going to report the misdeed, the lawyer said, “It was probably reportable, but I didn’t want to make waves. I just kept my mouth shut, hoping it would all blow over. Eventually, I found another job and just moved on.”

That might be a sensible approach in life, generally, but it’s a dangerous approach in the world of attorney ethics. That’s because our duty to report is mandatory. Rule 8.3 requires that lawyers report misconduct. That’s right– requires. Don’t get me wrong, there are a bunch of hurdles that you need to jump over before the conduct becomes reportable per the rule. But once you reach that threshold, the duty is just that– a duty. If you fail to report that misconduct, you might be liable for an ethics violation of your own.

What everyone’s missing in the Virtual Law Office Debate

The Internet allows us to have virtual friends and virtual second lives. It even allows lawyers to have virtual law offices (VLOs). The phrase virtual law office or virtual law firm (or whatever derivation you choose) could be defined several ways. It all depends upon the individual lawyer and how they chose to form their practice. What’s consistent among the category is that virtual lawyers are using technology in a major way and they butt heads with the traditionalists of the practice

The virtual lawyer is usually a solo attorney or small firm. They are mobile, using technology to operate out of courthouses, coffee houses, and their personal houses. They work on files wherever they desire, using Wi-Fi connections to access client files from cloud storage sites. They use cloud-based practice management software that can be accessed through their phones and tablets. They rarely have a conventional brick-and-mortar office and meet their clients by appointment only, often in shared conference rooms that are rented on an as-needed basis. Is this a good thing or a bad thing? It depends whom you ask.

The issue of whether virtual law offices should be permitted has emerged as a defining issue between two camps in the law: the protectionists/traditionalists vs. the technologists/progressives. If, by virtue of the labels themselves I appear to have planted myself inside either camp, I apologize because I didn’t mean to. As you’ll see, I find merit in both positions. This is one of those issues, however, where the differences between the Hatfields and the McCoys become apparent and they’re even fighting over the advisory opinions on the topic.

Several states have issued opinions about legal topics that impact virtual law offices. Many of them, however, haven’t passed judgment on their permissibility directly. Instead they address ethical issues in technology like cloud computing, safety of wireless networks, confidentiality, competence, and supervision. These apply to every tech-using lawyer, regardless of whether you’re involved in a VLO. However, there are some issues that pertain specifically to the VLO, and they’ve been taken on in several jurisdictions.

States including New Jersey, Pennsylvania, and California, have dealt with VLOs and, in NJ’s case, more than once. I’m not going to summarize them because the opinions are short and well written. They explain their reasoning in a clear, concise, and direct manner and it’s a good idea to review them in their entirety. And I recommend that you actually read the opinion– be careful when you read the analyses on the blogosphere, because almost every blogger is motivated by some agenda. Some believe, “We should retain the traditional values of the practice” while others’ mantra is, “We should redefine the modern practice.” As a result, their analyses are littered with cheap attacks at the other side which, while sometimes quite pithy, blur the real issues. The feud between the traditionalists and the technologists is muddling some key issues with which we must all be concerned.

Proponents of VLOs set forth compelling reasons for embracing the technology in this manner. The benefits they cite include increasing availability of legal services for the client, how technology and VLOs can keep down the cost of legal services, etc. The advisory opinions from around the country don’t take much issue with those items. The biggest variation of opinion and the defining sub-issue of the debate revolves around a lawyer’s office.

Here’s the issue: Do you need to have a brick-and-mortar office? Do the ethics rules require that you have an actual, physical office where you have secretaries and copy machines and the rest? The problem is that a hallmark of the virtual office is that there is no traditional office maintained by the lawyer. Instead the lawyer conducts their business wherever they prefer- the coffee shop, their bedroom, a library, whatever. Indeed in some instances the virtual lawyer doesn’t want to reveal where they work, since that might be their place of residence. They might not want to publicize where they live because they’re often home alone, or leave their children by themselves. That puts themselves and their families at potential risk from the crazies of the world. The problem is that the ethics rules as they are currently written don’t make it clear whether it’s acceptable to forgo having that physical space. In fact, some rules appear to require it.

There are two types of applicable rules. A clear bar to VLOs exists if a state has a rule that requires a bona fide office (like New Jersey had, pre-2013). In other states, a defacto prohibition exists if there is a rule that requires disclosure of one’s physical office address whenever they advertise. Let’s tackle the latter situation.

Many states have a derivation of Rule 7.2(c) (“Advertising”) which states, “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.”

This isn’t necessarily a bar for VLOs. You just need to make sure that you never, ever advertise and you won’t run afoul of this rule. Can you see the sarcasm dripping from my fingers as that’s typed? Advertising is the lifeblood of a virtual law practice! Thus, it appears that there are two threshold questions we need to answer: (1) What is an advertisement, and (2) What is an office?

The term “advertising” is broadly defined. New York confirmed that for us in the New York State Bar Association Committee on Professional Ethics Opinion 964 (4/4/13). In that opinion, the Bar Association addressed the question of whether business cards were considered advertising. They stated, “When a business or professional card or letterhead is used in the ordinary course of professional practice or social intercourse without primary intent to secure retention – e.g., simply to identify the lawyer – it does not constitute advertising [citation omitted]” However, the Committee stated that business cards could be ads when they opined, “If such cards or letterhead were given or sent to someone other than an existing client or another lawyer, and primarily in furtherance of an effort to secure retention of the lawyer or law firm, then the card or letterhead would constitute advertising. [citation omitted].” The opinion made clear that in those cases the rule, “would require it to include a principal law office street address.”

Thus, at least in some instances, business cards are considered ads (the practical effect of that decision is that a NY lawyer must always treat their business cards as advertising). This is consistent with the broad view taken by other states when determining what is considered to be an ad. This categorization has a significant effect — it means that New York lawyers always need to have a physical office address listed on their cards. And yes, the opinion makes it clear that when they state, “office” they mean a physical office. Thus, it’s impossible to maintain a virtual practice in New York without having a brick and mortar office that one calls home.

Decisions like this are met with horror by the technologists. They shout that rules like this are “antiquated,” or evidence of the elitism of Big Law and perpetuation of the proverbial “Old Boys Club.” But all they need to do is follow the Turnpike out of New York, zip through New Jersey and head into Pennsylvania. They’ll find that state far more hospitable because Pennsylvania views the address requirement differently.

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility addressed the issue of virtual law offices directly in it’s Formal Opinion 2010-200. The Committee addressed a variety of concerns relevant to VLOs, like confidentiality and supervision, but it also tackled the office address issue. The Committee stated that Pennsylvania’s rule doesn’t require that an actual physical address be listed on advertisements; they simply require that the lawyer set forth the geographical location (by city or town) where the lawyers principally practice law. The opinion notes that the “goal of the Rules is to assure that clients are informed about the locations where the firm operates and the jurisdictions in which the attorneys at the firm practice. The opinion goes even further and states that it’s even permissible for lawyers to use a post office box as the address where services are rendered, so long as the geographic area requirement is met. Under the Pennsylvania interpretation, a VLO wouldn’t be precluded by the advertising rules. In fact, the opinion specifically stated that for this reason, and all of the others discussed therein, a virtual law office was permissible in the Keystone State.

In order to get at the heart of the issue, however, one would need to backtrack in our travels and return to my home state of New Jersey. In my opinion, New Jersey’s rules do the best job of framing the key issue of the VLO debate.

For years, New Jersey was famous (or notorious, depending upon your point of view) for having a “bona fide office rule.” New Jersey’s Court Rules contained provision 1:21-1(a), which required that a New Jersey attorney maintain a bona fide office for the practice of law. The rule stated,

“For the purpose of this section, a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time.”

In 2010, New Jersey issued an opinion that outlawed virtual offices specifically because the powers-that-be believed that the physical location requirement was a key component of a proper law practice. The Advisory Committee on Professional Ethics issued Joint Opinion 718 with the State’s Committee on Attorney Advertising and stated that, “A virtual office” cannot be a bona fide office since the attorney generally is not present during normal business hours but will only be present when he or she has reserved the space.”  Later on, the opinion discusses the issue of listing offices on ads and it touched on the crux of the issue:

“An attorney must have at least one bona fide office but may also list satellite office locations on letterhead, websites, and other advertisements provided the listing of such office locations is accurate and not misleading…An attorney who has a bona fide office may also have a satellite office that is a “virtual office.” The attorney may list that “virtual office” satellite location on attorney or law firm letterhead, websites, or other advertisements, but the communication must state that the “virtual office” location is “by appointment only.” A “virtual office” location is not a place where a client can meet with the attorney unannounced. An attorney is not routinely found at a “virtual office” location and would need to make arrangements to reserve the space. Accordingly, while “virtual office” locations may be listed on attorney or law firm letterhead, websites, or other advertisements, the communication must state that the location is “by appointment only.”

Why were they so insistent upon an actual office? Sure, it could be for nefarious reasons, like protectionism for elite lawyers. But I think there’s another reason. The key phrase to focus on in the previous quote is, “A ‘virtual office’ location is not a place where a client can meet with the attorney unannounced.” I believe that that’s what this issue is really about. The real disagreement isn’t about misleading advertising or whether to use technology. Those are concerns that are relatively easy to resolve. The real divide revolves around communication and the allocation of power between the lawyer and client.

Permit me to illustrate with a personal anecdote.

I needed to hire a lawyer recently to deal with a personal legal problem, so I got the chance to see the system from the client’s point of view. My lawyer was a solo attorney in my hometown. He has a typical small office in a local office condo development, two secretaries and some loose relationship with another local lawyer (I couldn’t tell exactly, but it didn’t look like they had a typical partner/associate thing going). Throughout the representation we communicated mostly through email- I tried to make phone calls, but he was only there sporadically, so email worked best. The problem was that many of the responses I would get were single words or short phrases. Typical email exchanges resembled the following:

ME: “Did you hear from the other side about the stipulation yet?”
LAWYER: “Nope.”

ME: “When do you want to broach the settlement with the other side?”
LAWYER: “Not yet.”

I grew increasingly frustrated with the curt responses and at times I specifically asked for more detailed descriptions, but my pleas went unanswered. Responses continued to be short bursts like,

ME: “Have we received a response to our offer yet? It’s been a while- what do you think we should do if we don’t get a response by the end of the week?”
LAWYER: “Didn’t get a response yet. I’ll advise.”

As time passed I felt completely disconnected from my case. It made me very concerned and I wrote emails that said things like, “Please call me, I am really anxious and I’m in the dark.” Usually these went without response. No matter what I said and no matter how much desperation I built into the language of my emails, I wasn’t able to get any consistent or meaningful responses from the lawyer. My lawyer wasn’t communicating with me consistent with Rule 1.4.

I was at my wits end and I felt like I was running out of options. I had no choice but to go to his office, plant myself in his waiting room, and confront him when he walked in the door. When I did that, I got the answers I needed.

Frequently, and unfortunately, that’s the only way a client can get a hold of their lawyer. And the way I see it, it’s among the biggest reasons for requiring a physical office location. If there isn’t proper communication, the only weapon in the client’s arsenal might be to make themselves a fixture in the lawyer’s office. The concern is that the absence of an office denies the client that option. It makes the lawyer less accessible to the client.

Not every critic of VLOs is concerned with this ethical dilemma. Sure, there are protectionists whose motivation is to resist change. Yes, there are people in Big Law who want to use the rules to build a system that keeps the deck stacked in their favor. But set aside those motivations and review the matter free of any agenda and we can see that there are some respectable and important ethical motivations.

I think the disciplinary authorities believe that the client should have the ability to see their lawyer when the client wishes to do so. I’m sure that many diligent proprietors of VLOs bend over backward to accommodate clients’ requests for meetings. But a system that provides for face-to-face meetings with a lawyer “by appointment only” doesn’t afford the client the ability to see the lawyer at a time of the client’s choosing. Restricting lawyer-client personal meetings to an appointment only system puts the power in the hands of the lawyer and that’s not consistent with the most basic values of attorney ethics. Remember, it’s not about you; it’s about the client. Thus, the major divide with virtual law offices isn’t really about technology, rather it’s about empowering the client.

Some argue that the cure is to clearly set forth your policy. “If the client knows that you can be met by appointment only,” the argument goes, “then they know what they’re getting into.” Yes…but. Sure, they are aware of the policy, but most clients don’t really understand the impact of such a policy until the representation unfolds in real life. Then, it’s too late. Besides, the issue is not just about whether you’ve adequately put a client on notice, it’s about giving your client the opportunity to find you when they want to find you.

Technologists also point out that the client could show up and the lawyer won’t be there. But it’s up to the client about whether they want to stay there and wait- if it’s the lawyer’s office they could feel reasonably assured that the lawyer will eventually come back. Heck, nothing’s perfect, but at least the client knows where home-base is.

Diligent virtual lawyers may take offense to the non-communication argument. After all, many are eager to meet their clients and keep them properly informed. But the disciplinary system isn’t concerned about the diligent virtual lawyer- that lawyer who understands the importance of communication and would likely do it even in the absence of an ethics code. The disciplinary system needs to craft rules to ensure that those among us who would not voluntarily communicate with our clients continue to do so anyway.

A review of the recent New Jersey amendments to their court rules further illustrates this issue. Recently, New Jersey passed a major amendment to its bona fide office rule. It reads:

“(1) An attorney need not maintain a fixed physical location, but must structure his or her practice in such a manner as to assure, as set forth in RPC 1.4, prompt and reliable communication with and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice, provided that an attorney may designate one or more fixed physical locations where client files and the attorney’s business and financial records many be inspected on short notice by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly received, and where process may be served on the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto.”

The change to the NJ rule illustrates perfectly the tight rope that the ethics authorities must walk. The critical concepts that this new language addresses are “communication” and “accessibility.” The drafters are clearly trying to find a balance– how do they allow the practice to use technology, while still protecting the public. We want virtual lawyers, not vanishing lawyers. We need to craft rules that allow a technology savvy lawyer to flourish while ensuring that unprincipled lawyers don’t use that technology to disappear.

How do the drafters permit lawyers to stay cutting edge while ensuring that the client retain some personal power in the attorney-client relationship? In the new rule, New Jersey appears to eliminate the need for a brick-and-mortar office, but continues to impose a requirement that the lawyer remain accessible. It’s going to be interesting to see how proprietors of VLOs execute this directive. I’m sure many will adopt an “appointment only” policy and we won’t know if that satisfies the rule until someone gets in trouble. But now we see that therein lies the hidden source of our undoing- communication and accessibility.

Some of you may be wondering, how do we reconcile the Pennsylvania opinion? If this is all about empowering the client, why did Pennsylvania go in the other direction? The answer is that I don’t think they went in another direction. Pennsylvania seems to have simply made a policy decision.

PA’s requirement that a lawyer reveal the geographic location where they practice may be motivated by the desire to allow clients to chose a lawyer that is familiar with the practice in the area where the client’s case is located. Presumably, the client will want to hire a lawyer who is familiar with local laws and customs. My reading of the opinion is that the authorities are more concerned about the client understanding that they are hiring a lawyer who is familiar with local practice.

When balancing conflicting policy considerations, the Pennsylvania drafters appear to be less concerned about lawyer accessibility and more concerned about the ability of the client to determine that the lawyer practices in a particular community. Notice, however, that even though PA comes to a different conclusion than NJ, their thought process was still client-centered.

For the most part, the issue of virtual law practices isn’t a battle between people who want to move forward and others stuck in the past. To a certain extent it’s a question about who’s interests will dominate your thinking- the lawyer’s or the client’s? The tech savvy lawyers who want to transform the practice see it from the lawyer’s perspective, while the disciplinary authorities look at it from the client’s. I’m not indicting the technologists. I’m not claiming that they don’t want to protect the client. I’m just saying that they are more concerned with helping lawyers leverage technology and create a practice that affords a certain lifestyle to the lawyer. While that’s a worthy goal, one must understand that it’s not completely shared by the disciplinary authorities. The primary motivation of the disciplinary authorities is to protect the client. We need to understand that critical difference so that when we use these new technologies we could craft our own best practices after proper consideration of the dangers.

ABA “Likes” Facebook for Judges

Recently the ABA issued Formal Opinion 462 that gave the okay for judges to participate in social media.  In the words of the opinion’s opening summary,

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.”

The opinion isn’t binding on any states– it’s just the ABA’s opinion, but it’s indicative of a trend.  Social media can not be ignored…by anyone.

Lazy Password = Ethics Problem

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Self-Reporting Our Misconduct…the future?

Every once in a while we see a change in a state’s ethics code that might be an indication of things to come.  Earlier this year I think we saw that in Pennsylvania.

Pennsylvania amended the commentary to Rule 8.3 and expanded the requirement for reporting misconduct.  Now it’s not enough for us to report misconduct of other lawyers, we may also have to report ourselves.

The new section, Rule 8.3 comment (8), stated that an attorney convicted of a crime must report him/herself with 20 days of conviction. The comment states that, “the term ”crime” means an offense that is punishable by imprisonment in the jurisdiction of conviction, whether or not a sentence of imprisonment is actually imposed.”

The idea of being required to self-report things that we do wrong doesn’t seem objectionable when we’re talking about crimes, but where do we draw the line?  It’s going to be interesting to see if any states expand this idea.

If this guy were a lawyer, he’d have a problem…

I’ve often mentioned an interesting quirk in Rule 7.1– that’s the rule in the advertising section of the code that prohibits false or misleading statements about ourselves or our services.  Most people think that the clause only applies to ads, since it’s located around all of the other advertising rules.  However, it’s much broader.

Rule 7.1 prohibits false or misleading misrepresentations about ourselves or our services at any time and in any forum– that means whenever  we talk about ourselves.  Crime Writer RJ Ellroy would have a problem with this rule, if he were a lawyer.

It appears that Mr. Ellroy posted bogus reviews of his own novel on Amazon.com (see the article here).  My gut tells me that if a lawyer did that, they’d have a problem.  Imagine if a lawyer found their own listing online somewhere and planted fake testimonials– they’d most likely be making the type of misleading statement that violates Rule 7.1.

That’s a good example of the wide breadth of the rule. RJ Ellroy will likely be subject to public scorn, but if he were a lawyer he’d also be subject to discipline.

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Confidentiality: The ABA’s Changes

Last week the ABA made an important change to Rule 1.6, “Confidentiality.”  On its face, the change doesn’t seem like much—the drafters added a new section 1.6(c) which states, “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

That doesn’t seem like such a big deal, especially since the sentiment already existed in the commentary to the rules.  The need to safeguard our clients’ information was already stated in a slightly different form in Comment [16] to Rule 1.6.  And why shouldn’t it be—isn’t it an obvious point?  So why would the drafters simply take language that already existed in the commentary, tweak it, and move it to the rule itself?  It’s about addressing technology head on.

Lawyers are increasingly using new technologies like cloud storage sites and software as a service (SaaS) to store client data.  While helpful, the obvious risk of using these sites is that there is a potential for disclosing information.  Plus, this isn’t just about could-computing or websites, it’s about using any new technology, whether it be mobile storage devices, unencrypted wireless routers, iPads, etc.  The more we use these technologies, there more opportunities we have to reveal client information.  The drafters must have believed that the more frequent use of these types of technologies demands an increased emphasis on the need to protect client information.  Thus, by expanding the language and moving it to the actual text of the rule, the drafters are telling the bar that this issue is no longer just commentary, or “secondary guidance.” Now it’s a primary duty.

So now we know that before we use new technologies we have a duty to make reasonable efforts to prevent the release of information relating to the client.  But what does that mean? How do you know if the efforts you used were actually “reasonable?”  More on that in the next post…

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ABA Adopts New Ethics Rules!

A few days ago the ABA adopted amendments to the Model Rules of Professional Conduct. Many of these amendments were a response to issues regarding social media, but not entirely.  Over the next week I’ll be reviewing the rules and blogging about what the changes mean.

You can find all of the new rules here:

http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120808_house_action_compilation_redline_105a-f.authcheckdam.pdf

 

IMPORTANT NOTE:  Remember, these rule changes only amend the ABA’s Model Code.  Each individual state must now determine which, if any, amendments they want to include in their own codes. That process will obviously take some time, given the requirement for debate, public comment, etc.

 

 

 

 

 

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the punctuation marks funeral

i dont know when it happened exactly. clearly it coincided with the rise of texting but i cant tell u exactly when that wuz.  it doesnt really matter…the bottom line is that punctuation is dead. so are capitals. we coulda had a joint funeral.   i feel bad for the key on my keyboard with a comma on it.  its not going to get shiny from overuse like the i u r or c.  o well.