Here’s the first episode of my new podcast. Plenty more information and explanation to follow. For now I want to release this introduction and spend some time making sure I get all the technical issues worked out. More to come soon!!
Podcast: Play in new window | Download
Just in case you’re interested, I was asked to guest post on WestLegalEd Center’s blog called “Beyond the Bar.” I talk about my belief that attorney’s must maintain a “Principled Practice.” You can find it here
Sometimes finding free Wi-Fi feels like finding buried treasure. A laptop user who finds free Wi-Fi in a coffee shop is comparable to a deep sea diver who finds a tank of oxygen. However there is a downside– many of those networks are unsecured and vulnerable to being compromised. That poses a problem for attorneys because our client’s confidential information may be exposed if we use an unsecured wireless network to perform work on their behalf. The question then becomes, are lawyers permitted to use unsecured wireless networks to do client work?
The issue of course, is confidentiality because an unsecured wireless network is easily accessed by hackers. The concept of competence is also in question because comments [16] and [17] of Rule 1.1 (“Competence”) remind lawyers that we must, “act competently to safeguard information…against …unauthorized disclosure” and that when transmitting a communication we must, “take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” California tackled the question directly in Formal Opinion No. 2010-179.
The Committee said that lawyers should not use unsecured wireless connections when working on client matters. The opinion states,
“With regard to the use of a public wireless connection, the Committee believes that, due to the lack of security features provided in most public wireless access locations, Attorney risks violating his duties of confidentiality and competence in using the wireless connection at the coffee shop to work on Client’s matter unless he takes appropriate precautions, such as using a combination of file encryption, encryption of wireless transmissions and a personal firewall. [FN omitted] Depending on the sensitivity of the matter, Attorney may need to avoid using the public wireless connection entirely or notify Client of possible risks attendant to his use of the public wireless connection, including potential disclosure of confidential information and possible waiver of attorney-client privilege or work product protections, and seek her informed consent to do so. [FN omitted]
Finally, if Attorney’s personal wireless system has been configured with appropriate security features[FN omitted] the Committee does not believe that Attorney would violate his duties of confidentiality and competence by working on Client’s matter at home. Otherwise, Attorney may need to notify Client of the risks and seek her informed consent, as with the public wireless connection.”
The Takeaway: If your jurisdiction agrees with California, you can’t use wireless networks for client matters (unless you take the recommended precautions, none of which are practical/realistic). Even if your state hasn’t stated that they agree with California it’s probably a good idea to abide by their direction anyway. After all, the only way you’ll know your state’s position for sure is when the Bar finally acts, either because they were asked to opine on the subject or they are disciplining someone. The question I ask myself is…do I want to be that person who “makes the law” by being the first person to be disciplined?
I love this opinion for another reason—the opinion listed 6 factors that an attorney should consider when evaluating new technologies. Those factors could be helpful to attorneys everywhere when evaluating whether they could use new systems in the future. Here are the factors (but I encourage you to read the opinion because they’re explained more fully and it makes better sense after you read that text).
1- An attorney’s ability to assess the level of security afforded by the technology, including (i) how the technology differs from other media use (ii) whether reasonable restrictions may be taken when using the technology to increase the level of security and (iii) Limitations on who is permitted to monitor the use of the technology to what extend and on what grounds.
2- Legal ramifications to third parties of intercepting the information
3- The degree of sensitivity of the information
4- The possible impact on the client of an inadvertent disclosure
5- The urgency of the situation
6- Client instructions and circumstances
The Takeaway: As time goes by, lawyers will find themselves wondering whether they can ethically use new technologies and California’s Opinion will help provide that answer. The opinion provides these “technology permissibility factors” (my term) that a lawyer could use to evaluate the permissibility of those new technologies.
Granted, the California Opinion may not be binding in your jurisdiction, but it wouldn’t be such a bad idea to consider the factors when you find yourself in a pickle in the absence of a direct ruling from your home jurisdiction. Consider how a disciplinary board would react if you were faced with a new technology, but before using it you evaluated the California “technology permissibility factors” and wrote a memo to the file detailing your analysis. I would expect that a disciplinary board would look favorably upon you in a hearing situation.
Apr 26
Just passing on some good advice– I recently left my 
flash drive in a computer at the law library. Fortunately, I stuck a label on it with my email address and cell phone number. A person found the flash drive and texted me to let me know they found it– whew! So the moral of the story…don’t be an idiot like me and leave your drive behind. But if you do, make sure you have a label stuck on it with your contact info!
I’m concerned that lawyers who use social media could violate the rule that prohibits practicing in a jurisdiction where you’re not licensed. It may seem far fetched, but things genuinely get murky when you realize how easy it is to establish a prohibited “systematic and continuous presence” in a foreign jurisdiction when using social media. Recently I commented on an ABA Issues Paper on the subject and my memo sets forth the details of my concern. It’s reproduced here—>
April 4, 2011 Memo to the ABA Ethics 20/20 Commission:
Please accept this Memorandum as my comment to the Ethics 20/20 Commission’s Issues Paper on Multi-Jurisdictional Practice. My comment pertains to Rule 5.5(b)(1), but does not apply to the issue of multi-jurisdictional practice as much as it applies to social media. While my comment might appear to be off topic, I believe it would be prudent to review the issue since the Commission appears to be reviewing Rule 5.5 in its entirety.
Rule 5.5(b)(1), and its commentary states,
(b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or…
Comment [4]: Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).
The issue I am raising to the 20/20 Commission is: Whether a lawyer could be said to have established some “other systematic and continuous presence” in jurisdiction where she is not licensed by engaging in social media and other web-based activity?
Rule 5.5(b)(1) certainly prohibits a lawyer from establishing a physical presence in a jurisdiction where she is not licensed to practice law. However, that concept could be extended beyond physical limitations, as discussed in the ABA commentary. Some jurisdictions are even more specific and have acknowledged that a lawyer’s advertising activity could cause an attorney to run afoul of the rule. I understand that Ohio did just that when it noted in its rules that, “Comment [4] is modified to warn lawyers that advertising or solicitation of Ohio residents may be considered a ‘systematic and continuous’ presence, as that term is used in division (b).” My question is, why couldn’t the next extension involve social media and, is that what the Commission intends?
Take, for example, a lawyer who lives in New Jersey, but practices health care law. As a result, he becomes a consistent commentator on the Massachusetts health care system. Perhaps he comments on blog posts from Massachusetts-based newspapers; consistently retweets messages from that State’s Bar Associations or their Health Care Law Committee; consistently posts comments on a Facebook Fan Page for a Massachusetts-based law firm that practices health care law; places certain meta-data into his web products that attract searches seeking information on “Massachusetts health care law” or similar keywords; the variations are endless.
A logical extension of Rule 5.5(b)(1) supports the argument that the lawyer, through his targeted and geographically-concentrated postings, has violated the Rule because he established a systematic and continuous “social media presence” in a jurisdiction where he is not licensed. Rule 5.5, however, does not address the issue directly. My concern is that insofar as the Rule and its commentary remain silent on the issue, a large amount of uncertainty continues to exist. Thus, my question to the 20/20 Commission is the following:
Does the Commission agree that the foregoing argument is a reasonable interpretation of Rule 5.5(b)(1)? If so, does the Commission intend to allow rule 5.5(b)(1) to be extended in that manner? I ask that the commentary to Rule 5.5 be amended to reflect the Commission’s position.
The ABA has released an issues paper concerning multi-jurisdictional practice. I haven’t read it yet, but the link is here if you want to check it out. I’ll be reading it over the next few days. A post will follow shortly.
On March 1st, the General Assembly suspended Libya from the UN Human Rights Council. This move, of course, begs the question….how the heck did they get on the Human Rights Council to begin with?
For the past several weeks we’ve heard a collective outcry from the international community about the atrocities perpetrated by Qadaffi. Are we to believe that this all just began? Should we believe that two months ago Mr. Qadaffi was petting bunny rabbits and helping old ladies cross the street, but in the last month he turned into a monster? Of course not.
The fact that Libya was elected to the council to begin with is a sham. It is just another example of the hypocrisy of the United Nations. And you don’t have to simply take my word for it– take a look at what the New York Times said here.
Mar 28
I feel that I need to make a short statement before I embark upon my first substantive post on foreign affairs. Maybe the word, “disclaimer” is better…
Politically, I consider myself to be a moderate. For the sake of full disclosure, however, I admit that I lean toward the right. I say that because I want it to be clear that I am not trying to hide my stripes. However, I am not interested in engaging in an assault against a politician simply because of the party label that’s worn by that person. Rather, my intention is to set forth my personal opinion and criticize (or praise) our country’s policy makers, regardless of the party affiliation of any such person. I have a belief about how U.S. Foreign Policy should be shaped and I will stick to that belief regardless of who is in the White House or leading Congress. My feelings will certainly become clear throughout my posts, but for the moment, I will say the following:
I believe that the United States has both the ability and responsibility to be a leader among nations. I believe that our foreign policy should always be guided by the principle that we must take the actions that are in our country’s best interests first, but while doing so we should consider the impact that those actions will have upon the rest of the world. We certainly have a responsibility to do our best to promote humanitarian interests throughout the world, but we are not the world’s policeman. That humanitarian effort must be exercised as part of a comprehensive policy that is, at its core, designed to advance American interests. If I could put that concept into one word I would call it, “selfishlessness.”
I encourage your comments, but hopefully we can keep the discussion to policy, not politics.
Social media and smart phones have unleashed a flood of new advertising possibilities. Unfortunately, each have a unique set of ethical concerns.
Many of us have seen ads on Facebook to the right side of the screen listed under the heading, “Sponsored.” They’re short ads with some teaser text that tries to entice you to click through to get more information. That’s the same type of ad being used on the popular Pandora radio smart phone app (and its competitors). Pandora is an internet radio station that lets you customize the music you hear. The popular free version of Pandora is subsidized by short teaser ads that are displayed on your phone. Usually those ads contain little more than a photo and a marketing tag line that entice you to click through, just like the Facebook ad. The problem is that both the Facebook and Pandora ads potentially violate Rule 7.2.
RPC 7.2(c) states that, “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.” Obviously, the Facebook and Pandora “teaser” style ads don’t include that mandatory information. Sure, you might be able to click through the ad and find yourself on a landing page that has the required information, but it’s not there on the face of the ad and, as a result, appears to violate the rule.
The other type of new advertising technique that may be off limits to lawyers is the popular Groupon application. Groupon negotiates discounts with businesses and then offers the deal to thousands of subscribers in a free daily email. Groupon makes money by getting paid a percentage of what the advertiser earns. The problem is that if the advertiser is a law firm, that arrangement might constitute improper fee splitting per RPC 5.4(a).
In fact, a proposed (but unpublished) North Carolina ethics opinion states that the Groupon arrangement is not permitted, but the question has been referred to a subcommittee for further review. You can read about the details a bit more in an ABA Journal article here.
It’s the same old story. This wonderful technology brings both new opportunities and new pitfalls as well.