A recent opinion of out New York says that our LinkedIn profile may be considered an advertisement. Maybe more importantly, the opinion imposes a duty upon lawyers to periodically review their social media profile. I call it the “I told you so” opinion because I’ve been telling this to lawyers for some time in my ethics CLE programs.
Sure, the opinion is limited- it’s out of one particular state and it’s only advisory. But the rationale is solid and I could envision it being adopted in other jurisdictions.
Furthermore, the practical implications could be significant. For instance, any misleading statements on your profile would now be governed by the content restrictions contained in Rule 7.1; if you’re in a jurisdiction where disclaimers are require on ads, you may need to insert a disclaimer into your LinkedIn profile; maybe the concept applies to all social media sites that you use for professional purposes…and the list of concerns could go on. To get all of the details, download the full NYCLA Opinion 748 here.
I cover this concept in my ethics CLE program, “Tech, Tock, Tech, Tock: Social media and the countdown to your ethical demise.” Email me at email@example.com if you want some more information.
Here’s my latest Threat Assessment- those are my short warnings about key ethics dangers that both lawyers and the PD professionals who care about them, need to know.
Today: Technology scare (what a shocker). Our duty to supervise may have been drastically expanded in a recent opinion out of California. Specifically, the California Bar’s Standing Committee on Professional Responsibility and Conduct, Formal Opinion Np. 2015-193.
The opinion presents a hypo about a lawyer who messed up. He didn’t understand the technicalities of e-discovery, didn’t seek help from a professional with knowledge, and he let his adversary conduct an unsupervised e-discovery review of the client’s files. Result: disaster. There were allegations of withholding/obstructing discovery and a major leak of proprietary/confidential information to a major competitor. The opinion holds that the lawyer should have known better.
POINT 1 of 2: Competence is being expanded
The opinion states:
“An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law.
* * *
Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”).”
What we need to know: Certain technologies that have so integrated themselves into the practice that our duty of competence demands that we understand them. We can’t just rely on our “people” to know about it. We need to, individually, understand the systems.
What we need to know: We need to understand the underlying technology, not just the “law” about that technology.
POINT 2 of 2: Our duty to supervise is being expanded drastically.
The opinion also stated:
“The duty of competence…includes the duty to supervise the work of subordinate attorneys and non- attorney employees or agents…This duty to supervise can extend to outside vendors or contractors, and even to the client itself.”
What we need to know: Our duty to supervise doesn’t just include the lawyers and non-lawyers in our office. It is also includes vendors and contractors. But the big extension is that it might also include supervising the client itself. That is a change- we are familiar with the need to “advise” and “guide” a client. Now we may also be required to “supervise” the client as well. Does that mean watching their IT people? It depends, but this opinion basically says yes, sometimes.
Find more information like this in my live program: Tech Tock, Tech Tock: Social Media and the Countdown to Your Ethical Demise. See my course list here.
There are a ton of obvious ethics violations that lawyers might commit when using social media, but few people consider whether their posts violate the rule on Trial Publicity. Did the lawyer’s internet search rise to the level of “participating…in the investigation” of a matter?” Was that errant tweet an “extrajudicial statement” that triggers the rule? You need to know this usual potential violation.
Here’s the rule, with the key phrases I’ll discuss in bold.
Rule 3.6. Trial publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
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  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…
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.
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.
Dear naive people who dream of one day living in a world where every lawyer lives under a single ethics code. Here’s yet another sign that you’re never going to experience the nirvana you desire.
A bit much? Of course, but that’s how I roll.
Last week the ABA’s Commission on Ethics 20/20 sent a report to the group’s House of Delegates in which they recommended various changes to the Model Rules of Professional Conduct (I’ll be blogging about those details plenty, so check back). In the Introduction and Overview, they made it clear that this arm of the ABA did not intend to advocate a uniform, country-wide ethics code. They said,
“Some commentators have suggested that state-based judicial regulation of the profession is unworkable in the modern environment.The Commission concluded, as did the [Multi-Jurisdictional Practice] Commission before it, that those advocating for a departure from state-based judicial regulation of the legal profession in the U.S. had not made their case and, indeed, that there remain strong reasons to maintain our state-based system of judicial regulation” (footnotes omitted).
Get used to it, campers…state-to-state nuances are here to stay. Oh, be honest…you knew it would be that way!