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  and  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.
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 : 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  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.
If I told you that it was easy to get clients through social networking you’d be excited. But what if I told you that it was so easy, you could form lawyer-client relationships without even realizing it? Not so appealing now, huh? The reality is that it’s dangerously easy to establish L/C relationships through our interaction in social networking and the prudent attorney needs to be aware of this pitfall.
Consider the “law school” definition of when a L/C relationship is created: If a person seeks advice, and you give advice, in circumstances where a reasonable person would rely upon that advice, a L/C relationship could be created. There’s that reasonable person again– you seem him all over the ethics rules….the reasonable man gets around more than Tiger Woods! OH!Bad jokes aside, think about that definition and consider these two situations that may (or may not have) happened to me– of course, I’ll never admit whether they actually occurred for fear of being smacked upside the head with the ethics stick…In each of these cases we have a person who sought advice, I gave advice and there was a situation where it was reasonable for them to rely on that advice. In both instances you could say, “Congratulations Mr. Teicher, you’ve got a brand new baby client!”
1- I provided a long, detailed answer to a question on LinkedIn in a not-so-unusual attempt at self-promotion. After I posted the answer, the questioner sent me a follow up note to discuss things and I responded privately…
2- An high school friend asked me a “quick legal question” on Facebook. They didn’t quite understand my answer so I had a back-and-forth with them until they got it….
It’s up to you to watch what you say and control how you say it. Avoid creating L/C relationships in SN by responding to online advice-seekers the same way you would if they were standing right in front of you–try to be moderately helpful by talking about their issue vaguely and then artfully avoid giving any actual “advice.” Provide generic-style information that will intrigue the person and encourage them to engage you formally. Just to be safe, it’s probably a good idea to throw in a disclaimer-style statement that tells them that they shouldn’t rely on what you’re saying.
Don’t smirk like that– you know exactly what I mean– you’ve been dealing with this in the face-to-face world for your entire career. That’s the trick– talk to a SN advice seeker the same way you’d talk to them if you met them in person.
Welcome to my new blog about the dangers that exist in the hottest trends in the law. I’ll be talking almost exclusively about social networking for quite some time.
I’m not going to try to convince lawyers to get involved in social networking– that’s not what this is about. The only thing I’ll say about that is that a smart attorney will be involved in social networking, if only because you need to stay on top of the ever-changing technology– you don’t want to find yourself a few years from now huddled over your IBM Selectronic typewriter, clutching the receiver of your rotary telephone!
This blog is going to be about the pitfalls that lawyers face when using social networking and how they can be avoided. Hopefully I can point out where the landmines are located and provide a little direction about how to avoid setting them off. Plus, I’ll be blogging about the progress made by the ABA’s 20/20 commission as they try to update the ethics rules to accommodate this incredible new medium.
BTW, this blog will be a series of short posts, because I don’t have the patience to read long entries, no less write them. There’s a lot of info out there and I don’t want you to become water-blogged.
Here’s a little nugget I’ll throw out, just to start things off…
It’s easy for your client to blow the attorney client privilege by using social networking, so watch out! Remember, the attorney-client privilege is held by the client, but they can waive it. Most clients don’t realize that they can waive that privilege accidentally and that it can happen in social networking.
Think about how many times a client posts a blog entry where they rant about how upset they are when something unfortunate happens in the course of a lawsuit. They may also send out an angry Tweet, or comment about it on their Facebook page. That posting may contain information that the two of you have discussed like trial strategy and before they realize it they’ve blown the privilege. There’s gonna be trouble if your adversary is monitoring your client’s page throughout the litigation (which happens quite often these days and will be the subject of a blog post of it’s own).
My recommendation….tell your clients to keep their big laptops shut! They probably don’t understand the privilege and they need to be told that they should never blog about ongoing matters, or post comments on FB or other platforms where they tell the details about your conversations.