Tag Archives: Social Media

Decent Synopsis of Social Media Ethics Concerns

old-tweet-social-mediaA recent opinion out of the DC Bar provides a decent list of the issues you need to worry about when using social media.  Here are the only two criticisms I have — and I admit that they are nit-picky criticisms.

First– it’s not exhaustive.  There are a bunch of other issues that aren’t addressed here, but they get the biggies.

Second– this opinion could have been written five years ago. At least.

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The Ethical Danger of the Microsoft/LinkedIn Merger

This week it was announced that Microsoft is buying LinkedIn.  There are some hidden attorney ethics implications about which we all need to be aware.

A review of the recent news articles announcing the acquisition reveals that a key motivating factor in Microsoft’s purchase of LinkedIn was access to LinkedIn’s data.  Of course, sharing data is nothing new.  But when companies improve their ability to share our data across various platforms, my ears perk up. Not just because it’s creepy or because of obvious privacy implications. The type of data sharing they’re contemplating in the Microsoft/LinkedIn combination makes me worry about confidentiality (and other) issues.

Why they are merging:

According to the Wall Street Journal, Microsoft sees a critical synergy with LinkedIn:

“LinkedIn’s users are, arguably, Microsoft’s core demographic. They also offer Microsoft something it has long sought but never had—a network with which users identify. Microsoft needs to persuade LinkedIn users to adopt that identity, and use it across as many Microsoft products as possible.

Access to those users, as well as the enormous amounts of data they throw off, could yield insights and products within Microsoft that allow it to monetize its investment in LinkedIn in ways that the professional networking site might not be able to. [Microsoft CEO] Mr. Nadella already has mentioned a few of these, including going into a sales meeting armed with the bios of participants, and getting a feed of potential experts from LinkedIn whenever Office notices you’re working on a relevant task.“

In other words, Microsoft wants to have your Outlook and other Microsoft software products speak to your LinkedIn profile.  The intersection of that data is valuable — various sellers of products and services would be willing to pay for it.

It appears that Microsoft wants to be able to read through the work we do on their products like Word, review our upcoming appointments in our Outlook calendar, search for keywords in our emails, and then find connections with people with our LinkedIn connections.  That’s what they are searching for — connections they could monetize.

For instance, let’s say accountant X has an Outlook Calendar appointment which sets a meeting with “Charles McKenna of Account-Soft Corp.” Microsoft could then search LinkedIn and it would learn that McKenna works for a company that sells workflow management software.  Well, now Microsoft knows the accountant is in the market for workflow management software….and they could sell that knowledge to other software companies who would then direct solicitations in the accountant’s direction.  That’s an annoyance for an accountant, but a potential ethics disaster if he/she were a lawyer.

Basic issue, Confidentiality:

If Microsoft scours our Word documents and emails, then there could be Rule 1.6 confidentiality issues.  That’s so obvious that we don’t need to spend time talking about it now.  I think the more unusual issues come from the Calendar function…

If they leverage the data in our Calendar, it could reveal our client relationships:

The substance of what we learn from the client is confidential, but so is the very existence of the lawyer-client relationship.  Will the integration of these platforms make it easier for people to figure out who we represent?

Think about how much information Microsoft could piece together from our Calendar.  They might see a potential client introduction (which lists Pete Smith as present), a court appearance (which lists Pete Smith as present), and a meeting for settlement purposes (which lists Pete Smith as present). It’s not going to be too tough for the Microsoft bots to figure out that Pete Smith is your client.

If they leverage data in our Calendar, it could reveal key substantive information that could harm the client:

If Microsoft looks at our Calendar they can see that we’re heading to a particular locale.  They might then cross reference our LinkedIn connections and send a message to one of them that says something like, “Your connection Bruce Kramer is going to Chicago next week.  Why don’t you look him up?”

That heads-up might give someone the incentive to look into our movements a bit more…and who knows what they could find.  What if that info was given to a real estate agent that we know in Chicago…and maybe we are representing a successful land owner…and we’re clandestinely scouting a real estate purchase because we don’t want people to figure out that we’re there on behalf of our deep-pocketed client…because if they know, the purchaser will run up the price.  That LinkedIn message tipped off the real estate agent and it could cost the client a lot of money.

If they leverage data in our Calendar, it could end up revealing a misrepresentation:

Imagine that Client A asks you to accompany them to a meeting in Los Angeles. You tell her that you can’t go because you’ll be on vacation on the East Coast. That’s not true, however. The truth is that you’ve already scheduled a meeting with a potentially new client in Los Angeles. You didn’t want Client A to know that you’d be in town because you didn’t want to have to shuffle between clients- it would just be too much work.  You could have told Client A that you’d be in town but you didn’t have time to meet her, but you thought she’d be insulted.  It was just easier to say you’re far away and be done with it.

Later, Client A gets a LinkedIn message that says, “Your Connection Mary Smith is going to be in Los Angeles next weekend…send her a message and try to link up!”  Do you know what you are now? Busted. And not only do you have egg on your face, but you may also have committed an ethical violation.

Is the white lie that you told your client going to be considered a misrepresentation or deception per Rule 8.4(c)? That rule states: “It is professional misconduct for a lawyer to (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…”

I know what you’re thinking…it was a half-truth.  No harm no foul. Well, I searched the ethics code, and I didn’t find the term “white lie” or “half-truth” anywhere in the code.  You should also note that Rule 8.4(c) does not require that the misrepresentation be “material.”  It doesn’t allow you to lie about inconsequential things and there’s no modifying language- it just says that you can’t lie or deceive.

These are just a few issues.  Some of these are clear ethics concerns, others are more akin to PR nightmares.  Are they so terrible that we all need to get off LinkedIn right away?  That might be a bit premature.  After all, they only just announced the merging of the platforms- they haven’t actually done anything yet.  I don’t know what dangers will actually be realized, or whether any dangers will be realized at all.  What I do know is that part of being a responsible attorney in this technological age is to be diligent in thinking about these issues.  As lawyers practicing in an ever-changing technological environment, we need to be aware of the potential problems.  Keep your eye on the news and stay abreast about the details regarding the integration of these two platforms.  Then, if you determine that you need to act, do so.  That way we are “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Comment [8], Rule 1.1

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SWEET…a Win for the Good Guys!

Young man giving thumbs upThis is the first case I’ve seen where someone sued another person for making a false claim on the internet…and won.  Here a lawyer represented someone in their divorce.  The client was unhappy with the lawyer and went on an online rant.  The problem was that the rant was full of lies, so the lawyer sued for defamation.  The lawyer won at trial and on appeal…she got $350,000 in damages.  Yikes!  If you want to read the decision, you could find it here.

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Your LinkedIn Profile Is Probably Advertising

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.

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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 stuart.teicher@icloud.com if you want some more information.

 

 

 

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Lawyers may be required to supervise the client?

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.

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A Violation You Didn’t See Coming

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.

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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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Groupon use…what a mess.

Did you know that Alabama lawyers can’t advertise with Groupon?  It’s true– there’s even an ethics opinion on it.South Carolina lawyers may be able to use it, but they have to use a truckload of caution– so says this opinion.

One thing that’s apparent is that when we’re facing ethical issues surrounding new technology there’s an increased need for us to do our own interpreting of the ethics rules.  Rarely do jurisdictions have an opinion on point, so we have to review other states’ opinions and draw our own conclusions about how to behave.  Unfortunately, those opinions often vary (like with the Groupon issue) so we’re forced to be our own individual ethics boards.

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Wireless Networks? um…NO. Future Technologies? Maybe.

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.

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