Category Archives: Attorney Ethics & Social Media

You, personally, gotta know your stuff

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I recently spoke at a law firm about the ethical implications when lawyers use technology.  I was talking about lawyers who choose to store client information in the cloud and  I explained how the lawyer needs to understand the technology associated with the cloud storage site that the lawyer may use.  I explained that Rule 1.1 (Competence) demands that we, personally, understand those details.  It was exactly then that a very irate lawyer shot up his hand and barked at me, “I’ll just bring my IT guy with me and point to him.  I’ll tell that committee to talk to HIM about it, then I’ll leave.”  While I was itching to answer in an obnoxiously New Jersey manner, I noticed that the angry lawyer was the only man in the room who happened to be older, white haired, male, and wearing a suit.  He had “managing partner” written all over him.  It was at that point that I figured I’d soften the edge on my reply, lest I not be invited back to the firm.  I (ever so gently) explained that it was the lawyer’s individual responsibility to understand the technology and that we would not be permitted to simply bring our support staff to a grievance and wash our hands of the situation.

 

I thought of this today because I was reading the Alaska Bar Association Ethics Opinion No. 2014-3.  That opinion addressed the ethics of using cloud services, and there is one sentence in particular that stood out.  The opinion reminds us that, “Because the lawyer’s duties of confidentiality and competence are ongoing and not delegable, a lawyer must take reasonable steps to protect client information when storing data in the cloud.” Op. 2014-3 at 1-2. The key words, of course, are “ongoing and not delegable.”

 

Our duty of competence is a personal requirement.  Sure, we can employ support staff to assist us with our practice, but the ultimate responsibility to maintain our competence lies with us.  That lawyers would not have been able to simply bring his IT guy to the grievance and throw him to the disciplinary wolves.  In fact, if he tried to do that I think he might get bit himself.
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There really IS a new tech duty

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For ages, lawyers have been able to stick their head in the sand about technology. At the very least, we’ve been able to push the problems to the another part of the sandbox. If the copier jammed, we’d shout for our secretary and leave it to her to fix (and in was usually a “her” in those days). If our computer locked up, we’d shout for the IT guy and we’d expect it to be up and running when we were back from lunch (and it was usually a “him” in those days). But technologies today are different and they are causing new duties to be created for lawyers.

For instance, the disciplinary authorities know that technology like cloud storage is prevalent these days. They also understand that the dangers inherent in using those new technologies are severe. As a result, a new duty applies to lawyers who use the cloud.

For some time I’ve been shouting that there exists a duty to understand technology. I’m not talking about understanding the law regarding technology. I mean a duty to understand the underlying technology itself. Granted, one might argue that there isn’t a separate duty in that regard and that it’s really just a subset of the duty of competence (Rule 1.1). To that I reply, “toe-may-to, toe-mah-to.” I don’t care how it fits into the rules, the bottom line is that it’s there and a recent ethics opinion in Alaska proves it’s existence. See Alaska Bar Association Ethics Opinion No. 2014-3.

On page 3, the authors state, “A lawyer engaged in cloud computing must have a basic understanding of the technology used and must keep abreast of changes in technology…Technological changes, the regulatory framework, and privacy laws are all matters requiring the lawyer’s attention.”

Thus, if you want to use technology, you must understand that technology. YOU must understand it. Not just your secretary or the IT guy/gal. You, individually, must understand the underlying technology.

For the ethics geeks like me, you aren’t surprised that this text is in the Alaska opinion. Heck, we’ve seen this in several opinions recently. But there are a bunch of you out there who didn’t believe me when I told you this at some of my CLE seminars. So, I guess what I’m really saying in this post is….“Told you so.”

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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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Dear Law Students: Clean it Up

I’ve been speaking with a bunch of law students lately and I thought I’d share the unsolicited advice that I’ve been dispensing. It’s never too early to clean up your Facebook page.

We all know the types of photos being posted on social media.  Sure, as we get older we get a little tamer, but our lives are littered with bad decisions that were memorialized on social media.  While we can’t erase our past entirely, we can make an effort to clean things up a bit.  The reasons are clear.

First, I hope we all know that checking social media pages prior to making employment decisions is a way of life for employers of all kinds.  And we should all realize that we can’t hide behind fake names– our prospective employers know that many students open Facebook pages using alternate names and they’re starting to ask questions.

Also, keep in mind that searching our Facebook pages is being institutionalized.  In 2009 the Florida Board of Bar Examiners adopted a policy of searching applicants’ personal social networking websites in select situations, such as cases where there are significant candor concerns. Don’t be surprised if other states adopt this policy as well.

Be careful– there may be times where cleaning up our Facebook pages is improper.  For instance, I don’t think it would ethically proper to change your website in response to an inquiry about your social media page.  On the other hand, I don’t think there would be anything wrong with proactively cleaning up your page, in the absence of any inquiry.

Given the times we live in, it appears that it would be wise for law students to give consideration to cleaning things up, like, yesterday.

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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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Any Hope for a Uniform Ethics Code? Nope.

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!

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