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California Bar on the ethics of blogging

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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California Bar on the ethics of blogging

Blogs have been around for over a decade now and lawyers have been blogging from the very start. That’s why it’s so surprising that many state ethics committees have yet to weigh in on the ethical issues lawyers encounter when blogging.

For example, the issue of whether a lawyer blog constitutes attorney advertising had not been addressed in California until Formal Opinion 2016-196 was recently issued in final. At issue in that opinion was whether and under what circumstances blogging by an attorney constituted a “communication,” and was thus subject to attorney advertising regulations.

In this opinion, the Standing Committee on Professional Responsibility and Conduct of the State Bar of California opined that most law blogs did not constitute content subject to attorney advertising rules, with a few caveats.

First, the Committee concluded that, regardless of the nature of the content of the blog posts, all lawyer blogs that were integrated within a law firm’s professional website necessarily constituted lawyer advertising and were thus subject to attorney advertising regulations just as the firm’s website would be. It reasoned that “(a)s part of a larger communication (the professional website) which concerns the firm’s availability for professional employment, the blog will be subject to the same requirements and restrictions as the website.”

I find this conclusion to be somewhat surprising and to the best of my recollection, it’s the first time I’ve seen this distinction made. In my mind, it’s a bit of a jump to conclude that blog posts that are otherwise educational and not intended to overtly advertise a lawyer’s services are necessarily “tainted “ and thus constitute advertising simply by virtue of the blog being embedded on the law firm’s website. The Committee's rationale - that because the website itself related to the firm’s availability for professional employment, this intent was imputed to the blog regardless of the content of the blog - does not square with its conclusion, discussed below, regarding stand-alone blogs.

Specifically, the Committee concluded that a stand-alone lawyer blog focused “on law‐related issues or developments within his or her practice area (were) not a ‘communication’ subject to the rules regulating attorney advertising unless it invite(d) the reader to contact the
attorney regarding the reader’s personal legal case, or otherwise expresses the attorney’s availability for professional employment.” The Committee clarified that identifying the attorney as the author of a post on the blog, where the reference to the attorney’s name included a hyperlink to the attorney’s law firm website, did not evince an intent to show that the lawyer was available for professional employment. As such, attorney advertising regulations were not applicable.

I disagree with the premise that a blog devoted to educational topics that is embedded on a law firm’s website is somehow more promotional than a blog devoted to educational topics that includes a link to the lawyer’s website in the content of each blog post. In both cases, the lawyer is providing non-promotional content in the substance of the blog post, while providing the reader with context regarding the lawyer’s necessary expertise to write about the issues discussed on the blog.

Also perplexing is a relevant topic noticeably missing from this discussion: any reference to the “About” page that is often embedded in most stand-alone blogs. This page often includes detailed information about the author(s) who write for the blog, including descriptions of their professional background along with links to their professional websites. In other words, it offers information quite similar to that found on a law firm website, and would thus warrant inclusion in the analysis of the issues addressed in this opinion.

So, as is often the case when I read ethics opinions about lawyers using social media and blogging, I find myself in disagreement with the assumptions underlying the analysis relating to the technology at issue. There seems to be a fundamental lack of understanding regarding the use of the medium at issue here, blogging. I find that perplexing in 2017. When it comes to newer technologies, such as Artificial Intelligence, the unfamiliarity with the concepts is forgivable, but blogging has been around for more than a decade. It’s downright puzzling that these concepts continue to seem so foreign to the Committees authoring opinions such as this one. I keep convincing myself that this will change over time, but, quite frankly, I’m beginning to lose hope.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


D.C. Bar on mining social media for evidence and more

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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D.C. Bar on mining social media for evidence and more

Last month I wrote about D.C. Bar Opinion 370, which addresses the ethics of lawyers using social media for marketing purposes, among other things. The D.C. Bar also simultaneously issued a separate opinion on a related matter: lawyers using social media in providing legal services.

In Opinion 371, the DC Bar Ethics Committee addressed a number of interesting issues including two of my favorite topics, the ethics of mining social media for evidence and using social media to research jurors.

At the outset, the Committee wisely acknowledged that lawyers who ignore technology do so at their peril: “(C)ompetent representation always requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to carry out the representation. Because of society's embrace of technology, a lawyer's ignorance or disregard of it, including social media, presents a risk of ethical misconduct.”

The Committee specifically addressed the obligation of lawyers to acquire knowledge about the workings of social media, opining that lawyers who do not understand social media are failing to provide adequate legal representation: “Because the practice of law involves use or potential use of social media in many ways, competent representation under Rule 1.1[3] requires a lawyer to understand how social media work and how they can be used to represent a client zealously and diligently[4] under Rule 1.3.[5] Recognizing the pervasive use of social media in modern society, lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances.”

Next the Committee turned to using social media to research information about parties to a litigation matter, where said data is not behind a privacy wall and is thus publicly available. The Committee agreed with the other ethics committees that have addressed this topic, concluding that it is ethically permissible to do so: “Lawyers can and do look at the public social media postings of their opponents, witnesses, and other relevant parties, and…may even have an ethical obligation to do so. Postings with privacy settings on client social media are subject to formal discovery and subpoenas.”

For parties to litigation who are represented by counsel, attempting to “friend” a party in order to access information behind a privacy wall constitutes impermissible communication. The Committee explained, “A lawyer's review of a represented person's public social media postings does not violate the Rule because no communication occurs. On the other hand, requesting access to information protected by privacy settings, such as making a ‘friend’ request to a represented person, does constitute a communication that is covered by the Rule.”

For unrepresented parties, information behind a privacy wall can be accessed. But in order to do so ethically, lawyers and their agents must provide identifying information when attempting to connect with that person on social media in order to view postings behind the privacy wall: “(I)n social media communication with unrepresented persons, lawyers should identify themselves, state that they are lawyers, and identify whom they represent and the matter.”

Next the Committee turned to researching jurors on social media and reached the same conclusion as other Committees that have addressed this topic, namely that lawyers may only review information about jurors that is publicly available and is not behind a privacy wall.

Of particular interest is the fact that the Committee sided with the rationale handed down by the American Bar Association’s Standing Committee on Ethics and Responsibility (in Opinion 466) and concluded that passive communications, like those that occur when LinkedIn notifies users that another person has viewed their profile, do not constitute impermissible communication with jurors: ”(S)ome social media networks automatically provide information to registered users or members about persons who access their information. In the Committee's view, such notification does not constitute a communication between the lawyer and the juror or prospective juror.” (Emphasis added). Notably the New York City Bar Committee on Professional Ethics opined otherwise in Formal Opinion 2012-2, as did the New York County Lawyers Association Ethics Committee in Formal Opinion 743.

The D.C. opinion also covered the obligations of lawyers when it comes to their client’s use of social media, along with the use of social media by judges, arbitrators, and more. So even if you don’t practice in D.C., it would be well worth your while to review the Committees’ analysis of these timely, and interesting, issues.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Search Warrant Issued For Amazon Echo Data

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Search Warrant Issued For Amazon Echo Data


Amazon Echo has been around for a few years now. But last week was the first time it was reported that data from one of these devices was sought by the prosecution in a murder investigation.

For those unfamiliar with Echo, it’s a stand-alone voice recognition device that is activated when a particular word is spoken (either “Alexa,” “Echo,” or “Amazon”) by the user. Until the activation word is used, Echo actively “listens” to what’s being said around it, but it is only when the trigger word is used that it begins to record the audio received. That information is then sent to Amazon’s cloud servers for processing so that the device can respond to the inquiry with an appropriate answer. The device stops recording once the question or request has been processed. The verbal inquiries are then transcribed and both the written and, presumably (but this has not been confirmed), audio versions of the request are saved on Amazon’s servers.

In this case, Arkansas investigators are seeking to obtain data from Amazon related to the use of an Echo device that was located in the home where a murder victim was found. The prosecution served a warrant on Amazon in late-2015 and then two others in 2016.

The prosecution’s various warrants requested all "audio recordings, transcribed records, text records and other data contained on the device” along with information “that the Echo device could have transmitted to (Amazon’s) servers.” According to the most recent search warrant affidavit, the police were able to obtain some information from the Echo device in question, but believe that Amazon’s response to the warrant would provide additional information that would aid in obtaining more information from the device itself and that information being stored on Amazon’s servers could prove relevant to the murder investigation.

Thus far, Amazon has not yet complied with the search warrants. Its official response has been that, as a matter of course, it will refuse to release customer information in the absence of a valid and binding legal demand properly served on and that it must not be either overbroad or otherwise inappropriate.

Much to do has been made about this warrant by journalists and pundits, with many opining that this case is proof in fact of the privacy implications presented by having such a device in one’s home or office. I would suggest that those making that claim don’t necessarily understand how the device works. Because it is designed to record and store data received only after the “wake” word is used, in the context of this case, it’s really no different than an Internet search engine such as Google (used in its default setting, where searches are stored).

The requests you make to Echo are much like search inquiries. The fact that Echo is actively “listening” does not make it inherently more invasive, since nothing is recorded until the trigger word is used, which then causes the device to record your input. That input is arguably similar to a search entered into Google, Westlaw or Lexis. Once you provide information to any of those services with the goal of obtaining a result, those third parties providers store your request on their severs. That data is then subject to any lawful requests from law enforcement authorities and those companies must then respond to warrant requests on a case-by-case basis, just as Amazon did here.

Certainly the Echo is a new and different type of technology and, as is the case with any new technology, it may present problematic issues in some contexts. But that does not mean that the Echo is necessarily invasive and problematic simply by virtue of its uniqueness, and the search warrant issued in this case is certainly not evidence of that claim. In the context of this case, the nature of the underlying data being sought is not unusual and any attempt to use this warrant request as a reason to condemn this technology on privacy grounds is unfounded and is yet one more example of a knee jerk reaction to technology.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Email Tracking: Is It Ethical For Lawyers?

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Email Tracking: Is It Ethical For Lawyers?

Lawyers have been using email for more than two decades now. Years ago, in the early 1990s, most jurisdictions did not permit lawyers to use email to communicate with clients. But in the mid-1990s, the tide shifted as email began to emerge as an essential communications tool for businesses. It was the ABA that first issued an ethics opinion green lighting the use of email for client communication, and other jurisdictions soon followed.

Since lawyers have been using email for so many years now, you’d think that all potential ethical issues relating to email would be resolved at this point, but like most technology, email is always evolving. While some lawyers continue to use email technology that is premise-based, others rely on web-based email. And for those lawyers, new tools are constantly being released that are designed to augment the functionality of web-based email. These tools can help lawyers to accomplish any number of goals, including encrypting their emails, streamlining their inbox, creating “to-dos” its using emails, “snoozing” emails for review at a later date, or tracking outgoing emails.

It’s the last function - tracking emails -that was at issue in an ethics opinion issued by the Alaska Bar Association Ethics Committee in October. At issue in Opinion 2016-1 was whether it “was ethically permissible for a lawyer to use a ‘web bug’ or other tracking device to track the location and use of emails and documents sent to opposing counsel.”

In reaching its determination, the Committee noted that the features of email-tracking tools can vary widely, with the more robust software including the ability to track: 1) when the email was opened, 2) how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities), 3) how many times the email was opened, 4) whether the recipient opened attachments to the email, 5) how long the attachment (or a page of the attachment) was reviewed, 6) whether and when the subject email or attachment was forwarded, and 7) the rough geographical location of the recipient.

The Committee explained that the most troubling aspect of these programs is that they permit attorneys intrude upon opposing counsel’s work product by tracking how the attorney uses a particular document: “The tracking device could enable the sending lawyer to learn how much time the receiving lawyer spent reviewing the communication – including even specific pages of documents – or how frequently the communication was viewed (a proxy for how important the receiving lawyer deemed it to be), whether and when it was forwarded either to the client or co-counsel or otherwise, the location of the recipients, and the details of the recipients’ review of the document.”

Accordingly, as the Committee explained, even if use of the tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical. Thus, the Committee concluded that: “(T)racking electronic communications with opposing counsel through “web bugs” impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets….(reflecting) at a minimum, the lack of straightforwardness that is a hallmark of dishonest conduct…Sending ‘bugged’ emails or documents or other communications with embedded tracking devices constitutes an impermissible infringement on the lawyer’s ability to preserve a client’s confidences or secrets as required by Rule 1.6[11] and violates Rule 8.4(a) and (c).”

The only other state bar that I’m aware of that has addressed this issue is the New York State Bar, and it reached a similar conclusion in 2001 in Opinion 749. The Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.”

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.