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Judges weigh in on researching jurors online

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

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Judges Weigh In On Researching Jurors Online

Now that social media is simply part of our day-to-day lives, it’s no surprise that it’s also appearing in legal cases. Lawyers routinely seek to access social media data during the discovery phase of trial, mine social media for evidence to use during trial, and research jurors prior to voir dire.

In the past I’ve covered the various ethics opinions regarding lawyers mining social media for evidence and researching jurors using social media. New York, D.C., Pennsylvania, Oregon, and quite a few other jurisdictions have addressed these issues. But it’s not just ethics committees that are weighing in on social media use in litigation. Many Judges are throwing their hats in the ring as well and are establishing procedures for their courtrooms that address the use of social media evidence at trial.

Oftentimes judges recognize that online research alone isn’t necessarily problematic. For example, in 2014 it was reported in a Tampa Bay Times article that in a ruling issued by Circuit Judge Anthony Rondolino, he indicated that allowing parties to research jurors online and then share any relevant information obtained with the court could help to avoid mistrials. His rationale was based on the premise that jurors don’t always disclose relevant information during voir dire, although the failure to do so isn’t necessarily intentional and can sometimes arise from a failure to understand the questions being posed to them.

Other judges are more wary of online research when it comes to jurors, such as U.S. District Judge Rodney Gilstrap of the Eastern District of Texas. Earlier this year he issued a standing order that prohibits “all attorneys, parties, and their respective employees and agents, including jury consultants rom contacting jurors through social media.” However, simply researching jurors by viewing public profiles was permitted, even where jurors might receive passive notifications of the viewing of their profile: “(T)hey are not prohibited from conducting or causing another to conduct any
type of online investigation merely because a juror or potential juror may become aware that his or her ESM is being reviewed. For example, lawyers are not prohibited from reviewing the LinkedIn accounts of jurors or potential jurors even if network settings would alert that juror or potential juror to the fact that a lawyer from the case has reviewed his or her LinkedIn account.”

And last, but not least, in 20116, the U.S. District Court for the Northern District of New York, adopted a local rule in early 2016 that allows lawyers and their agents to research jurors using social media so long as the information viewed is publicly accessible. However, the rule provides that passive notifications indicating that a specific person has viewed a juror’s social media profile are not permitted. Importantly, the rule provides that “If an attorney becomes aware of a juror’s posting on the internet about the case in which she or he is serving, the attorney shall report the issue to the court.”

So, the times they are indeed a’changin’, my friends. Social media is here to stay and in many cases, that’s not a bad thing. It can be a valuable tool for litigation purposes, as long as you are aware of the applicable ethical guidelines and rules of court. So use social media to your clients’ advantage, but make sure to use it wisely.

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.


ABA Issues New Opinion On Secure Online Communication With Clients

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

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In 1999, the American Bar Association issued Formal Opinion 99-413, which permitted lawyers to use email to communicate with clients. In that opinion, the ABA Committee on Ethics and Professional Responsibility concluded: “Lawyers have a reasonable expectation of privacy in

communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet,

despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.”

Times have most certainly changed since 1999. So, too, has technology. While email used to be the best method available for electronic communication with legal clients, technology has advanced such that the security issues inherent in email make it a less desirable way to communicate with clients compared to alternative and far more secure online communication tools.

That’s why the ABA issued Formal Opinion 477 on May 11, 2017. In this opinion, the Committee concluded that because there are more secure electronic communication methods available in 2017, lawyers may want to consider avoiding email for many client communications and use other, more secure electronic methods instead.

At the outset, the Committee acknowledged that today most lawyers “primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients” including “desktop, laptop and notebook computers, tablet devices, smartphones, and cloud resource and storage locations.”

Next, the Committee noted that pursuant to an amendment to the Model Rules adopted by the ABA in 2012, lawyers now have a continuing duty to stay abreast of changes in technology. As part of that duty lawyers must take reasonable efforts to protect confidential client information from disclosure and in doing so must assess “the methods of electronic communications employed, and the types of available security measures for each method.” Furthermore, when dealing with highly sensitive confidential client information, lawyers must “inform the client of the risks involved” and advise that either extra measures should be taken to protect email transmissions or that email should be avoided altogether.

Factors to be considered when determining the appropriate way to communicate with clients in each case include:

  • the sensitivity of the information,
  • the likelihood of disclosure if additional safeguards are not employed,
  • the cost of employing additional safeguards,
  • the difficulty of implementing the safeguards, and
  • the extent to which the safeguards adversely affect the lawyer’s ability to represent

clients (e.g., by making a device or important piece of software excessively difficult to use).

The obligation to evaluate and choose appropriate technology to protect client data may be outsourced “through association with another lawyer or expert, or by education.”

Importantly, the Committee emphasized that “(a) fact-based analysis means that particularly strong protective measures, like encryption, are warranted in some circumstances.” The Committee explained that as long as lawyers have implemented basic and reasonably available methods of common electronic security measures, using unencrypted email may be appropriate for routine or low sensitivity communications, but that due to “cyber-threats and (the fact that) the proliferation of electronic communications devices have changed the landscape…it is not always reasonable to rely on the use of unencrypted email.” As such, lawyers must assess how to communicate about client matters on a case-by case basis.

The Committee recommended that lawyers take certain steps when making this assessment for each case: 1) understand the nature of the threat, 2) understand how client confidential information is transmitted and where it is stored, and 3) understand and use reasonable electronic security measures, 4) determine how electronic communications about client matters should be protected, 5) label client confidential information, 6) train lawyers ad non lawyer assistants in technology and information security, and 7) conduct due diligence on vendors providing communication technology.

The Committee concluded that the duty to vet the security measures taken by each third party provider that stores a law firm’s confidential client data is a continuing one and lawyers must “periodically reassess these factors to confirm that the lawyer’s actions continue to comply with the ethical obligations and have not been rendered inadequate by changes in circumstances or technology.”

Of note, the Committee explained that client matters involving proprietary information such as “industrial designs, mergers and acquisitions or trade secrets, and industries like healthcare, banking, defense or education, may present a higher risk of data theft” and as such reasonable efforts in those in higher risk scenarios generally requires that greater effort be taken to protect client data than simply using unsecure email to communicate. The Committee suggested a number of more secure alternatives including using secure Wi-Fi, a Virtual Private Network, and a secure Internet portal such as those routinely included with law practice management software.

The Committee clarified that cloud-based online collaboration portals are a viable option to ensure secure communication: “(I)f client information is of sufficient sensitivity, a lawyer should encrypt the transmission and determine how to do so to sufficiently protect it, and consider the use of password protection for any attachments. Alternatively, lawyers can consider the use of a well vetted and secure third-party cloud based file storage system to exchange documents normally attached to emails.”

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.