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October 2020

Should you copy clients on emails to opposing counsel?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Should You Copy Clients On Emails to Opposing Counsel?

As a result of the pandemic lawyers are working remotely now more than ever before. This means that out of necessity, in-person meetings are far less common during the pandemic, and lawyers are increasingly relying on email to communicate with clients and other attorneys.

Of course, email is not an ideal way to communicate when confidential information is being shared. Not only is email inherently unsecure, since it’s like sending a postcard written in pencil through the post office, it can also present a host of different ethical issues. The Florida Bar Assistant ethics counsel, Joy a Bruner, recently addressed one such issue when she wrote about the ethical issues that are presented when you copy clients in on emails to opposing counsel (online: https://www.floridabar.org/the-florida-bar-news/should-you-copy-your-client-on-emails-to-opposing-counsel/).

Specifically, the issue she addressed was whether a lawyer should “‘cc’ or ‘bcc’ (a) client on the email or would it be better to separately forward a copy of the email to (the) client?” 

She explained that while copying a client in on an email may seem innocuous at first glance, it can actually present a very real ethical dilemma, namely that your client may inadvertently respond in a way that compromises confidentiality: “The danger in copying or blind copying a client on an email to opposing counsel is that the client may include opposing counsel on the client’s reply by using ‘reply all' either by mistake or on purpose. This can result in confidential information being disclosed and, depending on the information and circumstances, a waiver of privilege.”

Next she outlined a safer alternative that allows you to keep your client informed while also ensuring that confidentiality and privilege are preserved: “The better course of action is to separately forward the emails to the client. That way opposing counsel is not included in the list of recipients of the forwarded email and it reduces the risk that the client may disclose confidential information that may harm the client’s interests.”

She then turned to a related issue that also can trigger ethical issues: when an attorney receives an email wherein opposing counsel copies in their client. She explained that in that situation, the email does not operate as consent for the attorney who received it to then include the represented person in their response to the email. 

Instead, permission must be obtained from opposing counsel prior to doing so in order to avoid violating Rule 4-4.2, which provides that a lawyer cannot communicate about a matter with someone the lawyer knows to be represented by another lawyer in the matter: “If you are on the receiving end of an email that includes the opposing lawyer’s client on the email, you cannot include the opposing lawyer’s client on the email unless you have opposing counsel’s permission under Rule 4-4.2.”

The bottom line: email with caution. Not only is it an outdated mode of communication now that alternate and more secure methods are available, careless use of it can also lead to inadvertent ethical violations. So if you insist on continuing to use antiquated email, do so with care.

In the alternative, why not switch to a more secure and modern method of communicating with clients such as the online client portals built into some legal software programs? Since remote work is likely to be part of our daily lives for the foreseeable future, what better time than now to revisit how you communicate electronically with clients?

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.


Does Facebook have an obligation to prevent murder?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Does Facebook Have an Obligation to Prevent Murder?


These days, we spend a lot of time online - probably more than we should. And for most of us, especially during the pandemic, a good percentage of our after work downtime occurs on social networks. We share (and sometimes overshare) our ups and downs, family celebrations, and in recent months, political opinions. Social media platforms have become a gathering place where we connect, interact, and blow off steam. For better or for worse, social media has become entrenched in our lives.

Now that we share so much information on social media, what happens when someone threatens to commit a crime on a social network? Do the companies that own social media sites have an obligation to scan their sites for these types of threats? If a threat is discovered or reported to them, must they act to prevent it from occurring? Do they have to contact the authorities and report the incident? If they fail to ascertain that the threat was made and/or fail take steps to prevent the threat from becoming reality, are they liable if the person who posted the threat carries it out and injures another?

The Court of Appeals of Ohio recently considered this every issue in Godwin v. Facebook, Inc., 2020-Ohio-4834 (Ohio Ct. App. Oct. 8, 2020).  Specifically, the question before the Court was whether civil liability could be imposed against Facebook for failing to report the commission of a felony offense in an effort to prevent it from occurring.

The crime at issue in this case was murder, which arose from the following facts. Steve Stephens was accused of murdering Robert Godwin, Sr., a person who was a stranger to him and whom he chose at random. On the day of the murder Stephens posted the following somewhat cryptic message to Facebook: “FB my life for the pass year has really been fuck up!!! lost everything ever had due to gambling at the Cleveland Jack casino and Erie casino…I not going to go into details but I’m at my breaking point I’m really on some murder shit…FB you have 4 minutes to tell me why I shouldn’t be on deathrow!!!! dead serious #teamdeathrow.” Then, within minutes of publishing the post to Facebook, he murdered the victim.

The victim’s estate filed suit, alleging, among other things, that Facebook “fail(ed) to warn Robert Godwin of Stephens’s dangerous propensity of which Facebook was aware through its data-mining practices, which is the underlying negligence theory upon which the wrongful death and survivorship claims arise…”

At the outset, the Court explained that because Facebook is a “standard commercial business” it only owed a duty to the victim if a there was “special relationship” with him since “businesses do not owe abstract duties to everyone in the world.”

The Court then turned to ascertaining whether a “special relationship” existed, noting that the issue to be determined was whether where Facebook had “taken charge” of a person whom “it knew or should have known was likely to harm to others if not controlled.”

After reviewing the facts of the case at hand, the Court determined that Facebook did not owe a duty to the victim since a “special relationship” between Facebook and the victim simply did not exist:

“At the minimum the duty to act in this case requires an existing relationship between the defendant and the third person over whom ‘charge’ is asserted. Godwin has not cited any authority for the proposition that a social media company ‘takes charge’ of its users to the same extent that a medical or mental health professional takes charge of her patient or a parole or probation officer takes charge of her probationer for the purposes of expanding the theory of liability. Although the line between a contractual, business-consumer relationship and a physician-patient relationship may at one point overlap, this case does not present such a question. The complaint is devoid of any allegations of fact that, if proven, would establish the requisite element of Facebook taking ‘charge’ of its users.”

Then, after considering the additional claims made by the plaintiff, the Court concluded that Facebook was not civilly liable for the victim’s murder.

I wasn’t particularly surprised by this holding, were you? It’s difficult to envision a scenario under which a plaintiff with a similar claim could sufficiently establish either duty or foreseeability, especially given the vague assertions of violence in this case and the fact that the crime occurred nearly immediately after the post went live on Facebook. Even so, it’s an interesting issue, and is one more example of how the blurred the line between online and offline actions has become.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.


Round Up: Artificial Intelligence, Virtual Conferences, Surveys and More

SpiralI often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Apologize for the delay in posting this roundup, but in addition to my job with MyCase, I've been busy writing the annual update for the New York criminal law treatise I co-author for Thomson Reuters. In any event, here are my posts and articles published from September:


New York on withdrawing as counsel due to COVID-related fears

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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New York on withdrawing as counsel due to COVID-related fears

In New York, court appearances have been sharply curtailed at times due to the pandemic. Online court appearances have become commonplace out of necessity and have been surprisingly well-received, especially by some members of the judiciary.

That being said, in-person court appearances are sometimes still required, even as COVID-19 numbers are on the rise. For lawyers who are uncomfortable with the safety and security measures being taken by courts but are nevertheless required to appear in person, what are you options?

That very issue was addressed in early October by the New York State Bar Association’s Committee on Professional Ethics in Opinion 1203. In this opinion, an attorney who was representing a client in Immigration Court sought permission to withdraw from representation due to the attorney’s health concerns relating to in-person court appearances. The issue considered by the Committee in this case was whether “an attorney who believes that continued representation of a client before a tribunal endangers the attorney’s health (may) withdraw from that representation?”

In reaching its determination, the Committee noted that Rule 1.16 was controlling. The Committee explained that Rule 1.16(b) permits withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.” According to the Committee, when assessing whether representation has  become too “difficult,” the standard to be applied is a flexible one and the inquiry should center around “the ways in which the inquirer’s fear of contracting COVID-19 could impede effective representation.”

Next, the Committee acknowledged that under the Rule, there were other permissible circumstances for withdrawal from a case, but they only applied if withdrawing would not have a materially adverse effect on the interests of the client or if the client consents.

Then the Committee turned to the situation at hand and explained that in order to withdraw from representation in Immigration Court, Rule 1.16 (d) required that the attorney obtain “permission for withdrawal from employment (since it) is required by the rules of (the) tribunal.”

The Committee explained that the issues that the Court would need to consider prior to granting the inquirer’s request would be whether it would be difficult for the attorney to provide effective representation due to fear of contracting COVID-19. The attorney’s trepidation could impact effective representation if the lawyer: 1) was reluctant to meet with the client face-to-face, 2) agreed to a disposition that would prematurely end the proceeding in order to reduce the amount of time spent in court, or 3) rushed through a hearing and failed to call witnesses to testify on the client’s behalf or waived cross-examination of government witnesses in order to shorten the hearing and thus time spent in court. The Committee opined that “(t)he standard required for Rule 1.16(d) permissive withdrawal would be met by any of these influences, or like influences, to which the inquirer would be susceptible.”

Accordingly, the Committee determined that an “attorney may withdraw from representation, with the permission of the Immigration Court, based on fear of contracting COVID-19 as a result of in-person appearances in the proceeding, where such fear renders it difficult for the attorney to carry out the representation effectively.” Upon doing so, the attorney would need to “take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including by giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly repaying any part of a fee paid in advance that has not been earned and complying with applicable laws and rules.”

If you’re a New York attorney and are concerned about the risks associated with returning to in-person court appearances, this opinion should provide you with some solace. Of course, there is a very real possibility that this will soon be a non-issue since in-person court appearances may once again be cancelled for an indeterminate period of time. After all, the pandemic shows no sign of abating any time soon, and the winter months could bring with them a surge in cases above and beyond what we saw in the spring. Only time will tell, but in the meantime, stay safe out there!

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.