ethics

North Carolina on the ethics of mining social media for evidence

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

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These days, the vast majority of people, including lawyers, interact on social media. For many, social media platforms are a part of their daily lives and are a primary way of communicating with family and friends.

That’s why social media sites are a goldmine when it comes to obtaining evidence for pending litigation. So it’s no surprise that lawyers began to mine social media for evidence more than a decade ago, and when that began to occur, the ethics committees from various jurisdictions weighed in on how to ethically obtain evidence on social media.

The first to do so was the Philadelphia Bar Association in Op. 2009-02 which was followed by, among others, the New York State Bar (Op. 843 in 2010), the New York City Bar (formal Op. 2010-2), the San Diego Bar (Opinion 2022-2), the Oregon State Bar (Op. 2013-189), the Pennsylvania Bar (Formal Op. 2014-300), the Massachusetts Bar (Op. 2014-T05), the DC Bar in 2016), and the Maine Bar (Op. 217 in 2017).

A few months ago, the North Carolina Bar joined their ranks and addressed this issue as well. In mid-July the State Bar Council adopted 2018 Formal Ethics Opinion 5. At issue in this opinion was whether and under what circumstances lawyers may ethically “either directly or indirectly, seek access to social network profiles, pages, and posts…belonging to another person.” The conclusions reached in this opinion were in agreement with the those reached by the majority of jurisdictions on most issues, with a few notable exceptions.

At the outset, like all jurisdictions thus far, the Ethics Committee concluded that lawyers or their agents may view information obtained from publicly viewable social media profiles.

Notably, however, the Committee weighed in on an issue that is typically addressed in relation to researching jurors on social media sites as opposed to parties or witnesses: whether a passive notification from a social media site indicating that a lawyer has viewed the individual’s social media profile constitutes a “communication” from the lawyer. The Committee concluded that it did not and was instead a communication from the social media service. The Committee explained that a small number of views and notifications would be permissible but that lawyers “may not engage in repetitive viewing of a person’s social network presence if doing so would violate Rule 4.4(a)” which prohibits lawyers “from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, and from using methods of obtaining evidence that violate the legal rights of such a person.”

Next the Committee concluded that lawyers are forbidden from using deception to access social media information located behind a privacy wall. That being said, lawyers may, using their own true identities, request access to an unrepresented person’s social network presence behind a privacy wall. The Committee explained that “(t)he person contacted has full control over who views the information on her social network site (and the) grant of the lawyer’s request, without additional inquiry, does not indicate a misunderstanding of the lawyer’s role.”

However, the Committee determined that it was ethically impermissible for lawyers or their agents to request access to a represented person’s restricted social media presence. According to the Committee, absent express consent from the represented person’s attorney, “the request interferes with the attorney-client relationship and could lead to the uncounseled disclosure of information relating to the representation.”

The last issue considered by the Committee is of particular interest since, to the best of my knowledge, it has not yet been addressed by any other jurisdictions. Specifically the Committee considered whether a lawyer may request or accept information from a third party who has access to the restricted information found behind the privacy wall of a person’s social media profile. According to the Committee, doing so is perfectly acceptable for both represented and unrepresented persons. The Committee compared this to the similar offline scenario where lawyers may obtain other types of evidence relevant to a client’s matter from witnesses.

According to the Committee: “(W)hen a lawyer is informed that a third party has access to restricted portions of a person’s social network presence and can provide helpful information to the lawyer’s client, the lawyer is not prohibited from requesting such information from the third party or accepting information volunteered by the third party. Similarly, a lawyer may accept information from a client who has access to the opposing party’s or a witness’s restricted social network presence…However, the lawyer may not direct or encourage a third party or a client to use deception or misrepresentation when communicating with a person on a social network site.”

All in all, an interesting opinion that is worth a read, even if you don’t practice in North Carolina. And if you aren’t already mining social media for information relevant to your clients' cases, then what are you waiting for? There is undoubtedly useful information to be found, and the failure to seek it out arguably amounts to malpractice in this day and age. So there’s no better time than the present to get up to speed on the ins and outs of ethically mining social media for evidence - and this opinion is a great place to start.

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. 


ABA Ethics Opinion On Judges, Social Media, Friendships, and Disqualification

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

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Judges are supposed to be neutral arbiters. Unfortunately, in the real world, that’s sometimes easier said than done.

Ideally, judges would have no connection to the parties and lawyers appearing before them, and thus would be fully impartial. Judges, however, are human. They have close personal relationships, friendships, and many acquaintances. Judges are also lawyers, and as a result, they often personally know the lawyers appearing in their courtrooms. Those relationships are not supposed to affect the their rulings, but if there is the potential that they might, judges are required to disqualify themselves.

A simple concept in theory, but one that isn’t nearly as clear cut in practice. Determining which relationships conflict with the appearance of impartiality is rarely an easy feat. Not surprisingly, the advent of social media connections to our social infrastructure have added a new layer of complexity that some have suggested necessarily complicates this determination.

That’s why many courts and ethics committees have begun to consider the issue of whether judges’ social media connections with the lawyers appearing before them warrant disqualification. For example in 2012, Florida’s Fourth District Court of Appeal addressed this issue in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney.

Then in 2018, the Third District Court of Appeal in Florida addressed the very same issue in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421, but reached a different conclusion and declined to disqualify a judge as a result of his Facebook connection with an attorney appearing in his court, since online friends are “not necessarily (friends) in the traditional sense of the word.” Later that same year, the Supreme Court of Florida considered this case on appeal in Herssein and Herssein v. United States Automobile Association, No. SC17-1848 and upheld this ruling, concluding that a Facebook friendship between a judge and an attorney appearing before that judge was not, in and of itself, a sufficient basis for disqualification of the judge.

That approach makes the most sense. After all, a social media connection is simply one piece of the puzzle, and only serves as evidence of some sort of social connection or relationship. For that reason, I was heartened to read a footnote echoing this sentiment in a recent ABA ethics opinion.

In Formal Opinion 488, the Standing Committee on Ethics and Professional Responsibility considered the issue of whether and when the social or close personal relationships of a judge warrant disqualification. The Committee concluded that in making this determination the disqualification inquiry must focus on assessing the nature and quality of a judge’s relationship with the attorney in question.

Notably, in footnote 11, the Committee acknowledged that when reviewing a judge’s friendship with a lawyer, a social media connection alone is not dispositive:

“Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.”

In regard to the issue of whether disqualification is required when a judge has a social connection or close personal relationship with an attorney, the Committee provided the following guidance: “(J)udges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.”

In other words, relationships - including those of judges - are necessarily more complex than a single online connection. Whether disqualification is appropriate in any given case depends on the nature and extent of the relationship. A social media connection is simply one factor to consider. To conclude otherwise would fly in the face of reality and the true nature of human relationships. After all, social media connections, while relevant to this determination, do not a relationship make.

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. 


Lawyers and cybersecurity: What are your ethical obligations?

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

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Lawyers and cybersecurity: What are your ethical obligations?

If you’re practicing law in 2019, there’s no escaping technology. One way or another, you’re using technology as part of your day-to-day practice, whether it’s the internet, email, mobile devices, or cloud-based legal software. Technology is an unavoidable - and as a result, so too is the possibility of cyberattacks and breaches.

In the wake of the Equifax and Capital One breaches, along with countless other breaches that have come to light in recent years, experts warn that it’s not a matter of if you’ll be breached, but when. With that in mind, what’s a lawyer to do when it comes to cybersecurity? What are your ethical obligations and how do you ensure that your firm is in compliance?

This very issue was addressed by the Maine Bar Association in Opinion No. 220 earlier this year. In that opinion, the Professional Ethics Commission answered the following question: “What are a lawyer’s ethical obligations to understand the risks posed by technology, to prevent a cyberattack or data breach, and to respond once one occurs?”

According to the Commission, lawyers have an ethical obligation to take steps to prevent breaches from occurring and a corresponding set of duties that are triggered once a breach occurs.

At the outset, the Commission addressed lawyers obligations to prevent a cyberattack, and emphasized the importance of technology competence: “The overriding obligation is to know what the technology does, what it does not, and how to use it safely…Keeping abreast of practice changes means seeking education on evolving technology on a regular basis in order to maintain competence in its use.”

Notably, the Commission explained that while lawyers who lack technological expertise are permitted to outsource this requirement, they must nevertheless have a basic understanding of the technology being used: “A lawyer who lacks individual competence to evaluate and employ safeguards to protect client confidences and secrets should seek education from an expert or associate with another lawyer who is competent…However, the Commission does not mean to suggest that it endorses a complete ignorance of technology just because an associated lawyer or staff member knows all about it. A baseline understanding of, and competence in, the technology used in the practice of law must be maintained by every lawyer.”

Next the Commission turned to breaches, explaining that absolute security is an impossibility: “(T)he standard for measuring ethical conduct is not one of strict liability, but reasonableness.”

According to the Commission, breach prevention involves a two-step process: “(1) supervising the use of technology by lawyers and staff to ensure it is consistent with their training and instruction, and (2) monitoring the status of the technology itself in order to reveal attacks and breaches as soon as reasonably detectible.”

It’s also important to prepare for a breach and ensure that a plan is in place to address a breach or cyberattack. That’s why the Commission recommended “creating a plan to address known or suspected security breaches, including the identification of persons to be notified.”

According to the Commission, once a cyberattack or breach occurs, lawyers’ ethical obligations include: 1) taking reasonable actions to stop or contain the attack or breach, 2) investigating the attack or breach, and 3) notifying affected current and former clients.

Note that while the Maine Commission advised that former clients must be notified, a different conclusion was reached in ABA Formal Opinion 483 (online: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_op_483.pdf), which was handed down in October 2018. In that opinion, the ABA Committee explained that it was “unwilling to require notice to a former client as a matter of legal ethics in the absence of a black letter provision requiring such notice.”

Accordingly, in light of the conflicting conclusions on this issue, if you aren't a Maine attorney, I would recommend that you carefully review your jurisdiction's laws, regulations, and ethical guidelines to determine whether notifying former clients of a breach is required.

Does your firm have a plan in place to address cyberattacks and breaches? If not, what are you waiting for? You can take steps to prevent a breach and ensure that your firm is prepared should one occur. But in order to be prepared, you need a plan. And what better time than now?

 

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. 


NYC Bar addresses Bitcoin as payment for legal services

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

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NYC Bar Addresses Bitcoin as Payment for Legal Services

Cryptocurrency, such as Bitcoin, while still an unusual form of payment, is becoming more common and familiar to the average person. As a result, the issue of whether lawyers can ethically accept Bitcoin as payment for legal services is an issue that ethics committees across the country have begun to grapple with.

The latest to do so is the New York City Bar Associations’s Professional Ethics Committee. Earlier this month, the Committee addressed this very issue in Formal Opinion 2019-5.

Specifically, the issue considered by the Committee was whether “a fee agreement requiring the client to pay for legal services in cryptocurrency (is) a business transaction governed by Rule 1.8(a)?”

At the outset, the Committee noted that Rule 1.8 is inapplicable to ordinary fee arrangements between lawyers and their clients, since “ordinary fee agreements are relatively easy to understand, do not entail complex negotiation, and do not involve a significant risk that the client will repose misplaced trust in the lawyer to protect the client’s interests.”

However, according to the Committee, unlike traditional fee agreements, some contemplated cryptocurrency fee agreements may trigger the requirements of Rule 1.8. The Committee explained that whether the fee agreement regarding cryptocurrency payment constitutes a “business transaction” will depend on the way in which the lawyer and client intend to use cryptocurrency as payment.

According to the Committee, Rule 1.8 would not apply to the following scenario:
“The lawyer agrees to provide legal services at an hourly rate of $X dollars, which the client may, but need not, pay in cryptocurrency in an amount equivalent to U.S. Dollars at the time of payment.”

The Committee explained that Rule 1.8 is inapplicable because “the fee agreement is, in our view, an ordinary one where the lawyer is simply agreeing as a convenience to accept a different method of payment but the client is not limited to paying in cryptocurrency if it is not beneficial to do so. The lawyer and the client do not have to resolve terms as to which they may have differing interests. Cryptocurrency functions merely as an optional way of transmitting payment.”

However, in these 2 situations, Rule 1.8 does apply:

1. “The lawyer agrees to provide legal services for a flat fee of X units of cryptocurrency, or for an hourly fee of Y units of cryptocurrency.”
2. “The lawyer agrees to provide legal services at an hourly rate of $X dollars to be paid in cryptocurrency.”


The Committee determined that Rule 1.8 applies in these situations since both constitute a “business transaction.” This is because there are increased complexities presented in each scenario relating to accepting cryptocurrency as payment that would require the lawyer and client to negotiate certain variables and and issues that will arise due to the proposed payment terms.

For that reason, the Committee concluded that “(a) fee agreement requiring the client to pay cryptocurrency in exchange for legal services is subject to Rule 1.8(a) if the client expects the lawyer to exercise professional judgment on the client’s behalf in the transaction. In that case, the lawyer must comply with the procedural requirements of Rule 1.8(a)(1)-(3) before entering into the fee agreement.”

As such, the Committee explained that in both situations, the lawyers must comply with the requirements of Rule 1.8, which require that:

1) “(T)he transaction is ‘fair and reasonable to the client’ and must disclose the terms of the transaction in writing and ‘in a manner that can be reasonably understood by the client…’”
2) “(T)he lawyer must advise the client, in writing, about the desirability of seeking separate counsel and must then give the client a reasonable opportunity to consult separate counsel.”
3) “(T)he client must understand and agree to “the essential terms of the transaction, and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction..The lawyer must secure the client’s ‘informed consent’…in writing.”

The bottom line: accepting cryptocurrency as payment for legal services isn’t impermissible in New York, but it’s important to tread lightly and think through your options carefully prior to doing so. The good news is that if you’re a New York lawyer and have been pondering whether to accept Bitcoin as payment for legal services, this opinion offers some very helpful and timely guidance.

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. 



ABA on the ethical obligations of prosecutors in misdemeanor cases

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

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Today I came across a headline that I assumed at first glance was an Onion article or some other type of satire. It had to be. The ABA Journal headline stated something that I’ve always assumed was simply a given: “Prosecutors must maintain ethical conduct during misdemeanor plea deals, ABA ethics opinion says.”

Note that what the headline failed to mention was the the opinion addressed prosecutors obligations when interacting with unrepresented misdemeanor defendants. But even so - come on! How could there be any confusion on that issue? Prosecutors are lawyers and, just like the rest of us, they’re required to act ethically at all times. There’s no “misdemeanor or lower” exception to ethics requirements. At least, not that I’m aware of.

But, nevertheless, the fact that the ABA felt the need to weigh in on this is an indication that there was a need for further clarity on this issue. And, if the ABA deems this topic important enough to opine on, then I likewise believe that it’s important enough for me to write about. So if you’re as curious as I was about this opinion, then buckle up and let’s dive in.

In Formal Opinion 486, which was handed down on May 9th, 2019, the ABA Standing Committee on Ethics and Responsibility considered the ethical obligations of prosecutors when negotiating and plea bargaining with unrepresented individuals accused of misdemeanors.

At the outset, the Committee acknowledged that while most prosecutors perform their job functions ethically, that’s not always the case: “Notwithstanding the commitment of most prosecutors to high professional standards, there is evidence that in misdemeanor cases where the accused is or may be legally entitled to counsel, methods of negotiating plea bargains have been used in some jurisdictions that are inconsistent with the duties set forth in the Rules of Professional Conduct.”

The Committee then turned to the accused’s right to counsel, noting that it is unethical for prosecutors to interfere with this right in any way: “Under Model Rule 3.8(b) prosecutors must make reasonable efforts to assure that unrepresented accused persons are informed of the right to counsel and the process for securing counsel, and must avoid conduct that interferes with that process.”

Next, the Committee tackled the plea bargaining process, explaining that when a defendant is unrepresented, prosecutors must discuss the known consequences of a proposed plea deal with the accused. This is because an unrepresented defendant is in a uniquely vulnerable position. As such, “if the prosecutor knows the consequences of a plea – either generic consequences or consequences that are particular to the accused – the prosecutor must disclose them during the plea negotiation.”

The Committee further elaborated on the obligations of prosecutors in this situation and provided examples of impermissible conduct:

“Thus, where a prosecutor knows from the charge selected, the accused’s record, or any other information that certain collateral consequences or sentence enhancements apply to a plea on that charge, statements like the following would constitute prohibited misrepresentations:

‘Take this plea for time served and you are done, you can go home now.’

‘This is a suspended sentence, so as long as you comply with its terms, you avoid
jail time with this plea.’

‘You only serve three months on this plea, that’s the sentence.’”

The Committee then turned to a prosecutor’s ethical obligations when extending a plea offer to an unrepresented and clarified that prosecutors cannot do so unless there is sufficient evidence to support the plea offer: “Under Model Rules 1.1, 1.3, 3.8(a), and 8.4(a) and (d), prosecutors have a duty to ensure that charges underlying a plea offer in misdemeanor cases have sufficient evidentiary and legal foundation.”

Finally, the Committee noted that a prosecutor’s ethical obligations extend to post-plea interactions: “If a prosecutor learns during the plea colloquy with the court or other interactions that the unrepresented accused’s acceptance of a plea or waiver of the right to counsel is not in fact voluntary, knowing, and intelligent, or if the plea colloquy conducted by the court is inadequate to ascertain whether the plea or waiver of the right to counsel is in fact voluntary, knowing, and intelligent, the prosecutor is obliged to intervene.”

That this opinion was even issued, my friends, is an unfortunate reminder of the state of our profession in 2019. That being said, it serves as a welcome, and much-needed, reminder to prosecutors who may be walking a fine ethical line when it comes to many of these issues: always ensure that you walk on the right side of that line, or risk losing your license to practice law.

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. 


Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligations

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

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Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligation

Office water coolers used to be gathering places where people discussed current events and caught up on office gossip. But, like many other time-honored traditions, even water cooler conversations have been affected by technology.

Certainly these in-office discussions still occur, but much of the day-to-day discourse about current events has shifted to the online realm. Whether it’s on Facebook, in online forums, or in the comments that follow news articles, there are plenty of opportunities to comment on and share opinions about recent events. Notably, many of these comments can be made anonymously, and as a result, some people are less restrained about their opinions than they would be if their personal identities were publicly attached to them.

Of course, the perceived anonymity is often an illusion, since there are many different ways to go about determining who posted a particular comment, should the need arise to do so. That’s a lesson that was learned the hard way by Salvadore R. Perricone, an assistant U.S. attorney for the Eastern District of Louisiana.

Last month, the Supreme Court of Louisiana handed down an opinion, In re: Salvadore R. Perricone, No. 2018-B-1233, wherein the court considered whether Perricone violated his ethical obligations as a result of anonymous comments that he posted online between 2007-2014. Some of the comments related to trials for which he was the prosecuting attorney and others related to trials that his colleagues were prosecuting.

The anonymous postings included the following comments:

A statement that the defense attorney had “screwed his client!!!!,”and was just “as arrogant as [the allegedly bribed official] … and the jury knows it.”
During a federal civil rights trial involving the shooting of an unarmed man he wrote: “Perhaps we would be safer if the NOPD would leave next hurricane and let the National Guard assume all law enforcement duties.  GUILTY AS CHARGED.”
Regarding an indictment alleging conspiracy: “I read the indictment…there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!”

When his comments were discovered and reported to a judge, an investigation was conducted and disciplinary charges were filed. After reviewing the findings and recommendations of the hearing committee and disciplinary board, the Supreme Court of Louisiana concluded that the appropriate sanction for Perricone’s conduct was disbarment.

The Court explained that Perricone’s actions were not innocuous: “When discovered, respondent’s actions caused serious, actual harm in the River Birch and Danziger Bridge cases and, most profoundly, to the reputation of the USAO. There was a potential for harm in the Jefferson and Gill-Pratt cases.”

According to the Court, disbarment was necessary for a number of reasons, not the least of which was to send a message to other lawyers to tread carefully when posting online about pending matters: “Respondent’s conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet.”

In other words, the lesson to be learned is one that I often repeat: the online is simply an extension of the offline world. You don’t leave your ethics at the door when you enter the online realm. Think before you post - anonymously or otherwise - and refrain from commenting about any matters that you are personally involved in or about which you have inside knowledge. Your ethical obligations require it, and your law license depends on it.

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: Secure Communication, Cybersecurity, Podcasts for Lawyers, 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). Here are my posts and articles from October 2018:


Washington Bar Association allows virtual law offices

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

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Washington Bar Association Allows Virtual Law Offices

The Washington State Bar Association wasn’t the first bar to consider the ethics of lawyers practicing law from virtual law offices and it won’t be the last. It did, however, write one of the more sensible opinions on this phenomenon, Advisory Opinion 201601.

The reasonable tone was set from the very outset, when the Committee on Professional Ethics explained that the phenomenon of lawyers practicing law from outside of their offices was not a new one and was simply a sign of changing times: “Increasing costs of doing business, including the costs associated with physical office space, have motivated lawyers to rethink how they deliver legal services. Many lawyers are choosing to do some or all of their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, and email services have allowed the development of the virtual law office, in which the lawyer does not maintain a physical office at all. Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same.”

Next, the Committee turned to the requirement in some jurisdictions that a law firm must have a physical office address, noting that Washington has no such rule. And, unlike some other states, there is no need for Washington lawyers to include a physical address on lawyer advertising, “(a)s long as it is not deceptive or misleading…(a) lawyer may use a post office box, private mail box, or a business service center as an office address in advertisements.” Similarly, lawyers must also refrain form misleading colleagues and others - through communications or otherwise - into believing that the lawyer is part of a brick and mortar firm.

The Committee then moved on to addressing the ethics of virtual lawyers storing all firm data online, such as in a legal practice management system, and concluded that lawyers may ethically store confidential client data online “as long as the lawyer takes reasonable care to ensure that the information will remain confidential and the information is secure from risk of loss.”

Factors that the Committee suggested lawyers take into consideration when using cloud computing software in their virtual law firm included:

Lawyers have a duty of general technology competence
Lawyers must thoroughly vet cloud computing vendors to ensure data is stored securely
Lawyers must ensure that there are sufficient data backup procedures in place
The agreement with the vendor should ensure that lawyers area able to retrieve law firm data in a readable format and that it includes breach notification clauses
Because technology can change quickly, lawyers have a continuing duty to monitor and review the adequacy of the vendor’s security procedures.

Importantly, the Committee acknowledged that in 2017, due to technology advancements, including secure online client portals, email is not necessarily the best way for lawyers to communicate with clients, regardless of whether the law firm has a virtual office or a brick and mortar office. Like the American Bar Association (in Formal Opinion 11-459) and the Texas Bar (in Ethics Opinion 648), the Committee warned against using email in some cases: “Lawyers in virtual practices may be more likely to communicate with clients by email. As discussed in WSBA Advisory Opinion 2175 (2008), lawyers may communicate with clients by email. However, if the lawyer believes there is a significant risk that a third party will access the communications, such as when the client is using an employer-provided email account, the lawyer has an obligation to advise the clients of the risks of such communication.”

In other words, the Committee issued a well reasoned opinion that acknowledged the rapid pace of technological change. As such, its determinations include elastic standards that will no doubt withstand the test of time. Well done Washington State Bar Association! Let’s hope other bars that have not yet addressed these issues will follow in your footsteps.

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.


Technology Competence: It’s Your Ethical Obligation

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

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Technology: it’s a topic many lawyers have chosen to ignore. There are many reasons for this. First, for hundreds of years, lawyers practiced law quite adequately without the assistance of technology, thank you very much. And then, even when it became apparent that technology could improve some aspects of legal practice, it was still possible to function without it.

And then, right after the turn of the millennium, everything changed. Technology began to advance at incredible rate, affecting all aspects of our culture, from the ways that we consumed entertainment and the methods that we used to communicate with loved ones and friends to the tools used to conduct business. With the advent of social media, smartphones, tablets, cloud computing, wearables, and the Internet of Things, the world as we knew it was turned upside down. And these changes occurred quickly — so much so that if you weren’t paying attention, it seemed as if the world was passing you by.

Such was the case for the vast majority of lawyers, many of whom simply put on blinders and ignored the rapid advancements. At first, some believed that the changes were more of a fad than a phenomenon. And when it became clear that it was the latter, many felt overwhelmed at the thought of trying to catch up, and simply followed the path of avoidance.

However, beginning in 2012, that option was removed from the table as the tide began to turn. That was the year that the American Bar Association adopted an amendment to Comment 8 to Model Rule 1.1, imposing an ethical duty on lawyers to stay abreast of changes in technology. The comment now reads as follows:

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added).

Since that amendment was enacted, 23 states have followed suit and have likewise adopted
the revised comment to Rule 1.1. New York is one of those states and joined the bandwagon in March of 2015.

If you still remain unconvinced that you have an obligation to learn about and understand technology, then perhaps the words uttered by the president-elect of the American Bar Association as she accepted the position last week at the ABA’s annual meeting in San Francisco will persuade you: “(I)t is clear that the longer our profession refuses to adopt and adapt its practices to new technologies, the more opportunities there are for alternative services providers and web-based platforms that have found ways to use technology to provide legal services in a more efficient and less costly manner—in many cases reaching people previously unserved by traditional providers of legal services.”

Let this be a rallying cry to my fellow attorneys: technology is here to stay. Hiding your heads in the sand is no longer an option. You have an ethical duty to learn about technology and make educated, informed decisions when choosing the right tools for your law practice. It won’t be easy and it will take time and effort. But it will pay off in the long run.

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.