Everyday Legal Ethics

ERIN H. GERSTENZANG LAS VEGAS - OCTOBER 2, 2015

ONLINE REVIEWS

43.%OF PROSPECTIVE CLIENTS LOOK TO REVIEW SITES WHEN SELECTING AN ATTORNEY.

As you might expect, this behavior is most prevalent

in young people, e.g. 20% of 25-34 year-olds.

ABA 2014 TechReport

Tsamis accepted a $1,500 fee even though she knew full well that a law in Illinois would prevent me from obtaining unemployment benefits!!

Posted by Richard R. Apri. 10, 2013

I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.

PUBLIC REPRIMAND

BETTY TSAMIS

BETTY TSAMIS

“ A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”

RULE 1.6 (A) CONFIDENTIALITY OF INFORMATION

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“ Rule 1.6 applies not merely to matters communicated in confidence by the client but also to all information gained in the professional relationship, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.”

RULE 1.6 (A) CONFIDENTIALITY OF INFORMATION COMMENT 5

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“A lawyer may not disclose client confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.”

NY STATE BAR ASSOCIATION: ETHICS OPINION 1032 DISCUSSING RULE 1.6(A)

TECH COMPETENCE

CAN’T WE JUST IGNORE TECHNOLOGY THAT WE DON’T UNDERSTAND?

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

RULE 1.1 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.”

RULE 1.1 COMPETENCE COMMENT 6

A lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.”

“New York Bar Section Releases Social Media

Guidelines for Lawyers. June 9, 2015.

ARIZONA

CALIFORNIA

NEW HAMPSHIRE

As a matter of legal competence under Rule 1.1, a lawyer must have competence in the skills reasonably necessary for representation, which includes technology.”

State Bar of Arizona Ethics Opinion 09-04. December, 2009.

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CALIFORNIA

NEW HAMPSHIRE

NEW YORK

NEW YORK

ARIZONA

Even if e-discovery is relatively new, the duty of competence is not, and in today’s technological world, every case has the potential to involve e-discovery.”

California Committee on Professional Responsibility and Conduct Formal Opinion 2015-193.

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NEW HAMPSHIRE

CALIFORNIA

Minimal competence requires a lawyer to perform the techniques of practice with skill and required techniques include the way client information and attorney work is electronically stored.

New Hampshire Ethics Committee Advisory Opinion #2012-13/4.

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NEW YORK

ARIZONA

Basic Computer

Competence

Insert hyperlinks in documents and emails.

Convert a Word document to a PDF file.

Remove metadata from your files when necessary.

1.

2.

3.

Back up your email. Explain what ‘the cloud’ is, and how it is different from the Internet.

Learn to use Twitter and Facebook well enough to introduce evidence during a deposition or trial.

Basic Internet

Competence

1.

2.

3.

Understand the risks associated with public wi-fi, and how to protect your information.

Use a password manager or a system for remembering strong, unique passwords.

For each cloud-based service you use, identify whether the service uses encryption to protect your information.

Basic Data Security

Competence

1.

2.

3.

CYBER-RISK INSURANCE POLICIES ARE GROWING QUICKLY

Law firms today are responsible for massive amounts of electronic and non-electronic information. This information represents significant liability exposure in the event of a security failure. Even if the failure doesn’t lead to an actual lawsuit, a firm may still need to deal with costs associated with notification, possible regulatory investigations, fines and penalties, forensic expenses, public relations expenses and more.”

CHRIS ANDREWS, VICE PRESIDENT OF PROFESSIONAL LIABILITY AT AIG

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YOUR WEBSITE

www.bestppt.comBio of one of the attorneys on the website of the law firm Perkins Coie (patent and IP firm).

Represented cloud computing provider in Federal Trade Commission investigation under Section 5 of the FTC Act regarding security practices for mobile access to cloud computing service.”

“

www.bestppt.com

Christopher Soghoian

@csoghoian 51.3k followers

Tech reporters might want to call Dropbox and ask them if they’ve been investigated by the FTC. perkinscoie.com/en/experience/…

2005

7%

65%

13%

10%

Internet

Ask Friend or Relative

Local Bar Ass’n

Yellow Pages

2014

Consumers are more likely to turn to the Internet not only to find an attorney but to research them before contacting and hiring one. Among other things, that means that even if you have a website, it has to be an informative, attractive site that is easy for visitors to navigate. They’re looking for information and a sense that the attorneys on the firm’s site are trustworthy.”

“

38%

29%

10%

4%

FINDLAW SURVEY DATA 2014

What is the most important attribute that connotes quality of service

How well options are

explained

Win / loss record

Attorney

professionalism

Attorney listening

skills

How quickly cases

are settled

Percentage selecting attribute as most important

10% 20% 30% 40%

RETAIN COPIES OF YOUR WEBSITE

Keep your website records for 2 years

Keep your website records for 5-7 years

BLOGGING

ABA TECHREPORT 2014

WHY DO ATTORNEYS BLOG?

Law Firms Maintaining Blogs

10%

0%

20%

30%

40%

50%

60%

Solo 2-9 10-49 50-99 100-499 500+

Clients from Blogging for Solo

Practitioners

Yes

No

Don’t Know

#127409 This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because "he's no snitch." I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.

KRISTINE ANN PESHEK “

60-DAY SUSPENSION

“A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.”

RULE 1.6(A) CONFIDENTIALITY

GHOST BLOGGING?

It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

RULE 8.4(C) MISCONDUCT

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SOCIAL MEDIA

34.%OF SOLO PRACTITIONERS REPORTED THEY WERE RETAINED BY NEW CLIENTS AS A RESULT OF SOCIAL MEDIA USE.

ABA 2014 TechReport

“It is professional misconduct for a lawyer to state or imply an ability to influence improperly a government agency or official.”

RULE 8.4(E) MISCONDUCT

Can You Friend Your Judge on Facebook?

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT

CLIENT’S DAUGHTER’S FACEBOOK POST “

Thank you!

EMAIL ME: ERIN@EHGLAWFIRM.COM