Legal Ethics and Technology: Complying With

Changes to the Model Rules of Professional Conduct Best Practices to Protect Client Confidences and Advertise Legal Services

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WEDNESDAY, DECEMBER 12, 2012

Presenting a live 90-minute webinar with interactive Q&A

Jack Marshall, President, ProEthics, Alexandria, Va.

Shannon Brown, Attorney, Law Office of Shannon Brown, Mount Joy, Pa.

Jodi Cramer, Senior Air Staff Counsel, United States Air Force, Washington, D.C.

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Legal Ethics

And Technology:

Complying with Changes

To the Model Rules of

Professional Conduct

Best Practices to

Protect Client Confidences and

Advertise Legal Services

Sponsored by the

Legal Publishing Group

Of Strafford Publications

5

Your Presenters

Shannon Brown, Esq.

Attorney, Mount Joy, Pennsylvania

www.shannonbrownlaw.com

Jodi Cramer, Esq.

Senior Air Staff Counsel, specializing in

information law for the U.S. Air Force* (*Acting in personal capacity, not as representative of Air Force)

Jack Marshall, Esq.

Attorney (Massachusetts and D.C.)

President, ProEthics, Ltd.

www.proethics.com

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Introduction:

Why Technology is the

Achilles Heel of

Legal Ethics

A. Speed of Change

B. Increasing Reliance

C. The Cluelessness of Lawyers

►►►

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D. The ABA: Technology-Related

Changes to the Model Rules

Approved by ABA House of

Delegates (10/6/12)

1. Technology, Competence & Confidentiality www.americanbar .org/content/dam/aba/administrative/ethics_2020/20120808

_revised_resolutiion_105a_as_amended.authcheckdam.pdf

►►►►

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Rule 1.1: Competence

“A lawyer shall provide competent representation to a client. Competent

representation requires the legal knowledge, skill, thoroughness, and

preparation reasonably necessary for the representation.”

Comment: Maintaining Competence

“[6] 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.”

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Other Rules:

Rules 1.1, 1.4, 1.18, 4.4, 5.5, 7.1, 7.3

http://www.americanbar.org/conent/dam/aba/administrative/ethics_

2020/2012_hod_annual_meeting_1-5b.authcheckdam.pdf

Rule 1.6 - Confidentiality of Information

“(c) A lawyer shall make reasonable efforts to prevent the inadvertent or

unauthorized disclosure of, or unauthorized access to, information relating

the representation of a client.”

►►►►

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Rule 1.6 (cont.)

Comment: Acting Competently to Preserve Confidentiality

“[16]… The unauthorized access to, or the inadvertent or unauthorized disclosure of,

confidential information relating to the representation of a client does not constitute a

violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the

access or disclosure. Factors to be considered in determining the reasonableness of the

lawyer’s efforts include, but are not limited to, 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). A

client may require the lawyer to implement special security measures not required by

this Rule, or may give informed consent to forgo security measures that would

otherwise be required by this Rule. Whether a lawyer may be required to take

additional steps to safeguard a client’s information in order to comply with other law,

such as state and federal laws that govern data privacy or that impose notification

requirements upon the loss of, or unauthorized access to, electronic information, is

beyond the scope of these Rules.”

►►►► 11

Rule 1.6 (cont.)

Comment: Acting Competently to Preserve Confidentiality (cont.)

“[17] When transmitting a communication that includes information relating to the

representation of a client, the lawyer must take reasonable precautions to prevent the

information from coming into the hands of unintended recipients. This duty, however,

does not require that the lawyer use special security measures if the method of

communication affords a reasonable expectation of privacy. Special circumstances,

however, may warrant special precautions. Factors to be considered in determining the

reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of

the information and the extent to which the privacy of the communication is protected

by law or by a confidentiality agreement. A client may require the lawyer to implement

special security measures not required by this Rule or may give informed consent to the

use of a means of communication that would otherwise be prohibited by this Rule.

Whether a lawyer may be required to take additional steps in order to comply with

other law, such as state and federal laws that govern data privacy, is beyond the scope

of these Rules.” 12

The Punt:

ABA Formal

Opinion 11-459

August 4, 2011

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“Duty to Protect the Confidentiality of

E-Mail Communications with One’s Client”

“A lawyer sending or receiving substantive communications with a

client via e-mail or other electronic means ordinarily must warn the

client about the risk of sending or receiving electronic communica-

tions using a computer or other device, or e-mail account, where

there is a significant risk that a third party may gain access. In the

context of representing an employee, this obligation arises, at the very

least, when the lawyer knows or reasonably should know that the

client is likely to send or receive substantive client-lawyer

communications via e-mail or other electronic means, using a

business device or system under circumstances where there is a

significant risk that the communications will be read by the employer

or another third party.”

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The

Technology

Culture:

Incursions and

Temptations in

Trials, Juries, and

Practice

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• The Wired Client

• The Wired Juror

• The Wired Judge

• The Wired Lawyer

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“Don’t

Get Cocky,

Kid…”

Old Technology That

Can Still Bite

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E-Mail and Encryption 1. E-Mail is not as private as you think it is:

The Rehberg v. Paulk scare

2. Encryption issues: Types and Limitations

- at-rest encryption

- transient encryption

http://www.shannonbrownlaw.com/cms/archives/819

http://www.shannonbrownlaw.com/cms/archives/930

http://www.shannonbrownlaw.com/cms/archives/417

►►► 18

GMAIL

• Google’s computers scan your e-mail for key

words.

• They use those key words to provide

advertisements when you use GMAIL.

• Google stores all that data in their system to

send you targeted advertisements.

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Metadata

Copy Machines Florida Bar Opinion 10-2

http://floridabar.org/tfb/TFBETOpin.nsf/SMTGT/ETHICS, %20OPINION%2010-2

San Diego County Bar Association

http://www.sdcba.org/index.cfm?pg=Legal-Ethics-Corner-4-11

YouTube

20

Laptops / PCs

►►►►

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Safekeeping and Reporting

A. Client file as client property thus subject to safekeeping requirements.

ABA Model Rule 1.15 (“Safekeeping Property”) requires that client property should be

“appropriately safeguarded.” Client property generally includes files, information and documents, including those existing electronically.” (Emphasis added.)

B. Sample Act: Pennsylvania Breach of Personal Information Act

“An entity that maintains, stores, or manages computerized data that includes personal

information shall provide notice of any breach of the security of the system following

discovery of the breach of the security of the system to any resident of this Commonwealth

whose unencrypted and unredacted personal information was of is reasonably believed to

have been accessed and acquired by an unauthorized person.” 73P.S. 2303(a) (Emphasis

added.)

C.Interaction of the Data Breach Acts and the Rules of Professional Conduct:

An Ethical Dilemma?

22

Protecting the Data 1. Full~Disk Encryption

2. Up~To~Date Anti~Virus/Malware/Spyware, Firewalls

3. Up~To~Date Systems

4. Back~Ups

◊ Kelly Jackson Higgins, Half of Machines Shopping on Cyber Monday Likely

Contain Vulnerabilities, http://darkreading.com/insider-threat/167801100/

security/vulnerabilities/240142405/half-of-machines-shopping-on-cyber-

Monday-likely-contain-vunerabilities.html?cd=ni_DR_daily-2012-11-21_html&

elq=ecdae14b5a347ae180bdc5ad645ec990

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The

New

Frontier

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What is the Cloud?

25

Issues:

• Security

• Privacy

• E-discovery

• Records

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Resources https://cio.gov/wp-content/

uploads/downloads/2012/09/

cloudbestpractices.pdf

http://www.shannonbrownlaw.com/

cms/archives/794

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• Persistent

Cookies

• iPhones, Siri,

Apps & Privacy

►►►►

28

• Social Networking Sites

Facebook, Linked-In, Twitter, etc.

1. Informal Discovery

- Witnesses

- Jurors

2. Advertising

29

Ethical Practice

In

Technological

Turmoil:

Discussion

30

Legal

Publishing

Group Thanks To

Shannon Brown, Esq.

sbrown@shannonbrownlaw.com

Jodi Cramer, Esq.

jodi.cramer@verizon.net

Jack Marshall, Esq.

jamproethics@verizon.net

For Their Participation In This Webinar (Power Point Created by Grace Bowen Marshall, ProEthics, Ltd.)

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