Eric Cooperstein 
It is probably fair to say that most lawyers have grown accustomed to the convenience of emailing clients. Less disruptive than phone calls, more efficient, creates documentation of conversations—hard to believe anyone could ever practice law without email. From an ethics perspective…
The New Jersey Court of Appeals has reversed the decision discussed in this article, finding that the attorney-client privilege trumps employer policy.
It is probably fair to say that most lawyers have grown accustomed to the convenience of emailing clients. Less disruptive than phone calls, more efficient, creates documentation of conversations—hard to believe anyone could ever practice law without email.
From an ethics perspective, there is generally no problem sending confidential or privileged communications through cyberspace; several ethics authorities (including the ABA) have said that email does not even need to be encrypted. Although one has to be careful about inadvertently sending a confidential email to the wrong person, that problem is created by the sender, not by email as a communication tool.
Work Zones. There has been a growing awareness—and a line of cases—about the risks of sending privileged emails back and forth with clients who are using their employer-provided email accounts.
Depending on how diligent the employer is about announcing and reminding its employees of its policies, an employer can successfully decree that anything done on the employer’s computer (including laptops) is subject to review by the employer and carries no expectation of privacy. As noted in a previous post, that can apply to otherwise confidential and privileged emails between an employee and his or her lawyer.
Web-based emails may not be safe. A recent New Jersey state district court decision, Stengart v. Loving Care Agency, Inc. (PDF link), took this principal one nasty step further. The court said that not only can the privilege be waived for emails sent using the employer’s email program and computers, but it can also be waived for emails sent through a web-based email program while using the employer’s computer. The employee had been emailing her lawyer using a Yahoo! account, which she accessed when using her company laptop. After the employee quit, the company imaged the laptop’s hard drive, and later found temporary internet files reflecting her emails. The court followed the reasoning of a very similar federal district court decision.
If this ruling remains intact and is followed by other courts, attorneys could be significantly curtailed in their ability to communicate with clients during the work day—or at all. Some clients use their work desktop or laptop as their only computer. And if the rule applies to employer computers, I cannot see why it would not apply to Blackberrys and other email-enabled mobile devices provided by the employer. Essentially, to communicate with a lawyer during the work day, an employee would need to either bring his or her own computer to work or have a separate mobile device for their own email account.
It seems pretty clear that the highest risk for these types of unexpected privilege waivers will come in employment disputes, where the employer has a direct interest in getting as much information about the employee as it can. But one could easily envision situations in which a small employer in a small town decides to help out his buddy in his marriage dissolution by combing through the computer and emails of his buddy’s spouse to see what they can dredge up.
Of course, a rule like this need not act as a total bar on emailing clients at work but lawyers should have a heightened awareness of the privacy (or lack thereof) that will be accorded to emails that need to be kept confidential, such as settlement discussions, case strategies, discussions of client wrongdoing, etc. In some situations, lawyers may have to forsake email in favor of—gasp!—the telephone!
Emailing clients at work may imperil privilege is a post from the law firm marketing blog, Lawyerist.com
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Within recent days two states – Maine and Alabama– have turned back restrictive lawyer advertising proposals (first heard from the ABA’s Will Hornsby, who is now on twitter). Let’s hope it’s part of a trend. Maine became another of the vast majority of states to adopt rules (effective Aug. 1, 2009) consistent with the ABA’s revised Model Rules of Professional Conduct.
Within recent days two states – Maine and Alabama– have turned back restrictive lawyer advertising proposals (first heard from the ABA’s Will Hornsby, who is now on twitter). Let’s hope it’s part of a trend.
Maine became another of the vast majority of states to adopt rules (effective Aug. 1, 2009) consistent with the ABA’s revised Model Rules of Professional Conduct. In the advertising arena, however, Maine departed from the ABA Model in two important respects. When it comes to soliciting business from prospective clients, ABA Model Rule 7.3 broadly prohibits live contact with anyone who is not a lawyer or does not already have a family, personal, or business relationship with the lawyer. This is the anti-ambulance chasing rule. Unfortunately, it applies not just to accident victims and patients in hospital beds, but to all prospective clients, including CEOs, corporate directors, people needing estate planning, etc.
But Maine’s new version of Rule 7.3 narrowly tailors the restriction only to where it’s needed: for “non-commercial clients” where the solicitation by the lawyer “involves or has substantial potential of harassing conduct, coercion, duress, compulsion, intimidation or unwarranted promises of benefits.” Then it goes on to state that the test for determining whether a solicitation is improper is multi-factored, requiring an analysis of the sophistication of the client regarding legal matters, the physical and emotional state of the prospective client, and the circumstances surrounding the solicitation. Now there’s a rule that should be a model for other states!
Regarding written solicitations of new clients, the ABA and many states require that the words “Advertising Material” appear on the outside of the envelope, putting the solicitation letter on the fast track to the prospective client’s trash can. Not Maine. As noted in a comment to Maine’s new rule, concerns over client harassment, overreaching, and deception are adequately addressed by its other advertising rules, so there’s no need for a warning about the contents of the envelope. It’s almost like Maine wants its lawyers to be able to get new clients.
Maine also retained the unique “Aspirational Goals for Lawyer Advertising” that it adopted in 2005. Essentially, Maine has taken many of the black-letter restrictions from other states on crass slogans, wild dramatizations, the use of professional actors, etc., and asks Maine’s lawyers to stay away from unseemly advertising that might bring down the reputation of the entire profession. One would assume that if the aspirational standard was not working, the Maine Supreme Court would have taken this opportunity to impose greater restrictions.
In Alabama, the Montgomery Advertiser reported that the Alabama Supreme Court had rejected a petition by the Board of Bar Commissioners to ban “paid actors, jingles and wreck videos” from lawyer advertising to raise ads up out of the muck. Apparently, the Court gave no explanation for its decision but some may speculate about the lucrative residuals that may come from writing catchy jingles for law firm commercials.
These developments come close on the heels of the NJ Supreme Court’s decision last June to allow NJ attorneys to refer to themselves as having been blessed with the label “SuperLawyer” (as long as they have been so anointed). Restrictive advertising rules for NY are under review by the 2nd Circuit, and a plan to implement a program for pre-publishing approval of lawyer ads in Louisiana is still winding its way through Federal court (as tweeted by La. ethics attorney Beth Alston).
If this keeps up, we may eventually see sane lawyer advertising rules prevail across the country.
The post Two states opt for sane lawyer advertising rules appeared first on Lawyerist.com.
To my own surprise, I’ve been using Twitter lately (“tweeting,” for those in the know). I say surprise because I really still don’t understand what all the fuss is about. But there’s an awful lot of fuss and I hate to be the last one to show up at a party. Since Sam encouraged people last week to use Twitter, I thought I’d share how I’m using Twitter so that maybe others will be persuaded to give it a try as well.
To my own surprise, I’ve been using Twitter lately (“tweeting,� for those in the know).  I say surprise because I really still don’t understand what all the fuss is about. But there’s an awful lot of fuss and I hate to be the last one to show up at a party. Since Sam encouraged people last week to use Twitter, I thought I’d share how I’m using Twitter so that maybe others will be persuaded to give it a try as well.
Although many people put personal, clever, and/or random thoughts on Twitter, I find I have too many of my own random thoughts to focus on anyone else’s. I also don’t have the time or inclination to tweet repeatedly during the day.  Instead, I tweet on topics relevant to my practice, which is focussed on all aspects of legal ethics, law firm disputes, attorney-client privilege, and related topics.  So when I get wind of a new ethics decision, a proposed rule, or the like, I tweet it with a link to a document if possible. For example, a recent tweet:
SCOTUS granted cert on Q of appealability of orders to disclose atty-client privileged info.http://www.timesurl.at/93cb64
Because a tweet is limited to 140 characters, it’s important to use one of the URL-shortening services such as TimesURL or TinyURL!
Posting to Twitter has become an easy way for me to comment on information that comes across my desk without having to compose a complete blog entry (if I want to be a little more self-serving, I can tweet a link to my blog posts to try to increase traffic to Lawyerist). Over time, my Twitter page becomes full of short, helpful tips or links to documents that lawyers can use in their practice. I have even gone back to my own Twitter page to find a link to an article. By periodically deleting some of the posts that are indecipherable to others (such as my replies to other people’s tweets), my Twitter page remains substantive. I am trying to provide worthwhile content to the people who follow me.
I am a Twitter neophyte — as of this writing I had a mere 50 followers.  Most of the people who have chosen to follow me are not from Minnesota, so it seems unlikely that Twitter will be a source of business or referrals, at least in the near term. But it’s fun to be a part of the latest internet experiment, notwithstanding my curmudgeonly attitude.
You can follow me at www.twitter.com/Ethics_Maven. If you don’t like it, it’s just another click to stop following.
Notes from a Twitter curmudgeon is a post from the law firm marketing blog, Lawyerist.com
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The Massachusetts Supreme Judicial Court gave a boost to on-line legal education (and declined to bow down to the ABA) recently when it allowed a graduate of Concord Law School, an entirely on-line law school owned by Kaplan, Inc., to sit for the Massachusetts Bar Exam, despite a state rule that prohibits graduates from unaccredited law schools from taking the exam. The decision is available on-line (of course!).
The Massachusetts Supreme Judicial Court gave a boost to on-line legal education (and declined to bow down to the ABA) recently when it allowed a graduate of Concord Law School, an entirely on-line law school owned by Kaplan, Inc., to sit for the Massachusetts Bar Exam, despite a state rule that prohibits graduates from unaccredited law schools from taking the exam. Â The decision is available on-line (of course!).
The vast majority of state and territorial jurisdictions will only let students sit for the bar exam if they have graduated from an ABA-accredited law school. The idea is to set some minimum standards for legal education, such as the student-faculty ratio, the number of total credits, clinical education and writing requirements, etc. The standards are quite extensive, available here. The ABA only allows a total of 12 credits of on-line education in the course of obtaining a three-year law degree.
On-line schools argue that legal education could be 50% to 75% cheaper if it didn’t have to support multi-million dollar library collections, bricks and mortar school buildings, and faculty scholarship.  Unfortunately, getting an on-line degree and being admitted in California (which allows grads of unaccredited schools to sit for its exam) is of little use if your family later decides to move to one of the many states that won’t allow you to be admitted on motion or by exam because of the school from which you graduated.Â
The Massachusetts decision is written as a one-off: they didn’t find their rule regarding accredited schools unconstitutional or unenforceable, but they thought that the applicant was really smart (after all, they said, they read all his pro se briefs) and the ABA has recently announced that it will be reviewing its accreditation standards. The Court could not predict what the ABA would decide, but seemed very hopeful.  Hence, they gave the applicant a waiver of the usual requirements.Â
If more states follow Massachusetts, the whole rationale for the ABA’s rigid accreditation standards may start to erode. It looks as though there will be some pressure on the ABA to lead legal education into the 21st century.
Goliath gets poked in the eye is a post from the law firm marketing blog, Lawyerist.com
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Maine has become the latest state to take sides in the grudge match over whether it is ethical for lawyers to search electronic documents for metadata hidden beneath the bytes. Maine says no, joining New York (both the state and county bars), Florida, Alabama, and Arizona. The ABA (Formal Op. 06-442), Maryland, Colorado, and D.C. place the heavier burden on the party creating or sending the electronic document and permit recipient lawyers to search at will. Pennsylvania sort of punted.
Maine has become the latest state to take sides in the grudge match over whether it is ethical for lawyers to search electronic documents for metadata hidden beneath the bytes. Â Maine says no, joining New York (both the state and county bars), Florida, Alabama, and Arizona. Â The ABA (Formal Op. 06-442), Maryland, Colorado, and D.C. place the heavier burden on the party creating or sending the electronic document and permit recipient lawyers to search at will. Pennsylvania sort of punted.
So the score, if you will, is now 6 to 4 against searching for hidden gems, unless one gives extra points to the ABA.
For the uninitiated, all this gnashing of teeth is over the risks of transmitting documents embedded with “metadata� – information that does not appear on the computer screen or on the printed copy of the document but nevertheless lurks somewhere in the electronic skeleton of a document, particularly word processing documents. Even fillable PDF documents may contain information that was entered into various fields and deleted later. Mostly it’s boring stuff: the author’s name, the date the document was created, the number of versions, etc.
But we all know that some people are pretty sloppy with their technology. The tech-saavy recipient could spend some time exploring the inner reaches of the document, uncovering comments and redlined changes, in the hopes of finding a higher settlement number, a juicy undisclosed fact, or a dreaded admission against interest. Or could she?
Most large law firms, and even solo or small law firms, address the problem with software that automatically scrubs the metadata from electronic documents before they are launched into cyberspace. There are even some free scrubbers out there, such as Doc Scrubber (which I have not tested).  That prevents being the leaker of confidential information and makes your malpractice carrier happier. But it doesn’t address what one is allowed to do upon receiving documents from opposing counsel and other parties that may contain metadata. Hence, all these ethics opinions.
The “don’t look� jurisdictions take the moral high ground, “do unto others . . .� and all that. Lawyers should not be in the business of intruding on the sanctity of someone else’s attorney-client relationship. Shame on us for even thinking about it.
The “caveat emptor� jurisdictions put the burden on the sender to protect his or her client’s information, except perhaps where it’s obvious on the face of the document that privileged information has been inadvertently disclosed. The ABA, having tried the moral high ground in 1974 on the issue of lawyers secretly tape recording conversations, only to reverse it self in 2001, declined to go that route again.
Stay tuned, this battle does not appear to be over yet. In the meantime, it is safe to say that lawyers have an obligation to protect their clients’ confidential information and prevent its disclosure. Lawyers who use the red-lining and commenting tools in their word processing documents as a means of communicating with clients are at greater risk for disclosing confidential information through metadata than lawyers who merely transmit final copies of documents to clients and other parties. No rule requires lawyers to use document scrubbing software, but lawyers likely have a responsibility to educate themselves about the types of metadata that may be retained in documents and learn how to remove the data or convert the document to a form that will not contain metadata.
New salvo in metadata battle is a post from the law firm marketing blog, Lawyerist.com
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