Facebook ethics: it’s not about Facebook

facebook11 Facebook ethics: it’s not about FacebookThere is a good deal of postulating in the blogosphere about the types of ethical trouble a lawyer can get into by using social media. The nattering nabobs of negativism warn us to be careful when using social media like Facebook or Twitter, lest we unwittingly disclose client confidences, improperly solicit new clients, or misrepresent facts or law.

Although there is precious little evidence that any lawyers have gotten themselves in ethical hot water using social media, the Philadelphia Bar Association recently gave its own example of the potential dangers when its Professional Guidance Committee issued Opinion 2009-02 (March 2009).

The premise for the opinion is straightforward: a lawyer wanted to know if he could have a non-lawyer assistant send a Facebook “friendâ€� request to a witness for the opposing party in a piece of litigation. The lawyer apparently thought there were juicy tidbits to be found on the witness’s Facebook  page (or at least information with impeachment value) but did not think the witness would accept a friend request directly from the lawyer (no surprise there—he had just recently taken her deposition). But the lawyer thought a friend request from an otherwise unknown assistant stood a good chance of being accepted.

The Philly opinion frowned on the lawyer’s proposal. It called it a “highly material fact� that the witness would be making a friend request without disclosing the real reason for the request. Inducing the witness to respond favorably without that important fact would be a deception traceable to the lawyer, violating several ethics rules.

Whether one agrees with the opinion or not ( I did a double-take the first time I read it), the opinion is not really about Facebook. It actually tackles a difficult subject in legal ethics known as “dissembling� or “pretexting� (which has nothing to do with sending text messages). The terms refer to situations in which a person, particularly a lawyer or the lawyer’s subordinate, pretends to be someone he or she is not for the purpose of obtaining information.

As noted in the Philly opinion, such conduct is permitted in many jurisdictions for the limited purposes of civil rights investigations (think fair-housing testers) or for patent infringement cases. Some jurisdictions, in contrast, have tried to outlaw pretexting entirely (see the authorities cited in the Philly bar opinion).

When one takes a step back from the Philly opinion and looks at it in the context of the larger legal issue, it becomes clearer that while it is certainly possible for a lawyer to violate an ethics rule while using social media, it is the lawyer’s conduct, not the medium, that will likely be at the heart of the issue. An unthinking lawyer who posts too quickly on Facebook or Twitter is not that unlike a lawyer who speaks too loudly about a client matter in a crowded elevator or puts an ad in the yellow pages that inflates the lawyer’s credentials.

The old maxim that one should think before he or she speaks (or tweets) applies no less to the internet than it applies to other forms of communication.

If you are new to social networking, check out our Facebook 101 post.

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Facebook ethics: it’s not about Facebook is a post from the law firm marketing blog, Lawyerist.com

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Emailing clients at work may imperil privilege

The New Jersey Court of Appeals has reversed the decision discussed in this article, finding that the attorney-client privilege trumps employer policy.

watch keyboard button11 Emailing clients at work may imperil privilegeIt 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!

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Emailing clients at work may imperil privilege is a post from the law firm marketing blog, Lawyerist.com

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Notes from a Twitter curmudgeon

twitter logo 125x29111 Notes from a Twitter curmudgeonTo 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.

lawyeristlab banner Notes from a Twitter curmudgeon

Notes from a Twitter curmudgeon is a post from the law firm marketing blog, Lawyerist.com

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Goliath gets poked in the eye

cap and diploma11 Goliath gets poked in the eyeThe 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 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. 

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. 

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.

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Goliath gets poked in the eye is a post from the law firm marketing blog, Lawyerist.com

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New salvo in metadata battle

toy soldiers11 New salvo in metadata battleMaine 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.

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.

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New salvo in metadata battle is a post from the law firm marketing blog, Lawyerist.com

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Delete that thread!

delete key11 Delete that thread!I’ll confess, I’m a threader. I have my mail program set so that when I respond to an e-mail, the previous posts become part of the new message. That way, after multiple exchanges with one person, I can keep just the most recent e-mail and delete all the earlier messages, leaving the entire thread intact in just one message.

But after spending several hours trying to sort through hundreds of pages of a client’s e-mails, many of them duplicate threads and digressions from threads and some replies to one person and some reply-alls, my e-mail practices may be ripe for a new years resolution.

It’s not just that the long and multiple threads are difficult to follow (especially with all those disclaimers in them).  According to Magistrate Judge Susan Nelson (Minnesota Federal District Court), who spoke at a CLE in Minneapolis this past fall, long e-mail threads also create problems for parties trying to identify privileged documents in discovery. Often information in an e-mail that was intended to be privileged is missed during discovery and shows up in some other part of an e-mail thread, waiving the privilege as to that information. A federal district judge in Pennsylvania dealt with the same issue in November 2008 in Rhoads Industries v. Building Materials Corp.

So how can we better manage our threads? For starters, when you’re in an e-mail exchange with one person, delete the previous messages from your inbox, so there’s just one thread instead of several nearly identical ones.  If any of the e-mails had attachments, save the attachment to a document folder; e-mail is a terrible place to store documents anyway.  If you are one of several people to receive an e-mail and intend to leave out other people when you reply, change the subject line (“re:�) of the e-mail so that it will be clear that your e-mail is a branch of the original thread.

And if you feel you must write to the same group of people on an unrelated topic by hitting “reply to all,� change the subject line and delete all the prior posts that are unrelated to your new message.

Not all threading is bad — it’s difficult to track whether a client understood the legal analysis you provided by e-mail when they write back “got it� but your prior message has been deleted. But if we don’t start to do a better job managing our collection and storage of e-mail, we’re just looking for trouble down the road.

lawyeristlab banner Delete that thread!

Delete that thread! is a post from the law firm marketing blog, Lawyerist.com

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“Send me a postcard, drop me a line . . .�

The following is a fictionalized account of a conversation between the plaintiff’s attorneys in Illinois Central Railroad Co. v. Broussard, No. 2007-CA-01010-COA (Miss.Ct. App. Sept. 30, 2008), as reported at 24 Lawyers’ Manual 535 (Oct. 15, 2008).

Associate: You know that asbestos case we filed a couple of weeks ago?

Partner: You mean Broussard? Yeah, that was a close one! Got in just before the statute of limitations expired.

Associate: That’s the one. We got a motion to dismiss on it.

Partner: So what else is new. Fire up your keyboard and let’s knock that one back at them.

Associate: It’s going to be kind of a tough one.

Partner: Why is that?

Associate: Well, they say he’s dead.

Partner: What, do they think we counted the days wrong? We checked and double-checked that we were getting in before the statute expired.

Associate: No, not dead like his claim is dead. Dead like he’s dead. Like gone to a better place dead.

Partner: They think Broussard is dead?!

Associate: Yep.

Partner: Didn’t you talk to him before we filed?

Associate: No, you always like to talk to the clients.

Partner: How dead do they think he is?

Associate: Really quite dead. Like 20 months worth of dead.

Partner: Have you tried calling him?

Associate: Ya. Number disconnected.

Upon being informed the client was dead, the decedent’s firm moved to dismiss their complaint. The Mississippi Court of Appeals, reviewing the district court’s denial of sanctions against the law firm, held 6-4 that the complaint was frivolous and that Rule 11 sanctions should be awarded.

lawyeristlab banner “Send me a postcard, drop me a line . . .�

“Send me a postcard, drop me a line . . .� is a post from the law firm marketing blog, Lawyerist.com

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