30
Nov
2011
An interesting, perhaps troubling, issue raised with respect to security of certain mobile devices. Read more about Carrier IQ (http://www.geek.com/articles/mobile/how-much-of-your-phone-is-yours-20111115/, http://androidsecuritytest.com/features/logs-and-services/loggers/carrieriq/carrieriq-part2/, http://www.wired.com/threatlevel/2011/11/secret-software-logging-video. A somewhat long video of how this works is available here. http://tinyurl.com/cwcyjoc. Although there will likely be more articles about this in the media in the future, this highlights potential security and related issues for users of mobile devices.
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Categories : Confidentiality, Electronic Files, E-mail, Internet Use, Privacy, Security, Cellular phones
11
Jul
2011
A lawyer who is mistakenly copied on an e-mail between opposing counsel and their client, must notify the sender and consult with the lawyer’s own client in deciding whether and how to use the information. Penn. Bar. Ass’n. Comm on Legal ethics and Professional Responsibility Op. 2011-10 (03/2/2011)
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Categories : Confidentiality, Attorney-client relationship, E-mail, Attorney-client privilege, Pennsylvania, Ethics Opinions
3
Jan
2011
The story with a link to the court’s order disqualifying the lawyers who read the misdirected e-mail is here.
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Categories : Confidentiality, California, E-mail, Internet Use, Computer Use, Attorney-client privilege, Privacy
26
Dec
2010
California Formal Opinion 2010-179 outlines the lawyer’s duties when transmitting or storing confidential client information when the underlying technology may be susceptible to unauthorized access by third parties. An attorney’s duties of confidentiality and competence require the attorney to take appropriate steps to ensure that his or her use of technology in conjunction with a client’s representation does not subject confidential client information to an undue risk of unauthorized disclosure. Because of the evolving nature of technology and differences in security features that are available, the attorney must ensure the steps are sufficient for each form of technology being used and must continue to monitor the efficacy of such steps.
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Categories : Confidentiality, California, E-mail, Internet Use, Computer Use, Attorney-client privilege, Privacy, Rules of Conduct, Ethics Opinions, Discipline, Security, Cloud
16
Dec
2010
An article and link to the proposed amendment to emphasize that communication about a case is off limits whether on the Internet or not is here. Trial lawyers should consider asking for an instruction like this no matter where the venue.
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Categories : Texas, Ex Parte Communications, E-mail, Discussion Groups, Internet Use, Computer Use, Rules of Conduct, Social Networking, Social Computing, Evidence
15
Dec
2008
We’ve noted here repeatedly that lawyers must safeguard client confidences, and so this story from CNN caught my eye: their campaign sold off a bunch of Blackberries to recoup some money, but they left all the data — email, home addresses, personal phone numbers, you name it — on the little gems. Now, maybe it shows where Palin bought all those fancy clothes…
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Categories : Confidentiality, Electronic Files, E-mail, Computer Use
12
Nov
2008
This Ninth Circuit decision breaks no new ground, but does remind lawyers that in general there will be no immediate appeal of inadvertent production issues, because both there is no “final decision” and because as a general matter there is no “collateral order” in terms of Cohen. Truckstop.net LLC v. Sprint Corp., (9th Cir., No. 07-35123, 10/28/08). The lawyers perhaps should have tried mandamus…
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Categories : Electronic Files, e-Discovery, E-mail
14
Sep
2008
The New York State Bar Association concluded that lawyers could use gmail and comply with the duty of confidentiality despite the fact that email is ’scanned’ by Google to place contextual ads. The committee warned that this sort of unthinking, automated review was proper, but not human review. N.Y. St. B. Ass’n. Comm. Prof. Eth. Op. 820 (Feb. 8, 2008).
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Categories : Confidentiality, Websites, E-mail, Internet Use, Attorney-client privilege, New York, Privacy, Rules of Conduct, Bar Association, Discipline, Ethics Walls, Malpractice
12
Sep
2008
Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006) is a fascinating case in various ways, and just came to my attention. Apparently, when a user views mail on yahoo, it takes a screenshot of the mail which is stored on the hard drive. While it’s not as easy to later access as a temp file, apparently they reside on the hard drive. I couldn’t find the opinion on line, but it was on westlaw.
Anyone who uses public computers or employer-owned laptops to communicate “in confidence” should examine this issue. I’m not sure it’s accurate, but the court clearly stated that Yahoo, alone, left these ghost emails!
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Categories : Meta-data, Confidentiality, Electronic Files, e-Discovery, Attorney-client relationship, E-mail, Attorney-client privilege, Privacy, Ethics Opinions, Massachusetts
27
Aug
2008
In Formal Opinion 2008-1 (July 2008), the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York addressed various issues concerning the organization, delivery, and the ability to charge clients for delivery of electronic files after the end of a representation. An earlier Wisconsin opinion on the same subject is here.
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Categories : Electronic Files, e-Discovery, Attorney-client relationship, E-mail, Computer Use, New York, Ethics Opinions, Bar Association
16
Jun
2008
Colorado has addressed whether lawyers can review metadata sent by opposing counsel outside the context of discovery. The summary states:
A Sending Lawyer who transmits electronic documents or files has a duty to use reasonable care to guard against the disclosure of metadata containing Confidential Information. What constitutes reasonable care will depend on the facts and circumstances. The duty to provide competent representation requires a Sending Lawyer to ensure that he or she is reasonably informed about the types of metadata that may be included in an electronic document or file and the steps that can be taken to remove metadata if necessary. Within a law firm, a supervising lawyer has a duty to ensure that appropriate systems are in place so that the supervising lawyer, any subordinate lawyers, and any nonlawyer assistants are able to control the transmission of metadata.
A Receiving Lawyer who receives electronic documents or files generally may search for and review metadata. If a Receiving Lawyer knows or reasonably should know that the metadata contain or constitute Confidential Information, the Receiving Lawyer should assume that the Confidential Information was transmitted inadvertently, unless the Receiving Lawyer knows that confidentiality has been waived. The Receiving Lawyer must promptly notify the Sending Lawyer. Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred. In some instances, the lawyers may be able to agree on how to handle the matter. If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.
If, before examining metadata in an electronic document or file, the Receiving Lawyer receives notice from the sender that Confidential Information was inadvertently included in metadata in that electronic document or file, the Receiving Lawyer must not examine the metadata and must abide by the sender’s instructions regarding the disposition of the metadata.
The full opinion, No. 119 (May 17, 2008) is here.
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Categories : Meta-data, Confidentiality, Electronic Files, E-mail, Internet Use, Conflicts, Ethics Opinions, Discipline, Malpractice
30
May
2008
The case, from the West Virginia Supreme Court, is here. There’s a story about it here.
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Categories : E-mail, Internet Use, Privacy, Discipline, West Virginia
20
Apr
2008
Another opinion, this one from the New York County Bar Association (New York County Lawyers’ Ass’n Comm. of Professional Ethics, Op. 738 (March 24, 2008)), suggests that lawyers should not look for metadata (again, we’re not talking in the discovery context). The opinion is here.
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Categories : Meta-data, Electronic Files, E-mail, New York, Ethics Opinions, Malpractice
25
Feb
2008
You can read about another lawyer-to-reporter instead of lawyer-to-lawyer e-mail here!
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Categories : E-mail
20
Feb
2008
Effective January 1, 2008, New Hampshire adopted a rule that clearly protects persons who, in good faith, e-mail confidential information to a lawyer from having the lawyer use the information against the prospective client. The comments to New Hampshshire Rule 1.18 provide in part: “In its version of these provisions, New Hampshire’s rule eliminates the terminology of ‘discussion’ or ‘consultation’ and extends the protections of the rule to persons who, in a good faith search for representation, provide information unilaterally to a lawyer who subsequently receives and reviews the information. This change recognizes that persons frequently initiate contact with an attorney in writing, by e-mail, or in other unilateral forms, and in the process disclose confidential information that warrants protection.”
The rule no doubt makes it more important for NH lawyersto use effective disclaimers on their web pages.
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Categories : Confidentiality, Websites, Attorney-client relationship, Disclaimers, E-mail, New Hampshire, Internet Use, Computer Use, Attorney-client privilege, Conflicts, Rules of Conduct
