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
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
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
14
Jan
2007
Public defenders sharing a computer server with other county offices must take appropriate measure to protect confidential information stored on those computers. Nebraska ethics advisory opinion 06-05.
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Categories : Confidentiality, Computer Use, Attorney-client privilege, Nebraska
8
Jun
2005
The Ninth Circuit has issued a decision which analyzes the impact of disclaimers on law firm websites which purport to deny formation of an attorney client relationship to those who submit information through forms on law firm web sites. The Ninth Circuit permitted a plaintiff who had submitted information to a firm while disclaiming creation of any attorney-client relationship to claim privilege over it. In contrast, a recent Interim opinion from California suggests that lawyers can avoid creating a confidential relationship only by specifically denying any obligation of confidentiality in order to avoid disqualification by a prospective client using the firm’s website. The same conclusions were reached a few months earlier in Nevada Formal Ethics Opinion No. 32 (March 25, 2005). Taken together, the opinions suggest that denying confidentiality is necessary to avoid disqualification, but doing so will preclude the person who submits the information from claiming privilege over it. Professor Hricik suggests some model language that avoids these issues.
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Categories : Confidentiality, Websites, Attorney-client relationship, California, Disclaimers, Attorney-client privilege
3
Aug
2003
As reported in Ethics and Lawyering Today, In City of Reno v. Reno Police Protective Ass’n, 59 P.3d 1212 (Nev. 2002), modified, 2003 Nev. LEXIS 25 (Nev. May 14, 2003), the Nevada Supreme Court held that a privileged attorney-client communication retained its privileged status despite claims by the opposing side claiming that the privilege had been waived by the fact that the message had been e-mailed. The court relied, in part, on ABA Formal Opinion 99-413 (1999), which held that sending unencrypted internet email does not violate a lawyer’s duty of confidentiality (not an opinion on privilege, as such). The court also noted that both federal and California statutes say that unlawfully intercepted electronic communications do not lose their privileged status.
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Categories : Confidentiality, Nevada, E-mail, Attorney-client privilege
13
Feb
2002
In opinion 2001-02, the Delaware State Bar Association Committee on Professional Ethics addressed the transmission of confidential client information via e-mail and cellular telephones. The committee opined that the transmission of confidential information by way of e-mail or mobile (or cell) phone, absent extraordinary circumstances, does not violate rule 1.6. Extraordinary circumstances include circumstances in which the lawyer should reasonably anticipate the possibility that his or her communication could be intercepted and confidences disclosed, such as sharing an e-mail account with others.
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Categories : Confidentiality, E-mail, Attorney-client privilege, Delaware
16
Jun
2001
In Md. State Bar Assn. Committee on Ethics Opinion 01-03 (May 16, 2001), the committee opined that a proposed Internet business that would bring lawyers together with potential clients and which would share in the resulting fees, was not ethically permissible on the grounds that it would (a) involve prohibited fee sharing with nonlawyers, (b) pose risk of conflicts, and (c) potentially endanger prospective clients; attorney-client privilege. Maryland ethics opinions are not available online without an account.
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Categories : Maryland, Websites, Advertising, Attorney-client privilege, Conflicts, Fee sharing
4
Apr
1999
In opinion 980026, the Missouri bar analyzed the issues raised by a proposal by unaffiliated lawyers to provide generalized legal information offer access to three attorneys who are non-affiliated, private practitioners. Although a plain and unambiguous disclaimer may be sufficient to alert someone to the actual nature of the relationship, it may not be sufficient to insulate the lawyers from being treated as a firm from an ethical standpoint. In addition to the concerns about creating the appearance of a firm, lawyers should also be aware that there are concerns about soliciting e-mail from prospective clients through a web site. If a lawyer engages in the practice of communicating with current or prospective clients by e-mail, the lawyer bears the responsibility of providing them timely advice regarding the relative security of communication by e-mail, in general, and in the particular computer setting through which they would be communicating. Lawyers also creates the potential for conflicts of interest through the receipt of substantive information by e-mail.
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Categories : Websites, Advertising, Attorney-client relationship, Disclaimers, E-mail, Missouri, Attorney-client privilege, Conflicts
4
Jan
1999
Lawyers may not allow the office-sharing counsel to join lawyer’s computer network without blocking access to lawyer’s client files. Opinion 980030 (1998). The result would be different if that lawyer were “of counsel” to lawyer’s firm.
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Categories : Confidentiality, Electronic Files, Computer Use, Missouri, Attorney-client privilege
8
Nov
1998
Virginia lawyers should not keep and use documents electronically transmitted to the lawyer inadvertently by opposing counsel. Opinion 1702 (November 24, 1997).
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Categories : Confidentiality, Virginia, Electronic Files, Work Product Protection, Attorney-client privilege
15
Jun
1996
Illinois State Bar Association Opinion 94-11 (November 1994) addresses confidentiality issues raised by cellular telephone use. It also discusses participation in legal advice service and treatment of referral services.
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Categories : Confidentiality, Lawyer Referral Services, Advertising, Attorney-client privilege, Illinois
