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
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
31
Aug
2007
I don’t think this is on-line, but in an August 8 opinoin (07-02), the Iowa State Bar Association Committee on Ethics and Practice Guidelines addressed an interesting prospective client problem: the lawyer has a personal contact with a prospective client, gains confidences, but while in the process of deciding whether to take the case, he receives an unsolicited e-mail from the party that the prospective client needs to sue. The e-mail discloses confidences, too.
The opinion concluded that whether the lawyer encouraged the communication was the critical question: “Did the lawyer say or do anything that enticed or prompted the potential client to contact the lawyer and transmit confidential information.” Emphasizing that the question was difficult to answer, the Iowa opinion said that whether the lawyer had to keep the e-mail confidential turned on (1) all of its communicaiotn to see if it could “be interpreted to create a reasonable expectation that the lawyer or law firm was willing to discuss the possibility of representation” and (2) determine if the firm said or published anything “that would lead a reasonable person to believe that they could give or share factual or other confidential information with the lawyer without” first establishing an attorney-client relationship. If both questions were answered yes, the lawyer or law firm would be disqualified. It concluded by recommending “some form of notice” about confidentiality.
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Categories : Confidentiality, E-mail, Conflicts
7
Jun
2007
In the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an e-mail link on a law firm website must hold the information in confidence, even if the lawyer declines the representation. Massachusetts Bar Opinion 2007-01.The opinion also addresses whether the lawyer’s firm can represent a party adverse to that prospective client.
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Categories : Confidentiality, Websites, Attorney-client relationship, Disclaimers, Conflicts, Massachusetts
17
Jan
2007
Lawyers must consider confidentiality and other ethical issues associated with inquiries they receive through a website. Informal opinion 2080 (2006).
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Categories : Confidentiality, Websites, Advertising, Disclaimers, Washington, Conflicts, Solicitation
4
Aug
2006
North Carolina 2005 Formal Ethics Opinion 10 (January 20, 2006) discusses the ethical considerations of a virtual law practice and unbundled legal serivces.
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Categories : Confidentiality, Websites, Advertising, Attorney-client relationship, UPL, Conflicts, North Carolina
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
2
Jun
2001
Lawyers who receives an unsolicited communication from a prospective client may represent another client in the same matter against the prospective client. Ass’n of Bar of City of New York Opinion 2001-1. (March 2001). Where the web site does not adequately warn that information transmitted to the lawyer or firm will not be treated as confidential, the information should be held in confidence by the lawyer receiving the communication and not disclosed to or used for the benefit of the other client even though the lawyer declines to represent the potential client.
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Categories : Confidentiality, Websites, Attorney-client relationship, E-mail, New York, Conflicts
17
May
2001
By providing the opportunity to contact a law firm by e-mail through a website, law firms exposes themselves to certain risks. Opinion 20000179 (2000) (see also Opinion 20000103). Law firms can reduce these risks with a disclaimer, but they cannot avoid them. These risks include the establishment of an attorney-client relationship and conflicts.
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Categories : Websites, Advertising, Attorney-client relationship, Missouri, Conflicts
17
Mar
2001
Lawyers may respond to an invitation to bid on legal projects through an internet website where client’s invitation is not initiated by lawyer, where only the client is charged a fee, no legal fees are shared with the service provider, and responding lawyers are not pre-screened, approved, or otherwise regulated by the plan. See New York City 2000-1.
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Categories : Confidentiality, States, Lawyer Referral Services, Websites, Advertising, New York, UPL, Conflicts
20
Jan
2000
It is proper for an Ohio lawyer to place an on-line intake form on the law firm’s Internet website that enables web site visitors to e-mail legal questions to the law firm and receive responses by e-mail from a lawyer for a fee. Opinion 99-9 (December 2, 1999). The opinion outlines ethical considerations for lawwyers to follow to insure compliance with applicable rules of professional conduct.
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Categories : Confidentiality, Lawyer Referral Services, Websites, Advertising, Attorney-client relationship, Ohio, UPL, Conflicts, Lawyer Independence
6
Apr
1999
Proposal to open National Internet Law Office does not comply with Washington state advertising rules relating to trade names and raises conflicts, fee splitting, and confidentiality concerns. Informal opinion 1831 (1998).
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Categories : Confidentiality, Advertising, Washington, 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
20
Oct
1998
Lawyers may operate and advertise a trademark practice over the Internet, as long as the lawyer complies with applicable rules to check client conflicts, post appropriate notices, preserve client confidences, and complye with applicable advertising rules. Opinion 709 (September 16, 1998). The opinion also addresses exchanges of client confidential information via unencrypted e-mail.
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Categories : Confidentiality, Websites, Advertising, Disclaimers, E-mail, New York, Conflicts
