Legalethics.com

Pennsylvania Lawyers Should Consult With Client Regarding Receipt of Errant E-mail

Peterk — Tue, 12 Jul 2011 04:33:38 +0000

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)

Kentucky Proposes Fee, Regulation of Social Networking Posts

David Hricik — Wed, 01 Dec 2010 15:44:40 +0000

The article with links to the proposal are here. To avoid getting any Kentucky readers in trouble, please don’t blog about this!

Screenshots Created by Yahoo Mail and Left on Hard Drive?

David Hricik — Fri, 12 Sep 2008 10:13:09 +0000

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!

New York City Bar Association Addresses Electronic File Copying and Retention

David Hricik — Wed, 27 Aug 2008 15:21:09 +0000

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.

New Hampshire Adopts Rule Protecting Prospective Clients who Unilaterally Email Law Firms

David Hricik — Wed, 20 Feb 2008 15:20:22 +0000

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.

Lawyers receiving unsolicited e-mails from prospective clients via website must hold information received in confidence

Peterk — Fri, 08 Jun 2007 01:37:35 +0000

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.

North Carolina opinion addresses ethical concerns raised by an internet-based or virtual law practice and the provision of unbundled legal services

Peterk — Fri, 04 Aug 2006 23:05:22 +0000

North Carolina 2005 Formal Ethics Opinion 10 (January 20, 2006) discusses the ethical considerations of a virtual law practice and unbundled legal serivces.

Lawyers may disclaim owing a duty of confidentiality to website visitors

Peterk — Sat, 03 Jun 2006 00:00:00 +0000

A lawyer who provides web site visitors a means for electronic communication may effectively disclaim owing a duty of confidentiality to web-site visitors only the lawyer’s disclaimer is in sufficiently plain terms to defeat the visitors’ reasonable belief that the lawyer is consulting confidentially with the visitor. Simply having a visitor agree that an “attorney-client relationship” or “confidential relationship” is not formed would not defeat a visitor’s reasonable
understanding that the information submitted to the lawyer on the lawyer’s web site is subject to confidentiality. California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal, Op. 2005-168

Ninth Circuit analyzes the impact of disclaimers on law firm websites

Peterk — Thu, 09 Jun 2005 04:00:00 +0000

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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.

Lawyers leaving a law firm must not surreptitiously take client files from the firm or delete client records from its computer system

Peterk — Thu, 15 Apr 2004 01:51:05 +0000

Maryland lawyers may not surreptitiously take client files or delete client records from a law firm comptuer system, even if the lawyer fears that the firm wil interfere with the clients’ representation. See Maryland Attorney Grievance Comm’n v. Potter, Md., Misc. Docket AG No. 92 (Mar. 9, 2004).