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)

California Issues Ethics Opinion on Confidentiality and the Use of E-mail and Technology To Transmit Client Information

David Hricik — Sun, 26 Dec 2010 11:44:12 +0000

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.

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.

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Colorado Issues Metadata Opinion

David Hricik — Tue, 17 Jun 2008 03:15:43 +0000

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.

New York County Bar Association Addresses Metadata

David Hricik — Sun, 20 Apr 2008 17:10:37 +0000

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.

Review and Use of Metadata in Electronic Documents

Peterk — Tue, 11 Sep 2007 01:38:58 +0000

The DC Bar issued ethics opinion 341 concerning the review and use of metadata. ”A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent. In such instances, the receiving lawyer should not review the metadata before consulting with the sending lawyer to determine whether the metadata includes work product of the sending lawyer or confidences or secrets of the sending lawyer’s client.”

Nassau County Bar Association Ethics Opinions

Peterk — Sat, 04 Mar 2006 22:29:30 +0000

Nassau County Bar Association Ethics Opinions are available online.

California lawyers may not communicate with mass disaster victims via Internet chat rooms

Peterk — Thu, 13 Jan 2005 03:45:09 +0000

While an lawyer’s communication with a prospective fee-paying client in the mass disaster victims Internet chat room is not a prohibited solicitation such communication is improper as it is delivered to a prospective client whom the attorney knows may not have the requisite emotional or mental state to make a reasonable judgment about retaining counsel. See COPRAC opinion 2004-166

Colorado lawyers may surreptitiously record conversations under certain circumstances

Peterk — Thu, 21 Aug 2003 02:59:46 +0000

Assuming that relevant law does not prohibit the recording, there are two categories of circumstances in which attorneys generally should be ethically permitted to engage in surreptitious recording or to direct surreptitious recording by another. See Formal Ethics Opinion 112 (July 19, 2003).