Legalethics.com

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.

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!

NY St. Bar Ass’n Approves Gmail Use Despite Contextual Ad Scanning

David Hricik — Sun, 14 Sep 2008 14:54:28 +0000

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).

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.

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Lawyer Suspended for Snooping on Wife’s, Other Lawyers’, E-mails

David Hricik — Fri, 30 May 2008 11:59:15 +0000

The case, from the West Virginia Supreme Court, is here. There’s a story about it here.

Directory of State Disciplinary Agencies

Peterk — Mon, 08 Nov 1999 05:00:00 +0000

The ABA offers a directory of state disciplinary agencies.

Georgia Ethics Opinions

Peterk — Sun, 08 Nov 1998 20:47:10 +0000

The State Bar offers a topical index to Advisory Opinions, Advisory Opinions from the Supreme Court of Georgia, and Advisory Opinions from the State Disciplinary Board. In addition, Mercer Law School has the Mercer Center for Legal Ethics and Professionalism.

Canter Disciplinary Judgment #95-831

Peterk — Thu, 05 Jun 1997 01:21:16 +0000

A posting on bulletin board is violation of Tennessee DR 1-102(A)(1), (5),(6), and DR 2-103. Must include “This Is An Advertisement” disclaimer. Description as “Immigration Attorneys” presented the attorneys as specialists without the requisite disclaimer. Additional violation for failure to sent a copy to Board 3 days prior to publication.

________________________________________________________

The following are excerpts of a judgment in which an attorney licensed to practice in Tennessee was disbarred. Although the judgment addressed both Internet and non-Internet related matters, the excerpts primarily address Internet related matters.

IN DISCIPLINARY DISTRICT
OF THE BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE
SUPREME COURT OF TENNESSEE In Re: Laurence A. Canter
An Attorney Licensed to
Practice Law in Tennessee
(Out of State Practice) Docket Nos.

95-831-O-H
96-868-O-H
96-908-O-H
96-910-O-H

JUDGMENT OF THE HEARING COMMITTEE
This cause was heard by the Hearing Committee of the Board of Professional Responsibility of the Supreme Court of Tennessee on January 24, 1997, pursuant to Rule 9, Rules of the Supreme Court. The matter was taken under advisement pending the submission of proposed findings of fact and conclusions of law which were filed on February 6, 1997. After due consideration of the exhibits and testimony, the pleadings, argument of counsel and the record as a whole, this Hearing Committee makes the following findings of fact and conclusions of law and submits its judgment in this cause:
¶2 The Internet Petition, Docket No. 95-831-O-H, was filed on June 18, 1995. …

…

¶¶ 36-39 [Noting certain ethical violations in the non-Internet matters, including knowing conversion of client funds, the Committee noted that disbarment was appropriate discipline (Citing ABA Standards for Imposing Lawyer Sanctions, No. 5.11).]
DOCKET No. 95-831-O-H
THE INTERNET MATTER

¶40 Respondent filed an answer relative to the petition designated as Docket No. 95-831-O-H which alleges that Respondent violated the Code of Professional Responsibility relative to an advertisement on the Internet.

¶41 Disciplinary Counsel filed a Request For Admissions that the book, How To Make A Fortune On the Information Highway, was a book written by Respondent and that the statements contained therein are true to Respondents belief. Respondent did not respond to this request, therefore, the book has been deemed so admitted, pursuant to Rule 36, Tennessee Rules of Civil Procedure.

¶42 Disciplinary Counsel on July 23, 1996, propounded interrogatories on the Respondent. Respondent has filed no answer to said interrogatories.

¶43 Respondent did not make an appearance at the hearing concerning Docket No. 95-831-O-H nor has Respondent offered any proof thereto.

¶44 The hearing panel on January 24, 1997, heard the Internet Matter separately from the Non-Internet cases. The hearing panel considered the allegations relative to the Internet separately from the other allegations relative to Respondent.

¶45 At the hearing on January 24, 1997, relative to the Internet, Disciplinary Counsel offered Gregory H. Siskin (sic)1 an expert relative to lawyer advertising on the Internet. Mr. Siskin is a Nashville attorney whose legal practice focuses on Immigration Law and who utilizes the Internet. Mr. Siskin also saw the advertising that Respondent made on the Internet. The hearing panel found Mr. Siskin to be qualified as an expert. It was Mr. Siskin’s expert opinion that the advertising by Respondent on the Internet violated the standards of conduct for use of the Internet as well as Tennessee’s Code of Professional Responsibility.

¶46 On or about April 13, 1994, Respondent engaged in placing an advertisement that appeared on more than 5,000 Internet groups and thousands of E-Mail lists. The posting was unsolicited.

¶47 The posting read in totality:
Green Card Lottery 1994 May Be The Last One! THE DEADLINE HAS BEEN ANNOUNCED.
“The Green Card Lottery is a completely legal program giving away a certain allotment of Green Cards to persons born in certain countries. The lottery program was scheduled to continue on a permanent basis. However, recently, Senator Alan J. Simpson introduced a bill into the U.S. Congress which could end any future lotteries. THE 1994 LOTTERY IS SCHEDULED TO TAKE PLACE SOON, BUT IT MAY BE THE VERY LAST ONE.

PERSONS BORN IN MOST COUNTRIES QUALIFY, MANY FOR FIRST TIME.

The only countries NOT qualifying are: Mexico, India, P.R. China; Taiwan, Philippines, North Korea, Canada, United Kingdom (except Northern Ireland), Jamaica, Dominican Republic, El Salvador, and Vietnam.

Lottery registration will place soon. 55,000 Green Cards will be given to those who register correctly. NO JOB IS REQUIRED.

THERE IS A STRICT JUNE DEADLINE. THE TIME TO START IS NOW!!

For the next FREE, information via Email, send request to cslaw@indirect.com******

Canter & Siegel, Immigration Attorneys 3333 E Camelback Road, Ste 250, Phoenix AZ 85019 USA cslaw@indirect.com telephone (602) 661-3911 Fax (602) 451-7617″

¶48 The posting appeared on computer screen unsolicited, and each reader was required to read at least the introduction of each message. The posting appeared on Bulletin Boards having no relevance to immigration law. It was, therefore, an improper intrusion into the privacy of the recipient, in violation of DR 1-102(A)(1), (5) and (6), and DR 2-103.

¶49 Internet users/readers generally pay by the minute for access to the various Bulletin Boards. They, therefore, had to pay for the time they so viewed it. The recommendation for legal retention and employment was, therefore, not only unsolicited, but also at the recipient’s expense. This was violation of DR I-102(A)(5) and (6), and DR 2-103(A).

¶50 At the time of this advertisement, DR 2-1O1(N) required the words: “This Is An Advertisement” to be included on communications soliciting professional employment. The posting placed by Respondent did not contain this language and thereby violated DR 2-1O1(N).

¶51 The Respondent’s firm, particularly describing itself as “Immigration Attorneys”, presented itself as a specialist. However, the posting did not contain the disclaimer required by DR 2-1O1(C).

¶52 Respondent did not deliver to the Board of Professional Responsibility a copy of this posting within three days of its distribution as required by DR2-1O1(F).
DEGREE OF DISCIPLINE TO BE IMPOSED
RELATIVE TO THE INTERNET MATTER

.
¶53 ABA Standards For Imposing Sanctions, 7.l, 7.2, 7.3, and 7.4 provide the standards for imposing discipline in lawyer advertising cases. Standard 7.3 states that a reprimand (censure), “is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system.” Standard 7.2 states that a suspension is appropriate if the conduct is “knowingly.”

¶54 This posting caused injury to the public by intruding improperly into the privacy of computer users by compelling recipients to pay for an advertisement they did not want nor solicit. The advertisement has further damaged the reputation of the legal profession and thereby the legal system.

¶55 The following are aggravating factors to be utilized in assessing discipline in the Internet case: (ABA Standards For Imposing Sanctions. 9.2).
prior disciplinary offenses,

dishonest or selfish motive

bad faith obstruction of the disciplinary proceedings, and

refusal to acknowledge wrongful nature of misconduct.
¶56 There are no mitigating factors appropriate to the Internet case.

JUDGMENT OF THE HEARING COMMITTEE

Based upon the pleadings, the evidence and testimony, the argument of counsel and the entire record in this cause,
It is therefore ORDERED, ADJUDGED and DECREED:

…

2. That the Respondent, Laurence A. Canter, be suspended from the practice of law for one (1) year for those violations of the Disciplinary Rules set forth above in reference to Docket #95-831-O-H (the “Internet matter”).

3. That the Respondent, Laurence A., Canter, be disbarred from the practice of law for those violations of the Disciplinary Rules set forth in reference to [specific non-Internet matters].

4. That these disciplines run concurrently.

This the 25th day of February, 1997.
Note 1: The judgment erroneously refers to Gregory Siskind as “Gregory Siskin.”