Legalethics.com

New Hampshire attorneys may not search for, review, or use metadata in electronic materials received from opposing counsel. New Hampshire Bar Ass’n. Ethics Comm., Op 2008-2009/4 (April 16, 2009)

Pennsylvania lawyers who receive electronic content from opposing counsel can examine metadata hidden in documents and use it for the client’s benefits. Pennsylvania Bar Ass’n, Comm. on Legal Ethics and Professn’l. Responsibility, Formal Op. 2009-100

The Florida Supreme Court rejected the state bar’s proposed rule amendments on lawyer web site advertising. See In re Amendments to teh Rules Regulating the Florida Bar - Rule 4-7.6, Computer Accessed Communications (Feb 27, 2009).

Professors Monroe Freedman, Andrew Perlman, and a slew of judges and other experts participated at Mercer Law School’s symposium on ethical issues in the digital age, and the transcript is available on line, here. I urge you to read especially Professor Freedman’s opening remarks, “Whatever happened to the search for the truth?”

Here is the introduction (sans links):

On November 6-7, 2008, the Center for Legal Ethics and Professionalism and the Mercer Law Review hosted the Ninth Annual Georgia Symposium on Professionalism and Ethics. The title of the symposium was “Ethics and Professionalism in the Digital Age.” The Mercer Law Review will be publishing transcripts of all the sessions and related papers prepared by the participants. Video of the events is available for viewing by clicking on the links below. For a listing of all speakers and their biographies, click here.

The annual symposia on professionalism and ethics are funded by an endowment created by order of the Honorable Hugh Lawson, United States District Judge for the Middle District of Georgia. The order settled allegations of litigation misconduct in exchange for payments that fund the symposia and funded the creation of academic chairs devoted to ethics and professionalism at the Walter F. George School of Law of Mercer University, the University of Georgia School of Law, the Georgia State University School of Law, and the Emory University School of Law.

This year’s symposium began with a dinner on the evening of November 6 at the Cox Capitol Theatre in downtown Macon. Professor Monroe Freedman delivered the keynote address, entitled “Whatever Happened to the Search for Truth?” To see Professor Freedman’s speech, click here.

The next morning, there were two panel discussions related to issues of ethics and professionalism in e-discovery. In the first panel, Jason R. Baron, the Director of Litigation for the National Archives and Records Administration, presented his paper on “E-Discovery and the Problem of Asymmetric Knowledge.” To see a written version of Mr. Baron’s remarks, click here. The two responders to Mr. Baron’s presentation were Chilton Varner, a partner at King & Spalding in Atlanta, and The Honorable John M. Facciola, United States Magistrate Judge for the District of Columbia. To see the first panel discussion, click here.

The second panel discussion began with a presentation by Ralph C. Losey, a Shareholder at Akerman Senterfitt in Orlando, Florida. Mr. Losey spoke on “The Wicked Quadrant – A Theoretical Construct to Understand Unethical Behavior in E-Discovery.” The responders to Mr. Losey’s presentation were William F. Hamilton, a partner at Holland & Knight in Tampa, Florida, and The Honorable David A. Baker, United States Magistrate Judge for the Middle District of Florida. To see the second panel discussion, click here.

In the afternoon, there were two additional panel discussions. The first concerned the internet and lawyer marketing. Jack Sammons, Griffin Bell Professor of Law at the Walter F. George School of Law at Mercer, moderated a panel discussion that included Paula J. Frederick, Deputy General Counsel of the State Bar of Georgia, Diane L. Karpman of Karpman & Associates in Beverly Hills, California, and Micah Buchdahl, President of HTMLawyers, Inc. in Moorestown, New Jersey. To see the third panel discussion, click here.

The final panel discussion of the day concerned the special issues of ethics and professionalism that surround the use of metadata. Professor David Hricik of Mercer conducted the discussion, with Professor Andrew Perlman of Suffolk Law School in Boston and Carolyn Southerland, Managing Director of the Huron Consulting Group in Houston, as his panelists. To see the last panel discussion, click here.

There is an interesting piece here about the potential pitfalls of twitter and facebook and other social networking sites to law firms available here.

The New York Rules of Professional Conduct effective April 2009. Additional Professional Standard resources are available from teh State Bar.

There’s an article about the settlement of a so-called trademark suit by Jones Day against Blockshopper here A summary of events in the lawsuit, here

The defendant reportedly incurred more than $100,000 in defense costs as a result of what many viewed as a baseless lawsuit.

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We’ve noted here repeatedly that lawyers must safeguard client confidences, and so this story from CNN caught my eye: their campaign sold off a bunch of Blackberries to recoup some money, but they left all the data — email, home addresses, personal phone numbers, you name it — on the little gems. Now, maybe it shows where Palin bought all those fancy clothes…

This Ninth Circuit decision breaks no new ground, but does remind lawyers that in general there will be no immediate appeal of inadvertent production issues, because both there is no “final decision” and because as a general matter there is no “collateral order” in terms of Cohen. Truckstop.net LLC v. Sprint Corp., (9th Cir., No. 07-35123, 10/28/08). The lawyers perhaps should have tried mandamus…

There’s an article here about Gutman v. Levy, reportedly the first case in the Second Circuit entering default judgment for e-discovery abuse and e-spoliation. If you haven’t been involved in e-discovery battles, the case is an eye opening read, both in what it takes to uncover deletions and what-not, but also for the misconduct that effort uncovered here.

On November 7, the Law School will host the 9th annual Georgia Symposium on Professionalism and Ethics. The topic for this years symposium is “Ethics and professionalism in the Digital Age.” There will be presentations and panel discussions on e-discovery, the internet and lawyer marketing, and meta-data. The symposium will take place in the Law School Courtroom beginning at 9 a.m. on the 7th. The event is open to the public, and CLE credit will be available. For further information, contact professor Patrick Longan at (478) 301-2639 or longan_p [at sign] law.mercer.edu

A litigant used the “black out” feature in Acrobat to “redact” information, and learned that wouldn’t work… when the other side cut and pasted the document into Word and showed that important, relevant information had been deleted. A blog about it, with links to the case and what-not, is here.

There’s an article here.  Oh, and here.  Oh, and this one.

There’s a webpage, blockshopper.com that tracks who buys what property and for how much in certain upscale neighborhoods.  Some Jones Day lawyers bought property in  those neighborhoods, and that truthful, factual information was posted on the site, along with truthful factual links to the firm’s website, and truthful, factual links to the individuals’ bios on teh firm webpage. 

Jones Day filed this complaint for trademark infringement.   The sum of the alleged confusing and illegal conduct is using a link to the firm’s website and linking to the two lawyers’ bios who bought houses.

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).

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!