MISSOURI ASSOCIATION OF LEGAL SECRETARIES



MISSOURI BAR 11TH ANNUAL SOLO AND SMALL FIRM CONFERENCE

ETHICS AND TECHNOLOGY

Ellen Y. Suni, Dean

Marvin Lewis Rich Faculty Scholar and Professor of Law

University of Missouri-Kansas City School of Law

June 9, 2006

TABLE OF CONTENTS

INTRODUCTION

CONFIDENTIALITY

Computers, Computer Networks and Storage Devices

The Internet and E-Mail

Inadvertent Disclosure of Privileged Information:

Can the Cat Be Put Back in the Bag?

COMPETENCE

ADVERTISING AND SOLICITATION

MISCELLANEOUS ISSUES

INTRODUCTION

As use of technology in law practice increases, so does the nature and scope of the ethical issues. The law in this area is continuing to emerge as technology changes and develops. Some courts, ethics panels and commentators have done a good job of confronting the issues created by new technologies and applying existing law to those technologies, but, unfortunately, in many cases, by the time the issues are recognized and understood, the technology changes and the issues do as well.

In dealing with any form of technology and assuring that its use will be within appropriate ethical and legal parameters, certain steps appear necessary. First, it is important to have an understanding of the technology involved. At times, attorneys and their staffs utilize forms of technology without really understanding what that technology does and how it works. Such use can pose problems. Thus, the first step in assuring legal and ethical practice is a sufficient understanding of any technology used by the office. This does not require that lawyers become computer or technology experts, but it may well require development of some basic knowledge or consulting with others who have that expertise.

The second step is an understanding of the ethical or professional responsibility rules and the policies underlying those rules. In some cases, the existing rules will apply in a fairly straightforward way to the emerging issues. In other instances, however, those rules will not be helpful on their face, and an understanding of the policies to be advanced will be necessary to determine how the rules are to be applied. Third, those looking for guidance in these areas will often find it necessary to consult secondary sources, because the commentators are generally way ahead of the courts and advisory committees in understanding and addressing these issues. An article that is particularly comprehensive and can be used as a starting point for determining the scope of the issues (as they relate to the internet), identifying basic approaches for resolving them, and finding resources to assist in these efforts is J.T. Westermeier, Ethics and the Internet, 17 Geo. J. Legal Ethics 267 (2003) (the article is also available online at ).

The ultimate goal is to find ways to use the emerging technology effectively while avoiding ethical and legal problems. The outline that follows will raise a few of the issues that appear to be in the forefront, suggest some possible resolutions and provide selected readings regarding these issues.

CONFIDENTIALITY

Computers, Computer Networks and Storage Devices

Computers and the Internet are used by nearly all lawyers today. Computers provide great opportunities, but pose risks if users do not understand the technology and the dangers presented. While networks within an office and connections outside make a lawyer's work easier, they do pose security risks based on vulnerability to loss, theft or damage. Unauthorized access to computer networks can lead to disclosure of confidential information, leading to violation of Model Rule 1.6 and potential loss of the attorney-client privilege. Lawyers must take sufficient precautions to insure security, including limiting access to data to those with a need to know, use of passwords that are not easily determined and that are changed periodically, protection against viruses, spyware and physical security for servers. In addition, only those with whom information may properly be shared under Rule 1.6 should have access to computer networks. Se Missouri Informal Op. 980030. Lawyers need to take at least as much care in protecting information on computers as they do with information on paper. Lawyers who use laptops, jump drives, pda’s and similar devices should ensure that there is security on those devices in the event they are lost or stolen. Lawyers and their staffs are already careful not to leave sensitive information out where it can be read by others. Similar care is necessary for information on computer screens, and may require monitors that cannot be read peripherally and screen savers that blank the screen after short intervals of non-use.

Lawyers who use computers and computer networks extensively must often obtain professional assistance in maintaining the network. Lawyers may use the services of an outside computer maintenance company, but must take precautions pursuant to M.R. 1.1, 1.6 and 5.3 to insure that confidentiality requirements are met. Similarly, lawyers may use off-site facilities for storage of electronic data, but there too, reasonable precautions must be taken to insure confidentiality is preserved. See ABA Formal Opinion 95-398 (10/27/95); Nevada Formal Op. 33 (February 2006); Arizona Op. 05-04 (June 2005) (M.R. 1.1 and 1.6 require appropriate steps to protect confidentiality of electronic information).

In addition to problems presented by unauthorized access to the computer system, difficulties can be caused by unsuccessful attempts to get rid of information from those systems. For example, many lawyers do not realize that deleting a file off a drive or disk does not truly delete the file. Rather, it merely marks the file for overriding. Thus, production of a disk or drive that has deleted files may actually constitute production of those files, since even a fairly unsophisticated person with the right software can discover files that have been "deleted" but not yet overridden. It is suggested that, whenever information is to be provided on disk (or in similar format) to someone outside the office (or to someone inside who should not have access to sensitive or confidential information), a new disk be used to avoid inadvertent disclosure of information from the file that was previously on the disk.

Moreover, deletion of files off a hard drive may not be sufficient to avoid production if a back-up copy of the information is still available. If permanent removal is intended, make sure that the process chosen truly removes the files. In order to preserve data against accidental loss, back-up copies should always be made and kept in a safe location apart from the computer. When information is to be permanently deleted, however, arrangements should be made to delete the information from the back-up as well. Otherwise, production may be required. Additionally, viruses can damage or destroy information that needs to be preserved, and precautions must be taken to prevent such damage. Also, when disposing of computers or other peripherals, take care to insure that confidential information does not fall into the wrong hands. Expert assistance may be helpful in this regard.

Finally, the issue of metadata has become one that all attorneys must be aware of and concerned about. Electronic files contain hidden information, often called metadata, that can be accessed by someone who receives an electronic version of the document. This metadata includes information about the preparation of the document, including authors, editors, embedded objects, revisions, comments and the like. Some of this metadata is automatically part of the document but is invisible. In addition, when attorneys and clients use “track changes” to edit a document, significant metadata is inserted into the document and can be hidden and retained even after attempts are made to accept or reject the changes. Care is needed to avoid disclosing metadata information to recipients of documents that are sent electronically. For information and assistance with this issue, see Brian Zall, Metadata: Hidden Information in Microsoft Word Documents and Its Ethical Implications, (2004); David Hricik and Robert R. Jueneman, The Transmission and Receipt of Invisible Confidential Information, (2003); see also What's the Meta with Metadata?, . A related issue is whether it is ethically proper for attorneys to mine documents for metadata. As the articles above indicate, there is dispute in that regard. See also Jessica Walker, What’s a Little Metadata Between Colleagues?, . For a list of resources relating to these issues, see Ben Cowgill, Making Sense Of Metadata: A Mega-List Of Links For Lawyers, .

The Internet and E-Mail

Communication via e-mail potentially raises confidentiality concerns. Attorneys can be at risk if there is any nontrivial risk that information communicated over a particular medium may be overheard or intercepted. After much confusion and concern when e-mail first became prevalent, an ABA Formal Opinion concluded that, in general, e-mail as a mode of transmission affords a reasonable expectation of privacy to users and its use is therefore consistent with attorneys( confidentiality obligations under Rule 1.6. Formal Op. 99-413 (1999). The Opinion suggests, however, that particularly sensitive information may not be appropriate for e-mail transmission. This position is generally consistent with the current view of commentators and state ethics opinions. In Missouri, the Office of Disciplinary Counsel has issued several Informal Opinions regarding use of e-mail. The essence of these opinions is that an attorney contemplating use of e-mail to communicate with or about a client or prospective client should advise the client regarding the nature of e-mail communication and its relative risks both while in transit and while stored. The advice need not be technical in nature but should be sufficient to allow the client to make a knowledgeable decision about how to proceed. See Opinions 970230, 980137, 990007 (which can be accessed at ) No specific disclaimer form has been approved, Opinion 990007, but examples of letters and disclaimers as well as valuable tips on using e-mail are available in Brett Harris, Counseling Clients Over the Internet, 629 PLI/Pat 119 (2000)(Westlaw)

While use of the internet and e-mail can be extremely useful for attorneys, care is needed. Recent news reports and e-mail chains remind us how important it is to be cautious with what we say in e-mails, on blogs and websites. The cases of Dianna Abdala, whose snippy e-mail exchange with a Boston attorney who had offered her a job made its way around not only the city but around the world, and Jay Kuo, whose live journal post critical of opposing counsel (that he thought could be seen only by a limited group) was read both by that lawyer and the judge and led to a reprimand, remind us about the care that must be exercised in using these media. The casualness with which people speak in e-mail and on blogs, coupled with the ease with which anything said can be disseminated, make caution essential.

Inadvertent Disclosure of Privileged Information: Can the Cat Be Put Back in the Bag?

The increased use of technology has brought an increased risk of inadvertent disclosure of otherwise confidential information. The issue of inadvertent disclosure is a difficult one because it pits the confidentiality interests of the person who inadvertently transmits the information against the interest in zealous representation on the part of the attorney who receives that information. Courts have been split on how to handle inadvertent disclosure, and the ABA issued a controversial formal opinion, which has largely been repudiated. See ABA Formal Op, 92-368.

The current ABA Model Rules (not yet adopted in Missouri or Kansas) address inadvertent disclosure in two places. First, Comments 16 and 17 to Rule 1.6 suggest that attorneys must exercise caution to avoid inadvertent disclosure of confidential information. In addition, Rule 4.4 (b) provides that “[a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” The Comments make clear, however, that

Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this Rule, "document" includes e-mail or other electronic modes of transmission subject to being read or put into readable form.

Care is needed in this area. Lawyers must take precautions against inadvertent disclosures, including proper staff training, use of mechanisms to limit the risk of misdirected information, and proper handling of calls when a document has been missent. See generally, Restatement of the Law Governing Lawyers, ( 79, Comment h (2000); Rebecca J. Foote, Email, Privilege, Confidential Information and Inadvertent Disclosures, (2003).

COMPETENCE

In addition to confidentiality concerns, the increase in technology creates a variety of competence issues. First, issues can arise when an attorney fails to properly utilize technology and therefore harms the client's interest in some way. This can occur, for example, by failing to have adequate backup systems so that documents are lost. A lawyer can have competence problems arise from failing to understand the features or limitations of systems being used (e.g., fact that "delete" does not really mean delete; fact that Internet is an "open" system and accuracy of information must be verified). A lawyer(s competence may also be in issue where the lawyer fails to appreciate and act on changes that technology may have made in the requirements for practice. For example, the possible existence of electronic data and files should be considered in drafting discovery requests. Additionally, other aspects of electronic storage and retrieval must be understood by lawyers seeking production. And, to what extent has the development of technology made computerized research necessary? See Lawrence MacLachlan, Gandy Dancers on the Web: How the Internet Has raised the Bar on Lawyers( Professional Responsibility to Research and Know the Law, 13 Georgetown J. Leg. Ethics 607 (2000). To avoid potential problems, lawyers should remain abreast of technological developments that affect areas in which they practice just as they keep current regarding substantive law. How far they must go, however, is unclear. See, e.g., Mark Tuft, Not Using New Technology: Ethical and Liability Risks? A Lawyer's Judgment Will Never Be Automated, .

ADVERTISING AND SOLICITATION

Much has been written about lawyers using the Internet. Some suggest it is now essential for lawyers to do so. A quick perusal of the Internet discloses that many lawyers have a presence in a variety of ways, through webpages, blogs, participation on bulletin boards, chat rooms, listserves, and in other formats. One of the issues raised by this presence is whether it constitutes advertising and/or solicitation, and whether such advertising and/or solicitation are within the relevant rules of conduct. The answers to these questions are complex and can vary depending on the nature of the activity involved, its purpose and effect. Although some jurisdictions have directly addressed these issues, see Nia Monroe, The Need for Uniformity: Fifty Separate Voices Lead to Disunion in Attorney Internet Advertising, 18 Geo. J. Legal Ethics 1005 (2005); Margaret Nicholls, A Quagmire of Internet Ethics Law and the ABA Guidelines for Legal Website Providers, 18 Geo. J. Legal Ethics 1021 (2005), Missouri currently (does not have any specific rules relating to Internet advertising.( Inf. Opionion. 970038.

The Internet creates many possibilities for creative marketing of lawyers' services. In Missouri, the general rules on advertising apply to any form of advertising including Internet advertising.( Opinion. 970038; see also Opinion 970161. Missouri recently amended its advertising rules, see Mo. Sup. Ct. Rules 4-7.1 through 7.3, and difficult and interesting questions abound in light of these changes. For example, when does an attorney have to use the disclaimer required by Rule 7.2(f)? What constitutes a “conspicuous” disclaimer on a website? How often do copies of websites need to be made, and in what format must they be kept, to comply with Rule 7.2(b)? Can an attorney use a domain name (url address) different from the firm name? See, e.g., South Carolina Ethics Opinion 04-06 (2004) (yes, as long as it is not misleading); New Jersey Opinion 32 (2005) (yes); see generally Louise Hill, Electronic Communications and the 2002 Revisions of the Model Rules, 16 St. John’s J. Legal Comment 529, 535-537 (2002). Are there limits to linking and use of priority placement services on websites? See id. at 542-43. Unfortunately, the law is still evolving in these areas and many issues remain unresolved.

There have been informal opinions in Missouri that provide some guidance. One Missouri informal opinion indicated that a lawyer need not have an advertising disclaimer on a (passive( site, but would be required to have such a disclaimer if the attorney actively engaged in sending material over the Internet. Opinion. 960151. As websites become more sophisticated and engage in what might be viewed a more direct advertising, and as the advertising rules have gotten more strict, will this opinion remain viable? According to another opinion, Missouri lawyers are permitted to have their names listed in Internet legal directories as long as the requirements of Rule 7 are satisfied, Opinion 980268, and lawyers may include client testimonials on their websites as long as the requirements of the Rule have been met. Opinion 20010107.

A key issue in using the web is at what point an attorney-client relationship is created "on-line." Can a unilateral act on behalf of a prospective client cause a relationship to be created, and, if not, what confidentiality protection is there for information provided via e-mail. See, e.g., Nevada Formal Opinion 32 (2005). This issue is particularly difficult because, unlike in face-to-face or phone conversations, the attorney cannot cut the prospective client off before they disclose too much. And what happens if information is disclosed via e-mail and creates a potential conflict for the attorney. When, if ever, is disqualification required? Proposed Rule 1.18 addresses some of these issues, and Opinions 20000179 and 20000103 recognize the risks and suggest caution, but the law is evolving here as well. One suggestion is use of disclaimers to prevent these problems. See David Hricik, To Whom it May Concern: Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited E-mail from Prospective Clients, (April 2006); Mark Biernath, Chris Ellerbee, Mike Lamberth, and Jack Mannion, The Use of Internet Website Disclaimers by Attorneys, / (2000); California Formal Opinion Interim No. 03-0001.

The breadth of the Internet also creates substantial questions regarding intra and interstate practice. For example, whose rules govern marketing information on the Internet? The jurisdiction where the lawyer(s) responsible for the information are admitted to practice? The state in which the recipient lives, or is seeking legal services? The states in which the lawyer actually practices? Model Rule 8.5 (and recently amended Missouri Rule 4-8.5) address the choice of law issue, but many questions, including the possibility of liability for unauthorized practice, are as yet unresolved. See, e.g., Leonard Nuara, E. Selene Steelman and Matthew Lyons, Proceed with Caution: Lawyer Ethics and the Internet, 724 PLI/Pat 491, 497-500 (2002)(Westlaw).

The issues to be confronted in the future are likely to be as broad as the creativity of lawyers. To address these issues, the ABA adopted Best Practice Guidelines for Legal Information Web Site Providers, . It is suggested that those establishing or enhancing a web presence consult these guidelines. See also Texas Bar Interpretive Comment 17, (Internet_Advertising).htm.

MISCELLANEOUS ISSUES

One additional issue relates to electronic files and duties with regard thereto. In an informal opinion, Ethics Counsel advised that, since clients own the files, including paper files, a lawyer cannot scan the files and destroy the paper originals without client consent (or, after adoption of Rule 4-1.16(h), the passage of ten years). See Opinion 20010147. A New Hampshire opinion suggests that, where an attorney leaves a firm and the client accompanies the lawyer, the attorney is entitled to e-mails and electronic communications as well as paper documents. New Hampshire Opinion 2005-06/3 (2006). These issues are likely to increase as more documents are created in electronic format, and new issues will arise as increasingly documents are created only in electronic form.

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