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Jan Copley
Certified Practice Advisor
Atticus, Inc.

530 South Lake Avenue, Suite 250
Pasadena, CA 91101
(626) 696-3145
(626) 421-6747 (fax)
jan@copleycoaching.com

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Ethical Technology – Part Two

July 4, 2012

Filed under: Legal Ethics,Technology — @ 8:00 am

In my previous blog, I wrote about proposed changes to ethics rules relating to new technology. The ABA is considering rules about protecting client confidentiality in light of lawyers’ increased use of outsourcing and cloud computing.

There’s another new technology that intersects with legal ethics — Social Media. The State Bar of California even has a special link on its website with information about the proper and improper use of Facebook, Linkedin, Twitter, etc.

I recently sat through a webinar about ethics and Social Media. The presenter, Mari Frank, spoke about pitfalls arising from use of listservs and Social Media outlets. She made the following points:

• Client confidentiality

  • You may be breaching client confidentiality if you post a question about a case you’re handling on a listserv, even if you don’t mention any names! So, before you do so, get your client’s permission.
  • A safe procedure is not to post anything on a Social Media site if it involves an open case.

• Improper communication

  • Has it ever occurred to you that a judge may be a participant in one of the listservs you use? Or opposing counsel? Be careful what you say about active cases.
  • If you don’t know someone who asks to follow you, be sure to learn who it is before accepting that person. You don’t want to be accused of improper communication with a judge handling your trial, a party represented by other counsel, or a juror.

• Practicing outside your jurisdiction

  • If you receive a request for advice through a link on your website or a Social Media outlet, how do you know that person is in the jurisdiction where you’re licensed to practice? If you blindly respond, you might be practicing law in a state other than your own!
  • Of course, some Social Media outlets — i.e., Avvo — encourage lawyers to answer consumer questions. If you choose to do so, be sure to include the caveat that you are only licensed to practice in a certain jurisdiction, that your answer is based upon your knowledge of the law where you practice, and that the person asking the question should be sure to consult with local counsel.

Please let me know how this helps you!

Ethical Technology – Part One

June 29, 2012

Filed under: Legal Ethics,Technology — @ 8:00 am

This has been my week for thinking about the overlap between legal ethics and technology. I attended a webinar about ethics and Social Media put on by the Law Practice Management & Technology Section of the State Bar of California; I’ve also found a number of blog articles about the ethical use of new technology in my email inbox.

Because it’s hard for practicing lawyers to keep up on all of this stuff, I thought I’d briefly summarize what I’ve learned here; there’s so much, I will be continuing the discussion in my next blog posting.

First, for all of my readers who practice in the United States — other than my readers in California — you may want to know that the ABA is considering proposed revisions to its Model Rules to adapt the rules to changes in technology. Among the proposed changes I find interesting:

  • A lawyer’s duty to competently represent his or her clients will now include a duty to understand and use technology competently.
  • A lawyer must use due diligence to determine if a third-party vendor — whether for outsourced work or for storing data — adequately protects client confidentiality.
  • If a lawyer outsources work to a third party, the lawyer should obtain the client’s consent before doing so.

The bottom line for the rules seem to be that a lawyer can use new technology, including cloud data storage, but that he/she must use “reasonable” efforts to protect his or her client. “Reasonable” is determined in light of circumstances, including the cost involved and the use of the data.

You can find a good summary of the proposed new rules in an article from Law Technology News, “ABA to Tackle Technology Issues in Model Rules at August Meeting.” If you want to see the proposed rules themselves, click here.

For my California readers, you might be interested to note that proposed rules relating to the ethical use of technology were submitted to the California Supreme Court in 2010, and, after a period for public comment expired, withdrawn. In the meantime, the State Bar has created a special page on its website, “Ethics and Technology Resources,” to provide guidelines to its members.

Please let me know how this helps you!