Technical Revolution - Ethical Evolution Keynote

Presented by Cynthia Sharp
• Professional CLE Speaker
• Attorney Business Coach
Friday, June 28, 2013

Technical Revolution - Ethical Evolution
2
Event Sponsor:
June 21, 2013

Preliminary Thoughts
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• I would be really happy if we could cover the following:
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• I would be really happy if we could cover the following:
• I decided to attend “Tech Rev” because:
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Wake Up To Social Media!
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Attorneys Using Social Media
15%
43%
56%
5

Attorneys Using Social Media
15%
43%
56%
Quadrupled
in 2 years!
5

2012 Simply Zesty; Online PR & Social Media
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• 2 Billion internet users in the world
• 7 billion people in the world
• More than 1 billion Social Network users

Social Media
Practical Applications
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• Marketing
• Practice Area
• Develop Internal Social Media Policy
• Compliance Procedures
• Criminal Defense
• Civil Litigation
• Litigation/Research Tool

Social Media
• New Case Law
• Interesting Ethical Issues
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Information About Legal Services
• Protected Form of Commercial Speech
• Subject to Rules 7.1 - 7.5
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Digital Immigrant or
Digital Native?
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Social Media as a
Marketing Tool
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STRATEGY
BRAND
PROFILE
EXECUTION

Information About Legal
Services
• 7.1 - Communication Concerning a Lawyer's Services
• 7.2 - Advertising
• 7.3 - Direct Contact with Prospective Clients
• 7.4 - Communication of Fields of Practice and
Specialization
• 7.5 - Firm Names and Letterheads
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American Bar Association
Formal Opinion 10-457
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Free Commercial Speech or
Regulated Attorney Advertising
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blawgsearch.justia.com
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Facts About
• 100% of Fortune 500 Companies Have Executives on
Linkedin
• 225 Million Members
• Every Second - 2 New Member Joins
18

19
Facebook Friends
Cynthia Sharp
Bruce Steiner Ron Fatoullah

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Facebook Friends
Cynthia Sharp
Bruce Steiner Ron Fatoullah

Use Common Sense!
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1.6 billion
search queries
400 million
tweets

www.lextweet.com
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Nebraska State Bar @nebrbar17 Jun
Hashtags coming to Facebook,
may wish to change privacy settings.
http://bit.ly/18RA9B7 via @LXBN

Crowdsourcing
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Research Tool
Write down 3 ways that you use
the internet to research
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www.jdsupra.com
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Litigation Tool
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Mining Information
• Vetting Jurors
• Pretexting (“Friending”)
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Internet Research by Jurors
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Discovery
• Warn clients not to discuss their case online
• Standard Applied: Reasonably calculated to lead to
discovery of admissible evidence
• Notice to produce
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Ethical Evolution
• Terminology
• Competence
• Conﬁdentiality
• Communication
• Duties to Prospective Clients
• Receipt of Erroneously Sent
Document
• Supervision of NonLawyer
Assistants
• Advertising
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Confidentiality Notice
This electronic transmission and any attached documents
or other writings are confidential and are for the sole use of
the intended recipient(s) identified above. This message
may contain information that is privileged, confidential or
otherwise protected from disclosure under applicable law. If
the receiver of this information is not the intended recipient,
or the employee, or agent responsible for delivering the
information to the intended recipient, you are hereby
notified that any use, reading, dissemination, distribution,
copying or storage of this information is strictly prohibited. If
you have received this information in error, please notify
the sender by return email and delete the electronic
transmission, including all attachments from your system.
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“To maintain the requisite knowledge and skill, a
lawyer should keep abreast of changes in the law
and its practice, including the beneﬁts and risks
associated with relevant technology, engage in
continuing study and education and comply with all
continuing legal education requirements to which
the lawyer is subject.”
- Comment 6 to MRPC 1.1 (as amended)
Competence
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Redaction Issues
Long gone are the days when the attorney duty of confidentiality imposed by Model Rule 1.6
was satisfied by maintaining a fireproof steel locked filing cabinet behind a secured office door.
The technological revolution has taken us beyond the world of desktop computers with a
dedicated server to the stratosphere of cloud computing and the genius of smartphones and
electronic tablets.
The portability of our “second brain” results in additional ethical responsibilities that must not
be ignored. Lawyersʼ obligations have radically changed in light of the methods by which
confidential client and personal information is now carried and stored.
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Data Disaster
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Duty of Conﬁdentiality
MRPC 1.6
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Communication
“... A lawyer should promptly respond to or
acknowledge client communications.”
- Comment [4] of MRPC 1.4 (as amended)
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Duties to Prospective Clients
“...[a] person becomes a prospective client by
consulting with a lawyer about a client-lawyer
relationship with respect to a matter”.
- Comment 2 to MRPC 1.18 (as amended)
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Does a Communication
Constitute a Consultation?
• Did the lawyer encourage or solicit inquiries about a proposed
representation?
• Did the person encounter any warnings or cautionary
statements that were intended to limit, condition, waive or
disclaim the lawyer’s obligations?
• Were those warnings or cautionary statements clear and
reasonably understandable?
• Did the lawyer act or communicate in a manner that was
contrary to the warnings or cautionary statements?
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Receipt of Erroneously
Sent Documents
Lawyer receiving electronically stored information that
he or she knows or reasonably should know was sent
inadvertently must promptly notify the sender of the
mistake (Model Rule 4.4(b))
Duty to notify extends to metadata. (Comment 2)
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Recommended Metadata
Scrubbers
Metadata Assistant: http://www.payneconsulting.com/products/
metadataretail/
iScrub: http://esqinc.com/section/products/2/iscrub.html
Workshare Protect: http://www.workshare.com/products/wsprotect/
Metadact: http://www.litera.com/Products/Metadact%AE.aspx
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Do You Secure PDF Files Before
You Transmit?
Suggested Ofﬁce Policy:
“When there is no
legitimate reason to
transmit an editable
document, we will always
send SECURE PDFs.”
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You Cannot
Delegate Ethical
Responsibilities
Model Rule 5.3 requires attorneys who outsource
work to non-attorneys to “make reasonable efforts to
ensure that the non-lawyers’ services are provided in
a manner that is compatible with the lawyer’s
professional obligations”.
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Attorney Advertising Rules
Lawyers may pay Internet-based lead generators for
generating client leads, as long as the lead generator does
not “recommend” the lawyer. (MRPC 7.2, Comment 5)
Only a “target communication initiated by the lawyer”
directed to a “speciﬁc person” that “offers to provide”
legal services is a solicitation. Communications to the
general public, including Internet banners, are not
solicitations. (MRPC 7.3)
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Law Firm Social Media
Policy
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Online or In Line
• Keep client confidences
• Avoid appearance of establishing client-attorney relationship
• Be polite
• Don’t fight
• Don’t bad mouth law firm, colleagues or judges.
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“A lawyer shall act with reasonable diligence and
promptness in representing a client.”
Comment 2 - “A lawyer's work load must be
controlled so that each matter can be handled
competently.”
Rule 1.3
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www.evernote.com
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www.pomodorotechnique.com
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Moving Forward
• Did you learn anything new today?
• Did you gain any insight into yourself or someone else?
• Do you plan to change any of your behaviors as a result
of today’s session?

Evaluations
52

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Technical Revolution - Ethical Evolution Keynote

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