Legal Ethics & Technology - September 2021 2021 Downey Law Group LLC. For educational purposes only 9-2021
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Legal Ethics & Technology
September 2021
© 2021 Downey Law Group LLC. For educational purposes only.
Introductory Matters
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information, which is:
Dial-in number (US): (701) 801-6121
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• Watch the Slides -- https://join.freeconferencecall.com/
• Technical Problems – contact Paige Tungate at ptungate@DowneyLawGroup.com
• Questions – Please submit questions during the program using the CHAT function, or email Paige
Tungate at ptungate@DowneyLawGroup.com
• Post-Program Survey – A survey will be emailed to you about 30 minutes after program. Also,
there is a link to the survey at the end of these slides
• Certificate of Completion – Available through the Post-Program Survey
• Kansas Credit – If you are seeking Kansas credit, you will need to enter the two Attendance
Verification Words and your Kansas information into the Post-Program Survey. Please complete
this information in the survey within 3 days of the program, so we can ensure you receive proper
credit
2
Use of Technology by Lawyers
• Documents and operations
– Document management systems, cloud storage, file sharing, time and
billing software, receiving payments
• Communications and collaboration
– Email, messaging, phone/video conferences, business development
and client intake
• Litigation Practice
– Legal research, e-filing, eDiscovery software, remote
depositions/hearings
• Continuing Legal Education
3
Competency
4
Rule 4-1.1
• A lawyer shall provide competent
representation to a client. Competent
representation requires the legal knowledge,
skill, thoroughness and preparation
reasonably necessary for the representation.
*
5
Comment [6] to Rule 4-1.1
[6] 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.
§ Kansas, 2014
§ Illinois, 2016
§ Missouri, 2017
*
6
Duty of Technological Competency
• A number of state court opinions have
imposed duties on attorneys to have some
degree of tech competency.
– Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (use of
CaseNet to check jurors)
7Best Practices for Maintaining Technology
Competence
• Keep systems updated
• Regularly back up data
– Online and offline storage sites
• Watch out for phishing emails
• Never connect to unsecured WiFi – use a VPN if you must
• Utilize secure file transfer means
• Enable auto-lock/auto-sign out
• COMMON SENSE
8Confidentiality and
Storing Client Information
9*
10*
11*
12Ransomware
• Ransomware - typically encrypts or locks an
employee’s device until a ransom is paid
– Phishing/Spear Phishing
– Pretexting
– Whaling
13Social Engineering Ransomware
• Psychological manipulation into performing actions
or divulging confidential information
• 98% of cyber attacks rely on social engineering
• New employees are most susceptible to socially
engineered attacks
*
14Hackers Target Law Firms
• Susceptible to social engineering attacks
• Custodians of highly sensitive information
– Personal information
– Tax information
• Unprotected information
• Financial means to pay ransom (maybe)
• Protect reputation
15Missouri Informal Opinion 2020-26
• Question: Attorney’s office laptop, cell phone, bar
card, and credit cards were stolen out of Attorney’s
locked vehicle. What do the Rules of Professional
Conduct require Attorney to do?
*
16• ANSWER: If a stolen electronic device contains, or provides potential access to,
information related to the representation of clients or former clients, Attorney must
take all steps reasonably necessary to prevent unauthorized access to the information.
See Rules 4-1.6(c) and 4-1.1. These steps may include, but may not be limited to,
deactivating the cell phone; taking appropriate steps to secure Attorney’s law firm
network and/or data in offsite storage; changing all passwords that may be stored on
the electronic device; and consulting with a qualified information technology
professional if appropriate. Attorney must communicate with affected clients to the
extent reasonably necessary to allow each client to make informed decisions about the
representation. Rule 4-1.4; see Rule 4-1.9(c) and Informal Opinion 2017-02. Attorney
must comply with any applicable law requiring notice to affected persons regarding
disclosure of their personal information. See Preamble to Rule 4 at [5]. Attorney must
take all necessary steps to protect the funds in the client trust account from
unauthorized transfers and should monitor the trust account closely. See Rule 4-
1.15(a)(3) and Comment [2]. To address the stolen bar card, Attorney may contact the
Office of Attorney Enrollment of the Supreme Court of Missouri. Attorney may also
consider taking steps to protect the security of Attorney’s e-filing account with
applicable courts and consulting Attorney’s malpractice insurance carrier for additional
advice.
*
17Missouri Informal Opinion 2018-09
• Question: May Attorney use “cloud
computing” in a way that is consistent with
Attorney’s ethical obligations?
18Answer: Attorney may use cloud computing in the practice of law without
violating the Rules of Professional Conduct if Attorney maintains competence
in the use of relevant technology (Rule 4-1.1) and makes reasonable efforts to
safeguard confidential information from inadvertent or unauthorized
disclosure or access, as warranted by the particular facts and circumstances
of each client’s matter (Rules 4-1.6(c) and Comments [15] and [16]; Rule 4-5.3
and Comment [3]).
Attorney should read carefully the cloud computing provider’s terms and
conditions of service.
19Answer: . . Attorney should ensure adequate provider policies and practices as to (1) ownership and
security of client information, and (2) attorney and provider access to client information. Reasonable
efforts to safeguard confidential information may include (but are not limited to) ensuring adequate
provider policies and practices regarding:
• Security measures protecting confidentiality of client information during transmission and storage;
• Prompt notification of Attorney in the event of a security breach or provider’s receipt of a
subpoena for client information;
• Ownership of data solely by Attorney or Attorney’s firm;
• No access rights by the provider to client information, except as required by law;
• Regular data backup by the provider;
• Handling of client information in the event Attorney’s relationship with the provider is terminated;
• Compliance with applicable law regarding data storage and transmission;
• Reliable access to data by Attorney;
• No access to data by third parties, including advertisers, except as required by law; and
• Domestic storage of data, or, alternatively, storage in a jurisdiction subject to United States data
protection laws or equivalent.
20Answer: . . Because what constitutes adequate provider policies
and practices in these areas may change as relevant technology
evolves, Attorney is encouraged to consult with a qualified
information technology professional, take continuing legal
education courses on use of technology in practice, and/or
engage in regular self-study of materials from reputable sources
to maintain competence in the use of cloud computing in the
practice of law.
21Rule 4-1.6
(a) A lawyer shall not reveal information relating to the
representation of a client unless the client gives informed consent,
the disclosure is impliedly authorized in order to carry out the
representation, or the disclosure is permitted by Rule 4-1.6(b).
(b) A lawyer may reveal information relating to the representation of
a client to the extent the lawyer reasonably believes necessary…
(c) A lawyer shall make reasonable efforts to prevent the inadvertent
or unauthorized disclosure of, or unauthorized access to,
information relating to the representation of the client.
*
22Comment [15] Rule 4-1.6
[15] …The unauthorized access to, or the inadvertent or unauthorized disclosure of,
information relating to the representation of a client does not constitute a violation of
paragraph (c) if the lawyer has made reasonable efforts to prevent the access or
disclosure. Factors to be considered in determining the reasonableness of the lawyer's
efforts include, but are not limited to,
the sensitivity of the information
the likelihood of disclosure if additional safeguards are not employed
the cost of employing additional safeguards
the difficulty of implementing the safeguards, and
the extent to which the safeguards adversely affect the lawyer's ability to
represent clients (e.g., by making a device or important piece of software excessively
difficult to use).
*
23“Reasonable Efforts”
• Recognize nature of the threat to confidentiality
• Understand how confidential information is stored and
transmitted
• Use reasonable security methods, both on and offline
• Conduct due diligence on vendors who have access to client
information
• Train attorneys and staff on how to use technology and
security methods
24Obligations After Data Breach
or Cyberattack
• ABA Formal Opinion 483
– “When a data breach occurs involving, or having a
substantial likelihood of involving, material client
confidential information, a lawyer has a duty to
notify the client of the breach.”
• No notification required if file server was attacked but
client information was inaccessible, not accessed, or
not disclosed to unauthorized persons.
25Best Practices – ABA Opinion 483
• Inform client there has been unauthorized access to
or disclosure of their information and the extent of
information affected.
• Inform client of lawyer’s plan to respond to data
breach.
– Efforts to recover information (if necessary and feasible)
– Steps taken to increase data security and prevent future
breaches
26External Threats vs. Internal Threats
*
27Redactions
28Redactions
29In addition, Plaintiffs’ apparent lack of investment in prosecuting their own lawsuit was buttressed by their deposition testimony admitting they have not incurred out- of-pocket payments to counsel, with the exception paying $500 to former local counsel Joe Feller, and their document production of financial records indicating the same lack of payments to counsel for costs or fees, save the payment to Feller. Consider further that Plaintiff Anthony Nunes III, testifying as the 30(b)(6) corporate representative of NuStar, answered the question “[W]ho is funding the lawyers for this lawsuit?” with “I have no idea.” NuStar 30(b)(6) Anthony Nunes III Dep. 400:8-10.
On-Line Communications
*
31Attorney Grievance Commission v. Vasiliades
(MD 2020)
• Among other misconduct, Lawyer posted racist, homophobic, and sexist
remarks, liked to his law firm website
• Lawyer charged with violating anti-bias provision
The hearing judge found that Respondent violated Rule 8.4(e) for permitting, authoring,
sharing, and endorsing biased and prejudicial language on his public social media
accounts which he used to advertise his legal practice. Respondent excepts to this
conclusion, arguing that the social media posts were made within the context of
appropriate social discourse within his social circle.
• Court found conduct linked to law practice including because bios
identified his law firm website and contact information
*Chris Law
@ THE_Chris_Law
Download the Vas Law Accident App.
Dauntless legal representation for auto accidents, criminal defense. Call 1-833-C-LAW-123. Baltimore,
MD vaslawllc.com
Posts and comments
• A comment, authored by the Respondent, stating: “@tep_time coming from the fat married n[----]
who can’t go to a ballgame without his girl’s permission”
• A comment, authored by the Respondent, stating: “Real n[- ---] s[---]”
• A post, shared by the Respondent, discussing out-of- wedlock birth statistics. The Respondent
commented on the post, “[a]ttention broke b[-----]s. Y’all getting knocked up thinking he’ll stick
around is literally not working. Here’s statistical proof”
• A post, authored by the Respondent, stating: “B[----]es are so wack. You have to act like you don’t
give AF about them for them to really like you. You act like you care; they s[---] on you. But then
they cry because you don’t give them enough attention. They are ALL insecure AF”
• A post, authored by the Respondent, stating, “[h]umans aren’t meant to be happy sweetie.
Especially women lol”
• A post authored by username “lil duval,” that was re- tweeted[10] by the Respondent stating:
“Ladies always remember, you are who you let f[---] you”
*
33Ohio Sanctions Judge for Facebook Conversations –
Disciplinary Counsel v. Winters (2021)
• Judge used Facebook messenger to keep non-lawyer updated on matters
pending before judge
• Judge knew non-lawyer from pre-bench job
• Non-lawyer Blumenthal asked Judge not to grant bond to suspect who
may have sold heroin to Blumenthal’s daughter
• Judge answered questions about form Blumenthal could use to transfer
custody of his son
– Later told Blumenthal to finish custody case before filing a personal injury case
• Judge received stayed suspension
*
34Deception and Discovery
3536
37
38
Rule 4-4.1
In the course of representing a client a lawyer shall not
knowingly:
(a) make a false statement of material fact or law
to a third person; or
(b) fail to disclose a material fact when disclosure is
necessary to avoid assisting a criminal or fraudulent
act by a client, unless disclosure prohibited by Rule
4-1.6.
39Rule 4-4.4(a)
In representing a client, a lawyer shall not use means
that have no substantial purpose other than to
embarrass, delay, or burden a third person or use
methods of obtaining evidence that violate the legal
rights of such a person.
40Rule 4-8.4(c)
It is professional misconduct for a lawyer to:
(c) engage in criminal conduct involving dishonesty,
fraud, deceit, or misrepresentation.
41Jurisdiction for Online
Advertising
*Weitz v. Marsh (Nev. 2021)
• Weitz & Luxenberg (NY) ran cable ads for hernia mesh cases on national
cable
• NV resident signed engagement agreement that said law firm was not
evaluating medical malpractice claims
• Complainant filed complaint because W&L declined representation after
medical malpractice statute of limitations ran
• W&L lawyers obtained writ granting motion to dismiss discipline due to
lack of jurisdiction
*Basis for Granting Motion to Dismiss
• In opposing petitioners motion to dismiss, the State Bar presented
evidence of petitioners' firm's contacts with Nevada but did not
provide any evidence that
– petitioners themselves crafted the national advertisement, directed it to
be aired in Nevada,
– established the procedures for evaluating hernia mesh claims or
communicating with potential clients, or
– were otherwise involved in Carruth's case.
• Accordingly, we conclude that the State Bar did not present prima
facie evidence that Nevada has personal jurisdiction over
petitioners for purposes of this attorney discipline matter.
*
44Online Reviews
45Missouri Informal Opinion 2018-08
Question: May Attorney respond to a negative online
review about the representation of a former client if
Attorney confines the response to comments directed
to information already disclosed by the former client in
the review?
46Answer: In most circumstances, Rules 4-1.9(c) and 4-1.6 prohibit Attorney from revealing information relating to the
representation of a client in response to a negative online review, even where the client or someone writing on behalf
of the client has posted criticism of the quality of Attorney’s representation.
Per Rule 4-1.9(c), Attorney has a duty to a former client not to reveal confidential information except as would be
permitted with respect to a client.
A negative online review generally does not constitute a “controversy” sufficient to trigger the exception in Rule 4-
1.6(b)(3) and permit a lawyer to reveal confidential information to the extent reasonably necessary to establish a
defense in a controversy between the lawyer and the client.
Even if the information is not privileged as a matter of law such that Attorney could be compelled to disclose it in a
legal proceeding, Rule 4-1.6 does not permit the voluntary disclosure of confidential information by Attorney in
response to an online review. See Comment [3].
Rule 4-1.6 protects all information related to the representation, whatever its source. Comment [3].
Also prohibited are disclosures by a lawyer that do not reveal protected information but could reasonably lead to the
discovery of such information by a third person. Comment [4]. If Attorney chooses to post a response to an online
review, the response may acknowledge an attorney’s obligation to comply with professional obligations and must
reveal no information related to the representation in violation of Rule 4-1.6.
47Future Programs – Free Ethics CLE
Protecting Client Money & Property – 1.0 Ethics CLE
September 22 (Wednesday) at 12 Noon CT
Legal Ethics & Lawyer Marketing – 1.0 Ethics CLE
October 6 (Wednesday) at 12 Noon CT
Addressing Bias in the Legal System: Cognitive Bias – 1.0
Ethics, 1.0 Elimination of Bias CLE
October 19 (Tuesday) at 3:00 PM CT
Sign up at www.DowneyEthicsCLE.com
48Conclusory Matters
• Questions – If you have questions after the program, please email them
to Paige Tungate at ptungate@DowneyLawGroup.com
• Post-Program Survey – A survey will be emailed to you about 30 minutes
after this program. Also, here is the survey link:
https://www.surveymonkey.com/r/tech0921
• Certificate of Completion – Available through the Post-Program Survey
• Kansas Credit – If you are seeking Kansas credit, you need to enter the
two Attendance Verification Words and your Kansas information into the
Post-Program Survey. Please complete this information in the survey
within 3 days of the program, so we can ensure you receive proper credit
49Thank You.
Michael Downey and Paige Tungate
Downey Law Group LLC
(314) 961-6644
(844) 961-6644 toll free
info@DowneyLawGroup.comYou can also read
