9/14/2012 1 Ethics and Technology Michael Downey Litigation Partner, Armstrong Teasdale LLP Tried lawyer discipline cases in Missouri and Illinois Argued for lawyers before Missouri Supreme Court and Illinois ARDC Review Panel Expert witness on legal ethics in Missouri, Kansas, DC Teach legal ethics at Washington University and St. Louis University Chair-Elect, ABA Law Practice Management Section Former chair, Ethics & Technology Committee in the ABA Center for Professional Responsibility Technology Task Force, ABA Ethics 20/20 Commission About Myself
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9/14/2012
1
Ethics and Technology
Michael Downey
Litigation Partner, Armstrong Teasdale LLP Tried lawyer discipline cases in Missouri and Illinois
Argued for lawyers before Missouri Supreme Court and Illinois ARDC Review Panel
Expert witness on legal ethics in Missouri, Kansas, DC
Teach legal ethics at Washington University and St. Louis University
Chair-Elect, ABA Law Practice Management Section
Former chair, Ethics & Technology Committee in the ABA Center for Professional Responsibility
Technology Task Force, ABA Ethics 20/20 Commission
About Myself
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A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment ...
Maintaining Competence
[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.
ABA Model Rule 1.1 Competence (8/2012)
ABA Model Rule 1.6 Confidentiality of Information (8/2012)
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 a client.
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Diffusion of Innovation
Intentional Disclosure
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Websites = Advertisement
Accurate – Rule 4-7.1
Advertising – Rule 4-7.2 • Claims
• Disclaimers
"Specialist" or "Expert" – Rule 4-7.4
Firm names/URLs – Rule 4-7.5
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Web 1.0VisitorsHome PagesContentOne-wayRead
Web 2.0CommunityApplicationsConversationTwo-wayRead & Write
Blogs
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Why Web 2.0?
Promote services Build community – and buzz Engage – and form relationships with – clients
and potential clients• Great way to track connections
Concerns Confidentiality Inadvertent clientsAdvertising regulations
• Accurate• Disclaimers• "Specialist"
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What Heightens Scrutiny
Claims about skill Claims of specialization Discussing past results Client (or other) testimonials Legal or accounting advice Pricing information
Client-related information Lack of disclaimers
Accurate Content?
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"Client" Recommendations
Whom Do You Know?
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Professional Services?
JD Supra
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GoogleDocs
Third Party Content
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Above the Law
Imposter Sites
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"MySpace"
Or Outer Space?
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The Robing Room
You Wrote What?
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Borrowing Another Firm's Brand
Protecting Data
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History of Data Migration
ThreatsElectronic Physical "Social engineering"
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PasswordsWhen are passwords requiredWhen must passwords be changed
• How complex must passwords be• Can they be reused• Where are reminders kept
Insecure Workstations What happens to computers when people go
home at night• Physical security (will they be stolen)• Do they remain on• Does the network remain open
How easy is it to gain access during the day• Receptionist• Vacant offices
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Relation with Data Storage/ISPDo your third-party providers have
written confidentiality obligationsWhen and how can your firm receive
• Information from system• Audit of sharing or disclosures
Access Problems Forwarding of email to personal account VOIP Telephone Use of public computers Use of unprotected WiFi systems
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Risk of Mobile DevicesWho is using a portable device and for what
• Do you need to worry about overtimeWhat protections existWhat backup systems exist
Lost or Stolen Mobile Devices
What backup capacity is available Are devices protected – password (or more)
• Screensaver protections• Encryption
Can the firm remotely lock/wipe devices
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NYT Learns of Goldman Trade's Legal Defense from Discarded Laptop The New York Times has learned about the legal defenses for a Goldman
Sachs trader from a discarded laptop discovered in a garbage area of a New York apartment building.
An artist and filmmaker gave legal materials from the laptop to the newspaper, saying a friend had discovered the computer in the garbage [in 2006]. Even after artist Nancy Cohen obtained the laptop, email messages for the defendant, Fabrice Tourre, continued streaming into the computer, the story says.
The documents include draft replies by Allen & Overy to a Securities and Exchange Commission lawsuit against Tourre, a midlevel executive at Goldman. The replies point the finger at other Goldman employees, including two lawyers, who worked on the same targeted deal as Tourre.
Cohen said she ignored the streaming messages until she heard news reports about Tourre and decided to turn over the materials to the Times.
ABA Journal Online, June 1, 2011
Unintended Disclosure
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Errant Emails
Is the email an improper solicitation Is the email spam (federal regulations) Would the email (inadvertently) disclose client
confidences Is the email going to the right people
• Reply all• AutoComplete
"Reply All"
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Possible Disclosure of Metadata How is the firm managing metadata Scrubber issues
• Default/override settings• Applicability to remote access• Availability for non-email files
Ease of .pdf creations
Ineffective Redactions
Document generated in word processing program Document redacted (usually with black
"highlighting") Document then converted (or printed or saved) as
.pdf for production
Result: redacted text likely available for "select text"tool
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Disposal of Obsolete Equipment/Data
Who is disposing of obsolete computers, flash drives, cell phones, palms, etc. What safeguards are being observed
What is happening with home computers
Data Recovery
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What Is Your Back-Up?
How readable are backup systems? Can data be accessed if computer system is
unusable?• Back-up data ≠ usable information
Undesirable Data
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Unsolicited (Non-Client) Data Website may invite communication – and thus
creation of lawyer- or accountant-client relationships• Listing of email addresses• Pop-up or click-through protections
Protocols (and education) for replying to unsolicited emails
What About Viruses
Status of firm virus protection Response to unsolicited emails
• Messages from impostors
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Spyware
What is your computer saying?
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Discovery Issues
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Metadata Did you disclose it? Can you look for it? Can you use it if you find it?
Discovering Social Media – Limitations
Is the person represented? Prosecution of John Robertelli and Gabriel Adamo (NJ)
Is subterfuge used?
Even if subterfuge is not used, contacting a non-represented person with a "friend" request may be unethical
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Safest Approaches
Use publicly available information
Use ordinary discovery to obtain what is not publicly available
Preservation of Social Media
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