ETHICAL ISSUES SURROUND ELECTRONIC COMMUNICATIONS

Unit 3

Introduction

Today there are volumes of information at your fingertips 24/7

The Internet is used by legal professionals to communicate, market the business, engage in commerce, and research issues.

Technology surrounding the Internet and ethical issues that can surround electronic forms of communication are ever evolving

Communication

We will spend most of this seminar discussing ethical issues surrounding electronic communications.

Through email, clients are kept informed of their cases and have questions answered.

Legal professionals can become involved in “listservs” to keep apprised of topics of interest and continue their legal education.

Marketing

Most law firms have a web site to market the firm electronically rather than in printed form.

Usually the site will describe the firm, the type of work it concentrates in, and articles that it has published.

Firms need to ensure that their web sites comply with state bar ethics codes.

Commerce and Research

Obviously legal material can be purchased online.

The Internet and other electronic data bases are also used to conduct legal research to determine the strength of a case and that of an opponent.

What is Electronic Communication?

These have arisen over the past few years due to the changing ways that people communicate at work.

They are much faster forms of communication than mail, but there are problems that can arise with the use of various forms of electronic communication.

Phones and Voice Mail

Conference calls and voice mail are effective ways to communicate, things to consider are what information you can and should leave on a voice mail, and who is on the conference call.

You should also ask permission before putting someone on speaker phone, and know if someone else is doing so in order to avoid inadvertant disclosure of confidential information.

Facsimile

Most facsimile coversheets contain a “confidentiality” notice indicating that if the fax was received in error he or she should return it to the sender.

This is used to maintain the attorney/client privilege and confidentiality.

Double check fax numbers before sending.

Email

Avoid the “reply to all” unless you are sure everyone should be receiving the response.

Be specific in the subject line so that what the email is about will be clear.

Confidentiality and security are huge issues in the legal arena with regard to email.

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Ethical Concerns -- Email

Email is used between legal staff and clients, and can be used to send documents for a client to review before sending out.

Because these documents are sent over networks over an essentially open environment, privacy is a concern.

The communications can be intercepted and alteration, so those emails need to be secure when they are sent.

Ethical Concerns -- EmailsIn order to avoid inadvertent waiver of the

attorney client privilege, encrypting the communication that is sensitive is a good idea.

Include in the email a notice that the communication is intended only for the recipient (just like is used with faxes)

If the law firm deals with cyber law, it can also be held to a higher standard.

Employers monitor emails and usually restrict them for professional use only!

Ethical Concerns – Marketing

Does marketing online constitute advertising and solicitation?

State bar regulations on attorney advertising must be carefully reviewed to ensure that all materials posted on the Internet or sent out to groups complies with certain rules (you’ll study that in Legal Ethics)

Usually these websites are viewed as advertisements instead of solicitations

Disclaimers – no attorney client relationship

Metadata

Metadata tracks information about documents that are attached to an electronic file.

System metadata refers to tracking the file – the file name, size, and where it can be found.

Content metadata refers to who created the document, changes, etc.

So … What Can You Do?

Encryption – locking information to protect it from being discovered by others would definitely serve to preserve the attorney/client privilege. Encryption software allows scrambling of information that can only be understood with those who have the encryption code.

Those who do not have the password or encryption key will only see scrambled messages and files.

Encrypting Email

There are different email encryption programs, such as Mail it Safe, that authenticate both parties before the contents of the message are understandable.

Because of the confidential matters that are discussed between a lawyer and his client via email, this is an invaluable tool to ensure protection.

Practice Questions

Practice Question # 1

Suppose that Attorney Jones has a conference call with his client. While the phone is ringing, the attorney puts it on speaker phone but leaves his office door open. While talking to the client, people in the waiting room hear the entire conversation. Is this a problem?

Answer to Practice Question # 1

Yes!!! A waiver of the attorney/client privilege can occur when a conversation takes place in the presence of third parties. In this case, the waiver was not done by the client or with the client’s consent, so the attorney would face a potential malpractice suit if private information got into the wrong hands!

Practice Question # 2

Suppose that Attorney Jones decides to send over a summary of a client’s strengths and weaknesses to his client. He does so as an email attachment, but does not encrypt the email. What is the problem with this?

Answer to Practice Question # 2

Unencrypted emails can be intercepted by those who are not supposed to receive it. Unauthorized users can obtain the information and use what was supposed to be protected information to their benefit.

Practice Question # 3

Attorney Jones, who is not having a good day, decides to send a facsimile. He does not use a cover sheet containing a confidentiality notice, and does not double check the fax number before sending it. The fax goes to a competitor’s office by mistake. What happens?

Answer to Practice Question # 3

Attorney Jones runs the risk of a court allowing the opponent to use this information against his client. Fax numbers should always be double checked before sending, and a cover sheet containing the confidentiality notice is a must!

Practice Question # 4

In a crowded courthouse, Attorney Jones uses his cell phone to tell his paralegal what points to argue in a motion in support of his client. Why might this be a problem?