Ethics and Technology: Avoiding Traps and Pitfalls - ABA for Law … · 2018-11-22 · | Ethics and...

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Today’s Faculty

Meredith Small, Harvard Law School, Cambridge, MA (Moderator)

Justice Daniel J. Crothers, North Dakota Supreme Court

Ellyn Rosen, ABA Center for Professional Responsibility Deputy Director and ABA Regulation Counsel


We Will Highlight…

• The Cloud

• Data Loss— Public WiFi & Use of Other Devices

• Social Media Issues


Where Ethics and Technology Intersect On These Issues

• LAWYER’S DUTY OF COMPETENCE: Rule 1.1• CONFIDENTIALITY OF INFORMATION: Rule 1.6• Use of Outside Providers: Rule 5.3• Communications Regarding Services: Rules 7.1

and 7.2


Competence

• ABA Rule 1.1 comment [8]:– “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”


Confidentiality

• Rule 1.6 “reasonable efforts” factors?– Sensitivity of the information– Likelihood of disclosure without additional

safeguards– Cost of employing additional safeguards– Difficulty of implementing safeguards, and – Extent safeguards adversely affect lawyer’s ability

to represent clients (e.g., by making a device or important software excessively difficult to use)

ABA Model Rule Prof. Conduct 1.6 cmt. 18


Yes, Lawyers Can Use the Cloud for Legal Work.

• Alabama Bar Ethics Op. 2010-02• Arizona Bar Ethics Op. 09-04• California Bar Ethics Op. 2010-179 • Connecticut Bar Ethics Op. 2013-07• Florida Bar Ethics Op. 12-3 (2013)• Iowa Bar Ethics Op. 11-01• Illinois Bar Ethics Op. 10-01 (2009)• Maine Bar Ethics Op. 207 (2008)• Massachusetts Bar Ethics Op. 12-03• New Hampshire Bar Ethics Op.

2012-13/4• New Jersey Ethics Op. 701 (2006)

• New York State Bar Ethics Op. 842 (2010)

• Nevada Bar Ethics Op. 33 (2006)• North Carolina Ethics Op. 6 (2011)• North Dakota Bar Ethics Op. 1999-

03• Ohio Ethics Op. 2013-03• Oregon Bar Ethics Op. 2011-188• Pennsylvania Ethics Op. 2011-200• Vermont Bar Ethics Op. 2003-03• Virginia Bar Ethics Op. 1818 (2005)• Washington Bar Ethics Op. 2215

(2012)


Look Before You Leap

Look before you leap! Model Rule 5.3 and Using Outside Providers

• Evaluate vendor’s security including firewalls, encryption techniques, intrusion detections systems, and redundancy of back up. If vendor has breach will you be notified?

• Evaluate vendor’s business stability by checking into funding, business continuity plan and client reviews. Will the provider agree it has no ownership or security interest in the data.

• Study the Privacy Policy/ Terms of Use/License Agreement

• Examine vendor’s policies and procedures for handling confidential information including employee access.

• Will the lawyer be notified if cloud provider is served with process requiring the production of law firm data?


Anthony Associate - Hypothetical

• First year associate Anthony is in New York solo for a case. After seeing Hamilton,he panics about a forgotten upcoming discovery deadline. He goes to work in the all-night coffee shop around the corner. From his laptop he logs onto the public WiFi,drafts discovery responses and flags in comments some questions for his client. Heemails the drafts to his client from his Gmail account as his VPN is not working. Heincludes more questions for his client in the body of his transmittal message. Thedrafts contain opposing counsel’s name, street and email addresses so Anthony canlater complete the certificate of service.

• In the morning he can’t log onto his laptop. Thankfully, he saved the drafts to hispersonal cloud account. Using the hotel’s business center computer he downloadsthem, saves them on the desktop, and logs into his Gmail. The client, using airportfree Wifi, emailed the information Anthony needed and asked questions about liabilityand settlement. Anthony responds, revises the drafts from desktop, saves them backto his cloud account, and downloads them onto a flash drive. He sticks the drive inhis front shirt pocket, and logs out of the hotel computer without deleting thedocuments from the desktop. He quickly packs, checks out and heads to a clientmeeting without noticing that the flash drive now rests on the hotel room floor underthe desk.

• Why is Anthony in trouble?

10


What is WiFi?

• WiFi is a broadcast radio technology

• Public WiFI is generally provided on an “as is” basis. The wireless configuration is “open.”

• No password is required and no encryption is enabled.


Rule 1.6: Confidentiality

Rule 1.6:

lawyers should take reasonable precautions to protect client confidences from inadvertent or unauthorized access or disclosure (Model Rule 1.6)


Risks of Public WiFi

• Software to hack WiFi networks and analyze data packets is easily available on the internet

• Twining & man-in-the-middle attacks• The host of the public WiFi controls the

network and can monitor your traffic. • Others can access your WiFi for unlawful

purposes, i.e. child pornography


Email Gotchas


And Even More Email Gotchas…

• Using spam filters? Don’t forget to whitelist the court!

• Don’t fall prey to spear phishing, whaling, and scams

• What about your clients:– What email address did your client provide? Is

there a work policy that would cause privilege waiver?

– ABA Formal Opinion 11-459


Ripped From the Headlines…


Do LinkedIn Endorsements Violate Ethics Rules?


What NOT To Tweet


Questions?


Upcoming FREE Ethic Series Webinars

Sign-up at abaforlawstudents.com/events:

• March 3 @ 1 PM ET - Steering Clear of Lawyer Discipline • April 6 @ 1 PM ET - Parameters of “Practice” for Law

Students & Not Yet Licensed Graduates

Ethics and Technology: Avoiding Traps and Pitfalls - ABA for Law … · 2018-11-22 · | Ethics and...

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Transcript of Ethics and Technology: Avoiding Traps and Pitfalls - ABA for Law … · 2018-11-22 · | Ethics and...