Welcome to Class

INTRODUCTION TO LEGAL TECHNOLOGY

The Syllabus

Due dates for assignments (Tuesday of that Unit)

Self-check quizzesMidterm project and midterm examFinal projectOffice HoursDiscussion Board Requirements

ATTORNEY-CLIENT PRIVILEGE

Unit 1

How is Technology Used in a Law Office

Word ProcessingSpreedsheetsTime and Billing AccountingCalendarsTrial PrepEmail and Document Delivery

Technology and Confidentiality

Legal assistants and nonlegal staff have access to confidential data and need to understand the nature of confidentiality so that client confidences are not disclosed

Attorneys have a duty to keep client confidences, and those doing work for the attorney are similarly bound

Key Concepts for Confidentiality

Duty of Confidentiality (and its exceptions)

The Attorney-Client Privilege The Work Product Rule Inadvertent Disclosure

The Model RulesABA Model Rule 1.6

Covers all client information, regardless of the source

Generally covers client statements made in the presence of third parties

Allows disclosure to prevent client crimes only if the crime is likely to result in imminent death or substantial bodily harm

How Do the Ethics Rules Apply Confidentiality to Legal Assistants?

Professional Responsibility Rules apply the duty of confidentiality to the lawyer’s employees and associates (including paralegals and computer consultants)

NALA guidelines requires legal assistants to preserve client confidences and secrets before, during, and after the course of the professional relationship

Exceptions to the Duty of Confidentiality

When can client confidences be broken?

implied authorizations needed to carry out the representation

Preventing criminal behavior by the client defending claims made against the lawyer criminal charges made against the lawyer

malpractice claims made against the lawyerdisciplinary charges made against the

lawyer collecting fees

Technology and Client Confidentiality

EmailFax MachinesMobile or Cellular Phones

According to the ABA and many jurisdictions, communicating in these ways does not violate the duty of confidentiality because there is a reasonable expectation of privacy with this technology, and because federal law prohibits wiretapping.

The Attorney-Client Privilege

Is related to the ethics duty of confidentialityIs found in witness competency statutesIs an evidentiary ruleProtects against compelled disclosure of

confidential communications

The Paralegal’s Work Product and the Attorney-Client Privilege

Statements made to the paralegal in an attempt to seek legal assistance are covered by the attorney-client privilege, even where the jurisdiction’s attorney-client privilege statute doesn’t mention paralegals

But, for the paralegal’s work product--created during the course of litigation--to be covered by the attorney-client privilege, the work must have required professional skill (i.e. attorney skill)

Summarizing the Confidentiality Family Tree

1.The Duty of Confidentiality (ethics rules: MR 1.6 or DR 4-101) prohibits the voluntary disclosure of client information

2.The Attorney-Client Privilege (witness competency statutes)prevents compelled disclosure of confidential communications

3.The Work Product Rule (civ. pro. rule 26(b)(3))presides over the discoverability of lawyer and employee-created evidence, prepared in connection to litigation

4.The Inadvertent Disclosure Doctrine (evidence rule 501(b))

provides the opportunity after fouling up

Protecting Against Breaches of Confidentiality

Use encrypted emailGet client permission to communicate by

emailChange computer passwords frequentlyBe careful on the phone Be careful in common office spaceProtect files and other client documentsRemember the WWII phrase, “loose lips

sink ships”

Protecting Against Inadvertent Disclosure

Mark protected or privileged materials in a permanent way

When in doubt about whether certain discovery materials should be sent to the other side, confirm with your lawyer

If you think you may have inadvertently sent protected materials, or have received privileged materials, tell someone quickly

Voice Recognition Software and Thin Clients

What did you think of the section in the first Chapter about voice recognition software?

Do you think this will enhance the role of the legal assistant or could lead to a lesser need for legal assistants?

What did you think about the section on “think clients?”

Do You Presently Work in a Lawfirm?

If so, what type of technology is used?Do the attorneys where you work take paper

files to court or computers?Are PDA and Blackberry devices used? Do

paralegals get them too?

Practice Questions!

Question # 1

Plaintiff's attorney told an IT consultant that his client told him that she ran a red light.  Did the attorney violate the attorney/client privilege?

A)Yes B)No

Answer: Question # 1

Yes! An attorney or legal assistant cannot reveal information that is learned in the course and scope of a client representation. This was not an agent or “other person” needing to know this as part of the representation.

Question # 2

At a criminal jury trial, client tells attorney that client insists on testifying falsely.  Attorney attempts to persuade client to testify truthfully and explains the consequences of perjury.  Still, the client is adamant. Will the attorney violate the duty of confidentiality by telling someone?

Answer: Question # 2

No. If the client is going to commit a future crime or perjury, the attorney cannot allow the client to take the stand and can reveal that without violating the duty of confidentiality.

Question # 3

Defendant says to his lawyer, "I committed the murder, and I'm glad.  Will you represent me?"  Defendant's statement is:

Question # 3

A)Not privileged because of the crime/fraud exception.B)Privileged, but only if the attorney undertakes the representation.C)Privileged.D)Privileged, but only if the client pleads guilty.

Answer: Question # 3

C – Priviged!

Question # 4

The attorney-client privilege does NOT apply if:A. The attorney charges their client a whole lot of moneyB. The attorney takes the stand as a character witness for their clientC. The confidential information is exchanged immediately following the crimeD. The attorney gives advice in furtherance of a crime

Answer: Question # 4

D. The attorney cannot give advice in furtherance of a crime!