Legal Ethics and Technology: Complying With Changes to the Model - - PowerPoint PPT Presentation

▶
legal ethics and technology complying with changes to the
SMART_READER_LITE
LIVE PREVIEW

Legal Ethics and Technology: Complying With Changes to the Model - - PowerPoint PPT Presentation

May 05, 2023 9 likes •320 views

Presenting a live 90-minute webinar with interactive Q&A Legal Ethics and Technology: Complying With Changes to the Model Rules of Professional Conduct Best Practices to Protect Client Confidences and Advertise Legal Services WEDNESDAY,

slide-1
SLIDE 1

Legal Ethics and Technology: Complying With Changes to the Model Rules of Professional Conduct

Best Practices to Protect Client Confidences and Advertise Legal Services Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

  • speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

WEDNESDAY, DECEMBER 12, 2012

Presenting a live 90-minute webinar with interactive Q&A

Jack Marshall, President, ProEthics, Alexandria, Va. Shannon Brown, Attorney, Law Office of Shannon Brown, Mount Joy, Pa. Jodi Cramer, Senior Air Staff Counsel, United States Air Force, Washington, D.C.

slide-2
SLIDE 2

Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory and you are listening via your computer speakers, you may listen via the phone: dial 1-866-570-7602 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

slide-3
SLIDE 3

For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps:

  • In the chat box, type (1) your company name and (2) the number of

attendees at your location

  • Click the SEND button beside the box

FOR LIVE EVENT ONLY

slide-4
SLIDE 4

If you have not printed the conference materials for this program, please complete the following steps:

  • Click on the + sign next to “Conference Materials” in the middle of the left-

hand column on your screen.

  • Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

  • Double click on the PDF and a separate page will open.
  • Print the slides by clicking on the printer icon.
slide-5
SLIDE 5

Leg egal al Ethic ics s An And T d Tec echno hnology logy:

Compl plyin ing g wi with h Changes nges To the e Model el Rules es of Pr Professi ession

  • nal

al Conduc nduct

Best t Pract actic ices es to to Protect tect Client ent Confi nfide dences nces and Adver ertise tise Legal al Services vices Sponsor nsored ed by th the Legal al Publishin lishing g Group Of Str traff affor

  • rd Pub

ublicati lication

  • ns

5

slide-6
SLIDE 6

Your Presenters

Shan anno non n Br Brown, wn, Esq. Attorney, Mount Joy, Pennsylvania www.shannonbrownlaw.com Jodi di Cram amer er, Esq. Senior Air Staff Counsel, specializing in information law for the U.S. Air Force*

(*Acting in personal capacity, not as representative of Air Force)

Jack k Marsha shall, l, Esq. Attorney (Massachusetts and D.C.) President, ProEthics, Ltd. www.proethics.com

6

slide-7
SLIDE 7

Introduction: Why Technology is the Achilles Heel of Legal Ethics

A. A. Sp Spee eed d of Ch Chan ange B. B. Incr creasi easing g Rel Reliance iance C.

  • C. The

e Cl Clueless elessness ness of Lawy wyer ers ►►►

7

slide-8
SLIDE 8

D. D. The he AB ABA: A: Techn hnol

  • logy

gy-Rel Related ated Ch Chan anges s to the he Mo Model l Rul ules s Ap Appr proved ed by y AB ABA A Hous use e of Dele legates ates (10 10/6/ 6/12 12)

  • 1. Technology, Competence & Confidentiality

www.ame americ ricanbar anbar .org/c /con

  • nten

tent/ t/dam/ m/aba aba/ad /admin inis istr trati ative/eth e/ethics ics_2020/2 /20120808 _revi vised ed_reso esoluti tiio ion_105a_a a_as_ame mended. d.authc authchec eckdam. am.pdf pdf

►►►►

8

slide-9
SLIDE 9

Rul ule 1. 1.1: 1: C Competen mpetence ce

“A lawyer shall provide competent representation to a client. Competent repr pres esen entatio tation requi quires es the legal al kno nowl wled edge, skill kill, thor

  • roug

ughn hness ess, and preparation reasonably necessary for the representation.” Comm

  • mment:

ent: Mai aintai ntaini ning g Com

  • mpeten

petence ce “[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast

  • f 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.”

9

slide-10
SLIDE 10

Other her Rul ules: s:

Ru Rules es 1.1, 1, 1.4, 4, 1.18 18, 4.4, 4, 5.5, 5, 7.1, 1, 7.3 http tp:// ://www www.amer american icanbar bar.or

  • rg/c

g/conen nent/dam/a t/dam/aba/a a/adm dmini inistr strati ative/ethi e/ethics cs_ 2020/ 20/20 2012_ 12_ho hod_ann _annua ual_ l_me meetin eting_1 g_1-5b 5b.au .authc thche heckdam dam.p .pdf df Ru Rule e 1.6 6 - Confi

  • nfiden

dential tiality ity of Infor

  • rmatio

mation “(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unau autho thori rized zed disc sclo losur ure e of, or unau autho thori rized zed acces ess s to, inf nfor

  • rma

matio tion relati lating the representation of a client.” ►►►►

10

slide-11
SLIDE 11

Rul ule 1. 1.6 ( 6 (cont.) nt.)

Comm

  • mment:

ent: Actin cting g Com

  • mpeten

petentl tly y to Preser eserve e Confi

  • nfidentia

entiali lity ty

“[16]… The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential 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). A client may require the lawyer to implement special security measures not required by this Rule, or may give informed consent to forgo security measures that would

  • therwise be required by this Rule. Whether a lawyer may be required to take

additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.” ►►►►

11

slide-12
SLIDE 12

Rul ule 1. 1.6 ( 6 (cont.) nt.)

Comm

  • mment:

ent: Actin cting g Com

  • mpeten

petentl tly y to Preser eserve e Confi

  • nfidentia

entiali lity ty (cont.)

  • nt.)

“[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. Whether a lawyer may be required to take additional steps in order to comply with

  • ther law, such as state and federal laws that govern data privacy, is beyond the scope
  • f these Rules.”

12

slide-13
SLIDE 13

The Punt: ABA Formal Opinion 11-459 August 4, 2011

13

slide-14
SLIDE 14

“Dut

uty y to Protect ect the he Co Conf nfid identi entiali ality ty of E-Mail Communications with One’s Client”

“A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communica- tions using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer

  • r another third party.”

14

slide-15
SLIDE 15

The Technology Culture:

Incursions and Temptations in Trials, Juries, and Practice

15

slide-16
SLIDE 16
  • The Wired Client
  • The Wired Juror
  • The Wired Judge
  • The Wired Lawyer

16

slide-17
SLIDE 17

“Don’t Get Cocky, Kid…”

Old Technology That Can Still Bite

17

slide-18
SLIDE 18

E-Mail and Encryption

  • 1. E-Mail is not as private as you think it is:

The Rehberg v. Paulk scare

  • 2. Encryption issues: Types and Limitations
  • at-rest encryption
  • transient encryption

http://www.shannonbrownlaw.com/cms/archives/819 http://www.shannonbrownlaw.com/cms/archives/930 http://www.shannonbrownlaw.com/cms/archives/417 ►►►

18

slide-19
SLIDE 19

GMAIL

  • Google’s computers scan your e-mail for key

words.

  • They use those key words to provide

advertisements when you use GMAIL.

  • Google stores all that data in their system to

send you targeted advertisements.

19

slide-20
SLIDE 20

Metadata Copy Machines

Florida Bar Opinion 10-2

http://floridabar.org/tfb/TFBETOpin.nsf/SMTGT/ETHICS, %20OPINION%2010-2

San Diego County Bar Association http://www.sdcba.org/index.cfm?pg=Legal-Ethics-Corner-4-11

YouTube

20

slide-21
SLIDE 21

Lap Laptops tops / P / PCs Cs

►►►►

21

slide-22
SLIDE 22

Sa Safek ekeepi eeping g and Re d Repor

  • rtin

ting

  • A. Cli

lien ent t file le as clien ient t proper

  • perty

ty thus us subject ect to safek ekee eepin ping g requireme quirements nts.

ABA Model Rule 1.15 (“Safekeeping Property”) requires that client property should be “appropriately safeguarded.” Client property generally includes files, information and documents, including those existing electronically.” (Emphasis added.)

  • B. Sample

mple Act: : Penn ennsyl ylvan ania ia Br Breach of Perso sonal al Infor

  • rmatio

ation n Act

“An entity that maintains, stores, or manages computerized data that includes personal information shall provide notice of any breach of the security of the system following discovery of the breach of the security of the system to any resident of this Commonwealth whose unencrypted and unredacted personal information was of is reasonably believed to have been accessed and acquired by an unauthorized person.” 73P.S. 2303(a) (Emphasis added.)

C. C.Inter eractio action n of the Data a Br Breac ach h Acts s and d the Ru Rules es of Prof

  • fess

essio iona nal l Condu

  • nduct:

ct: An Ethica hical l Dilem lemma ma?

22

slide-23
SLIDE 23

Protecting the Data

  • 1. Full~Disk Encryption
  • 2. Up~To~Date Anti~Virus/Malware/Spyware, Firewalls
  • 3. Up~To~Date Systems
  • 4. Back~Ups

◊ Kelly Jackson Higgins, Half of Machines Shopping on Cyber Monday Likely Contain Vulnerabilities, http://darkreading.com/insider-threat/167801100/ security/vulnerabilities/240142405/half-of-machines-shopping-on-cyber- Monday-likely-contain-vunerabilities.html?cd=ni_DR_daily-2012-11-21_html& elq=ecdae14b5a347ae180bdc5ad645ec990

23

slide-24
SLIDE 24

The New Frontier

24

slide-25
SLIDE 25

What is the Cloud?

25

slide-26
SLIDE 26

Issues:

  • Security
  • Privacy
  • E-discovery
  • Records

26

slide-27
SLIDE 27

Resources

http ttps://cio.g s://cio.gov/wp v/wp-content/ content/ upl ploads/do

  • ads/downl

wnloads/2012/09

  • ads/2012/09/

clo loud udbes bestpractices tpractices.pdf .pdf http ttp://www ://www.shanno .shannonbr nbrownla wnlaw.com/ .com/ cm cms/ar s/archi hives/794 es/794

27

slide-28
SLIDE 28
  • Persistent

Cookies

  • iPhones, Siri,

Apps & Privacy

►►►►

28

slide-29
SLIDE 29
  • Social Networking Sites

Facebook, Linked-In, Twitter, etc.

  • 1. Informal

mal Dis isco cover ery

  • Wit

itnesses nesses

  • Jur

Juror

  • rs
  • 2. Ad

Adver ertisin tising

29

slide-30
SLIDE 30

Ethical Practice In Technological Turmoil: Discussion

30

slide-31
SLIDE 31

Legal Publishing Group

Thanks To Shannon Brown, Esq. sbrown@shannonbrownlaw.com Jodi Cramer, Esq. jodi.cramer@verizon.net Jack Marshall, Esq. jamproethics@verizon.net For Their Participation In This Webinar

(Power Point Created by Grace Bowen Marshall, ProEthics, Ltd.)

31