Law Firm Texting : Impermissible Solicitation or Direct Mail Advertising?

The Florida Bar Committee on Advertising voted 6-1 to answer the texting question by defining a law firm’s proposed texting  campaign as impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients.  The law firm’s position is that texting is similar to direct mail or email advertising, which is permissible if done in accordance with the Florida Bar’s rule on direct mail advertising.  The firm plans to appeal the Committee’s decision to the Florida Bar Board of Governors.  Stay tuned as technology strikes the advertising rules again! Read more here.

Email Anxiety: Revisiting Client Confidentiality & Communication Via Email

Although email has become a common means of communicating among lawyers and their clients, questions about its viability are once again being addressed as a result of increased incidences of  hacking and NSA surveillance.  The Texas Professional Ethics Committee recently released an opinion in which it reinforces the reasonable use of email by lawyers when communicating confidential information, but acknowledges the implications of current technology. The opinion cautions that there are certain situations in which an attorney should consider the nature of the confidential information and whether email should be encrypted or may not be a reasonable means of communication. The opinion provides the following examples:

1. communicating highly sensitive or confidential information via email or unencrypted email connections;

2. sending an email to or from an account that the email sender or recipient shares with others;

3. sending an email to a client when it is possible that a third person (such as a spouse in a divorce case) knows the password to the email account, or to an individual client at that client’s work email account, especially if the email relates to a client’s employment dispute with his employer (see ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 11-459 (2011));

4. sending an email from a public computer or a borrowed computer or where the lawyer knows that the emails the lawyer sends are being read on a public or borrowed computer or on an unsecure network;

5. sending an email if the lawyer knows that the email recipient is accessing the email on devices that are potentially accessible to third persons or are not protected by a password; or

6. sending an email if the lawyer is concerned that the NSA or other law enforcement agency may read the lawyer’s email communication, with or without a warrant.

The opinion suggests that in the event that any of these circumstances are present then the lawyer should discuss the risks of email communication containing confidential information with his client and either obtain consent or decide upon another means of communication.

To read the opinion click here.

NYCLA Releases Latest Opinion to Address Ethical Implications of Lawyers on LinkedIn

On March 10, 2015, the New York County Lawyers Association Professional Ethics Committee released Formal Opinion 748 addressing the ethical implications of attorney profiles on LinkedIn—a professional networking website. LinkedIn allows users to connect with other users, providing them access to their respective profiles and information that may otherwise be private depending on the individual user’s settings. LinkedIn also allows users to control the information displayed on their profile, which may be objective, such as educational background and work experience, as well as subjective, such as skills, recommendations, and endorsements.

Because of the various profile options and privacy settings available, confusion has arisen with respect to how attorneys should properly fill out and operate their LinkedIn accounts. As such, the committee chose to clarify three questions:

  1. Whether a LinkedIn profile is considered “Attorney Advertising”;
  2. When it is appropriate for an attorney to accept endorsements and recommendations; and
  3. Information attorneys should include (and exclude) from their LinkedIn profiles to ensure compliance with the New York Rules of Professional Conduct.

The committee determined that attorneys may maintain profiles on LinkedIn, “containing information such as education, work history, areas of practice, skills and recommendations written by other…users.” If, however, an attorney includes additional information, such as specific skills or endorsements, it may be considered Attorney Advertising and is therefore subject to the provisions in Rule 7.1. Moreover, according to Rule 7.4, attorneys may not list information about their “skills or practice areas” under headings labeled “Specialties,” but may otherwise list them under the headings “Skills” or “Endorsements.”

Furthermore, relying on Pennsylvania Formal Ethics Op. 2014-300, the committee noted that “attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations by other LinkedIn users.” If the information is not accurate, it should be excluded from the attorney’s profile. Ultimately, New York lawyers should regularly monitor and review the content of their LinkedIn profiles to avoid potential ethical violations.

Click here to read more. Click here to read the full text of the opinion.

We previously reported on the NYCLA opinion in our post on attorney endorsements. To read that post click here.

Legal Implications of Wearable Technology

The Apple Watch, Google Glass and Fitbit are among the most recognized wearable gadgets in the market today that are revolutionizing the way we store, retrieve and develop information. With the advent of wearable technology, however, come ethical implications that may soon also revolutionize aspects of the practice of law.

The implications of the capabilities of these wearable devices are already creeping into the legal field, and the data gathered will soon prove to be a legal asset or an ethical headache. The conversation has already begun in Canada, where a personal injury plaintiff’s attorney is attempting, for the first time ever, to use data from his client’s Fitbit to get additional damages, by claiming that as a result of a car accident his client’s activity levels are lower than an average person’s.

Accordingly, the use of such data in litigation may trigger discovery, evidentiary, and even constitutional issues. It is likely that the more specialized the health information collected becomes, the more important the question of privacy will turn out to be. Another area for debate is the reliability of the devices. Attorneys will have to take into account the ease of manipulation among other factors that may affect the accuracy of the information. Constitutional questions regarding the Fourth, Fifth and Sixth Amendments could also be a topic for deliberation.

Also, if the information gathered by these devices is likened to a medical record it would open the proverbial “can of worms,” and determining whether the data is subject to a federal or state regulatory framework is likely to catapult the topic from the courtroom to the congressional floor.

As this topic inches its way to the forefront of legal discourse, attorneys ought to be cognizant of their ethical obligation to remain competent by staying abreast of changes in the law, which include knowing the benefits and risks associated with technology. We will stay tuned to find out how this topic unfolds.

So, What About LinkedIn Endorsements? LinkedIn & The Attorney Advertising Rules

LinkedIn Endorsements are one of the many attractive features of the professional networking website that have left the population of attorney-LinkedIn users befuddled as to whether they are ethically permitted to engage in such LinkedIn etiquette. After all, if an attorney maintaining a LinkedIn account gets a notification that a distant acquaintance (who, in LinkedIn-land is nonetheless called a “connection”) has endorsed him for an area of law in which he has no actual experience, then has that attorney necessarily done anything wrong? In other words, by doing nothing or failing to act on another LinkedIn user’s conduct, has the lawyer nevertheless acted falsely, misleadingly, or deceptively, and therefore, unethically?

For quite some time, there has been no definitive answer; however, within the last year, there have been two ethics guidelines—specifically, the New York State Bar Association’s “Social Media Ethics Guidelines” and the Pennsylvania Bar Association’s advisory opinion entitled, “Ethical Obligations for Attorneys Using Social Media”— that have touched on this ethical dilemma and proposed solutions. Both guidelines discussed the concept of “control” and explained that where an attorney has control over content on a social media website, he has a duty to monitor his account, verify the accuracy of any information posted, and remove or correct any inaccurate endorsements.

But on March 10, 2015, in Formal Opinion 748, the Professional Ethics Committee of the New York County Lawyers Association tackled the issue head-on, leaving little room for continued confusion. Moreover, the Committee deemed LinkedIn to be subject to the attorney advertising rules unless an attorney is only listing her education and work background.

The Committee came to the following stern conclusion about LinkedIn: attorneys are responsible for periodically monitoring the content of their LinkedIn pages at reasonable intervals and endorsements must be truthful, not misleading, and based on actual knowledge.

The opinion specifically addresses the question of what an attorney is to do when he receives an inaccurate endorsement or recommendation from a distant acquaintance—he is to remove the endorsement from his profile within a reasonable period of time once he becomes aware of the inaccurate posting. Where the variables are slightly different, such that it is instead a colleague or former client sending an accurate endorsement of the lawyer’s actual experience or area of practice, the endorsement is not considered misleading so it is therefore ethically permissible as long as it is otherwise in compliance with the advertising rules, which may require disclaimer language.

To read the opinion click here.

LOUISIANA LAWYER’S “SOCIAL MEDIA BLITZ”: First Amendment Right or Misleading &Impermissible Attempt to Influence the Judiciary?

An attorney, representing a woman alleging sexual abuse by the father in a custody and visitation battle, allegedly waged a social media attack on two judges involved in the case based upon the attorney’s frustration with the lack of progress in the case. The attorney’s strategy may cost her the suspension of her license for a year and a day if the Louisiana Supreme Court adopts the Louisiana Attorney Disciplinary Board’s Recommendation.

The Disciplinary Board’s Recommendation adopts the findings of fact of its Hearing Committee, which state that the attorney created an online petition that read, “Sign our petition telling the judges that there can be no justice … if the law and evidence is ignored…Ask yourself, what if these were your daughters? … Horrified? Call the judges and let them know.”

Additionally, the Committee found that the attorney created a website, which promoted the online petition and discussed sealed information about the cases, and also promoted the petition via twitter. One of her tweets read, “GIMME GIMME GIMME Evidence! Want some? I got it. Think u can convince a judge to look at it? Sign this petition.” The Hearing Committee also found that the attorney’s online petition contained false statements about the judges.

The Disciplinary Board Recommendation adopts the Hearing Committee’s finding of law in so far as the Committee found that the attorney violated the following Rules of Professional Conduct: Impartiality and Decorum of the Tribunal 3.5(a) and Misconduct 8.4(a)(c)(d).

The attorney asserts that her conduct is protected free speech and is quoted by the ABA as stating that she does not “believe the [suspension] recommendation does anything to protect the profession or make it more ‘honorable.’ To the contrary, it undermines it, and further ensures that ‘justice’ will be whatever judges say it is, regardless of the law, ethics, or all the facts and circumstances that would otherwise contradict them.”

Click here to read the full text of the Disciplinary Board’s Recommendation. Click here to read more.

Attorney-Client Privilege not Extended to E-Mails Exchanged with Attorney Litigation Funder

On January 30, 2015, in response to a Motion to Compel, the U.S. District Court for the Southern District of New York ordered emails exchanged between defendant’s ex-wife and a litigation funder to be produced after finding that the e-mails are not protected by the attorney-client privilege. Accordingly, the former husband is entitled to see hundreds of e-mails that contain valuable information about the suit against him.

Pursuant to New York privilege law, the Court concluded that the ex-wife is barred from claiming privilege for the e-mails because, even though the funder is an attorney, she is “neither necessary to facilitate [the ex-wife’s] communications with counsel nor in possession of a legal claim against [the ex-husband].”

Unlike the facts in the landmark case of United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), where it was held that the privilege extends to exchanges with a third party who is essential for facilitating legal advice, the funder’s role in this matter is not necessary for the attorney-client relationship. The court also found that the common interest doctrine does not apply because the ex-wife and the funder do not share any legal interests, and despite possibly having a common financial interest in the outcome of the suit, “that relationship does not fall into the narrow category primarily reserved for co-litigants pursuing a shared legal strategy.”

The implications of this decision is that all communications between the ex-wife and the litigation funding company are discoverable, from the e-mail discussing legal strategy to those regarding filings and discovery. Thus, clients having their cases funded by a litigation funding company need to be careful to not electronically communicate information they would like to keep private.

Find the full text of the Order here. To read more, click here.