LA County Bar: Ethical Violations Abound When Blogging Attorney Spills the Beans

In an advisory opinion considering the ethical risks to incautious “catfished” attorneys, the Los Angeles County Bar Association Professional Responsibility and Ethics Committee also weighed in on the potential for ethical violations when an attorney discloses thinly veiled client information on blogs and online discussion boards. The committee concluded that where an attorney reveals enough information that a person familiar with aspects of the case could identify the significance of the details disclosed, they run the risk of violating the duties of competence and confidentiality, and might cause the loss of work product protections.

In the advisory opinion, the committee analyzed a hypothetical scenario in which an attorney posts on a blog associated with his law firm website and on a legal industry on-line discussion board. The contents of these posts reveal that in a matter the attorney is handling, a particular lay witness is “an older gentleman” whose “memory is weak.” In a subsequent post, the attorney reveals that he has retained an expert whose opinion is “very supportive” of the client’s position. The attorney further noted that as a result of the expert witness he now estimates damages in the matter will be “greater than” what he originally calculated.  ­

The attorney believed that the information revealed was innocuous mainly because the attorney did not identify the client or expert witness by name. Nevertheless, the committee explained that the attorney had revealed enough information “so that a person familiar with the aspects of the Client’s litigation would be able to identify the witness and the significance of [the] Attorney’s disclosures.” The attorney’s disclosures could result in client injury and professional discipline under the California Business and Professions Code § 6068(e)(1) and California Rules of Professional Conduct 3-100 and 3-110.

Find the full opinion here.

To Shred, or Not to Shred: That is the Question – Nebraska Permits Attorneys to Shred Physical Files

The Nebraska Supreme Court’s ethics committee has released an advisory opinion permitting attorneys to destroy physical copies of a client’s closed file so long as it is preserved in electronic form. However, the opinion advises that before a physical file may be digitized and subsequently destroyed, attorneys should consider:

  • the availability and cost of physical and electronic storage space,
  • ease of access to documents,
  • the potential need for original documents in future litigation,
  • preservation of client confidentiality, and
  • any other considerations that are pertinent to the contents of that file.

The advisory opinion was issued in response to a legal services organization’s question regarding whether digitally storing scanned images in lieu of physical storage would satisfy the Nebraska Rules of Professional Conduct, which require attorneys to preserve client files for a period of five years after termination of representation. However, the rules do not indicate whether lawyers are required to preserve those files in physical form. With the release of this opinion, the ethics committee has clarified that with the new advances in technology, it is no longer reasonable OR practical to keep physical or paper copies of every client’s files and thus allowed for the digitizing of files.

Find the full opinion here.

LA County Bar: Attorneys Hooked by Online “Catfish” Risk Ethical Violations

The Los Angeles County Bar Association Professional Responsibility and Ethics Committee recently issued an advisory opinion considering the repercussions for an attorney who communicates sensitive information to an online “catfish” –otherwise known as an individual who assumes a false identity in order to elicit sensitive information or otherwise defraud an unsuspecting person. The committee concluded that although an attorney may believe that his online disclosures are “innocuous,” the “lawyer’s unguarded disclosure of client information might result in violations of the duties of competence and confidentiality and might cause the loss of the lawyer-client privilege and work product protection.”

In the advisory opinion, the committee analyzed a scenario where an attorney communicated with a person online who claimed to be working in a “non-legal industry.” During their conversation, the attorney mentioned pending interviews with witnesses in an ongoing litigation, including information like the location of a witness and the subject of an expert’s expected testimony. The attorney was unaware that the person he was corresponding with was “actually associated with the opposing side of a pending case in which [the] attorney represents [the] client and is ‘catfishing.’”

In a detailed analysis of online “catfishing” and the “interplay of advancing technology and the lawyer’s professional responsibilities,” the committee reasoned that though the “incautious” online activity did not rise to the level of a full waiver of evidentiary privilege, the disclosures were enough to allow a person familiar with the litigation to “identify the witnesses and the significance of [the] attorney’s disclosure.” As such, the committee concluded that the scenario constituted a breach not only of the professional rules related to competence and confidentiality, but also a breach of the California Business and Professions Code 6068(e)(1), a state statute which obligates each attorney to preserve client “secrets.”

Read the full opinion here.

New York City Bar: Is A Client’s Confidential Information Secure at the Border?

Attorney’s traveling across the U.S. border may have to account for more than just their luggage. In fact, the New York City Bar recently issued Formal Opinion 2017-5, which offers guidance on dealing with the threat of disclosing confidential client information during a border search of electronic devices.

U.S. Customs and Border Protection (CBP) policy allows U.S. customs agents to review electronic information that is physically stored on a traveler’s device. However, an attorney has an affirmative duty to take “reasonable steps” to avoid disclosing confidential information not authorized by a client.

The New York City Bar’s opinion emphasizes  that under New York’s Rule 1.6(b)(6), attorney’s may not  reveal confidential client information unless it is “reasonably necessary” to obey a “law or court order.” But what determines whether disclosure is reasonably necessary? The opinion states that disclosure of clients’ confidential information is not reasonably necessary if there are “reasonable, lawful alternatives to disclosure.”

For example, an attorney may explain to an inquiring border agent that the device contains client confidential information and request that the materials not be subject to the search. An attorney may also ask to talk to a supervisor and should be prepared to produce state bar identification.  If it becomes necessary for an attorney to disclose clients’ confidential information to the border patrol, then the client must thereafter be informed about the disclosure under New York’s Rule 1.4.

Generally, attorneys should consider the risks of carrying clients’ confidential information while traveling, avoid transporting confidential information when possible, and evaluate what safeguards are reasonable to protect confidential information in the event that it is necessary to carry the information out of the country.

To read the full opinion click here.

Is Email Encryption the New Reasonable Standard? The ABA Opines

The ever-present threat to data security  in an increasingly digitized legal profession has redefined the  “reasonable efforts” standard for lawyers who handle client information. Nicole Black over at Above the Law offers a good summary of the recently released American Bar Association (ABA)  Formal Opinion 477, which addresses a need for lawyers to increase the security  of electronic communication by using encryption in certain situations to maintain competence and client confidentiality  She also explores New York State Bar Association (NYSBA) updated  Social Media Ethics Guidelines, which acknowledge and address newer state opinions in the realm of social media.

Click on the link below to access Nicole Black’s article from Above the Law and learn more about the potential impact of ABA Formal Opinion 477 and NYSBA’s Social  Media Ethics Guidelines on the legal community.

New Guidelines: ABA On Email And NYSBA On Social Media