Alaska Bar Association: Use of “Web Bugs” is Unethical

Alaska Bar Association recently advised that the use “web bugs” to track e-mail communications with opposing counsel violates The Alaska Code of Professional Conduct. Opinion 2016-1, describes “web bugs” as Internet surveillance tools that may inform e-mail senders of the following information:

  • whether and when the e-mail and/or attachments were opened;
  • how long recipients reviewed the e-mail and/or attachments;
  • how many times the e-mail and/or attachments were opened;
  • whether and when the e-mail and/or attachments were forwarded; and
  • the rough geographical location of the recipient.

The Opinion explains that web bugs may allow the sending lawyer to determine the undisclosed location of the opposing party or to gain insight into which sections of a settlement draft are most important to the opposing side based upon how much time is spent on various pages of a document.

Concurring with New York State Bar Association’s Opinion, the Alaska Opinion concludes that “web bugs” “impermissibly and unethically interfere with the lawyer-client relationship and the preservation of confidences and secrets,” required by Rule 1.6- Confidentiality. Thus, the Opinion advises that the use of web bugs is unethical, dishonest, and a violation of Alaska Rules of Professional Conduct Misconduct Rules 8.4(a) and 8.4 (c). Moreover, the opinion states that “even the disclosed use of a tracking device when communicating with opposing counsel” is impermissible.

To read the full opinion, click here.

Storing Client Data in the Cloud is Ethical, With Safeguards

On September 11, 2015, the Tennessee Supreme Court Board of Professional Responsibility confirmed in Formal Opinion 2015-F-159 that a lawyer may ethically allow client confidential information to be stored in “the cloud.” In doing so, the lawyer must take reasonable care to ensure that client materials remain safe and confidential.

“The cloud” is a remote location controlled by a third party that provides storage or other computing services. Rather than having information stored on a server or personal computer, access to cloud computing technology allows lawyers to transmit, process, and manage their client’s data from a remote location. One benefit of cloud computing technology is that the cloud service provider takes on the responsibility for new technology and software updates.

Because technology is constantly changing, lawyers must stay abreast of these changes and ensure that they continue to comply with the rules of professional conduct. It must be noted that this opinion does not mandate any specific practices that a lawyer must follow when using cloud computing technology. Rather, the opinion provides guidance to lawyers on how to exercise judgment when using cloud technology in order to remain compliant with the rules of professional conduct. For example, when using cloud computing technology a lawyer must abide by several Rules: Rule 1.1, which requires a lawyer to act competently; Rule 1.6, which requires a lawyer to take practical measures to protect the confidentiality and security of the client information stored in the cloud technology; and Rule 1.9, which states that a lawyer has a duty to former clients to not reveal any client information relating to the representation except as the Rules permit or require with respect to the client.

This recent opinion follows several other states that have provided commentary on cloud technology and what lawyers in those jurisdictions should consider. The opinion provides commentary on the subject by different states, including Florida, Kentucky, and Alaska.

Although cloud-based services are available for use by lawyers, reasonable care must be exercised when storing client information in the cloud to ensure that it is stored safely. If the client’s information is at risk, this cloud could rain on the lawyer’s head!

To read our other posts on cloud computing click here.

Jurors Getting “Friendly” on Facebook

Jurors Getting “Friendly” on Facebook

A recent case from the Supreme Court of Kentucky provides insight into how courts view social media and the legal process. In Sluss v. Commonwealth, two jurors stated during the voir dire process that did not know the victim or the family of the victim. One of jurors also stated that she did not use Facebook. However, it later came to light that both jurors were “friends” with the mother of the victim on Facebook. The Court found that being Facebook “friends” is not dispositive of having an actual friendship, especially in this situation where one of the jurors had close to 2,000 Facebook “friends.” However, the Court found the jurors’ misstatements about not having a Facebook account and not having knowledge about the case foreclosed the Appellant’s opportunity to conduct a proper voir dire of the jurors.

After completion of the trial, the Supreme Court of Kentucky remanded the case to determine the extent of the relationships on Facebook and the potential issues with the false answers provided during the voir dire process. The Court also directed the trial court to determine whether the Defendant received a fair trial before an impartial jury. After review, the Supreme Court instructed the trial court to either issue a new trial or the findings of fact requested.

As social media becomes more widespread, issues potentially undermining the integrity of the adjudicative process become more prevalent. Lawyers have an increased duty to their clients to fully research and explore possible implications that arise via social media.

“Waste Not, Want Not?”

It costs a heap of money to find all those cases and articles for that one brilliant lawyer’s argument! For many firms and legal services organizations, using Westlaw™ and LexisNexis® is too expensive to comprehend. This has led some lawyers to take advantage of opportunities to receive free access to these research tools, such as having law students using their school-issued passwords. Similarly, a former government employee may want to continue using his unlimited access to these research sites, even after he leaves government employ.

In a reciprocal discipline proceeding, the Oregon Supreme Court recently publicly reprimanded a lawyer, Everett Walton, because after leaving his job as a Hawaii special prosecutor, he continued to use the unlimited Westlaw access that he obtained while serving as a prosecutor for fourteen months. Upon switching employment, Walton decided to not waste the deeply discounted unlimited Westlaw access, especially because Thomson Reuters refused to allow him to cancel the contract. Instead, Walton used it to benefit the indigent clients of the legal aid organization for which he later began working, a seemingly noble cause. Despite the arguably laudable reason he used the access, the Oregon court found that Walton’s decision to avoid wasting his Westlaw access was conduct “involving dishonesty” in violation of Rule 8.4 of both the Hawai’i and Oregon Rules of Professional Conduct.

Check out the article in a recent edition of the ABA Journal Weekly as well as a link to the Oregon Supreme Court’s opinion here: Continuing Unlimited Access.

E-Filing Is Not Synonymous with E-mailing!!!

E-Filing Is Not Synonymous with E-mailing!!!

E-filing is set to become mandatory in all Florida courts by October 1, 2013. While it is not yet required, it is still encouraged to be done in counties that have adopted the software and systems necessary for clerks to accept e-filed documents. A common mistake many clerks are discovering is that attorneys and their staffs are e-mailing documents to the clerk rather than e- filing them into the court’s online portal. Some courts including the Alachua County Clerk’s Office have begun issuing standard replies to those who mistakenly e-mail rather than e-file. Currently, such a mistake is not too troublesome. However, if deadlines are missed or the statutes of limitations run on account of such a mistake, it could present a tremendous problem and likely future malpractice claim. The best thing for an attorney to do is to be prepared for the change and educate themselves and their staffs in advance. For more information visit: http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/cb53c80c8fabd49d85256b5900678f6c/8ae6a4aa3d2a86e285257a9100429da6!OpenDocument&Highlight=0,e-filing*