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, DECEMBER 12, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: 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. 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 .
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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 onal 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 ord Pub ublicati lication ons 5
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
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. The C. e Cl Clueless elessness ness of Lawy wyer ers ►►► 7
D. D. The he AB ABA: A: Techn hnol ology 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 onten 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
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 oroug ughn hness ess, and preparation reasonably necessary for the representation.” Comm omment: ent: Mai aintai ntaini ning g Com ompeten petence ce “[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of 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
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 org/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 onfiden dential tiality ity of Infor ormatio 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 orma matio tion relati lating the representation of a client.” ►►►► 10
Rul ule 1. 1.6 ( 6 (cont.) nt.) Comm omment: ent: Actin cting g Com ompeten petentl tly y to Preser eserve e Confi onfidentia 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 otherwise 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
Rul ule 1. 1.6 ( 6 (cont.) nt.) Comm omment: ent: Actin cting g Com ompeten petentl tly y to Preser eserve e Confi onfidentia entiali lity ty (cont.) ont.) “[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 other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.” 12
The Punt: ABA Formal Opinion 11-459 August 4, 2011 13
“ 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 or another third party.” 14
The Technology Culture: Incursions and Temptations in Trials, Juries, and Practice 15
• The Wired Client • The Wired Juror • The Wired Judge • The Wired Lawyer 16
“Don’t Get Cocky, Kid…” Old Technology That Can Still Bite 17
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