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Ethics and Technology

Michael Downey

Litigation Partner, Armstrong Teasdale LLP Tried lawyer discipline cases in Missouri and Illinois

Argued for lawyers before Missouri Supreme Court and Illinois ARDC Review Panel

Expert witness on legal ethics in Missouri, Kansas, DC

Teach legal ethics at Washington University and St. Louis University

Chair-Elect, ABA Law Practice Management Section

Former chair, Ethics & Technology Committee in the ABA Center for Professional Responsibility

Technology Task Force, ABA Ethics 20/20 Commission

About Myself

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A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Comment ...

Maintaining Competence

[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.

ABA Model Rule 1.1 Competence (8/2012)

ABA Model Rule 1.6 Confidentiality of Information (8/2012)

c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

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Diffusion of Innovation

Intentional Disclosure

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Websites = Advertisement

Accurate – Rule 4-7.1

Advertising – Rule 4-7.2 • Claims

• Disclaimers

"Specialist" or "Expert" – Rule 4-7.4

Firm names/URLs – Rule 4-7.5

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Web 1.0VisitorsHome PagesContentOne-wayRead

Web 2.0CommunityApplicationsConversationTwo-wayRead & Write

Blogs

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LinkedIn

Facebook

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Why Web 2.0?

Promote services Build community – and buzz Engage – and form relationships with – clients

and potential clients• Great way to track connections

Concerns Confidentiality Inadvertent clientsAdvertising regulations

• Accurate• Disclaimers• "Specialist"

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What Heightens Scrutiny

Claims about skill Claims of specialization Discussing past results Client (or other) testimonials Legal or accounting advice Pricing information

Client-related information Lack of disclaimers

Accurate Content?

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"Client" Recommendations

Whom Do You Know?

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Professional Services?

JD Supra

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GoogleDocs

Third Party Content

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Above the Law

Imposter Sites

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"MySpace"

Or Outer Space?

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The Robing Room

You Wrote What?

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Borrowing Another Firm's Brand

Protecting Data

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History of Data Migration

ThreatsElectronic Physical "Social engineering"

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PasswordsWhen are passwords requiredWhen must passwords be changed

• How complex must passwords be• Can they be reused• Where are reminders kept

Insecure Workstations What happens to computers when people go

home at night• Physical security (will they be stolen)• Do they remain on• Does the network remain open

How easy is it to gain access during the day• Receptionist• Vacant offices

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Relation with Data Storage/ISPDo your third-party providers have

written confidentiality obligationsWhen and how can your firm receive

• Information from system• Audit of sharing or disclosures

Access Problems Forwarding of email to personal account VOIP Telephone Use of public computers Use of unprotected WiFi systems

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Risk of Mobile DevicesWho is using a portable device and for what

• Do you need to worry about overtimeWhat protections existWhat backup systems exist

Lost or Stolen Mobile Devices

What backup capacity is available Are devices protected – password (or more)

• Screensaver protections• Encryption

Can the firm remotely lock/wipe devices

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NYT Learns of Goldman Trade's Legal Defense from Discarded Laptop The New York Times has learned about the legal defenses for a Goldman

Sachs trader from a discarded laptop discovered in a garbage area of a New York apartment building.

An artist and filmmaker gave legal materials from the laptop to the newspaper, saying a friend had discovered the computer in the garbage [in 2006]. Even after artist Nancy Cohen obtained the laptop, email messages for the defendant, Fabrice Tourre, continued streaming into the computer, the story says.

The documents include draft replies by Allen & Overy to a Securities and Exchange Commission lawsuit against Tourre, a midlevel executive at Goldman. The replies point the finger at other Goldman employees, including two lawyers, who worked on the same targeted deal as Tourre.

Cohen said she ignored the streaming messages until she heard news reports about Tourre and decided to turn over the materials to the Times.

ABA Journal Online, June 1, 2011

Unintended Disclosure

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Errant Emails

Is the email an improper solicitation Is the email spam (federal regulations) Would the email (inadvertently) disclose client

confidences Is the email going to the right people

• Reply all• AutoComplete

"Reply All"

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Possible Disclosure of Metadata How is the firm managing metadata Scrubber issues

• Default/override settings• Applicability to remote access• Availability for non-email files

Ease of .pdf creations

Ineffective Redactions

Document generated in word processing program Document redacted (usually with black

"highlighting") Document then converted (or printed or saved) as

.pdf for production

Result: redacted text likely available for "select text"tool

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Disposal of Obsolete Equipment/Data

Who is disposing of obsolete computers, flash drives, cell phones, palms, etc. What safeguards are being observed

What is happening with home computers

Data Recovery

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What Is Your Back-Up?

How readable are backup systems? Can data be accessed if computer system is

unusable?• Back-up data ≠ usable information

Undesirable Data

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Unsolicited (Non-Client) Data Website may invite communication – and thus

creation of lawyer- or accountant-client relationships• Listing of email addresses• Pop-up or click-through protections

Protocols (and education) for replying to unsolicited emails

What About Viruses

Status of firm virus protection Response to unsolicited emails

• Messages from impostors

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Spyware

What is your computer saying?

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Discovery Issues

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Metadata Did you disclose it? Can you look for it? Can you use it if you find it?

Discovering Social Media – Limitations

Is the person represented? Prosecution of John Robertelli and Gabriel Adamo (NJ)

Is subterfuge used?

Even if subterfuge is not used, contacting a non-represented person with a "friend" request may be unethical

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Safest Approaches

Use publicly available information

Use ordinary discovery to obtain what is not publicly available

Preservation of Social Media

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Thank You Michael Downey

314-342-8072 direct

Mdowney@armstrongteasdale.com