LEGAL ETHICS AND THE

APPLICATION OF

TECHNOLOGY TO SPORTS

LAW PRACTICE

Presented By: Attorney James T. Gray, Associate Professor, Marian University

Sponsored By: Sports and Entertainment Law Section, State Bar of Wisconsin

Hosted By: Sports Law Alumni AssociationJuly 10, 2015

Electronic Threats To Client Confidentiality, Client Electronic File Storage Risks, and Client Electronic Solicitation Guidelines

Distinguish Between Intentional Acts and Negligent Ones

SCR 20:1:1 Competence

SCR 20:1:6 Confidentiality

SCR 20:7:3 Solicitation

BEHAVIORS OBSERVED

WIN!

BEHAVIORS OBSERVED

SUFFER!

HACKING OF LAW FIRMS

HACKING OF SPORTS TEAMS

LAW FIRMS HIRE HACKERS

Understanding Confidentiality

and Its Societal Shift

INSTRUCTING CLIENTS REGARDING

CONFIDENTIALITY E-MAILS AND SOCIAL MEDIA

Attorney Competence Ethics Issues To Consider

1) In considering competence, should attorneys view it from aclient’s perspective?

2) What do clients understand when they purchase a lawyer’s competence?

3) Is client understanding of attorney competence reasonable?

LICENSED VERSUS COMPETENT

Unfortunately, leaving lawyers to decide their own competency (especially new lawyers) is rife with a

lawyer’s lack of experience, subjective perspective, personal bias, pride, ego, desperation, poverty, and a

host of other issues.

1) Lawyersshouldhave“atleastabase‐levelcomprehensionofthetechnologyandtheimplicationsofitsuse.”

2) Lawyersshouldunderstandtheimportanceofcomputersecurity,suchastheuseoffirewalls,virusandspywareprograms,operatingsystemsupdates,strongpasswordsandmultifactorauthentication.

3) LawyersshouldalsounderstandthesecuritydangersofusingpublicWi‐Fiandfilesharingsites.

OPINION EF-15-01

1) Lawyers who outsource cloud-computing services should understand the importance of selecting a provider that uses appropriate security protocols. “While complete security is never achievable, a prudent attorney will employ reasonable precautions and thoroughly research a cloud storage vendor’s security measures and track record prior to utilizing the service.”

2) Knowing the qualifications, reputation, and longevity of the cloud-service provider is necessary, just like knowing the qualifications, reputation, and longevity of any other service provider.

ETHICS OP. EF-15-01

Lawyers should also consider including a provision in their engagement agreements or letters that, at the least, informs and

explains the use of cloud-based services to process, transmit, store and access information. Including such a provision not only gives the client an opportunity to object, but it also provides an opportunity for the lawyer and client to discuss the advantages

and the risks.

ETHICS OP. EF-15-01

E-mail, when labeled as either advertising or solicitation, and in compliance with other sections of SCR 20:7.3, is a form of targeted direct mail solicitation and thus permissible under

SCR 20:7.3(c).

Client Solicitation Guidelines

1) SCR 20:7.3 does not define “real-time electronic contact,” and no other Wisconsin authority directly addresses this point, but the clearly prohibited forms of solicitation (in-person and by phone) involve live real-time contact.

2) California State Bar Ethics Opinion 2004-166 held that lawyers’ communication with prospective fee paying clients in an internet chat room for people affected by a mass disaster violated solicitation rules.

Client Solicitation Guidelines Cont'd.

1) Lawyers using Facebook or other forms of social media as a means to generate clients must be mindful of the prohibition on solicitation by real-time electronic contact. For example, a lawyer’s attempt to contact someone through their Facebook page after they have posted information about recent legal troubles in the hopes of gaining a new client is clearly governed by SCR 20:7.3.

2) At the very least, such contacts must be clearly labeled “Advertising Materials.”

3) These same considerations apply whenever a lawyer uses any other types of electronic communication, such as Twitter, text messaging, commenting on blog posts, to contact potential clients in the hopes of soliciting their business.

Solicitation Guidelines Cont'd

M i l w a u k e e ’s Ve r y O w n : George F. Kennan

Creator of Containment Theory

1) Continuing Legal Education – NSLI and Sport and Entertainment Law Section Collaboration.

2) Reasonableness Standard – Negligent Acts.

3) Educate Clients.

4) Informed Client Consent.

5) Read User Agreements.

CONCLUSIONS

1) Encryption.

2) Self‐DestructElectronicMails.

3) 30to60SecondDelayofSentEmail.

4) Creation,ApplicationandReviewofElectronicBasedLegalPracticePolicies.

5) CybersecurityInsurance– HomelandSecurityRoundtableSeminars.

CONCLUSION CONT'D

1) For ethics questions, email State Bar Ethics Counsel Tim Pierce, Assistant Ethics Counsel, or email Aviva Kaiser, Assistant Ethics Counsel, or call the State Bar of Wisconsin Ethics Hotline at (608) 229-2017 or (800) 254-9154.

2) For cloud-computing or other technology or practice management questions, email Tison Rhine, Law Office Management Program Assistance Advisor, or call (608) 250-6012 or (800) 444-9404, ext. 6012.

For Further Assistance

William Shakespeare

“There is some soul of goodness in things evil,

Would men observingly distil it out.For our bad neighbor makes us

early stirrers,Which is both healthful and good

husbandry:Besides, they are our outward

consciences,And preachers to us all,

admonishingThat we should dress us fairly for

our end.”

William Shakespeare, (1564-1616) The Life of King Henry the Fifth, Act 4, Scene 1

QUESTIONS

1) Is Your Law Firm a Target for Hackers: (Spoiler, Yes.) by Keith Lee, Above the Law, March 5, 2015, retrieved, June 16, 2015, http://abovethelaw.com/2015/03/is-your-law-firm-a-target-for-hackers-spoiler-yes/

2) Wall St. and Law Firms Plan Cooperative Body to Bolster Online Security by Matthew Goldstein, New York Times, February 23, 2015, http://www.nytimes.com/2015/02/24/business/dealbook/wall-st-and-law-firms-weigh-cooperation-on-cybersecurity.html?_r

3) Cardinals Face F.B.I. Inquiry in Hacking of Astros’ Database by Michael S. Schmidt, New York Times, June 16, 2015, http://www.nytimes.com/2015/06/17/sports/baseball/st-louis-cardinals-hack-astros-fbi.html

4) Authorities Investigating Whether Cardinals’ Hacked Astros Network by Barry Svrluga and Ellen Nakashima, The Washington Post, June 16, 2015 http://www.washingtonpost.com/sports/nationals/authorities-investigating-whether-cardinals-hacked-astros-network/2015/06/16/a4448e30-145d-11e5-89f3-61410da94eb1_story.html

5) The Other Hacking Scandal: Suppressed Report Reveals That Law Firms, Telecoms Giants and Insurance Companies Routinely Hire Criminals to Steal Rivals' Information by Tom Harper, The Independent, June 22, 2013, http://www.independent.co.uk/news/uk/crime/the-other-hacking-scandal-suppressed-report-reveals-that-law-firms-telecoms-giants-and-insurance-companies-routinely-hire-criminals-to-steal-rivals-information-8669148.htmlSource: “Social Network Sites: Public, Private, or What?” by Danah Boyd. Knowledge Tree 13, May, 2007. http://kt.flexiblelearning.net.au/tkt2007/?page_id=28

6) U.S. Smartphone Use in 2015 by Aaron Smith, Pew Research Center: Internet, Science and Tech, April 1, 2015, Retrieved June 16, 2015 http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015

SOURCES

1) Pause Before Posting – Using Social Media Responsibly by Matthew Robb, Social Work Today, January/February, 2011, http://www.socialworktoday.com/archive/020911p8.shtml

2) Digital Communication and Social Media: Good Use Guidelines for Clergy and Congregations, July 30, 2012, http://www.diomass.org/webfm_send/1976

3) University of Missouri at Kansas City Law School, Chapter VII Doing It and Doing It Right: Competence, Communication and Client Funds, http://www1.law.umkc.edu/suni/Professional_Responsibility/Materials/Older_Materials/ChapVII_SecI-II.htm

4) Licensed vs. Competent by Gyi Tsakalakis. The Lawyerist, December 12, 2011, https://lawyerist.com/35113/licensed-vs-competent/

5) Wisconsin Formal Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing March 23, 2015.

6) Wisconsin Formal Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing March 23, 2015.

7) Wisconsin Formal Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing March 23, 2015.

8) Richard J. Cayo, Dean R. Dietrich, Timothy J. Pierce, The Ethics of E-mail and Social Media, 2014 Annual Ethics Seminar, Waukesha County Bar Association, November 13, 2014, Brookfield, Wisconsin

SOURCES CONT'D

1) Richard J. Cayo, Dean R. Dietrich, Timothy J. Pierce, The Ethics of E-mail and Social Media, 2014 Annual Ethics Seminar, Waukesha County Bar Association, November 13, 2014, Brookfield, Wisconsin

2) Richard J. Cayo, Dean R. Dietrich, Timothy J. Pierce, The Ethics of E-mail and Social Media, 2014 Annual Ethics Seminar, Waukesha County Bar Association, November 13, 2014, Brookfield, Wisconsin

SOURCES CONT'D