An Ethical Guide for Lawyers in the Realm of (New) Technology
Note from the Editors: Recently, the Campbell Law Observer hosted a write-on competition to recruit new staff writers. Each student was to discuss the role of changing technology in the legal profession. Below, you will find the article that received the second-highest score from the editorial board.
For better or for worse, technology continues to change the legal landscape on an immense scale. Technology has transformed the practice of law into something that would be unrecognizable in many ways to lawyers of yesteryear.
It is crucial that lawyers be able to adapt to these technological changes. While there are intelligent business reasons to adapt such as marketing, legal issues arising from new technology have begun to arise as well. For example, it is no longer safe for a client to assume her personal emails are off-limits at work or her Facebook posts will not arise in court. Today’s lawyers must be cognizant of such issues so they can better inform their clients of what they may be up against in legal proceedings.
This article provides lawyers with a basic overview of several issues involving technology that have arisen repeatedly over the last several years. It is by no means a comprehensive list, but should prove helpful as an introduction to upholding ethical obligations of the legal profession in the technological realm.
Electronic Communications and Confidentiality
In 2011, the American Bar Association published an ethics opinion about protecting the confidentiality of e-mail and other electronic communications between lawyer and client. The opinion states:
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 communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.
The opinion specifically discusses how the obligation arises when representing an employee who is accessing e-mail at work. Depending on their employment contracts, clients may not be afforded “a reasonable expectation of privacy” when using an employer’s computer to correspond with their attorney. Consequently, an employer may have the right to read such e-emails and use them against the client.
Courts are currently split as to whether such information qualifies under attorney-client privilege. For example, in New Jersey, a district court held that attorney-client privilege protected an employee’s e-mails with his or her attorney when using “a personal, password-protected email account” even though they were accessed on a company computer. 3 On the other hand, the Fourth Circuit recently held that a defendant who sent his wife e-mails from a public work computer did not have an expectation of privacy and had thus waived any privilege. 4
Based on these inconsistencies, the best advice a lawyer can give a client is to be vigilant about electronic communications with his attorney. If there is a chance that the client’s substantive communications will be accessible by a third-party, the best practice would be to only access the communications on a personal device. Moreover, the attorney must be sure to use the client’s personal e-mail account rather than one associated with the client’s business.
Clients are not the only ones who need to be cautious about their electronic communications. Lawyers must also ensure that the electronic communications they compose are being sent to the right person.
In 2008, an attorney in New York was confidentially negotiating a major settlement in a well-publicized case. She intended to e-mail co-counsel outlining the terms of the deal; instead she accidently e-mailed a New York Times reporter with the same last name.
Situations like these are not farfetched. Attorneys must make every effort to be diligent both in their own correspondence with clients and attorneys, and in apprising their clients of the risks they face in using electronic communication devices.
Social Media, Electronic Discovery, and the Preservation of Evidence
In 2008, Isaiah Lester’s wife was killed in a tragic truck collision in Virginia. In preparation for the wrongful death trial in 2009, Lester’s lawyer instructed him to “clean up” his Facebook page. He had several unseemly pictures on it, including one in which he is wearing an “I [heart] hot moms” T-shirt and holding a beer, which his lawyer did not want to appear in trial. Lester subsequently deactivated his Facebook account then claimed he had no Facebook page on the date the discovery request was signed, an act very similar to shredding evidence and then denying its existence at trial.
Despite the jury’s award of $10.6 million in a wrongful death suit, the judge submitted a final order cutting the jury verdict in half and penalizing Lester’s attorney $722,000 in sanctions for spoliation of evidence. The lawyer subsequently “retired” from practicing law.
The lesson in this case is clear: evidence on Facebook pages and other social media sites is fair game in litigation. Lawyers must advise their clients on how to preserve and produce relevant information. The same goes for text messages, e-mails, and blogs.
“Blawgs,” Lawyers’ Personal Social Media Sites, and Confidentiality
Attorneys should never post confidential information about cases or clients on the Internet, particularly on sites accessible to the public. Such actions are likely to constitute a breach of confidentiality and could result in losing one’s license to practice law. Although this advice may seem obvious, cases suggest it may not be so apparent.
In 2009, an Illinois assistant public defender wrote in her blog, entitled “The Bardd Before the Bar—Irreverant Adventures in Life, Law, and Indigent Defense:”
#127409 [the client’s jail identification number] This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because “he’s no snitch.” I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.
The attorney was fired from the public defender’s office and received a sixty-day suspension for her actions.
Remember that tightening one’s privacy settings does not immunize anyone from trouble. Be diligent in your postings, and do not post confidential client or case information on the web.
In order to provide clients with the best representation possible, it is crucial that lawyers remain aware of emerging issues in the law. Because new technology constantly changes, lawyers’ ethical responsibilities are in a similar state of flux.
This provides lawyers with a rare opportunity. They have the chance to embrace the new technology, build a niche, and help society work with it. Use these incredible developments to your advantage, and remember to do so honorably.