Unit 2: Practical and Ethical Considerations of a Paperless Law Office.

Topics for Lecture Assignment this week Attorney-Client Privilege and Confidentiality

Reminders Read weekly announcements Office hours Written assignment due Tuesday One week to make up missed seminar Quiz due Tuesday (can take multiple times) Discussion board has TWO topics tabs

Written Assignment Written Assignment – Ethical Considerations for a law firm website Remember the formatting requirements point font Double-spaced, one-inch margins Header on every page Reference page Use the Model Rules provided in the assignment – cite the rule Provide an answer for each question

Introduction Today there are volumes of information at your fingertips 24/7 The Internet is used by legal professionals to communicate, market the business, engage in commerce, and research issues. Technology involving the Internet and ethical issues that can arise with use of electronic forms of communication are ever evolving

Technology and Confidentiality Legal assistants and nonlegal staff have access to confidential data and need to understand the nature of confidentiality so that client confidences are not disclosed Attorneys have a duty to keep client confidences, and those doing work for the attorney are similarly bound

Key Concepts for Confidentiality Duty of Confidentiality (and its exceptions) The Attorney-Client Privilege The Work Product Rule Inadvertent Disclosure

The Model Rules ABA Model Rule confidentiality Covers all client information, regardless of the source Allows disclosure to prevent client crimes only if the crime is likely to result in imminent death or substantial bodily harm

How Do the Ethics Rules Apply Confidentiality to Legal Assistants? Professional Responsibility Rules apply the duty of confidentiality to the lawyer’s employees and associates (including paralegals and computer consultants) NALA guidelines requires legal assistants to preserve client confidences and secrets before, during, and after the course of the professional relationship

The Attorney-Client Privilege Is related to the ethics duty of confidentiality Is found in witness competency statutes Is a rule of evidence (confidentiality is an ethical rule) Protects against compelled disclosure of confidential communications

Technology and Client Confidentiality Fax Machines Mobile or Cellular Phones According to the ABA and many jurisdictions, communicating in these ways does not violate the duty of confidentiality because there is a reasonable expectation of privacy with this technology, and because federal law prohibits wiretapping.

Protecting Against Breaches of Confidentiality Use encrypted Get client permission to communicate by Change computer passwords frequently Be careful on the phone Be careful in common office space Protect files and other client documents Remember the WWII phrase, “loose lips sink ships”

Protecting Against Inadvertent Disclosure  Mark protected or privileged materials in a permanent way  When in doubt about whether certain discovery materials should be sent to the other side, confirm with your lawyer  If you think you may have inadvertently sent protected materials, or have received privileged materials, tell someone quickly

Summarizing the Confidentiality Family Tree 1.The Duty of Confidentiality (ethics rules: MR 1.6 or DR 4-101)  prohibits the voluntary disclosure of client information 2.The Attorney-Client Privilege (witness competency statutes)  prevents compelled disclosure of confidential communications 3.The Work Product Rule (civ. pro. rule 26(b)(3))  presides over the discoverability of lawyer and employee-created evidence, prepared in connection to litigation 4.The Inadvertent Disclosure Doctrine (evidence rule 501(b))  provides the opportunity after fouling up

Network Computers A single computer faces security issues only for that computer When a computer is on a network, a breach of security on one computer can affect other computers on the network Limiting access to the network can help to ensure that the system and files stored on it are not corrupted

Security Protocols “Security Protocols” refers to securing communications between points within computer network and across Internet. There are software programs that can limit ability to access file server, workstations, printers, etc. on the network.

Network Rights and Privileges How can right to access server and other devices be limited to maximize security? 1: Who has access can be indicated. 2: It can be designated what type of info. can be stored on server. 3: How info. is disseminated can also be restricted.

Hacking Unauthorized access to computer networks in order to obtain info. stored on network or undermine how network operates (viruses) This can happen when someone on network surfs the web Liability can result when unauthorized material’s stored on network

Firewalls Firewalls serve to limit access to computer or system by those outside computer or system with unauthorized access Sometimes firewalls can prevent you from accessing some info. you need or working from offsite location

Backing Up Data Back up work while you are working and when you are done. USB sticks are great for storing data, but many computers also have internal recovery systems. Online data storage (example, Google docs)

Marketing Most law firms have a web site to market the firm electronically rather than in printed form. Usually the site will describe the firm, the type of work it concentrates in, and articles that it has published. Firms need to ensure that their web sites comply with state bar ethics codes.

Ethical Concerns – Marketing Does marketing online constitute advertising and solicitation? State bar regulations on attorney advertising must be carefully reviewed to ensure that all materials posted on the Internet or sent out to groups complies with certain rules Usually these websites are viewed as advertisements instead of solicitations Disclaimers – no attorney client relationship

Commerce and Research Legal material can be purchased online. The Internet and other electronic data bases are also used to conduct legal research to determine the strength of a case and that of an opponent.

Communication Through and other electronic communication, clients are kept informed of their cases and have questions answered. There is an ethical duty to ensure that electronic communication is secure and protected if it contains confidential information.

What is Electronic Communication? There are several forms of electronic communication. They are much faster forms of communication than mail, but there are problems that can arise with the use of various forms of electronic communication.

Phones and Voice Mail Conference calls and voice mail are effective ways to communicate. - consider what information you can and should leave on a voice mail, and who is on the conference call. You should also ask permission before putting someone on speaker phone, and know if someone else is doing so in order to avoid inadvertent disclosure of confidential information.

Faxes Most facsimile (fax) coversheets contain a “confidentiality” notice indicating that if the fax was received in error he or she should return it to the sender. This is used to maintain the attorney/client privilege and confidentiality. Double check fax numbers before sending. Request confirmation of receipt.

Avoid the “reply to all” unless you are sure everyone should be receiving the response. Be specific in the subject line so that what the is about will be clear. Confidentiality and security are huge issues in the legal arena with regard to . Type ahead feature should be disabled

Ethical Concerns -- is used between legal staff and clients, and can be used to send documents for a client to review before sending out. Because these documents are sent over networks over an essentially open environment, privacy is a concern. The communications can be intercepted and altered, so those s need to be secure when they are sent.

Ethical Concerns -- s In order to avoid inadvertent waiver of the attorney client privilege, encrypting the communication that is sensitive is a good idea. Include in the a notice that the communication is intended only for the recipient (just like is used with faxes) If the law firm deals with cyber law, it can also be held to a higher standard. Employers monitor s and usually restrict them for professional use only!

Metadata Metadata tracks information about documents that are attached to an electronic file. System metadata refers to tracking the file – the file name, size, and where it can be found. Content metadata refers to who created the document, changes, etc.

So … What Can You Do? Encryption – locking information to protect it from being discovered by others would definitely serve to preserve the attorney/client privilege. Encryption software allows scrambling of information that can only be understood with those who have the encryption code. Those who do not have the password or encryption key will only see scrambled messages and files.

Encrypting There are different encryption programs, such as Mail it Safe, that authenticate both parties before the contents of the message are understandable. Because of the confidential matters that are discussed between a lawyer and his client via , this is an invaluable tool to ensure protection.

Questions?