By: San Diego Family Law Appellate Attorney Dennis Temko

From: (Sept. 12, 2013) "For the Record."

 

Twitter, Instagram, Facebook, Linkedin, and Google+, this is the New Lawyer Division newsletter so I trust everyone has at least heard of a few of these social media websites.  The past few years have seen an explosion in new social media sites and technology in general.   With new innovation come new pitfalls for both the rookie or established attorney.  While technology changes rapidly, our ethical duties do not.  The following explores some of our ethical duties, problems associated with those duties and technology, and tips to mitigate those problems.

 

Advertising

 

California Rules of Professional Conduct, Rule 1-400

A communication or a solicitation (as defined herein) shall not:

(1) Contain any untrue statement; or

(2) Contain any matter, which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or

(3) Omit to state any fact necessary to make the statements not misleading to the public; or

(4) Fail to indicate it is a communication or solicitation, or

(5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.

 

          Facebooking, Linking-in? Twittering? whatever you want to call it can be construed as advertising. You want to keep your profile, timeline, and any postings up to date and add a date to all postings so those viewing them will know whether the information is current or not. Also, make sure the office address and the name of the attorney is on the profile. Add disclaimers that viewing the timeline, presentations, other content, or contacting me/you through my social media site does not establish an attorney client relationship and that the person should contact an attorney for legal needs.

 

There are some actions which presumptively violate the advertising provisions of the rules of professional conduct and you should avoid practicing them on all social media platforms.  They are: Testimonials without express language stating the testimonial does not guarantee a given result.  Guaranteeing or predicting the results of representation. Communicating to a potential client whom you know cannot exercise judgment in obtaining representation.  Sending out advertisements without the words “advertisement,” “newsletter” or words of similar import in 12 point preprint on the first page.  Stating or implying that a relationship exists between the firm and either a public entity or a private entity which does not exist.  An advertisement which contains a dramatization which does not state: “this is a dramatization” or words of similar import. “No fee without recovery” without also expressly disclosing whether or not the client will be liable for costs”

 

Competence

 

California Rule of Professional Conduct 3-110

(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.

 

The courts have mandated that your office be experienced with electronic discovery issues or retain outside counsel who is! Information is now created in a variety of formats:  word processing, spreadsheets, databases, text messages, digital images, audio, video, websites, social networking, tweets, faxes, YouTube, etc.  - now known as Electronically Stored Information (ESI). All of this ESI is stored on a multitude of devices, including desktop computers, laptops, mobile devices, flash drives, voicemail, email, printers, scanners, copiers, CDs, DVDs AND on an employee’s home computer and personal devices

 

          Your office needs to understand the client’s ESI and have preservation policies. Preservation policies involve a “legal hold.”  The purpose of a legal hold is to identify and preserve electronic evidence when litigation is “reasonably anticipated.” After a preservation obligation has arisen, a legal hold letter should be sent to your own client and opposing counsel telling them to STOP deleting discoverable data from EVERYWHERE. This includes social media!  So here is what you what to do:

 

1. Determine if a trigging event has occurred.

2. Instruct your client, in writing, to issue a “legal hold” at the outset of litigation or when “reasonably anticipated”

3. Ensure that you and your client document in writing your efforts in identifying and preserving ESI.

4. Ensure that in-house counsel and everyone else who might be in possession of ESI has been notified regarding a preservation hold

5. The legal hold is a continuing obligation. Any new ESI must be saved for production as well. It is not enough to send a legal hold letter and think your job is over

 

Let’s talk about meta-data.  Metadata is as the books would have it “data about data.” Here is an example, right now I am writing this article for the NLD newsletter on my PC in Microsoft Word.  The word document has data associated with it I did not create.  Currently this document contains 817 words, it was created August 8, 2013 at 10:30 A.M, it is 19.6 kilo bytes, the author is Dennis Temko, the document is two pages long, and total editing time is 77 minutes. All of this data is “system metadata.” Most all computer files have metadata associated with it.  Since we all want to be competent attorneys, it our duty to know about data and make sure we discover and preserve it.  

 

Another word on meta-data. Let’s talk about this same word document I am writing. Suppose I write what I thought was a great paragraph, but then I delete it, and after several revisions and saves later I send my word document over to NLD to be published. With some software, NLD has the ability to resurrect my deleted paragraph or any other changes I made. Opposing counsel could do the same. The only way I know to protect against this is to PDF documents or just use plain old paper. Think twice before sending sensitive documents as word files to opposing counsel, they may be able to resurrect the dead!

 

          Changing gears, client calls you and for whatever reason wants to go rifling through their significant other’s cell phone, computer, or tablet.  You watch bad reality TV (real housewives of _______) this is okay right? In more ways than one this is a terrifically terrible idea and any attorney who advises such would be incompetent. Even just LOOKING through someone’s cell phone could lead to a one year jail sentence in California.  For the nitty gritty see the following (i) the Federal Wire Tap Act, as originally passed in 1968, (ii) the Federal Electronic Communications Privacy Act (18 U.S.C. §§ 2510-2520), which is a 1986 amendment to the Federal Wire Tap Act, (iii) the Federal Stored Communications Act (18 U.S.C. §§ 2701-2720), (iv) section 631 of the California Penal Code, which is sometimes referred to as the California Wiretap Act, (v) section 632 of the California Penal Code, which is sometimes referred to as the California Eavesdropping and Confidential Communications statute, and (vi) section 502 of the California Penal Code, which makes a broad range of computer related activities illegal.

 

Confidentiality

 

Business and Professions Code section 6068, subdivision (e)(1)

It is a duty of a member “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” A member’s duty to preserve the confidentiality of client information involves public policies of paramount importance

 

California Rules of Professional Conduct, Rule 3-100 comment 2

“The principle of client-lawyer confidentiality applies to information relating to the representation, whatever its source, and encompasses matters communicated in confidence by the client.”

 

          Did you know that the copier or fax machine in your office is just waiting to drop the dime on you? According to 60 minutes, copiers retain images of every single document that was ever copied on them. Most attorneys lease their copiers from companies that may or may not have policies regarding this data.  Newer machines may or may not have the ability to delete this data.  In any case, talk to the vendor to ensure that any sensitive data does not end up into the hands of some nefarious second hands.

 

It goes without saying when it comes to computers, laptops, cellphones, and other technology, confidentiality is only as good as the password used to protect the data. The most common passwords are 1) Password 2) 123456 3) 12345678 4) abc123 5) qwerty 6) monkey 7) letmein 7) dragon 9) 111111 10) baseball. If this this is your password, and odds are at these are for at least some of you reading this article, change it immediately. Also, do not use free public WiFi or accept connections from devices you have never heard of.

 

Lastly, a note on cloud computing, a subject which this author admittedly is just learning about. Cloud computing promises many benefits but many risks as well, too many to list. In this author’s opinion, the best way to protect data in case of a breach is to encrypt it, encryption “garbles” data so that it is illegible without an encryption key. That way, whoever stole the data will just be left with gibberish.