The
Worlds of Ethics
and Technology Collide
The ethics rules for
electronic communication.
By
Kathryn A.
Thompson
September/October 2005 Issue
The collision of
ethics rules and ever-evolving technology tools has created new dilemmas
all paralegals must be aware of and be ready to face. Knowing where to
draw the line when lobbing confidential client information back and
forth across the Internet or trolling through chat rooms and online
discussion lists can be a daunting task because these same tools also
provide slick new — and frequently uncharted — ways to violate ethics
rules. And for better or for worse, it’s the lawyer’s rules of
professional conduct that apply, since those rules are mandatory in
every state and universally hold lawyers accountable for the conduct of
their employees.
The best course of
action for navigating any ethics dilemma is follow the rules. That means
knowing your own state’s ethics rules, the official comments and any
available annotations. Since few ethics rules directly address
technology issues, reviewing state and American Bar Association ethics
opinions also is essential. Although the ABA Model Rules of Professional
Conduct are addressed here, it’s critical to know precisely how your
state’s rules and opinions differ from ABA authority, which is highly
persuasive in the eyes of state courts and ethics regulators.
Confidentiality and the Attorney-Client
Privilege
As the cornerstone of the lawyer-client relationship and our entire
system of American jurisprudence as well, preserving client
confidentiality allows clients to freely confide in their lawyers
without fear of reprisal. Not surprisingly, the use of online and
electronic communication technologies makes adhering to the
confidentiality rules, mostly encapsulated in Model Rule 1.6,
considerably more challenging than in the past. Rule 1.6 requires that
an attorney protect the confidences of a client and make sure those
under his or her supervision do so as well.
Paralegals should be
aware that in addition to the ethical duty of confidentiality, lawyers
also have a corresponding duty under the rules of evidence to protect
communications covered by the attorney-client privilege, which applies
only to information given in confidence by the client for the purpose of
securing legal advice. In contrast, the ethical duty of confidentiality
is broader and covers all information relating to the client’s
representation.
In judicial and
related proceedings, a lawyer is required to refuse to answer questions
or produce documents that are protected by the attorney-client
privilege, unless otherwise directed by the client. However, a client
might inadvertently lose the privilege if protected information is
mistakenly disclosed and reasonable precautions were not taken to guard
against the disclosure. Thus, lawyers and their assistants must treat
confidential documents with reasonable care so as not to forfeit the
privilege or violate the ethical duty of confidentiality, such as by
sending a fax or e-mail to the wrong party.
E-mail
Although e-mail might not seem like one of those “killer apps” that
demands special scrutiny, it should be used judiciously. Almost all
states have adopted the ABA’s view that sending confidential client
information via unencrypted e-mail is not a per se violation of an
attorney’s ethical duty to protect client confidences under Model Rule
1.6. (see ABA Formal Op. 99-413 (1999)). However, the ABA guidelines
include the important caveat that in highly sensitive matters, lawyers
must use enhanced security measures and should consult with the client
to determine the best mode of communication.
The ABA committee’s
standard for determining what type of media can be used to transmit
confidential client information was ultimately incorporated into Model
Rule 1.6 when it was revised in 2002. Under the new guidelines, a lawyer
must take “reasonable precautions” to prevent information from falling
into the hands of unintended recipients. Special security measures are
not required as long as the method of communication affords a
“reasonable expectation of privacy.” The requirements apply to all modes
of communication, not just e-mail, and seem to imply a duty on the part
of a lawyer and his or her employees to keep informed of evolving
technology to assess any changes in the likelihood of interception or in
the availability of new technologies.
To determine the
reasonableness of the lawyer’s expectation of privacy, Rule 1.6 requires
that lawyers consider the sensitivity of the information and the extent
to which the privacy of the communication is protected by law or by a
confidentiality agreement. However, clients can require the lawyer to
implement special security measures or “give consent to the use of means
of communication that would otherwise be prohibited by this Rule.”
Consequently,
determining when and how to use e-mail for confidential or privileged
communications might not be the no-brainer that it seems. Many states,
including those that have adopted the ABA’s opinion on the issue, have
called for more restrictive measures before sending electronic messages
containing confidential client information. Some states require that
lawyers discuss encryption options beforehand, include a disclaimer
cautioning that the information is confidential or obtain express client
consent prior to use. For example, Massachusetts prohibits sending
e-mails to a client’s work address without the express consent of the
client, since employers have the legal right to review employee
messages.
There are similar
uncertainties about the requisite safeguards for transmitting e-mail
attachments and other electronic documents. Iowa has expressly concluded
that the use of password protection in documents attached to e-mail
messages sent over the Internet is sufficient for transmitting sensitive
material.
Paralegals should
take measures to protect the integrity of documents sent over the
Internet by using software programs that allow files to be locked down
using passwords or other security features. That includes using software
to remove metadata — invisible but retrievable information about the
file automatically stored in a file when it’s saved. Metadata might
include information about the authors of a document, dates and times of
revisions, as well as the actual edits or comments made at various
stages of editing, which could potentially put confidential, privileged
or damaging case or client information in the wrong hands.
New York has found it
to be unethical to examine hidden information in electronic documents
received from an adversary. A New York opinion specifically prohibits a
lawyer from using computer technology to examine metadata and trace the
origins of e-mail and other electronic documents the lawyer receives
from other parties or their counsel since it improperly affords access
to confidential client communications.
Cell Phones and Wireless Devices
Unlike e-mail messages and ordinary telephone signals, which are usually
transmitted via land-based or dedicated phone or cable lines, cordless
and cellular phones rely on radio waves to broadcast signals. Because
the risk of interception is arguably greater than with e-mail, authority
is divided over whether the use of such devices affords a “reasonable
expectation of privacy” for purposes of transmitting confidential client
communications — even though interception of any type of telephone
transmission is unlawful.
Most states
addressing the use of mobile telephones fail to differentiate between
cellular and cordless phones, while some treat them synonymously with
e-mail. A significant number require that a lawyer using such devices
obtain client consent beforehand, or advise clients or other parties to
a conversation about the risks associated with inadvertent interception.
Although there is sparse authority on the topic, in all likelihood, the
use of personal digital assistants or other devices that connect to the
Internet wirelessly through satellite signals would require extra
precautions as well.
Since the best
strategy is to discuss the risks associated with e-mail and other
electronic modes of communication with a client at the onset of
representing that client, a paralegal should first determine whether a
client has memorialized his or her wishes in a retainer or other
agreement. In any event, a paralegal should secure client consent for
highly sensitive communications or those that involve a heightened risk
of interception, including cell and cordless phones and all other types
of mobile or computerized devices that access the Internet wirelessly.
Sending Documents Inadvertently
In addition to the dangers posed by the interception of e-mail and
certain types of mobile devices, technology has made it easier for legal
professionals to make other kinds of inadvertent disclosures of client
confidences. As previously noted, the misdirection of faxes or e-mails
is a common cause of disclosure of confidential or privileged
information, and the inadvertent disclosure of privileged information
can waive the privilege.
Paralegals should
take precautions to prevent the inadvertent transmission of confidential
information to third parties, especially opposing counsel, by making
sure the contact information for high-risk recipients isn’t stored in an
easily accessible manner. Disclaimers might be used to minimize the
risk, though it’s the conduct of the parties that is critical. Due to
the lack of uniformity among the states regarding procedures to follow
when receiving inadvertently sent documents, paralegals immediately
should notify a supervising attorney under such circumstances.
Access to Electronic Files by Outside Service
Providers
Access to electronically stored client files by third parties is another
issue that has caught the eye of ethics regulators. It’s not uncommon
for law firms to use the services of outside contractors or online
service providers to assist with office management.
In 1995, the ABA’s
ethics committee announced that a law firm could allow a computer
maintenance company to remotely access its computerized client files
providing “the company has in place or plans to establish reasonable
procedures to protect the confidentiality of the client information”
(see ABA Formal Op. 95-398 (1995)). The committee recommended the law
firm secure a written statement of the service provider’s assurance of
confidentiality and mandated that the law firm notify the client if a
significant breach were to occur.
State opinions are
generally in concert with the ABA opinion, although some impose stricter
standards for ensuring confidentiality, such as segregating highly
sensitive records. A few opinions specifically approve of the use of
online data backup services, in which client data is transferred
electronically to the service provider’s servers, transferred to a disk
and then stored offsite, as long as the lawyer makes sure data
transmission is secure and sensitive records are adequately safeguarded.
Paralegals should not
unilaterally permit access to client records by outside contractors. A
supervising lawyer should first investigate the financial viability of
the company, confirm that the contractor has instituted adequate
safeguards to preserve confidential information, communicate the
confidentiality rules to the contractor, and insist the contractor
provide a written assurance of his or her confidentiality obligations.
Many of the offerings of online service providers, such as virtual deal
rooms and online collaboration tools, have yet to be evaluated by ethics
regulators.
Communications on Law Firm Web Sites
In addition to confidentiality concerns, another area of ethics
profoundly impacted by advances in communications technology is
advertising and solicitation. While the Internet has afforded attorneys
unprecedented opportunities to advertise for new clients, it has exposed
them to formidable ethical risks as well.
For purposes of the
ethics rules, virtually all states treat communications about a lawyer’s
services on law firm Web sites like any other form of lawyer
advertising, and therefore subject to Model Rules 7.1 through 7.5 (i.e.,
“advertising” rules). However, few states follow the ABA’s advertising
rules verbatim, and many have issued opinions that directly address
lawyer Web sites, chat rooms and other forms of online communication,
creating a mishmash of authority that varies from state to state. To
further complicate matters, the ABA has revised its advertising rules
numerous times to comport with a stream of U.S. Supreme Court decisions
restricting certain types of prohibitions on commercial free speech.
All states adhere to
the general proscription of Rule 7.1 prohibiting “false and misleading”
communications about a lawyer or a lawyer’s services. Rule 7.1 applies
to communications appearing in any context, whether in print or
electronic media. Most violations of Rule 7.1 occur due to omissions as
opposed to outright falsehoods, since the rule also prohibits lawyers
from making statements that are true but misleading. For example,
incomplete information about a lawyer’s fees has been found to be
misleading where a lawyer advertised “no recovery, no fee” without
disclosing a client’s responsibility for costs.
Lawyers also must use
care in describing their expertise. Describing a lawyer’s qualifications
in subjective terms, such as calling oneself an “expert,” is widely
prohibited because it’s not subject to verification and therefore
misleading. Similarly, comparisons with other lawyers often are
prohibited if they can’t be substantiated. For example, an Ohio court
found the claim “We Do It Well” to be unverifiable and misleading while
an Indiana court objected to a law firm’s claim that it had “quickly
become recognized as a premier personal injury law firm.” Special care
also must be used in describing lawyer practice areas or areas of
specialization since Rule 7.4 and its state counterparts prescribe very
specific requirements for listing areas of concentration or specialty.
The view of the ABA
and most state ethics regulators is that a nonlawyer, including a
paralegal, can be listed on law firm letterhead or other firm
communications as long as the information is not false or misleading
under Rule 7.1 and his or her status as a nonlawyer is clear.
Presumably, the same rules apply to Web site communications as apply to
written letterhead and other types of communications about a lawyer’s
services.
Some states also
expressly allow the listing of a nonlawyer or paralegal’s title or
special qualifications — providing the listing is not otherwise false or
misleading. However, a determination of whether a particular title is
false and misleading might vary from state to state (see “Ethics
Roundtable” July/August 2005 LAT). For example, in Iowa, a legal
assistant who meets the certification requirements of the National
Association of Legal Assistants can use the title “Certified Legal
Assistant” next to his or her name on firm correspondence, but can’t use
the designation “CLA.” The abbreviation is considered potentially
misleading. On the other hand, a lawyer in Mississippi can permit a
paralegal with a similar certification to use the initials “CLA” or
“CLAS” as long as the designation is accompanied by an indication that
the paralegal is not
a lawyer.
In addition to the
general advertising rules, many state ethics opinions require that
lawyers adhere to certain housekeeping requirements when maintaining law
firm Web sites. A significant number of states have special labeling,
archiving, recordkeeping and filing requirements, in addition to
requiring the use of various disclosures and disclaimers.
No state expressly
prohibits lawyers from actually practicing over the Internet as long as
they abide by the rules of professional conduct. However, a handful of
opinions caution that if a client’s matter is too complex to be handled
over the Internet, a lawyer’s duty to provide competent representation
demands that he or she meet in person with the client. If the client
refuses, the attorney must decline the representation or withdraw, if
the representation has already begun.
Chat Rooms
Model Rule 7.3, which addresses direct contacts with prospective
clients, was amended in 2002 to expressly identify “real-time electronic
contact” as a form of prohibited solicitation. The rule now prohibits
the use of “in-person, live telephone or real-time electronic contact”
by a lawyer to solicit paid professional employment unless the targeted
person is a lawyer, personal friend, family member or past client. The
rule also prohibits the solicitation of anyone who has informed the
lawyer that he or she doesn’t want to be solicited, and any contact that
involves coercion, duress or harassment.
Written and recorded
communications are permissible forms of solicitation under Rule 7.3
because they are considered less intrusive, immediate and likely to
coerce a potential client into accepting legal representation than more
direct forms of contact. Thus, contacting prospective clients by e-mail
is expressly permitted as a form of written solicitation under the new
rule since it doesn’t constitute direct contact as long as the words
“Advertising Material” appear at the beginning and end of the electronic
communication. Once again, however, some states have more restrictive
labeling requirements or even consider such e-mail contacts a prohibited
form of solicitation.
Even jurisdictions
that have not adopted the new rule frequently prohibit the use of chat
rooms for the purpose of soliciting clients, reasoning that such
contacts are more analogous to in-person or live telephone solicitation
than to written communications.
Chat rooms, online
bulletin boards and discussion lists generally are treated
interchangeably because they involve some form of interactive, real-time
communication between computer users. However, some states permit the
use of chat rooms to acquire clients under certain circumstances. For
example, Illinois doesn’t consider the mere posting of comments on a
bulletin board or in a chat group to be a form of solicitation; a lawyer
is subject to the solicitation rules only to the extent that he or she
initiates contact with someone with the intention of soliciting
employment.
Paralegals should be
able to distinguish between the permitted and prohibited forms of
solicitation in their jurisdiction, and keep in mind that lawyers may
not use others to solicit for them.
Inadvertent Creation of Attorney-Client
Relationship
The Internet provides many opportunities for casual discourse with
would-be clients and ample opportunities for misconstruing the
intentions of lawyers and other legal professionals. Thus, another
frequent cause of concern with respect to chat rooms and other forms of
electronic communication is the potential to inadvertently create a
lawyer-client relationship. If a lawyer-client relationship is
unintentionally formed through an exchange in a chat room or bulletin
board, or in a response to an unsolicited e-mail, the lawyer owes that
client the whole gamut of duties ordinarily owed to clients, regardless
of the lawyer’s intentions and whether or not the lawyer knows the
identity of the recipient or receives a fee. Paralegals should keep in
mind that it’s the reasonable expectations of the client, not the
lawyer, who ultimately determines whether a lawyer-client relationship
is formed.
To guard against the
inadvertent formation of a lawyer-client relationship while
communicating electronically, lawyers and paralegals should refrain from
eliciting confidential information from participants and avoid providing
legal recommendations tailored to a particular person’s circumstances,
which might be construed as legal advice. New Mexico requires that a
lawyer who posts an article to a discussion list include a disclaimer
explaining that the article is not legal advice. Some states require
disclosures on lawyer Web sites stating that a lawyer’s responses to
questions e-mailed from the Web site are not meant to create a
lawyer-client relationship. South Dakota requires that lawyers respond
to unsolicited inquiries from Web site visitors with a nonengagement
letter if the firm does not wish to represent the inquirer.
Paralegals who seek
or appear to seek clients on behalf of a lawyer risk violating
unauthorized practice of law statutes, which universally prohibit
nonlawyers from undertaking legal representation. In such circumstances,
the lawyer could be held ethically accountable under Model Rule 5.5 for
assisting the paralegal in UPL. A paralegal’s actions also might
contribute to a finding that a lawyer-client relationship does in fact
exist, whether or not it was intended.
Independent
paralegals doing business over the Internet should be clear about what
types of activities are considered to be UPL in their states. The
National Federation of Paralegal Associations has issued an opinion
concerning UPL as it relates to paralegals in cyberspace, and most
states have UPL committees that should be consulted before work is
undertaken.
Ready to Roll
Knowing the confidentiality, advertising and solicitation rules, seeking
out ABA and state ethics opinions and keeping abreast of technology
trends and techniques will help paralegals avoid the ethical risks
associated with communicating electronically. Regardless of the method
of transmission, electronic devices must afford a reasonable expectation
of privacy and be used in a way that adequately safeguards confidential
client communications.
Paralegals should
refrain from communicating about highly sensitive topics, or using
potentially unsafe devices or methods, including cell phones or wireless
networks, without express attorney authorization. To avoid running afoul
of the advertising and solicitation rules, firm personnel must make sure
communications describing lawyers or their services are not false or
misleading. When using real-time methods of communications, care must be
taken to avoid improperly soliciting prospective clients or giving a
false impression that a lawyer-client relationship might be formed as a
result of communications.
With these rules in
mind, and armed with a few hands-on technology tools, paralegals will be
well equipped to handle the various ethical issues that arise when the
worlds of technology and ethics collide.
The views expressed
herein are of the author and don’t necessarily represent the opinion of
the ABA.
Ethics
Resources Online
A state-by-state list
of links to the various state ethics rules and opinions can be found on
the ABA’s Web site at
www.abanet.org/cpr/links.html. While most recent state ethics
opinions are available online at state bar Web sites, in some cases
opinions are unavailable electronically or accessible only to members.
As an alternative, both Westlaw (www.westlaw.com)
and LexisNexis (www.lexis.com)
maintain databases of at least some state ethics opinions, and as a last
resort, state bar ethics committees generally respond to inquiries for
hard copies of opinions.
The ABA Model Rules of Professional Conduct are available online at
www.abanet.org/cpr/mrpc/mrpc_toc.html. The headnotes to ABA opinions
issued subsequent to 1996 are listed at
www.abanet.org/cpr/ethicopinions.html. Copies of those and earlier
opinions are available for a nominal fee at the ABA’s online Web store,
along with bound volumes of past opinions and subscriptions to future
opinions. ABA opinions also are searchable on Westlaw and LexisNexis. |
