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Social Media Presentation Understanding Social Media for Your Law Clients and

Understanding Its Impact on Your Business by Alicia Porter

What is social media As defined by Wikipedia (the ultimate free source, created by legions of volunteers- creative commons based content)

Social media has been around since humans began to communicate. One of the first signs of human social media was cave wall paintings. Some of the earliest forms of social media were not digital.

Social media refers to interaction among people in which they create, share, and/or exchange information and ideas in virtual communities and networks.[1] Andreas Kaplan and Michael Haenlein define social media as "a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of user-generated content."[2] Furthermore, social media depend on mobile and web-based technologies to create highly interactive platforms through which individuals and communities share, co-create, discuss, and modify user-generated content. They introduce substantial and pervasive changes to communication between organizations, communities, and individuals.[3]

Types of social media

• Google Plus • Linked in • Twitter • Facebook • Twitter • Instagram • My Space • Kicker • Wikis • Blogs • Web pages • You tube • Texting • Pinterest • flickr • Face time • Photoshop • Instagram • The Chive- Chivers/Chivettes – Keep Calm and Chive On

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• Career Builder as a means to research prospective employees – can be a powerful tool on whether to hire an employee or not, based on pictures found on Twitter/Facebook/Linkedin (bad mouthed employee/inappropriate pictures/drunken events/racist comments)

• Cloud practice • Avvo • Profile link sites • 4 square- identifies where you are. You press a button and send a tweet/facebook post at your

exact address. • 4 chan • tindr • grindr • snapchat

From a business perspective, as well as from a client evidentiary perspective- Where do you have e- information that can be mined?

o Computer o Ipad o Digital camera o Ipod o Phones o Email accounts o genetics

Who is Using Social Media

• Majority is 18-34 – largest expanding area • Myspace and Facebook allow kids to get accounts at the age of 13 • Twitter has over 175 million users- condensed to 140 characters per post • Facebook has over a billion users. Users can start at 13. And it’s REALLY easy to watch people

change a small detail and get back into the system when thrown out. • Keep in mind that the average worker/client is using social media aps at least once a day, often

on work time

What do you see on Facebook and other popular social media sites?

• Pictures ( Facebook has tremendous facial recognition software programs at play)

• Videos • Music • Memes • Employment aps • Personal commentary • Personal Beliefs • Family pictures • Sarcasm • Online dating • Health information

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• Bank accounts/credit card info Who do we typically see in family law cases that we should think about?

• Spouses that cheat • Children that are taking inappropriate selfies • Online bullying • Contentious divorces • Pictures of parents posing their toddlers in cute/dangerous pictures • Out of control family members • Substance abuse using spouses • Confessions of a woman saying kids weren’t really the dads • Dad saying he was watching the kids all weekend, but video on you tube that showed him

partying • A woman finding out she was married to a bigamist through facebook

Who is using social media that we don’t think about?

• Prospective employers • Sexual Offenders • Criminals intent in identity theft

SO… THERE ARE PLACES THAT SOCIAL MEDIA NEEDS TO BE SCRUTINIZED… YOURS AND YOUR CLIENT’S What are your leaks? What are your client’s leaks What is being leaked?

XXXIn Estate and Probate cases XXX Examples:

• Indications of inappropriate spending • oversharing of health information • confessions about paternity that affects estate sizes • online affairs if there are situations where someone marries to gain access to an estate (ex: the

care provider marrying the decedent). • scams for elder abuse

Rule of Thumb- Keep it vanilla. If it would embarrass your grandmother- don’t put it on there. Don’t put on pictures of your kids, because unless you disable the GPS from your phone, and you download pictures from your phone to your social media web site, the meta data on the pictures can give a potential predator the location of where the pictures are taken. REMEMBER- EVERYONE YOUR POSTINGS NEVER DIE – if you use Facebook? Every character you post is being saved across the planet every hour on a different set of servers.

Ice rocket.com Library of congress purchased the entire twitter archive Consider how retrievable the data is… and the context Advantages to Social Media for Your Client’s Case- Social Media can Include an ediscovery Component

o Look at the data, where is generated, and where it is stored

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o Electronic data may not be created by the person on purpose. A digital camera can provide time/date/ latitude/ longitude when picture was taken- the meta data

o Sometimes it is not clear how the meta data is created- can be by tracking software/can be deliberately created/ could be an auto function like a cash register/flight box

Problems with Social Media

• HR problems • Sexual harassment • Can cause HIPPA violations on patient disclosures (ex: docs tweeting about patients, thinking

that they are keeping things confidential) • The Eponymous Flea- it is common to for medical residents to be referred to as fleas, as they

are always hounding the resident. The Flea blog was created by a MD, who was posting, in an blog entitled the Flea, about his attorney prep for his upcoming trial on the death of a child.

• Public Defenders commenting on jury trials/judges • Consider that content moves… things bounce from twitter, to another friend’s account, to

facebook, to being linked on Chive… to text messages

ETHICAL PROBLEMS WITH SOCIAL MEDIA

Rule 1.1. Competence.

(a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required or in which referral to or consultation or association with another lawyer would be impractical; provided, however, that the assistance shall be limited to that reasonably necessary in the circumstances and the client shall be advised of the lawyer's limited knowledge in the legal field in which the advice is sought.

Rule 1.3. Diligence.

A lawyer shall act with reasonable diligence and promptness in representing a client.

Diligence in terms of being technologically aware? Diligence in protecting data? How thorough must this diligence be? Rule 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers. (a) A partner in a law firm, and a lawyer who individually or together with other lawyers has comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

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(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or the lawyer individually or together with other lawyers has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Rule 1.6. Confidentiality of Information. (a) A lawyer shall not reveal a client’s confidence or secret unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation and disclosures permitted by paragraph (b) below or Rule 3.3. For purposes of this rule, "confidence" means information protected by the attorney-client privilege under applicable law, and "secret" means other information gained in the professional relationship if the client has requested it be held confidential or if it is reasonably foreseeable that disclosure of the information would be embarrassing or detrimental to the client. In determining whether information relating to representation of a client is protected from disclosure under this rule, the lawyer shall resolve any uncertainty about whether such information can be revealed against revealing the information. (b) A lawyer may reveal a client’s confidence or secret to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain: (A) death; (B) substantial bodily harm; or (C) wrongful execution or incarceration of another; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; (3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

(c) A lawyer must act competently to safeguard a client’s confidences and secrets against inadvertent or unauthorized disclosure by the lawyer, by other persons who are participating in the representation of the client, or by any other persons who are subject to the lawyer’s supervision. See Rules 1.1, 5.1, and 5.3. When transmitting a communication that includes a client’s confidence or secret, the lawyer must take reasonable precautions to prevent this information from coming into the hands of unintended recipients.

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Rule 8.4. Misconduct. It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) state or imply an ability either to influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

For the Practitioner - Actions that Caused a Disciplinary Response/ Adverse Outcome

• Disciplinary case in NJ where a firm asked their paralegal to friend a plaintiff in a case where the firm was defending the other client

• The case in Florida in the past week where the teenage daughter told her father’s employer ( a prep school ) to SUCK IT after her fathers case settled, and that the settlement was going to pay for their summer trip to Europe. Confidentiality deal rescinded. 2 years of litigation and settlement toasted.

• Lawyer who tweeted fact pattern about pit bull attacking his client’s teacup poodle – could the tweet lead to discovery /related to representation.

Facebook as a means to find parties /Facebook as a mining tool for infidelity/ hidden assets

• You need to keep in mind, Facebook will no longer respond to subpoenas- instead, Facebook says that the user needs to download their zip file. So the remedy is you enlist an IT person, get a cost assessment, and then apply to the court for relief.

• Another way to get the data- consider Predictive Coding software to get the information, but it will not be cheap.

• the idea of a judge “friending” one of the parties per court order, to do an in camera review (NBI case- Authenticating Social Media- Produced July 23, 2013)

ISSUES REGARDING YOUR PRIVACY/ POTENTIAL COMPROMISE OF YOUR CLIENT’S PRIVACY

• If you don’t read the terms of the consent, it may come back to haunt you. Because frequently even if you can’t quit the program, they still have your information.

o Consider… how much data are you giving away as you are the product? o Facebook may be proverbially free, but remember.. you are the product. Who are they

selling your stuff to? In 2019, Facebook divulged that it was sharing with 17 mega corporations.. how much of your stuff ended up going to the Bank of Canada for marketing purposes?

o Consider this: If Facebook has 1 megabite of data for your presence there, consider Google probably has 6-7 megabites of data about your search habits.

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o Imagine what Amazon has Consider the privacy implications of echo/siri /alexa

• X boxes that don’t turn off - permanent camera • ordering on alexa/listening to music

o what is really being shared/monitored? • domestic violence fights? • work product? • what if you are talking out loud about a case in

your office and you have alexa there? or echo? is it possible to have your client’s case compromised

because you want to listen to Beyonce while working late?

• Determine if the security is worth giving up your privacy. Get to know the business model of

where you choose to advertise/blog your business • The need to stay current. If you are looking at web sites that cache your password, you are at

risk of identity theft. Same with cookies- they tell an advertiser where you have been and where you are going. We all know viruses are attached to the trending topic of the day – google in most of the controversial rock bands, or Miley Cyrus, and you are pretty much guaranteed to get a Trojan virus or many other ones attached to your computer by virtue of the simple query- consider this also with web sites you are looking at to research a case.

• Have you considered googling your client • what about linked in? are you aware that when you look at linked in? they know who is looking

at them? what if you do this for jury selection? In PA- can’t have investigator seeking to friend someone else, or seeking information under false witness/can’t try to friend the witness without disclosing.

• Are your comments really safe? What happens when your kids twitter what happens at the dinner table?

• Or you handle a celebrity client, and your secretary blabs? • Constantly evolving • Are you creating an unintended attorney/client relationship with a person on a video game • Encrypted/unencrypted – consequences • Recycling of copying machines

o cell phones o old computers=- the need to strip o Printers- refurbished printers being shipped to other countries o can you recover old data off refurbished cell phones?

• Can you read the client on the other side on their web page? • what is metadata? why is it important?

Common Questions

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The Logistics of Utilizing Social Media how many servers does your email go to opposing counsel across town? think this through- does this go automatically to the server? is there an interface? does it get diverted to Seattle or Chicago depending on the routing mechanism? what about the cloud? where is it stored? do you know which servers get hacked? do you know of the privacy settings?

If you take it off Facebook is it gone?

Not necessarily…. Can be on your server/your lap top/ a friend’s server/ if a friend copied it/ Facebook has swarms of computers that back up every hour- so even on insta chat, in a private chat, likely to get a backup somewhere.

Can I de-activate my account through Facebook? Yes, but if you touch it in 2 weeks, it is automatically re-activated.

Even to delete your account from Facebook (not de-activate it, delete it) you cannot touch the account for 2 weeks, for it to be de-activated.

Is a Facebook page legit?

Consider that the media page, such as a facebook page, can be a fake Verification of evidence this way Let’s talk about Facebook quizzes Who are you REALLY giving your information to? Where else has Facebook been giving info? who here has an android phone? been keeping track of how Facebook, using the facebook ap on an android, has decided that it is appropriate to go through voice mails and text messages? if you use facebook on your phone, are you inadvertently giving away privilege along with uploading your photos? Giving Away the Law Firm for a Song What’s a data dump? What kinds of other licenses do you inadvertently give? who has Pokemon GO on their phones? who has actually read the license agreement? what’s on it? are you aware that your whole phone can be utilized and mined, including confidential communications between you and your clients?

Niantic Privacy Policy

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Effective as of: October 30, 2018 We are Niantic. We provide real-world augmented reality platforms, designed to enable you to interact in shared worlds, seamlessly blended with the real world. To do that, we need information about you. Protecting your privacy is really important to us. We only use your information where we have a legal basis to do so. This Privacy Policy will help you understand what information we collect, how we use it and what choices you have when you play any of our games, use our websites, buy merchandise from us, or take part in live events and promotions (the "Services"). Please note that in addition to the general information below, specific information about how certain of our Services use your information is provided at the end of this Privacy Policy in the "Game Specific Disclosures". You should also read our Terms of Service which set out the contract between you and Niantic. 1. Who decides how your information is used?

Niantic, Inc., is the data controller responsible for making decisions about how we use your

Niantic, Inc., is the data controller responsible for making decisions about how we use your personal information if you are based outside of the European Economic Area (EEA). If you are based in the EEA, your data controller is Niantic International Limited in the United Kingdom.

If you have any questions or comments on this policy, you can:

• Email us at privacy@nianticlabs.com • Contact our Data Protection Officer at dpo@nianticlabs.com

2. The information we collect about you and how we use it This Privacy Policy covers our use of any information that can or could be used to identify you ("Personal Data"). It does not cover information which cannot be used to identify you ("Anonymous Data"). We need to collect and use certain Personal Data to provide the Services to you and fulfil the promises we make to you in the Terms of Service:

• When you sign up for our Services you give us Personal Data voluntarily by providing it to us, for example when you sign up for an account. We collect and use that information in order to authenticate you when you register an account and use the Services, to make sure you are eligible and able to receive the Services, and so that you receive the correct version of the Services. That information includes the in-game username you choose to use on our Services, and internal account IDs that we assign to your account.

• You must have an account with a supported third party single sign-on service to use our Services. As such, the Personal Data we collect also depends on which third party accounts you choose to use, their privacy policy, and what your privacy settings with those services allow us to see when you use their services to access Niantic Services.

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o If you choose to link your Google account to the Services, we will collect your Google email address and an authentication token provided by Google.

o If you choose to link your Facebook account to the Services, we will collect a unique user ID provided by Facebook and, if permitted by you, your Facebook registered email address.

• epending on the particular Service you sign up for, we may support other third party single sign-on services and collect additional Personal Data from them. For details please read the Game Specific Disclosures at the end of this Privacy Policy.

Some third-party providers may notify you that they make additional information, such as your public profile, available to us when you use their single sign-on services. We do not collect that information from them.

• We collect and use your device location information as you use our Services (and, if you elect to turn on background location tracking for our Services, while you are not directly interacting with the Services), including how you move around and events that occur during gameplay. Our Services include location based games whose core feature is to provide a gameplay experience tied to your real world location, so we need to know where you are to operate these games for you, and to plan the location of in-game resources (for example PokéStops within Pokémon GO). We identify your location using a variety of technologies, including GPS, the WiFi points you are accessing the Service through and mobile/cell tower triangulation.

• We also collect and use your in-game actions and achievements, as well as certain information about your mobile device (including device identifiers, device OS, model,

• configuration, settings and information about third party applications or software installed on your device), to operate the Services for you and to ensure that we provide a fair gaming experience to all players in accordance with our Terms of Service (which includes anti-fraud and anti-cheating measures against behaviors prohibited under our Terms of Service).

• We also use the information above to show in-game sponsored locations that are in your vicinity as part of the gameplay experience.

• We further use the information above in order to provide technical and customer support to you.

• You also give us Personal Data when you make a purchase through us, subscribe to our publications, register for a live event, enter a competition, promotion, sweepstakes or survey or communicate with us. Depending on which of these Services you use, that may include your name, mailing address, phone number, country of residency, date of birth (as needed to verify eligibility), and email address. We use that information to fulfil those Services to you and to provide related customer support to you.

In addition, we have and rely on a legitimate interest in using your Personal Data as follows:

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• Using your IP address, browser type, operating system, the web page you were visiting

• Using your IP address, browser type, operating system, the web page you were visiting before accessing our Services, the pages of our Services which you browsed or the features you used, and the time spent on those pages or features, the links on our Services that you click on, device identifiers, as well as actions you take during gameplay, your in-game user settings and preferences and your in-app purchases to understand who is using our Services and how.

• Using your contact information, namely your email address in order to communicate with you to provide technical and customer support.

• Using your internal account ID in order to attribute to your account any user content (such as local points of interest) that you elect to submit to Niantic through the Services.

• Using your email address and device information in order to share updates and news about the Services with you either within the games or by email. You can unsubscribe from these at any time in your device settings or in-app settings.

• To provide social features within our games so you can interact and play with other players, including storing your communications with those players, find your friends and be found by them, and share your gameplay experience and achievements with your friends.

• To offer new or additional features for our Services.

• To organize and run live events based on or featuring our games. Note that when you participate in live events your in-game actions and achievements, in-game username and your avatar, team, and other components of your in-game profile will be visible to other event participants and to the public (for example on leaderboards displayed at the event and online).

• To carry out anti-fraud and anti-cheating measures and to ensure that you and other users are complying with our Terms of Service.

• To make legal or regulatory disclosures.

We will only use your Personal Data to do the following if we have your consent:

• If you elect to turn on background activity tracking in our Services (for example the Fitness Mode in Pokémon GO) we will collect your Personal Data as you use the Services as well as in the background when you do not have the Services open on your device. This includes your device location and your fitness activity data (such as Step Count, Calories Burned, and Distance Walked). We use background activity tracking to provide you certain functionalities in the Services such as in-game items and rewards tied to your fitness activity level and alerts for nearby gameplay events. You can change your mind and turn off background

• activity tracking at any time in your device settings or in-app settings.

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With your permission we use your device’s health app (Apple HealthKit if you use an Apple device, or Google Fit if you use an Android device) to collect your fitness activity data: we read and/or write your fitness activity data to your device’s health app to operate background activity tracking and to ensure you get "credit" in your device’s health app for all of the walking you do while playing our games. We do not use data collected through Apple Health Kit or through Google Fit for marketing or advertising purposes. Our Services cannot read from or write to your device’s health app without your consent. You can change your mind and disable our access to any type of fitness activity data at any time in your Apple Health or Google Fit app settings on your device.

• If you elect to enable the Facebook User Friends permission available in some of our games, we will import from your linked Facebook account the list of your friends who also play the game and enabled Facebook User Friends. If you enable that permission, your Facebook profile picture and the name on your Facebook account will be visible to your friends in-game. You can change your mind and unfriend other players at any time from your in-app Friends settings. You can also revoke Facebook permissions for our games directly from your Facebook account settings.

who here has ever heard about Place Raider (the military smartphone malware designed for android phones that does 3 d models of your environment?)

what about Alaska air channels on the flights? Relevant Case Law Lorraine v. Markel American Insurance Company 241 F.R.D. 534 (D.Md. May 4, 2007) is a case in which a landmark decision about the admissibility and authentication of digital evidence was set down in the form of a 100-page opinion

You’ve Got Social Media.. What do you Do with it? Getting Social Media Evidence Into a Case

• Common objections – privacy interests/fishing expeditions/overbroad • Evidence Admissible in Court

o Evidence o Give Federal Rule/state Rule

Is it relevant Is it authentic? Fed rules 901 and 902 How quickly can the evidence be pulled? Who has access? Password protected?

Who has access to password?

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Authentication can be personal testimony – I sent the text/I saw the text received. I recorded this with my cell phone camera.

Call opposing counsel before and stip to authenticity Ask 901 to get in first Ask judge to take judicial notice- how phone works/ how computer works/ how

program works Excited utterance exceptions do not apply Recorded recollection

On facebook/twitter – if it’s public and no privacy settings, no expectation of privacy

Expectations of Privilege – The attorney client privilege communication rule does not diminish through emails/text messages/face time.

A business email can be considered as a business record. Consider the hearsay exceptions Can get an email in as a hearsay exception to an excited utterance

Your duties to advice clients to preserve social media/digital media

• Issues of programs like Snapchat- self destruct component – if you try to take a picture of saving the data, the sender gets notified.

• Vapor Stream- secure message recording service without meta data/digital footprint • Dread Pirate Roberts- deep web application/bit coin transaction

o dark web • Burn Notice- self destructing emails • Wicker- self destructing pictures/ texts • how does snap chat work? or not

Be sure to have conversations with your client for your liability/professional responsibility – sanctions can run from $0-$390 million based on failure to disclose

LET’S TALK ABOUT ETHICS RULES THAT APPLY IN ALASKA WHAT CAN ETHICS BE SUMMARIZED AS BEING

DON’T SCREW

RELEVANT ETHICS ALASKA OPINIONS

o 98-2 – EMAILS WITH CLIENTS o THIS INCLUDES GIVING OUT SOCIAL SECURITY NUMBERS/BANK ACCOUNT INFO/ o ENCRYPT PEOPLE!

Ethics: How about gmail? Cloud computing? ABA formal ethics opinion Kentucky bar saying if you used a blog, they want your user name and password bc that’s advertising

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As they say in the Journal, the Week…. Boring, but Important Consider the IP issues, even in law….

Issues regarding re-posting photos/content (to your blog, to your wiki/your client’s content, if it affects their business and their divorce/custody issues )

• Copyrights for photographers • Copyrights for models • Permission from owner of the mark if the work was for hire. • Consider the cost- FYI, even to get reprints of 1 page articles from the ABA weekly journal runs

over $1000 per reprint…. • When you are dealing with clients- make sure that they are educated about libel claims,

defamation claims, copyrights/3rd party copyright claims – for divorce and family law, it’s predominantly libel and defamation issues, but if the divorce includes intellectual property claims, this can be an issue.

• It can also be an issue for protecting the privacy for the children. If your client values privacy, and the other side is posting naked baby pictures of your kiddo… boundaries need to be established.

Other Areas that are intensifying genetic information 23 and Me Ancestry.com tracking of the zodiac killer through genetics

Recommended Reading/Online Courses

FROM THE AMERICAN BAR ASSOCIATION WEEKLY JOURNAL

· Is it OK to Google a client? A rule of thumb for physicians may work for Lawyers Too · Answers to Top 5 Questions About Cloud Practice Management · Computer virus locks up law firm files · Law firm can read ex-partner’s incoming email, opinion says, but must forward email about

his cases · Social media surveillance helps keep students safe, school officials say · Customers sue LinkedIn, say company ‘hacked’ their external email for marketing contacts · Fingerprint-ID system for new Apple smartphone has been hacked

REFERENCES

FROM THE BUSINESS INSIDER How to stop Facebook from Tracking You http://www.businessinsider.com/heres-how-to-stop-facebook-from-tracking-you-2012-9?op=1 Game Theory https://www.youtube.com/watch?v=RCnwfaN6dOQ WEST LEGAL ED CENTER There are a bevy of online courses there that can be of assistance.

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The history of Eponymous Flea https://www.kevinmd.com/blog/2007/05/demise-flea-liveblogged-medical-malpractice-trial.html http://archive.boston.com/news/local/massachusetts/articles/2007/05/31/blogger_unmasked_court_case_upended/ https://www.technologyreview.com/s/429394/placeraider-the-military-smartphone-malware-designed-to-steal-your-life/ https://nianticlabs.com/privacy/en/ ALASKA BAR ASSOCIATION ETHICS OPINION 98-2 Communication By Electronic Mail Electronic mail (e-mail) is fast becoming the accepted and preferred method for attorneys to communicate with their clients, and vice versa. It has the obvious advantages of speed, efficiency and cost to commend its application, and it will likely follow the path of the fax machine and soon become an everyday mainstream business tool. Its rapid rise in currency raises a number of thorny ethical issues,1 but the Committee has chosen to address probably the most fundamental concern: Is it ethical for an attorney to use e-mail as a means of communicating with a client when such communications may involve the disclosure of client confidences, privileged communications or work-product? In the Committee’s view, a lawyer may ethically communicate with a client on all topics using electronic mail. However, an attorney should use good judgment and discretion with respect to the sensitivity and confidentiality of electronic messages to the client and, in turn, the client should be advised, and cautioned, that the confidentiality of unencrypted e-mail is not assured. Given the increasing availability of reasonably priced encryption software,2 attorneys are encouraged to use such safeguards when communicating particularly sensitive or confidential matters by e-mail, i.e., a communication that the attorney would hesitate to communicate by phone or by fax. 1 See generally, ABA/BNA Lawyers’ Manual on Professional Conduct Practice Guide Dealing with Electronic Communication, under the heading “Confidentiality”, No. 170; ABA/BNA Lawyers’ Manual on Professional Conduct, Current Reports, March 6, 1996, an article by Joan C. Rogers, Staff Editor, entitled “Ethics Malpractice Concerns Closed E-Mail, On-Line Advice”; the ethics article entitled “The Perils of Office Tech” by Joanne Pitulla, Assistant Ethics Counsel, in the October 1991 issue of the “ABA Journal”; “Confidentiality and Privilege in High-Tech Communications” by David Hricick appearing in the February 1997 issue of the “Professional Lawyer”; the 1996 Symposium issue of the “Professional Lawyer” comprised of papers presented at the 22nd National Conference on Professional Responsibility, which took place in Chicago. Several articles dealing with the subject matter are printed in the Symposium issue including “High Tech Ethics and Malpractice Issues”, “Spinning an Ethical Web: Rules of Lawyer Marketing in the Computer Age”, and “Can the Decrepit Encrypt: Do we Need the Cone of Silence, or is “Pretty Good” Good Enough?”. 2 Encrypted e-mail has been electronically locked to prevent anyone but the intended recipient from reading it, using a “lock and key” technology. Simply stated, such messages are “locked” by the sender, making them unreadable except by the intended recipient, who has a “key” in the form of an electronic password to decode the message. - 2 - DISCUSSION The lawyer’s duty to preserve confidences is codified in Alaska Rules of Professional Conduct 1.6. The duty extends not only to confidential communications, but to “information relating to representation of a client.” While e-mail has many advantages, increased security from interception is not one of them. However, by the same token, e-mail in its various forms3 is no less secure than the telephone or a fax transmission. Virtually any of these communications can be intercepted, if that is the intent. The Electronic Communications Privacy Act (as amended) makes it a crime to intercept communications made over phone lines, wireless

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communications, or the Internet, including e-mail, while in transit, when stored, or after receipt. See 18 U.S.C. § 2510 et. seq. The Act also provides that “[n]o otherwise privileged wire, oral or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.” 18 U.S.C. § 2517(4). Accordingly, interception will not, in most cases, result in a waiver of the attorney-client privilege. This is in accord with the prevailing view, though the answer in each specific case may depend, at least in part, on the circumstances of whether the disclosure is viewed as “intentional” or “inadvertent.” See Shubert v. Metrophone, Inc., 898 F.2d 401 (3rd Cir. 1990). See also ABA Formal Ethics Ops. 92-368 and 94-382. The Committee’s view generally comports with the majority of jurisdictions that have considered this issue. See Arizona Advisory Op. 97-04 (lawyers may want to have e-mail encrypted with a password known only to the lawyer and the client but lawyers may still communicate with existing clients via e-mail about confidential matters); South Carolina Advisory Bar Op. 97-08 (finding a reasonable expectation of privacy when sending confidential information through electronic mail; the use of electronic mail will not affect the confidentiality of client communications under South Carolina Rule of Professional Conduct 1.6); Vermont Op. 97-5 (a lawyer may communicate with a client by e-mail, including the Internet, without encryption); Illinois State Bar Assoc. Op. 93-12 (lawyer does not violate Rule 1.6 by communicating with a 3 Speaking generally, electronic mail is a message sent from one user’s computer to another user’s computer via a host computer on a network, or via a private or local area network (i.e., a network wholly owned by one company or person which is available only to those persons employed by the owner or to whom the owner has granted legal access). In addition, there are commercial electronic mail services (America On-Line, CompuServe), or messages may be sent via the Internet, or by any combination of these methods. - 3 - client using electronic mail services, including the Internet, without encryption). The only dissonant view has been expressed by the Iowa Bar, which suggests that, without encryption, confidential communications should not be sent by e-mail absent an express waiver by the client. See Iowa Advisory Op. 95-30. In conclusion, an attorney is free to communicate using e-mail on any matters with a client that the attorney would otherwise feel free to discuss over the telephone or via fax transmission. The expectation of privacy is no less, and these communications are protected by law. While it is not necessary to seek specific client consent to the use of unencrypted e-mail, clients should nonetheless be advised, and cautioned, that the communications are not absolutely secure. The Committee recognizes that there may be circumstances involving an extraordinary sensitive matter that might require enhanced security measures, like encryption. Attorneys should take those precautions when the communication is of such a nature that normal means of communication would be deemed inadequate. Approved by the Alaska Bar Association Ethics Committee on January 8, 1998. Adopted by the Board of Governors on January 16, 1998.

ALASKA BAR ASSOCIATION ETHICS OPINION NO. 2008-1 MAY LAWYERS MAINTAIN ELECTRONIC COPIES OF BUSINESS RECORDS IN LIEU OF PAPER COPIES? QUESTION PRESENTED

The Rules of Professional Conduct require certain records to be kept under Rules 1.4, 1.15 and 7.2. The Committee has been asked to give an opinion as to whether it is permissible for a lawyer to maintain

electronic copies of these documents in lieu of paper copies. CONCLUSION It is the committee’s opinion that lawyers may maintain electronic copies of documents, but may not destroy or otherwise alter

“original” client documents.1 DISCUSSION The Rules of Professional Conduct require lawyers to maintain records of certain client communications. In this age of electronic communication and the advancing “paperless office” the question for lawyers is whether the Rules of Professional Conduct

permit electronic recordkeeping. For example, Rule 1.4(c) requires a lawyer to inform a client in writing

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if the lawyer does not have at least minimal malpractice insurance or if the lawyer’s coverage falls below certain minimums.2 The lawyer must maintain records of written disclosures for a period of six years

from the end of representation. Similarly, under Rule 1.15 lawyers must maintain records 1 This Opinion is directed to the lawyer’s “business records” rather original documents supplied to a lawyer by the

client. As with all records, lawyers are encouraged to safeguard their records and keep them in an unalterable form. Thus, scanning of records to a non-alterable file format rather than maintaining a

word processing copy would be preferred. Further, if a lawyer chooses to keep electronic, rather than paper records, the lawyer is encouraged to make adequate backups to assure the preservation and

integrity of the lawyer’s records. 2 Lawyers must inform clients in writing if they do not maintain malpractice insurance in the amount of $100,000 per claim and $300,000 in the aggregate. PLEASE

NOTE: The recordkeeping requirement in RPC 7.2 was eliminated in April 2009. - 2 - relating to client property, including trust funds, for a period of six years following termination of the representation. Finally, lawyers must maintain copies of advertisements under rule 7.2. Records must be maintained

showing where and when advertisements were used for a period of two years following the last dissemination. In each of the rules just mentioned, a lawyer has an obligation to maintain the records

for a period of time. Except in the case of advertisements, nothing in the rules or professional conduct dictates the specific form of the records.3 Historically, courts preferred the “original” of a document to

be introduced for evidentiary purposes to prove its contents.4 However, courts also recognize that a duplicate or copy may be equally admissible in many circumstances.5 With updates in technology and

the advent of “paperless offices” scanning technology has in recent years become popular for record keeping.6 The Alaska legislature has answered many questions relating to Electronic record-keeping and

the admissibility of electronic records in passing the Uniform Electronic Transactions Act in 2004.7 “If a law requires a record to be in writing, an electronic record satisfies the law. If a law requires a signature, an electronic signature satisfies the law.”8 “If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information . . . .”9 A record or signature may not be denied legal 3 Here, the rule specifically contemplates that something other than a paper copy may be

maintained, as the advertisement itself may not be in print. Thus, it is specifically permissible to maintain an electronic or other recording of television or radio advertisements. 4 See Evidence Rule

1002 (“The Best Evidence Rule.”) 5 See Evidence Rules 1003 and 1004. 6 See Moreland, Admitting Scanned Reproductions into Evidence, 18 Rev. Litig. 261 (1999). 7 See AS 09.80.010-195. The act

provides that a record retained in electronic form satisfies a law requiring a person to retain a record for evidentiary, audit, or like purposes, unless a law enacted after July 1, 2004 specifically prohibits the use

of an electronic record for the specified purpose. AS 09.80.090(f). 8 AS 09.80.040(c) and (d). 9 AS 09.80.090(a). - 3 - effect or enforceability simply because it is in electronic form.”10 Similarly, “evidence

of a record or signature may not be excluded solely because it is in electronic form.”11 Finally, the statute recognizes that even notarized or verified documents may be maintained with an electronic

signature.12 Consequently, the statute concludes that electronic records are permissible for evidentiary purposes. The Committee believes that electronic records are equally acceptable for ethical purposes.

Simply because a lawyer may keep electronic records of his or her own business records, that does not mean the lawyer is free to discard “original” records. Rule 1.15 requires the lawyer to safeguard and

hold a client’s property separate from the lawyer’s own property. Thus, for example, if a lawyer scans client documents for electronic document management, that does not relieve the lawyer from the

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obligation to maintain and safeguard the client’s property. Further, the Uniform Electronic Transactions Act recognizes that certain types of documents must be maintained in original form. These include wills,

testamentary trusts, and certain documents created under the Uniform Commercial Code.13 In the Committee’s view, the Alaska Rules of Professional Conduct by analogy to the Alaska Uniform Electronic Transactions Act permit lawyers to maintain any records required to be kept pursuant to Rules 1.4, 1.15

and 7.2 in electronic form. The lawyer must still maintain in original form any client documents entrusted for safekeeping. Approved by the Alaska Bar Association Ethics Committee on January 3,

2008. Adopted by the Board of Governors on January 31, 2008.

ALASKA BAR ASSOCIATION ETHICS OPINION NO. 2018-1 E-mail Correspondence with Opposing Counsel While Sending a Copy to the Client

ISSUE PRESENTED Under what circumstances, if any, may a lawyer “cc” or “bcc” the lawyer’s client in e-mail correspondence with opposing counsel? What are the ethical responsibilities of opposing counsel in responding to an e-mail where the e-mail includes a “cc” to opposing counsel’s client? SHORT ANSWER A lawyer who copies a client on e-mail communications with opposing counsel risks waiver of attorney/client confidences. A lawyer who responds to an e-mail where opposing counsel has “cc’d” the opposing counsel’s client has a duty to inquire whether the client should be included in a reply. A lawyer may “bcc” the lawyer’s own client on electronic communications, however the better practice is to forward the communication to the client to avoid inadvertent responsive communications by the client to opposing counsel. ANALYSIS Several attorneys have inquired whether it is ethically permissible to “reply all” to e-mails that may include represented opposing parties in the “cc”. There are few opinions from other jurisdictions addressing this issue.1 The ethical rules implicated are Rule 1.6 (a) (duty to protect client confidences and secrets), Rule 4.2 (prohibiting communicating about the subject of representation with a person the lawyer knows to be represented by another lawyer), and Rule 4.4 (b) (receiving a document relating to the representation of the lawyer’s client that was inadvertently sent). This opinion will examine both the duties of the sending lawyer in choosing to “cc” or “bcc” the lawyer’s client and the duties of the receiving lawyer when choosing to “reply all”. 1 North Carolina’s opinion directly addresses these issues and we agree with that opinion’s rationale and conclusions (see NC 2012 Formal Ethics Opinion 7). New York has addressed the issue of blind copying a client in e-mail in NYSB Ethics Opinion 1076. -2- Duty to Protect Client Confidences & Prohibition on Communicating about the Subject of the Representation with a Person the Lawyer Knows to be Represented Recognizing the obligation to protect a client’s secrets and confidences, it is not advisable for a lawyer to “cc” their client in a message to opposing counsel concerning the subject of the representation or any other matter that may give rise to a response that could reveal a client confidence or secret. It should be obvious as well that a lawyer cannot “cc” opposing counsel’s client in a communication without the consent of the opposing lawyer. What is less obvious is any duty an opposing lawyer may have when receiving a communication where the sending lawyer has “cc’d” their own client. North Carolina’s 2012 formal ethics opinion 7 provides a thorough analysis that we adopt here. The North Carolina opinion notes that Rule 4.2 does not permit communication with the opposing represented party without consent. A lawyer who copies their client in an e-mail communication with opposing counsel is not, merely by

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copying the client, giving consent to the receiving lawyer. The easiest and most direct way to determine whether the receiving lawyer can ethically “reply all” is to ask the sending lawyer. The North Carolina opinion also recognizes that there may be circumstances where the sending lawyer has given implied consent to “reply all”. Factors to be considered in determining whether there is implied consent include: (1) how the communication is initiated; (2) the nature of the matter (transactional or adversarial); (3) the prior course of conduct of the lawyers and their clients; and (4) the extent to which the communication might interfere with the client-lawyer relationship. Notwithstanding the above factors, by including the client’s e-mail in the “cc” of electronic communication, the lawyer is risking violating Rule 1.6 (a) and Rule 4.2 in the ongoing electronic communications or “conversation.” E-mail addresses often do not obviously indicate the identity of the person behind the address. A lawyer who “replies all” may therefore be unaware that the “cc” includes a represented party. So too, e-mails can often include a long list of “cc’d” recipients, once again making it difficult to discern if a represented party has been included in that list. Inadvertent communications with represented parties can easily occur even with reasonable care exercised by the recipient of the e-mail. -3- The rules only apply to the subject of the representation or other client confidences or secrets however. So it is likely not problematic to “cc” a client on electronic communications regarding scheduling or other purely administrative matters.2 The Committee recommends that lawyers establish early on in a relationship with another lawyer whether they may “reply all” in communications concerning a representation. We also recommend that lawyers not “cc” their clients on electronic communications with opposing counsel, but instead, forward the communication to the client. The ease of “reply all” increases the risk of unauthorized communication with a party who has been “cc’d” on the electronic “conversation”. While all lawyers must be vigilant in following the ethics rules in e-mail correspondence, the primary responsibility lies with the lawyer who has chosen to “cc” the lawyer’s own client. Dangers in “Bcc” to a Client A separate question relates to the use of “bcc”. The New York State Bar has addressed whether a lawyer may “bcc” the lawyer’s own client in correspondence with opposing counsel (NYSB Ethics Opinion 1076). A client who receives an e-mail as a “bcc” may “reply all” and inadvertently communicate directly with opposing counsel. An unsophisticated client may not realize the effect that the communication may have on disclosing matters that otherwise would be confidential. A case cited by the New York opinion apparently found that blind copying a client gave rise to a foreseeable risk that the client would respond to all recipients. (Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)). Consequently, we recommend that attorneys not “cc” or “bcc” their clients in correspondence with opposing counsel relating to the matter of the representation or that may give rise to a response that could reveal client secrets or confidences. Care should be used if “cc” or “bcc” is used for scheduling or other administrative matters and when permission appears to have been given for ongoing communication. Prudent lawyers will agree to a protocol for “reply all” with opposing counsel. Approved by Alaska Bar Association Ethics Committee on November 9, 2017. Adopted by the Board of Governors on January 18, 2018.

ALASKA BAR ASSOCIATION ETHICS OPINION NO. 2019-1 OBTAINING CONFIDENTIAL INFORMATION

The Committee has been asked to provide an opinion about a lawyer’s professional responsibility when offered evidence from a third party where such evidence is subject to confidentiality obligations, and

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where the third party requests payment for delivery of that evidence. SUMMARY OF OPINION A lawyer may not solicit or accept evidence from a person if he or she knows or reasonably should know that doing so violates the legal rights of a third person, which may include obtaining evidence in violation of confidentiality obligations. If obtaining the evidence violates the legal rights of a third person, it follows that the lawyer also may not pay for obtaining such evidence. DISCUSSION I. Facts In the hypothetical facts presented to the Committee, a consultant approached a lawyer and offered to provide certain confidential information that would be helpful to the lawyer’s client. The consultant had obtained this information in connection with a prior engagement in which the lawyer represented a party opposing the consultant’s client. The consultant was subject to a duty to maintain the confidence of the information pursuant to a written confidentiality agreement. The consultant requested a sizable monetary payment for delivery of this information to the lawyer. The lawyer knew the information was subject to the confidentiality agreement, and proceeded to pay the consultant for the information. II. Analysis The conduct at issue implicates Rule 4.4(a) (“Respect for the Rights of Third Persons”), Rule 3.4 (“Fairness to Opposing Party and Counsel”), and Rule 8.4 (“Misconduct”). Rule 4.4(a) provides that, “[i]n representing a client, a lawyer shall not . . . use methods of obtaining evidence that violate the legal rights of [a third person].” The Page 2 of 5 Commentary goes on to note that, while a lawyer is expected and encouraged to be a zealous advocate for her or his client, the lawyer may not disregard the rights of third parties and must adhere to legal restrictions on methods of obtaining evidence. For example, a lawyer may not receive and use statutorily confidential documents that the lawyer is not authorized to have.1 In the hypothetical facts provided here, irrespective of any payment requested or made, disclosure of the requested documents may well violate the terms of the confidentiality agreement and therefore violate the rights of the counterparty to that agreement.2 The lawyer may not use methods of obtaining evidence that violate the legal rights of the counterparty to that agreement. “Similarly, if the receiving lawyer is aware that disclosure is being made in breach of trust by . . . [an] agent of the opposing person, the receiving lawyer must not accept the information.”3 In Opinion 06-440, the ABA’s Standing Committee on Ethics and Professional Responsibility opined that a lawyer receiving confidential materials that were sent intentionally but without authorization was not required to notify the other party or that party’s lawyer in order to comply with Rule 4.4(b), and that determining whether any action was required by the lawyer would be dictated by substantive legal considerations.4 Rule 4.4(b) relates to the receipt of information that was “inadvertently sent” and therefore does not appear to apply to the hypothetical facts present to the Committee, in which the information was intentionally delivered. Further, the remedy contemplated by Rule 4.4(b) is prompt notification to the sender, but no automatic restriction on the use of the information. By contrast, Rule 4.4(a) prohibits the lawyer from using certain methods to 1 See Pa. Ethics Op. 93-135 (1993) (applying Rule 4.4 and concluding that an attorney may not have an expert witness review confidential psychiatric records which happened to be housed at the institution where the expert worked). 2 Whether or not any particular conduct constitutes a violation of the rights of the counterparty – for example, intentional interference with contractual relations – is an issue of substantive law that is beyond the scope of this opinion. The Committee notes that this may be a highly fact-dependent inquiry. See generally Maura I. Strassberg, An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference with Former Employee Non-Disclosure Agreements and the Threat of Disqualification, Part II, 90 Neb. L. Rev. 141 (2011). 3 Restatement (Third) of the Law Governing Lawyers § 60 cmt.m. 4 ABA Ethics Op. 06-440 (2006) at 2-3. Page 3 of 5 obtain the evidence

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at all.5 The stakes are considerable. If the attorney obtains information through a means deemed to violate the rights of a third party, the attorney may be subject to disciplinary sanctions. To the extent that there is some question about whether the methods of obtaining the evidence are appropriate, the attorney would be well-advised to seek guidance from Bar Counsel. Rule 3.4(b) provides that “[a] lawyer shall not . . . offer an inducement to a witness that is prohibited by law.” The Commentary to the rule goes on to state that, while it is not improper to pay a witness’s expenses or to compensate an expert witness, “[t]he common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying . . . .” While the hypothetical facts at issue here relate to the consultant’s delivery of physical evidence, it is conceivable (and perhaps inevitable) that the consultant would also be asked to testify in this matter – particularly if and when the consultant’s disclosure of the confidential documents becomes known. Rule 3.4(b) is concerned, in significant part, with the risk that payments to a fact witness may quickly lead to improper inducements to encourage favorable testimony in return for that payment.6 The consultant’s demand for a sizable payment, particularly to the extent it exceeds the reasonable cost of gathering the information, runs the risk of blurring the line between the collection of evidence and buying favorable testimony. The hazards associated with this type of evidence-gathering were explored in In re Sablowsky. 7 In that case, Mr. Sablowsky had obtained the identity of a favorable witness for a medical malpractice case being brought by other attorneys. Mr. Sablowsky was a 5 The Committee takes no view on whether or not the lawyer’s purchase of these documents under the hypothetical facts presented would be wrongful, but simply notes that the legal rights of the third party could be deemed to have been violated and that significant consequences may follow. See id. n.8 (“If the sender of privileged or confidential material has engaged in tortious or criminal conduct, a lawyer who receives and uses the materials may be subject to sanction by a court.”). 6 See, e.g., Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass’n, 865 F. Supp. 1516, 1526 (S.D. Fla. 1994) (finding that Florida’s analog to Rule 3.4(b) “clearly prohibit[s] a lawyer from paying or offering to pay money or other rewards to witnesses in return for their testimony, be it truthful or not, because it violates the integrity of the justice system and undermines the proper administration of justice. Quite simply, a witness has the solemn and fundamental duty to tell the truth. He or she should not be paid a fee for doing so.”). 7 529 A.2d 289 (D.C. App. 1987). Page 4 of 5 lawyer and offered to be a medical malpractice consultant in the case and informed the other attorneys that he had information about a helpful eyewitness, but indicated that he would only provide the name of the witness if the attorneys paid him $25,000.8 While the case involved a lawyer’s efforts to sell evidence, the court explained that both sides of the transaction were deeply problematic: To permit one attorney to sell information is to permit another to buy it; thus, were the profession to countenance the selling of evidence (other than expert opinion evidence for a fee), it would also endorse an attorney’s decision, indeed obligation, to further a client’s interests by purchasing harmful factual evidence, in order to assure the seller’s silence. The buying and selling of factual evidence would thus needlessly cause a cloud on evidence ultimately presented in court, would threaten rational and fair settlements, and would bring the judicial process and its practitioners into even greater disrepute than they already suffer. Because a market in factual evidence would hinder the discovery of truth within the justice system and often taint the outcome of disputes, whether litigated or not, the division unanimously concludes that attorneys, as officers of the courts, may not participate in such a market either as buyers or as sellers.9 The Committee is aware that the New York State Bar Association issued an opinion stating that, generally speaking, a lawyer may pay

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for physical evidence, subject to certain limitations.10 One of the limitations highlighted in that opinion is the “foreseeable” risk that the person providing the physical evidence may be called as a witness, and that the payment at issue may be deemed to be an improper effort to circumvent the restrictions of Rule 3.4(b).11 In the hypothetical facts presented to the Committee, the risk that the seller would be called as a witness appears to be more than simply foreseeable, and the size of the payment requested suggest that the lawyer would be purchasing more than just the information held by the consultant. Ultimately, whether or not the conduct described above would violate Rules 4.4(a) and 3.4(b) (and thereby Rule 8.4(a) as well) is dependent on facts not known to the Committee and not included in the hypothetical provided. Certainly, however, this type of 8 See id. at 292. 9 Id. at 293 (internal citation omitted). 10 New York State Bar Ass’n Ethics Op. 997 (2014). 11 See id. The facts presented in that opinion involved a storeowner offering to sell a surveillance tape that recorded an automobile accident. This type of objective physical evidence may entail a lower risk that the seller would be called as a witness. Page 5 of 5 conduct carries significant risks of violating third parties’ rights and crossing the line from evidence-gathering to “buying” favorable testimony.12 III. Conclusion In all situations involving confidential information of a third party, a lawyer must remember that ethical issues should be “resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”13 To the extent that the information held by the consultant is protected by a confidentiality agreement, obtaining that information in violation of that contractual agreement may well violate the legal rights of a third person. Purchasing that same information raises the additional specter that the lawyer is improperly influencing anticipated testimony from the seller. Approved by Alaska Bar Association Ethics Committee on January 23, 2019. Adopted by the Board of Governors on January 31, 2019. 12 Additional concerns exist if the consultant was a retained expert of the opposing party, either for testimonial purposes or as a consulting expert. The Committee has previously opined that ex parte contacts should not be made with expert witnesses retained by an opposing counsel or party. See Ethics Opinion No. 85-2 (Ex Parte Communication with Experts Retained by Opposing Counsel). In the facts presented, it appears the consultant was not retained as an expert by an opposing party. If the consultant had been a retained expert, the concerns in Ethics Op. No. 85-2 would apply as well. If the consultant was a retained testifying expert, the information purchased may have been subject to the attorney work-product doctrine. See Fed. R. Civ. P. 26(b)(4)(C). In either scenario, the lawyer may be deemed to have improperly gained confidential information in violation of the rights of the opposing party. 13 ARPC Preamble.

ALASKA BAR ASSOCIATION ETHICS OPINION NO. 2019-2 A LAWYER’S DUTY UPON RECEIPT of CONFIDENTIAL INFORMATION – Inadvertent but Unauthorized Disclosure

The Committee has been asked to provide an opinion about a lawyer’s professional responsibility when presented with confidential information from an opposing party when the disclosure was inadvertently made.1 Lawyers, their staff members and clients occasionally send confidential information to opposing counsel by mistake. In light of the rapid changes in technology for both lawyers and clients alike, and the

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frequency with which this issue arises, the Committee takes this opportunity to revisit the lawyer’s essential duty upon receipt of inadvertently disclosed confidential materials. In earlier times, these mistakes typically occurred when a fax was sent to the wrong phone number, or an address label was switched on an envelope. With the proliferation of email, text messages, social media, cloud computing and electronically stored information (“ESI”), the potential for misdirection of confidential information has increased exponentially. Litigation cases now regularly involve thousands, and sometimes millions of client documents which need to be collected and reviewed for privilege and potential production. The sheer volume of information and documents can make even routine discovery a daunting task. As a result, the incidence of inadvertent disclosure is increasing. 1 The receipt of confidential information generally falls into three categories: 1) the inadvertent disclosure scenario; 2) the intentional disclosure by one with authority (i.e., a willing party); and 3) the intentional but unauthorized disclosure by a party’s agent. This opinion addresses inadvertent disclosure only. Ethics Opinion No. 2019-** addresses intentional disclosure by one with authority, while Ethics Opinion No. 2019-** addresses the intentional but unauthorized disclosure by a party’s agent. Page 2 of 4 Summary of Opinion The lawyer who receives 2 confidential information in an inadvertent disclosure3 must promptly notify the opposing party’s lawyer. The lawyer should either follow the instructions of the adversary’s lawyer, or refrain from using the materials until a definitive resolution is obtained from a court. Additional obligations may also be imposed by law. DISCUSSION Rule 4.4(b) addresses the ethical obligations of the lawyer who receives a document or ESI that was inadvertently sent. A lawyer who receives a writing or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the writing or electronically stored information was inadvertently sent shall promptly notify the sender.4 The rule recognizes that lawyers occasionally receive information that was mistakenly sent or produced by opposing parties or their lawyers. Further, the comment makes clear the purpose of providing notice to the opposing lawyer is to permit the person to take protective measures. The comment goes on to note that whether the receiving lawyer must take additional steps, including return of the writing or electronic information are matters of substantive law beyond the 2 This opinion addresses the ethical issues for the receiving lawyer. The obligations of all lawyers to maintain the confidences and secrets of their clients are addressed in ARPC 1.6. 3 All lawyers have a duty to maintain competence, including a basic understanding of the benefits and risks associated with relevant technology. See ARPC 1.1 Comment (Maintaining Competence). A number of state Bar Associations have issued Ethics opinions requiring lawyers to keep current on changing technology. See, e.g., Fla. Ethics Op. 10-2 (2010) (lawyer must keep current with developments in technology to protect confidential information stored on electronic devices); NY State Ethics Op. 842 (2010) (lawyer has duty to keep up with advances in technology used in law practice.) 4 ARPC 4.4(b). Page 3 of 4 scope of the rules of ethics.5 It also notes that some lawyers may choose to return a writing or delete electronically stored information unread. The decision to make voluntary return or deletion is a matter typically left to the professional judgment of the receiving lawyer. As a matter of professional courtesy, and to avoid unnecessary disputes, it may be advisable before using any such documents to obtain a definitive ruling from the court regarding whether the documents must be returned or deleted. Alaska’s rule is sometimes referred to as a “stop and notify” rule. Other states go farther and require the receiving lawyer to affirmatively set aside the material and take no further action on the documents, including reading them, in order to preserve the status quo.6 For example, the New Jersey rule provides: “[a]

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lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender.”7 In Alaska Bar Association Ethics Opinion 97-1 8 , the Committee distinguished the mistaken or inadvertent disclosure of confidential information from other situations. The discussion regarding inadvertently disclosed information in Ethics Opinion 97-1 was based, in part upon ABA Formal Opinion 92-368, which was later withdrawn due to the amendment of Model Rule 4.4. In the Committee’s view, the provisions of Rule 4.4(b) and its commentary control the obligations of the lawyer who receives any information from an opposing party or lawyer that appears to have been inadvertently disclosed. If 5 Lawyers practicing in Federal Court will note that Federal Rule of Civil Procedure 26(b)(5) now contains a specific “claw back” provision relating to production, presumably inadvertent, of privileged material. 6 See generally James M. Altman, Model Rule 4.4(b) Should Be Amended, 21 Prof. Law., no. 1, at 16 n.7 (2011) (noting that nine jurisdictions prohibit the receiving lawyer from reading further after realizing the document is confidential). 7 New Jersey RPC 4.4(b) (2004). 8 Ethics Opinion 97-1 was adopted before the addition of Rule 4.4(b). Page 4 of 4 the receiving lawyer knows, or has reason to know, the material was sent inadvertently, the lawyer must notify the opposing lawyer. The lawyer should also carefully review any legal requirements that may be imposed by other law. Finally, the lawyer may consider further voluntary action consistent with the lawyer’s professional judgment under Rules 1.2 and 1.4. Approved by Alaska Bar Association Ethics Committee on January 23, 2019. Adopted by the Board of Governors on January 31, 2019.

ALASKA BAR ASSOCIATION ETHICS OPINION NO. 2019-3 A LAWYER’S DUTY UPON RECEIPT of CONFIDENTIAL INFORMATION – Intentional Disclosure

The Committee has been asked to revisit Ethics Opinion 97-1, addressing a lawyer’s obligation upon receipt of intentionally disclosed confidential information, in light of subsequent formal opinions issued by the American Bar Association. The receipt1 of confidential information generally falls into three categories: 1) the inadvertent disclosure scenario; 2) the intentional disclosure by one with authority (i.e., a willing party); and 3) the intentional but unauthorized disclosure by a party’s agent. This opinion addresses the “willing party” scenario only.2 Summary of Opinion The lawyer who receives confidential information in an intentional and authorized disclosure is not required to notify the opposing party’s lawyer.3 1 This opinion addresses the ethical issues for the receiving lawyer. The obligations of all lawyers to maintain the confidences and secrets of their clients are addressed in ARPC 1.6 2 Ethics Opinion No. 2019-** addresses Inadvertent Disclosure by opposing counsel or a party, while Ethics Opinion No. 2019- ** addresses the intentional but unauthorized disclosure by a party’s agent. 3 The lawyer who receives confidential information in an intentional, but unauthorized disclosure must promptly notify the opposing party. Further, the receiving lawyer may find it appropriate either to follow the instructions of the adversary’s lawyer, or to refrain from using the materials until a definitive resolution is obtained from a court. Additional obligations may also be imposed by law. See Ethics Opinion 2019-** addressing intentional disclosure by an unauthorized agent. Page 2 of 4 DISCUSSION The Committee has previously addressed the situation in which a lawyer obtained confidential

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information belonging to an opposing party from a person authorized to make the disclosure. In Ethics Opinion 97-1, the Committee was asked whether a lawyer has an obligation to notify his or her opponent upon receipt of confidential information directly from an adverse party. In the first instance, the Committee noted the lawyer had merely received a copy of a confidential communication, which he neither invited nor anticipated. Because the communication came directly and intentionally from the party, who had authority to make the disclosure, the Committee determined the receiving lawyer had no obligation to disclose receipt of the material to his or her opponent.4 Since our opinion in Ethics Opinion 97-1, the American Bar Association (ABA) has adopted two formal opinions which support the Committee’s position in 97-1. In ABA Formal Opinion 06-440, the American Bar Association determined that materials sent intentionally are not the subject of Rule 4.4(b). If the materials were not “inadvertently sent” then the receiving lawyer is not ethically obligated to notify the sender’s lawyer or return the materials.5 Similarly, ABA Formal Opinion 11-460 addressed the duty of a lawyer when receiving copies of a third-party’s email communications with counsel. In that case, an employer’s lawyer received copies of an employee’s private emails with counsel, which the employer had located on the employee’s workplace computer. The ABA determined that Rule 4.4(b) did not apply because the emails were not “inadvertently sent.” Instead, they were obtained from a public or private place where they were stored. The opinion notes that some courts have implied a notification requirement upon the receiving lawyer, but the ABA interpreted the rule more strictly. Consequently, the ABA opinion expressly 4 Ethics Opinion 97-1 at p 2. 5 The ABA cautions that a lawyer may still be required to take action under court rules or other law. See ABA Formal Opinion 06-440 at p 2. Page 3 of 4 declined to interpret Rule 4.4(b) as requiring notice to opposing counsel except in the situation it expressly addresses (inadvertent disclosure).6 Still, the ABA Formal Opinion and other courts have noted general unease with the absence of clear guidance in Rule 4.4(b) as to how to proceed with the intentionally disclosed confidential or privileged information Potential pitfalls await the receiving lawyer who seeks to make strategic use of an opponent’s confidential communications.7 The receiving lawyer who choses to sit quietly with an opponent’s confidential information in hand and does nothing may risk disqualification.8 The Committee adheres to Ethics Opinion 97-1 and believes that a lawyer who receives the intentional disclosure of confidential information by one authorized to do so does not violate Rule 4.4(b) if he or she holds the documents without notifying opposing counsel, so long as the receiving lawyer knows or reasonably believes the sender was authorized to do so.9 In all situations involving receipt of confidential documents of an opposing party, the receiving lawyer would do well to remember that ethical issues should be “resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules. These principles include the 6 ABA Formal Opinion 11-460 at p. 2. 7 Some courts still rely upon the old ABA opinion framework and retain a notification requirement. See, e.g., In Re Meador, 968 S.W.2d 346, 350 (Tex. 1998) (noting failing to comply with ABA opinion 94-382 may require disqualification of counsel). Other courts have adopted notification requirements based on analogy to Rule 4.4(b). See, e.g., Merits Incentives, LLC v. Eighth Judicial District Court of Nevada, No. 56313, Slip. Op. at 11 (Nev. Oct. 6, 2011) (adopting a notification requirement based on analogy to Rule 4.4(b) for a lawyer receiving documents from an anonymous source). 8 See Gifford v. Target Corp., 2010 US Dist. LEXIS 70293 (D. Minn. July 13, 2010); Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001). 9 As the Committee noted in its concluding comment in Ethics Opinion 97-1: “Ordinarily, it may be a good practice, as a matter of “professional courtesy,” to

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inform the sending party’s counsel of the receipt of the material. This will increase candor and trust between counsel and forestall allegations of wrongdoing.” This admonition is just as applicable today. Page 4 of 4 lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”10 Approved by Alaska Bar Association on January