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On June 29, 2011, the ABA Commission on Ethics 20/20 released a number of proposed amendments to the Model Rules of Professional Conduct. The area of technology received significant attention in two areas: “Lawyers’ Use of Technology and Client Development” and “Lawyers’ Use of Technology and Confidentiality”. The Commission had concluded in its initial report “that no new restrictions are necessary in this area, but that lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values.”
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Presented by Cynthia Sharp• Professional CLE Speaker• Attorney Business Coach
Event Sponsor:
Featuring
Cynthia SharpThe Sharper Lawyer
TECHNICAL REVOLUTION/ETHICAL EVOLUTION
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March 17, 2014
@thesharperlawyer
Preliminary Thoughts
•I would be really happy if we could cover the
following:
•I decided to attend “Social Media” because:
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Wake Up To Social Media!
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Attorneys Using Social Media
15%
43%56%
Quadrupled in 2 years!
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Attorneys Using Social Media
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Legal Tech Survey Report
Attorneys Obtaining Clients Through Social Media
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Legal Tech Survey Report
The Cultureist
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•2,405,518,376 Worldwide Internet Users
•78.6% North Americans on Internet
•Over 1 billion Social Network Users
@thesharperlawyer
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Facebook Friends
Cynthia Sharp
Bruce Steiner Ron Fatoullah
@thesharperlawyer
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Facebook Friends
Cynthia Sharp
Bruce Steiner Ron Fatoullah
@thesharperlawyer
Facts About
•100% of Fortune 500 Companies Have Executives on Linkedin
•238 Million Members
•Every Second - 2 New Member Joins
•100% of Fortune 500 Companies Have Executives on Linkedin
•238 Million Members
•Every Second - 2 New Member Joins
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@thesharperlawyer
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1.6 billion search queries
500 million tweets
@thesharperlawyer
Social MediaPractical Applications
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• Marketing
• Practice Area
• Develop Internal Social Media Policy
• Compliance Procedures
• Criminal Defense
• Civil Litigation
• Litigation/Research Tool
• Marketing
• Practice Area
• Develop Internal Social Media Policy
• Compliance Procedures
• Criminal Defense
• Civil Litigation
• Litigation/Research Tool
@thesharperlawyer
Social Media
•New Case Law
•Interesting Ethical Issues
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@thesharperlawyer
Digital Immigrant orDigital Native?
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@thesharperlawyer
Social Media as a Marketing Tool
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STRATEGY
BRAND
PROFILE
EXECUTION
@thesharperlawyer
Information About Legal Services• Protected Form of Commercial
Speech
• Subject to Rules 7.1 - 7.5
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@thesharperlawyer
Information About Legal Services
• Rule 7.1 - Communication Concerning a Lawyer's ServicesRule 7.2 - AdvertisingRule 7.3 - Direct Contact with Prospective ClientsRule 7.4 - Communication of Fields of Practice and SpecializationRule 7.5 - Firm Names and Letterheads
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American Bar AssociationFormal Opinion 10-457
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Free Commercial Speech or Regulated Attorney
Advertising
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@thesharperlawyer
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• Endorsement Feature
• “Specialties” Field
• “Answers” Section
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@thesharperlawyer
Use Common Sense!
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@thesharperlawyer
Jennifer Ellis @JLE_JD Mar 4 My answer to What are the legal restrictions in compiling a database mined of public social network profiles? http://qr.ae/t3OpR
Research Tool
Write down 3 ways that you use the internet to
research
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Citation Forms Developed
Rittman, S. (Spring 2008). Don’t Use the “R” Word. Retrieved on January 25, 2011 from www.mo-legal-ethics.org
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Litigation Tool
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@thesharperlawyer
Mining Information•Vetting Jurors
•Pretexting (“Friending”)
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@thesharperlawyer
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@thesharperlawyer
Internet Research by Jurors
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@thesharperlawyer
Discovery•Warn clients not to discuss their case
online
•Standard Applied: Reasonably calculated to
lead to discovery of admissible evidence
•Notice to produce
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Technical Revolution - Ethical Evolution
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@thesharperlawyer
Confidentiality Notice
This electronic transmission and any attached documents or
other writings are confidential and are for the sole use of the
intended recipient(s) identified above. This message may
contain information that is privileged, confidential or
otherwise protected from disclosure under applicable law. If
the receiver of this information is not the intended recipient,
or the employee, or agent responsible for delivering the
information to the intended recipient, you are hereby notified
that any use, reading, dissemination, distribution, copying or
storage of this information is strictly prohibited. If you have
received this information in error, please notify the sender by
return email and delete the electronic transmission,
including all attachments from your system.
This electronic transmission and any attached documents or
other writings are confidential and are for the sole use of the
intended recipient(s) identified above. This message may
contain information that is privileged, confidential or
otherwise protected from disclosure under applicable law. If
the receiver of this information is not the intended recipient,
or the employee, or agent responsible for delivering the
information to the intended recipient, you are hereby notified
that any use, reading, dissemination, distribution, copying or
storage of this information is strictly prohibited. If you have
received this information in error, please notify the sender by
return email and delete the electronic transmission,
including all attachments from your system.
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@thesharperlawyer
Ethical Evolution
•Terminology•Competence•Confidentiality•Communication•Duties to Prospective
Clients•Receipt of Erroneously
Sent Document•Supervision of
NonLawyer Assistants•Advertising
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@thesharperlawyer
TerminologyMRPC 1.0 Terminology
(o) Writing or Written
Comment 9 to MRPC 1.0 {Screening}
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“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
- Comment 6 to MRPC 1.1 (as amended)
Competence
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@thesharperlawyer
Redaction Issues
Long gone are the days when the attorney duty of confidentiality imposed by Model Rule 1.6 was satisfied by maintaining a fireproof steel locked filing cabinet behind a secured office door. The technological revolution has taken us beyond the world of desktop computers with a dedicated server to the stratosphere of cloud computing and the genius of smartphones and electronic tablets.The portability of our “second brain” results in additional ethical responsibilities that must not be ignored. Lawyers’ obligations have radically changed in light of the methods by which confidential client and personal information is now carried and stored.
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Data Disaster
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Duty of Confidentiality
MRPC 1.6
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Communication“... A lawyer should promptly respond to or acknowledge client communications.”
- Comment [4] of MRPC 1.4 (as amended)
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@thesharperlawyer
Duties to Prospective Clients
“...[a] person becomes a prospective client by consulting with a lawyer about a client-lawyer relationship with respect to a matter”.
- Comment 2 to MRPC 1.18 (as amended)
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@thesharperlawyer
Does a Communication Constitute a Consultation?
•Did the lawyer encourage or solicit inquiries about a proposed representation?
•Did the person encounter any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations? Were those warnings or cautionary statements clear and reasonably understandable?Did the lawyer act or communicate in a manner that was contrary to the warnings or cautionary statements?
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Receipt of Erroneously Sent Documents
Lawyer receiving electronically stored information that he or she knows or reasonably should know was sent inadvertently must promptly notify the sender of the mistake (Model Rule 4.4(b))
Duty to notify extends to metadata. (Comment 2)
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RecommendedMetadata Scrubbers
Metadata Assistant: http://www.payneconsulting.com/products/metadataretail/
iScrub: http://esqinc.com/section/products/2/iscrub.html
Workshare Protect: http://www.workshare.com/products/wsprotect/
Metadact: http://www.litera.com/Products/Metadact%AE.aspx
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@thesharperlawyer
Do You Secure PDF Files Before You Transmit?
Suggested Office Policy: “When there is no legitimate reason to transmit an editable document, we will always send SECURE PDFs.”
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@thesharperlawyer
You Cannot Delegate Ethical
ResponsibilitiesModel Rule 5.3 requires attorneys who
outsource work to non-attorneys to “make
reasonable efforts to ensure that the non-
lawyers’ services are provided in a
manner that is compatible with the
lawyer’s professional obligations”.
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@thesharperlawyer
Attorney Advertising RulesLawyers may pay Internet-based lead generators for generating client leads, as long as the lead generator does not “recommend” the lawyer. (MRPC 7.2, Comment 5)
Only a “target communication initiated by the lawyer” directed to a “specific person” that “offers to provide” legal services is a solicitation. Communications to the general public, including Internet banners, are not solicitations. (MRPC 7.3)
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@thesharperlawyer
“A lawyer shall act with reasonable diligence and promptness in representing a client.”
Comment 2 - “A lawyer's work load must be controlled so that each matter can be handled competently.”
Rule
1.3
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Diligence
@thesharperlawyer
Law Firm Social Media Policy
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@thesharperlawyer
Online or In Line•Keep client confidences
•Avoid appearance of establishing
client-attorney relationship
•Be polite
•Don’t fight
•Don’t bad mouth law firm, colleagues
or judges.
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@thesharperlawyer
Moving Forward•Did you learn anything new today?
•Did you gain any insight into yourself or
someone else?
•Do you plan to change any of your behaviors
as a result of today’s session?
@thesharperlawyer
Evaluations
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@thesharperlawyer
Connect with Cindy
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The Sharper Lawyer
connect with us
@thesharperlawyer
The Sharper Lawyer now offers
a complimentary half hour coaching session.
Email Cindy for more details!
@thesharperlawyer
Thank You
The Sharper Lawyerwww.thesharperlawyer.com
