Social Media and Internet

Four quick takes on social media pratfalls by judges, lawyers and others — just from the last few weeks.  Don’t let these happen to you!

  • A Kentucky state court judge posted a comment on a pending murder case on her “official” Facebook page:  “This murder suspect was RELEASED FROM JAIL just hours after killing a man and confessing to police.”  The judge agreed to a public reprimand, for violating judicial ethics rules, including refraining from public comments that could affect the outcome of pending cases.
  • Another judge was sued last month in federal district court because he allegedly scrutinized his secretary’s Facebook posts, called her into his office to express his disapproval of her politics-related posts, and eventually fired her two weeks after she posted criticism of President Trump’s immigration policies, and those of some Texas politicians.  The secretary had worked for the court for 14 years.
  • You’ve undoubtedly seen the rant of a New York City lawyer against Spanish-speaking staff in a restaurant.  His profanity-laced tirade was captured on a cell-phone (of course), and went viral.  His apology on Twitter was called “too little, too late” by a United States congress member, who filed a formal complaint with the attorney discipline system, as reported by the ABA Journal.  According to CNN, he was kicked out of his office space, too.
  • Last, a grand juror is awaiting sentencing after pleading guilty to sending a Facebook message disclosing a Florida federal grand jury indictment to the girlfriend of the man charged.  Grand jury proceedings are secret; the grand juror warned the girlfriend that the man had been set up by a snitch, and later sent her photos of the indictment.

Facebook and LinkedIn and Twitter (oh my)

Social media is great — we are bombarded with messages about the benefits for us as lawyers in credentialing and marketing ourselves (love to blog!) and educating the public on legal issues.  And lots of lawyers and judges use it successfully.  The downside, of course, is that it’s so easy to use these tools, that we can get careless and make missteps.  And when we do, social media is also there to show our gaffe to (potentially) millions.

Interestingly, there are lots of stories about Facebook follies — but anecdotally, it would seem that fewer lawyers use it for professional purposes than LinkedIn, for instance.  A recent ABA Journal “question of the week” asked if lawyers planned to de-activate their Facebook accounts in light of the flap over FB’s disclosure of information to Cambridge Analytica, a data-mining company.  While not a scientific poll, the responses seemed to show that respondents weren’t very much into using FB professionally anyway.

The ABA’s 2017 Legal Technology Report suggests a similar conclusion.  Less than 40% of firms (of all sizes) reported having Facebook accounts.  (In contrast, 75% of respondents said they had an individual LinkedIn profile.)

Of course, the watchword here is to be sensible and cautious.  Speed kills:  slow down, and think before you click.  Don’t do anything on social media you wouldn’t want millions to see — because they might.  And of course, check your local rules and ethics opinions.  By now, there is lots of such guidance about friending judges, social media as advertising, pretexting to gather data on opposing parties, not disclosing client information and other issues.

We’ve written before about the breadth of the duty of confidentiality we owe to our clients, and how it even extends to matters that you think are safe to discuss because they are of “public record.”   (See here and here.)  Now comes the ABA’s latest on the subject of lawyer “public commentary” — Formal Opinion 480 (Mar. 6, 2018).  And it prompts us to be wary of a couple pitfalls when it comes to what we say about clients in online articles, on twitter, at webinars, in podcasts and through traditional print publications — all of which the opinion refers to as “public commentary.”

Duty “extends generally”

All such public commentary, the ABA reminds us, whether on-line or not, must comply with the relevant jurisdiction’s version of Model Rule 1.6.  The rule requires us to maintain the confidentiality of all information relating to the representation of a client, unless that client has given informed consent to the disclosure, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by a specific exception in Rule 1.6(b).

The confidentiality rule, as is frequently said, is much broader than the attorney-client privilege, and includes all information relating to the representation, whatever its source.  Even the identity of the client is usually deemed to be confidential information, the ABA ethics committee notes in this newest, foot-note-heavy opinion.  And, adds the committee, it’s highly unlikely that a disclosure exception (except for consent) would apply when a lawyer engages in this sort of public commentary.

Don’t hype the hypo

That brings us to “hypotheticals.”  We all use them — from law profs in class, to lawyers seeking informal practical advice from colleagues at other firms, to gurus of various stripes who use real-life examples at legal CLE seminars.  But, says the ABA committee, beware:  “A violation of Rule 1.6(a) is not avoided by describing public commentary as a ‘hypothetical,’ if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts.”

For example, in a widely-reported case mentioned in the ABA opinion, an Illinois lawyer got a 60-day suspension in her home jurisdiction for violating  Rule 1.6, when she blogged about her criminal defense clients using either their first names, a derivation of their first names, or their jail ID number.  Reciprocal discipline was imposed in Wisconsin.

In light of the ABA opinion, you’re going to want to make sure that any real-life client situations you describe in  public commentary is so thoroughly disguised that no one can tell that it’s real.  If you’re using social media to educate and engage, there’s arguable benefit in discussing actual situations in a hypothetical way, while being sure to scrub the real facts out.  But as we’ve said before, if you’re just making cocktail party chit-chat, why even go there?  It’s not worth the risk of divulging confidential client information.

Trial publicity statements

The ABA opinion also briefly notes the constraints that Model Rule 3.5 puts on using public commentary to influence the court of public opinion.  The rule prohibits a lawyer from seeking to influence a judge, juror, prospective juror, or other official by means prohibited by law, and cites the case of a Louisiana lawyer disbarred for, among other things, using an internet petition campaign to contest the rulings of a judge presiding over a custody dispute involving her client.  That kind of conduct can also obviously lead to trouble.

All in all, the new opinion is a straightforward application of Rule 1.6 to this age of public commentary; but it is a good wake-up call for those who need one.

The ABA is proposing changes to the Model Rules on lawyer advertising, modestly streamlining them and trying to re-establish their relevance to the way lawyers and clients interact in the digital age.  The proposed amendments and their supporting memo fail to make any express adjustment for the elephant in the room — on-line referral services like Avvo, and especially whether engaging with them involves lawyers in paying impermissible referral fees, as some recent state ethics opinions have found.

Rundown on proposed rule changes

First, an overview.  The ABA’s effort is in response to a three-year study and package of recommendations from the Association of Professional Responsibility Lawyers (which we’ve previously mentioned here).  The ABA adopted many of APRL’s recommendations.

The ABA’s memo supporting the rule changes acknowledges that “the patchwork of inconsistent state attorney advertising rules is a prime example of a system that ‘fails to make sense’ in the current climate of social media, technology, and global lawyering.”  In other words, as APRL urged, the current Model Rules are at risk of becoming irrelevant.  The ABA noted that the people who complain about lawyer advertising are predominantly other lawyers, not consumers; and few states actively monitor lawyer advertising.

The ABA’s approach, emphasizing consolidation and re-arrangement, differs from APRL’s, which had recommended slimming down the ad rules to just two, effectively excising three others.  As we’ve reported, Virginia’s revamped rules, effective this past July, take that approach.  The ABA’s proposal, in contrast, eliminates only current Rule 7.5 on firm names and letterhead (now there’s an anachronism); and it simply redistributes most of that rule’s content to the comments of other rules.

While there’s no radical surgery, the ABA proposal has some potentially helpful changes and clarifications.  Highlights:

  • “Solicitation” would be defined in a new subsection of Rule 1.0, “Terminology,” and would mean offering to provide legal services to a specific person in a particular matter.  Soliciting by “live person-to-person contact” (Skype and Facetime are specifically mentioned) would be generally prohibited — but exceptions would include if the lawyer knows the person is “an experienced user of the type of legal services involved for business matters.”  That’s potentially a big deal for business lawyers, whose potential clients would often meet that definition.  And texts, e-mail and “other written communications that recipients may easily disregard” are also excluded from the definition of live solicitation.
  • Putting a “Lawyer Advertising” disclaimer on targeted solicitations would be a thing of the past, causing gladness at firm marketing departments.  The ABA concluded “after much discussion” that such a disclaimer is no longer necessary because consumers have become used to receiving advertising material (!) and most “will not feel any compulsion to view the materials solely because they were sent by a lawyer of law firm.”
  • A new provision would permit nominal client gifts (at holidays, for instance), and clarifies that they are not barred as things of value in exchange for recommending the lawyer’s services to others.
  • It would no longer be necessary to include an “office address” on marketing communications, but only “contact information” of a responsible firm or lawyer.  The proposed change resolves an ambiguity that has created confusion, and is in line with modern day legal practice (including virtual offices), and the way that real-life ads now look.
  • The ability to claim to be a “specialist” in a practice area would be eased.  Implying that you are certified as a specialist in a particular area continues to be restricted to those certified by approved organizations.  But saying that you “specialize in” a particular field would be permitted “based on the lawyer’s experience, specialized training or education,” as long as the statement were not false or misleading.

Small change to referral fee comment

Now back to that elephant.  Recent ethics opinions — for instance, from New York and New Jersey — have specified that Avvo’s business model (and similar ones) violate state versions of Model Rule 7.2(b), which prohibits giving anything of value to a person for recommending the lawyer’s services (except for paying charges of non-profit and bar-association-approved agencies).

Under that provision, operations that are similar to Avvo Advisor and Avvo Legal Services have been found particularly problematic by state ethics boards.  As described in a recent Indiana Lawyer article, Avvo Advisor connects online consumers with a lawyer for a 15-minute consultation for $39.  Avvo forwards the fee to the lawyer and then collects a $10 marketing fee from the lawyer.  Avvo Legal Services provides fixed-fee document review, and services such as business formation or family law matters.  Avvo bills $149 to $595 for services, which is paid to the lawyer doing the work, and collects a marketing fee from the lawyer ranging from $40-$150.

The ABA proposal does not include any change to Rule 7.2(b).  It does add a section to the relevant comment, saying that “directory listings and advertisements that list lawyers by practice area, without more, do not constitute impermissible ‘recommendations.'”  That may be a small nod to Avvo, which in the past has suggested that at least in part, it merely functions as an on-line lawyer directory.

But the ABA’s small proposed change to the comment would not appear to touch on Avvo’s business of charging lawyers for obtaining referrals from Avvo, or similar business models.

Of course, the referral-fee issue is not the only ethics rule that state ethics opinions have cited when it comes to Avvo and similar on-line organizations.  As we’ve previously noted, in addition to the advertising rule on referral fees, other rules flagged include state versions of Model Rules 5.4 (independent judgment, fee-splitting); 5.5 (unauthorized practice of law); 1.15 (comingling lawyer and client funds); 1.16 (duty to refund unearned fees at end of representation); 1.5 (contingent fees); and 1.6 (confidentiality).

What comes next?

The ABA will host a public forum on the proposed amendments at its mid-year meeting in Vancouver on February 2.  Written comments on the proposed amendments are invited; the submission deadline is March 1.  The ABA Ethics Committee aims to submit a resolution and report on amending the advertising rules at the association’s August 2018 meeting.

Stay tuned for further developments.

Greetings 2018!  Time for some ethics trend predictions to kick off the Year of the Dog (according to the Chinese zodiac).  Let it be a year in which you doggedly pursue ethical practice (ouch).  No more bad puns — here’s what’s hot as we begin the year:

Law firm cyber-security

No surprise here that the top trend is data security.  It’s one of the “chief concerns” of GC’s, and for good reason:  It’s not if, but when, a firm is going to experience a cyber-attack.  The latest ABA report says that 22 percent of law firms of all sizes were hit with a data breach in 2017, up from 14 percent in 2016; several of the biggest firms experienced attacks and various kinds of disruption in the past couple years.  But small and medium-size firms are just as vulnerable, say the data.  Of course, lawyers have an ethical duty under Model Rule 1.6(c) to take reasonable steps to safeguard the confidentiality of client data.  Ethics rules also require lawyers to have the technological competence to recognize and address the problem.  (See comment [8] to Rule 1.1.)  Trending:  More clients are insisting that firms establish data security policies and procedures.

The “Uber” effect – on-line service providers and other tech disruptors

Just as Uber disrupted an entire market segment with its ride-hailing model, on-line businesses like Avvo and LegalZoom have taken aim at legal services and how they are marketed.  But these on-line types of business raise legal ethics issues, including fee-splitting, handling client funds and professional independence.  (Excellent summary is here.)  Some innovative models, like the traffic-ticket-fighting site TIKD, are under fire for potential antitrust violations and the unauthorized practice of law.  And will consumers soon be taking their legal problems to chatbots?  Will legal teams soon be using artificial intelligence to analyze complaints and generate document drafts?  Trending:  State ethics regulators have come down against Avvo-like platforms, but they are still thriving.  How will the legal industry adapt?  (Hint:  Watch the progress of the ABA’s consideration of a revamp of the Model Rules on lawyer marketing and advertising, aimed at “bringing them into the 21st century” and reported here, in the Professional Responsibility Blog.)

Gender bias and sexual harassment in the profession

The ABA adopted Model Rule 8.4(g) in 2016, barring lawyers from engaging in harassing or discriminatory conduct; states are now considering whether to adopt the rule into their own lawyer conduct codes.  (Box score as of 8/1/17:  1 aye, 1 nay, many studying; and some commentators raise First Amendment concerns.)  But 40 percent of women in the profession report that they have been subjected to harassment and discrimination; and there have been several high-profile discrimination and pay-equity claims against prominent national firms and individuals.  The judiciary has been hit as well, with a prominent federal judge apologizing and retiring abruptly after sexual harassment allegations; and 695 law professors and former clerks are now petitioning Chief Justice John Roberts, seeking revision of judicial employee guides and support for reporting misconduct.  Trending:  Women in the profession are adding their voices to #metoo.

Lawyer health and wellness — mental and physical

Finally, we’d be remiss, in our first post of 2018, if we didn’t mention the personal aspect of lawyering:  keeping yourself safe and sane.  As a profession, more of us fight alcoholism, substance abuse, depression and anxiety than the general population, and those trends start developing in law school.  The statistics are alarming.  Trending:  a hopeful resolve, via a new, comprehensive ABA report, to come to grips with these systemic issues.  If you made a New Year’s resolution to stop drinking or drugging, or to address mental health issues that are affecting your legal practice, every state has a lawyer assistance organization to help you.  We’ve linked to the ABA’s state-by-state listing before; but here it is again.  If it helps one person, there’s no such thing as posting it too often.

Happy New Year.

 

The Third District Florida court of appeals got some press this summer when it affirmed an order refusing to disqualify a judge who was Facebook friends with one of the lawyers in a case before her.  The court wrote that “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word,” and therefore being “friends” was not disqualifying, “without more”  — namely a well-grounded fear of partiality.

Now, the law firm on the losing end of that case has asked the Florida Supreme Court to accept an appeal, citing a split on the issue among Florida state appellate courts.

Cases and ethics opinions — some not very friendly

Some of the cases and ethics opinions on Facebook friendships between judges and lawyers have been friendly to the concept, in a qualified way — that is, when there is no other factor that would suggest impropriety or possible lack of impartiality on the part of the judge.

For instance, the professional conduct board in my home state of Ohio advised in a 2010 opinion that nothing in the state’s judicial code bars a judge from being friends – online or offline – with lawyers, even those who appear before the judge.  However, the board said, a judge should disqualify himself or herself when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party.  New York has a similar judicial ethics opinion.

Somewhat similarly, in Youkers v. Texas, the state criminal appeals court ruled in 2013 that a Facebook friendship between the victim’s father and the presiding trial judge was insufficient to show bias as a basis for recusal.

But ethics opinions in some other jurisdictions are more restrictive, and bar a judge from being Facebook friends with lawyers who are currently appearing before them (California) or even may appear before them (Massachusetts).

Florida split

In Florida, the lower courts of appeal have split.  The Third District court of appeals, located in Miami, issued the ruling that is the subject of the state supreme court petition.  In its opinion, it acknowledged that its ruling, declining to disqualify on the basis of a Facebook friendship between the judge and the lawyer for one of the parties, was at odds with a 2012 decision of the Fourth District.  The court there ruled that Facebook friendships between judges and lawyers violated the canons of judicial ethics and created the appearance of impropriety.

The Third District’s opinion agreed with a 2014 decision of the Fifth District, which noted (in dicta) that without more, being Facebook friends “does not necessarily signify the existence of a close relationship.”  (The Fifth District case involved a party, not a lawyer, and affirmed disqualification of the judge where he tried to initiate a FB friendship while the domestic relations case was ongoing).

 True friends

According to the Hebrew Bible, King Solomon said, “Love a friend at all times.” (Pr. 17:17.)   That may or may not be good advice when it comes to judges and their Facebook friends.  In any event, this is an area where continuing ethics developments bear watching, including in the Sunshine State.

Just last month, we wrote about a North Carolina draft proposal that would ease the way via its ethics rules for Avvo and other on-line legal services to operate there.  Now, after a joint opinion from three New Jersey Supreme Court committees, the Garden State has turned thumbs down on such law platforms, citing issues including improper fee-sharing and referral fees.

Nix on Avvo, LegalZoom, Rocket Lawyer

The joint opinion bans participation in Avvo’s programs because of the “marketing fees” it collect from lawyers in exchange for participating in two of its offerings:  “Avvo Advisor,” in which clients talk to lawyers for 15 minutes for $40, with Avvo keeping $10; and “Avvo Legal Services,” where clients pay a flat fee to Avvo for access to affiliated lawyers, and then Avvo pays the lawyer net of its own fee.

The committees found that this arrangement violates New Jersey’s version of Model Rule 5.4(a), barring fee-splitting with non-lawyers, and it mattered not that Avvo called its cut a “marketing fee”:  irrespective of its label, said the committees, “lawyers pay a portion of the legal fee earned to a nonlawyer; this is impermissible fee sharing.”  In addition, said the committees, these payments signal a “lawyer referral service,” and payment of an “impermissible referral fee” under New Jersey’s Rules 7.2(c) and 7.3(d).

Icing the cake, the committees also raised a trust account issue, saying that Avvo’s practice of holding the lawyer’s fee until the conclusion of the matter violates the attorney’s duty to maintain a registered trust account and to hold client funds in it until the work is completed.

Avvo wasn’t the only on-line platform tagged — Rocket Lawyer and LegalZoom also were placed off-limits to New Jersey lawyers, but for a different reason.  While they do not require payment from lawyers to participate, and do not share the clients’ monthly subscription fees with lawyers, Rocket Lawyer and LegalZoom are “legal service plans” that have not been registered with or approved by the New Jersey Supreme Court, said the committees.  That places them outside the pale, even while not violating the fee-sharing prohibition.

A notice to the bar from the supreme court’s administrative office accompanied the joint opinion, listing the 46 state-approved legal service plans, including those offered through unions and government agencies.

What next?

As we’ve noted, the ABA’s Futures Commission sees the continuing onslaught of on-line platforms as something that is here to stay.  Nonetheless, this New Jersey ethics opinion joins other cautionary or negative ones issued by regulators in Ohio, Pennsylvania and South Carolina.  Against that backdrop, North Carolina’s recent consideration of rule changes may appear to be the outlier (although an Oregon state bar association task force also recently recommended ethics rule amendments that would be friendly to on-line service legal platforms).

Avvo responded to the New Jersey opinion, telling the New Jersey Law Journal that it is “attempting to address the pressing need for greater consumer access to justice, and we will continue to do so despite this advisory opinion.”

Will market pressure become a tsunami that will eventually sweep legal ethics considerations away?  It may take awhile to tell, but until then, look for more ethics opinions to come out with differing views, potentially creating a patchwork of inconsistent state approaches.  We’ll be watching with great interest.

Businessman stopping traffic at roadblockI love LinkedIn, but here’s a potential hazard — what you say there can and will be used against you if you’re engaged in the unauthorized practice of law.

A Colorado lawyer found that out the hard way:  he was suspended in Pennsylvania for a year, and got the same discipline in Colorado, where he was licensed.  (Actually, the suspensions were for a year-and-a-day, a punishment term that is loosely associated with ancient English common-law.  Now you know.)

LinkedIn holding-out

The only place the lawyer was licensed was Colorado.  Nonetheless, according to the Pennsylvania disciplinary board’s report and recommendation, he maintained an office in the Keystone State, and registered that address with the Colorado Supreme Court.

He also held himself out to the public as being admitted to practice in Pennsylvania — namely in his LinkedIn profile, which mentioned his “Pennsylvania law firm,” and the Pennsylvania client entities he claimed to have represented.  The profile also falsely stated that the lawyer had been licensed since 2006 to practice in Pennsylvania and also California.

That was a serious problem — in Pennsylvania, as in most states, holding yourself out as authorized to practice when you are not is an independent instance of misconduct (see Model Rule 5.5(b)(2)).  It can even be a violation of state statute, like it is in my home state of Ohio.

The lawyer claimed that the false information on his profile resulted from not being “careful in writing” it, and that he had mistakenly cut and pasted information “from his resume” into the profile.  The disciplinary board found those claims “not credible.”

Hearing hassle

The LinkedIn problem might have been enough to get the lawyer tagged for the unauthorized practice of law, in violation of Pennsylvania’s version of Model Rule 5.5, and for making “overt misrepresentations” in violation of Rule 8.4(c).  But that wasn’t all he did, according to the disciplinary board findings.

In 2014, the lawyer appeared as counsel on behalf of a parent and her minor child at an expulsion hearing held at a Pennsylvania high school.  The child happened to be the lawyer’s step-son, but the lawyer never disclosed that.  He introduced himself at the hearing as counsel, and when asked for his attorney ID number the lawyer gave his Colorado bar number, but never disclosed before, during or after the hearing that he had never been admitted to practice in Pennsylvania.

The lawyer continued his representation in the high school expulsion matter for the next year, until the term of the child’s school discipline was complete.  He then wrote to the superintendent that his “representation of [Child] is hereafter terminated.”

Don’t let his happen to you…

The lawyer in this disciplinary case brought a heap of trouble down on himself.  But even if you would never practice where you are not authorized to do so, and would never hold yourself out as being admitted where you are not, this disciplinary case has a few takeaways.

  • First, police your social media statements, and make sure they are accurate — because they can be a basis for disciplinary trouble.  Here’s an article by my LinkedIn buddy, Missouri lawyer Michael Downey, on LinkedIn ethics issues — it’s from 2013, but still well worth reading.
  • Second, if you get an inquiry from bar disciplinary counsel respond to it, even if it’s just to ask for more time or get clarification.  The lawyer here failed to respond for many months, leading to an additional charge of failure to cooperate, which is another independent basis for discipline under Pennsylvania bar rules (as it is in other states, too).
  • Third, be aware that ethical misconduct can be prosecuted in the state where it occurs as well as in your home jurisdiction, where you are licensed — and as here, your state of licensure will impose “reciprocal discipline” based on a finding of misconduct elsewhere.

Road Sign with THE FUTURE and SkyWhat is the future of legal services in the U.S.?  How should the enormous unmet need for services — to the middle class and to the poor — be met?  Judy Perry Martinez, the Chair of the ABA Commission on the Future of Legal Services, was in Cleveland last week, and discussed the Commission’s 100+ page report and some of its controversial recommendations.  She spoke at the Cleveland Metropolitan Bar Association to members of its ethics committee and other bar leaders. Martinez’ talk was wide ranging.

  • On-line service providers are here to stay:  Entities like Avvo, Rocket Lawyer and LegalZoom now have a presence in some legal market segments, said Martinez, and “they are not going away.”  Lawyers must acknowledge this force, and that “they are no doubt innovating in a way that consumers of justice are paying attention to.”  Like attorney advertising, which was once derided but is now ubiquitous, on-line service delivery platforms are “now part of the ecosystem.”  The challenge is to ensure that these and other technology-driven models meet the standards most critically important to the profession.  The Commission report recommends that state courts adopt the ABA Model Regulatory Objectives for the Provision of Legal Services, so that if and when a court examines on-line or other providers (including lawyers), any regulation is guided by the stated objectives.   These include such core principles as independence of legal judgment, protection of confidential and privileged information and accessible civil remedies for negligence and discipline for misconduct.
  • The public needs more from us:  The Commission’s report details a huge unmet need for legal services.  In some jurisdictions, more than 80 percent of the civil legal needs of low-income people and the majority of middle-income people go unmet — even as new law graduates struggle to find work.  “Our efforts have woefully failed” so far, Martinez said, to meet the goal of providing some form of effective assistance for the essential civil legal needs of all people otherwise unable to afford a lawyer — which is the Commission’s #1 recommendation.
  • We’re trained to be innovation-averse:  Our legal training itself makes lawyers resistant to change, and that threatens to leave us behind.  We are trained to look at the past, and to avoid unnecessary risk.  The traditional service delivery models that we accordingly embrace constrain innovation, and can limit access to justice.  Yet, it is crucial to overcome these barriers.  “If we don’t shape the future, others will,” said Martinez.
  • Despite adverse comment from the rank-and-file, conversation about “ABS” continues:  Permitting non-lawyer ownership stakes in law firms (aka “alternative business structure”) has generated much controversy; it is currently barred in every jurisdiction except the District of Columbia (although in the state of Washington, a very narrow form is encompassed under its Limited License Legal Technician program).  In 2016, the ABA solicited comments on its issue paper on ABS for law firms, including non-lawyer ownership.  Based on a lack of data showing that ABS would benefit the public, and being aware of opposition from some, the ABA recommended continued exploration.  According to Martinez, the issue is continuing as a topic of discussion at bar association and court meetings, and those interested are watching developments in the UK, where ABS is growing.  What should the burden of proof on the issue be, asked Martinez:  that there is “no evidence of harm to the public,” or that there is “evidence of benefit to the public”?

What can be done on the local level?  Martinez said that lawyer education aimed at helping lawyers and judges understand the benefits of applying technological innovations to the access-to-justice problem was front and center, and that every bar association should be incorporating a futures component into its long-range planning.

Bottom line:  we lawyers had better get on board because like it or not, the future is here, and it holds opportunities for the profession and for increased access to justice.

Taxi Ride Share Transportation AppThis is a good one for the law school legal ethics class I’m teaching this semester:  If a company’s lawyer approves a policy that may be legal in itself, but the lawyer knows that the company will use it to evade the law, has the lawyer violated ethics rules?

An analogous question arose last week when the New York Times reported that Uber Technologies Inc. used specially-developed software in order to avoid law enforcement stings in cities where Uber’s ride-sharing operation was facing local government opposition.

Within a few days of the report, Uber announced that it had halted the practice, called “greyballing,” which had been used in the U.S. and overseas.  Uber said that the practice was part of its broader efforts to halt all rider conduct that violates its terms of use.

However, the situation still provides a setting in which to consider Model Rule 1.2(d) and your ethics obligations if a client seeks your help in conduct that may be deemed to be pushing the legal envelope.

“Greyballing” a potential rider

As reported by the Times, starting in 2014, Uber apparently put policies in place in cities like Boston, Portland, Oregon and Las Vegas to identify users Uber thought might be city investigators or inspectors who were arranging for rides in order to conduct stings on operations that law enforcement officials questioned as violating city regulations.

After facing initial opposition in many cities where gaps in local regulations made it easy to launch its services, Uber eventually reached agreements with cities so that it could operate lawfully.

But before that point, as the Times described it, “law enforcement officials in some cities … impounded vehicles or issued tickets to UberX drivers, with Uber generally picking up those costs on the drivers’ behalf.  The company has estimated thousands of dollars in lost revenue for every vehicle impounded and ticket received,” the Times said.

To avoid these costs, Uber would try to identify law enforcement officers and keep them out of its drivers’ cars — “greyballing” them.  The digital techniques Uber used to do that included reviewing credit card information to see whether the card was linked to some official institution (e.g., a police credit union), drawing a “geofence” around government offices, and not picking up anyone seeking a ride from there, and searching social media profiles to identify people who seemed to be linked to law enforcement.

When someone who had been “greyballed” did successfully hail an Uber, the company could call the driver in order to end the ride.

What should counsel consider?

Model Rule 1.2(d) bars counseling a client to engage in criminal or fraudulent conduct, or assisting the client in doing so.  But was Uber’s “greyballing” program used for unlawful ends?  If not, there is no legal ethics issue to discuss.  And we certainly do not know what Uber’s legal team considered in advising Uber about the program.

Rule 1.2(d) of course permits discussing with the client “the legal consequences of any proposed course of conduct” and assisting the client in making “a good faith effort to determine the validity, scope, meaning or application of the law.”  A lawyer who conforms to that standard is on good ground.

Likewise, comment [9] notes the difference between opining about consequences and “assisting” in unlawful conduct.  And the “fact that a client uses advice in a course of action that is criminal or fraudulent” does not of itself “make a lawyer a party to the course of action.”  “Presenting an analysis of legal aspects of questionable conduct” is OK; but “recommending the means by which a crime or fraud might be committed with impunity” is not.

Be careful out there…

If you are in a grey area (no pun intended!), where it may be unclear whether you are counseling your client about the bounds of the law or whether you are possibly assisting with improper conduct, it pays to be careful, and to consider getting an outside view about your possible actions.  Check your jurisdiction’s version of Model Rule 1.6(b)(4), which permits you to disclose a client’s confidential information as reasonably necessary in order to obtain legal advice about your compliance with the ethics rules.

scientific_CloudComputing45Law firm cybersecurity is in the news again with two developments.  First, the latest ABA TechReport says that large law firms were more likely to be victims of a data security breach last year than mid-size or small firms, with one in seven respondents having been hit overall.  That’s a big deal.  Next, a federal class action complaint in what is thought to be the first suit attempting to base liability solely on a U.S. law firm’s allegedly inadequate cybersecurity was unsealed on December 9.  But that suit possibly turns out not to be such a big deal.

BigLaw take warning

As reported in Law360 (subs. req.), the 2016 ABA Legal Technology Survey collected responses from 800 ABA members, and it showed that 26% of firms with more than 500 lawyers had experienced a security breach.  That contrasts with about 15% of firms with 50-99 lawyers, and 20% of firms with 100-499 lawyers.  Only 8% of solos said they’d had a breach.

A possible explanation of the data may be what Willie Sutton said about why he robbed banks:  that’s where the money is.  Large and mid-size firms can be treasure troves for hackers looking to gain access to client info on deals and other financial activity, and law firms can provide “back door” access to the data of financial institution clients.  With more lawyers and more staff, larger firms also have more chances to suffer from human error.

The good news there, according to the survey, is that only 2% of respondents reported that hacking resulted in unauthorized access to client data.

Failure to secure data?

On the litigation front, a class action complaint was unsealed against Chicago-based firm Johnson & Bell Ltd., brought by former clients who asserted that the firm’s “computer systems suffer from critical vulnerabilities in its internet-accessible web services.”  Plaintiffs also alleged that client confidential information “has been exposed,” and identified the firm’s time-charge system, e-mail server and virtual private network as vulnerable to cyber-attack.

However, the plaintiffs never alleged that any actual breach has occurred, and the firm moved to dismiss the claims.  Potential vulnerability is not actionable, Johnson & Bell said in its motion — otherwise “every lawyer who carries a briefcase, takes notes in court or in a deposition … could be subject to being named in a class action lawsuit, because in each instance a client’s confidential information was ‘exposed’ or ‘vulnerable.'”

Counsel for plaintiffs in the suit is Jay Edelson, who has litigated successfully on behalf of consumers against businesses where actual breaches have occurred.

Although expansion of liability against law firms where no actual cyber-breach is alleged would be a  scary development, the possibility has fizzled for the moment.  As detailed in the district court’s opinion, the plaintiffs acknowledged that the time-tracking system vulnerability was  remedied shortly after the complaint was filed, and plaintiffs voluntarily dismissed their class action complaint in order to pursue arbitration under a provision of their retainer agreement with the firm.

Lawyer training = ounce of prevention

Law firm data vulnerability consists of at least two factors — technology and humans.  As we’ve pointed out before, a good way to address the human factor is with plenty of lawyer training, because we seem to be particularly prone to falling for scams and clicking before we think.  As for the technological factor, staying ahead of the bad guys is always going to be a game of Whack-a-Mole, which law firms will be striving to win.