technology ethics for lawyers

Technology Ethics for Lawyers

Joseph A. Corsmeier, EsquireJoseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 15029605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761Clearwater, Florida 33761

Office: (727) 799-1688Office: (727) 799-1688

[email protected]@jac-law.com

Technology and digital Technology and digital social media ethics topicssocial media ethics topics

Technology CompetenceTechnology Competence Technology and Ethics: E-Portal FilingTechnology and Ethics: E-Portal Filing Electronic File StorageElectronic File Storage Cloud ComputingCloud Computing Outsourcing and Protection of Client ConfidentialityOutsourcing and Protection of Client Confidentiality Digital Storage DevicesDigital Storage Devices MetadataMetadata Social Media Ethics IssuesSocial Media Ethics Issues E-mails and Reply AllE-mails and Reply All Expert and SpecialistExpert and Specialist Receipt of unsolicited e-mail information on websiteReceipt of unsolicited e-mail information on website Practice over the internetPractice over the internet Use of “expert” and “specialist” in lawyer advertisingUse of “expert” and “specialist” in lawyer advertising Use of “expert” in firm’s domain nameUse of “expert” in firm’s domain name

Technology competenceTechnology competence

Amendment to Comment to Rule 1.1, Model Rules of Professional ConductAmendment to Comment to Rule 1.1, Model Rules of Professional Conduct Rule 1.1 Competence Rule 1.1 Competence CommentComment Maintaining CompetenceMaintaining Competence [8] To maintain the requisite knowledge and skill, a lawyer should keep [8] To maintain the requisite knowledge and skill, a lawyer should keep

abreast of changes in the law and its practice, abreast of changes in the law and its practice, including the benefits and including the benefits and risks associated with relevant technologyrisks associated with relevant technology , engage in continuing study and , engage in continuing study and education and comply with all continuing legal education requirements to education and comply with all continuing legal education requirements to which the lawyer is subject.which the lawyer is subject.

Technology competenceTechnology competence

Amendments to Rules 4-1.1 and 6-10.3, Florida Rules of Professional Amendments to Rules 4-1.1 and 6-10.3, Florida Rules of Professional Conduct (effective January 1, 2017)Conduct (effective January 1, 2017)

Revised Rule 6-10.3 increases CLE requirements for Florida lawyers from 30 Revised Rule 6-10.3 increases CLE requirements for Florida lawyers from 30 to 33 hours every three years and to 33 hours every three years and mandatory three hours must be in mandatory three hours must be in technology related areas/coursestechnology related areas/courses . .

First state/jurisdiction to mandate technology CLE.First state/jurisdiction to mandate technology CLE. The comment to Rule 4-1.1 (competence) was revised to state that The comment to Rule 4-1.1 (competence) was revised to state that

“Competent representation may also involve the association or retention of a “Competent representation may also involve the association or retention of a non-lawyer advisor of established technological competence in the field in non-lawyer advisor of established technological competence in the field in question. Competent representation also involves safeguarding confidential question. Competent representation also involves safeguarding confidential information relating to the representation, including, but not limited to, information relating to the representation, including, but not limited to, electronic transmissions and communications.electronic transmissions and communications.

Technology and ethics: e-portal filingTechnology and ethics: e-portal filing Florida Bar Ethics Opinion 12-2 (June 22, 2012)Florida Bar Ethics Opinion 12-2 (June 22, 2012) A lawyer may provide their log-in credentials to the E-Portal to trusted nonlawyer A lawyer may provide their log-in credentials to the E-Portal to trusted nonlawyer

employees for the employees to file court documents that have been reviewed employees for the employees to file court documents that have been reviewed and approved by the lawyer, who remains responsible for the filing. The lawyer and approved by the lawyer, who remains responsible for the filing. The lawyer must properly supervise the nonlawyer, should monitor the nonlawyer’s use of must properly supervise the nonlawyer, should monitor the nonlawyer’s use of the E-Portal, and should immediately change the lawyer’s password if the the E-Portal, and should immediately change the lawyer’s password if the nonlawyer employee leaves the lawyer’s employ or shows untrustworthiness in nonlawyer employee leaves the lawyer’s employ or shows untrustworthiness in use of the E-Portal.use of the E-Portal.

Florida Bar Ethics Opinion 87-11 (Reconsideration) (June 27, 2014) Florida Bar Ethics Opinion 87-11 (Reconsideration) (June 27, 2014) A lawyer may permit a nonlawyer to place the lawyer’s signature on solely A lawyer may permit a nonlawyer to place the lawyer’s signature on solely

electronic documents as permitted by Florida Rule of Judicial Administration electronic documents as permitted by Florida Rule of Judicial Administration 2.515 and only after reviewing and approving the document to be signed and 2.515 and only after reviewing and approving the document to be signed and filed. The lawyer remains responsible for the document. filed. The lawyer remains responsible for the document.

Technology and ethics: e-portal filingTechnology and ethics: e-portal filing

In the Matter of: John A. GoudgeIn the Matter of: John A. Goudge , No. 1024426, Commission No. 2012PR00085. , No. 1024426, Commission No. 2012PR00085. Associate at Chicago law firm was responsible for contract cases from Associate at Chicago law firm was responsible for contract cases from

USDOJ to represent U.S. in debt collection cases involving student loans. USDOJ to represent U.S. in debt collection cases involving student loans. Under lawyer’s supervision and direction, non-lawyer assistant prepared Under lawyer’s supervision and direction, non-lawyer assistant prepared

complaints and exhibits and non-lawyer assistants filed complaints and complaints and exhibits and non-lawyer assistants filed complaints and exhibits with the Ill. N. U.S. District Court for the Northern District of exhibits with the Ill. N. U.S. District Court for the Northern District of Illinois' CM/ECF (e-filing) system. Illinois' CM/ECF (e-filing) system.

CM/ECF requires box be checked stating that filings are in compliance Fed. CM/ECF requires box be checked stating that filings are in compliance Fed. Civil Proc. Rules and personal identifying information was redacted; however, Civil Proc. Rules and personal identifying information was redacted; however, confidential information was not redacted and became available to public and confidential information was not redacted and became available to public and viewable on court's website. viewable on court's website.

Lawyer admitted failure to make reasonable efforts to supervise non-lawyer, Lawyer admitted failure to make reasonable efforts to supervise non-lawyer, expressed remorse, and received reprimand.expressed remorse, and received reprimand.

Remote access to electronic client filesRemote access to electronic client files

New York State Bar Ethics Opinion 1019 (8/6/2014)New York State Bar Ethics Opinion 1019 (8/6/2014) Confidentiality; Remote Access to Firm's Electronic FilesConfidentiality; Remote Access to Firm's Electronic Files A law firm may give its lawyers remote access to client files, so that lawyers may A law firm may give its lawyers remote access to client files, so that lawyers may

work from home, as long as the firm determines that the particular technology work from home, as long as the firm determines that the particular technology used provides reasonable protection to client confidential information, or, in the used provides reasonable protection to client confidential information, or, in the absence of such reasonable protection, if the law firm obtains informed consent absence of such reasonable protection, if the law firm obtains informed consent from the client, after informing the client of the risks.from the client, after informing the client of the risks.

Electronic file storageElectronic file storage

Florida Bar Ethics Opinion 06-1 (April 10, 2006)Florida Bar Ethics Opinion 06-1 (April 10, 2006) Lawyers may, but are not required to, store files electronically unless: a statute Lawyers may, but are not required to, store files electronically unless: a statute

or rule requires retention of an original document, the original document is or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely the property of the client, or destruction of a paper document adversely affects the client’s interests. Files stored electronically must be readily affects the client’s interests. Files stored electronically must be readily reproducible and protected from inadvertent modification, degradation or reproducible and protected from inadvertent modification, degradation or destruction.destruction.

Cloud computingCloud computing Florida Bar Ethics Opinion 12-3 (January 25, 2013) Florida Bar Ethics Opinion 12-3 (January 25, 2013) Lawyers may use cloud computing if they take reasonable precautions to ensure Lawyers may use cloud computing if they take reasonable precautions to ensure

that confidentiality of client information is maintained, that the service provider that confidentiality of client information is maintained, that the service provider maintains adequate security, and that the lawyer has adequate access to the maintains adequate security, and that the lawyer has adequate access to the information stored remotely. The lawyer should research the service provider to information stored remotely. The lawyer should research the service provider to be used. be used.

New York State Bar Ethics Opinion 842 suggests the following steps involve the New York State Bar Ethics Opinion 842 suggests the following steps involve the appropriate due diligence:appropriate due diligence:

Ensuring that the online data storage provider has an enforceable obligation to Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;served with process requiring the production of client information;

Investigating the online data storage provider's security measures, policies, Investigating the online data storage provider's security measures, policies, recoverability methods, and other procedures to determine if they are adequate recoverability methods, and other procedures to determine if they are adequate under the circumstances;under the circumstances;

Employing available technology to guard against reasonably foreseeable attempts Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.to infiltrate the data that is stored.

Cloud computingCloud computing Iowa Ethics Opinion 11-01 recommends considering the reputation of the service Iowa Ethics Opinion 11-01 recommends considering the reputation of the service

provider to be used, its location, its user agreement and whether it chooses the law provider to be used, its location, its user agreement and whether it chooses the law or forum in which any dispute will be decided, whether it limits the service or forum in which any dispute will be decided, whether it limits the service provider’s liability, whether the service provider retains the information in the provider’s liability, whether the service provider retains the information in the event the lawyer terminates the relationship with the service provider, what access event the lawyer terminates the relationship with the service provider, what access the lawyer has to the data on termination of the relationship with the service the lawyer has to the data on termination of the relationship with the service provider, and whether the agreement creates “any proprietary or user rights” over provider, and whether the agreement creates “any proprietary or user rights” over the data the lawyer stores with the service provider.the data the lawyer stores with the service provider.

It also suggests that the lawyer determine whether the information is password It also suggests that the lawyer determine whether the information is password protected, whether the information is encrypted, and whether the lawyer will have protected, whether the information is encrypted, and whether the lawyer will have the ability to further encrypt the information if additional security measures are the ability to further encrypt the information if additional security measures are required because of the special nature of a particular matter or piece of required because of the special nature of a particular matter or piece of information. It further suggests that the lawyer consider whether the information information. It further suggests that the lawyer consider whether the information stored via cloud computing is also stored elsewhere by the lawyer in the event the stored via cloud computing is also stored elsewhere by the lawyer in the event the lawyer cannot access the information via “the cloud.”lawyer cannot access the information via “the cloud.”

Outsourcing and protection of confidentiality Outsourcing and protection of confidentiality in document transmissionin document transmission

Florida Bar Op. 07-02 (January 18, 2008). Florida Bar Op. 07-02 (January 18, 2008). A lawyer is not prohibited from engaging the services of an overseas provider to A lawyer is not prohibited from engaging the services of an overseas provider to

provide paralegal assistance as long as the lawyer adequately addresses ethical provide paralegal assistance as long as the lawyer adequately addresses ethical obligations relating to assisting the unlicensed practice of law, supervision of obligations relating to assisting the unlicensed practice of law, supervision of nonlawyers, conflicts of interest, confidentiality, and billing. The lawyer should be nonlawyers, conflicts of interest, confidentiality, and billing. The lawyer should be mindful of any obligations under law regarding disclosure of sensitive information mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties. of opposing parties and third parties.

Of particular concern is the ethical obligation of confidentiality. The inquirer states Of particular concern is the ethical obligation of confidentiality. The inquirer states that the foreign attorneys will have remote access to the firm’s computer files. The that the foreign attorneys will have remote access to the firm’s computer files. The committee believes that the law firm should instead limit the overseas provider's committee believes that the law firm should instead limit the overseas provider's access to only the information necessary to complete the work for the particular access to only the information necessary to complete the work for the particular client. The law firm should include “contractual provisions addressing client. The law firm should include “contractual provisions addressing confidentiality and remedies in the event of breach, and periodic reminders confidentiality and remedies in the event of breach, and periodic reminders regarding confidentiality.”regarding confidentiality.”

Digital storage devicesDigital storage devices Florida Bar Ethics Opinion 10-2 (September 24, 2010)Florida Bar Ethics Opinion 10-2 (September 24, 2010) ““A lawyer who chooses to use Devices that contain Storage Media such as A lawyer who chooses to use Devices that contain Storage Media such as

printers, copiers, scanners, and facsimile machines must take reasonable steps printers, copiers, scanners, and facsimile machines must take reasonable steps to ensure that client confidentiality is maintained and that the Device is to ensure that client confidentiality is maintained and that the Device is sanitized before disposition, including: sanitized before disposition, including:

(1) identification of the potential threat to confidentiality along with the (1) identification of the potential threat to confidentiality along with the development and implementation of policies to address the potential threat to development and implementation of policies to address the potential threat to confidentiality; confidentiality;

(2) inventory of the Devices that contain Hard Drives or other Storage (2) inventory of the Devices that contain Hard Drives or other Storage Media; Media;

(3) supervision of nonlawyers to obtain adequate assurances that (3) supervision of nonlawyers to obtain adequate assurances that confidentiality will be maintained; and confidentiality will be maintained; and

(4) responsibility for sanitization of the Device by requiring meaningful (4) responsibility for sanitization of the Device by requiring meaningful assurances from the vendor at the intake of the Device and confirmation or assurances from the vendor at the intake of the Device and confirmation or certification of the sanitization at the disposition of the Device.”certification of the sanitization at the disposition of the Device.”

MetadataMetadata ABA Formal Opinion 06-442 and Formal Opinion 05-437ABA Formal Opinion 06-442 and Formal Opinion 05-437 No explicit duty regarding metadata is imposed, but a number of methods for No explicit duty regarding metadata is imposed, but a number of methods for

eliminating metadata (including "scrubbing," negotiating a confidentiality eliminating metadata (including "scrubbing," negotiating a confidentiality agreement, or sending the file in a different format) are suggested for attorneys agreement, or sending the file in a different format) are suggested for attorneys who are "concerned about the possibility of sending, producing, or providing who are "concerned about the possibility of sending, producing, or providing to opposing counsel a document that contains or might contain metadata." [06-to opposing counsel a document that contains or might contain metadata." [06-442]442]

““Mining” of metadata is not prohibitedMining” of metadata is not prohibited. [06-442]. [06-442] ABA Model Rule 4.4(b) "obligates the receiving lawyer to notify the sender of ABA Model Rule 4.4(b) "obligates the receiving lawyer to notify the sender of

the inadvertent transmission promptly" but "does not require the receiving the inadvertent transmission promptly" but "does not require the receiving lawyer either to refrain from examining the materials or to abide by the lawyer either to refrain from examining the materials or to abide by the instructions of the sending lawyer." [05-437]instructions of the sending lawyer." [05-437]

MetadataMetadata Florida Bar Ethics Opinion 06-2 (September 15, 2006)Florida Bar Ethics Opinion 06-2 (September 15, 2006) A lawyer who is sending an electronic document should take care to ensure A lawyer who is sending an electronic document should take care to ensure

the confidentiality of all information contained in the document, including the confidentiality of all information contained in the document, including metadata. metadata.

A lawyer receiving an electronic document A lawyer receiving an electronic document should not try to obtain should not try to obtain information from metadatainformation from metadata that the lawyer knows or should know is not that the lawyer knows or should know is not intended for the receiving lawyer. intended for the receiving lawyer.

A lawyer who inadvertently receives information via metadata in an electronic A lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt. The opinion document should notify the sender of the information's receipt. The opinion is not intended to address metadata in the context of discovery documents.is not intended to address metadata in the context of discovery documents.

Disclaimers on lawyer websitesDisclaimers on lawyer websites

ABA Formal Opinion 10-457 - Lawyer Websites (August 5, 2010).ABA Formal Opinion 10-457 - Lawyer Websites (August 5, 2010). ““Warnings or cautionary statements on a lawyer’s website can be designed to and Warnings or cautionary statements on a lawyer’s website can be designed to and

may effectively limit, condition, or disclaim a lawyer’s obligation to a website may effectively limit, condition, or disclaim a lawyer’s obligation to a website reader. Such warnings or statements may be written so as to avoid a reader. Such warnings or statements may be written so as to avoid a misunderstanding by the website visitor that (1) a client-lawyer relationship has misunderstanding by the website visitor that (1) a client-lawyer relationship has been created; (2) the visitor’s information will be kept confidential; (3) legal advice been created; (2) the visitor’s information will be kept confidential; (3) legal advice has been given; or (4) the lawyer will be prevented from representing an adverse has been given; or (4) the lawyer will be prevented from representing an adverse party.party.

Limitations, conditions, or disclaimers of lawyer obligations will be effective only if Limitations, conditions, or disclaimers of lawyer obligations will be effective only if reasonably understandable, properly placed, and not misleading. This requires a reasonably understandable, properly placed, and not misleading. This requires a clear warning in a readable format whose meaning can be understood by a clear warning in a readable format whose meaning can be understood by a reasonable person. If the website uses a particular language, any waiver, disclaimer, reasonable person. If the website uses a particular language, any waiver, disclaimer, limitation, or condition must be in the same language. The appropriate limitation, or condition must be in the same language. The appropriate information should be conspicuously placed to assure that the reader is likely to see information should be conspicuously placed to assure that the reader is likely to see it before proceeding. it before proceeding.

Finally, a limitation, condition, waiver, or disclaimer may be undercut if the lawyer Finally, a limitation, condition, waiver, or disclaimer may be undercut if the lawyer acts or communicates contrary to its warning.” acts or communicates contrary to its warning.”

Social media ethics issuesSocial media ethics issues FacebookFacebook

LinkedInLinkedIn

TwitterTwitter

YouTubeYouTube

Instagram Instagram

WordPress (blogs)WordPress (blogs)

Social media ethics issuesSocial media ethics issues

Social media directed specifically to lawyersSocial media directed specifically to lawyers

Avvo Avvo

Martindale ConnectedMartindale Connected

Legal Onramp Legal Onramp

Lexblog Lexblog


Distinguishing between personal and professional use of social mediaDistinguishing between personal and professional use of social media Should you promote yourself or your legal practice?Should you promote yourself or your legal practice? If so, does the platform matter?If so, does the platform matter? Is your social media content and profile subject to the lawyer advertising rules?Is your social media content and profile subject to the lawyer advertising rules?

Social media ethics issuesSocial media ethics issues A lawyer cannot attempt to gain access to non-public social media content by A lawyer cannot attempt to gain access to non-public social media content by

using subterfuge, dishonesty, deception, pretext, false pretenses, or an alias. using subterfuge, dishonesty, deception, pretext, false pretenses, or an alias. In the recent case of John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-In the recent case of John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-

14) (075584) 14) (075584) (New Jersey Supreme Court 4/19/16), the NJ Supreme Court (New Jersey Supreme Court 4/19/16), the NJ Supreme Court ruled that attorneys could be prosecuted for disciplinary rule violations for ruled that attorneys could be prosecuted for disciplinary rule violations for improperly accessing an opposing party’s Facebook page.improperly accessing an opposing party’s Facebook page.

Ethics opinions in Oregon (Op. 2013-189), Kentucky (Op. KBA E-434), Ethics opinions in Oregon (Op. 2013-189), Kentucky (Op. KBA E-434), New York State (Op. 843), and New York City (Op. 2010-2) conclude that New York State (Op. 843), and New York City (Op. 2010-2) conclude that lawyers are not permitted (either themselves or through agents) to engage in lawyers are not permitted (either themselves or through agents) to engage in false or deceptive tactics to get around a social media users’ privacy settings false or deceptive tactics to get around a social media users’ privacy settings to reach non-public information. to reach non-public information.

Ethics opinions by the Philadelphia Bar Association (Op. 2009-02) and the Ethics opinions by the Philadelphia Bar Association (Op. 2009-02) and the San Diego County Bar Association (Op. 2011-2), among others, conclude San Diego County Bar Association (Op. 2011-2), among others, conclude that lawyers must affirmatively disclose their reasons for communicating with that lawyers must affirmatively disclose their reasons for communicating with the third party. the third party.

Social media ethics issuesSocial media ethics issues A lawyer cannot attempt to gain access to non-public social media content by A lawyer cannot attempt to gain access to non-public social media content by

using subterfuge, dishonesty, deception, pretext, false pretenses, or an alias. using subterfuge, dishonesty, deception, pretext, false pretenses, or an alias. Ethics opinions in Oregon (Op. 2013-189), Kentucky (Op. KBA E-434), Ethics opinions in Oregon (Op. 2013-189), Kentucky (Op. KBA E-434),

New York State (Op. 843), and New York City (Op. 2010-2) conclude that New York State (Op. 843), and New York City (Op. 2010-2) conclude that lawyers are not permitted (either themselves or through agents) to engage in lawyers are not permitted (either themselves or through agents) to engage in false or deceptive tactics to get around a social media users’ privacy settings false or deceptive tactics to get around a social media users’ privacy settings to reach non-public information. to reach non-public information.

Ethics opinions by the Philadelphia Bar Association (Op. 2009-02) and the Ethics opinions by the Philadelphia Bar Association (Op. 2009-02) and the San Diego County Bar Association (Op. 2011-2), among others, conclude San Diego County Bar Association (Op. 2011-2), among others, conclude that lawyers must affirmatively disclose their reasons for communicating with that lawyers must affirmatively disclose their reasons for communicating with the third party. the third party.


Florida Bar Advisory Opinion 14-1 (approved June 25, 2015) Florida Bar Advisory Opinion 14-1 (approved June 25, 2015) ““A personal injury lawyer may advise a client pre-litigation to change privacy A personal injury lawyer may advise a client pre-litigation to change privacy

settings on the client’s social media pages so that they are not publicly settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the lawyer also pertaining to the preservation and/or spoliation of evidence, the lawyer also may advise that a client remove information relevant to the foreseeable may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information proceeding from social media pages as long as the social media information or data is preserved.”or data is preserved.”

This advisory opinion is consistent with NYC Lawyers Association Ethics This advisory opinion is consistent with NYC Lawyers Association Ethics Opinion 745 (2013) which states that a lawyer may advise client to use highest Opinion 745 (2013) which states that a lawyer may advise client to use highest level of privacy setting on the client’s social media pages and may advise client level of privacy setting on the client’s social media pages and may advise client to remove information from social media page prior to litigation, regardless to remove information from social media page prior to litigation, regardless of its relevance to a reasonably foreseeable proceeding, as long as removal of its relevance to a reasonably foreseeable proceeding, as long as removal does not violate substantive law regarding preservation and/or spoliation of does not violate substantive law regarding preservation and/or spoliation of evidence. evidence.


Florida comprehensive revised advertising rules effective May 1, 2013 Florida comprehensive revised advertising rules effective May 1, 2013 all lawyer advertisingall lawyer advertising is subject to the Bar rules, including lawyer and law firm is subject to the Bar rules, including lawyer and law firm

websites, social networking and video sharing sites, and other digital media. websites, social networking and video sharing sites, and other digital media. lawyer and law firm websites are now subject to advertising rules.lawyer and law firm websites are now subject to advertising rules. Bar Rule 4-7.11(a) explicitly includes “social networking and video sharing Bar Rule 4-7.11(a) explicitly includes “social networking and video sharing

media” in the types of “media” covered by subchapter 4-7.media” in the types of “media” covered by subchapter 4-7. Social media profiles, posts, and blogs can be advertisingSocial media profiles, posts, and blogs can be advertising Lawyer blogs will be advertisements if primary purpose is to obtain Lawyer blogs will be advertisements if primary purpose is to obtain

employment/clientsemployment/clients blog must be informational and educational.blog must be informational and educational.


Do not make false or misleading statements Do not make false or misleading statements Can happen when a lawyer creates a social media account and completes a Can happen when a lawyer creates a social media account and completes a

profile without realizing that the social media platform will promote the profile without realizing that the social media platform will promote the lawyer to the public as an “expert” or a “specialist” or as having legal lawyer to the public as an “expert” or a “specialist” or as having legal “expertise” or “specialties.” “expertise” or “specialties.”

Lawyers are prohibited from holding themselves out as an expert or a Lawyers are prohibited from holding themselves out as an expert or a specialist unless certified in that specific area of practice.specialist unless certified in that specific area of practice.

Social media ethics issuesSocial media ethics issues Do not solicit potential clientsDo not solicit potential clients Lawyers may unintentionally send prohibited solicitations merely by using certain Lawyers may unintentionally send prohibited solicitations merely by using certain

automatic features of some social media sites that are designed to facilitate automatic features of some social media sites that are designed to facilitate convenient connections between users.convenient connections between users.

LinkedIn provides option to import e-mail address books to LinkedIn for LinkedIn provides option to import e-mail address books to LinkedIn for purposes of sending automatic or batch invitations; however, sending automatic purposes of sending automatic or batch invitations; however, sending automatic or batch invitations to everyone your e-mail address book could result in or batch invitations to everyone your e-mail address book could result in networking invitations being sent to persons who are not lawyers, family networking invitations being sent to persons who are not lawyers, family members, close personal friends, current or former clients, or others with whom members, close personal friends, current or former clients, or others with whom a lawyer may ethically communicate. a lawyer may ethically communicate.

If these recipients do not accept the initial networking invitation, LinkedIn will If these recipients do not accept the initial networking invitation, LinkedIn will automatically send two follow up reminders unless the initial invitation is automatically send two follow up reminders unless the initial invitation is affirmatively withdrawn which could be a separate violation of rules prohibiting affirmatively withdrawn which could be a separate violation of rules prohibiting solicitations. solicitations.

Social media ethics issuesSocial media ethics issues Do not disclose privileged/confidential information Do not disclose privileged/confidential information Illinois Supreme Court suspended assistant public defender for 60 days for, inter Illinois Supreme Court suspended assistant public defender for 60 days for, inter

alia, disparaging judges and blogging about clients and implying in a post that a alia, disparaging judges and blogging about clients and implying in a post that a client committed perjury. client committed perjury. In re PeshekIn re Peshek, M.R. 23794 (Ill. SC May 18, 2010). , M.R. 23794 (Ill. SC May 18, 2010).

New York State Bar Association Ethics Opinion 1032 (October 30, 2014) states New York State Bar Association Ethics Opinion 1032 (October 30, 2014) states that lawyers cannot reveal client confidences solely to respond to former client’s that lawyers cannot reveal client confidences solely to respond to former client’s criticism on lawyer-rating website. criticism on lawyer-rating website.

Georgia Supreme Court imposes reprimand on lawyer who violated Georgia Supreme Court imposes reprimand on lawyer who violated attorney/client confidentiality in response to negative reviews that client had attorney/client confidentiality in response to negative reviews that client had made on the internet “consumer Internet pages”. made on the internet “consumer Internet pages”. In the Matter of Margrett A. In the Matter of Margrett A. SkinnerSkinner, Case No. S14Y0661 (Ga. Supreme Court 5/19/14) . , Case No. S14Y0661 (Ga. Supreme Court 5/19/14) .

Virginia Supreme Court held that, although a lawyer’s blog posts were Virginia Supreme Court held that, although a lawyer’s blog posts were commercial speech, the Virginia State Bar could not prohibit the lawyer from commercial speech, the Virginia State Bar could not prohibit the lawyer from posting non-privileged information about clients and former clients without the posting non-privileged information about clients and former clients without the clients’ consent where (1) the information related to closed cases and (2) the clients’ consent where (1) the information related to closed cases and (2) the information was publicly available from court records and, therefore, the lawyer information was publicly available from court records and, therefore, the lawyer was free, like any other citizen, to disclose what actually transpired in the was free, like any other citizen, to disclose what actually transpired in the courtroom. courtroom. Hunter v. Virginia State BarHunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013)., 744 S.E.2d 611 (Va. 2013).

Social Media Ethics IssuesSocial Media Ethics Issues The Florida Bar v. ConwayThe Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008) , 996 So.2d 213 (Fla. 2008) Do not disparage judges on your blogDo not disparage judges on your blog Lawyer posted derogatory comments about a judge on an internet blog.Lawyer posted derogatory comments about a judge on an internet blog. ““Respondent referred to (the judge) throughout the internet posting as an ‘EVIL Respondent referred to (the judge) throughout the internet posting as an ‘EVIL

UNFAIR WITCH’ or ‘EUW.’ UNFAIR WITCH’ or ‘EUW.’ Respondent improperly questioned her qualifications by stating that Judge Respondent improperly questioned her qualifications by stating that Judge

Aleman was ‘seemingly mentally ill.’ Aleman was ‘seemingly mentally ill.’ Respondent further remarked that (the judge)had an ‘ugly, condescending Respondent further remarked that (the judge)had an ‘ugly, condescending

attitude.’ attitude.’ Respondent also impugned (the judge’s) integrity by stating ‘.. she is clearly unfit Respondent also impugned (the judge’s) integrity by stating ‘.. she is clearly unfit

for her position and knows not what it means to be a neutral arbiter.’for her position and knows not what it means to be a neutral arbiter.’ Respondent continued impugning the judge’s qualifications and integrity by Respondent continued impugning the judge’s qualifications and integrity by

stating that ‘... there’s nothing honorable about that malcontent.’”stating that ‘... there’s nothing honorable about that malcontent.’” Referee found statements “not only unfairly undermined public confidence in the Referee found statements “not only unfairly undermined public confidence in the

administration of justice, but these statements were prejudicial to the proper administration of justice, but these statements were prejudicial to the proper administration of justice.” lawyer admitted and received public reprimand.administration of justice.” lawyer admitted and received public reprimand.

Social media ethics issuesSocial media ethics issues Do not assume you can “friend” judges (and/or mediators)- may also be Do not assume you can “friend” judges (and/or mediators)- may also be

disclosure requirementdisclosure requirement Florida Judicial Ethics Opinion 2009-20, for example, concluded that judge Florida Judicial Ethics Opinion 2009-20, for example, concluded that judge

cannot friend lawyers on Facebook who may appear before the judge because cannot friend lawyers on Facebook who may appear before the judge because this may suggest that the lawyer is in a special position to influence the judge. this may suggest that the lawyer is in a special position to influence the judge.

Florida Ethics Opinion 2012-12 subsequently extended the same rationale to Florida Ethics Opinion 2012-12 subsequently extended the same rationale to judges using LinkedIn and the more recent judges using LinkedIn and the more recent

Florida Judicial Ethics Opinion 2013-14 cautions judges about risks of using Florida Judicial Ethics Opinion 2013-14 cautions judges about risks of using Twitter.Twitter.

Domville v. StateDomville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012) held that trial judge , 103 So. 3d 184 (Fla. 4th DCA 2012) held that trial judge presiding over a criminal case was required to recuse himself because the judge presiding over a criminal case was required to recuse himself because the judge was Facebook friends with the prosecutor. was Facebook friends with the prosecutor.

Florida Mediator Ethics Advisory Opinion 2010-001 (June 1, 2010) concluded Florida Mediator Ethics Advisory Opinion 2010-001 (June 1, 2010) concluded that mediators can friend lawyers and mediation parties, but must consider that mediators can friend lawyers and mediation parties, but must consider disclosure if relationship presents a potential conflict of interest or would disclosure if relationship presents a potential conflict of interest or would otherwise impair mediator’s impartiality.otherwise impair mediator’s impartiality.

Social media ethics issuesSocial media ethics issues Be careful with invitations to connect or to “friend”Be careful with invitations to connect or to “friend” invitations sent directly from a social media site via IM to third party to view invitations sent directly from a social media site via IM to third party to view

or link to the lawyer’s page on an unsolicited basis for the purpose of or link to the lawyer’s page on an unsolicited basis for the purpose of obtaining, or attempting to obtain, legal business may be solicitations and obtaining, or attempting to obtain, legal business may be solicitations and violate Rule 4 7.4(a), unless the recipient is:‐violate Rule 4 7.4(a), unless the recipient is:‐

the lawyer’s current client, former client, relative, has a prior professional the lawyer’s current client, former client, relative, has a prior professional relationship with the lawyer, or is another lawyer.relationship with the lawyer, or is another lawyer.

Social media ethics issuesSocial media ethics issues Do not communicate directly with represented persons without permissionDo not communicate directly with represented persons without permission LLawyer may not send Facebook friend requests or LinkedIn invitations to awyer may not send Facebook friend requests or LinkedIn invitations to

opposing parties known to be represented by counsel in order to gain access to opposing parties known to be represented by counsel in order to gain access to those parties’ private social media content. those parties’ private social media content.

San Diego County Bar Association Opinion 2011-2 concluded that high-ranking San Diego County Bar Association Opinion 2011-2 concluded that high-ranking employees of a corporation should be treated as represented parties and, employees of a corporation should be treated as represented parties and, therefore, a lawyer could not send a Facebook friend request to those employees therefore, a lawyer could not send a Facebook friend request to those employees to gain access to their Facebook content. to gain access to their Facebook content.

Viewing publicly accessible social media content that does not involve Viewing publicly accessible social media content that does not involve communication with a represented party (e.g., viewing public blog posts or communication with a represented party (e.g., viewing public blog posts or Tweets) is generally considered fair game. Tweets) is generally considered fair game.

Oregon Ethics Opinions 2013-189 and 2005-164 reached this conclusion and Oregon Ethics Opinions 2013-189 and 2005-164 reached this conclusion and analogized viewing public social media content to reading a magazine article or a analogized viewing public social media content to reading a magazine article or a published book. published book.

Social media ethics issuesSocial media ethics issues Be careful if you choose to communicate with unrepresented third partiesBe careful if you choose to communicate with unrepresented third parties A lawyer may not attempt to gain access to non-public social media content A lawyer may not attempt to gain access to non-public social media content

by using subterfuge, dishonesty, deception, pretext, false pretenses, or an alias. by using subterfuge, dishonesty, deception, pretext, false pretenses, or an alias. Ethics opinions in Oregon (Op. 2013-189), Kentucky (Op. KBA E-434), New Ethics opinions in Oregon (Op. 2013-189), Kentucky (Op. KBA E-434), New

York State (Op. 843), and New York City (Op. 2010-2) concluded that York State (Op. 843), and New York City (Op. 2010-2) concluded that lawyers are not permitted (either themselves or through agents) to engage in lawyers are not permitted (either themselves or through agents) to engage in false or deceptive tactics to get around a social media users’ privacy settings to false or deceptive tactics to get around a social media users’ privacy settings to reach non-public information. reach non-public information.

Ethics opinions by the Philadelphia Bar Association (Op. 2009-02) and the Ethics opinions by the Philadelphia Bar Association (Op. 2009-02) and the San Diego County Bar Association (Op. 2011-2), among others, concluded San Diego County Bar Association (Op. 2011-2), among others, concluded that lawyers must affirmatively disclose their reasons for communicating with that lawyers must affirmatively disclose their reasons for communicating with the third party. the third party.


Do not unintentionally create an attorney-client relationship Do not unintentionally create an attorney-client relationship ABA Formal Opinion 10-457 stated that by enabling communications between ABA Formal Opinion 10-457 stated that by enabling communications between

prospective clients and lawyers, websites may give rise to inadvertent lawyer-prospective clients and lawyers, websites may give rise to inadvertent lawyer-client relationships and trigger ethical obligations to prospective clients under client relationships and trigger ethical obligations to prospective clients under the rules. the rules.

Use of disclaimers in a lawyer’s or a law firm’s social media profile or in Use of disclaimers in a lawyer’s or a law firm’s social media profile or in connection with specific posts may help avoid inadvertently creating attorney-connection with specific posts may help avoid inadvertently creating attorney-client relationships (of course the lawyer’s or law firm’s online conduct and client relationships (of course the lawyer’s or law firm’s online conduct and communications must be consistent with the disclaimer). communications must be consistent with the disclaimer).

South Carolina Ethics Opinion 12-03 concluded that “[a]ttempting to disclaim South Carolina Ethics Opinion 12-03 concluded that “[a]ttempting to disclaim (through buried language) an attorney-client relationship in advance of providing (through buried language) an attorney-client relationship in advance of providing specific legal advice in a specific matter, and using similarly buried language to specific legal advice in a specific matter, and using similarly buried language to advise against reliance on the advice is patently unfair and misleading to advise against reliance on the advice is patently unfair and misleading to laypersons.” laypersons.”


Do not engage in the unlicensed practice of lawDo not engage in the unlicensed practice of law Public social media post (such as a public Tweet) does not have any geographic Public social media post (such as a public Tweet) does not have any geographic

boundaries and public social media is accessible to everyone who has an Internet boundaries and public social media is accessible to everyone who has an Internet connection. connection.

Lawyers who interact with non-lawyer social media users outside of their Lawyers who interact with non-lawyer social media users outside of their jurisdiction must be aware that their activities may be subject not only to the jurisdiction must be aware that their activities may be subject not only to the ethics rules where they are licensed, but potentially UPL rules in jurisdiction ethics rules where they are licensed, but potentially UPL rules in jurisdiction where the recipients are located. where the recipients are located.

South Carolina Supreme Court permanently barred a Florida lawyer who was South Carolina Supreme Court permanently barred a Florida lawyer who was not admitted in that state from admission to practice for not admitted in that state from admission to practice for soliciting over the soliciting over the internet and representing clientsinternet and representing clients, making false statements, and failing to , making false statements, and failing to respond to the allegations. In the Matter of Alma C. Defillo, SC Case No. 27431 respond to the allegations. In the Matter of Alma C. Defillo, SC Case No. 27431 (8/13/14). Second Florida lawyer to be barred from practicing in South Carolina (8/13/14). Second Florida lawyer to be barred from practicing in South Carolina in 2014. in 2014.

Social media ethics issuesSocial media ethics issues Be careful with testimonials, endorsements, and ratings Be careful with testimonials, endorsements, and ratings LinkedIn and Avvo heavily promote the use of testimonials, endorsements, and ratings LinkedIn and Avvo heavily promote the use of testimonials, endorsements, and ratings

(either by peers or consumers). (either by peers or consumers). Florida prohibits testimonials unless certain specific requirements are met. Florida prohibits testimonials unless certain specific requirements are met. Rule 4-7.13 Deceptive and Inherently Misleading AdvertisementsRule 4-7.13 Deceptive and Inherently Misleading Advertisements b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or

inherently misleading advertisements include, but are not limited to, advertisements that inherently misleading advertisements include, but are not limited to, advertisements that contain:contain:

(8) a testimonial:(8) a testimonial:(A) regarding matters on which the person making the testimonial is unqualified to (A) regarding matters on which the person making the testimonial is unqualified to evaluate;evaluate;

(B) that is not the actual experience of the person making the testimonial;(B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally (C) that is not representative of what clients of that lawyer or law firm generally

experience;experience; (D) that has been written or drafted by the lawyer;(D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of (E) in exchange for which the person making the testimonial has been given something of

value; orvalue; or (F) that does not include the disclaimer that the prospective client may not obtain the (F) that does not include the disclaimer that the prospective client may not obtain the

same or similar results.same or similar results.

Using unencrypted e-mail to Using unencrypted e-mail to communicate with clientscommunicate with clients

Florida Bar Ethics Opinion 00-4 (July 15, 2000)Florida Bar Ethics Opinion 00-4 (July 15, 2000) While the Professional Ethics Committee has yet to issue an opinion on the While the Professional Ethics Committee has yet to issue an opinion on the

confidentiality implications of using e-mail to communicate with clients, confidentiality implications of using e-mail to communicate with clients, almost all of the jurisdictions that have considered the issue have decided that almost all of the jurisdictions that have considered the issue have decided that an attorney does not violate the duty of confidentiality by sending an attorney does not violate the duty of confidentiality by sending unencrypted e-mail. However, these opinions also generally conclude that an unencrypted e-mail. However, these opinions also generally conclude that an attorney should consult with the client and follow the client's instructions attorney should consult with the client and follow the client's instructions before transmitting highly sensitive information by e-mail. See, e.g., ABA before transmitting highly sensitive information by e-mail. See, e.g., ABA Formal Opinion 99-413, Alaska Ethics Opinion 98-2, Vermont Ethics Formal Opinion 99-413, Alaska Ethics Opinion 98-2, Vermont Ethics Opinion 97-5, Illinois Ethics Opinion 96-10, South Carolina Ethics Opinion Opinion 97-5, Illinois Ethics Opinion 96-10, South Carolina Ethics Opinion 97-08, and Ohio Ethics Opinion 99-2 . 97-08, and Ohio Ethics Opinion 99-2 . Thus, sending the e-mail Thus, sending the e-mail unencrypted would not be an ethical violation under normal unencrypted would not be an ethical violation under normal circumstances.circumstances.

Encryption of e-mail, storage Encryption of e-mail, storage system, and backupsystem, and backup

Email encryption obscures the content of the email in order to prevent Email encryption obscures the content of the email in order to prevent people other than the sender and the receptor from reading it.people other than the sender and the receptor from reading it.

System encryption makes the data of a desktop or laptop computer System encryption makes the data of a desktop or laptop computer inaccessible or illegible without a passkey regardless of the application with inaccessible or illegible without a passkey regardless of the application with which the file was created. which the file was created.

Backup system should be encrypted/secure as well. Many portable storage Backup system should be encrypted/secure as well. Many portable storage drives will allow encryption of backup data.drives will allow encryption of backup data.

See: ABA article - FYI: Playing it Safe With Encryption See: ABA article - FYI: Playing it Safe With Encryption http://www.americanbar.org/groups/departments_offices/legal_technologyhttp://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/FYI_Playing_it_safe.html_resources/resources/charts_fyis/FYI_Playing_it_safe.html

E-mail ethics and reply allE-mail ethics and reply all NYSBA Ethics Op. 1076 (Dec. 2015). Quote from the opinion:NYSBA Ethics Op. 1076 (Dec. 2015). Quote from the opinion: ““Reasons Not to Use Either “cc:” or “bcc:” When Copying e-mails to the ClientReasons Not to Use Either “cc:” or “bcc:” When Copying e-mails to the Client Although it is not deceptive for a lawyer to send to his or her client blind copies of Although it is not deceptive for a lawyer to send to his or her client blind copies of

communications with opposing counsel, there are other reasons why use of the either “cc:” communications with opposing counsel, there are other reasons why use of the either “cc:” or “bcc:” when e-mailing the client is not a best practice. or “bcc:” when e-mailing the client is not a best practice.

As noted above, “cc:” risks disclosing the client’s e-mail address. It also could be deemed As noted above, “cc:” risks disclosing the client’s e-mail address. It also could be deemed by opposing counsel to be an invitation to send communications to the inquirer’s client. by opposing counsel to be an invitation to send communications to the inquirer’s client. But see Rule 4.2, Cmt. [3] (Rule 4.2(a) applies even though the represented party initiates or But see Rule 4.2, Cmt. [3] (Rule 4.2(a) applies even though the represented party initiates or consents to the communication). consents to the communication).

Although sending the client a “bcc:” may initially avoid the problem of disclosing the Although sending the client a “bcc:” may initially avoid the problem of disclosing the client’s email address, it raises other problems if the client mistakenly responds to the e-mail client’s email address, it raises other problems if the client mistakenly responds to the e-mail by hitting “reply all.” For example, if the inquirer and opposing counsel are communicating by hitting “reply all.” For example, if the inquirer and opposing counsel are communicating about a possible settlement of litigation, the inquirer bccs his or her client, and the client about a possible settlement of litigation, the inquirer bccs his or her client, and the client hits “reply all” when commenting on the proposal, the client may inadvertently disclose to hits “reply all” when commenting on the proposal, the client may inadvertently disclose to opposing counsel confidential information otherwise protected by Rule 1.6. See Charm v. opposing counsel confidential information otherwise protected by Rule 1.6. See Charm v. Kohn, 27 Mass L. Rep. 421, 2010 (Mass. Super. Sept. 30, 2010) (stating that blind copying a Kohn, 27 Mass L. Rep. 421, 2010 (Mass. Super. Sept. 30, 2010) (stating that blind copying a client on lawyer’s email to adversary “gave rise to the foreseeable risk” that client would client on lawyer’s email to adversary “gave rise to the foreseeable risk” that client would respond without “tak[ing] careful note of the list of addressees to which he directed his respond without “tak[ing] careful note of the list of addressees to which he directed his reply”).”reply”).”

Employer’s lawyer receipt of employee’s Employer’s lawyer receipt of employee’s e-mail communications with counsel e-mail communications with counsel

ABA Formal Opinion 11-460 - Duty when Lawyer Receives Copies of a Third Party’s E-ABA Formal Opinion 11-460 - Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel (August 4, 2011) mail Communications with Counsel (August 4, 2011)

When an employer’s lawyer receives copies of an employee’s private communications with When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the requires the employer’s lawyer to notify opposing counsel of the receipt of the communicationscommunications. However, court decisions, civil procedure rules, or other law may impose . However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision. the available alternatives, as necessary to enable the employer to make an informed decision.

Lawyer’s receipt of unsolicited Lawyer’s receipt of unsolicited e-mail information on websitee-mail information on website

Florida Bar Ethics Opinion 07-3Florida Bar Ethics Opinion 07-3 A person seeking legal services who sends information unilaterally to a lawyer A person seeking legal services who sends information unilaterally to a lawyer

has no reasonable expectation of confidentiality regarding that information. A has no reasonable expectation of confidentiality regarding that information. A lawyer who receives information unilaterally from a person seeking legal services lawyer who receives information unilaterally from a person seeking legal services who is not a prospective client within Rule 4-1.18, has no conflict of interest if who is not a prospective client within Rule 4-1.18, has no conflict of interest if already representing or is later asked to represent an adversary, and may use or already representing or is later asked to represent an adversary, and may use or disclose the information. If the lawyer agrees to consider representing the disclose the information. If the lawyer agrees to consider representing the person or discussed the possibility of representation with the person, the person person or discussed the possibility of representation with the person, the person is a prospective client under Rule 4-1.18, and the lawyer does owe a duty of is a prospective client under Rule 4-1.18, and the lawyer does owe a duty of confidentiality which may create a conflict of interest for the lawyer. Lawyers confidentiality which may create a conflict of interest for the lawyer. Lawyers should post a statement on their websites that the lawyer does not intend to should post a statement on their websites that the lawyer does not intend to treat as confidential information sent to the lawyer via the website, and that treat as confidential information sent to the lawyer via the website, and that such information could be used against the person by the lawyer in the future.such information could be used against the person by the lawyer in the future.


Arizona Bar Ethics Opinion 02-04Arizona Bar Ethics Opinion 02-04 An attorney does not owe a duty of confidentiality to individuals who An attorney does not owe a duty of confidentiality to individuals who

unilaterally e-mail inquiries to the attorney when the e-mail is unsolicited. The unilaterally e-mail inquiries to the attorney when the e-mail is unsolicited. The sender does not have a reasonable expectation of confidentiality in such sender does not have a reasonable expectation of confidentiality in such situations. Law firm websites, with attorney e-mail addresses, however, should situations. Law firm websites, with attorney e-mail addresses, however, should include disclaimers regarding whether or not e-mail communications from include disclaimers regarding whether or not e-mail communications from prospective clients will be treated as confidential. prospective clients will be treated as confidential.


Massachusetts Bar Ethics Opinion 07-01Massachusetts Bar Ethics Opinion 07-01 In the absence of an effective disclaimer, a lawyer who receives unsolicited In the absence of an effective disclaimer, a lawyer who receives unsolicited

information from a prospective client through an e-mail link on a law firm information from a prospective client through an e-mail link on a law firm web site must hold the information in confidence even if the lawyer declines web site must hold the information in confidence even if the lawyer declines the representation. Whether the lawyer's firm can represent a party adverse the representation. Whether the lawyer's firm can represent a party adverse to the prospective client depends on whether the lawyer's obligation to to the prospective client depends on whether the lawyer's obligation to preserve the prospective client's confidences will materially limit the firm's preserve the prospective client's confidences will materially limit the firm's ability to represent the adverse party. ability to represent the adverse party.

Practice over the internetPractice over the internet

Florida Bar Ethics Opinion 00-4 (July 15, 2000)Florida Bar Ethics Opinion 00-4 (July 15, 2000) An attorney may provide legal services over the Internet, through the An attorney may provide legal services over the Internet, through the

attorney's law firm, on matters not requiring in-person consultation or court attorney's law firm, on matters not requiring in-person consultation or court appearances. All rules of professional conduct apply, including competence, appearances. All rules of professional conduct apply, including competence, communication, conflicts of interest, and confidentiality. An attorney may communication, conflicts of interest, and confidentiality. An attorney may communicate with the client using unencrypted e-mail under most communicate with the client using unencrypted e-mail under most circumstances. If a matter cannot be handled over the Internet because of its circumstances. If a matter cannot be handled over the Internet because of its complexity, the matter must be declined.complexity, the matter must be declined.

As noted by the New York State Bar Association Committee on Professional As noted by the New York State Bar Association Committee on Professional Ethics in its Opinion 709, it is permissible to practice over the Internet as Ethics in its Opinion 709, it is permissible to practice over the Internet as long as the attorney complies with the ethics rules. See also Ohio Ethics long as the attorney complies with the ethics rules. See also Ohio Ethics Opinion 99-9 and South Carolina Ethics Opinion 94-27.Opinion 99-9 and South Carolina Ethics Opinion 94-27.

Use of “expert” and “specialist” Use of “expert” and “specialist” in lawyer advertisingin lawyer advertising

U.S. District Judge in Southern District of Florida found that the Florida Bar U.S. District Judge in Southern District of Florida found that the Florida Bar rule prohibiting lawyers from advertising that they are experts or specialists rule prohibiting lawyers from advertising that they are experts or specialists unless certified by the Bar was unconstitutional.unless certified by the Bar was unconstitutional.

The Florida Bar will file petition with advertising rule amendment regarding The Florida Bar will file petition with advertising rule amendment regarding lawyer’s use of “expert” and “specialist” on October 15, 2016.lawyer’s use of “expert” and “specialist” on October 15, 2016.

New subsection to Rule 4-7.14(5)(a)(D) states that a lawyer is prohibited from New subsection to Rule 4-7.14(5)(a)(D) states that a lawyer is prohibited from stating that he or she is “a specialist, an expert, or other variations of those stating that he or she is “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.” In to that demonstrated by the standards of the Florida Certification Plan.” In addition, if the lawyer’s area of expertise is an area in which the Bar approves addition, if the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”practice by The Florida Bar or another certification program.”

Use of “expert” in firm’s domain nameUse of “expert” in firm’s domain name

NYSBA Ethics Op. 1021 (9/12/2014)NYSBA Ethics Op. 1021 (9/12/2014) Law firm practiced exclusively in one area of law and says it “has a very successful Law firm practiced exclusively in one area of law and says it “has a very successful

track record.” The firm wished to use as its internet website domain name a track record.” The firm wished to use as its internet website domain name a combination of the name of its sole practice area and the word “expert,” for combination of the name of its sole practice area and the word “expert,” for example, “realestatelawexpert” or bankruptcylawexpert,” or the like. The website example, “realestatelawexpert” or bankruptcylawexpert,” or the like. The website would contain a disclaimer that the firm does not guarantee any favorable would contain a disclaimer that the firm does not guarantee any favorable outcomes, and that past success does not assure future results. The law firm says outcomes, and that past success does not assure future results. The law firm says that the firm will not use the word “expert” except in its domain name. that the firm will not use the word “expert” except in its domain name.

N.Y. Rule of Professional Conduct 7.5(e)(3) : lawyer or law firm may use a N.Y. Rule of Professional Conduct 7.5(e)(3) : lawyer or law firm may use a “domain name for an internet web site that does not include the name of the “domain name for an internet web site that does not include the name of the lawyer or law firm provided if it “does not imply an ability to obtain results in a lawyer or law firm provided if it “does not imply an ability to obtain results in a matter.” matter.”

N.Y. Rule of Professional Conduct 7.4 prohibits “expert” or “specialist unless N.Y. Rule of Professional Conduct 7.4 prohibits “expert” or “specialist unless certified.certified.

Conclusion: law firm may not use a domain name that has the word “expert” with Conclusion: law firm may not use a domain name that has the word “expert” with the law firm’s area of concentration.the law firm’s area of concentration.

Lawyer use of GrouponsLawyer use of Groupons Arizona Ethics Opinion 13-01 (2013) (Lawyer should not participate in on-line Arizona Ethics Opinion 13-01 (2013) (Lawyer should not participate in on-line

coupon service, because of concerns including conflicts, division of fees, coupon service, because of concerns including conflicts, division of fees, independence of professional judgment, and compliance with lawyer advertising independence of professional judgment, and compliance with lawyer advertising rules)rules)

Alabama Ethics Opinion 2012-01 (Lawyer’s participation in Groupon is Alabama Ethics Opinion 2012-01 (Lawyer’s participation in Groupon is improper because it constitutes improper fee splitting with a nonlawyer); improper because it constitutes improper fee splitting with a nonlawyer);

Indiana Ethics Opinion 2012-1 (Lawyer’s participation in Groupon is improper Indiana Ethics Opinion 2012-1 (Lawyer’s participation in Groupon is improper because it constitutes improper fee sharing, permits someone other than the because it constitutes improper fee sharing, permits someone other than the lawyer to hold client funds, permits prospective clients to create conflicts with lawyer to hold client funds, permits prospective clients to create conflicts with current clients, and improperly delegates creation of lawyer-client relationship to current clients, and improperly delegates creation of lawyer-client relationship to third party) third party)

Pennsylvania Ethics Opinion 2011-027 (2011) (Lawyer’s use of Groupon is Pennsylvania Ethics Opinion 2011-027 (2011) (Lawyer’s use of Groupon is impermissible fee-sharing).impermissible fee-sharing).

Lawyer use of GrouponsLawyer use of Groupons ABA Formal Opinion 465 (October 21, 2013) Lawyers’ Use of Deal-of-the-ABA Formal Opinion 465 (October 21, 2013) Lawyers’ Use of Deal-of-the-

Day Marketing Programs Day Marketing Programs ““Deal-of-the-day or group-coupon marketing programs offer an alternative Deal-of-the-day or group-coupon marketing programs offer an alternative

way to sell goods and services. Lawyers hoping to market legal services using way to sell goods and services. Lawyers hoping to market legal services using these programs must comply with various Rules of Professional Conduct, these programs must comply with various Rules of Professional Conduct, including, but not limited to, rules governing fee sharing, advertising, including, but not limited to, rules governing fee sharing, advertising, competence, diligence, and the proper handling of legal fees. It is also competence, diligence, and the proper handling of legal fees. It is also incumbent upon the lawyer to determine whether conflicts of interest exist. incumbent upon the lawyer to determine whether conflicts of interest exist. While the Committee believes that coupon deals can be structured to comply While the Committee believes that coupon deals can be structured to comply with the Model Rules, it has identified numerous difficult issues associated with with the Model Rules, it has identified numerous difficult issues associated with prepaid deals and is less certain that prepaid deals can be structured to comply prepaid deals and is less certain that prepaid deals can be structured to comply with all ethical and professional obligations under the Model Rules.”with all ethical and professional obligations under the Model Rules.”

““The Committee has identified numerous difficult issues associated with The Committee has identified numerous difficult issues associated with prepaid deals, especially how to properly manage payment of advance legal prepaid deals, especially how to properly manage payment of advance legal fees, and is less certain that prepaid deals can be structured to comply with all fees, and is less certain that prepaid deals can be structured to comply with all ethical and professional obligations under the Model Rules.”ethical and professional obligations under the Model Rules.”

Lawyer use of GrouponsLawyer use of Groupons South Carolina Ethics Advisory Opinion 11-05 South Carolina Ethics Advisory Opinion 11-05 The use of daily deal websites to sell vouchers to be redeemed for discounted The use of daily deal websites to sell vouchers to be redeemed for discounted

legal services does not violate the Rule 5.4(a) prohibition on sharing of legal legal services does not violate the Rule 5.4(a) prohibition on sharing of legal fees, but the attorney is cautioned that the use of such websites must be in fees, but the attorney is cautioned that the use of such websites must be in compliance with Rules 7.1 and 7.2 and could lead to violations of several compliance with Rules 7.1 and 7.2 and could lead to violations of several other rules if logistical issues are not appropriately addressed.other rules if logistical issues are not appropriately addressed.

NYSBA Opinion 897 (12/13/11)NYSBA Opinion 897 (12/13/11) Lawyer may market legal services on a "deal of the day" or "group coupon" Lawyer may market legal services on a "deal of the day" or "group coupon"

website provided that the advertising is not misleading or deceptive and website provided that the advertising is not misleading or deceptive and makes clear that no lawyer-client relationship will be formed until the lawyer makes clear that no lawyer-client relationship will be formed until the lawyer can check for conflicts and competence to provide the services. If the lawyer can check for conflicts and competence to provide the services. If the lawyer is unable to provide the offered service due to a conflict or competence issue, is unable to provide the offered service due to a conflict or competence issue, the lawyer must give the coupon buyer a full refund. If the coupon buyer the lawyer must give the coupon buyer a full refund. If the coupon buyer terminates the representation, the buyer is entitled to a refund subject to the terminates the representation, the buyer is entitled to a refund subject to the lawyer's quantum meruit claim.lawyer's quantum meruit claim.

Lawyer use of GrouponsLawyer use of Groupons

NHBA Ethics Committee Advisory Opinion #2013-14/8 NHBA Ethics Committee Advisory Opinion #2013-14/8 As observed by the Indiana Bar Association in its opinion, offering legal As observed by the Indiana Bar Association in its opinion, offering legal

services through a group coupon deal is "fraught with peril." The Committee services through a group coupon deal is "fraught with peril." The Committee agrees, but believes that a lawyer may offer a coupon deal through a group agrees, but believes that a lawyer may offer a coupon deal through a group coupon service, if the lawyer carefully reviews the policies and practices of a coupon service, if the lawyer carefully reviews the policies and practices of a group coupon service, and ensures that the offer can be made consistent with group coupon service, and ensures that the offer can be made consistent with the applicable ethical obligations, as discussed above. The Committee believes the applicable ethical obligations, as discussed above. The Committee believes that it is unlikely that a prepaid deal can be structured in such a way as to that it is unlikely that a prepaid deal can be structured in such a way as to permit it to comply with a lawyer's ethical obligations, in particular, the permit it to comply with a lawyer's ethical obligations, in particular, the obligations under Rule 1.15(a). obligations under Rule 1.15(a).

Digital ethics tipsDigital ethics tips

should you use text messages with clients or to discuss client matters? should you use text messages with clients or to discuss client matters? be sure you have permission to text the personbe sure you have permission to text the person texts are accessible and not permanenttexts are accessible and not permanent expectation of privacy v. e-mails?expectation of privacy v. e-mails? use of electronic devices in public- confidentiality issuesuse of electronic devices in public- confidentiality issues don’t use public wi-fi in public place for confidential communications-use VPNdon’t use public wi-fi in public place for confidential communications-use VPN keep your laptop/tablet securekeep your laptop/tablet secure use built in security features‐use built in security features‐ turn off sharingturn off sharing be aware of surroundingsbe aware of surroundings consider using privacy screenconsider using privacy screen

Social media ethics tipsSocial media ethics tips

use available social media platformsuse available social media platforms consider positive client reviews/endorsements and testimonialsconsider positive client reviews/endorsements and testimonials consider endorsements by other lawyersconsider endorsements by other lawyers handle negative posts professionally-not online unless anonymoushandle negative posts professionally-not online unless anonymous if you blog, do not advertise! Provide relevant information/educationif you blog, do not advertise! Provide relevant information/education develop appropriate social media strategy and policydevelop appropriate social media strategy and policy actively monitor/manage your professional social media presence and online actively monitor/manage your professional social media presence and online

reputationreputation be aware of lawyer advertising rules which now apply to all mediabe aware of lawyer advertising rules which now apply to all media keep things privatekeep things private modify privacy and search settings on your Facebook, Twitter, LinkedIn, or other modify privacy and search settings on your Facebook, Twitter, LinkedIn, or other

social network accounts.social network accounts. take advantage of the privacy features on your blog or personal website.take advantage of the privacy features on your blog or personal website. no expectation of privacyno expectation of privacy

The EndThe End

Thanks for your attention and be careful out there! Thanks for your attention and be careful out there!