unit 2: practical and ethical considerations of a paperless law office
TRANSCRIPT
Unit 2: Practical and Ethical Considerations of a Paperless Law Office.
Topics for Lecture
• Assignments this week• Attorney-Client Privilege and Confidentiality
Reminders
• Read weekly announcements• Office hours• Written assignment due Tuesday• One week to make up missed seminars• Quiz due Tuesday• Review/Wrap up seminar Monday/Tuesday• Discussion board has TWO topics tabs
Written Assignment
• Written Assignment – Ethical Considerations for a law firm website
• Remember the formatting requirements•10-12-point font•Double-spaced, one-inch margins•Header on every page•Reference page
•Use the Model Rules provided in the assignment – cite the rule• Provide an answer for each question
Quiz 2 Preview
• Issues of ability and competency are important in choosing and using technical consultants and support staff.
• Confidentiality, the ethical obligation to keep client information confidential, is founded in the belief that: clients should be able to tell their attorneys everything about their case, so proper legal advice can be given to the client.
• The attorney-client privilege is a rule of evidence that protects the client from the attorney being required to reveal confidential information and can only be waived by the client.
Quiz 2 Preview Continued
• The attorney must rely on agents such as paralegals, legal secretary, investigators, law clerks who are also covered by these privileges.
• Loyalty to the client is the essence of Rule 1.7, Conflict of Interest, of the ABA Model Rules of Professional Conduct.
• Ethics are minimally accepted standards of conduct within a profession.
QUIZ 2 PREVIEW CONTINUED
• Every member of the legal team must follow the rules of ethical behavior in the legal profession.
• The supervising attorney is the person responsible to ensure compliance with ethical rules.
• Confidentiality is an ethical obligation; a privilege is a rule of evidence; see attorney-client privilege, which is a rule of
evidence in furtherance of confidentiality.
UNIT 2 QUIZ PREVIEW CONTINUED
• Inadvertent disclosure of confidential information may be admissible in court depending on the rule adopted in the jurisdiction.
• When claiming a privilege, the person claiming the privilege has the burden to prove he rightfully holds the privilege.
• There is no police officer-accused privilege.
UNIT 2 QUIZ PREVIEW FINAL SLIDE
• The highest court of the jurisdiction in which an attorney practices, enforces the Code of Ethics for the lawyers and his or her staff.
UNIT 3 TEST PREVIEW
• The term used to describe the tangible or physical parts of a computer system is computer hardware.
• A CPU is the computer chip that interprets computer instructions and RAM is the temporary computer memory that processes data; stores work in progress.
UNIT 3 TEST PREVIEW
• Operating system software provides the basic instructions for starting up the computer and processing the basic input and output activity.
• The battery backup systems that are used for computers to guard against loss of "work-in-process" files when there's a short term power loss or long-term outage is known as: Uninterruptible Power Supply (UPS).
• A tablet-PC is a laptop that allows input from a pen device instead of a mouse or keyboard.
• Smartphones combine both mobile phone and handheld computer functions into a single device.
• Software programs provide instructions to the computer hardware for internal operations and to perform specific tasks, such as preparing documents, sorting information, performing computations, and creating and presenting graphic displays.
UNIT 3 TEST PREVIEW CONTINUED
• A mobile operating system is the software platform for a mobile device on top of which other programs run.
• Programs that perform functions in the background related to the operation of the computer are utility software.
• Compatibility is a matter of buying software for the type of computer used.
• Minimum requirements allow the computer to function with one program open at a time, but it may not run as fast as desired.
• Demo versions or trial versions of software are for making a determination of stability of purchase.
UNIT 3 TEST PREVIEW
• An end user license agreement is an agreement with the software vendor that authorizes and specifies the terms for the legal use of software.
• Shareware/Freeware are generally software that the author has chosen to make available free to the public on an honor system.
• The safest procedures when installing a new software program is to disconnect from the network altogether.
• You can burn a copy of a CD to make a backup of your programs.• Read Only Memory (ROM) is a type of memory that does not require power to retains its
content.• The network computer may be any combination of workstations electronically connected,
usually with a central computer that acts as a server on which files and data are stored for access to all other computers and shared software programs.
UNIT 3 TEST PREVIEW
• Security programs designed to limit access to authorized users are firewalls.• Highly developed algorithms, such as Google & Yahoo, search for relevant
information and return a listing in order of relevancy are known as specialized search engines.
• Internet Service Providers (ISP) are companies that provide users access to the WWW.
• A modem is a device used to translate electrical signals for transmission over the connections so the computers can “talk” with each other.
• A hub is a device for connecting multiple computer devices.• A router can be a: is a specialized computing device that routes messages.• The modern equivalent of a telephone number is the: email address.
UNIT 3 TEST PREVIEW
• The domain nomenclature is part of the URL naming protocol.• The type-ahead feature completes the address after a few letters of the address are
typed.• Static files are files that: contain only data.• An open standard for compression and decompression used widely for PC
download archives is called a ZIP file.• The World Wide Web (WWW) is made up of all of the computers on the Internet
that use HTML-capable software to exchange data and has become synonymous with the Internet, although technically it is just one component of it.
• A high performance alternative to a hub is a switch.
Introduction
• Today there are volumes of information at your fingertips 24/7
• The Internet is used by legal professionals to communicate, market the business, engage in commerce, and research issues.
• Technology involving the Internet and ethical issues that can arise with use of electronic forms of communication are ever evolving
Technology and Confidentiality
• Legal assistants and nonlegal staff have access to confidential data and need to understand the nature of confidentiality so that client confidences are not disclosed
• Attorneys have a duty to keep client confidences, and those doing work for the attorney are similarly bound
Key Concepts for Confidentiality
Duty of Confidentiality (and its exceptions)
The Attorney-Client Privilege The Work Product Rule Inadvertent Disclosure
The Model Rules
ABA Model Rule 1.6 - confidentiality
• Covers all client information, regardless of the source
• Allows disclosure to prevent client crimes only if the crime is likely to result in imminent death or substantial bodily harm
How Do the Ethics Rules Apply Confidentiality to Legal Assistants?Professional Responsibility Rules apply the duty of
confidentiality to the lawyer’s employees and associates (including paralegals and computer consultants)
NALA guidelines requires legal assistants to preserve client confidences and secrets before, during, and after the course of the professional relationship
The Attorney-Client Privilege
• Is related to the ethics duty of confidentiality• Is found in witness competency statutes• Is a rule of evidence (confidentiality is an ethical rule)• Protects against compelled disclosure of confidential
communications
Technology and Client Confidentiality
• Email• Fax Machines• Mobile or Cellular Phones
According to the ABA and many jurisdictions, communicating in these ways does not violate the duty of confidentiality because there is a reasonable expectation of privacy with this technology, and because federal law prohibits wiretapping.
Protecting Against Breaches of ConfidentialityUse encrypted emailGet client permission to communicate by emailChange computer passwords frequentlyBe careful on the phone Be careful in common office spaceProtect files and other client documentsRemember the WWII phrase, “loose lips sink ships”
Protecting Against Inadvertent Disclosure
Mark protected or privileged materials in a permanent way
When in doubt about whether certain discovery materials should be sent to the other side, confirm with your lawyer
If you think you may have inadvertently sent protected materials, or have received privileged materials, tell someone quickly
Summarizing the Confidentiality Family Tree
1.The Duty of Confidentiality (ethics rules: MR 1.6 or DR 4-101) prohibits the voluntary disclosure of client information
2.The Attorney-Client Privilege (witness competency statutes)prevents compelled disclosure of confidential communications
3.The Work Product Rule (civ. pro. rule 26(b)(3))presides over the discoverability of lawyer and employee-created evidence, prepared in connection to litigation
4.The Inadvertent Disclosure Doctrine (evidence rule 501(b))provides the opportunity after fouling up
Network Computers
• A single computer faces security issues only for that computer
• When a computer is on a network, a breach of security on one computer can affect other computers on the network
• Limiting access to the network can help to ensure that the system and files stored on it are not corrupted
Security Protocols
• “Security Protocols” refers to securing communications between points within computer network and across Internet.
• There are software programs that can limit ability to access file server, workstations, printers, etc. on the network.
Network Rights and Privileges
• How can right to access server and other devices be limited to maximize security?
• 1: Who has access can be indicated.
• 2: It can be designated what type of info. can be stored on server.
• • 3: How info. is disseminated can also be restricted.
Hacking• Unauthorized access to computer networks in order to obtain info.
stored on network or undermine how network operates (viruses)
• This can happen when someone on network surfs the web
• Liability can result when unauthorized material’s stored on network
Firewalls
• Firewalls serve to limit access to computer or system by those outside computer or system with unauthorized access
• Sometimes firewalls can prevent you from accessing some info. you need or working from offsite location
Backing Up Data
• Back up work while you are working and when you are done.
• USB sticks are great for storing data, but many computers also have internal recovery systems.
• Online data storage (example, Google docs)
Marketing
• Most law firms have a web site to market the firm electronically rather than in printed form.
• Usually the site will describe the firm, the type of work it concentrates in, and articles that it has published.
• Firms need to ensure that their web sites comply with state bar ethics codes.
Ethical Concerns – Marketing
• Does marketing online constitute advertising and solicitation?
• State bar regulations on attorney advertising must be carefully reviewed to ensure that all materials posted on the Internet or sent out to groups complies with certain rules
• Usually these websites are viewed as advertisements instead of solicitations
• Disclaimers – no attorney client relationship
Commerce and Research
• Legal material can be purchased online.• The Internet and other electronic data bases are also
used to conduct legal research to determine the strength of a case and that of an opponent.
Communication
• Through email and other electronic communication, clients are kept informed of their cases and have questions answered.
• There is an ethical duty to ensure that electronic communication is secure and protected if it contains confidential information.
What is Electronic Communication?
• There are several forms of electronic communication.• They are much faster forms of communication than
mail, but there are problems that can arise with the use of various forms of electronic communication.
Phones and Voice Mail
• Conference calls and voice mail are effective ways to communicate.
- consider what information you can and should leave on a voice mail, and who is on the conference call.
• You should also ask permission before putting someone on speaker phone, and know if someone else is doing so in order to avoid inadvertent disclosure of confidential information.
Faxes
• Most facsimile (fax) coversheets contain a “confidentiality” notice indicating that if the fax was received in error he or she should return it to the sender.
• This is used to maintain the attorney/client privilege and confidentiality.
• Double check fax numbers before sending.• Request confirmation of receipt.
• Avoid the “reply to all” unless you are sure everyone should be receiving the response.
• Be specific in the subject line so that what the email is about will be clear.
• Confidentiality and security are huge issues in the legal arena with regard to email.
• Type ahead feature should be disabled
Ethical Concerns -- Email
• Email is used between legal staff and clients, and can be used to send documents for a client to review before sending out.
• Because these documents are sent over networks over an essentially open environment, privacy is a concern.
• The communications can be intercepted and altered, so those emails need to be secure when they are sent.
Ethical Concerns -- Emails
• In order to avoid inadvertent waiver of the attorney client privilege, encrypting the communication that is sensitive is a good idea.
• Include in the email a notice that the communication is intended only for the recipient (just like is used with faxes)
• If the law firm deals with cyber law, it can also be held to a higher standard.
• Employers monitor emails and usually restrict them for professional use only!
Metadata
• Metadata tracks information about documents that are attached to an electronic file.
• System metadata refers to tracking the file – the file name, size, and where it can be found.
• Content metadata refers to who created the document, changes, etc.
So … What Can You Do?
• Encryption – locking information to protect it from being discovered by others would definitely serve to preserve the attorney/client privilege. Encryption software allows scrambling of information that can only be understood with those who have the encryption code.
• Those who do not have the password or encryption key will only see scrambled messages and files.
Encrypting Email
• There are different email encryption programs, such as Mail it Safe, that authenticate both parties before the contents of the message are understandable.
• Because of the confidential matters that are discussed between a lawyer and his client via email, this is an invaluable tool to ensure protection.
