Welcome to Class

The Syllabus• Due dates for assignments (Tuesday of the Unit)• Mid-term project and mid-term exam• Final project (PowerPoint)• Office Hours

- Mondays and Fridays: 9-10 AM (EST); AIM => “Legalteach”

- Holidays: Dr. King

- Usually available b/4 and after class

• Discussion Board Requirements- Over 3 days

- Substantive Main Posts

-NOTE: check for more than one DB – must post on both

- Respond to several classmates’ posts (4)

- If you are struggling, confused, having problems with question, post and have your classmates help you!

SEMINARS, SEMINAR MAKE-UPS and WHAT TO DO IF WE HAVE TECHNICAL PROBLEMS

SEMINARS ARE HELD WEEKLY

•No seminars during units 5 and 10•Each seminar worth 5 points•Participation is important!

HOW DO I MAKE-UP A SEMINAR (ALTERNATIVE TO SEMINAR):

To earn points for missed seminars you must:

1.Listen to audio transcript2.Prepare 1 or 2 page summary of what you heard in WORD format3.Explain 3 ways that the material discussed in the seminar might be useful to you as a practicing paralegal/legal professional4.E-mail your summary/explanation to me at Darden@kaplan.edu within one week (7 days) of missed seminar (attach your summary to your email)5.No permission required!

NOTE: The alternative assignment must provide a clear summary of the material covered during the seminar along with your analysis of the material, i.e., tell me what you learned

TECHNICAL PROBLEMS WITH THE SEMINAR: •If we cannot get into the seminar, I will send you an email and we will regroup in the “chat” room. •If you do not receive an email, keep trying to get into the seminar

Important dates for PA230• First Seminar for PA230: January 5• Martin Luther King Jr. Day*: January 15–17• Last Day to Request Incomplete: March 7• Last Day of Class: March 15• Final Grades Available Online: March 21• Incomplete Coursework Due: March 25

• only applies to those who properly requested an incomplete and had it officially granted

WHY READ THE ANNOUNCEMENTS?

1. Contain important information

2. Contain help and additional information on the Unit

3. Might amuse you

4. You are responsible for the information contained therein

•Asking questions is essential to understanding

•If my inbox is not full, you are not learning!

*EMAIL ME*

About the Course• Once I grade an assignment, you cannot revise it – that

is the policy of the School of Legal Studies. You should try very hard to turn work in on time!

• All late work has to be in by the end of Unit 8 to be considered – that is a firm deadline

• Discussion boards: You can make up main post only for 75% max.

• Keeping track of time for the term is optional (with the exception of the Unit 7 Assignment)

About the Course

• Students in the course are a different levels regarding their understanding of technology

- if you know more than other students, please share your understanding with them on the DB;

- if you don’t understand something, please ask!

• This is an introductory course regarding legal technology

- you may at times know more than we are discussing at that time

- you may know more than me

- if that happens, enjoy that time and use it to get ahead!

About the Course

• I don’t want to offer too much information for fear that those without much technology background will feel overwhelmed.

• However, you can always email me or post a note/question

This Week's Objectives

• Understand the functions of technology in a law office and how it promotes efficiency and effectiveness;

• Understand the ethical issues in the use of technology and the legal workplace; and

• Understand the need for communications between the legal and technical staff.

BACKGROUND: How is Technology Used in a Law Office?

• ????????

BACKGROUND: How is Technology Used in a Law Office?• Word Processing• Spreadsheets• Time and Billing • Accounting• Calendars (case/deadline tracking)• Trial Prep• Email and Document Delivery• Job-posting• Client relations• Conflicts checks

WHAT IS ESI?

Electronically Stored Information

• Most info. now stored electronically.• Law offices need to protect info. the hold. Why? How?

Unit 1: Attorney-Client Privilege

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 – a lawyer may not reveal

“information relating to client representation”-Covers all client information, regardless of the source

-Generally covers client statements made in the presence of third parties

-Allows disclosure to prevent client crimes only if the crime is likely to result in imminent death or substantial bodily harm

Technology and Confidentiality

• Attorneys have a duty to keep client confidences, and those doing work for the attorney are similarly bound

- Legal assistants and non-legal staff have access to confidential data/information and need to understand the nature of confidentiality so that client confidences are not disclosed

- Encourages open and honest communications between client and attorney

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

Exceptions to the Duty of Confidentiality

When can client confidences be broken?

implied authorizations needed to carry out the representation

preventing criminal behavior by the clientdefending claims made against the lawyer criminal charges made against the lawyer

malpractice claims made against the lawyerdisciplinary charges made against the lawyer

collecting fees

The Attorney-Client Privilege

• Is related to the ethics duty of confidentiality• Is found in witness competency statutes• Is an evidentiary rule• Protects against compelled disclosure of confidential

communications

ATTORNEY-CLIENT PRIVILEGE

• The attorney-client privilege absolutely protects from disclosure:

• (1) communications from a client;• (2) to the client's lawyer (or to the lawyer's agent);• (3) relating to the lawyer's rendering of legal advice;• (4) made with the expectation of confidentiality;• (5) and not in furtherance of a future crime or tort;• (6) provided that the privilege has not been waived.

- From http://www.cfpainc.org/images/Paralegal_Guide-Ethics.pdf

The Paralegal’s Work Product and the Attorney-Client Privilege

Statements made to the paralegal in an attempt to seek legal assistance are covered by the attorney-client privilege, even where the jurisdiction’s attorney-client privilege statute doesn’t mention paralegals

But, for the paralegal’s work product--created during the course of litigation--to be covered by the attorney-client privilege, the work must have required professional skill (i.e. attorney skill)

CONFIDENTIALITY & PRIVILEGE

In other words . . .

• Confidentiality is an ethical duty owed to a client not to disclose certain information (i.e., matters communicated in confidence by the client; information related to representation, whatever its source)

• Attorney-Client Privilege is an evidentiary rule protecting certain information from disclosure

WAIVER

• Client can waive privilege or give consent disclose confidential information.

• Unintentional waiver occurs when information subject to privilege is disclosed to a 3rd party.

-Waiver of privilege to one extends to others

-Disclosure of confidential info. to one does not extend to others

Question?• What are some ways that a paralegal might

inadvertently disclose confidential information?

• What are some ways that a paralegal might inadvertently disclose privileged information?

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

Example

• Mary is abused by her husband• Mary comes to you to discuss DV case• Information Mary tells you is confidential• Mary tells a friend about her DV situation or a friend is

present at the attorney interview for support• Information is still confidential and you as a legal

professional cannot tell anyone about it; however, if the case goes to trial, Mary's friend may be required to testify because Mary waived privilege by telling friend – info disclosed to person outside the protected relationship (attorney/client)

Summarizing the Confidentiality Family Tree1.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))protects against discovery of attorney files and impressions (e.g., no discovery 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

Does confidentiality attach to the following?

1) Information about a case that was learned during a pre-representation interview with the client

2) Facts discovered from an adverse party during discovery (e.g., depositions, interrogatories, etc.)

3) Expert reports prepared on behalf of the client

4) Photographs of a crime scene that were taken by the attorney's investigator on behalf of the client

5) Notes of witness interviews

6) Legal research, pleadings and briefs

Note: even though information has been disclosed, it may still be confidential (e.g., briefs, pleadings filed with the court)

So what if I accidentally disclose• Clawback Agreement: Agreement between the parties that production

of privileged or protected material, without intent to waive the privilege or protection, will not constitute a waiver. See FRCP 26 (b)(5)

• FRE 502: The inadvertent disclosure of attorney-client or work product information in a federal proceeding does not operate as a waiver of either privilege, where:

(1) disclosure was inadvertent, and

(2) holder of the privilege took reasonable steps to prevent the disclosure, and

(3) holder promptly took reasonable steps to rectify the error.

• FRCP 26 and 37

FRE 502 – Summary – Limitations on Waiver

• If a waiver of privilege is found, the waiver extends to undisclosed communications or information only if (1) the waiver is intentional, (2) the other communications involve the same subject matter, and (3) the communications "ought in fairness to be considered together."  Rule 502(a).

• If the disclosure is inadvertent, it does not operate as a waiver in either federal or state court if (1) the disclosure was inadvertent, (2) the holder of the privilege took "reasonable steps to prevent disclosure," and (3) the holder "promptly took reasonable steps to rectify the error."  Rule 502(b)

• If the disclosure was made in a state court proceeding, it doesn't operate as a waiver in a federal proceeding if either the disclosure wouldn't have been a waiver under the federal rule, or it wouldn't be a waiver under state law. Rule 502(c).

• If the Court enters an Order (like a consent Protective Order) that a disclosure will not be a waiver, that Order will bar any determination by another federal court or a state court that a waiver has occurred.  In other words, such a judicially approved non-waiver provision will have effect beyond the pending litigation, which isn't the case now.  Since parties can provide by such an agreement that, for example, there will be no waiver irrespective of the care taken by the disclosing party, no-waiver provisions will no doubt become stock provisions in Protective Orders. An agreement between the parties on waiver issues won't be effective unless it becomes part of a Court Order.  Rule 502(d) and (e).

- Taken from : http://www.ncbusinesslitigationreport.com/tags/attorneyclient-privilege/

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. See ABA Formal Opinion 99-413.

Other Model Rules• 1.1 Competence• 1.3 Diligence• 5.1 Responsibility of a Partner

or Supervisory Lawyer• 5.2 Responsibilities of a

Subordinate Lawyer• 5.3 Responsibilities Regarding

a Non-Lawyer Assistant

QUERY• How can

technology help us meet our legal requirements?

Protecting Against Breaches of ConfidentialityUse encrypted email, phone, etc.; secured WiFiScreen for metadataGet client permission to communicate by emailChange computer passwords frequentlyBe careful on the phone Be careful in common office spaceProtect files and other client documents

(passwords? pdf? proper redaction technology, LoJack, personal security)

Remember WWII phrase, “loose lips sink ships”Listservs, blog posts, discussion boards, etc.

Voice Recognition Software; Thin clients• What did you think of the section in the first Chapter about voice recognition

software?- Do you think this will enhance the role of the legal assistant or could lead to a lesser need for legal assistants?

- Did you know that many offices already have voice recognition available on desktops (programs are different on servers) because Windows XP and Vista include tools for adding this to Microsoft Office 2003 and 2007 programs without buying additional software.

- If you use these, you can potentially dictate your papers. - Here is a link to more information on Microsoft voice recognition software. http://www.microsoft.com/windows/windows-vista/features/speech-recognition.aspx

• What did you think about the section on “thin clients”?- “Thin Client”: A device that relies on a server to operate; no local storage; feels like a traditional desktop, but without the moving parts (includes display, keyboard, mouse and basic processing power)

- Benefits: improved remote access; easier IT support; reliability; reduces data theft; more secure backup; lower power consumption; less physical space; etc.

A few words about malpractice . . .

• A form of negligence that may arise from attorney misconduct or the failure to sue adequate skill or care when handling a case

• Contributors to malpractice: missed deadlines, bad communication, failure to find conflicts, substantive errors, billing issues

What technologies can help avoid malpractice?

Do You Presently Work in a Lawfirm?• If so, what type of technology is used?• Do the attorneys where you work take paper files to

court or computers?• Are PDA and Blackberry devices used? Do paralegals

get them too?

THIS WEEK’S DB

• How do you use technology for “daily tasks”? Reflect on your own use of technology and where you would be without it.

• What do you do or use now in your everyday life that even five years ago was a “new technology” but now you cannot “do without”? Describe the types of technology you use and how you use them. For example, do you use a cell phone, PDA, Blackberry, IPod, or computer?

• What do you see as being the pros and cons of using technology?

• Is it possible to rely too much on technology?

Practice Questions!

Question # 1

Plaintiff's attorney told an IT consultant that his client told him that she ran a red light.  Did the attorney violate the attorney/client privilege?

A)Yes

B)No

Answer: Question # 1

• Yes! An attorney or legal assistant cannot reveal information that is learned in the course and scope of a client representation. This was not an agent or “other person” needing to know this as part of the representation.

Question # 2

At a criminal jury trial, client tells attorney that client insists on testifying falsely.  Attorney attempts to persuade client to testify truthfully and explains the consequences of perjury.  Still, the client is adamant. Will the attorney violate the duty of confidentiality by telling someone?

Answer: Question # 2

• No. If the client is going to commit a future crime or perjury, the attorney cannot allow the client to take the stand and can reveal that without violating the duty of confidentiality.

• In a Civil Case-Jurisdictions may make a distinction between civil cases where the confidentiality may be breached and criminal cases where some jurisdictions mandate withdrawal rather than revealing the perjury.

Question # 3

Defendant says to his lawyer, "I committed the murder, and I'm glad.  Will you represent me?"  Defendant's statement is:

Question # 3

A) Not privileged because of the crime/fraud exception.

B) Privileged, but only if the attorney undertakes the representation.

C) Privileged.D) Privileged, but only if the client pleads guilty.

Answer: Question # 3

• C –Privileged!

Question # 4

The attorney-client privilege does NOT apply if:

A. The attorney charges their client a whole lot of money

B. The attorney takes the stand as a character witness for their client

C. The confidential information is exchanged immediately following the crime

D. The client explains his plan to commit a future murder

Answer: Question # 4

•D. The client explains his plan to commit a future murder. Only threats of imminent serious crimes will allow a lawyer to disclose in criminal cases in many jurisdictions.