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Best Practices Regarding Technology (Series: Legal Ethics - Best Practices)

Technology is rapidly changing the way lawyers provide services. This is so especially in light of the Covid-19 pandemic, which creates new and different ethical challenges to confidentiality, cyber fraud and securing data, marketing and advertising concerns, and client communications. This webinar will address a myriad of new problems lawyers are facing and some practical suggestions and solutions that arise out of the changing manner and pace of the practice of law. This webinar will also cover several ABA Model Rules of Professional Conduct.

To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/best-practices-regarding-technology-2021/

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Best Practices Regarding Technology (Series: Legal Ethics - Best Practices)

  1. 1. 1
  2. 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
  3. 3. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 3
  4. 4. Meet the Faculty MODERATOR: Michelle Gershfeld - Law Offices of Michelle Gershfeld PANELISTS: George Kuney - University of TN College of Law Bernard Burk - Formerly University of North Carolina School of Law Gerald Meyer - MoloLamken LLP Kathryn Nadro - Sugar Felsenthal Grais & Helsinger LLP 4
  5. 5. About This Webinar Best Practices Regarding Technology Technology is rapidly changing the way lawyers provide services. This is especially so in light of the COVID-19 pandemic, which creates new and different ethical challenges to confidentiality, cyber fraud and securing data, marketing and advertising concerns, and client communications. This webinar will address a number of new problems lawyers are facing and some practical suggestions and solutions that arise out of the changing manner and pace of the practice of law. This webinar will also address several ABA Model Rules of Professional Conduct, and Ethics Opinions construing them. 5
  6. 6. About This Series Legal Ethics – Best Practices Corporate scandals make the headlines periodically, but businesses and the lawyers that work with them face ethical challenges every day, even in situations that are legally compliant. This webinar series examines ethical issues confronted by lawyers in a variety of contexts. The panelists consider and recommend different approaches to ethical decision- making and lawyers responsibilities and concerns, especially in light of the impact of the COVID-19 pandemic. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 6
  7. 7. Episodes in this Series #1: Best Practices Regarding Technology Premiere date: 2/10/21 #2: Hot Off the Presses- Recent Cases & Decisions Premiere date: 3/10/21 #3: How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts Premiere date: 4/14/21 7
  8. 8. Episode #1 Best Practices Regarding Technology (Throughout this PowerPoint, “RPC” is used to cite any ABA Model Rule of Professional Conduct. The Model Rules have been adopted in varying forms in all 50 states and the District of Columbia in the same or a similar numbering format as the Model Rules.) 8
  9. 9. Practice During a Pandemic • Resources on Ethics Issues Related to the Pandemic (generally) • ABA Formal Ethics Opinion No. 482 (2018): ―Ethical Obligations Related to Disasters‖
  10. 10. Practice During a Pandemic • Does it matter where the client is located? (See Ohio State Bar Ass’n v. Klosk, in which a California lawyer was penalized under an Ohio law forbidding unauthorized practice for representing an Ohio resident in debt negotiations) • ABA Formal Ethics Op. No. 495 (2020) provides guidance for lawyers practicing remotely in a jurisdiction other than the one in which they are licensed
  11. 11. Technology-Related Competence of an Attorney • RPC 1.1: Competence ―A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.‖ • Comment [8] ―to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology….‖ 11
  12. 12. Storage and Communication of Client Information RPC 1.6(c): ―A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client‖ (emphasis added). Comments 18 and 19 to RPC 1.6: In determining which measures are reasonable to protect against inadvertent or unauthorized disclosure of confidential information under the circumstances, lawyers should consider:  The sensitivity of the information  The likelihood of disclosure if additional safeguards are not employed  The cost of employing additional safeguards  The difficulty of implementing the safeguards, and  The extent to which the safeguards adversely affect the lawyer’s ability to represent clients. 12
  13. 13. Storage and Communication of Client Information Application of Rule 1.6(c) raises a number of questions when lawyers are considering technological protections such as encryption, firewalls, passwords, or other measures. •Overview: Act reasonably; no hard-and-fast rules • ABA Formal Ethics Opinion No. 477R: Each practice should adopt a process to:  Assess risk  Determine responsive security measures  Verify effective implementation, and  Update your approach in light of developments. 13
  14. 14. Storage and Communication of Client Information • Assess Risks: Understand the Threats to Data – Especially Electronic Data – In Its Various Locations  Such as: unauthorized access; unauthorized disclosure; viruses; document transfer to portable devices (and subsequent loss). • Act Reasonably in Determining Default Rules for Data Storage Locations and Communication Methods  See generally RPC 1.1, 1.6  Act Reasonably when using Cloud Computing and Storage 14 • Evaluate When Additional Measures are Needed to Protect Particular Kinds of Client Information
  15. 15. Cloud Computing and Storage • ABA 2020 Cloud Computing Tech Report • Results are based on pre-COVID information • Cloud computing aka ―web services‖ or ―hosted services‖ in practical terms:  A web-based software service or solution  Software or services that can be accessed and used over the internet using a browser (or app) where the software itself is not installed locally on the computer being used by the lawyer accessing the service  Data is processed/stored on remote servers (rather than on local computers and hard drives) 15
  16. 16. Cloud Computing and Storage • Bottom Line: Reasonable care standard • Common themes:  exercise care in selecting vendor;  review terms of service;  ensure that vendor protects confidentiality and access; and  investigate security measures and any security lapses. 16
  17. 17. Cloud Computing and Storage • What do you do if your practice experiences a data breach? • ABA Formal Ethics Op. No. 483 (2018): ―Lawyers’ Obligations After an Electronic Data Breach or Cyberattack‖ 17
  18. 18. Technology and Marketing Legal Services • Regulatory Background: The Model Rules don’t regulate ―advertising‖ as such. • The Model Rules regulate ―communications‖—any and all communications by any means—―about the lawyer or the lawyer's services.‖ RPC 7.1. • ―Solicitation‖—a ―communication initiated by or on behalf of a lawyer or law firm‖ directed to a ―specific person the lawyer knows or reasonably should know needs legal services in a particular matter‖ and that offers to provide those services is regulated much more stringently than other ―communications,‖ and is generally prohibited when it’s immediate person-to-person contact for pecuniary gain. RPC 7.3. • Advertising must not be false or misleading (RPC 7.1), and must meet different states’ formal and substantive requirements for advertising, which vary a lot. 18
  19. 19. Technology and Marketing Legal Services • RPC 7.2(c) says that a lawyer must not ―state or imply that a lawyer is certified as a specialist in a particular field of law, unless . . . the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority . . . .‖ Different states have different rules about what it takes to be certified as a ―specialist,‖ and when a communication should be interpreted to state or imply a claim of certified specialization. • RPC 7.2(b) says that a lawyer must not ― compensate, give or promise anything of value to a person for recommending the lawyer’s services . . .‖ with a few minor exceptions. 19 o Trading recommendations on LinkedIn is probably a violation of RPC 7.2(c) o NY State Bar Association Ethics Opinion 1132 (8/8/17): Attorneys paying a marketing fee to Avvo amounts to paying for a recommendation, which is prohibited by NY RPC 7.2(a).
  20. 20. Attorneys and Social Media • Attorneys responding to negative reviews by clients:  Attorneys must not reveal confidential information in response to an online review.  Those who do can face discipline for an ethics violation (RPC 1.6(a), 1.8(b), 1.9(c), 1.18(b))  Why? The RPC 1.6(b)(5) exception to confidentiality for lawyer self-defense does not apply to a response to a negative online review o Rule 1.6(b)(5) by its terms authorizes a lawyer to disclose confidential information only in response to claims or allegations in litigation o Accord, ABA Formal Ethics Op. No. 496 (2021) o Different states take different approaches on this issue 20
  21. 21. Attorneys and Social Media • Client confidentiality reaches incredibly broadly:  Any information obtained from any source in connection with the engagement (RPC 1.6(a), 1.8(b), 1.9(c))  Any information learned from a prospective client (someone who consulted you about the possibility of representation), even if you’re not hired (RPC 1.18(a)-(b))  And your duty to keep the confidences lasts long after any engagement ends–at least until the client is dead • Given how broad the range of information is that confidentiality protects, there is probably very little– and maybe nothing–you can say in response to a negative review, no matter how false or unfair! 21
  22. 22. Attorneys and Social Media  If you never represented or discussed representing the ―client,‖ you can probably say so  But even client or prospective client identity is usually confidential (though only rarely privileged), so: o You can’t respond to a negative review because that would confirm you represented, or discussed representation with, the client or prospective client (accord, ABA Formal Ethics Op. No. 496 (2021)) o That’s true even if you don’t use the client’s name, because you’re confirming the representation and client’s identity by responding to that person’s review  And you certainly can’t supply or refute details online to defend yourself, because that’s all confidential information!  The ABA opinion is not binding, but such opinions are generally viewed as strong persuasive authority. A disciplinary authority may not follow it, and some state ethics opinions are more permissive, but you proceed at your peril. 22
  23. 23. Attorneys and Social Media • Strategies for responding professionally, without revealing confidential information:  Bear in mind that no response may be the best response, because any response likely increases the amount of attention the bad review receives, and the greater the controversy, the brighter the spotlight  ―My duties of confidentiality prevent me from responding to this review, or even confirming that I represented this individual, but it is our office’s policy to provide the highest quality and most responsive service. We’re deeply disappointed that this person claims to have had a different experience.‖  Contact the social media platform and appeal to whatever its rules are regarding fairness and accuracy in reviews to have the post deleted (but you can’t disclose any confidential client information to the webmaster either)  If appropriate and potentially constructive (often it won’t be), contact the former client personally and try to clear up any misunderstandings and mend fences 23
  24. 24. Managerial and Supervisory Lawyers • Responsibilities of managerial and supervisory lawyers:  Managerial lawyers (including partners) must make ―reasonable efforts‖ to ensure that the firm conforms to the Rules of Professional Conduct (RPC 5.1(a)), including that the conduct of nonlawyers working with or for the firm is ―compatible with the professional obligations of the [managerial] lawyer‖ (RPC 5.3(a)).  Supervising lawyers shall make ―reasonable efforts‖ to ensure that the lawyers the supervising lawyer supervises conform to the Rules of Professional Conduct (RPC 5.1(b)), and that the conduct of nonlawyers the supervising lawyer supervises is ―compatible with the professional obligations of the [supervising] lawyer‖ (RPC 5.3(b)). Comment 2: ―A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to the representation of the client, and should be responsible for their work product.‖ 24
  25. 25. About the Faculty 25
  26. 26. About The Faculty Michelle Gershfeld - MGershfeldlaw@gmail.com Michelle Gershfeld is a bankruptcy attorney, debt negotiator and personal financial life coach who advises people who are in debt, or building wealth, by identifying and overcoming obstacles that lie in their path to securing worry-free, financial wellness. Michelle’s private practice, Law Offices of Michelle Gershfeld, provides services to clients in financial distress to create a strategic, customized plan for each unique financial situation. Michelle defends foreclosures and evictions when necessary, and will assist clients to move forward with dignity, despite current hardships. Michelle also works with commercial clients to reorganize outside of a formal bankruptcy filing, which effectively serves businesses at reduced costs. 26
  27. 27. About The Faculty George Kuney - gkuney@utk.edu George W. Kuney is a Lindsay Young Distinguished Professor of Law and Director of the Clayton Center for Entrepreneurial Law at The University of Tennessee College of Law in Knoxville, Tennessee. He holds a J.D. from the University of California, Hastings College of the Law, an M.B.A. from The University of San Diego, and a B.A. in Economics from the University of California, Santa Cruz. Before joining the UT faculty in 2000, he was a partner in the Allen Matkins firm’s San Diego office. Previously he practiced with the Howard Rice and Morrison & Foerster firms in his hometown of San Francisco, doing litigation and transactional work largely in the context of business restructuring and insolvency. He teaches business law courses including Business Associations, Contracts, Contract Drafting, Commercial Law, Consumer Bankruptcy, Debtor-Creditor, Mergers and Acquisitions, Representing Enterprises, and Workouts and Reorganizations. Kuney has written a number of books and articles and given presentations about business, contracts, and commercial law and insolvency- related topics. He advises clients nationwide regarding bankruptcy, restructuring, reorganization, and related subjects. He is admitted to the bar in California and Tennessee. 27
  28. 28. About The Faculty Bernie Burk - bernie.burk@bernieburk.com Professor Bernard Burk previously taught at the University of North Carolina School of Law. He is currently sitting out the pandemic finishing a textbook on legal ethics, to be published later this year by Wolters Kluwer Law & Business, entitled Ethical Lawyering: A Guide for the Well-Intentioned (with Nancy Rapoport of the University of Nevada at Las Vegas School of Law, and Veronica Finkelstein, Asst. U.S. Attorney for the E.D. Pa. and adjunct at Drexel University School of Law). Prof. Burk engages in consulting and expert witness work in the areas of legal ethics and professional conduct. 28
  29. 29. About The Faculty Gerald Meyer - gmeyer@mololamken.com Gerald Meyer’s practice focuses on complex business litigation, white collar criminal matters and investigations, and appellate litigation. He has represented businesses, senior corporate officials, and individuals in a broad array of subject matters, including securities litigation, class actions, antitrust law, and constitutional law. He has tried cases to verdict and drafted and argued dispositive, discovery, and evidentiary motions in trial courts across the country. He has argued appeals before the Seventh Circuit, and has briefed appeals in the Supreme Court of the United States and numerous courts of appeals. Before joining MoloLamken, Mr. Meyer was an associate with Skadden, Arps, Slate, Meagher & Flom LLP in Chicago. He has represented companies and individuals in a wide range of tax planning matters, including mergers and acquisitions, restructurings, securities offerings, and issues involving tax-exempt organizations. Mr. Meyer also served as a law clerk to Judge Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit and to Judge G. Steven Agee of the United States Court of Appeals for the Fourth Circuit. 29
  30. 30. About The Faculty Kathryn Nadro - knadro@sfgh.com Kathryn (―Katie‖) Nadro advises clients on a diverse array of business matters, including commercial and business disputes, employment issues, and data security and privacy compliance. Katie works with individuals and businesses of all sizes to craft successful resolutions tailored to each individual matter. Katie has broad experience representing companies and individuals in contract, non-compete, discrimination, harassment, fiduciary duty, and trade secret litigation in state and federal court. With a background as both in-house and outside counsel, Katie understands that business objectives, time, and resources play an important role in reaching a favorable outcome for each client. Katie assists clients in navigating employment issues ranging from employee handbooks and FMLA policies to litigating discrimination and harassment claims, all while ensuring business needs and objectives are met. She also counsels clients on data security and privacy issues, including policy drafting and compliance with state, federal, and international law. 30
  31. 31. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 31
  32. 32. About Financial Poise 32 Financial Poise™ has one mission: to provide reliable plain English business, financial, and legal education to individual investors, entrepreneurs, business owners and executives. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/
  33. 33. reasonably to protect confidential client information. • ABA Formal Ethics Opinion 495  This formal Ethics Opinion provides guidance for lawyers practicing in different jurisdictions.

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