Daily Archives: July 19, 2012

ABA Model Rules and Technology

The ABA Commission of Ethics has submitted proposals for amendments for the Model Rules, in order for the rules to adapt to the changing technology environment.  These changes affect confidentiality, competence, client development, lawyer mobility, and outsourcing.

These amendments will be presented at their August meeting.  To get more information about these changes, please click on the link below.

via ABA Commission on Ethics 20/20 | ABA Board of Governors / Commission on Ethics 20 20.

Leave a comment

Filed under attorneys

Lawyers and Social Media

Wisconsin Lawyer (May 2012) has an interesting read regarding the use of social media by lawyers.  These are the excerpts that caught my eye:

8 “Don’ts” When Using Social Media

  1. Don’t talk about clients or their matters.
  2. Don’t talk to clients about their matters.
  3. Don’t run afoul of the marketing-related Rules of Professional Conduct.
  4. Don’t engage in the unauthorized practice of law.
  5. Don’t engage in conflicts of interest.
  6. Don’t give legal advice online.
  7. Don’t jeopardize your identity. Protect it.
  8. Don’t make the wrong “friends.”

Risks when using Social Media

When using social media specifically for client development or marketing, you should be aware of the following additional risks:

  • Inadvertently establishing a lawyer-client relationship;
  • Providing legal advice to a nonclient without checking for potential conflicts of interest;
  • Not having enough oversight about how the firm or lawyers in the firm are being held out to the public;
  • Making snap decisions on new client intake;
  • Violating rules prohibiting direct solicitation of prospective clients; and
  • Engaging in the unauthorized practice of law or practicing out of jurisdiction.

In a Web-based environment, confidentiality can be more easily compromised than it might be when working through more traditional communication methods. Adesso says, “There are many times when social media is not the best forum to use. Social media does not easily allow for confidential communications, and thus should not be used in conjunction with any kind of adverse communication or contact with opposing counsel. In addition, there are many channels of advertising that will reach certain clients in a way that will not work on social media. However, if social media is done properly, it can act as an excellent entree to the more sophisticated or traditional means of communicating the message.”

Confidentiality can be breached in a number of ways when operating in an electronic environment, including by:

  • Failing to back up or protect client information;
  • Leaving a computer on or unattended;
  • Failing to secure your wireless network;
  • Having inadequate security (antivirus software and a firewall);
  • Failing to remove metadata or password protect-sensitive email attachments;
  • Inadvertently using the auto-fill function when sending email;
  • Inadvertently disclosing privileged or confidential client information;
  • Disclosing information without a client’s informed consent; and
  • Failing to provide a client with an electronically stored file.
  • Engaging in ex parte communication;
  • Making deceptive requests to gather information;
  • Failing to advise clients of the risks inherent in using social networking sites;
  • Directly contacting an adverse party;
  • Leaving an electronic trail that might provide a roadmap for a legal malpractice claim; and
  • Not taking the time to ensure the legal advice you give is correct.

via Wisconsin Lawyer May 2012: Managing Risk: Lawyers and Social Media: What could possibly go wrong? | State Bar of Wisconsin.

Leave a comment

Filed under attorneys, sanctions, technology

Protect your Email Privacy

1. Use a Strong Password. You give out your email address all the time; it’s not really private information. That being the case, the only thing protecting your account from misuse is the password. A malefactor who guesses your too-weak password gains full control of your email account. Protect your account with a strong password, especially if you use a Web-based email provider like Gmail or Yahoo mail.

2. Beware Public PCs. If you check your email on a public computer in a library or Internet café, be absolutely sure you’ve logged out before leaving. Even then, you might be leaving behind traces that could give the next user too much information about you. Follow PCMag’s advice to Use Public Computers Safely.

3. Protect Your Address. It’s true that you give out your email address every time you send a message, but there’s no need to give it to the whole world. Don’t include your email address in comments on blog posts, or in social media posts. Spammers and scammers scrape pages all the time looking for new victims.

4. Lock It Up. If you step away from your desk, lock the Windows desktop or close your email client. Otherwise a sneaky co-worker could read your mail or even reset your login password. Hold the Windows key and press L to lock the desktop instantly.

5. Don’t Be Fooled. Oh, dear. Your email provider has sent you notification of a security breach, with a link to reset your password. Don’t click that link! It’s almost certainly a fraud, designed to steal your email account password. If you have any doubts, navigate to the email provider’s site directly and double-check.

6. Use Encryption. Sometimes you just have to send sensitive information by email. To keep your data safe, save it as a document and use your word processing application’s built-in encryption, or store the document in an encrypted ZIP file. Then share the password with the recipient separately. If you need encryption frequently, try a free email encryption product like PrivateSky or Enlocked.

via Six Tips for Protecting Your Email Privacy | PCMag.com.

Leave a comment

Filed under technology

Courts Increasingly Cognizant of eDiscovery Burdens, Reject “Gotcha” Sanctions Demands

Courts are becoming increasingly cognizant of the eDiscovery burdens that the information explosion has placed on organizations. Indeed, the cases from 2012 are piling up in which courts have rejected demands that sanctions be imposed for seemingly reasonable information retention practices. The recent case of Grabenstein v. Arrow Electronics (D. Colo. April 23, 2012) is another notable instance of this trend.

In Grabenstein, the court refused to sanction a company for eliminating emails pursuant to a good faith document retention policy. The plaintiff had argued that drastic sanctions (evidence, adverse inference and monetary) should be imposed on the company since relevant emails regarding her alleged disability were not retained in violation of both its eDiscovery duties and an EEOC regulatory retention obligation. The court disagreed, finding that sanctions were inappropriate because the emails were not deleted before the duty to preserve was triggered: “Plaintiff has not provided any evidence that Defendant deleted e-mails after the litigation hold was imposed.”

Furthermore, the court declined to issue sanctions of any kind even though it found that the company deleted emails in violation of its EEOC regulatory retention duty. The court adopted this seemingly incongruous position because the emails were overwritten pursuant to a reasonable document retention policy:

“there is no evidence to show that the e-mails were destroyed in other than the normal course of business pursuant to Defendant’s e-mail retention policy or that Defendant intended to withhold unfavorable information from Plaintiff.”

The Grabenstein case reinforces the principle that reasonable information retention and eDiscovery processes can and often do trump sanctions requests. Just like the defendant in Grabenstein, organizations should develop and follow a retention policy that eliminates data stockpiles before litigation is reasonably anticipated. Grabenstein also demonstrates the value of deploying a timely and comprehensive litigation hold process to ensure that relevant electronically stored information (ESI) is retained once a preservation duty is triggered. These principles are consistent with various other recent cases, including a decision last month in which pharmaceutical giant Pfizer defeated a sanctions motion by relying on its “good faith business procedures” to eliminate legacy materials before a duty to preserve arose.

The Grabenstein holding also spotlights the role that proportionality can play in determining the extent of a party’s preservation duties. The Grabenstein court reasoned that sanctions would be inappropriate since plaintiff managed to obtain the destroyed emails from an alternative source. Without expressly mentioning “proportionality,” the court implicitly drew on Federal Rule of Civil Procedure 26(b)(2)(C) to reach its “no harm, no foul” approach to plaintiff’s sanctions request. Rule 2626(b)(2)(C)(i) empowers a court to limit discovery when it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Given that plaintiff actually had the emails in question and there was no evidence suggesting other ESI had been destroyed, proportionality standards tipped the scales against the sanctions request.

The Grabenstein holding is good news for organizations looking to reduce their eDiscovery costs and burdens. By refusing to accede to a tenuous sanctions motion and by following principles of proportionality, the court sustained reasonableness over “gotcha” eDiscovery tactics. If courts adhere to the Grabenstein mantra that preservation and production should be reasonable and proportional, organizations truly stand a better chance of seeing their litigation costs and burdens reduced accordingly.

via e-discovery 2.0 » Blog Archive » Courts Increasingly Cognizant of eDiscovery Burdens, Reject “Gotcha” Sanctions Demands.

1 Comment

Filed under courts, electronic discovery, legal decision, sanctions, technology

Case to watch re: supervisor liability

Ball v. Vance is the name of the case.

Issue: Whether the “supervisor” liability rule established by Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

via Adjunct Law Prof Blog: Supremes Grant Cert In Case Involving Faragher Affirmative Defense.

Leave a comment

Filed under civil rights, employment

9th Circuit thwarts Kellogg cy pres settlement

Note to class action lawyers: When doling out settlement funds to charities as part of a cy pres award, specify the recipients and choose them carefully.

That was the message the 9th Circuit delivered Friday in a decision striking down a settlement plaintiffs’ lawyers reached with cereal maker Kellogg Co over the benefits of Frosted Mini-Wheats. The decision is the latest in a string of recent cases from the 1st, 5th and 9th circuits to question whether class funds that are not distributed to the plaintiffs are going to charities that serve the interests of class members.

The plaintiffs sued in 2009, taking Kellogg to task for its claim that the breakfast cereal was clinically shown to improve children’s attentiveness by 20 percent. The parties settled within three months, with Kellogg agreeing to provide $2.75 million for consumer refunds (up to $15 per customer), a $5.5 million charitable food donation and a promise to stop making similar claims for three years.

When two class members represented by the Law Offices of Darrell Palmer and the Bandas Law Firm objected to the settlement and then appealed its confirmation, the 9th Circuit grabbed the opportunity to elaborate on the standard for cy pres it set in November in a class action against AOL. A three-judge appellate panel tossed the settlement, concluding that for one thing, the cy pres donation was too vague because it said awards to charities that feed the indigent would be chosen later. Food banks were also the wrong recipients, the court concluded, given that the lawsuit involved claims of deceptive advertising, not food deprivation.

“The only relationship between this lawsuit and feeding the indigent is that they both involve food in some way,” Judge Stephen Trott wrote for a panel that also included Judge Sidney Thomas and Judge Kevin Duffy of the Southern District of New York, who was sitting by designation. Any charitable donation should have gone to consumer protection groups that combat false advertising, the appeals court concluded.

The court cited its rejection of the cy pres award in the AOL case, which called for $110,000 to go to charities unrelated to the concerns of its customers, who had sued over promotional messages included in their emails. The decision also comes after a 5th Circuit ruling in September, which held that $830,000 in leftover settlement funds from a case against Elf Atochem should go to class members, not charities.

Class counsel Timothy Blood of Blood Hurst & O’Reardon defended the connection between the Kellogg food donation and the lawsuit, which dealt with claims about the nutritional value of a food directed at children. “We felt it was important to provide food products to the indigent because most of the indigent are children,” he told On the Case, adding that the court’s decision would lead to settlements that were less beneficial to society at large. Kellogg counsel Kenneth Lee of Jenner & Block did not immediately respond to requests for comment. The company declined to comment on the litigation.

Darrell Palmer, a lawyer for the objectors, welcomed the decision as a sign that federal appeals courts are scrutinizing whether cy pres awards have a relationship to the underlying claims. Palmer noted that the 9th Circuit panel included a New York federal judge. “I’m hoping (the ruling) might resonate with the 2nd Circuit,” Palmer said. “Judges often think of the 9th Circuit as liberal.”

In addition to a problem with the intended recipients, the court also found the $2 million set aside for plaintiffs’ attorney fees was excessive. Based on hours worked, lawyers for the class were charging $2,100 per hour — more than even “the most highly sought-after attorneys,” the court found. Class counsel Blood disputed that number, claiming it didn’t take into account work performed over the course of two years.

via 9th Circuit thwarts Kellogg cy pres settlement.

Leave a comment

Filed under civil rights, taxable costs