Tag Archives: ethics

Judicial Ethics and Social Media

On February 21, 2013, the American Bar Association released a formal opinion (#462) regarding judicial ethics in the social media context.  The ABA concluded,

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impartiality.

So what does this mean?

Electronic Social Media and the Judicial Independence, impartiality, and integrity

The ABA recognized that social networking is a part of worldwide culture and that electronic social media interactions might be beneficial to judges in order to prevent them from being thought of as isolated or out of touch.

So how should judges then behave in this electronic environment?  Given the oath and importance of promoting public confidence in the independence, integrity, and impartiality,” the judge must be sensitive to the appearance of relationships with others.

It is important to understand that relations over the internet are difficult to manage because messages may be taken out of context, misinterpreted, or relayed incorrectly.

In other words, judges must assume that comments, images, or profile information, as well as any other information, might be publicly revealed without the judge’s permission.

In addition, judges should not form relationships with persons or organizations that might be violative of Judicial Ethics because these relationships convey that the individuals or organizations are in a position to influence the judge.

Furthermore, there might be disclosure or disqualification concerns regarding judges when the sites that were “friended” or “liked” which are used by lawyers or others who may appear before the judge.  The context is important here when assessing the judge’s relationship to attorneys or others who may appear before them.

Electronic Social Media and Election Campaigns

In the ABA Model Code (which may be adopted as a whole or in part by states), a judge or judicial candidate may engage in political or campaign activity with certain enumerated exceptions.

Of great importance is that judges and judicial candidates must “be free and appear to be free from political influence and political pressure.” ABA Model Rule 4.1 [1].

Similarly of equal importance, the judge or judicial candidate is prohibited from personally soliciting or accepting campaign contributions other than through a campaign committee.  ABA Model Rule 4.1(A)(8); see also ABA Model Rule 4.4.  In the Model Rules, the method of communication is not addressed or restricted.

In addition, judges and judicial candidates are prohibited from “publicly endorsing or opposing a candidate for any public office.” ABA Model Rule 4.1(A)(3).  This means that judges or judicial candidates should be aware that by “liking” or becoming a “fan” of, or by “sharing” messages, photos, or other content, this Model Rule might be violated.

In sum, judges and judicial candidates can use social media but must be aware of the potential pitfalls that might arise. These might arise from “friending,” “liking,” “sharing,” being a “fan” of, and posting comments, photos, or other information that might be distributed.  It is also important for judges and judicial candidates to be aware that any information on the Internet might be distributed by others and made public with or without their consent.

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Lawyer’s misconduct did not prevent class action certification

In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.

In this case, the 7th Circuit Court of Appeals determined  that class counsel’s faxing of unsolicited advertisement was misconduct.  The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members.  Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.

I raise this case because it raises the issue of attorney misconduct.  First of all, there are across-the-states ethics rules that govern attorneys’ conduct.  You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.

As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action.  The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct.  Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.

In fact, there are ethical rules that discuss the reporting of misconduct.  In Minnesota, Rule 8.3 discusses the reporting of professional misconduct.  Rule 8.3 states, in relevant part,

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class.  In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).

So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper?  The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.

via Courthouse News Service.

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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.

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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.

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Ethics and Cloud Computing

I came across this post regarding ethics and the use of cloud computing by attorneys.  The post is as follows:

The Massachusetts Bar Association has issued an ethics opinion concluding that lawyers may use cloud services to store and synchronize digital files containing client information, provided the lawyer takes reasonable measures to ensure that the service’s terms of use and data-privacy policies are compatible with the lawyer’s professional obligations. However, lawyers should not use cloud services for clients who expressly request that their documents not be stored online and lawyers should not store “particularly sensitive” information in the cloud without first obtaining the client’s express consent, the opinion says.

MBA Ethics Opinion 12-03 was drafted by the MBA’s Committee on Professional Ethics and approved by the association’s House of Delegates on May 17, 2012. The MBA is not the official lawyer-discipline board in the state, so its ethics opinions are advisory only.

Even so, the MBA’s opinion adds to the growing and unanimous list of lawyer-ethics panels that have concluded that lawyers may ethically use cloud applications and services, provided they take reasonable precautions to protect the confidentiality and security of the data. (See our earlier post: Two New Legal Ethics Opinions Suggest Clear Skies Ahead for Cloud Computing.)

This brings to 11 the number of states that have ruled on the ethics of cloud computing. In addition to Mass., the other opinions are:

Notably, all of these states agree that the use of cloud computing is ethical.

via Mass. Joins Other States in Ruling that Cloud Computing is Ethical for Lawyers.

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Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research

Lawyers may research potential and sitting jurors on Facebook and other social media sites, but communications with jurors should be avoided, according to a new ethics opinion.

The opinion by the New York City Bar Association’s Committee on Professional Ethics notes that it’s not always easy to discern whether a visit to a website will result in a communication.

The opinion says it is unethical for lawyers or those working on their behalf to make juror friend requests, a finding that is in accord with a recent opinion by New York County Lawyers’ Association. But the City Bar opinion sets out to address a broader issue: what constitutes a prohibited ex parte communication with a juror.

According to the opinion, the ban on communication is violated not only through friend requests, but also when the lawyer is aware that his or her review of the juror’s comments, pages or posts will be disclosed to the juror. In addition, a violation might occur even if the communication to the juror is inadvertent or unintended.

“In the social media context, due to the nature of the services, unintentional communications with a member of the jury venire or the jury pose a particular risk,” the opinion says. “For example, if an attorney views a juror’s social media page and the juror receives an automated message from the social media service that a potential contact has viewed her profile—even if the attorney has not requested the sending of that message or is entirely unaware of it—the attorney has arguably ‘communicated’ with the juror.”

Although the relevant rule appears to bar even inadvertent communication, the ethics committee takes no position on whether such a communication would in fact be a violation. “Rather, the committee believes it is incumbent upon the attorney to understand the functionality of any social media service she intends to use for juror research,” the opinion says. “If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation.”

Any lawyer conducting online research who learns of juror misconduct is obligated to promptly notify the court, the opinion says. The bar’s 44th Street Blog has a summary.

via Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research – News – ABA Journal.

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Lawyer Is Reprimanded for Threatening Ethics Complaint

An Indianapolis lawyer has received a public reprimand because she threatened to report an opposing lawyer to ethics authorities.The lawyer, Julia E. Dimick, wrote a letter implying she would file a grievance unless the opposing lawyer made a settlement offer, according to stipulated facts in the Indiana Supreme Court order PDF. The Legal Profession Blog notes the sanction.

Dimick made the implied threat while representing a woman in a potential claim against the lawyer over handling of settlement funds, the order says. Dimick’s letter had accused the other lawyer of a conflict of interest and other misconduct, and offered the lawyer a “window of opportunity” to resolve the case. Dimick wrote that if she did not hear from the lawyer within that time, she would file claims with the disciplinary commission and the state court.

via Lawyer Is Reprimanded for Threatening Ethics Complaint – News – ABA Journal.

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Be Nice: More States Are Treating Incivility as a Possible Ethics Violation

The ABA Magazine has an interesting article regarding lack of civility and how it is being addressed by different States and organizations, such as the ABA:

Incivility among lawyers is not a new concern. But as the general tone of public discourse in the United States becomes more heated, the issue of civility—or lack thereof—within the legal profession appears to be moving to the front burner.

“Civility used to be inherent in public discourse. Where did we go wrong?” said then-ABA President Stephen N. Zack in a speech during the 2011 ABA Annual Meeting in Toronto. “As lawyers, we must honor civility,” said Zack, the administrative partner at Boies, Schiller & Flexner in Miami. “Words matter. How we treat others matters.”

Lawyers engaging in uncivil behavior run the risk of court sanctions, but in a growing number of jurisdictions, incivility also may land them in front of their state disciplinary bodies on charges of violating ethics rules.

The ABA Model Rules of Professional Conduct don’t specifically address civility. Nevertheless, a lawyer’s alleged incivility may implicate the competence provisions in Model Rule 1.1 or, more often, Rule 8.4, which contains broad provisions covering misconduct—including dishonesty, fraud, deceit or misrepresentation—and, as stated in Rule 8.4(d), conduct “that is prejudicial to the administration of justice.”

via Be Nice: More States Are Treating Incivility as a Possible Ethics Violation – Magazine – ABA Journal.

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ABA Opinion Gives Guidance on Changing Legal Fee Arrangements

Lawyers aren’t expected to practice year after year without raising their fees. And circumstances, of course, can change unexpectedly. So it’s often permissible for an attorney to change legal fee arrangements during an ongoing representation, as long as the change is reasonable and consented to by the client.

However, other provisions may be required or simply recommended to make sure the change complies with the ABA Model Rules of Professional Conduct, explained the ABA Standing Committee on Ethics and Professional Responsibility in an ethics opinion (PDF) announced today in a press release.

The Model Rules are used by many states as a basis for their own attorney ethics rules.

Disclosure in the initial fee agreement that billing rates may change in the future, for example, could rarely, if ever, be a mistake, according to the opinion.

And while lawyers may also require a client to provide new or additional security for payment under an existing fee agreement, they should be aware that this is considered a business transaction with a client that requires compliance with additional ethical standards.

For more details about what is required, read the full opinion, which is known as Formal Opinion 11-458 (PDF).

via ABA Opinion Gives Guidance on Changing Legal Fee Arrangements During Representation – News – ABA Journal.

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Changes to Retainers – July 1

I recently wrote a post regarding the changes that will be coming to the Minnesota Rules of Professional Conduct starting July 1 2011.

You can access the post over at JD Rising: http://minnlawyer.com/jdr/2011/06/24/non-refundable-fees-are-not-okay-starting-july-1st/

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