WAUKESHA COUNTY
BAR ASSOCIATION
2014 Annual Ethics Seminar
November 13, 2014
Brookfield, WI
The Ethics of E-mail and Social Media
Presented By:
Richard J. Cayo, Esq.
Halling & Cayo SC
320 E. Buffalo Street
Suite 700
Milwaukee, WI 53202-5837
rjc@hallingcayo.com
Dean R. Dietrich, Esq.
Ruder Ware, L.L.S.C.
500 First Street
Suite 8050
P.O. Box 8050
Wausau, WI 54402-8050
ddietrich@ruderware.com
Wausau Office:
500 First Street, Suite 8000
Wausau, WI 54403
715.845.4336
Eau Claire Office:
402 Graham Avenue
Eau Claire, WI 54701
715.834.3425
www.ruderware.com
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Timothy J. Pierce, Esq.
Ethics Counsel
State Bar of Wisconsin
5302 Eastpark Blvd.
Madison, WI 53718-2101
tpierce@wisbar.org
ETHICS AND TECHNOLOGY
By Timothy Pierce
Ethics Counsel
State Bar of Wisconsin
This outline addresses some interesting and frequently asked questions about how the
Rules of Professional Conduct for Attorneys (“Rules”) affect a lawyer’s ability to use
technology. It is not meant to be a comprehensive discussion of every topic addressed, but rather
an overview of a few topics that provides some information and resources for further research.
The views expressed in this outline are solely those of the author and are not binding on any
court or the Office of Lawyer Regulation.
I.
SOME GENERAL CONSIDERATIONS FOR LAWYERS ON-LINE
This section of the outline will discuss some general principles that lawyers must bear in
mind whenever lawyers have an on-line presence, such as a website or the lawyer’s use
of social media.
A)
Confidentiality: Perhaps no issue is of more importance for lawyers on-line than
understanding the scope of the duty of confidentiality. It is necessary therefore, to
understand the scope of a lawyer’s duty of confidentiality. Put another way, it is
necessary therefore to understand what constitutes confidential information under
SCR 20:1.6.
First and foremost, attorney-client privilege should not be confused with a
lawyer’s ethical duty of confidentiality. Attorney-client privilege is a rule of
evidence, not ethics, and thus only applies in proceedings in which the rules of
evidence govern and only determines whether certain types of evidence may be
admitted or compelled in such proceedings. It does not serve as a basis for
discipline and does not serve as a basis for determining what information about a
client that a lawyer may voluntarily reveal. SCR 20:1.6, which governs a
lawyer’s duty of confidentiality, applies in all other situations, does serve as a
basis for discipline and does determine what information about clients lawyers
may voluntarily reveal.
Put simply, when considering whether a lawyer may voluntarily reveal
information about a current or former client, SCR 20:1.6 governs. When facing
compulsion of law in a proceeding in which the rules of evidence apply, attorneyclient privilege governs.
It is also important when considering the differences between attorney-client
privilege and confidentiality to understand the scope of the information covered
by each. Attorney client privilege essentially protects communications between a
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lawyer and a client, and sometimes certain third parties, made for the purpose if
facilitating legal representation and which are intended to be confidential.1 By
contrast, SCR 20:1.6 applies “not only matters communicated in confidence by
the client but also to all information relating to the representation, whatever its
source.”2 Much information relating to the representation of a client is normally
not covered by the attorney-client privilege, but nonetheless is confidential.
In Formal Ethics Op. 04-430 (2004), the ABA’s ethics committee noted the
breadth of confidentiality in analyzing a lawyer’s duty to a report a lawyer not
engaged in the practice of law:
We also note that Rule 1.6 is not limited to communications
protected by the attorney-client privilege or work-product
doctrine. Rather, it applies to all information, whatever its source,
relating to the representation. Indeed, the protection afforded by
Rule 1.6 is not forfeited even when the information is available
from other sources or publicly filed, such as in a malpractice
action against the offending lawyer.
(footnotes omitted)
This excerpt makes the important point that even information that may be
available from public sources remains confidential as long as it is information
relating to the representation of a client. At the most basic level, almost any
information learned by virtue of or in the course of representing a client and
which relates to the representation is confidential. This means that when
considering “information related to the representation of a client,” the privileged
or non-privileged nature of the information is not determinative of whether the
lawyer is obligated to keep the information confidential. What is determinative is
whether the information relates to the representation of a client.
Disciplinary Proceedings against Harman, 244 Wis.2d 438, 628 N.W.2d 351
(2001) illustrates the breadth of a lawyers duty of confidentiality. In that case, the
Respondent lawyer was charged with violating his duty of confidentiality by
revealing information relating to the representation of a client. The Respondent
argued that he was free to reveal that information because it had already been
placed in the public record in a different case. The Court rejected this argument,
holding as follows:
We agree with Referee Jenkins’ interpretation of this rule and her
conclusion that the information obtained by Attorney Harman from
his client, S.W., even if not protected or deemed confidential
1
2
See sec. 905.03(2) Stats.
See SCR 20:1.6, Comment [3].
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because it had previously been filed in the Wood County case,
could not be disclosed without S.W.’s permission because that
information was obtained as a result of the lawyer-client
relationship he had with S.W.
This makes the important point that, while public disclosure generally waives
attorney-client privilege, such disclosure does not remove that information from
the protections of SCR 20:1.6.
Thus, for any lawyer considering an on-line presence, it is vital to remember that
any information that relates to the representation of the client, including publicly
available information or information that has already been disclosed, is
confidential information and may not be disclosed without the informed consent
of the client.
B)
Solicitation: Solicitation, for purposes of the this outline, is contact with a
prospective client known to be in need of legal services, initiated by the lawyer
for purpose of obtaining professional employment for pecuniary gain.
SCR 20:7.3(a) prohibits lawyers from using in-person, live-telephonic or realtime electronic contact to solicit professional employment from prospective
clients. SCR 20:7.3(c) does allow lawyers to solicit professional employment
from prospective clients by targeted direct mail, provided the letters and
envelopes are properly labeled “advertising materials” and a copy is timely filed
with the Office of Lawyer Regulation. A typical example of permissible targeted
direct-mail solicitation is the personal injury lawyer who obtains information
about recent accidents and sends letters to those involved. The Rule, does not,
however, define “real-time electronic communication. So the question arises as to
whether targeted e-mails, instant messages, communication in chat rooms and
other forms of internet based communications are prohibited “real-time electronic
contact” or something more akin to permissible targeted direct mail solicitations.
While some early ethics opinions3 deemed e-mail to be a prohibited form of
solicitation, the more recent, and now prevailing position, is that e-mail, when
appropriately labeled and in compliance with other sections of SCR 20:7.3 is a
form of targeted direct mail solicitation and thus permissible under SCR
20:7.3(c).4 There is no Wisconsin authority on point, but it is the opinion of the
author that e-mail is a form of targeted direct mail and thus permissible in
Wisconsin when SCR 20:7.3 is followed. Lawyers who choose to go this route
should also be familiar with the requirements of federal law with respect to
advertising by e-mail.5
3
4
5
See e.g. Illinois Ethics Op. 96-10 (1997) and Tennessee Formal Ethics Op. 95-F-570 (1995).
See e.g. Ohio Supreme Court Ethics Op. 2004-1 (2004) and Pennsylvania Ethics Op. 97-130 (1997).
See the CAN-SPAM Act, 15 U.S.C. §§7701-13.
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So if e-mail is OK, what is prohibited “real-time electronic contact?” SCR 20:7.3
does not define “real-time electronic contact,” and no other Wisconsin authority
directly addresses this point, but the clearly prohibited forms of solicitation (inperson and by phone) involve live real-time contact. Several states’ ethics
opinions have taken the position that real-time electronic communications are
personal solicitations prohibited by their respective versions of 7.3(b).6 In
particular, California State Bar Ethics Opinion 2004-166 held that lawyers’
communication with prospective fee paying clients in an internet chat room for
people affected by a mass disaster violated solicitation rules. Therefore, it is
reasonable to assume that types of electronic solicitation that involve similar
forms of real-time communication, such instant messaging would be prohibited,
but this is not a universally shared view.7
Lawyers using Facebook or other forms of social media as a means to generate
clients must be mindful of the prohibition on solicitation by real-time electronic
contact. For example, a lawyer’s attempt to contact someone through their
Facebook page after they have posted information about recent legal troubles in
the hopes of gaining a new client is clearly governed by SCR 20:7.3. If such
conduct constitutes “real-time electronic communication,” which this author
doubts, then such conduct is simply prohibited. At the very least, such contacts
must be clearly labeled “Advertising Materials.”
These same considerations apply whenever a lawyer uses any other types of
electronic communication, such as Twitter, text messaging, commenting on blog
posts, to contact potential clients in the hopes of soliciting their business.
C)
Other advertising Rules: Rules other than SCR 20:7.3 govern lawyer’s
communications about their services, and it is now clear that these other Rules
govern lawyer’s activities on the web or through electronic communications.
Many, if not most, lawyers now have a web page. Lawyers’ websites are
communications about the lawyer’s services and thus are subject to regulation
under the advertising Rules (SCRs 20:7.1 through 7.5).8 Furthermore, ANY
format through which a lawyer chooses to communicate about their services,
whether it be a newspaper ad (or column), Facebook, a ratings/marketing website
such as AVVO, is going to be governed by the lawyer advertising Rules. What
follows is a brief discussion of the each advertising Rule as they may apply to
websites and web presence. The full text of each Rule and Comment is attached
at the end of this outline.
6
Fla. Op. A-00-1, W.Va. 98-93, Ill. Op. 96-10.
Compare Florida Advertising Op. A-00-1 (2000), Utah Ethics Op. 97-10 (1997), Virginia Advertising Op. A-0110
(1998) with California Formal Ethics Op. 2004-166, Arizona Ethics Op. 97-04 (1997).
8
For an example of Wisconsin’s advertising Rules applied to a lawyers website, see Disciplinary Proceedings
Against Ness, 2002 WI 114, 256 Wis. 2d 33, 651 N.W.2d 724 (2002).
7
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SCR 20:7.1 Communications concerning a lawyer’s services:
This Rule prohibits lawyers from making any false or misleading
communication about the lawyer’s services and defines as
misleading the following; (a) any material misrepresentation of
fact or law, whether by omission or commission; (b) any statement
that is likely to create unjustified expectations, such as statements
without caveat about prior results; (c) any comparison with other
lawyers that cannot be factually substantiated; (d) and paid
testimonial that does not indicate the fact of the payment and
whether it is made by a client.
None of the requirements of SCR 20:7.1 are specific to any particular medium,
but lawyers must be mindful of these requirements when designing websites,
Facebook pages, AVVO listings, etc.
For an interesting example of how this advertising Rule (and others) can affect a
lawyer’s on-line presence, consider South Carolina Ethics Advisory Opinion
09-10 (2009). In that opinion, the South Carolina bar addressed a lawyer’s
obligation when actively participating in an on-line lawyer rating/marketing site
very similar to AVVO. First, the opinion notes that the lawyer is not responsible
for what others post about her unbidden. However, the site does allow a lawyer to
“claim” their listing and thus exercise control over the information (at least most
of it) at which point the lawyer does become responsible and must ensure that the
information complies with advertising Rules. Furthermore, if the site allows
lawyers to post endorsements from clients or peers, the lawyer is responsible for
ensuring such endorsements comply with the Rules if the lawyer solicits such
endorsements and exercises control over their posting.
SCR 20:7.2 Advertising: This rule; (a) allows for general
advertising, including a specific mention of electronic media, and;
(b) prohibits giving anything of value for recommending the
lawyer’s services with the exception of the costs of advertising,
not-for-profit, approved referral services, the purchase of a law
practice and certain non-exclusive reciprocal referral agreements.
Finally, (c) of the proposed rule requires that all advertisements
include the name and address of at least one attorney responsible
for its content.
One area in which SCR 20:7.2’s ban on giving anything of value in return for
recommending a lawyer’s services is with respect to internet referral services.
Non-profit referral services run by bar associations are specifically exempted
from this ban, but for-profit services, which generally charge for referrals do
exist. Authorities from other states differ somewhat as to whether such services
are violate the ban on payment for referrals or are permissible costs of advertising.
For example, the State Bar of Arizona has held that paying for a service which
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forwards legal questions from customers violates the ban, while the South
Carolina Bar concluded that fees paid to an internet referral provider are similar to
fees paid for other forms of advertising.9 Certain websites allow consumers to
post some details about their cases and receive bids from lawyers.10 There is no
Wisconsin authority on this issue, but it is highly likely that any service in which
a lawyer gives anything of value in return for having clients sent to the lawyer
will be found to violate SCR 20:7.2.
SCR 20:7.4 Communications of fields of practice: This Rule
prohibits lawyers from asserting that they are “certified specialists”
unless they are actually certified by an ABA accredited
organization and thus would limit the language lawyers could use
on websites or other electronic communications about their
services. However, the rule does not raise issues unique to the
internet or electronic communication.
SCR 20:7.5 Firm Names and letterheads: This rule prohibits
the use of misleading firm names and letterheads. It also requires
firms with offices in more than one jurisdiction to list the
jurisdictional limitations of lawyers not licensed in the jurisdiction
of a specific office. As discussed below, such information about
jurisdictional limitations, as well as actual office locations, would
seem to be particularly important for internet based
communications about a lawyer’s services.
D)
Unintentionally forming a lawyer-client relationship: As discussed above,
lawyers may use social media or other web-based media to intentionally solicit
new clients, and when doing so are subject to the advertising Rules. However,
lawyers also run the risk of unintentionally forming a lawyer-client relationship.
Consider the lawyer who has a Facebook page and receives a request from
someone to answer a very specific legal question; i.e., a request for legal advice.
Or consider the lawyer who posts a blog entry about an issue in landlord tenant
law, an individual then posts a comment asking how that law applies to their
specific facts and the lawyer responds by advising the comment poster on a
specific course of action
Generally, a lawyer-client relationship is established when a person seeks legal
services from a lawyer, the lawyer either affirmatively agrees to provide the
services or fails to manifest lack of consent to do so and the person reasonably
relies on the lawyer to provide the services.11 Further, formation of the lawyerclient relationship does not require a formal contract or payment of any kind.
9
Melissa Blades & Sarah Vermylen, Virtual Ethics for a New Age: The Internet and the Ethical Lawyer 17 Geo. J.
of Legal Ethics 637, 648 (2004).
10
Id. At 649.
11
See e.g. Restatement (Third) of the Law Governing Lawyers, §14.
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Once the relationship is formed, the lawyer assumes all obligations that come
with representing a client, including ethical and malpractice liability.
Any lawyer who responds to requests for specific legal advice on Facebook, on a
site like AVVO, in a chat room or at a cocktail party is likely rendering legal
services. The Rules explicitly recognize the possibility of providing limited
scope, or “unbundled” legal services, such as answering brief questions, but also
recognize that the lawyer who provides such unbundled services has a client and
is providing legal services. Unless the lawyer intends to assume responsibility for
rendering legal services, the lawyer should avoid responding to requests for
specific guidance. One malpractice carrier views the risks inherent in providing
specific information in blogs so great that it refuses to insure lawyer’s blogs
unless they are “informational” rather than “advisory.”12
E)
Unauthorized Practice of Law: The questions of what constitutes the practice
of law and when an attorney-client relationship is formed are beyond the scope of
the Rules. Yet these questions assume importance when a lawyer has a presence
on the internet and are thus worth briefly discussing.
The issue of unauthorized practice arises with interactive web-based
communications, such as e-mail, Facebook and discussion boards that allow a
lawyer to provide legal advice. Websites may also have interactive features.
Therefore, the question of exactly where the lawyer is practicing when responding
to an electronic request for advice from someone in another jurisdiction becomes
important. The California Supreme Court has held that a lawyer may practice by
computer and need not be physically present in California to engage in the
unauthorized practice of law there.13 Ethics committees have also opined that
lawyers may practice in other jurisdictions by the web.14 California Formal
Ethics Op. 2001-155 (2001) recommends that lawyers who wish to avoid having
their web communications seen as an offer to engage in the practice of law in
jurisdiction where the lawyer is not licensed use a notice which 1) clearly states
where the lawyer or firm is licensed; 2) indicates where the lawyer’s or firm’s
physical offices are located and 3) state that the lawyer’s firm’s website or other
web presence is not itself an invitation to an attorney-client relationship.
Lawyers who participate in interactive web-based communication with potential
clients or non-clients should also be careful to provide only very general
information and use disclaimers, unless the lawyer intends to form an attorney
client relationship. Such disclaimers may include a statement that any
information provide is meant to be of a general nature only and is not legal
12
See Adrienne E. Carter, Blogger Beware: Ethical Considerations for Legal Blogs, 14 Rich. J.L. and Tech. 5
(2007).
13
Birbrower, Montalbo, Condon & Frank v. Superior Court, 949 P.2d 1 (1998). See also Statewide Grievance
Comm. v. Zadora, 772 A.2d 681 (Conn. App. Ct. 2001).
14
See New York City Ethics Op. 2000-1 (2000); Ohio Supreme Court Ethics Op. 2001-2 (2001).
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advice, is not confidential, is not meant to solicit a client and does not form an
attorney client relationship. Ideally, such a disclaimer should be clearly posted on
a website or other location where a potential questioner could see the disclaimer
before contacting the lawyer.
Of course, whether any such disclaimer would be effective would likely depend
on specific circumstances. Further, use of disclaimers in forums such as chat
rooms may be difficult. The safest course is to avoid answering questions of nonclients over the web.15
F)
Jurisdiction – which rules apply? There is no question that ethical rules apply
to a lawyer’s use of the internet in connection with the practice of law.
Jurisdictions that have addressed the issue, whether by ethics opinion or rule, have
reached the obvious conclusion that lawyers’ and law firms’ websites are
communications about lawyers’ services (i.e., advertising) and, as such, are
governed by that jurisdiction’s advertising rules. In Wisconsin, the Office of
Lawyer Regulation has applied the former advertising rules to electronic
communications in one reported case, in which a lawyer was disciplined for
violating the advertising rules by posting false statements on his website.16
Thus, Wisconsin lawyers who maintain web presence must heed Wisconsin’s
Rules of Professional Conduct. However, a website, for example, can be viewed
from any state, so the question arises as to when another state’s advertising rules
may apply to a Wisconsin’s lawyer’s website. Or a lawyer may choose to
respond to questions in a chat room without knowing where the questioner
resides. The New York State Bar has opined that lawyers’ may appropriately
seek clients in other states if the lawyer is competent to handle the matter and may
lawfully undertake the representation.17 While there is no comparable opinion or
case in Wisconsin, the Rules certainly do not prohibit a Wisconsin lawyer’s
website from indicating a willingness to represent clients in other states when the
lawyer may competently and ethically represent such clients.
However, states have asserted jurisdiction over lawyers licensed in other states
based upon advertising. For example, the Florida Supreme Court has in the past
extended its’ advertising rules to out-of-state lawyers who advertise for clients in
Florida.18 While the relevant Florida case was decided before the internet, that
holding presumably could be applied to websites. Mississippi now has a
disciplinary rule that subjects any lawyer who advertises for clients in Mississippi,
whether they are licensed there or not, to the states disciplinary rules.19
Wisconsin’s choice of law rule, SCR 20:8.5(b), applies, for conduct not in
15
16
17
18
19
Providing legal advice to non-clients will, in certain circumstances, violate SCR 20:4.3.
Disciplinary Proceedings Against Ness, 256 Wis.2d 33, 651 N.W.2d 724 (2002).
N.Y. State Bar Ass’n Comm. On Prof’l Ethics Op. 709 (1998).
See Florida Bar v. Kaiser, 397 So.2d 1132 (Fla. 1981).
J.T. Westermeier Ethics and the Internet, 17 Geo. J. of Legal Ethics 267, 284 (2004), hereafter “Westermeier.”
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connection with a judicial proceeding, the rules of the jurisdiction in which the
conduct occurs or where the predominant effect of the conduct occurs. Therefore,
although lawyers who are competent to handle such matters may indicate a
willingness to represent clients beyond Wisconsin’s borders on their websites (or
through e-mail solicitation when permissible), lawyers should be aware of and
seek to comply with the rules in all states in which they seek clients.
This can be difficult for firms with offices in more than one state, and even more
so with very large firms who may have offices in foreign countries as well as
several states. Nonetheless, most firms have a “home” office and that firm’s
websites should follow that jurisdiction’s advertising rules for their websites with
office locations and jurisdictional limitations clearly listed.20
G)
Cybersnooping (deception on-line): Lawyers, like anyone else, can assume
different identities or remain anonymous on-line. This fact, coupled with the
increasing prevalence of participation in social media like Facebook and the
willingness of some individuals to freely disclose information on line, may cause
a lawyer to view social media as well as websites as a means of gathering
information about adversaries or potential adversaries. Lawyers must be mindful
that the Rules apply with full force in cyberspace.
Philadelphia Bar Association Ethics Opinion 2009-02 addressed the propriety of
a lawyer hiring an investigator to “friend” an adverse witness on social
networking sites to gain access information that may be of value in crossexamining the witness. The investigator would not reveal any affiliation with the
lawyer but would not lie. In finding the proposed course of conduct to be in
violation of several Rules, the ethics committee of the Philadelphia Bar stated:
Turning to the ethical substance of the inquiry, the Committee
believes that the proposed course of conduct contemplated by the
inquirer would violate Rule 8.4(c) because the planned
communication by the third party with the witness is deceptive. It
omits a highly material fact, namely, that the third party who asks
to be allowed access to the witness’s [Facebook and MySpace]
pages is doing so only because he or she is intent on obtaining
information and sharing it with a lawyer for use in a lawsuit to
impeach the testimony of the witness. The omission would
purposefully conceal that fact from the witness for the purpose of
inducing the witness to allow access, when she may not do so if she
knew the third person was associated with the inquirer and the
true purpose of the access was to obtain information for the
purpose of impeaching her testimony.
20
Firms may be well advised, however, to review the advertising rules in every state in which they have an office.
Some states, for example, require hardcopies of websites to be filed with the appropriate authority, and attempts
should be made to comply as fully as possible with the rules of states in which the firm has a physical presence.
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The fact that the inquirer asserts he does not know if the witness
would permit access to him if he simply asked in forthright fashion
does not remove the deception. The inquirer could test that by
simply asking the witness forthrightly for access. That would not
be deceptive and would of course be permissible. Plainly, the
reason for not doing so is that the inquirer is not sure that she will
allow access and wants to adopt an approach that will deal with
her possible refusal by deceiving her from the outset. In short, in
the Committee’s view, the possibility that the deception might not
be necessary to obtain access does not excuse it.
The question of whether and to what extent deception in the practice of law is
permissible does not have a clear answer. Some cases of deception result in
severe discipline, while the use of “testers” in certain cases has generally been
recognized as appropriate.21 Despite the unsettled nature of the law in this area,
lawyers must be mindful of their obligations to avoid conduct involving deceit,
dishonesty or misrepresentation [SCR 20:8.4(c)], to avoid making false
statements of fact to third parties (SCR 20:4.1) and avoid instructing non-lawyer
assistants to engage in conduct the lawyer could not engage in herself
[SCR 20:8.4(a)].
21
H)
Virtual Worlds – Second Life: Virtual communities allow individuals to
assume an identity, a residence, a profession and to interact with other “residents”
of the virtual community and even engage in commercial transactions. It is
possible to treat one’s participation in a virtual community as a game or hobby,
with no connection to one’s real life. For example, a lawyer may choose to
participate in a virtual community as an auto mechanic and never disclose that she
is a lawyer in real life. In such a case, there is little to worry about with respect to
the Rules. However, if the lawyer views participation as a marketing tool and an
opportunity to get real-world clients, then all the considerations discussed above,
such as advertising Rules, unauthorized practice, formation of the lawyer-client
relationship come into play.
I)
Common sense: Lawyers, with their heightened fiduciary obligations, must
exercise common sense when operating in a public domain and remember that the
enhanced communication and ability to reach large numbers of people that comes
with the use of social media also means that any information the lawyer posts is
widely available. At a recent ABA conference, a Texas judge told an anecdote of
a lawyer who requested an adjournment because of a funeral. The judge granted
the adjournment, but subsequently checked the lawyer’s Facebook page and
discovered the lawyer describing a week of partying in the city in which the
funeral occurred. When the lawyer requested a second adjournment, the judge
See e.g. In re Gatti, 8 P.3d 966 (Ore. 2000); Gidatex v. Campaniello Imports Ltd., 82 F.Supp.2d 119 (1999).
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refused and informed the lawyer’s firm. In a Florida disciplinary proceeding, a
lawyer was reprimanded for comments made in the lawyer’s blog in which he
referred to a judge as, among other things, an “evil, unfair witch.” Always think
before you type.
II.
SOME SPECIAL CONSIDERATIONS FOR ON-LINE PRACTICE
A)
The inadvertently sent e-mail: What are the responsibilities of the lawyer who
receives an e-mail (or letter or fax) from opposing counsel that, for example, was
clearly intended for opposing counsel’s client, or that the receiving lawyer clearly
was not the intended recipient? Under the old Rules, there was no clear answer,
but ethics opinions generally took the position that a lawyer should refrain from
viewing more than necessary, notify the sender and abide by the sender’s
instructions.22 However, under the new Rules, SCR 20:4.4(b) provides as
follows:
A lawyer who receives a document relating to the representation of
the lawyer’s client and knows or reasonably should know that the
document was inadvertently sent shall promptly note the sender.
Paragraph [2] and [3] of the Rule’s Comment elaborate:
[2] Paragraph (b) recognizes that lawyers sometimes receive
documents that were mistakenly sent or produced by opposing
parties or their lawyers. If a lawyer knows or reasonably should
know that such a document was sent inadvertently, then this Rule
requires the lawyer to promptly notify the sender in order to permit
that person to take protective measures. Whether the lawyer is
required to take additional steps, such as returning the original
document, is a matter of law beyond the scope of these Rules, as is
the question of whether the privileged status of a document has
been waived. Similarly, this Rule does not address the legal duties
of a lawyer who receives a document that the lawyer knows or
reasonably should know may have been wrongfully obtained by the
sending person. For purposes of this Rule, “document” includes
e-mail or other electronic modes of transmission subject to being
read or put into readable form.
[3] Some lawyers may choose to return a document unread, for
example, when the lawyer learns before receiving the document
that it was inadvertently sent to the wrong address. Where a
lawyer is not required by applicable law to do so, the decision to
22
See now withdrawn ABA Formal Ethics Op. 94-382.
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voluntarily return such a document is a matter of professional
judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.
Thus under SCR 20:4.4(b), which is identical to ABA Model Rule 4.4(b), the only
ethical duty of the lawyer who receives such an e-mail is prompt notification of
the sender. Whether the lawyer chooses to read and/or use (or attempt to use)
such information is left to the discretion of the lawyer, and Comment [3] takes the
position that the lawyer’s choice in this matter should not subject the lawyer to
professional discipline.23 The question of what use may be made of such
inadvertently sent materials is left to other bodies of law, such as attorney-client
privilege.
B)
E-mail, confidentiality and conflicts: Consider the following scenario:
I represent a small corporation on most matters that come up for
them. My partner, who does a lot of employment law, just told me
that he received an unsolicited e-mail from one of my client’s
employees (he must have visited our firm’s website), saying that he
had heard that my partner was one of the best employment lawyers
in town and he needed someone to sue his employer. The
employee said it would be an easy case because he had clearly
been treated unfairly in a number of ways, which he explained in
detail, and that he was currently being harassed by his manager.
My partner is not going to respond because we know we can’t
represent this employee, but I want to tell my client about this
situation. If my client knows, they can take some remedial action,
which might prevent my client from being sued and help the
disgruntled employee. Can I let them know to head off this
problem?
Lawyers who maintain websites often list e-mail addresses for individual lawyers
or provide other means for site visitors to communicate with the firm. Lawyers
also list e-mail addresses in print advertisements. This leaves lawyers open to
receiving unsolicited information from adverse or potentially adverse prospective
clients that may create a conflict for the lawyer. Also, this unsolicited
information from a prospective client may be very useful to a current client.
SCR 20:1.18 Duties to prospective clients requires lawyers to keep confidential
information from prospective clients and prohibits adverse representation, subject
to consent or reasonable efforts to avoid information “that could be significantly
harmful” to the prospective client and timely screening.24 However, SCR 20:1.18
posits a situation in which a lawyer is able to take reasonable steps to avoid
23
24
See also ABA Formal Ethics Op. 05-437 (2005).
The Restatement (Third) of the Law Governing Lawyers, §15 is substantially similar.
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disqualification. This may not be possible in the case of an unsolicited e-mail.
Further, SCR 20:1.18 defines a “prospective client” as someone who discusses
with a lawyer the possibility of forming an attorney-client relationship. It is hard
to characterize and unsolicited e-mail as a “discussion” so SCR 20:1.18 may not
adequately address the situation.
Whether a conflict may arise as a result of such an e-mail and whether such an
e-mail must be kept confidential are interesting questions and there is a split
among ethics opinions considering them.25 A commonly suggested resolution of
this dilemma is that, if the firm has a website which allows access to lawyers via
e-mail and contains no warnings or caveats about confidentiality, the firm must
keep the e-mail confidential but is not conflicted out of representing the employer
on the matter. This resolution is premised on the notion that a lawyer or firm that
has a web presence with e-mail links or access to invites communications from
prospective clients and therefore the lawyer should be obligated to keep such
communications confidential.26 However, because the lawyer has no ability to
limit the amount of information or run a conflict check, allowing such an
unsolicited e-mail to conflict a firm out of a matter is unfair and an invitation to
mischief.
C)
Metadata: By now, most lawyers know what metadata is. But for those who
don’t, metadata is data about data. It’s the information that that typically remains
in an electronic document that is not readily visible. For example an electronic
document will normally retain information about previous changes and comments
that were made on a document. This information is often not readily apparent but
can be accessed, usually without much difficulty, by someone who knows what
they are doing. Thus, a lawyer who transmits a document in electronic format to
an opposing party or a third party may, unintentionally, provide much more
information than intended. This can be a real problem of the document contains a
client’s comments on a settlement proposal, or the lawyer’s drafting notes which
might reveal strategy. Or if a document is used as a template, information relating
to the representation of another client altogether may be revealed.
This has obvious implications with respect to a lawyer’s duty of confidentiality.
As discussed above, lawyers have a duty to act competently to preserve
confidentiality – does a lawyer violate SCR 20:1.627 by sending a document
containing metadata? For a lawyer who receives a document in electronic format,
is it ethical to attempt to retrieve metadata?
25
See State Bar of Arizona Ethics Opinion 02-04 (2004), New York City Bar Ethics Opinion 2001-1, State Bar of
Nevada Formal Ethics Opinion 32 (2005), San Diego County Bar Association Ethics Opinion 2006-1 (2006); To
Whom It May Concern, David Hricik, The Professional Lawyer, Vol. 16 No. 3 (2005).
26
A lawyer may be able to avoid the obligation to keep such e-mails confidential by having adequate warnings,
usually in the form of “click-throughs.” See To Whom It May Concern, David Hricik, The Professional Lawyer,
Vol. 16 No. 3 (2005).
27
Or SCR 20:1.1 (competence).
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Neither Wisconsin’s Rules nor the ABA Model Rules explicitly address a
lawyer’s responsibilities, either as a sender or recipient, with respect to metadata,
nor is there any Wisconsin case or ethics opinion that addresses these questions.
Many other states ethics committees, and the ABA, however, have weighed in on
this topic.
It is generally agreed that a lawyer sending an electronic document that may
contain important metadata must take reasonable steps to avoid transmitting such
information.28 This flows from a lawyer’s duties of confidentiality (20:1.6) and
competence (SCR 20:1.1). It should be noted that much, if not most, metadata is
of little or no importance. If the metadata contained in a document has no
significance and does not constitute information protected by SCR 20:1.6, the
transmitting lawyer need not take preventative measures. However, should the
metadata contained in a document be confidential, privileged or otherwise
protected, the lawyer is compelled by SCR 20:1.1 and SCR 20:1.6 to avoid
transmitting the metadata.
On the question of whether a lawyer may ethically attempt to retrieve metadata,
there is a vigorous difference of opinion. The states that take the position that
looking for metadata is impermissible usually reason that it is inherently
deceptive and dishonest and therefore violates SCR 20:8.4(c) and also may violate
SCR 20:4.4(b).29 Other states, and the ABA, take the position that the Rules
simply do not prohibit a lawyer from looking for metadata ‘because there is no
specific Rule that directly addresses the situation.30 Therefore, these opinions
reason, it cannot be said that the Rules prohibit searching received documents for
metadata.
Given the lack of Wisconsin authority and split in opinions from other
jurisdictions, what should the Wisconsin lawyer do? It seems reasonable to
assume the following at this point:
1.
Wisconsin lawyers should assume they have a duty under SCR 20:1.6 and
SCR 20:1.1 to take reasonable steps to avoid disclosing important client
information by metadata. Again, if there is no possibility that a document
contains protected information as metadata, there is no need to take
protective steps. Malpractice liability is, obviously, also a concern.
28
There are various means to eliminate or reduce the metadata in a document, such as converting a document to
PDF format or using a “scrubber” program.
29
See Alabama Ethics Op. 2007-02 (2007); Florida Ethics Op. 06-02 (2006); New York State Ethics Op. 749
(2004).
30
See ABA Formal Ethics Op. 06-442; Colorado Ethics Op. 119 (2008); District of Columbia Ethics Op. 341
(2007); Maryland Ethics Op. 2007-09 (2006).
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2.
Under present circumstances, it would likely be difficult to disciplinarily
prosecute a lawyer who attempts to retrieve metadata. It is difficult to
point to a specific, current Wisconsin Rule that prohibits a lawyer from
searching for metadata.
3.
A reasonable case can be made that most metadata is inadvertently sent,31
in which case a lawyer who retrieves such data, particularly sensitive
information that almost certainly would never be intentionally provided,
may have a duty under SCR 20:4.4(b) to promptly notify the sender.
The above assumptions are, of course, simply the views of the author. It should
also be noted that the above discussion of metadata is not a discussion of a
lawyer’s responsibilities with respect to discovery requests for electronic
documents. In such circumstances a lawyer must look to applicable discovery
law.
E-mail and Other Electronic Communications: When the possibility of e-mail
communications became realistic in the practice of law, some questioned whether
the use of e-mail violated a lawyer’s duty of confidentiality under SCR 20:1.6.
One of the main causes for concern was the fact that e-mail routinely passes
through servers controlled by third parties (e.g., the main e-mail service
providers). These concerns were largely put to rest by ABA Formal Opinion 99413,32 which opined that unencrypted e-mail has a reasonable expectation of
privacy, like telephone and mail, and therefore was ethically permissible for
lawyers to use when transmitting information relating to the representation of a
client. That being said, when dealing with particularly sensitive information, such
as some types of intellectual property, a lawyer should discuss the risks of e-mail
with the client and abide by a client’s instructions. This is because lawyers have a
duty to take reasonable steps to protect the confidentiality of client information,
and extraordinarily sensitive information may warrant extra precautions. See
SCR 20:1.6, Comment [17].
Blogs: The implications of a lawyer’s obligation of confidentiality with respect to
blogs are obvious. Lawyers who wish to use blogs as marketing tools
understandably may wish to include information about results obtained for
specific clients and discuss specific cases. A lawyer, however, may not simply
post client-specific information in a blog without the informed consent of the
client. This requirement also extends to information that, while not mentioning
client names or other identifying information, is nonetheless specific enough to
allow identification.
31
32
Although ABA Formal Ethics Op. 06-442 disagrees with this position.
There were earlier ethics opinions reaching a similar conclusion, but the ABA opinion is most often cited.
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A recent example illustrates the dangers of blogs. In a disciplinary complaint
recently filed in Illinois by the Attorney Registration and Disciplinary
Commission (ARDC), a lawyer was charged with violating Illinois’ version of
Rule 1.6 by posting information on her blog.33 The lawyer maintained a blog on
which she posted information about the clients she represented as a public
defender. While the lawyer used pseudonyms for clients, she did disclose some
client’s actual jail identification numbers and went into specific details of the
case, including discussions with clients and events in court. The disciplinary
complaint alleges that “Respondents blog entries...contain sufficient identifying
information such that...participants in the Winnebago County Court System could
determine the identity of the client” and thus violate Rule 1.6. The outcome of
this disciplinary proceeding is yet to be determined, but this should serve as a
warning for lawyers.
Facebook, Myspace etc.: The same confidentiality considerations that apply to
blogs apply to all forms of social media. Thus, a lawyer who wants to include
information about the lawyer’s clients on the lawyer’s Facebook page must obtain
the client’s informed consent before doing so. The same consideration applies to
a lawyer who wishes to Tweet about their clients’ cases.
III.
ELECTRONIC FILES
The following is a version of an article the author wrote for Wisconsin Lawyer Magazine
on electronic storage of client files. It is included in this outline. On-line
communications with a client or in furtherance of a client’s case, such as e-mails, are
normally considered part of the file, which is the property of the client. Thus lawyers
must be mindful of preservation issues when communicating electronically.
Many lawyers and law firms are making increased use of electronically stored
documents, including scanning paper documents into digital format. Some firms store
open and closed client files in electronic format. No current Wisconsin Ethics Opinion
offers specific guidance on this practice.34 However, the ethics committees of many
other states have addressed this issue and have found that the practice is ethically
permissible, provided that certain precautions are observed. This article will discuss just
what precautions should be observed when maintaining client files in electronic format.
There is nothing in Wisconsin’s Rules of Professional Conduct for Attorneys (hereinafter
the “Rules”) that prohibits lawyers from maintaining client files in electronic format. The
Rules clearly require a lawyer to protect and preserve open and closed client files, but the
Rules do not prescribe the form in which client files must be preserved. Thus, for
example, the Rules permit a lawyer to keep a client’s file, to the extent possible, in an
electronic format from the start of a representation by scanning paper documents and
33
In the Matter of Kristine An Peshek, No. 6201779.
In Ethics Opinion E-00-03, the Ethics Committee of the State Bar of Wisconsin implicitly recognized the
propriety of electronic client files.
34
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retaining them in the firm’s computer system, provided certain precautions are followed.
Similarly, and again provided that precautions are followed, the Rules permit a lawyer to
convert closed client files to electronic format for ease of storage.
While electronic files are permissible under the Rules, it is important to bear in mind the
following principle: the file is the property of the client which the lawyer is obligated to
safeguard and provide to the client upon request.35 Keeping in mind this principle, the
following are suggested guidelines for lawyers who wish to keep client files in electronic
format.
1.
A lawyer must protect important original documents from destruction or
loss. Lawyers must retain any original documents that have an economic, legal,
evidentiary, personal, or other value in their original form.36 Retaining an
electronic or other non-original copy of such documents is not sufficient. It is not
possible to compile a complete list of such documents, but some examples would
be originals of wills, documents of title, birth records, some contracts, and
personal photographs. Special care must be taken with original documents for
which there is only one original. In some instances, handwritten documents may
have evidentiary significance that would be lost if the original were not preserved,
such as hand writing exemplars. Lawyers who come into possession of such
documents must retain them unless they are filed as required by law with a public
agency, transferred with the owner’s consent, or returned to the proper owner.
2.
As to non-original documents or original documents having no value as
originals, a lawyer who maintains such documents electronically may destroy
those documents upon making a stored electronic copy. Once the lawyer has
determined that a document need not be preserved in its original format, the
lawyer may convert the document to electronic format and destroy the paper
copy. In many circumstances, this may mean that an entire client file (pleadings,
correspondence, the lawyer’s notes, e-mails, etc.) may exist solely in electronic
form. Prior client consent to maintaining client files in electronic format is not
required, but the Rules impose obligations upon lawyers with respect to such files
as discussed infra.
3.
Lawyers who maintain electronic client files must be able to provide the file
to the client in a format usable by the client. A lawyer who maintains client
files in electronic format must be able to provide the file to the client in a form
usable by the client.37 Many clients today may wish, or even demand, to receive
documents on disk or as e-mail attachments, but some clients may not have a
computer or may prefer hard copies. Thus a lawyer must have the necessary
software and hardware to retrieve both open and closed files at the client’s
35
See Wisconsin Ethics Opinion E-00-03.
See SCRs 20:1.1 (competence), 20:1.15 (obligation to safeguard client property), and 20:1.16 (obligation to
protect client interest upon termination of the representation).
37
See SCR 20:1.16(d).
36
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request. A lawyer updating computer systems must be certain that such an update
will still allow the lawyer to access and produce closed electronically stored files.
For information on a lawyer’s obligation to retain closed client files, see
Wisconsin Ethics Opinion E-98-1.
4.
A lawyer must take reasonable steps to protect the confidentiality of
electronically stored client files. Lawyers have an obligation to act competently
to protect the confidentiality of information relating to the representation of their
clients, including both open and closed client files.38 With respect to
electronically stored client files, a lawyer must take reasonable steps to ensure
that third parties will not gain access to such documents. This raises the question
as to whether client files may be stored on a computer system that is linked to the
Internet, or even stored on servers controlled by a third party.
While not directly on point, ABA Formal Opinion 99-413 is instructive. In that
opinion, the ABA opined that lawyers may ethically communicate with a client
and transmit client information via unencrypted e-mail because there is a
reasonable expectation of privacy in e-mail, just as there is with respect to the
U.S. Mail and land-line phones. Notably, this opinion holds that this reasonable
expectation of privacy applies even though e-mails may pass through, and be
accessed by, third parties (e.g., On-line Service Providers such as AOL).
In Ethics Opinion 701 (2006), the New Jersey Advisory Committee on
Professional Ethics opined that lawyers may ethically store client data on servers
that are not under the exclusive control of the lawyer, such as a server provided by
an Internet Service Provider (ISP), provided that the lawyer uses reasonable care
to ensure the confidentiality of client information. “Reasonable care” requires
that the lawyer make sure that any third party that may have access to client
information is aware of the lawyer’s obligation to preserve confidentiality and is
itself obligated, by contract, professional standards, law or otherwise, to maintain
the confidentiality of the client information. The lawyer must also use reasonable
care ensure that appropriate use is made of available technology to ensure the
confidentiality of client data.
In Formal Opinion No. 33 (2006), the State Bar of Nevada’s Standing Committee
on Ethics and Professional Responsibility likewise opined that a lawyer may store
client information on a server or device that is not exclusively in the lawyer’s
control, provided that the lawyer:
1.
38
Exercises reasonable care in the selection of the third party contractor,
such that the contractor can be reasonably relied upon to keep the
information confidential; and
See SCR 20:1.1 and SCR 20:1.6.
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2.
Has a reasonable expectation that the information will be kept
confidential; and
3.
Instructs and requires the third party contractor to keep the information
confidential and inaccessible.
These Opinions39 recognize the reality that a lawyer cannot, and is not required to,
absolutely guarantee the confidentiality of client information but must act
competently to preserve that confidentiality. Indeed, competent representation of
an adequate communication with clients requires entrusting client information to
third parties, such as messengers and the U.S. Mail. Thus a lawyer may store
electronic client files on a computer system accessible via the Internet or a server
owned by a third party, provided that the lawyer uses reasonable care to ensure
confidentiality.
Conclusion: A lawyer may store client files, both open and closed, in electronic
format, provided that the lawyer:
1.
Retains, when necessary, important documents and other client property in
their original format; and
2.
Maintains the necessary hardware and software to provide the file to the
client in a format usable by the client; and
3.
Uses reasonable care to ensure the confidentiality of electronically stored
client files.
4.
In the cases where a third party, such as an ISP, may be able to access the
files, the lawyer should:
a)
Ensure that the third party understands the lawyers obligation to
keep the information confidential; and
b)
Ensure that the third party is itself obligated to keep the
information confidential40; and
c)
Ensure that reasonable measures are employed to preserve the
confidentiality of the files.41
39
See also Arizona Ethics Opinion 05-04 (2005).
For example, the lawyer may wish to insert a clause in the service contract requiring the service provider to
maintain the confidentiality of client information, or ensure that the service provider has and enforces such a policy
on their own.
41
This does not mean that the lawyer must become a computer expert to review the security measures. Rather, the
lawyer should make reasonable inquiry into security measures and be satisfied with the answers.
40
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