Crivello Carlson, S.C.
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Author: Sara Mills
Beginning January 1, 2017, the Supreme Court Rules of Professional Conduct are amended via Final Order 15-03 to incorporate several important changes, many of which pertain to technology and electronically stored information. While the amendments and additions to the rules and comments are extensive, this article focuses solely on select changes that implicate evolving technology.
First, lawyers young and old need to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” in order to comply with ABA comment 8 (previously comment 6) to Supreme Court Rule 20:1.1”Maintaining Competence.” This amendment likely requires lawyers to become competent in all e-filing procedures or to designate an adept administrative assistant to ensure accurate and timely e-filing. A recent article on the ABA’s website highlighted the consequences of an Oklahoma bankruptcy lawyer’s failure (or possibly refusal) to educate himself on proper e-filing procedures. The attorney, who was admitted to practice in 1967, had no prior disciplinary history. After failing to comply with court ordered “homework” designed to train him on the e-filing system’s requirements, he acknowledged his “lack of expertise in computer skills and his frustration in trying to meet the federal court's expectations in filing electronic pleadings.” The Supreme Court of Oklahoma ordered a public censure and payment of the costs of the proceedings. The two-member dissent would have declared the attorney unfit to practice and would have issued a two-year suspension.
Lawyers must also keep on top of their inbox: ABA comment 4 to Supreme Court Rule 20:1.4 no longer reads, “Client telephone calls should be promptly returned or acknowledged.” Now lawyers must promptly respond to or acknowledge “client communications,” which ostensibly includes email or other electronic communications.
Additionally, the rules now address the dreaded prospect of the inadvertent disclosure of confidential information through a data breach. Renumbered ABA comment 18 to Supreme Court Rule 20:1.6 requires a lawyer to act competently to safeguard information against unauthorized access by third parties. The comment has been expanded upon to provide some safeguards to lawyers, however. A lawyer does not violate the Rule if she “has made reasonable efforts to prevent the access or disclosure.” The comment includes factors to be considered, including the cost and difficulty of implementing additional safeguards and “the extent to which the safeguards adversely affect the lawyer's ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).” This factor seems almost unworkably subjective. What is “excessively difficult” for one attorney may be routine for another. The amendment to the comments to 20:1.1 requiring lawyers to keep abreast of relevant technology may offer some guidance to our interpretation. It appears that lawyers may not simply stick their heads in the sand and avoid technology altogether. If a lawyer is up to date on relevant technology, one would expect that his ability to use certain software may be increased for purposes of Rule 20:1.6.
The comment now gives the client some power to decide what is appropriate protection: “A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule.”
ABA comments to Rule 20:1.8 have also been amended to create a more uniform definition of a “prospective client.” Previously, the comments used the term “discussions.” Now the comments use the term “consultations.” Consultation is defined in Rule 20:1.0 to “denote communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.” The Rules do not define “discussions.” Rul 20:1.18(a) was amended to read, “A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.”
Therefore, the amendment of ABA comment 2 may provide some clarity to what is otherwise a very imprecise explanation of duties to prospective clients. “A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances.” The comment explains that a consultation may occur if a person provides information to a lawyer in response to an advertisement. However, “a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest.” Thus, if a person contacts a lawyer via a social media platform such as LinkedIn, it appears unlikely that a “consultation” has occurred.
Next, Rule 20:4.4(b) is amended to state that a lawyer “who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.” In other words, if you were accidentally BCC’d on an email or someone mistakenly forwarded something to you that he meant to forward to his client, you must notify the sender. The rule is worded in such a way that even if you think the email or document is harmless or mundane and does not contain privileged information, you should still contact the sender rather than ignoring it. An amendment to ABA comment 2 to Rule 20:4.4 confirms the broad scope of a lawyer’s duties when receiving such inadvertent disclosures. Additionally, that comment explains that “electronically stored information” also includes “embedded data (commonly referred to as ‘metadata’) subject to being read or put into readable form.” But, never fear if you have no idea what “metadata” is! The comment continues, “Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.” Again, the amendment to the comments to 20:1.1 requiring lawyers to keep abreast of relevant technology may heighten a lawyer’s duty to understand or recognize metadata.
Several ABA comments to Rule 20:7.2 “Advertising” have been amended in ways that may implicate a lawyer’s use of social media. For example, comment 2 states that the rule on advertising permits public dissemination of “information concerning a lawyer's name or firm name, address, email address, website, and telephone number.” The comment states that “Television, the Internet, and other forms of electronic communication are the most powerful media for getting information to the public, particularly persons of low and moderate income.” It also adds to 20:7.2(b)(1) a lawyer’s ability to pay for Internet-based advertisements as part of the rule permitting a lawyer to pay for a referral service. It explains:
[A] lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator's communications are consistent with Rule 7.1 (communications concerning a lawyer's services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person's legal problems when determining which lawyer should receive the referral.
(Amendment to ABA comment 5, Order p. 29).
A somewhat recent trend in law firm website functionality that is used most frequently by personal injury firms involves pop-ups that greet visitors and ask, “Can we help you?” and offer live online chats. Amendments to ABA Comments 1-8 to Rule 20:7.3 appear to prohibit these types of real-time solicitations. The amendments confirm that there is “a potential for abuse when a solicitation involves direct in-person, live telephone or real-time electronic contact by a lawyer with someone known to need legal services.”
These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. … The situation is fraught with the possibility of undue influence, intimidation, and over-reaching. This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation justifies its prohibition, particularly since lawyers have alternative means of conveying necessary information to those who may be in need of legal services In particular, communications which may can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. …
The contents of direct in-person, live telephone or real-time electronic contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.
The amendments specifically replaced the phrase “real-time electric conversations between a lawyer and a prospective client” with “real-time electronic contact.” Thus, there need not be a “conversation” and the person need not fit any definition of “prospective client” in order for the prohibition to apply. Personally, I won’t miss those pop-ups and I hope they don’t make a comeback under some exception to the Rule or different interpretation of the Comments.
The Order, which covers a wide variety of amendments to the Rules and accompanying ABA Comments, can be found online in its entirety here.