Saturday, March 24, 2007

Dangerous Curves Ahead: The Crossroads of Ethics and Technology

David Hricik who has an interesting personal website and William Freivogel who wrote an online guide on conflict of interests delivered an eye-opening session on "Whoops" that IT creates with respect to conflict of interest.

Let say a client sends an email to a lawyer by taking his email on the firm's or bar's website... and send confidential information...

David Hricik

Basic rule:
Where a party, in good faith, discloses confidences to a lawyer, the lawyer may not be adverse to that party in a matter where the info was relevant, unless agreed otherwise.

Solutions out there (without any opinion on ther validity):
1) Route emails to a non-lawyer (no sure it will not conflict the firm) According to William Freivogel, it could be a lawyer behind a China wall.
2) No email on website (obvious downsides...)
3) Terms of use
4) Click wrap

Predictability problems:
Case law examples
1) Woman contact lawyer for an interview and signed an agreement that says "nothing is confidential unless we represent you". During the interview, confidential information ar given. The court held that, notwithstanding the agreement, the client being unsophisticated, the firm was disqualified.

2) Client takes lawyer's email on the bar website. She sends an email saying "I had a few drinks and crashed into another car". Unformtunately, the lawyer was representing the opposing counsel... The majority held that no confidentiality was owed because imposing a duty would result in unmanageable conflicts.

Examples of terms of uses
"The content of any Internet e-mail sent to Jones Day or any of its lawyers at the e-mail addresses set forth in this Web site will not create an attorney-client relationship and will not be treated as confidential."
- Jones Day

"We do not represent you just because you send an email"
The opposing counsel sends a subpoena requesting the information

Not enough to let the client sending an email know information will not be held in confidence. You have to make it clear that the information won't be held confidential.

"We do not hold emails confidential"
Is it ethical if you then represent the person?

(to be added: cf. website presentaion when posted)

William Freivogel
Rule 1: The keyboard is your enemy
You have no control over your email
-local drives
-hard copy
-Home office
-Client hardware
-Opponent hardware

If attorney-client privilege is lost, than any email is producable to the opposing party.

Rule 2: Keep it oral
-No lenghty voice mails
-Jasmine Networks, Inc. v. Marvell Semiconductor' Inc., 117 Cal. App. 4th 794 (Cal. App. 2004), rev granted, depublished, 94 P.3d 475 (Cal. 2004): the supreme Court is reviewing the case at the present time.

Rule 3: encryption?
-client do not like it
-No confidentiality issues under ethics rules if you send unecrypted emails (ABA ethics Op. 99-413 (1999))
-No waiver of privilge if unecrypted (18 USCA 2517(4))
-Practically no liability issues
Ex. Partner shared with a newspaper a document that was filled under seal.
-Compare regualr land-line telephone: it would be possible to scramble the signal...

An atendee explained that in Pennsivania it is mandatory, according to an ethic opinion from the bar, to inform the client of the risks inherent to the use of email if they are not encrypted.

Basically, I found that Freigovel is excellent in conflict issues but is not up to par when it comes to IT issues relating to IT. However, Prof. Hricik was outstanding on both topic. I'll stay for his next presentation on "Metadata and Ethics: The Good, the Bad, and the Ugly".

Interesting quote:
"Email is the cockroach of the 21st century"

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