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Avoiding Technology Traps for the Ethical Lawyer

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Avoiding Technology Traps for the Ethical Lawyer

Professor Tim Chinaris, former Ethics Director of the Florida Bar, will explore how attorneys may find themselves facing ethical problems unknowingly and how to avoid these ethical traps. This course will discuss various ethics-related “technology traps” when getting, communicating with, and representing clients. The course will also analyze the various technological developments that are affecting the legal profession, including AI and technology-driven legal help websites.

Transcript

Good afternoon. Today we're here to talk about some ethical issues that should be of interest to the practicing lawyer. And our discussion for today is for ethical lawyers, as the title implies, I'm sure everyone here will fit in that category. And that's good, because one of the things that we are seeing today is that even the most ethical lawyer can have problems dealing with technology. Technology is pervasive in law practice, but it's easy to fall into what I would call a technology trap. There are several of these out there. These are problems that an ethical lawyer can run into if he or she is not careful. So today. In the brief time we have, we're going to focus on some ethics related technology traps that come up in everyday practice while you're using common tools like websites and email and social media. We're going to talk about these technology traps that are out there. And that might affect what you do when you're doing things that you do every day. You're trying to get clients, trying to communicate with clients. You're trying to represent clients. And so. For those ethical lawyers there today we are going to try to hit. The highlights of some of these technology traps and point out some ways to avoid them. So first of all, we should start with a definition. We talk a lot about technology, not only in law practice, but in every area of life. So what are we really mean by that term? Well, there's a lot of definitions, but I like this definition best. Technology is a technical method of achieving a practical purpose. And that suggests that technology should be considered a tool rather than an end in itself. Technology should be neutral. But that idea of. Technology being ethics neutral can. Really go out the window when we talk about putting technology in the hands of practicing lawyers, it can give rise to a whole host of ethical issues. And I think the seventh Circuit said it best with this quote, A computer lets you make more mistakes faster than any invention in human history, with the possible exception of handguns and tequila. So technology can lead us into some problems. We tend to think of technology as something that is hip and modern. But that's not necessarily true. There's nothing new about having to continually adapt to the technology that is the latest and greatest. My thinking of what technology really means was affected by a book I read at the suggestion of a client called The Empire of the Summer Moon, and it was about the Comanche tribe in the Old West and how they dominated the Great Plains for a number of years. Comanche was just one of many competing tribes, but they went from being just part of the pack to being the dominant tribe of their era by adapting very skillfully to a revolutionary new technology at the time. And that was the horse. The Comanches saw the value in mastering using the horse. Other tribes couldn't do that or they wouldn't do that. And so they got left behind. And just like the horse changed the game in the old West. Technology is changing the game in the legal marketplace. As lawyers, we have to adapt or we risk becoming irrelevant. Not that long ago, lawyers had a pretty tight monopoly over provision of legal services. And I guess like the dinosaurs did, we felt pretty good about where we were at. But as they say, that was the good old days. Now, lawyers face competition from sources that we could not have even imagined just a few years ago. A lot of the pressure to use technology and employ technology in the practice of law is coming not from within the legal profession, but from non-lawyer innovators who are coming up with ways to compete with us in providing legal services. And that competition is coming from several sources. A couple of significant factors, I think. One, the competition from technology driven legal help websites. These are websites that not only provide legal forums, but they go further and allow a user to connect with a lawyer who will assist the user in the legal matter for usually a discounted fee. And these include things you're familiar with, like LegalZoom and Avvo and Rocket Lawyer and legal shield. Another source of competition is with non-lawyers who are owning law firms. Or as they are called, alternative business structures or ABS. So far, this is formally limited to only a couple of states. But the effect is starting to be felt beyond those states. Right now, only Arizona and Utah allow what Arizona titles. These ABS. Alternative business structures. Washington, D.C., for many years has had kind of a limited version of Nonlawyer ownership, but has taken it further. They are entities approved by the state Supreme Court to provide legal services directly to the public. Non-lawyers can own the service, although the actual legal services are supposed to be provided only through licensed lawyers who work for an ABS. But an interesting question is coming up. What if a lawyer who was licensed only in one state that does not allow ABS wants to own all or part of an Arizona ABS? Is that allowed? Well, the answer here is not clear, at least not yet. The ABA not very long ago came out with a formal Opinion 499 concluding that the out-of-state lawyer can become what they call a passive investor in an ABS if certain conditions are followed. And those conditions include only investing, not practicing law through the ABS and not being held out as a lawyer in connection with the ABS and not having access to the ABS client confidential information. No state to my knowledge. I checked very recently. No state has adopted any version of the ABA, the ABA formal opinion, but I'm sure some are discussing it. A third area that we have to be concerned about is artificial intelligence, including the chat GPT program that we've heard so much about. All the artificial intelligence area presents some interesting ethics and unauthorized practice of law issues that really to date have only been very minimally developed. Not much on that, but we will talk about those issues a little bit at the end of today's program. But on the plus side, a lot of questions here. But we do have some positive things to point to with regard to technology and law practice. Technology is great because it helps lawyers get paid faster. Many of you accept credit cards in your law practice. That's commonplace today for payment of fees or services. But believe it or not, when it first came up, it was quite controversial. Why? Why was it? What was the ethics concern? Well, because the credit card companies get paid for their services by taking a percentage of the fee that is ultimately charged by the lawyer. It was thought that this would constitute some kind of unethical splitting of legal fees between the lawyer and the credit card company. Well, to eliminate that concern, many state supreme courts or bar ethics committees stepped in and gave their express approval to the use of credit cards to pay legal fees. Fast forward to today. A more recent technology development is the use of web based payment processing services. Things like Lawpay or Venmo or PayPal. What are we concerned about from the ethical standpoint here? Well, in addition to the possible fee splitting issues, these services can implicate concerns about sharing client information, that is, client confidentiality and complying with state bar trust accounting rules. And somewhat surprisingly, at least to me, there's only a few state bar opinions that have addressed this so far. Uh, the Florida opinion is the most recent. We have a Connecticut opinion, a Florida opinion, and a South Carolina opinion. The Florida opinion concluded that lawyers may accept payments through these processing services. If. Not surprisingly, reasonable steps are being taken to protect any kind of client information. If the lawyer makes sure that the applicable trust accounting rules are complied with, and unless the client agrees otherwise, the lawyer is supposed to bear the transaction charges. The most cutting edge. Technology related issue, I think is in the use of cryptocurrency like Bitcoin to pay legal fees. Cryptocurrency is unique because it's not really money. It's more of a medium of exchange, and its value can fluctuate pretty rapidly in a short period of time. These features have raised some concerns in the legal ethics area. So is it ethical to accept payment in Bitcoin or other cryptocurrency? Several states have addressed this issue and include D.C. and Nebraska and New York and North Carolina. And they all conclude that it's permissible for lawyers to take Bitcoin or other cryptocurrency as payment for fees or costs. And that conclusion, I think, is logical. And it makes sense because nothing in the rules prohibits lawyers from getting paid in money or in Bitcoin or in property or in baseball cards, if that's what the lawyer and client agreed to. And if the fee is not excessive. He has to be reasonable. And these opinions that address this issue point out that the reasonableness of the fee should be measured at the time the fee arrangements are made, because as we know, cryptocurrency can fluctuate very quickly in value. And even though it's called cryptocurrency, it's not really currency. That means it cannot be deposited into a trust account. So how do you comply with the safe keeping rules? Well, it's a form of property. So the opinions point out that it triggers the requirements of ABA model Rule 1.8 A, which sets out safeguards that apply when a lawyer engages in business or financial transactions with clients. So that's what would govern. Okay, That's a little bit of a background. And with that in mind, let's take a look at some common technology traps and how the ethical lawyer might be able to avoid them. Start with trap number one. Not knowing what you don't know or knowing just enough to be dangerous. Competent representation now means that a lawyer has to have a certain minimum level of competence with technology. The ABA has made this clear. They did so by amending the model rules of professional conduct a couple of years ago. And as of the last check with the ABA in April of this year, that amendment to Rule 1.1 has been adopted by 39 states. And here's the comment. Comment number eight to ABA Rule 1.1 the competence rule. Like to say this the first rule in the book competence. And part of competence now includes. Being abreast of changes in law, practice and technology. The benefits and the risks of using it. And the way this is written suggests to me. That the lawyer's duty to have technology competence is a non-delegable duty similar to what we have with trust accounting rules. You can have people help with your trust account, but ultimately the lawyers responsible and I think it's going to be the same way. When it comes to the use of technology by lawyers and law firms. Some states have decided they want to help lawyers become familiar with this, and they have required certain minimum Cle technology hours. Florida, for example, North Carolina, and now New York is the latest. Um, and that's something I suspect you will see discussed and probably acted upon in many states in the future. Well with the rise of ethical duties that apply to the use of technology, I think we need to say a few words about what we could call the elephant in the room. With the increase in ethics duties when it comes to technology, how does this affect potential legal duties? Has there been a change to the standard of care? For malpractice purposes. Well, I think we're moving that way if we're not already there. And some cases around the country suggest this. The Florida case, the Emerald Coast Utilities Authority case. That concluded that a lawyer had a duty to have a functioning email system in place. The background of this case was pretty simple. There was an order assessing fees against a law firm's client. And the court emailed that order to the law firm. While the law firm didn't find it until about two months later. At that time, they filed a motion for relief alleging that they didn't get the order until after the deadline for appeal had passed. And the court, in a pretty detailed opinion, concluded that relief was not warranted. The firm had not shown what. What was necessary to meet the standard which was excusable neglect. The court pointed out that the firm's email system was seriously deficient. For example, the firm had configured the system to drop and permanently delete emails that the system considered spam without notifying the recipient or without putting them into a spam folder to enable the recipients to check them. And the firm's. Former technology consultant was called to testify and pointed out that he advised the firm against that. He advised the firm also to have a backup system, which the firm declined to do because they wanted to save the $1,000 a year that that would cost. So the court concluded that the firm was not entitled to relief. And it doesn't say what happened in the opinion after that. But I would be willing to estimate here that the firm had to eat the cost of the fee award. And if it didn't do that voluntarily, I think it would have been a sitting duck for a malpractice claim or a bar complaint. And for our purposes, the most important takeaway from the opinion, I think, is this counsel has a duty to have sufficient procedures and protocols in place to ensure that they get appealable orders in a timely fashion. And that includes a functioning email system with proper safeguards. So that they can protect their clients interests. And there are some other opinions out there that talk about technology duties. There's an older case out of Missouri that concluded that there was a duty by the law firm involved. To investigate potential jurors at the outset of the case or to waive the challenges. The issue was information that was available on the Internet and of course, said, hey, you're not going to waste the court's time by waiting until the conclusion of the case and then doing your research. You could have done it at the outset. And if you don't do it. You've waived your challenges. And obviously it follows that if a client is harmed by a firm's failure to do that investigation in a timely manner, that's going to be grounds for malpractice liability. It was the California case that decided here, Kennedy versus Adams. Where a federal court ruled that the lawyer provided ineffective assistance of counsel by failing to investigate a social media post that could have helped the client. Yeah. Or to talk to a witness that could have shed some light on that post. So I think we have concerns about. The ethical duties relating to technology leading to. A heightened level of legal duty when it comes to using and properly using technology in law practice. Let's talk about some technology traps for the ethical lawyer that relate to something that we're pretty familiar with today. Websites. Trap number two, a website that looks good but really invites ethical disaster. Of course, websites are widely used now by lawyers and law firms, and they're a form of advertising. Some lawyers don't really think of it that way, but the bar authorities do. And I think it's pretty true. The purpose of the website is to further your legal business. And so because they're a form of advertising, the same rules that apply to any form of advertising will generally apply to the lawyer's website. One thing that means is the domain name you choose has to be truthful and not misleading. I don't think a personal injury firm could use a domain name like. $1 million guaranteed. Dot com or something like that. And the Ohio ethics opinion mentioned here. Indicates that the domain name has to be truthful and not misleading. It's part of the website. Well in representing lawyers and advising lawyers. I've reviewed a lot of law firm websites and there are some things I see over and over again that I think would be better off if you tried to avoid. Obviously, a law firm website may not contain any false or misleading information, but that includes. Omissions. You can be misleading by omission. For example, if you say your firm defends DUIs nationwide, that's probably considered misleading if you don't also say where you are licensed and that you work on cases outside of your jurisdiction, through a co-counsel or through being admitted pro hac vice. So full disclosure often will help correct a problem. Advertising past results on your website. That's a common thing. Well, it's likely to be considered misleading unless you have a proper disclaimer, something like each case is different. Results depend on a variety of factors. Past results are not a guarantee of success, that kind of thing. Websites can also bring up. Unauthorized practice of law issues. So be sure that your website indicates the jurisdictions in which you're licensed to practice. And if your website shows or lists law firm personnel who are not lawyers, be sure to clearly identify them as not lawyers. Had a case a couple of years ago with a law firm that had a very nice looking website. The problem is it not only had the lawyer on it, but the lawyers paralegal, who of course worked together with the lawyer. But it didn't distinguish that on the website. And some disgruntled former client filed a complaint with the state bar. It all worked out in the end, but it was a lot of grief and anguish, and it could have all been avoided simply by identifying the non-lawyer as the paralegal on the website. So easy fix there. Well, the materials that I have provided have some. What I call not so hypotheticals in them. And one of them is not so hypothetical, A, where you have a lawyer who's a solo practitioner licensed in Texas. His practice is focused on estate planning. Somebody who needs a simple will sees the website and emails the lawyer asking him to draft the will while the prospective client lives in another state in which the lawyer is not licensed. Does the lawyer have a problem if he prepares the will? Well, that's going to be up to the the other state where the lawyer is not licensed, but it's likely to be a concern. Easy to avoid the problem here by just simply identifying the jurisdictions in which the lawyer can provide services. Many law firm websites now use testimonials in their advertising. Be sure. To check with your state's rules because the rules on testimonials vary widely. One thing to point out is that reviews from clients former clients are considered a form of testimonial, and some states allow testimonials. Some states prohibit them altogether. Some states make a distinction between what they call soft testimonials or hard testimonials. They might allow only soft testimonials. Those focus on the characteristics of the lawyer's service. Things like courtesy and promptness in returning contacts from the client. On any testimonial that's permitted by any state has to be truthful and not misleading. And that includes having the consent of the client. To put their testimonial on your website. Some lawyers do that by having that as part of their retainer agreement, pointing out that if the client gives a testimonial, it's subject to be used in the lawyer's advertising. Should also include a disclaimer with any testimonial, again to the effect that every case is different. Your results may vary. Well, I mentioned online reviews. So let's look at the use of them. They are a big marketing tool that can help or unfortunately, maybe hurt your practice. So in our second not so hypothetical, here we have a lawyer who represented a client in a very difficult case. The client turned out to be difficult. Also, the lawyer knew that they got a great result. The client was not so convinced. And the client goes and posts negative reviews on online platforms that included false and misleading statements about the lawyer and the lawyer's services. Moore upset wants to set the record straight so the lawyer posts some rather scathing comments about the client, including. Details about the case and about the client's personal life. Is this a violation of the ethics rules? Well, there's differing views about how far you can go in responding to a negative review. But I think everybody would agree that this goes too far. And there's a lot of lawyers out there who would echo that. The list of lawyers who have gotten into bar trouble with reprimands or suspensions by disclosing confidential information in response to a negative review. So be very careful from that from that perspective. So what can you say or not say? Well, a recent opinion from Florida. Made it clear that there are some points that we have to consider. One of the issues there is the ABA model rules and the rules adopted in most states to correspond to the model rules. Do have exceptions to confidentiality that allow lawyers to disclose otherwise confidential information in certain situations. And one of those is what they call the lawyer self defense exception. And I've put a copy of that on the slide here because it allows a lawyer to disclose otherwise confidential information when it's necessary to respond to a criminal charge or a civil complaint based on the lawyer's conduct involving the client or to respond to allegations in any proceeding concerning the representation of the client. Well, is an online review a proceeding? Well, the state ethics opinions indicate probably not. So don't think you can rely on that exception. That's one point made in the Florida opinion. The other point is that the lawyer who chooses to respond and I'm not sure it's always a good idea to respond frankly. Sometimes it's better to let to just let it go. But the lawyer, if the lawyer chooses to respond, has to use what the opinion called a proportional and restrained response, something to the effect of. I believe that the review contains incorrect information and I do not agree with it. Well. That's a pretty limited response, but it's really about all that's allowed under the rules protecting confidentiality. But after that, Florida opinion was issued, the Florida Supreme Court amended Rule 1.6, Florida's version of it, to adopt a specific exception, allowing responses to certain online allegations. And you see a copy of it here. A lawyer can reveal confidential information to the extent reasonably necessary to respond to specific allegations on the Internet by a former client. That the lawyer has engaged in criminal conduct punishable by law. So the client. Specifically alleges certain criminal violations by the lawyer in Florida. The lawyer can respond even if it means disclosing confidential information. But as you'll see, this is a pretty limited area. Right? Most reviews. Don't accuse the warden of crimes. You just accuse the lawyer of bad service or poor representation. And there's another important area to consider here. I've seen a few lawyers who have tried to put provisions in their retainer agreement that limit or prohibit the client from posting negative reviews. Well, I caution against this because if you look at the 15 USC 45 be. That prohibits including any provision in a form contract that restricts the ability of the party to provide an online review. And. Most. Well, at least many lawyer contracts would be considered form contracts for this purpose because they're identified as a contract with standardized terms in the sale of services that is used without a meaningful opportunity to negotiate those terms. And so. It's not clear exactly what contracts are going to fall under this, but nobody wants to be the test case. You're talking about a federal violation. But on the positive side, there are some things out there that have been good news for offended lawyers. There's a couple of cases in which lawyers have successfully sued former clients for posting false or defamatory reviews. There's one case in Washington where it was $50,000 judgment for the lawyer and the Blake versus Kelly case in Florida, where the lawyer received 8000 $350,000 punitive damage award. Another area that I'm concerned about and I think you might want to think about is. Websites that call for clients to communicate with the law firm through that website. Are not so hypothetical. See, as a couple, Mr. and Mrs. Smith, who run a restaurant. Mrs. Smith decides she wants to find a divorce lawyer. So she looks at the website of a family law firm, Howard Fine and Howard. So the Howard firm's website talks about their superior experience and credentials. They have testimonials from former clients. And as you see on a lot of websites, it has features that say ask us and get a free case evaluation. And they urge viewers to tell us about your case through a form that they could submit on the website. Well, Mrs. Smith takes them up on that. She thinks child custody is going to be a big issue, especially in view of her substance abuse and mental health issues. And she tells the firm all about that. She's also concerned about finances because she's apparently been cooking more than food at the restaurant. She's been cooking the books and embezzling money without her clients or her husband's knowledge. So she provides all this information in response to the nice invitation on the firm website. So the question is a couple of questions. Does this establish an attorney client relationship between Mrs. Smith and the Howard firm? But even if there's no attorney client relationship, does the firm owe duties to her? Well, in some states, Mr. Smith would become a client if she has a reasonable belief that she is contacting them for the purpose of legal representation. A lot of states use versions of the test in the Greene versus Montgomery, Alabama, case from federal court in Alabama. But not all states go that far. But even if she's not a client, that answer is interesting, but probably not determinative because she's probably a prospective client who was owed duties under model rule 1.18 A. And under model rule 1.18, Section A tells us that a person who consults with a lawyer about the possibility of forming a lawyer client relationship is a prospective client. Well, what is a consultation? Well. The comment to the rule addresses that. And it points out that there consultation can occur in the traditional way or in other ways. One example they give is highlighted here. Consultation is likely to have occurred if the lawyer, if a lawyer in person or through advertising specifically requests or invites submission of information about a potential case without clear and understandable warnings and cautions. That might limit the lawyers responsibilities. So here we had a firm that had strong language inviting submission of information. There were no disclaimers about what the firm might do with that information. So I think that makes it likely that Mrs. Smith is a prospective client, at least in terms of what she submitted. So if she is a prospective client. We turn to the next section in 1.18, Section C, which points out that if the lawyer received information from a prospective client that could be significantly harmful to that person in that case. A lawyer cannot represent an adverse party. So it creates a limited duty of confidentiality and of conflicts with respect to information that you get from a prospective client. And here she disclosed information that obviously could be harmful to her. So the firm, I think, has a problem with respect to receipt of that information. But don't worry, it can get even worse. One of the. Spinoffs on that is in not so hypothetical D which is in your materials. It's not on the slide here, but it's the follow up. Mrs. Smith submits this information to the firm. She hears nothing from the firm that day, but the next day she hears from somebody else a process server. Turns out that her husband beat her to the punch and has actually already filed for divorce without telling her. And she served. And Mrs. Smith sees that the husband is being represented by the Howard law firm, the same law firm that she just sent that nice completely filled out form with all kinds of information to. And so is this going to create a conflict for the Howard firm now that they're representing the husband and they just got this confidential information from the wife? Well, almost certainly, yes, because of 1.8 C, the firm has that information. They can't. Represent the opposing party. Now, there is an exception in paragraph D of 1.18 that might allow the individual lawyer who got that information to be screened off. But the conditions necessary for that screening don't apply here. And so the bottom line is going to be a cost lost because of that open ended invitation on their website. Not only did the Howard firm not get Mrs. Smith as a client, but is going to lose its existing client, Mr. Smith. And of course, the really interesting question is if the firm withdraws doesn't have to refund Mr. Smith the money that he's already paid. And related in a very practical question is how could the firm have avoided falling into this trap? Well, the most obvious way, of course, is don't ask for confidential information on your website, but every time I mention that to a client. They're not not too happy about it. And the feeling is that these. Invitations, if you will, on the website. To draw in client interest and. Result in contacts from prospective clients. So if you're going to ask for the more practical way, perhaps of avoiding problems is. What suggested in the comment to there, and that's to use disclaimers, put cautions on your website about what you're able to do with the information that they submit. The fact that. Persons, not a client, until they're actually signed up by the firm and things like that. People always ask me, do these disclaimers work? Will they be effective if there's a bar complaint or maybe even a malpractice claim? Well, it's impossible to know really what's going to happen for sure. It's going to depend on a lot of factors. But I do know that if you don't have a disclaimer, you have no hope that it will help you. So I think at a minimum, a disclaimer shows that you've made a reasonable attempt to address the problem. It is consistent with language in the Marvel rules, and I think it also demonstrates a good faith effort to try to inform people of relevant information. Returning to trap number three. It's really my favorite. But my advertising agency says they know all about the lawyer ethics rules. Well, my response to that is a question back. Are you willing to bet your law license on that? My experience is don't bet your license on that. And this this is true not only with website, but any kind of advertising. The advertising agency may be experts at advertising, but they're not experts at the ethics rules. And you're the one that's responsible. It's your license that's involved. Model rule eight point A 8.4 A, which every state has says basically it's misconduct for you to violate the rules of professional conduct or do so through the acts of another. So you're going to be responsible for it. So you should be very careful in who you use to run your ads. A big area of concern today is lead generation using lead generators. We use lead generators, sell leads to lawyers, and they claim that it's perfectly ethical for lawyers to buy their leads. I encourage you to be very cautious in that area. Many of these marketers advertising ways that lawyers are not allowed to advertise in. And that's a problem under the rule. We just mentioned 8.4. And there are some states that have specific rules that prohibit or limit the ability of lawyers to participate in these types of lead generation referrals. So very state specific check with your state bar or somebody in your state that does a lot of ethics work. Email can create some technology traps. Like not protecting confidential information when you use email. Are you required to encrypt email? That's a common question. The ABA published an opinion a few years ago. 477 R that precludes that for most types of email. Unencrypted email will do just fine, but because there are a lot of threats out there. A lawyer has an obligation to, as the opinion says, constantly analyze how they communicate electronically about client matters. The opinion provides some guidance on how to go about doing this. One suggestion is to properly label confidential information as privileged and confidential. But I would also add a caveat. Don't over label. Many lawyers rely on the form disclaimer that goes on everything from actual privileged communications to your lunch order. The disclaimer usually goes at the end of the email. So by the time the unintended recipient sees it, he or she has already read the message. Somebody said that this is like putting a note inside of a box that says, Don't open this box. By the time you see it, it's too late. But don't give up on using these. Email confidentiality disclaimers because they do have value, particularly if they're applied to emails on an individual basis. And in case I was involved in a few years ago, a law firm was disqualified for looking at emails that did have this confidentiality disclaimer on them. And when the sending lawyer testified about this, he was asked, Well, don't you put this on all your emails? And he said, Oh, no, no, no. I only put them on emails that I actually determine are privileged. So it's not a boilerplate. And the judge found that very significant. And in my view, that was the determining factor in getting the law firm disqualified. Another ethics issue can arise with respect to using the reply all feature. And that can happen if opposing counsel sends you an email communication and copies his or her client on that email, can you just respond and hit reply all? Or does that violate the rule against communicating with a represented party without their counsel's consent? Well, there's been some. Debate about this. There are state bar ethics opinions going either way. The ABA opinion here, 503, which came out very recently and some others conclude that by. Copying. Their own client Opposing counsel has impliedly consented to you replying to the client. Other states say, no, you can't really assume that that is permission. And I think there's more states that take the negative view. So if you're in a state that doesn't have an opinion on this, the safe recourse. First of all, is to not copy your client on. Emails that you send to opposing counsel, and then that won't generate the issue. But even if you see it from opposing counsel, I'd be very cautious about hitting reply all. Another problem with email is that it's a very fast way to send information to someplace that it really isn't supposed to go. And when that happens, there are ethical ramifications. Some of us old timers remember the old college wishbone formation football coach who asked why his team ran the ball all the time instead of passing. And he said, Well, when you pass, three things can happen and two of them are bad. And lots of things can happen when you get something that you're not supposed to see. And most of those are bad. That's a hypothetical. E is something that is a terrible thing if it's happened to you. And this is an example of an attorney. An attorney has a client, Dan developer, who is interested in a piece of property and they're working on an offer letter. So Anne and her client are going back and forth with revisions or changes to terms and prices and things like that. So they finally get a draft together. She sends the proposed final draft to her client. Well, she thought it was her client, but one of her former clients has a similar name. His Dan dealer. So her helpful email program auto populated the wrong name into the sender slot. She didn't notice it and so she sent the email out to somebody else. He's also a real estate developer and he gets the letter. He's delighted to see the information about this property that might be available. So he goes out and buys it out from under Ann's client. So Ann's client's not happy. And we have the questions. Did an act unethically in how she handled that email? If there's litigation, is there a privilege waiver? And what about the recipient's lawyer, the guy who got it by mistake showed it to his lawyer and his lawyer now knows that. The client got information that the client wasn't intending to get. So I think here the answer is both lawyers have ethical problems. And because she sent the information to the wrong place. And ended up causing harm to her client. If she had simply turned off the autofill. Feature in her email. This would never have happened. But maybe more interesting are the ethical obligations of the recipient's lawyer who. Recipient got what was not intended for him. He showed it to his lawyer and now the lawyer is involved. We see this covered by model rule 4.4 B, the lawyer gets a document or electronic information. And knows that the document or information was inadvertently sent. And it's kind of confidential information. The lawyer has a duty. The recipient lawyer has a duty to promptly notify the sender here. That didn't happen. So it's a likely disciplinary violation, if not more. A privilege waiver question is a little more difficult, and it's going to really depend on the law in the relevant jurisdiction. But the trend with courts is to decide that an inadvertent disclosure that the sender promptly recognizes and attempts to address does not result in a waiver of privilege. Two. Move to our next trap, which is advising clients to clean up their social media. That can be a problem to hypothetical G, says Carl. Client comes to you with a divorce case that's going to be litigated. Carl's been pretty outgoing on his social media pages about his lifestyle, but now he's a little embarrassed about that and. Really would prefer to hide it. It's not going to help him in the case. Question is, can you advise the client to take down previous posts that are less than flattering? And the answer I think there is be very careful. I think it'd be bad advice to have. The client scrubbed the client's media pages Once you know that litigation is on the horizon. There's a couple of opinions. I'm surprised, really only a couple on this. Both of them, interestingly, from 2014, a Florida and a Pennsylvania opinion. Florida opinion takes an interesting approach. They say, well, changing privacy settings, sure, that's okay because you're not really affecting information. You're just affecting who might be able to see it. But you shouldn't advise the client to take the post down if it's going to violate the law. Example, spoliation of evidence law or if it's going to violate rules of procedure like discovery rules. But even if those two things aren't problems. And the post is taken down. It has to be preserved and I'm not sure how you do that as a practical matter. And the advice they give in the summary of the opinion 14 Dash one and Florida. Covers that. And I think the bottom line is. It's a good idea to advise the client to stop posting. It's a good idea to change privacy settings, but I'd be very cautious about trying to take down stuff that's already out there because it's likely to be discovered. And if that happens, not only have you got that to deal with, but you've got the fact that you tried to hide it. Trap number six also deals with social media getting too friendly on social media. Well, technology now gives us the ability to contact and investigate a lot of people, potential jurors, potential witnesses, others. And some of those people post pretty interesting material on their social media pages. So we have to ask, what are the ethical standards that apply when a lawyer uses social media to conduct research and otherwise investigate people who might be involved in a case? These can include opposing parties, potential witnesses, jurors, maybe even judges. And different principles apply. These different categories of people. The basic rule is, of course. Accessing a public portion of anybody's website is generally permissive. That's something you're allowed to do. But there's but there's a caveat that some states have carved out. If you happen to view somebody's page on a platform that automatically notifies them that you were there looking at their page. Some states consider this a quote, communication with the person. And that can be a problem if that person happens to be a juror. Or a representative party. Of course, a lot of times what's on the public portion of a website is not super helpful. So you want to get the inside scoop. Can you send a friend request or the equivalent to try to get access to what's on the non-public pages? Are there rules that apply to friend requests? Well, sure. And I'll try to summarize them. Opposing parties pretty much off limits due to rule 4.2, which we talked about earlier. Can't send a friend request without their lawyer's consent if the person's not represented. Well, the opinions pretty much say you can send a friend request if and this is a pretty big if if you identify yourself and the reason you're making the contact. And if you also do not give legal advice to an unrepresented party that's prohibited by law. 4.3. Investigating jurors be very, very, very, very careful. Rule 3.5 limits communication with jurors. And a lot of states have even more restrictive versions of that. And interestingly, there was a report that I saw from the Federal Judicial Center from a few years ago that actually said that one quarter of the federal judges surveyed prohibited lawyers from using social media to investigate prospective jurors in their courts. So make sure the relevant court does not have some kind of court order or standing rule against that kind of investigation. And assuming there are no court restrictions, you normally can look at those publicly accessible pages. But as I said, if the platform automatically sends notification to the persons whose pages you're viewing and these people are jurors, I would stay away from looking at those platforms. What about friend requests the judges? Well, not a good idea. Not necessarily a disqualification for the judge, although there are cases that that can go that way. Typically, if the judge is simply friends with lawyers, that is not by itself. Usually a sufficient basis for judicial disqualification. But. In some cases. Where like the Wisconsin case and the Florida case, where a judge and a pending case sent or accepted friend requests from a litigant, that can be grounds for disqualification. So the best advice is do not friend a judge, a judge. You have cases in front of. Judges have a lot of friends already, so they'll be okay with that. Well, something we have to talk about, and we'll do so kind of in a summary fashion, because frankly, there's not a lot of information out there on it yet. Is artificial intelligence. And I think our number seven would be be careful about relying too much on artificial intelligence, at least right now. It has a lot of promise, but it also carries some ethical concerns for lawyers who use it. For example, the ChatGPT program in just minutes can prepare legal documents that would have ordinarily taken even experienced lawyers hours to prepare. What could possibly go wrong? Well, many of you have heard about recent case in New York. Sanctions order was issued very recently. Where? Lawyers who filed a brief that was prepared by ChatGPT were sanctioned because the brief contained what the judge said were quotes or cases that appeared to be bogus and had, quote, bogus quotes and bogus internal citations. Chatgpt just made it up. And the judge had a show cause hearing. The lawyers originally at least stood by their brief and were required to pay a $5,000 fine. Somebody I know said this technology is not a substitute for critical thinking. And that's true. And I've seen since then courts are starting to require a certification in some cases where the lawyer would have to certify that the brief was not prepared by ChatGPT or if it was that the lawyer checked it and stands by it personally. Because. Lawyers attempted to use this. It's a great tool if it if it works. So here. Was it wrong for the lawyers to even use ChatGPT? Well, no. The court, in its order even acknowledged that the problem was that they didn't use it ethically. Artificial intelligence is a tool just like any other tool that lawyers use. So it has to be used with the proper awareness of relevant ethical issues. Law firms are starting to adopt policies for the use of artificial intelligence. Some have banned it. But I suspect that most lawyers in law firms have not really. Formally address the issue one way or the other. So let's very quickly look at some ethical issues that can be implicated by the use of artificial intelligence. The variety of variants. One is competence. 1.1 we saw lawyers have a duty to be competent with technology. So what does that mean when it comes to artificial intelligence? Well, it's difficult to say. We don't really know. But one thing we we probably can agree on is it doesn't mean a lawyer has to understand how to write the code for an AI program. But what it probably does mean is that the lawyer needs to know enough about how AI works to make reasonable decisions about using it. Knowing the strengths and the limitations of the product. I is not perfected, as we saw, has some problems. It responds with well-organized information when you submit a query to it, but it's not always complete and it also sometimes makes things up. That's what they call hallucinating. Um, so it would not be competent representation for a lawyer to simply rely on the results of check without verifying that. But that's kind of difficult because ChatGPT doesn't tell the user where the information comes from. And so it makes it potentially difficult and time consuming to verify a response. And and that reduces the time and cost savings that would otherwise be generated by using ChatGPT. Communication is an issue. 1.4 of the model rules requires lawyers to keep clients reasonably informed about their matters and to consult with clients about certain aspects of the representation. That includes a duty to reasonably consult with the client about means by which the client's objectives can be accomplished. So does that mean that the client has to be informed that the lawyer will use AI tools in researching and preparing draft documents? Is it deceptive and dishonest for a lawyer not to tell the client they're using AI? Or what if a client insists that a tool like ChatGPT be used in the case? How does the lawyer respond to that? Well, like I said, this is a new area. There's no real definitive guidance on these questions, at least today. But in terms of disclosure to clients of what's going on, I would say the best standard is one we use in other contexts. Would the client feel deceived or misled if he or she wasn't informed about this and found out about it later? In terms of client control over whether you use an AI tool. To me, that seems to be a decision for the lawyer, not necessarily one for the client. Confidentiality, including confidentiality involving former clients, is probably the biggest area of concern at this time. In order to use ChatGPT, the lawyer has to provide information and ask for a response. The information lawyer provides becomes part of the ChatGPT database. And so in making a query, in order to make an effective query, the lawyer necessarily has to reveal information about the case, which is defined under model rule 1.6 as confidential information. The rule says information relating to the representation of a client is confidential unless one of the exceptions applies. And there's also concern that Chad might not be secure against unauthorized intrusions by hackers. 1.6 requires lawyers to make reasonable efforts to protect against this. But the typical lawyer has really no way to ensure security when it comes to AI other than by not using it. And these confidentiality concerns may create practical problems when it comes to being certain that your malpractice insurance protects against these kinds of confidentiality breaches through the use of AI. When it comes to former clients, we have a rule 1.9 C, which prohibits clients or lawyers from using confidential information to a former client's disadvantage or revealing that information. Whether or not it disadvantages the former client. And this could be a problem because ChatGPT makes no promises regarding what it's going to do with the information that it gets from people who use it. And actually to the contrary. Part of what makes ChatGPT work is its ability to assimilate and process all of the information that's submitted to it. So when you submit the information, you really have no idea where it's going to go, how it will be used, or who might see it in some form or another. And I can say another context. Ethics authorities typically aren't happy about this. For example, even with dealing with disposal of confidential information stored on paper or on your office equipment, lawyers are advised to get confidentiality agreements from the shredding company or the disposal company. Can you do that with ChatGPT? Model. Rule 2.1, I think is an important rule. And it tells us that when we're advising clients. Mourners can refer not only to law, but other considerations like moral, social, economic and political factors. And this rule may be overlooked by some people when we're talking about AI ethics, but I think it's one of the most important rules. Lawyers perform not just legal services, but they're hired to give legal advice that's tailored to a client and to a client's circumstances. It's hard to see how even a sophisticated AI tool could do this. Size up the client. Use professional judgment. That's all something a lawyer, particularly an experienced lawyer, has to do to try to guide a client in a path that's most likely to be successful. So there's more than just a monetary equation involved. The lawyer has to use other factors. And there's another side to this. Ai tools are getting better at predicting outcomes. So if an outcome is predicted and the lawyer through the lawyer's experience thinks that, well, maybe the I indicates we should accept this offer, but I think we can do better. And I've had this kind of experience. How do you advise the client and what happens if you're wrong? Is not a standard of care issue. All these things are interesting questions. Supervision, obviously we've mentioned this already. Lawyers have a duty to have policies and procedures for those that work under them, and I think that includes for the tools they use. Fees. That's an issue, too. You're supposed to charge reasonable fees. How do you bill, for the use of a tool like ChatGPT or for the time that you spend verifying its output or correcting its mistakes? You know, if a lawyer today spends five hours preparing a document and ChatGPT will prepare it in a couple of minutes or a bill based on time are going to lose a lot of revenue. And unauthorized practice of law. What if non-lawyers use ChatGPT to provide legal information or advice to clients? Is that the issue? Well. All these are interesting questions and we will see as the future unfolds what those answers are. So we'll conclude today by pointing out the last technology trap. And that's thinking you're out there on Ethics Island by yourself. Just like any other area of law. Ethics has intricacies and particular areas of specialty, and we all benefit from time to time by talking over the ethical issues with others. Most states bars have an ethics help line. There's a list at the ABA provides. Your state might have one. And. I'm always available to talk to people as well, so feel free to contact me if necessary. And I'll close by saying something about technology. I saw this slogan a few years ago and I don't remember where I saw it or what it was about, but it's always stuck with me. And that's in a world of technology. People make the difference. Lawyers are those people. They make a big difference in the lives of their clients. Is a tool, but it's the lawyer. The people that are involved that really make it happen. Thank you for your time today. And hopefully this has been thought provoking and we will. Have provided some service to you through your time today.

Presenter(s)

TCJ
Tim Chinaris, JD
Professor of Law
Belmont University College of Law

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  • 1.0 ethics
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  • 1.0 ethics
July 18, 2025 at 11:59PM HST Available
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  • 1.0 ethics
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    • 1.0 ethics
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                            • 1.0 ethics
                            August 2, 2025 at 11:59PM HST Approved
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                                    • 1.0 ethics
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