ethics - atlanta, ga - icle
TRANSCRIPT
LEGAL ETHICS
Erin H. GerstenzangDecember 2, 2016 Atlanta, Georgia
I have notes of when Trump phoned me for legal advice in 1996. I’m now figuring out whether our talk was privileged.” — LAURENCE TRIBE
HARVARD LAW PROFESSOR
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The ‘issue’ is not at all whether Professor Tribe’s notes are ‘protected by attorney/client privilege.’ No one, to my knowledge, has subpoenaed Tribe’s notes. Rather, ‘the issue’ (to be more precise, one of several issues here) is whether the notes are confidential. Privilege is an evidentiary issue, confidentiality is an ethical issue. Tribe’s problem is now one of ethics, not of evidence. All law students and lawyers should know this.”
“— MICHAEL KRAUSS
GEORGE MASON LAW SCHOOL
A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these Rules or other law, or by order of the court.
RULE 1.6 (A) CONFIDENTIALITY OF INFORMATION
GEORGIA
RULE 1.6 (A) CONFIDENTIALITY OF INFORMATION
MONTANA
Privileged
Confidential
GEORGIA
RULE 1.6 (A) CONFIDENTIALITY OF INFORMATION
MONTANA
Privileged
Confidential
GEORGIA
All information gained in the professional relationship with a client
SOCIAL MEDIA
The world of social media is a nascent area that is rapidly changing and “best practices” will continue to evolve to keep pace with such developments.”
SOCIAL MEDIA ETHICS GUIDELINES, THE NEW YORK STATE BAR ASSOCIATION (JUNE 2015)
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“Proper attire for trial?”
ATTORNEY’S FACEBOOK POST
ANYA CINTRON STERN
When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it give’s the appearance that he is not receiving a fair trial.”
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PUBLIC DEFENDER CARLOS MARTINEZ
ANYA CINTRON STERN
I personally know the attorney and the sad part is she is a brilliant trial attorney. I can tell you, those of you who think this was stupid, watch out; this can happen to anyone!!! Social media is so prevalent nowadays that anyone can make a mistake. Who hasn’t commented about photographs of this or that introduced as evidence at a trial? This is not any different, especially with the younger generation who use social media as we used real social gatherings. Let him who is free of sin cast the first stone.”
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ABA ARTICLE COMMENT
ANYA CINTRON STERN
A RECENT FACEBOOK POST
Ms. Local Public Defender, Esq.Anytown
Court Staff, Any-town prosecutor
A RECENT FACEBOOK POST
Ms. Local Public Defender, Esq.Anytown
Court Staff, Any-town prosecutorWhen a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it give’s the appearance that he is not receiving a fair trial.”
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Can You Friend Your Judge on Facebook?
I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.”
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— JUDGE SAMUEL L. WINDER
DISTRICT COURT OF
BERNALILLO COUNTY
In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.”
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— JUDGE SAMUEL L. WINDER
DISTRICT COURT OF
BERNALILLO COUNTY
Judges must avoid not only actual impropriety but also its appearance, and judges must ‘act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary.”
State v. Thomas, 2016 NMSC 024, 6 (N.M. 2016)
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Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT!”
CLIENT’S DAUGHTER’S FACEBOOK POST
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A lawyer may advise a client with regard to posting new content on a social media website or profile, as long as the proposed content is not known to be false by the lawyer. A lawyer also may not “direct or facilitate the client's publishing of false or misleading information that may be relevant to a claim.”
SOCIAL MEDIA ETHICS GUIDELINES, THE NEW YORK STATE BAR ASSOCIATION (JUNE 2015) NYCLA, FORMAL OP. 745.
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May lawyer to use a “web bug” or other tracking device to track the location and use of emails and documents sent to opposing counsel?
When the email was opened.
How long it was reviewed.
How many times it was opened.
Whether attachments were opened.
How long attachment reviewed.
Whether email was forwarded.
Rough geographical location of recipient.
Have you ever expressed an opinion about this case?
First hell yeah he need to do some time!!! The young fella was already died from the gun shot wound to the head, then he came back with a diffrent (sic) gun and shot him 5 more times. Come let’s be 4real it didn’t make no sense!”
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TECH COMPETENCE
CAN’T WE JUST IGNORE
TECHNOLOGY THAT WE DON’T UNDERSTAND?
Competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
RULE 1.1 COMPETENCE
GEORGIA
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
RULE 1.1 COMPETENCE COMMENT 6
Competence may require understanding the often lengthy and unclear “terms of service” of a social media platform and whether the platform’s features raise ethical issues. It also may require reviewing other materials, such as articles, comments, and blogs posted about how such social media platform actually functions.
SOCIAL MEDIA ETHICS GUIDELINES, THE NEW YORK STATE BAR ASSOCIATION (JUNE 2015)
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A lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.”
“New York Bar Section Releases Social Media
Guidelines for Lawyers. June 9, 2015.
ARIZONA
CALIFORNIA
NEW HAMPSHIRE
As a matter of legal competence under Rule 1.1, a lawyer must have competence in the skills reasonably necessary for representation, which includes technology.”
State Bar of Arizona Ethics Opinion 09-04. December, 2009.
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CALIFORNIA
NEW HAMPSHIRE
NEW YORK
NEW YORK
ARIZONA
Even if e-discovery is relatively new, the duty of competence is not, and in today’s technological world, every case has the potential to involve e-discovery.”
California Committee on Professional Responsibility and Conduct Formal Opinion 2015-193.
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NEW HAMPSHIRE
CALIFORNIA
Minimal competence requires a lawyer to perform the techniques of practice with skill and required techniques include the way client information and attorney work is electronically stored.
New Hampshire Ethics Committee Advisory Opinion #2012-13/4.
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NEW YORK
ARIZONA
FLORIDA APPROVES 3-HOUR TECHNOLOGY CLE REQUIREMENT
BLOGGING
Huh? You want to go back and tell the judge that you lied to him, you lied to the pre-sentence investigator, you lied to me? And you expect what to happen if you do this? I'll tell you what would happen; the sentence just pronounced would be immediately vacated and you'd go to prison, that's what would happen.
KRISTINE ANN PESHEK “
60-DAY SUSPENSION
A lawyer shall not knowingly:
• Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
• Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
RULE 3.3 CANDOR TOWARD THE TRIBUNAL
GEORGIA
The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
RULE 3.3 CANDOR TOWARD THE TRIBUNAL
GEORGIA
RULE 1.6 (A) CONFIDENTIALITY OF INFORMATION
MONTANA
Privileged
Confidential
Exceptions:
• Candor to the court
• Prevent bodily harm/illegal financial harm
• Establish defense
GEORGIA
GHOST BLOGGING?
It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
RULE 8.4(A) (4) MISCONDUCT
GEORGIA
