Legal Ethics Online

Jeffrey Franklin and David Rakowski

Current and Upcoming Online Privacy Laws and Their Effect on Legal Practice

• White House-”Privacy Bill of Rights”: http://www.whitehouse.gov/sites/default/files/privacy-final.pdf

• Existing privacy laws impacting legal practice:– Gramm-Leach-Bliley Act (1999)– HIPAA– COPPA– The Stored Communications Act

ABA Ethics Guidelines for Attorney Use of the Internet

• ABA Model Rules 1.1 (“competence”), 1.4 (“communications”), and 1.6 (“confidentiality”)

• ABA Model Rules 5.1 (“Responsibilities of a Partner or Supervisory Lawyer”) and 5.3 (“Responsibilities Regarding Nonlawyer Assistant”)

http://www.americanbar.org/publications/law_practice_today_home/law_practice_today_archive/march12/cyber-security-for-attorneys-understanding-the-ethical-obligations.html

ABA Commission on Ethics 20/20

“Should the ABA add some kind of technology proficiency to the Rules of Professional Conduct?”

http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html

http://www.pinhawkblog.com/ethics-lawyer-tech-skills/

Using the Metadata Opposing Side Accidentally Shared Through Electronic Communication

• What is “metadata”---data about data (i.e., author, date created, software used, comments, and changes)

http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/metadatachart.html

Pitfalls of Interactive Websites: When Does the Attorney-Client Relationship Begin?

“A lawyer-client relationship can arise when a potential client manifests to a lawyer his/her intent that the lawyer provide legal services to the potential client and either 1) the lawyer

agrees or 2) the lawyer fails to manifest lack of consent to do so and the lawyer reasonably should know that the potential

client is reasonably relying on the lawyer to provide the services. Restatement (Third) of Law Governing Lawyers Sec. 14 (2000).”

http://apps.americanbar.org/litigation/litigationnews/top_stories/082411-ethics-technology-marketing-model-rules.html

What can Attorneys Say in Blogs and on the Forums?

Issues to consider:• Content• Confidentiality• Pretrial Publicity• Improvement of the Legal System• Advertising• Unauthorized Practice of Law

Separating Personal and Professional Identity Online

Is it possible to keep our personal and professional identities separate?