October 2010 | Earn one hour of MCLE Credit in Legal Ethics
Why talk when you can text?
In an age of electronic communication, instant messaging and social networking, lawyers must know their professional responsibilities.
When a modern lawyer needs to communicate with her client, she doesn't always reach for the telephone. To the contrary, many times she will simply send an e-mail or a text message — the same way she communicates with everyone else. Welcome to the practice of law in the new millennium. In an age of electronic communication, instant messaging and social networking, lawyers must be aware of their ethical and professional responsibilities and how they apply within the increasingly public realm of electronic communication.
Communicating with modern clients
Client communication is a major area in which the advent of electronic communication has impacted the practice of law.When a client e-mails his or her lawyer in modern times, an immediate response is expected.
California Rule of Professional Conduct 3-500 requires a lawyer to “keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.”
The discussion section to Rule 3-500 notes that while clients must be informed of significant developments, a lawyer will not be disciplined for failing to communicate insignificant or irrelevant information. The discussion section references Cal. Bus. and Prof. Code 6068(m) which states that one of the duties as an attorney is to respond to reasonable client status inquiries and “to keep clients reasonably informed of significant developments” regarding the subject matter of their legal employment. Lest anyone take a violation of Bus. and Prof. § 6068 lightly, Bus. and Prof. § 6103 states that violations of any of an attorney’s duties as an attorney “constitute causes for disbarment or suspension.”
Regardless of the amount of information to be shared with the client, however, the lawyer is expected to be accessible quickly and responsive to his or her clients’ e-mail and text messages. Many modern attorneys choose to use e-mail to communicate with their clients. California Evidence Code § 917(b) states that a privileged communication does not lose its privileged status “for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation or storage of electronic communication may have access to the content of the communication.”
Regarding looking to ethics opinions for guidance, Rule 1-100 states that while they are not binding authority, California ethics committee opinions should be consulted by California lawyers “for guidance on proper professional conduct.” The rule also states that “ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”
Several out of state ethics opinions have concluded that generally, a lawyer may communicate confidential information via unencrypted e-mail. (See, e.g. New York State Bar Association Op. 820 (2008); ABA Formal Opinion No. 99-413.) The ABA Opinion finds e-mail comparable privacy-wise to commercial mail, land-line telephone transmissions and fax communication, but cautions lawyers to consult with their clients regarding the preferred mode of sending highly sensitive information.
The fact that many lawyers rely almost exclusively on electronic communication does not detract from their responsibility to follow all other ethical rules. This is true whether they are communicating with colleagues, family and friends or clients. In addition to the concerns about the attorney-client privilege, there are ethical opinions regarding the propriety of spying on the electronic documents of others. The New York State Bar Association Committee on Professional Ethics in Op. 749 (2001) concluded that lawyers may not use technology to surreptitiously trace and examine electronic documents, including e-mail.
Use of company e-mail
Lawyers should keep up to date on the latest cases interpreting the interplay between the use of private e-mail accounts, the use of employer computers and the attorney-client privilege. In Stengart v. Loving Care Agency Inc. (2010) 201 N.J. 300 [not yet final], the New Jersey Supreme Court ruled that a company policy of monitoring e mails must yield to the protection provided by the attorney-client privilege. The court held that the plaintiff, who had filed an employment discrimination case against her employer, had a reasonable expectation of privacy in the e-mails she sent to her lawyer through her personal password-protected Yahoo account, even though they were sent through the use of a company laptop. (Id. at 308.) The trial court had ruled that the plaintiff waived the attorney client privilege by using a company computer to send the e-mails. The court also ruled that the attorneys for the company violated their state’s version of rule 4.4(b) (inadvertent disclosure) by failing to tell the plaintiff’s lawyers that they possessed her privileged e-mails before reading them. (Id. at 325-36.)
Getting up to speed: Electronic communication and
the duty of competence
You are practicing law in the new millennium; you should know the rules that apply or could potentially apply to the facts and circumstances of your cases. Your duty of competence includes being able to perform legal representation with competence, bringing in other lawyers who can, or by acquiring the necessary learning and skill by the time you begin performing legal services.
California Rule of Professional Conduct 3-110, Failing to Act Competently, states in paragraph (A) that “a member shall not intentionally, recklessly or repeatedly fail to perform legal services with competence.” “Competence” is described in subsection (B) as “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional and physical ability reasonably necessary for the performance of such service.” Subsection (C) states that if the lawyer does not possess the learning and skill necessary when the representation was undertaken, he or she may still render competent representation by associating with or consulting another lawyer who does possess the requisite competence, or by acquiring the necessary learning and skill themselves before performing the legal services.
Talking about your clients online: Bloggers beware
While modern technology has made it very easy to talk to your clients electronically, it is generally not a good idea to talk about your clients online. There is a difference between going back to the office and talking about a case with your supervisor and posting the courtroom drama of the day online. In Illinois, a former assistant public defender is facing disciplinary charges for blogging about client confidential information (In the Matter of Kristine Ann Peshek, Before the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission, Commission No. 09 CH 89.) One of the counts charges the attorney with publishing client confidences or secrets on the Internet, for postings on her blog site — one-third of which was devoted to discussing her clients and work at the public defender’s office. Her blog was public and not password-protected. A portion of one blog at issue, which started by identifying the client’s jail identification number, stated, “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch.’ I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns.” Other postings contained confidential information about client drug use and client misrepresentations to the court and to probation. The attorney in question e-mailed the ABA Journal stating that she would never have posted information that would reveal a client’s identity without the client’s permission or unless it was public record. (“Lawyer Faces Discipline Over Blog Posts,” Law.com Legal Blog Watch (3/19/2010); http://legalblogwatch.typepad.com.)
The second count of the complaint charged the former assistant public defender with failure to disclose to a court information necessary to avoid assisting her client with perpetrating a fraud. This was based on the attorney’s admission that she knew the client had misrepresented her drug use to the court. The conduct implicated, among other sections, the Illinois State Bar versions of ABA Model Rules 3.3 (candor) and 8.4 (misconduct).
Note that while California has not yet adopted some versions of the ABA Model Rules, when California does not have an ethical rule governing a specific issue, courts may look to the ABA for guidance, although they may not consider ABA rules and opinions as binding authority. True. Regarding ABA formal opinions, case law holds that while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California. (State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656.)
Electronic client files
Another issue that comes up in the realm of electronic communication is the issue of retention and transfer of electronic client files. Under California Rule of Professional Conduct 3-700, paragraph (D) states in pertinent part that a lawyer whose employment has terminated shall release to the client at his or her request all client papers and property. These are described as including “correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.”
What result if all or part of the client papers and property are kept electronically? Orange County Bar Association Formal Opinion 2005-01 states that the lawyer should employ a balancing test when addressing the question as to whether the attorney who is already turning over hard copies of everything in a client’s electronic files must also turn over the electronic files themselves. The balancing test would weigh the expense and time involved in copying and/or transferring the electronic files against the client’s need for the additional electronic files.
This opinion also notes that an attorney’s work product may be contained in client files electronically as “metadata,” although it found the resolution of the issue of whether that needs to be turned over as well is beyond the scope of the opinion. It is noted, however, that if an attorney is concerned about metadata, he or she may choose, if appropriate under the circumstances, to print the documents and deliver them in that format which will not show the internal changes.
The opinion notes that an unsophisticated client may be unable to access electronic files, and therefore an attorney may have to print certain files for the client (citing Maine Bd. of Overseers of the Bar Ethics Op. 183 (2004). On the other hand, the opinion notes that North Carolina Ethics Op. 5 (2002) permits an attorney to turn over e-mails electronically even in the face of a client request to the contrary due to the wide availability of computers.
State Bar of California Formal Opinion 2007-174 states that upon termination of employment, under Rule 3-700 an attorney is ethically obligated to produce at the client’s request all electronic documents that come within the rule’s provisions for release, but the attorney is not required to create such items if they do not exist nor is an attorney required to change the document application from WordPerfect to Word, etc. The opinion cites for comparison purposes New Hampshire Bar Association Ethics Committee Op. No. 2005-06/3 which concluded that under New Hampshire rules, an attorney has an obligation to provide all relevant files in both electronic and paper format, regardless of the burden imposed. It also cited Illinois State Bar Association Advisory Op. No. 01-01 which concluded that under Illinois rules, an attorney cannot refuse a client request for electronic versions of relevant documents if they can be easily retrieved.
Like the Orange County opinion, Formal Opinion 2007-174 also discusses metadata. While it does not discuss attorney work product contained within metadata, the opinion notes that an attorney is obligated prior to releasing the information to take reasonable steps to strip any metadata in the electronic documents containing confidential information belonging to any other client per California Business and Professions Code § 6068(e)(1), which states that one of the duties as an attorney is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”
Regarding Rule 3-700 (D)(1)’s requirement that the documents be “reasonably necessary to the client’s representation,” the opinion states that an item falls within this definition if it was “generated during the representation” for continuing use therein (citing California State Bar Formal Op. No.1992-127).
In addition, Op. 2007-174 concludes that as a general matter, an attorney’s Rule 3-700(D)(1) obligation is not subject to a balancing test of the sort suggested by Orange County Bar Association Formal Op. 2005-01 (which they cite), noting no support for such a test in the rule itself or any other evidence surrounding the meaning of the rule.
The e in “e-mail” stands for “evidence”
Finally, all lawyers should abide by the general rule: don’t put anything in an e-mail that you wouldn’t want to see garnished with an evidence tag and offered into evidence by opposing counsel. The same goes for your postings or blogs on social networking sites. Obviously, privacy is lacking in those forums; that is the point.
In addition, be aware of potential defamation claims that might be made in response to something you post online. Without the type of litigation privilege protection you enjoy in court, you are on your own when choosing to disclose information on your social networking site. Accordingly, exercise good judgment in your postings, “tweets” and blogs.
Note also that unsolicited e-mail generally does not form an attorney-client relationship. Despite containing what one might otherwise consider confidential information, unsolicited e-mail normally will not constitute a confidential communication between lawyer and client. (San Diego County Bar Assn. Legal Ethics Committee Opinion 2006-1).
Electronic communication has facilitated interpersonal communication in many ways and is a valuable mode of communication for the lawyer who is familiar with all the applicable ethical rules. A working knowledge of the law and ethical rules governing the mechanics and limitations of online communication will allow you to interact in the virtual world effectively as well as ethically. Good luck!
*This article does not constitute legal advice. Please shepardize all case law before using.
• Wendy L. Patrick is a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division. She has been a chair of the San Diego County Bar Association Legal Ethics Committee for more than five years and is one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC).
This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour of legal ethics.
The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.