Originally published as Ethics Watch: Technology and Ethics (“Technethics”): 2013 in Review, South Carolina Lawyer 14 (March 2014)
In past years I have written a year-in-review Ethics Watch column, covering significant South Carolina ethics decisions and opinions, along with ABA Formal Opinions issued during the year.
Because technology is playing an increasingly important role in the practice of law, I have decided to change the focus of the annual review column from South Carolina ethics to important developments in technology and ethics around the country. For ethics developments in South Carolina during 2013 see the website to the Annotated South Carolina Rules of Professional Conduct. See browser > “Annotated South Carolina Rules of Professional Conduct.”
New Florida advertising rules.
On January 31, 2013, the Florida Supreme Court issued new rules on lawyer advertising. One of the most significant aspects of the new rules is that all statements by attorneys must be “objectively verifiable.” In addition, the new rules apply to all forms of lawyer advertising, regardless of whether the information was sought on request, as is the case with websites, social networking, or video sharing sites. All advertisements (other than websites) must be filed 20 days before their planned use unless they are exempt. The Florida Bar Board of Governors has issued guidelines on a number of issues. Lawyers in other states who advertise in national media can avoid application of the Florida rules if they include a disclaimer “cases not accepted in Florida.” The rules also do not apply to website advertisements if they do not offer the services of a Florida bar member, a lawyer located in Florida, or a lawyer offering to provide services in Florida. Rule 4-7 (comments).
Judge Scheindlin orders adverse inference instruction on behalf of defendant for plaintiff’s gross negligence in failing to timely institute litigation hold.
In Sekisui American Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. 2013), Judge Shira Scheindlin has added another important opinion to the law of electronic discovery. In 2003-2005 Judge Scheindlin issued five rulings in the Zubulake case that have become the basis of much of the law with regard to the obligations of lawyers and clients in dealing with discovery of electronically stored information (ESI). Id. at fn 1. Sekisui deals with the standard for imposing sanctions for failure to institute a litigation hold. Judge Scheindlin found that Sekisui was grossly negligent in failing to institute a litigation hold in a timely fashion and that prejudice could be presumed because of its culpability.
The decision is significant in several other respects. First, while motions for sanctions for failure to preserve ESI are usually directed against defendants, it is clear that the obligation also applies to plaintiffs, as in Sekisui. Second, the case also illustrates the principle that the trigger for a litigation hold can often precede the filing of a lawsuit. Ironically, in Sekisui the plaintiff pulled the trigger that shot its own case. Third, for lawyers and judges looking for model language of an adverse inference instruction, Judge Scheindlin’s opinion, which contains the instruction she plans to give at trial, is an excellent source. For a more detailed discussion of this case, see my blog in www.technethics.com.
Are blogs “advertising” subject to the ethical restrictions governing commercial communications? Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), deals with the question of whether blogs are subject to the rules of professional conduct. Attorney Hunter, a criminal defense lawyer, wrote a blog on his firm website discussing recent cases of interest in Virginia, most of which were cases Hunter successfully handled. The Virginia State Bar claimed that the blog was subject to the rules of professional conduct and charged Hunter with two violations: failure to include a disclaimer on the blog dealing with case results and disclosure without client consent of information about client cases even though such information had been revealed in court. The Virginia Supreme Court agreed with the Bar on the disclaimer issue. Considering a number of factors, the court held that Hunter’s blog was commercial rather than political speech and therefore could be regulated by the bar. The court held that the requirement of a disclaimer met the three-pronged test established by the Supreme Court in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm., 447 U.S. 557 (1980). In particular, the Supreme Court had previously approved the requirement of disclaimers to avoid misleading the public. However, on the second charge, violation of the duty of confidentiality, the court held that Hunter’s blog postings were constitutionally protected: “a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.” The Supreme Court has denied certiorari in the case.
Loss of privilege when client or lawyer uses employer’s email system.
In In re Information Management Services Derivative Litigation, 81 A.3d 278 (Del. Ch. 2013). the Delaware Court of Chancery ruled that email communications between officials of the closely held company and their personal attorneys using the company’s email system were not subject to the attorney-client privilege because the officials did not have a reasonable expectation of privacy. The ABA Ethics Committee has previously advised that lawyers who represent employees should warn them that use of company email systems for communication with their lawyers runs the risk of loss of the attorney-client privilege. See ABA Formal Opinion #11-459.
Most attorney-privilege waiver cases involving use of employer email systems deal with emails initiated by the client, but waiver can also occur in the reverse case. In United States v. Finazzo, 2013 WL 619572 (E.D.N.Y., Feb. 19, 2013), the court held that an attorney waives privilege when he or she sends an email to a client at the client’s work email address. The ethical and professional liability implications in an age in which counsel communicate with clients on email with some regularity are significant.
For more information contact Nathan M. Crystal