Ethics 2.0(16) Ethical Issues in the Digital Age. Charles W. Cohen September 23, 2016

Transcription

1 Ethics 2.0(16) Ethical Issues in the Digital Age Charles W. Cohen September 23, 2016

2 Overview Lawyer s Duty of Competency with Technology Cybersecurity: Protecting Client Confidences Social Media: Clients & Adversaries Internet of Things Hughes Hubbard & Reed LLP Page 2

3 Why Is this Important? Hughes Hubbard & Reed LLP Page 3

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5 Model Rule 1.1 & Lawyer s Duty of Competency with Technology Client-Lawyer Relationship ABA Model Rule 1.1: Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Hughes Hubbard & Reed LLP Page 5

6 Model Rule 1.1 & Lawyer s Duty of Competency with Technology Comment 8 to ABA Model Rule 1.1 (adopted by the ABA in 2012): 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... Hughes Hubbard & Reed LLP Page 6

7 Other States Treatment of Comment 8 NY PA FL Adopted comment 8 but narrowed scope. Lawyer must keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information. Adopted comment 8, explicitly incorporating it into a lawyer's duty to remain current with changes in the law and its practice. Formal petition to support adoption of comment 8 filed in April 2016 before the Florida Supreme Court. Pending. Hughes Hubbard & Reed LLP Page 7

8 Model Rule 1.1 & Commentary 8 23 States have since adopted Comment 8 WA OR ID MT WY ND SD MN WI MI NY ME VT NH MA CA NV AZ UT CO NM NE KS OK IA MO AR IL OH IN KY TN PA WV VA NC SC NJ? DE MD RI CT AK TX LA MS AL GA FL HI Hughes Hubbard & Reed LLP Page 8

9 Rule 1.1 & Commentary 8 Background and Explanation Hughes Hubbard & Reed LLP Page 9

10 Rule 1.1 & Commentary 8 Background and Explanation The Committee finds that it would not be appropriate to graft the ABA language onto our New Jersey Rule. Hughes Hubbard & Reed LLP Page 10

11 Why the Dislike? New Jersey Rule of Professional Conduct 1.1: A lawyer shall not: (a) Handle or neglect a matter entrusted to the lawyer in such manner that the lawyer's conduct constitutes gross negligence. (b) Exhibit a pattern of negligence or neglect in the lawyer's handling of legal matters generally. Hughes Hubbard & Reed LLP Page 11

12 Why the Dislike? 1. Different Standards 2. Money 3. Ethics Opinion 701 (2006) Hughes Hubbard & Reed LLP Page 12

13 Practical Ethical Takeaways Hughes Hubbard & Reed LLP Page 13

14 Practical Ethical Takeaways Programs like Adobe, Word, Excel are now essential. But consider becoming familiar with the following to better manage your practice: o Legal Analytics o Document Management Databases & Software o efiling/edocketing o Secure FTP document/file transfer Hughes Hubbard & Reed LLP Page 14

15 Practical Ethical Takeaways Understand how to protect your client s confidences in the digital age. If you use social media for any reason (attorney advertising, jury research, client communication) you have an obligation to understand it s benefits and risks. Keep abreast of the latest connected products that could pose litigation and ethical challenges. Hughes Hubbard & Reed LLP Page 15

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17 Cybersecurity Generally refers to protecting computer systems and the electronic data stored in them. Growing area of legal practice: encompasses compliance, corporate due diligence, contract drafting, data breach notifications, and litigation. This is an issue that affects every lawyer and client. Hughes Hubbard & Reed LLP Page 17

18 Who s Being Hacked? Hughes Hubbard & Reed LLP Page 18

19 What are hackers trying to accomplish? Opportunistic Hacking o Technical challenge o Reputation o Political Statement Insiders/Disgruntled Employees o Revenge o Financial Gain Organized Crime o Financial Gain Hughes Hubbard & Reed LLP Page 19

20 Cybersecurity: Law Firms Are No Exceptions! This year alone: o Panama Papers Leak o Patricia Doran lawsuit otwo well-known, large law firms reported breaches Hughes Hubbard & Reed LLP Page 20

21 Cybersecurity: Protecting Client Confidences in the Digital Age ABA Model Rule & NJ RPC 1.6(a); see also NJRPC 1.9(c). NJ Ethics Opinion 701 (2006) o o o An attorney may use the Internet to communicate with clients and store client files, provided that the attorney uses reasonable care. Also requires New Jersey attorneys to exercise sound professional judgment in order to secure client confidences against hacking and other forms of unauthorized use of digital information. Attorney must also use as reasonable care to ensure that digital documents entrusted to a third party for analysis are preserved, confidential and secure. New Rule, effective September 1, 2016: o NJ RPC 1.6(f): A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Hughes Hubbard & Reed LLP Page 21

22 What Are Reasonable Efforts Under Rule 1.6(f)? Comment to the Rule notes the following five factors to determine reasonableness of attorney s efforts to keep client data safe: 1. the sensitivity of the information; 2. the likelihood of disclosure if additional safeguards are not employed; 3. the cost of employing additional safeguards; 4. the difficulty of implementing the safeguards; 5. the extent to which the safeguards adversely affect the lawyer s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). Hughes Hubbard & Reed LLP Page 22

23 Don t Be Phish Bait Phishing o Spoofing o Spear-Phishing o Whaling o Attorney Phishing Voice Phishing/Social Engineering o smooth talking those with access to give it up Smishing Hughes Hubbard & Reed LLP Page 23

24 Don t Be Phish Bait: Best Practices to Protect Client Confidences Hughes Hubbard & Reed LLP Page 24

25 Best Ethical Practices & Takeaways: Metadata & Cybersecurity Hughes Hubbard & Reed LLP Page 25 NEVER open ANY data (hard drives, CD, discs, thumb drives etc.) from a client, a vendor, adversary or colleague. Not even a quick peek! Counsel may inadvertently change metadata after collection or expose your firm s network to malware. Only let qualified technical personnel open media. But note your obligation to supervise!

26 Best Ethical Practices & Takeaways: Metadata What You See DOCUMENT FOR DISTRIBUTION This is a perfectly appropriate document for distribution. It does not appear on the screen to have any problems. But wait; could this document be hiding information you would rather not send? Hughes Hubbard & Reed LLP Page 26

27 Best Ethical Practices & Takeaways: Metadata What You Send DOCUMENT FOR DISTRIBUTION[BP1] This is a perfectly appropriate document for distribution. [JOE: I am concerned that this might violate our policy on giving gifts. We should absolutely reconsider using this language before releasing this for distribution.]it does not appear on the screen to have any problems. But wait; could this document be hiding information you would rather not send? BP1 Wow, this comment tool is great. I wonder if it is ok for the recipient to see it Hughes Hubbard & Reed LLP Page 27

28 Best Ethical Practices & Takeaways: Metadata The Properties tab reveals the concerns of the commenter TITLE: MEMO (LAWYER SAID CANNOT GIVE GIFTS VERSION) RPC 4.4 now governs lawyer treatment of accidentally-sent metadata. o Presumption that metadata is accidentally sent when it reflects privileged or work product information Hughes Hubbard & Reed LLP Page 28

29 Cybersecurity: Protecting Client Confidences in the Digital Age Becomes more problematic given the types of client information you may have: Hughes Hubbard & Reed LLP Page 29

30 Best Ethical Practices & Takeaways: Reasonable Cybersecurity Care Generally o Make Someone Responsible o Employee Training o Confer with Clients & Insurers Firm Devices o Use encryption to store data o Passwords! o Avoid USB Sticks o Wipe Other Devices Regularly o Avoid Communicating with Clients or Witnesses via chat applications Hughes Hubbard & Reed LLP Page 30

31 Best Ethical Practices & Takeaways: Reasonable Cybersecurity Care WiFi o Do Not Use Public WiFi! o Avoid HotSpots o Maintain Separate WiFi Firm Access for Guests and Employees o Do not use personal for firm business o Do not store firm documents or materials on your home computers/laptop o Protect your password o Protect/Encrypt s & their Attachments o Create & Use Filters and Rules to Weed Out SPAM Hughes Hubbard & Reed LLP Page 31

32 Social Media: Clients & Adversaries Hughes Hubbard & Reed LLP Page 32

33 Counseling Clients on Social Media Hughes Hubbard & Reed LLP Page 33

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35 Confidential? LOL! Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT! Hughes Hubbard & Reed LLP Page 35

36 Counseling Clients on Social Media: When To Delete? During a Virginia wrongful death suit, attorney instructed his client to remove incriminating photos from the client s Facebook profile: o Attorney advised the client via to clean up his Facebook page because we do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace. o He also advised client via that there were other pics that should be deleted. o Client later deleted his Facebook account entirely, then denied doing so at a later deposition. Hughes Hubbard & Reed LLP Page 36

37 Counseling Clients on Social Media: When To Delete? Big Time Sanctions! Attorney referred to Virginia State Bar, ultimately suspended for 5 years. NY, PA and FL promulgated rules about advising clients to clean up their social media accounts during litigation. Hughes Hubbard & Reed LLP Page 37

38 Social Media with Adversaries NJ Personal injury suit - attorney directed paralegal to friend plaintiff on Facebook to get impeachment material. Paralegal used real name/profile when friending plaintiff. Office of Attorney Ethics: ruse and subterfuge! o RPC 4.2 o RPC 5.1(b) and (c) o RPC 5.3(a), (b) and (c) o RPC 8.4(c) and (d) Hughes Hubbard & Reed LLP Page 38

39 Social Media with Adversaries WHAT HAPPENED? Hughes Hubbard & Reed LLP Page 39

40 Social Media with Adversaries Issue: Whether OAE may investigate an RPC violation after the District Ethics Committee declined to prosecute it. Trial Court: Dismissed; lack of subject matter jurisdiction Appellate Division: Affirmed NJ Supreme Court: Affirmed in April 2016, but noted that this matter presents a novel ethical issue... [n]o reported case law in our State addresses the question. Outcome: OAE decision remains in effect and can proceed; underlying issue on Facebook friending adversaries not reached. OAE proceeding against Robertelli on-going. Hughes Hubbard & Reed LLP Page 40

41 Affirmatively Using Social Media A lawyer representing a client in pending litigation may access the public pages of another party's social networking website. o New York State Bar Association, Committee on Professional Ethics, Op. 843 (Sept. 10, 2010). A lawyer may not attempt to gain access to a social network under false pretenses, either directly or through an agent. o The Association of the Bar of the City of New York, Committee on Professional Ethics, Formal Opinion Attorneys May Not Ethically Contact a Represented Person Through a Social Networking Website o Pennsylvania Bar Association Formal Opinion Hughes Hubbard & Reed LLP Page 41

42 Social Media: Not A Place to Vent! Hughes Hubbard & Reed LLP Page 42

43 The Next Big Ethical Dilemma: Internet of Things Hughes Hubbard & Reed LLP Page 43

44 Internet of Things Wearables Hughes Hubbard & Reed LLP Page 44

45 Internet of Things Consumer Appliances Home Monitoring Systems Hughes Hubbard & Reed LLP Page 45

46 Internet of Things Medical Devices Hughes Hubbard & Reed LLP Page 46

47 Internet of Things: Corporate Uses Why? o Easier to implement o Reduces costs o Makes processes more efficient o Prevents human errors o Safeguards against lost/stolen company assets Hughes Hubbard & Reed LLP Page 47

48 Internet of Things: A Legal Nightmare? Hughes Hubbard & Reed LLP Page 48

49 Internet of Things: Privacy Privacy Concerns ocollection of large amounts of sensitive personal information over long (potentially unlimited) time period o Notice & Consent To Users oways that Data is Used owho Owns the Data Being Collected? Hughes Hubbard & Reed LLP Page 49

50 IoT & ediscovery: Who Controls and Who Maintains? In age discrimination suit, Plaintiffs sought certain information and reports from Salesforce.com, a cloud-based sales management program Defendants pushed back, at first saying they didn t have possession, custody or control of data and they did not export or preserve the data (despite numerous notices to do so) Cloud provider only maintained backups for 3-6 months Hughes Hubbard & Reed LLP Page 50

51 IoT & ediscovery: Who Controls and Who Maintains?..counsel had an affirmative obligation to speak to the key players at Tellermate so that counsel and client together could identify, preserve, and search the sources of discoverable information. Court sanctioned defendant and counsel and precluded defendant from using their strongest defense strategy. Appalling example of discovery run amok! Hughes Hubbard & Reed LLP Page 51

52 Internet of Things: Security Safety & Security Concerns o Hacking into devices Medical Devices TVs Security Cameras Cars HVAC systems Industrial equipment (Stuxnet) o Network attacks o Obsolete Devices Hughes Hubbard & Reed LLP Page 52

53 Questions? Charles W. Cohen Hughes Hubbard & Reed LLP One Battery Park Plaza New York, NY (212) Hughes Hubbard & Reed LLP Page 53