Social Networking and the Rules of Professional Conduct Advertising and Solicitation – Rules 7.1, 7.2, 7.3 – the Rules of Professional Conduct apply even in cyberspace Florida Bar has published guidelines for networking sites: Pages of lawyers on social networking sites used solely for social purposes are not subject to advertising rules Pages used to promote the lawyer’s or law firm’s practice are subject to the lawyer advertising rules and must comply Invitations sent directly from the site via instant messaging to a third party are solicitations
Social Networking and the Rules of Professional Conduct Confidentiality – Rule 1.6 – Attorneys may be revealing more than they think when blogging or on their web site If attorney is using cloud computing, check the service. The licensing agreements for some services, such as Google, provide that the data belongs to the host site and not the person uploading the data. This could violate confidentiality Interactions with members of the public – Rule 1.18, 4.2, 4.3 – Did the attorney form an attorney/client relationship? Check Attorney web site Unauthorized practice of law – Rules 5.3, 5.5 – Employees’ interaction with clients using social networking - Employees may not give legal advice.
Be cautious about “friending” on social networking sites Interactions with judges, witnesses, jurors and other lawyers – Rules 3.3, 3.4, 3.5 – Attorneys should not do on line what they would not do in person! A North Carolina judge received a public reprimand for communicating with an attorney Facebook friend during trial. Before the Judicial Standards Commission, Inquiry No. 08-234 Public Reprimand, B Carlton Terry, Jr. Florida Supreme Court Judicial Ethics Advisory Committee determined a judge may not add lawyers who may appear before the judge as a friend on social networking sites. Florida Supreme Court Judicial Ethics Advisory Committee, Opinion No. 2009-20 South Carolina Advisory Committee on Standards of Judicial Conduct, Opinion No. 17-2009: A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.
Attorneys Blogging About their Day… Had the craziest day today – in court for four hours on a DUI case for a guy from Peru who works behind the desk at the People’s Bank downtown. I don’t think I’ve ever seen a blood alcohol level that high. His girlfriend/witness didn’t show up because they had a fight last night and she moved out, which made my case all the harder. But I’m not letting it spoil my date tonight with the hot guy I met at Earl’s on Friday!
Illinois Disciplinary Board v. Peshek, Commission No. 09 CH 89 (May 8, 2010): Complaint filed against Public Defender for blogging about her cases when blog was open to the public. Attorney lost her job as a result and was suspended from practice for 60 days for violations of RPC 1.6 and 3.3, among others.
More Bad Blogging… The Florida Bar v. Conway: Attorney received Public reprimand for derogatory comments about a judge on an Internet blog.
Social Networking Activities That Can Result in Discipline Texas prosecutor was denied a second continuance for a funeral after the judge checked her Facebook page And found postings about partying, not grieving. The Judge also reported the lawyer to a her supervisor in the District Attorney’s Office.
Murder Mistrial Declared September 14, 2012 in Miami-Dade, Florida Defendant: Fermin Recalde accused of stabbing his girlfriend to death in 2010 Recalde’s family brought him fresh clothes to wear during trial including a pair of leopard skinned underwear Public Defender, Anya Cintron Stern took a picture of underwear and posted it to her personal FB page with a caption asking why the family thought this was appropriate for court Post was marked private but someone on her friend’s list saw it and showed it to the judge Judge dismissed her and declared a mistrial
Murder Mistrial Declared Public defender’s office fired her Attorney also posted comments on FB page questioning her client’s innocence Employer more upset about these comments than the picture of the underwear posted to FB.
Should Investigators Use Social Networking ….. but how you should use it depends on your jurisdiction’s evidentiary rules and policies and procedures. You should not use it until you are trained to do so.
Investigations Involving Attorneys Who use Cloud Computing
Cloud Computing – The Basics What is Cloud Computing? Wikipedia defines cloud computing as “ location independent computing, whereby shared servers provide resources, software, and data to computers and other devices on demand.” How Does it Work? The chief characteristic, and many think primary benefit, of the cloud, is that it is not located in a fixed or static location. Users can access their information from anywhere, by accessing the cloud.
How Are Clouds Being Used by Law Firms? Many solo practitioners and small firms use clouds to alleviate the cost and maintenance of on-site hardware. Access information and data from anywhere using a password. Ease and convenience, coupled with virtually unlimited storage space, are often touted as benefits of using the cloud. Many firms of all sizes are using clouds as offsite data backup. Some companies utilize a hybrid situation – maintenance of some in-house hardware using the cloud for alternatives like E-mail access.
What Should be Investigated? Where is the server located? What does the contract between Attorney and cloud provider say: Is the contracting party the party actually controlling data or is there a third party contractor involved? Could lead to breach of confidentiality. What extra backup programs are used? Can the lawyer still access the information? Some vendors claim ownership of the date, limit access to the data, or reserve the right to delete data without notice in the event of a breach of the contract.
What Should be Investigated? Is the Data protected? Is the data encrypted? Is it confidential? How available is it? How readily does a lawyer have access in order to ensure compliance with the Rules of Professional Conduct? Can the lawyer audit the provider to ensure security standards are being met?
Compliance with Regulatory issues Are there independent regulatory rules to be considered when storing data on the cloud? Is this different when the cloud is located in another country? (Ex: HIPPA, USA Patriot Act, etc.) Confidentiality – if the server is located abroad, does that country have confidentiality rules to protect client data the way the United States does?
What happens in the event of a data breach? How quickly are customers notified if a breach occurs? Who bears responsibility and cost of a breach? unauthorized access risks - external hacking or unauthorized access or use by cloud provider’s personnel? Does the lawyer tell clients he is using a cloud? - is this something a lawyer must disclose upfront?
Who Has Access to Data Who has access to the lawyer’s cloud? Employees Clients Outside vendors Witnesses Consultants Keeping data secure is key!
Rules to Consider Rule 1.6 Confidentiality – Are lawyers preserving the confidentiality of client information when storing it on the cloud? Rule 1.4 Communication Rule 1.15 Safekeeping Property Rule 1.16, Declining or Terminating Representation – Is the information in the client’s file secure? Does the lawyer have immediate access? Can the lawyer get copies for a client quickly if requested to do so?