Legal Ethics of Information Governance Presented by Sean Monahan

Thank you for watching November 5, 2014 Sean Monahan Presenter: Conflicts Counsel Thank you for watching November 5, 2014

Evolution of the Record Computer Both the means of production and storage. Typewriter The means of production and the file are separate Word Processor Even with some storage, the computer improved production, not storage

Legal Ethics of Email Management Evolution of the Record Paper Management Digital Convenience

ABA Ethics 20/20 Commission http://www. americanbar

Rules of Professional Conduct ABA Model Rules 1.1 Competence 1.2 Diligence 1.4 Communication 1.6 Confidentiality 1.16 Declining or Terminating Representation 1.9 Duties to Former Clients 7.3 Direct Contact with Prospective Clients

Rule 1.1 Competence Maintaining Competence [8]  To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, , engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. Rule 1.1 Competence including the benefits and risks associated with relevant technology A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.2 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4 Communication A lawyer shall: … (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation… (c) 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.

Rule 1.16 Declining or Terminating Representation (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Rule 1.9 Duties to Former Clients (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Rule 7.3 Solicitation of Clients (b) A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in‑person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or … (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

Communication Receive Reply Draft

Communication Email Overload can lead to a failure to respond to inquires, missed deadlines, and rework.

Communication Replying to an email in a hasty manner can lead to reply all or auto-correct mistakes.

Communication Drafting emails or uploading documents to extranets requires care in choosing recipients, attaching the correct documents, and managing the subject.

Communication Metadata contained in emails has become a significant topic in a number of jurisdictions. Many firms will have metadata scrubbers installed on desktops, but mobile devices and extranets can sometimes bypass metadata scrubbing.

ABA Map of Metadata Opinions Using Email Metadata ABA Map of Metadata Opinions http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/metadatachart.html

Managing Information Categorize Organize Retrieve

Managing Information Categorize information based on its status as a record, as well as whether the document contains highly sensitive information.

Managing Information Organize information based on the client and matter of the content.

Managing Information Retrieve information quickly to respond to client and third party requests.

Disposition Archive Dispose Transfer

Disposition Archive information to free up active technology systems and consolidate repositories.

Dispose of digital information like any other record. Disposition Dispose of digital information like any other record.

Transfer the “file” to another firm or return to the client. Disposition Transfer the “file” to another firm or return to the client.

Is Technology The Answer? Auto Categorization Gamification Cloud Services

Habits are critical

We’ll now open it up for questions

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