1. Title of Presentation Technology and the Attorney-Client Relationship: Risks and Opportunities Jay Glunt, Ogletree DeakinsJohn Unice, Covestro LLC Jennifer McDonough, Rex EnergyRenee Mielnicki, East Coast Risk Management

2. General Topics to Frame Discussion 1. Duty of Competence (ER 1.1) 2. Cybersecurity (ER 1.6) 3. Electronic Discovery (ER 1.1, 1.4, and 3.4) 4. Social Media Investigations (ER 4.1, 4.2, 4.3) 5. Leveraging New Methods of Collaboration Collaboration (Extranets) Budgeting Billing

3. The Evolution of Communication

4. 1. Duty of Competence ABA and PA Rule 1.1 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

5. ABA and PA Rule1.1 Comment 8 - Maintaining Competence 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

6. PA Rules of Professional Conduct “The Pennsylvania Rules of Professional Conduct set out the minimum standards for the practice of law.” Disciplinary Board

7. An Evolving Obligation Continuing education and study Skillsets need to evolve Importance of technology in the delivery of legal services

8. Methods for Developing Competency Determine the problems the situation involves (key skill) Training and study Associate with someone else who has “established competence”

9. I have a thesis.

11. 2. Cybersecurity Safeguarding confidentiality Privileged communications Client documents and data

12. Rule 1.6 Confidentiality of _______________

13. ABA Rule 1.6(c); PA 1.6(d) The rule: 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.

14. PA ER1.6(d) – Two New Comments “Acting Competently to Preserve Confidentiality” 25. Not a violation if the attorney made reasonable efforts. 26. Does the method of communication afford a reasonable expectation of privacy?

15. Cybersecurity Basic knowledge of cybersecurity is now essential in maintaining competence. Password Protection Encryption Metadata Cloud Computing Cloud Ethics Opinions http://www.americanbar.org/groups/departments_offices/legal _technology_resources/resources/charts_fyis/cloud-ethics- chart.html

16. 20 States with Cloud Ethics Opinions

17. 2011 PA Ethics Opinion “May an attorney ethically store confidential client material in ‘the cloud’?” Yes. If take reasonable care... 1. All materials remain confidential 2. Reasonable safeguards are employed to prevent data breach

19. 3. Electronic Discovery ER 1.1 – Competence ER 1.4 – Communication ER 3.4 – Access to evidence

20. ABA and PA Rule 1.4(a) A lawyer shall: Reasonably consult with the client about means/methods Keep the client reasonably informed about status Promptly comply with reasonable requests for information

21. ABA and PA Rule 3.4 Duty of Fairness to our Adversary The rule: A lawyer shall not: … unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.

22. ER 3.4(a) Comment 1 The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

23. ER 3.4(a) Comment 2 Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed....

24. Case Study – 2009 Events Massachusetts State Bar Disciplinary Action Attorney did not advise client of the significance of a court order permitting opposing counsel to forensically examine a hard drive. This violated ER 1.4 (communications). Attorney advised client to scrub certain files, which the attorney deemed irrelevant to the litigation, before forensic review. This constituted unlawful obstruction of another party’s access to evidence, and violated ER 3.4(a) (access to evidence). Attorney attempted to handle a matter that was beyond the attorney’s personal competence, without adequate research or study, and without associating with or conferring with someone of requisite competence. This violated ER 1.1 (competence). What was the discipline?

25. Duty to Preserve Competency: Know when to preserve Know what to preserve Know how to preserve Subpoenas Corporation as plaintiff

27. 4. Social Media Investigations Sometimes a “cursory internet investigation” uncovers the truth 2014 PA Ethics Opinion Primary sources: ER 1.1 (Competence) ER 3.4 (Fairness) ER 4.1 (Truthfulness) ER 4.2 (Communications) ER 4.3 (Unrepresented individuals)

28. Three Common Scenarios Permitted to connect with current clients, former clients, prospective clients No contact with a person known to be represented by counsel about that matter (ER 4.2) Access to public information is always permitted (maintain confidentiality)

30. Leveraging Innovation 1. How can we use technology to improve attorney-client communications, particularly about status of pending matters?

31. Leveraging Innovation 2. How can we use technology to improve scoping and budgeting in a collaborative fashion at the beginning of a matter, and maintain stickiness against the budget over time?

32. Leveraging Innovation 3. How can inside and outside counsel use technology to increase their efficiency – completing matters faster and at less overall cost?