Category Archives: Lawyer communication over internet- confidentiality

Pennsylvania Bar Association publishes ethics opinion providing guidance in preserving confidentiality while working from home during the pandemic

Hello everyone and welcome to this Ethics Alert which will discuss the recently published Pennsylvania Bar Association Formal Opinion 2020-300, which provides guidance to lawyers working from home during the COVID-19 pandemic.  The formal opinion is here:  https://www.pabar.org/members/catalogs/Ethics%20Opinions/formal/f2020-300.pdf

As we all are acutely aware, the COVID-19 pandemic has forced many lawyers to work from home and also rely even more on electronic and digital devices and methods to communicate and practice law.

The opinion addresses multiple issues related to remote practice, including the duty of technological competence when handling sensitive client confidential information in a home/remote environment and provides guidelines for lawyers and their employees on how to comply with their obligation to comply with the Bar rules and preserve client confidentiality.

The opinion states that it is intended to provide global guidance to lawyers working from home, not only during the pandemic, but also for those who will continue to work remotely after there is a return to “normal.”

The opinion states as follows:

At a minimum, when working remotely, attorneys and their staff have an obligation under the Rules of Professional Conduct to take reasonable precautions to assure that:

All communications, including telephone calls, text messages, email, and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information;

Information transmitted through the Internet is done in a manner that ensures the confidentiality of client communications and other sensitive data;

Their remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form;

Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud;

Any remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct; and,

Appropriate forms of data security are used.

Bottom line:  The pandemic has greatly accelerated the use of digital platforms and methods of communication in providing legal services, which creates challenges for lawyers.  Lawyers must meet these challenges by taking steps to comply with the evolving ethical standards and rules related to technology, including preserving client confidentiality.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, Lawyer communication over internet- confidentiality, lawyer confidentiality, Lawyer confidentiality during COVID-19 pandemic, Lawyer confidentiality while working remotely and from home, Pennsylvania Ethics opinion confidentiality during pandemic, Uncategorized

New Jersey lawyer suspended for, inter alia, revealing confidential information in review of former client’s business

Hello everyone and welcome to this Ethics Alert, which will discuss recent New Jersey Supreme Court opinion which imposed a one year suspension on a lawyer for, inter alia, providing a negative public review of a client’s business on Yelp and disclosing confidential information in the review.  The case is: In the Matter of Brian LeBon Calpin (New Jersey Supreme Court No. D-67 083821).  The May 7, 2020 opinion is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1129260

The NJ SC opinion essentially adopts the NJ Disciplinary Review Board Decision which found that the lawyer posted a negative public review of the client’s massage business on June 24, 2018 on the Yelp website after the client had posted public negative online reviews of his legal services.  The lawyer had ceased representing the client in “early summer 2017”.  The DRB Decision is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1124239

According to the Decision, the lawyer’s review of the former client’s massage business on Yelp stated:

“Well, Angee is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

The Decision further states that, in his response to the ethics complaint, lawyer stated:

“As to the Yelp rating about (the former client’s) massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment. However, it was not unethical. That posting has subsequently been taken down.”

The Decision found that, although the information posted by the lawyer may have been publicly available, the information was not generally known; therefore, the “generally known” exception in the New Jersey Bar rules regarding client confidentiality did not apply.  The decision also quoted ABA Formal Opinion 479 (December 15, 2017):  “[T]he phrase ‘generally known’ means much more than publicly available or accessible. It means that the information has already received widespread publicity.”

The Decision also found that the lawyer’s conduct in three other client matters violated ethics rules related to neglect, diligence, failure to keep clients informed, failure to deliver client funds or property, and failure to return client property after representation. The lawyer also told to a Bar investigator that he had sent a refund check to a former client, which was a misrepresentation.

The lawyer had prior discipline for “similar ethics infractions, evidencing his failure to learn from past mistakes: a June 19, 2014 reprimand for gross neglect, lack of diligence, and failure to communicate with a client, and a January 24, 2017 admonition for lack of diligence in a client matter.”

Bottom line:  This is another unfortunate example of a lawyer reacting badly to a client’s negative online review and including confidential (and not generally known) information in responding to a negative client review.  As I have said and written many times, lawyers are not permitted to include client confidential information in responding to negative online reviews that are in the public domain.

Stay safe and healthy and be careful out there.

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under ABA Formal Opinion 479 former client confidentiality, Attorney discipline, Attorney Ethics, Attorney misrepresentation, attorney-client privilege, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidences and negative online client review, Confidentiality, Confidentiality and privilege, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer communication over internet- confidentiality, lawyer confidentiality, Lawyer derogatory remarks, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics responding to negative online review complaint confidentiality, Lawyer false statements, Lawyer negative Yelp review of client- confidentiality, Lawyer sanctions, Lawyers and social media, misrepresentations, Uncategorized

ABA Formal Opinion 480 addresses lawyer/client confidentiality obligations related to lawyer blogs and other public commentary

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 480, which was released on March 6, 2018 and addresses lawyer ethics and confidentiality obligations when engaging in blogging and other public commentary.  The ABA Formal Opinion is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_480.authcheckdam.pdf

The opinion initially sets forth the various types of lawyer public communications and commentary, including online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that ‘followers’ (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively ‘public commentary’).”

The opinion provides important information regarding the broad scope of lawyer/client confidentiality under the rule, the limited exceptions to the rule, and whether a lawyer can pose a “hypothetical” to avoid violating the rule.  The information is below with relevant portions in bold:

This confidentiality rule “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”  In other words, the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information.

Unless one of the exceptions to Rule 1.6(a) is applicable, a lawyer is prohibited from commenting publicly about any information related to a representation. Even client identity is protected under Model Rule 1.6.  Rule 1.6(b) provides other exceptions to Rule 1.6(a).  However, because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.

Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.  The duty of confidentiality extends generally to information related to a representation whatever its source and without regard to the fact that other may be aware of or have access to such knowledge.

A violation of Rule 1.6(a) is not avoided by describing public commentary as “hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.  Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.

The opinion concludes that “(l)awyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”

Bottom line:  This ABA opinion addresses the ethics issues related to lawyer blogs and public commentary and client confidentiality and provides guidance.  The opinion is not binding; however, it provides important information and the analysis is applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under ABA formal opinions, ABA Opinion 480- guidance re confidentiality when lawyers blog or engage in public commentary, Attorney Ethics, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, lawyer blogs, Lawyer communication over internet- confidentiality, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism

ABA revises recent Formal Opinion 477, which addresses lawyer ethics issues when transmitting confidential information over the internet

Hello everyone and welcome to this Ethics Alert update which will discuss Revised ABA Formal Opinion 477, which was issued on May 22, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  According to the ABA, Formal Opinion 477 was revised to clarify that the opinion does not alter Formal Ethics Opinion 11-459 and to note that the change in Model Rule 1.6(c) supported 11-459. There are no substantive changes to the opinion.  The revised Formal Opinion is here: Revised ABA Formal Opinion 477.

ABA Formal Opinion 477 states:  “In Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.” (emphasis supplied).`

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”  (emphasis supplied).

Bottom line:  The now revised ABA formal opinion addresses the important ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under ABA formal opinions, ABA opinion 477- communication with client over internet, Attorney Ethics, Confidentiality, joe corsmeier, Joseph Corsmeier, Lawyer communication over internet- confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions