Professional Responsibility Review 2015
| Citation | Vol. 90 Pg. 56 |
| Pages | 56 |
| Publication year | 2021 |
Kimberly A. Knox and Brendon P. Levesque, J. [*]
I. Introduction
In A Connecticut Yankee in King Arthur's Court, Mark Twain said, "You see, he [the king] knew his own laws just as other people so often know the laws: by words, not by effects. They take a meaning, and get to be very vivid, when you come to apply them to yourself." That quote applies to our own Rules of Professional Conduct. As a self-regulating profession continues to incorporate rapid changes in technology which impact how we practice law, lawyers must be ever vigilant. They cannot simply read the rules and memorize them, they must understand the purpose of the rules, especially when they apply the rules themselves.
II. Professional Issues of the Day
Rule 1.1 and the official commentary titled "Maintaining Competence" make it clear that lawyers have a duty to remain abreast of changes in technology and to assess the risks and benefits associated with new technology. In applying the law to present-day advances, the late Justice Antonin Scalia acknowledged, "[W]hatever the challenges of applying the Constitution to ever-advancing technology, 'the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears."[1] If an originalist like Justice Scalia could apply the First Amendment to the latest technological advances, there is no excuse for not applying our current Rules of Professional Conduct to changing technology.
Advances in technology impact three important areas: communication with clients, advertising, and using new technology to gather information necessary to your case. As to communication, as the number of ways to communicate with a client expands, lawyers must continually assess the risks and benefits of the new technology. The intersection of that duty and how lawyers communicate with their clients makes for an interesting question. For example, is a lawyer who fails to text message his client violating Rule 1.1 or Rule 1.4, both, or neither?
The Statewide Grievance Committee (SGC) had the opportunity, but did not reach the Rule 1.1 issue in Worcester v. O'Doherty.[2] The client resorted to texting her lawyer after failing to receive any responses to phone calls and emails. Although the lawyer testified that she told the complainant "that she did not text nor understand texting," the SGC found a violation of Rule 1.4. Part of the problem was that the SGC rejected the attorney's excuses for not responding to a client. Those excuses included, "a cat bite;" the "computer is infected and still being worked on;" "I did not recognize your voice;" and a "serious case of the flu." The other issue was that the lawyer had failed to respond to phone calls and emails as well. The record was clear that the attorney had failed to communicate with the client. query whether there could have been a violation of Rule 1.1 only for the lack of texting ability.
To be clear, at the initial consultation with the client, the authors believe that it is perfectly acceptable to inform a client that they will not communicate via text. There are a variety of reasons a lawyer may do this. First, there are issues as to confidential information contained in a text. You must ensure that the phone is at the very least password protected. You should not allow others to have access to your phone. Finally, iOS and Android both have features that allow the user to wipe all information remotely from the phone if it is lost or stolen.
There is also an issue with retention of text messages. With emails and letters a lawyer stores the communication so it will be available, if needed. Texts are presumptively not stored and if they are deleted from your phone it was presumed that you would not be able to retrieve them. Now, there are a few ways to address this issue. First, forward the text message to your email. Second, obtain software for your phone that will retain the messages. Finally, summarize the text message or messages in a writing sent to your client either via email or regular mail.
On the other hand, as long as you understand the risks and benefits of texting clients, there is no prohibition on texting and it certainly offers some benefit to today's more technologically savvy lawyers and clients. Moreover, at some point, even if you tell clients that you will not communicate via text, it may become required behavior to text message clients. In this respect, texting is to email as email was to letters.
Although it has been of prevalent use for much longer, lawyers must be aware of proper email use because sending an email to the wrong person could result in breach of confidentiality, in violation of Rule 1.6. One should also ensure that any attached document is accurately "scrubbed" as to not contain metadata unintended for the recipient. This involves knowledge of both redaction and sanitation, skills with which all attorneys should keep up to date.
Advertising methods have also greatly expanded in recent years. Social media has provided attorneys with a new outlet that allows them to reach more people than ever before. In turn, lawyers must be aware of how the ethics rules apply to such advertising. Last year, the New York State Bar Association issued a formal ethics opinion[3] that may serve as a valuable resource, as well as fair warning, for attorneys in their online presence. Attorneys should exercise caution in this area because something as simple as a blog post, even on an attorney's personal profile, can be subject to advertising and solicitation rules.[4] This is especially true for a LinkedIn profile, where a subjective statement on an attorney's skills, areas of practice, endorsements, or testimonials may be regulated as advertising. Attorneys should also be careful of third-party posts and should prevent or remove any content by other social media users that violates the Rules.[5] This means that if a user on LinkedIn offers a misleading endorsement, for example a high school classmate you have not seen in thirty years endorses you for litigation, you should probably reject it.
Because advertising methods have become so diverse and far-reaching, we could easily write a separate article on these ramifications. For now, the authors suggest that attorneys seek out approval pursuant to Practice Book Section 2-28A if they are concerned about posting any kind of advertisement on the Web. This is the best way to avoid any negative repercussions.
Finally, attorneys must realize that they may get themselves into trouble by not staying updated with the latest technology. The processes of research and investigation are now so greatly facilitated by use of the Internet that an attorney can put the client at a disadvantage by ignoring the Web in the practice of law. This is otherwise known as the "Duty to Google." Failure to grasp how electronic information is created, stored and retrieved can result in a violation of Rule 1.1 (Competence). A Florida appellate court recently questioned an attorney's effectiveness where the attorney failed to use the Internet to find an address. The court opined that by only checking directory assistance in the modern era, the attorney was using methods equivalent to "the horse and buggy and the eight track stereo."[6]
The effectiveness of social media use in investigation was recently demonstrated in a Connecticut case where a jury relieved the Trumbull Mall from liability where a woman was injured while riding the escalator.[7] While visiting the mall in March 2011, the plaintiff tripped on the escalator and fractured her right ankle. She needed multiple surgeries and incurred $56,000 in medical bills. The plaintiff appeared at trial with a cane and appeared to be seriously injured. She testified that her ankle injury greatly incapacitated her in many aspects of life. The defendant's attorney reviewed the plaintiff's Facebook page and found recent posts of the plaintiff working as a Zumba instructor.[8] At trial, defense counsel enlarged pictures from the plaintiff's Facebook that showed her at various Zumba classes. The jury deliberated for only nineteen minutes before rendering a defense verdict. The authors are confident that the Facebook posts were devastating to the plaintiff's case.
But the use of social media evidence is not unprecedented. In fact, in a 2010 study by the American Academy of Matrimonial Lawyers, eighty-one percent of respondents used social media as a form of evidence in their cases.[9] So although the Connecticut lawyer's use of social media made for an incredible case, the authors wonder if he could have been grieved had he not investigated social media. This makes for an issue not only with competence but also diligence under Rule 1.3. Is an attorney providing zealous advocacy if the attorney fails to take advantage of gathering information on social media? A California appellate court held that an attorney's failure to investigate social media, which contained recantations of a purported molestation victim, could constitute ineffective assistance of counsel.[10]
That being said, attorneys should still proceed with caution in utilizing social media. An attorney may not "friend" someone on Facebook under false pretenses. It is also important to understand how evidentiary rules put restrictions on social media behavior. A trial court in Virginia recently sanctioned an attorney $542,000 for advising his client to "clean up" his Facebook page because "[w]e don't want any blow-ups of this stuff at trial."[11] In that case, the client's wife had been killed in a car accident after a concrete truck lost control of his vehicle and tipped over onto their car. Among others, the plaintiff filed a complaint against the concrete company and the truck driver, seeking compensatory...
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