Social Networking and the Model Rules

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3 Νοε 2013 (πριν από 3 χρόνια και 7 μήνες)

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Social Networking and the
Model Rules




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?

THANK YOU