PowerPoint Template - Employers and Lawyers

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Technology and the Attorney-Client
Relationship Risks and Opportunities
Title of Presentation
Jay Glunt, Ogletree Deakins John Unice, Covestro
LLC Jennifer McDonough, Rex Energy Renee
Mielnicki, East Coast Risk Management
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General Topics to Frame Discussion

• Duty of Competence (ER 1.1)
• Cybersecurity (ER 1.6)
• Electronic Discovery (ER 1.1, 1.4, and 3.4)
• Social Media Investigations (ER 4.1, 4.2, 4.3)
• Leveraging New Methods of Collaboration
• Collaboration (Extranets)
• Budgeting
• Billing

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The Evolution of Communication
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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.

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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.

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PA Rules of Professional Conduct

• The Pennsylvania Rules of Professional Conduct
  set out the minimum standards for the practice of
  law.
• Disciplinary Board

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An Evolving Obligation

• Continuing education and study
• Skillsets need to evolve
• Importance of technology in the delivery of legal
  services

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Methods for Developing Competency

• Determine the problems the situation involves
  (key skill)
• Training and study
• Associate with someone else who has established
  competence

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• I have a thesis.

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2. Cybersecurity

• Safeguarding confidentiality
• Privileged communications
• Client documents and data

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Rule 1.6

• Confidentiality of _______________

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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.

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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?

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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_offi
  ces/legal_technology_resources/resources/charts_fy
  is/cloud-ethics-chart.html

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20 States with Cloud Ethics Opinions
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2011 PA Ethics Opinion

• May an attorney ethically store confidential
  client material in the cloud?
• Yes. If take reasonable care . . .
• All materials remain confidential
• Reasonable safeguards are employed to prevent
  data breach

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3. Electronic Discovery

• ER 1.1 Competence
• ER 1.4 Communication
• ER 3.4 Access to evidence

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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

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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.

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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.

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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. . . .

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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
  partys access to evidence, and violated ER
  3.4(a) (access to evidence).
• Attorney attempted to handle a matter that was
  beyond the attorneys 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?

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Duty to Preserve

• Competency
• Know when to preserve
• Know what to preserve
• Know how to preserve
• Subpoenas
• Corporation as plaintiff

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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)

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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)

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Leveraging Innovation

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

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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?

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Leveraging Innovation

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

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