I just attended an excellent and timely program on Legal Ethics in the Digital Age. The program was sponsored by the Commercial and Federal Litigation Section, the LPM Committee and the Committee on CLE, with members of the eDiscovery Committee and Social Media Committee playing prominent roles. This program was organized by its two Co-Chairs: Maura Grossman, Esq. of Maura Grossman Law and Ron Hedges, Esq. of Dentons. These 2 distinguished attorneys organized a fantastic program.
At the outset, Mark Berman, the Chair of the Commercial and Federal Litigation Section, made some introductory comments. His advice to the attendees and webinar audience was geared to competence, as he explained the legal requirement was for lawyers to be "competent" in the technological aspects of practicing law, including eDiscovery, social media and managing records.
The first panel discussed competence in the eDiscovery context. Moderating was Maura Grossman and serving on the panel were Shawndra Jones, Esq. of Axinn Veltrop, Ron Hedges. Esq. of Dentons and Hon. Victoria Graffeo of Harris Beach. The panel discussed that both the ABA and NYSBA have standards requiring attorneys to be competent, as both these associations have stated in comments to their respective rules that competence includes "keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." As for ensuring such competence in the eDiscovery area, it was suggested that attorneys do the following: talk to your clients about their data policies and sources of electronically-stored information (ESI); think beyond email, such as all forms of social media; and understand the obligation to preserve ESI.
The second panel addressed protecting privilege and work product in ESI. Moderating was Ron Hedges and serving on the panel were Hon. Graffeo, Scott Malouf, Esq. and Marcy Einhorn, Esq. The panel discussed a new Rule (effective 1/1/17) requiring "attorneys to make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or inauthorized access to, [confidential] information." This rule obviously puts attorneys at risk to the extent they are hacked and did not take "reasonable efforts" to prevent this. The panel also discussed the effect of inadvertent disclosure, with the panel noting that should an attorney receive an inadvertent disclosure of privileged information, the only requirement under NY law is to provide notice of said receipt, not to return the relevant documents or ESI.
The third panel was moderated by Michael Fox, Adjunct Professor at Mt. St. Mary College, with the panelists being Ignatius Grande, Esq. of Hughes Hubbard, Maura Grossman, Esq. and Scott Malouf, Esq. This panel discussed the "Rules of the Road" for attorneys' use of social media. The over-riding theme was that social media doesn't change the basic principles, as it's only a new medium to apply the same "old" rules. Take attorney advertising, for example. If it's attorney advertising, a disclaimer is needed, whether it's advertising on an email or a tweet. But in the social media context, the panel provided some particular guidance: make sure endorsements of your expertise are truthful and not misleading; don't respond to an on-line negative review with a substantive response, as that can be violative of your obligation to your former or current client; it's proper to advise clients to make their social media public settings private; and attorneys in NY can make "friend" requests of witnesses if they're not represented by counsel.
The final panel was moderated by Ignatius Grande, Esq., with panelists Shawndra Jones, Esq., Michael Fox, Esq. and Marcy Einhorn, Esq. Their topic was related to managing records in the cloud. The panel discussed that a "reasonable care standard" applies. In meeting this standard, the panelists suggested not just blindly outsourcing this to a vendor, but first learning all the relevant facts and making a reasoned decision. In so doing, the panel suggested asking questions of the vendor, such as: how many servers will you be using; where are they located; have you ever been breached; if so, what happened and how did you fix the problem; can you provide the same care required of an attorney; what's your protocol for changing passwords; and can you and will you retrieve the documents in the proper form if need be.
All in all, this was an excellent program on a hot button topic. My understanding is that the program will continue on an ongoing basis, which is a great service to practitioners who must practice law in this "digital age."
This entry was made by Craig Brown, the author/editor of this blog and member of the State Bar's eDiscovery & Social Media Committees. Craig is the CEO & Managing Principal of Bridgeline Solutions LLC (a Lateral Link company), which specializes in placing contract attorneys in document review, eDiscovery and high-level positions in all practice areas. Prior to pioneering the legal staffing industry, Craig was an Antitrust & Litigation Associate with Kaye Scholer and Litigation & Sports Law Partner with McLaughlin & Stern.