Who's Watching? Beware the Vulnerabilities of Communicating through Advanced Technology
LACBA Update, January 2006

By David L. Brandon, member, LACBA Professional Responsibility and Ethics Committee. Brandon is senior counsel at Morris Polich & Purdy LLP, where his practice focuses primarily on the defense of professionals, including attorneys. He is also an adjunct professor of appellate law at Loyola Law School. The opinions expressed are his own.

Technology is changing the way we communicate at an incredible pace. As each new tool becomes available, the careful practitioner must be certain to examine the positive and negative implications of its use. E-mail? It is great for instant communications and transmitting documents to clients and other counsel, but attorneys must be aware that confidential communications can be misdirected and that the accidental transmission of metadata can reveal client confidences.1 Cell phones and Bluetooth?2 These make communication extremely convenient, but be aware that the communications are subject to eavesdropping and hacking. Law firm blogs? A wonderful way to disseminate new ideas and to facilitate discussion, but the pressing need for immediate publication may cause the authors to regret what they have said when they realize that the publication was insufficiently edited. The list goes on.3

What about listservs?4 These are services that permit you to use one keystroke to send an e-mail to a large group of recipients with similar interests or professional qualifications.5 Do you have an interesting spin on a recent court of appeal decision that you want to share? Put it on the listserv, and get feedback from others. Do you feel strongly about a piece of proposed legislation? Put it on the listserv, and generate a discussion. Do you need a referral to a specialist in an area outside your practice discipline or in another state? Put it on the listserv, and you may get more referrals than you can use. Do you want to find deposition transcripts of a particular expert from other cases? Put it on the listserv, and obtain a wealth of information. Do you have strong opinions about the credibility of a particular expert or the judge handling your case? Put it on the—Okay, let's just catch our breath here, and think about this for a moment.

When you send out that mass e-mail through the listserv, think about what you are doing. More specifically, think about all those people on the listserv who will receive your e-mail. Could it be the expert or judge you are criticizing? Could it be opposing counsel? Are you revealing your thoughts, opinions, or strategies to the very people who you least want to see them?

LACBA's Ethics Opinion 514 addresses some of these issues. It assumed that one member of a listserv sent an e-mail seeking a referral for a particular type of expert witness to all the other members. Another member responded with a recommendation of a specific expert. A third member saw the recommendation and voiced severe criticism of the suggested expert. All these messages had been broadcast to the entire listserv membership, which, as it happened, included a trial judge before whom this expert would be testifying in the near future. What problems can these communications create?

The opinion cautions attorneys to recognize that a listserv is not a private e-mail exchange between the participants; rather, it is a public conversation.6 Therefore, attorneys must be extremely careful about the content of any listserv message. Certainly, listserv messages that contain confidential client communications must be avoided. However, even messages that do not contain confidential information—such as inquiries about an expert, messages critiquing a witness or judge, messages containing a discussion of the strengths and weaknesses of a legal theory or a particular witness—have the potential to "impair a lawyer's ability to continue representing a client, by improvidently disclosing information or engaging in ex parte communications with members of the bench."7 Attorneys must be aware that by revealing their theories about a particular witness or legal argument, they may be revealing work product and waiving that protection. No one wants to be on the wrong side of a motion to compel that argues the attorney waived the work product protection because of a discussion on a listserv to which the opponent subscribes—with a copy of the mass e-mail message attached as Exhibit A.

A subtler but equally problematic concern is the possibility that a listserv communication could be construed as improper ex parte communication with a judicial officer who subscribes to the listserv. Attorneys must avoid any direct or indirect communication with a judge except in certain specified circumstances.8 Attorneys must remember that many organizations permit sitting judges to participate in listservs and that any communication through such a service could, even inadvertently, end up in the hands of the trial judge hearing their case.

How can careful and conscientious practitioners deal with this reality? They must always keep in mind that some communications over the Internet—and particularly those over a listserv—are not the equivalent of a phone call or a private conference in their office. Instead, attorneys must understand that a listserv communication is more akin to a conversation in the hallway of the courthouse, where many people—judges, jurors, opposing counsel—may overhear, even inadvertently, the most private of matters. On the Internet, as on the street, look around and see who might be watching.

1 Metadata is hidden data attached to a computer-generated document and can include information such as previous versions of the document and the identity of who made the changes. With the proper software, it may be viewable by the recipient of a document that is transmitted electronically, such as on disk or via e-mail.

2 Bluetooth is technology that permits devices such as mobile phones, computers, and personal digital assistants (PDAs) to interconnect using a short-range wireless connection.

3 See, e.g., J. Osman, Technology and the Challenge of Maintaining Client Confidences, County Bar Update (L. A. County B. Ass'n, Los Angeles, Cal.), Oct. 2005.

4 Listserv software was developed in the mid-1980s, and the term is now used generically to describe electronic mailing lists. Although L-Soft International, Inc. has registered "Listserv" as its trademark, this article references no trademark and only uses listserv in the generic sense.

5 For example, the Los Angeles County Bar Association maintains listservs for its members. If a member wants to send an e-mail to every subscriber of the listserv, all the member has to do is subscribe to the listserv, log onto the service, compose an e-mail, press the send key, and—presto—every member of that listserv receives the e-mail. A responsive e-mail also can be sent to the entire membership.

6 This is true despite the fact that some listservs are "closed" in the sense that participants may be limited to members of a particular organization.

7 LACBA Opn. 514.

8 Cal. Rules of Prof'l Conduct R. 5-300(B)(5).