Ethical Challenges in the Use of Electronic List Service Communications
LACBA Update, February 2009
By Lisa Claire Miller, attorney and member of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee. She can be reached at (818) 508-8502 or LACBA@LMillerconsulting.com. The opinions expressed are her own.
In the modern world, attorneys often employ methods of communicating with clients and others that had not been imagined just a few years ago. Ethics rules did not necessarily anticipate the modes of communication that are now in common use or the potential ethical problems that the use of such new forms of communication might engender. Even though our system of ethical rules may not have kept up with advances in technology, it is incumbent on every attorney to ensure that basic ethical requirements such as maintaining client confidences and avoiding ex parte communications with judges are observed, regardless of the form of communication employed.
A listserv is the electronic version of the “Letters to the Editor” page. Sometimes, the very advantages that draw us to the use of e-mail impose risks not inherent in more traditional forms of communication. Because e-mail is relatively informal, it may contain content not appropriate for should-be-formal communications. Because e-mail content is electronic and therefore invisible to the human eye, e-mail can contain hidden content, including data or malicious programming. E-mail also can be sent simultaneously—inadvertently or intentionally—to thousands of e-mail addresses, yet it is impossible to know who might have read any given e-mail.
Participation in a listserv is a form of modern communication that deserves particular attention. A listserv is a public, electronic conversation in which a large and sometimes unknown group of individuals can exchange thoughts and conversation. Posting on a listserv is very much like posting on a public bulletin board or mailing a letter to the editor of a newspaper or participating in a call-in radio show or a conference call. Such a forum may not seem likely to involve client confidences, but beware! Unrestrained and unthinking posting to a listserv could impair a client confidence and/or constitute an improper ex parte communication with a judicial officer.
Consider the following hypothetical. Attorney A posts an inquiry on a listserv soliciting information about an expert witness who has been designated by an opposing party in ongoing litigation. Attorney B (who does not know Attorney A and does not represent a party in Attorney A’s case) posts a reply denigrating the proposed expert’s abilities and character, and suggesting another expert to be used to counter the proposed expert. Unbeknown to either Attorneys A or B, both the opposing counsel and the judge involved in Attorney A’s case are members of the listserv and see these postings.1
Given the inherently public nature of a listserv, a discussion about an expert referral on a listserv, whether requesting or responding with information, could 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. Arguably, an attorney opining in reply about an expert might reveal mental impressions and constitute a waiver of work product doctrine.
Rule of Professional Conduct 5-300(B) provides in relevant part that a lawyer “shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer” with certain well-known exceptions. Rule 5-300(B) incorporates two critical principles: The communication must be on the merits, and it must involve a pending matter. Yet, an attorney can willfully violate an ethical rule without engaging in any evil or bad faith and without even knowing the specific rule being violated. For example, though an “innocent” suggestion of an expert witness in response to an inquiry would seem to lack the specific knowledge required for liability under the rule, even an “innocent” (i.e., negligent) ex parte contact with a bench officer would still violate 5-300(B) since no intent to engage in an improper communication is required.
What to do? Obviously, the genie is out of the bottle and is not going back. Listservs and other forms of electronic communication are here to stay. As a profession, we must learn to use such communication tools in a manner consistent with our ethical obligations.
To reduce the likelihood of any kind of unintended ex parte contact as in the hypothetical above, lawyers using listservs must always consider who else may have access. Any attorney communicating on a listserv must remain aware that he or she is communicating (even as a passive reader) with an unknown segment of the public that includes persons who may appear as parties or advocates in the same or related matters.
From a broader perspective, the profession as a whole should continue to adapt and reformulate its ethics rules to better apply to the challenges posed by modern communication forms. Efforts to do so to date, though well reasoned and well supported by relevant law and regulation, have tended to treat Internet-based communication as essentially equivalent to older forms of communication such as telephone and paper mail. What if this assumption is incorrect?
A quick review of the popular media establishes the prevalence of well-organized, global criminal activity regarding electronic communication, especially e-mail. E-mail is more and more frequently sent and received based on transmission from wireless access points to wireless access points, which implicates further lack of reliable confidential transmissions. No such constant and aggressive threats on the U.S. mail or landline-based telephone communications have yet been reported. This suggests that Internet-based communications are fundamentally different from other means of contact and should be treated as such. Perhaps it is time for new review of legal ethics as applied to Internet-based forms of communication that recognizes such communications are fundamentally different from old-fashioned forms of communication and deserve rules specifically designed for Internet communications.
1 See Los Angeles County Bar Association Professional Responsibility and Ethics Committee Opinion No. 514, which uses a similar hypothetical fact pattern and discusses similar issues.