COPRAC and PREC Opinions on Attorneys' Use of Technology Lead the Way
LACBA Update, May 2014
By Diana K. Rodgers of Robie & Matthai. Rodgers is a member of LACBA’s Professional Responsibility and Ethics Committee. The opinions expressed are her own.
—Imagine it is a sunny Saturday, and you decide to work at your neighborhood Starbucks. You use your office-issued laptop and the public Wi-Fi Internet connection. You conduct legal research and e-mail your client. You marvel at how technology has made working remotely so easy.
—Or imagine you have just graduated from law school and decide to open a virtual law office from home. You know communications with clients need to be confidential, but what technology should you use? Can you take your clients' credit card as payment?
—Perhaps you are a participant in your local bar association's litigation listserve. You post a question about an expert you are considering retaining and receive comments from other attorneys. A judge who participates on the listserve realizes the expert is due to testify in his or her courtroom next week and posts a comment cautioning attorneys to censor their messages. You also have a case in that judge's courtroom. Have you just had ex parte communication with the judge?
The ways in which lawyers communicate and handle their cases have changed dramatically. Fifteen years ago, e-mails were an occasional adjunct to letters and faxes. “The cloud” referred to weather. Attorneys brought documents home on discs or e-mailed the documents to their personal e-mail address. The widespread adoption of increasingly inexpensive and powerful technology has changed all of that, and now there probably isn't a lawyer in the nation who doesn't use the Internet daily. But are these innovative uses of technology ethical?
The State Bar of California's Committee on Professional Responsibility and Conduct (COPRAC) and the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee (PREC) have taken on this brave new world.1 In the past 11 years, these two committees alone have issued 11 ethics opinions specifically related to attorneys' use of technology, and more opinions are coming every year. The foundations of ethical behavior for attorneys have not changed—attorneys still owe their clients duties of confidentiality and competence—but these opinions apply the traditional concepts to today’s technology and offer wise guidance and frameworks for analysis. Some of these opinions are discussed below.
2010-179—Confidentiality and Technology. This opinion discusses an attorney’s duties of confidentiality2 and competency3 in using technology in the provision of legal services. The hypothetical describes an associate at a law firm who uses a firm-provided laptop at a coffee shop over the public wireless connection to conduct legal research and e-mail the client. The attorney also uses the laptop at home to conduct legal research and e-mail the client from a personal wireless system. Are such uses ethical? The opinion concludes that whether the attorney violates duties of confidentiality and competency will depend on the particular technology being used and the circumstances surrounding such use, and provides six factors to consider in determining whether the use of a particular technology complies with those duties.
Under this hypothetical, by using a public wireless connection and the lack of security features in most public wireless access locations, the attorney risks violating duties of confidentiality and competence unless he or she takes “appropriate precautions, such as using a combination of file encryption, encryption of wireless transmissions and a personal firewall. Depending on the sensitivity of the matter, Attorney may need to avoid using the public wireless connection entirely,”4 or inform the client of the risks of using such a system and obtain the client’s informed consent to do so.
2003-164—Forming an Attorney-Client Relationship on a Radio Call-In Show or Similar Forum. This opinion examines whether an attorney-client relationship may be formed with an attorney who answers specific legal questions posed by persons with whom the attorney has not previously established an attorney-client relationship on a radio call-in show or other similar format. The opinion looks at what constitutes the formation of an attorney-client relationship and concludes that while this is a very fact-dependent analysis, under the particular facts posed in the hypothetical, it would not be reasonable for a member of the public to believe that such a relationship had been formed.5 While most of us will not host a radio call-in show during our lifetime, we may find ourselves participating as a speaker in a public forum, or participating in a Webinar, in which case this opinion will provide some guidance for guarding against an unintended attorney-client relationship.
2012-184—Virtual Law Office. This opinion examines whether an attorney may maintain a virtual law office practice (VLO) and still comply with ethical obligations, if the communications with the client, and storage of and access to all information about the client’s matter, are all conducted solely through the Internet using the secure computer servers of a third-party vendor (i.e., “cloud computing”). The opinion discusses an attorney’s duties of confidentiality and competence with respect to the ability to effectively communicate with the client as a prerequisite to affording competent counsel,6 and concludes that while attorneys can maintain a VLO where communications and storage of a client’s materials are conducted and maintained using a third party's secure servers, attorneys may nonetheless be required to take additional steps to confirm that they are fulfilling their other ethical duties.
2007-172—Accepting Credit Card Payments from a Client. Whether attorneys can accept credit card payments from a client is a deceptively straightforward issue. Attorneys may accept credit card payment for earned fees but must ensure that they maintain their client’s confidentiality in such a transaction. Attorneys may not accept credit card payment for a deposit for advances of costs and expenses, because attorneys must deposit such advances into a client trust account and cannot do so initially, because they are paid through an account that is “subject to invasion” by the merchant bank, and attorneys must cede control of the funds.
2011-004—Proposed Opinion regarding Ethical Duties in the Handling of Discovery of Electronically Stored Information. COPRAC has issued a proposed formal opinion that discusses an attorney’s ethical duties in the handling of discovery of electronically stored information and responding to discovery requests. The proposed opinion discusses attorneys’ ethical duties of competence and confidentiality in the context of e-discovery and provides a list of tasks with which attorneys should have the requisite level of skill and familiarity to perform. The public comment period ends at 5:00 p.m. on June 24, 2014.
For additional COPRAC Ethics Opinions specifically related to technology, go to http://ethics.calbar.ca.gov/Ethics/EthicsTechnologyResources/EthicsOpinionsRelatedtoTechnology.aspx.
Formal Opinion No. 514—Ethical Issues Involving Lawyer and Judicial Participation in Listserve Communications. This opinion discusses the ethical duties of attorneys and judges when facing the situation described at the beginning of this article. Inadvertent contact such as in this hypothetical likely violates no ethical proscriptions, and attorneys may rely upon the independent duties of judges to avoid such ex parte contacts. Nevertheless, since problems could still arise depending on the circumstances, and attorneys are required to maintain their client’s confidential information, the opinion concludes that attorneys should avoid including information in listserve postings that identify “particular cases or controversies.”7
COPRAC and PREC are not the only ethics committees to have issued opinions specifically relating to the use of technology. For a list of opinions issued nationwide, also go to: http://ethics.calbar.ca.gov/Ethics/EthicsTechnologyResources/EthicsOpinionsRelatedtoTechnology.aspx.
1 COPRAC and PREC are composed of practicing attorneys who provide ethical guidance in the form of written ethics opinions.
2 Cal. R. of Prof'l Conduct R. 3-100; see also Cal. Bus. & Prof. Code §6068(e)(1).
3 Cal R. of Prof'l Conduct R. 3-110. In the context of 2010-179, “competence” refers to ensuring that “both the secrets and privileged information of a client remain confidential and that the attorney’s handling of such information does not result in the waiver of any privileges or protections.” State Bar of Cal., Comm. on Prof'l Responsibility & Conduct, Formal Op. No. 2010-179.
4 State Bar of Cal., Comm. on Prof'l Responsibility & Conduct, Formal Op. No. 2010-179.
5 State Bar of Cal., Comm. on Prof'l Responsibility & Conduct, Formal Op. No. 2003-164; and see State Bar of Cal., Comm. on Prof'l Responsibility & Conduct, Formal Op. No. 2003-161 for an in-depth discussion of formation of an implied attorney-client relationship.
6 The hypothetical also implicates the following California Rules of Professional Conduct: 1-100, 1-300 (unauthorized practice of law), 1-310 (forming a partnership with a non-lawyer), 3-100 (duty of confidentiality), 3-110 (duty of competence), 3-310 (avoiding the representation of adverse interests), 3-400 (limiting liability to a client), 3-500 (duty to keep client reasonably informed), 3-700 (termination of employment), and 4-200 (fees for legal services).
7 Los Angeles County Bar Ass'n., Prof'l Responsibility & Ethics Comm., Formal Op. No. 514.
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at email@example.com.