Transcript Social Networking, Cloud Computing and the Model Rules

Social Networking and the
Model Rules
Social Networking and the Rules of
Professional Conduct
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Advertising and Solicitation – Rules 7.1, 7.2, 7.3 – the
Rules of Professional Conduct apply even in cyberspace
Florida Bar has published guidelines for networking
sites:
Pages of lawyers on social networking sites used
solely for social purposes are not subject to advertising
rules
Pages used to promote the lawyer’s or law firm’s
practice are subject to the lawyer advertising rules and
must comply
Invitations sent directly from the site via instant
messaging to a third party are solicitations
Social Networking and the Rules of
Professional Conduct

Confidentiality – Rule 1.6 – Attorneys may be revealing
more than they think when blogging or on their web site
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If attorney is using cloud computing, check the service. The
licensing agreements for some services, such as Google, provide
that the data belongs to the host site and not the person
uploading the data.
 This could violate confidentiality
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Interactions with members of the public – Rule 1.18, 4.2, 4.3 – Did
the attorney form an attorney/client relationship?
 Check Attorney web site
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Unauthorized practice of law – Rules 5.3, 5.5 – Employees’
interaction with clients using social networking - Employees may
not give legal advice.
Be cautious about “friending” on
social networking sites
 Interactions with judges, witnesses, jurors and other
lawyers – Rules 3.3, 3.4, 3.5 – Attorneys
should not do on line what they would not do in
person!
 A North Carolina judge received a public reprimand for
communicating with an attorney Facebook friend during trial.
Before the Judicial Standards Commission, Inquiry No. 08-234
Public Reprimand, B Carlton Terry, Jr.
 Florida Supreme Court Judicial Ethics Advisory Committee
determined a judge may not add lawyers who may appear before the
judge as a friend on social networking sites. Florida Supreme Court
Judicial Ethics Advisory Committee, Opinion No. 2009-20
 South Carolina Advisory Committee on Standards of Judicial
Conduct, Opinion No. 17-2009: A judge may be a member of
Facebook and be friends with law enforcement officers and
employees of the Magistrate as long as they do not discuss
anything related to the judge’s position as magistrate.
Attorneys Blogging
About their Day…
Had the craziest day today – in court for four hours
on a DUI case for a guy from Peru who works
behind the desk at the People’s Bank downtown. I
don’t think I’ve ever seen a blood alcohol level that
high. His girlfriend/witness didn’t show up because
they had a fight last night and she moved out, which
made my case all the harder. But I’m not letting it
spoil my date tonight with the hot guy I met at Earl’s
on Friday!
Illinois Disciplinary Board v. Peshek,
Commission No. 09 CH 89 (May 8, 2010):
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Complaint filed against Public
Defender for blogging about her cases
when blog was open to the public.
Attorney lost her job as a result and
was suspended from practice for 60
days for violations of RPC 1.6 and 3.3,
among others.
More Bad Blogging…
The Florida Bar v. Conway: Attorney received
Public reprimand for derogatory comments about a
judge on an Internet blog.
Social Networking Activities
That Can Result in Discipline
Texas prosecutor was denied a second continuance
for a funeral after the judge checked her Facebook page
And found postings about partying, not grieving. The
Judge also reported the lawyer to a her supervisor in the
District Attorney’s Office.
Murder Mistrial Declared
September 14, 2012 in Miami-Dade, Florida
 Defendant: Fermin Recalde accused of stabbing
his girlfriend to death in 2010
 Recalde’s family brought him fresh clothes to wear
during trial including a pair of leopard skinned
underwear
 Public Defender, Anya Cintron Stern took a picture of
underwear and posted it to her personal FB page with a
caption asking why the family thought this was
appropriate for court
 Post was marked private but someone on her friend’s
list saw it and showed it to the judge
 Judge dismissed her and declared a mistrial
Murder Mistrial Declared
 Public defender’s office fired her
 Attorney also posted comments on FB page
questioning her client’s innocence
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Employer more upset about these comments than the
picture of the underwear posted to FB.
Should Investigators Use
Social Networking
….. but
 how you should use it depends on your jurisdiction’s
evidentiary rules and policies and procedures.
 You should not use it until you are
trained to do so.
Investigations Involving Attorneys
Who use Cloud Computing
Cloud Computing –
The Basics
What is Cloud Computing?
Wikipedia defines cloud computing as
“location independent computing, whereby shared
servers provide resources, software, and data to
computers and other devices on demand.”
How Does it Work?
 The chief characteristic, and many think primary
benefit, of the cloud, is that it is not located in a fixed
or static location.
 Users can access their information from anywhere, by
accessing the cloud.
How Are Clouds Being Used
by Law Firms?
 Many solo practitioners and small firms use
clouds to alleviate the cost and maintenance of
on-site hardware.
 Access information and data from anywhere using a
password.
 Ease and convenience, coupled with virtually unlimited
storage space, are often touted as benefits of using the
cloud.
 Many firms of all sizes are using clouds as offsite data
backup.
 Some companies utilize a hybrid situation –
maintenance of some in-house hardware using the
cloud for alternatives like E-mail access.
What Should be
Investigated?
 Where is the server located?
 What does the contract between Attorney and
cloud provider say:
 Is the contracting party the party actually controlling data or is
there a third party contractor involved? Could lead to breach of
confidentiality.
 What extra backup programs are used? Can the lawyer
still access the information?
Some vendors claim ownership of
the date, limit access to the data, or
reserve the right to delete data
without notice in the event of a
breach of the contract.
What Should be
Investigated?
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Is the Data protected?
Is the data encrypted?
Is it confidential?
How available is it? How readily does a lawyer have
access in order to ensure compliance with the Rules of
Professional Conduct?
 Can the lawyer audit the provider to ensure security
 standards are being met?
Compliance with
Regulatory issues
 Are there independent regulatory rules to be
considered when storing data on the cloud? Is this
different when the cloud is located in another country?
(Ex: HIPPA, USA Patriot Act, etc.)
 Confidentiality – if the server is located abroad, does
that country have confidentiality rules to protect client
data the way the United States does?
What happens in the event
of a data breach?
 How quickly are customers notified if a
breach occurs?
 Who bears responsibility and cost of a breach?
 unauthorized access risks - external hacking or
unauthorized access or use by cloud provider’s
personnel?
 Does the lawyer tell clients he is using a cloud?
- is this something a lawyer must disclose
upfront?
Who Has Access
to Data
 Who has access to the lawyer’s
cloud?

Employees
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Clients
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Outside vendors

Witnesses

Consultants
Keeping data secure is key!
Rules to Consider
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Rule 1.6 Confidentiality – Are lawyers
preserving the confidentiality of client information
when storing it on the cloud?
Rule 1.4 Communication
Rule 1.15 Safekeeping Property
Rule 1.16, Declining or Terminating Representation –
Is the information in the client’s file secure? Does the
lawyer have immediate access? Can the lawyer
get copies for a client quickly if requested to do
so?
THANK YOU