Tag Archives: Ethics

California Lawyer, eDiscovery California, Media, Social Media, Technology

EDISCOVERY CALIFORNIA: FORMAL OPINION NO. 2016-196 – ATTORNEY BLOGGING

Disclaimer:  This is a State Bar of California Opinion, and I’m Vice-Chair of the Council of California State Bar Sections (CSBS).  I want to remind you, “This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity.  Any views expressed herein have not been adopted by the State Bar of California’s Board of Trustees or overall membership, nor are they to be construed as representing the position of the State Bar of California.”

To put it simply, the premise of CAL 2016-196 is to address when:  1) A blog post becomes a “communication”, as defined under the RPC and the State Bar Act, and 2) If it is deemed a communication, is it “attorney advertising”?

First of all, what constitutes a blog (or, as I prefer to call legal blogs, a “blawg”)?  Hmmm.  Well, if you call it a blawg, that’s probably a big hint that it’ll be legal in nature, but that’s not really what I’m getting at here.  Are your scribbles on Facebook, Twitter and Instagram “blogging”, for the purposes of this opinion?

You bet (if those scribbles are legal in nature and/or purport to advertise your services).  You may not be aware of it, but products like Twitter are referred to as “micro-blogs”.

I think the continuing problem with a lot of these opinions is that they cause people to lose their minds worrying about them as if they’re something new.  The reality is, technically, a blog post is no different than if it were an article in a magazine that had a little blurb at the end that includes your contact information.  You’ll be subject to regulation for attorney advertising (California’s Rule of Professional Conduct, rule 1-400 – Advertising & Solicitation).

The real differences?

  • Someone has to subscribe to the magazine, receive it for free or pick it up in the dentist’s office office or a friend’s home.  However, if your blog is public, you need to understand, that means public; available to anyone, anywhere in the world at any time who has access to the internet.
  • The jurisdiction in which someone reads it may not authorize attorney blogging.

I bet many of you see where I’m going with the second point.  Could this trigger an accusation of improper advertising?  What about an in-depth article including opinion on a particular law?  Could that be unauthorized practice of law?

Yes and yes.  So what do you do?  For starters, click on the link above and read the opinion.  It’s only eight pages, and you’ll quickly see that a lot of it triggers opinions you’ve seen before, such as CAL 2012-186.  Two, disclaim, Disclaim, DISCLAIM.  Many a problem is eliminated if you simply inform your readers of your audience.

Of course, you can’t do that on Twitter.  So you might link to your disclaimer, or state briefly, “All opinions are my own.”

Oh, and there’s this last bugaboo:  You must be able to reproduce each and every post you’ve made for the past two years (while you’re gasping, keep in mind, it’s three years in New York).

Education, Metadata, Scope, Strategy, Technology

Upcoming Presentation: Metadata – Legal and Ethical Challenges

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I'm presenting a webinar with my good friend and past-LPMT-Chair Robert
Brownstone, entitled:

Metadata: Legal and Ethical Challenges:

Avoiding Information Risks With Various File Types,
Electronic Redactions, Location-Tracking, “The Cloud” and eDiscovery.

This is a live,
90-minute CLE webinar/teleconference with interactive Q&A Thursday, May 2nd,
2013 from 1:00pm-2:30pm EDT, 10:00am-11:30am PDT.

And yes, as the subtitle suggests, this is not a 101 presentation.  If you're interested in checking it out, click-through to the Strafford web site for more info; and stay tuned.  I have many more of these in the pipeline.

Backup & Recovery Systems, Cost, Disaster Recovery, Duties, Education, Law Practice Management, Privacy, Security, Technology

Perry Segal Discusses the Cloud, Privacy & Attorney Ethics on KUCI Irvine 88.9FM – Monday, Nov. 12th at 8:00 a.m. PST

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I guess the headline says it all, except I'd like to add that the interview will also be available as a podcast via iTunes.  I will also post an MP3 here Monday.

Here's a few of the additional details:

Privacy Piracy (88.9FM and www.kuci.org), a half-hour public affairs show with no
commercials broadcasts from the University of California, Irvine campus on
Mondays from 8:00 a.m. – 8:30 a.m. Pacific Time.  To learn more
about the show and listen to archived interviews, please visit www.kuci.org/privacypiracy.

California Lawyer, Cost, Duties, eDiscovery California, Education, Law Practice Management, Security, Strategy, Technology

eDiscovery California: Upcoming Presentations: CalBar 85th Annual Mtg

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Why have I been missing in action the past couple of weeks?  Because I over-committed, that's why!  Note to self: Don't propose two presentations for the CalBar 85th Annual Meeting, thinking that only one will be selected…WRONG!!!  So, to kick-off my re-appearance on this blawg, here are my two upcoming presentations in Monterey:

eDiscovery eVolution: Crawl, Walk, then Run Your Case!  (Program 25)

Thursday, October 11, 2012  4:15 p.m.-5:15 p.m.

Strategy matters, and litigation is a term of art and a
little showmanship. Learn how to strategize during a case to get the
most out of each other for the clients' benefit.

Presenters:  Perry L. Segal, Derick Roselli

CLE: 1.0 Hour General Credit

This is going to be a good one, because I'm taking the role of attorney (type-casting) and my LPMT colleague, Derick Roselli, takes the role of technology expert; which is his true specialty at HP/Autonomy.  We're going to do a walk-through of a case from the perspective of the attorney consulting with his expert on a case, from start to finish.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

The Cloud: Secure? Yes. Ethical? Not so FAST!  (Program 50)

Friday, October 12, 2012  10:30 a.m.-12 noon

It's essential to conduct due diligence regarding a
vendor's security practices to insure the confidentiality of client
data. Even if the data is believed to be secure, it may violate an
attorney's legal/ethical obligations. Learn the next step– assuring
client communications are secure and ethical.

Presenters, Perry L. Segal, Donna Seyle

CLE: 1.5 Hours of Which 1.0 Hour Applies to Legal Ethics

Donna Seyle is another of my LPMT colleagues, and we're going to do a practical examination of attorney ethics rules – both ABA and California – as they pertain to data and social media interaction in the cloud.  Our goal is to explain to attorneys how even a secure cloud may violate ethical obligations to the client if additional precautions are not followed.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

I 'officially' assume the Chairmanship of LPMT at noon, Sunday, October 14th.  Here we go!

California Lawyer, Duties, eDiscovery California, Education, Implementation, Law Practice Management, Media, Strategy, Technology

eDiscovery California: Formal Opinion Interim No. 10-0001 (Social Networking) Raises an ‘Adject’ Issue

MP900442339First, my disclaimer:  This is a State Bar of California Opinion – and I'm Vice-Chair of their Law Practice Management & Technology Section Executive Committee (LPMT).  I want to remind you, "This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity.  Any views expressed herein have not been adopted by the State Bar of California's Board of Trustees or overall membership, nor are they to be construed as representing the position of the State Bar of California."

The last time I analyzed one of these, it pertained to VLOs.  I found that Opinion much more difficult to address.  Formal Opinion Interim No. 10-0001 (Social Networking) is easier in some respects, because its main purpose is to apply current California rules (specifically, Rules of Professional Conduct:  Rule 1-400 Advertising and Solicitation and sections of the Business and Professions Code) to what it refers to as, "social media websites".  That's where the trouble begins; with the adjective.  We'll get to that in a moment.

There's no reason for me to do a dissertation on 1-400.  California attorneys should already be familiar with this Rule (or they can look it up, above).  Suffice it to say, for our purposes, this can be like Jeopardy, because we need ask ourselves two questions:

  1. What is a communication?
  2. If a posting is determined to be a communication, is it an advertisement or solicitation?

The only major problem I have with the document is Footnote Two on Page One (link opens the 6-page PDF).  It attempts to describe Facebook "friending" as an example of what it considers a "controlled" group.  It doesn't seem to take into account that, like Twitter, et al, your control group can republish your post (e.g. Re-tweeting).  My view?  Continue to treat your posts as if they're visible to the entire world!

Page Five reminds us of Rule 1-400(F):  "…the Committee notes that a true and correct copy of any “communication” must be retained by Attorney for two years. Rule 1-400(F) expressly extends this requirement to communications made by “electronic media.” If Attorney discovers that a social media website does not archive postings automatically, then Attorney will need to employ a manual method of preservation, such as printing or saving a copy of the screen."  [italics added]

Gulp!  How many of you remembered that part of the Rule?

Concluding, the Opinion has an adject(ive) issue.  It refers to "social media websites", but it also refers (as it should, in my opinion) to general attorney websites.  If I were to make one glaring modification to this document, it would be to find the phrase, "social media website(s)" wherever it appears, and replace it with, simply, "websites".

The qualifier serves no purpose.

By the way, if you'd like to comment on the Opinion, the 90-day period is open through 5pm, July 2nd, 2012.