Happy New Year! Some of you may recall when I wrote about this proposed opinion back in early June. It addresses when a social media post by an attorney might cross the line from a statement to an advertisement, thereby triggering additional state bar rules. In late December, apparently with little fanfare, the opinion was formalized as CAL 2012-186.
Last week, I attended day one of the Executive Counsel Exchange in Los Angeles, as has been my custom the past three years. Just to clarify, this conference is sometimes referred to as the Executive Counsel 'Institute', but the actual program is called, "The Exchange" and the theme is, "e-Discovery
for the Corporate Market".
This year, the primary moderators were Browning Marean III of DLA Piper, my old pal Robert Brownstone of Fenwick & West and David Kessler of Fulbright & Jaworski. This is one of my favorite programs because it's a roundtable.
The reason this particular conference is so beneficial is that attendees share their day-to-day experiences confronting the many eDiscovery challenges we know so well. I've always considered the practical much more important than the theoretical – mostly because people, situations and budgets don't tend to comport to the (IMHO) wishful thinking that appears in many overly-optimistic project plans.
Take a look at the agenda. If these look like the kinds of issues you see, think about attending. The next event will be held in late March in San Francisco.
Listen to Perry Segal’s interview on Cloud Privacy & Attorney Ethics on KUCI 88.9 FM
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.
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.
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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.
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I 'officially' assume the Chairmanship of LPMT at noon, Sunday, October 14th. Here we go!
Attorneys, please take note: The State Bar of California Proposed Formal Opinion Interim No. 10-0003 (Virtual Law Office) has been adopted as Formal Opinion CAL 2012-184 (link opens 7-page pdf). If you missed it the first go-round, I highly recommend that you familiarize yourselves with this opinion.
I can lead you to the water (but I can't force you to make the Kool-Aid).
First, 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:
- What is a communication?
- 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.
The ABA Journal Tech Report has a comprehensive examination of cyberwarfare from their May 2012 issue. It examines the perceived attorneys' role, Constitutional limitations and international law issues. There are contributions from a host of experts, including some very polarizing figures, like John Yoo.
Hey, you know there can be no valuable debate unless you hear out assenting and dissenting views, right?
Be warned; this is not a light read, by any means…
Earlier this week, my interest was piqued when I read an article by a colleague, Dennis Kiker, titled, "I want an E-Discovery Lawyer for my E-Discovery Project". He explains what his concept of a law firm e-discovery lawyer is; to him.
In the corporate world, I'm experiencing something quite different in the clear evolution of what many companies seem to want in an e-Discovery Lawyer these days; a combination of e-Discovery and Security in a single function. Think about it. It actually makes sense. In theory, both jobs involve protection, but I bifurcate them between protection by technology and protection by individuals (notice, I didn't say 'of technology' and 'of individuals').
That's how I broke out the subject for the State Bar's upcoming book. It's one thing for individuals to develop strategies to protect corporate assets via software, firewalls and other security protocols. It's quite another for individuals to be aware of the security risks that surround them 24 hours a day.
Unfortunately, all that stealth goes out the window if those same individuals don't adhere to stringent personal privacy protocols. Otherwise, the next thing you know, your company iPhone is sitting on a bar counter somewhere, next to your empty marguerita tumbler – and you're already on your way home.
e-Discovery Attorney as Project Manager? Definitely. e-Discovery Attorney as CyberSecurity Guru? Well, let's just say, I'm glad I have 20+ years of world-wide LAN/WAN experience under my belt…