Emerging Ethical Issues in the 21st Century

Ethical Issues in Cyberspace

Mark Perkins

Perkins & Associates, L.L.C.

401 Market, Suite 900

Shreveport, LA 71101

318-222-2426

Email: perkins@perkinsfirm.com

 

 

Ethical Issues in Cyberspace
  1. General Ethical Concerns:

Although the paper industry of Louisiana is still relatively safe, the age of electronic processing and communication of information is replacing paper in many applications. In the trucking industry, the following information is maintained electronically:
    1. General data files: spreadsheets, calendars and e-mails;
    2. Electronic control modules;
    3. Satellite tracking systems;
    4. Hours of service compliance;
    5. Trip recorders;
    6. Weigh in motion systems;
    7. Collision avoidance and warning systems; and
    8. Cellular communication systems.

The day is not too far away, when accident reports, driver records, vehicle records, and more are maintained electronically. As records are maintained electronically, they are also disseminated electronically. This is the arena in which the attorney must be aware of the ethical issues that may impact the practice of defending trucking companies, specifically, but generally, all areas of legal practices.

In addition to the issues associated with preservation and distribution of electronic, the cyber-attorney needs to be aware of the ethical issues of confidentiality and the appropriate manner of advertising his services.

The following is a summary of the ethical issues to keep in mind while surfing the World Wide Web:
    1. Confidentiality: Rules 1.7-1.12 of the Model Rules cover a variety of conflict situations, but they do not specifically discuss when and how conflicts arise. The rules do not address the attorney’s obligations to check conflicts among users of a website, including whether, or to what extent, users may waive a conflict and how screening of individual lawyers (or clients) may be ensured in cyberspace.
    2. Confidentiality: Rule 1.6 mandates that the attorney maintain the confidences of a client relating to representation, but because of the uncertainties of when an attorney-client relation begins on the internet, an ethical dilemma can arise. Additionally, security issues related to on-line communications must be addressed with the probability of mis-sent or inadvertently sent messages, group messages/discussions, forwarded messages, and stored messages.
    3. Competency: Rule 1.1 imposes a duty on the attorney to exercise the knowledge, skill, and thoroughness to carry out his representation of the client; therefore, the competent attorney must make his client aware of the pitfalls of Internet communication and the mandates of preservation of electronic data.
    4. Advertising: Rules 7.1 – 7.5 deal with communications with prospective clients. There may be a blur in cyberspace between permissible advertising and impermissible solicitation.

Legalethics.com is a very good source for the general state of the ethical issues over the Internet. It includes recent summaries of cases, legislation and advisory opinions covering topics ranging from the online payments for legal services to whether a law firm’s domain name has to be identical to the firm’s actual name. You may research by topic and state.
  1. Client Confidentiality

The concerns over confidentiality in the transmission of information are as old as the telegraph – literally. Lawyers in the late 1800s cautiously responded to the use of the telegraph in transmitting confidential information. Frankly, the concern in the 21st Century should be more cautious, but many use e-mail under the false assumption that the information is secure. This is a violation of the attorney’s duty to be competent and maintain confidential information of the client.

A. Privilege/Confidentiality

"A fundamental principle in the attorney-client relationship is that the lawyer maintain confidentiality of information relating to the representation." A failure to maintain confidentiality may result in disciplinary sanctions against the lawyer, a claim for malpractice if the breach leads to measurable damages to the client, or possibly in a waiver of the attorney-client privilege that would otherwise protect the communication. Therefore, attorneys should consider any weaknesses in e-mail technology.

It is not completely clear if/how the use of e-mail will ultimately affect the attorney-client privilege. The court, in United States v. Keystone Sanitation Company, treated e-mail printouts just like any other documents for purposes of determining whether the attorney-client privilege was waived through inadvertent disclosure to a third party. Other courts have conducted in camera inspections of documents, including e-mails, and have decided that these documents were protected by the privilege and did not have to be disclosed. See Heidelberg Harris, Inc. v. Mitsubishi Heavy Industry. Consequently, the courts are willing to consider e-mails to be like conventional documents when determining whether the "documents" are protected by the attorney-client privilege.

Many jurisdictions require that for a waiver of the privilege to result, the communication of the privileged information to a third party must be intentional. This "subjective intent approach" follows the traditional rule in inadvertent disclosure cases, which protects the privilege. Because the privilege exists for the benefit of the client, the logical conclusion is that WITHOUT THE CLIENT INTENTION TO RELINQUISH THE PRIVILEGE, there can be no waiver.

Not all jurisdictions adopt the "subjective intent approach" and the recent trend is toward the "relative conduct approach" to determine if the inadvertent disclosure amounts to a waiver. The relative conduct approach requires the examination of a number of factors:

    1. The reasonableness of the precautions taken to prevent disclosure;
    2. The time taken to rectify the error;
    3. The extent of the disclosure; and
    4. The overriding issues of fairness.

Understanding that the consequences of carelessness should not go unaccounted for, middle ground jurisdictions will find implied waiver of the privilege when the facts surrounding the disclosure demonstrate that continued protection of the privilege is unwarranted.

B. Reasonable Expectation of Privacy

The Electronic Communications Privacy Act of 1986 (ECPA) was passed to protect electronic communications, and currently protects illegally intercepted e-mail messages. Based upon the ECPA, illegally intercepted e-mail communications will remain privileged. Simply because an e-mail may possibly be intercepted does not equate to the waiver of the attorney-client privilege.
    1. ABA Standing Committee on Ethics and Professionalism, Formal Opinion 99-413

      2. The ABA has recently stated that lawyers may use unencrypted e-mail to transmit confidential client-related information without violating the rules of professional conduct. HOWEVER, the opinion does warn that for HIGHLY SENSITIVE client information, a lawyer should consult with the client to determine whether another form of communication would be a better option. Although the opinion is not binding on ethics committees and courts, it is likely to be relied upon heavily.

    2. Duty to Obtain Client Consent

Regardless of the type of communication used, attorneys must obtain the client’s consent before revealing any confidential client information. Some bar associations recommend that attorneys get the client’s consent before sending confidential information by e-mail. Once the client’s consent has been obtained, the attorney has the duty to follow the client’s decisions regarding the methods of transmission and the amount of information transmitted. Admittedly, this is rarely done on a formal basis, but to protect against the possible disclosure of confidential information, the attorney should place his client on notice that communication of any data electronically may result in the obligation to disclose the data if it is deemed to be transmitted in a manner that could waive the attorney-client privilege.

The following are sources of information that may be collected, stored, and transmitted electronically and each may contain highly sensitive information that requires extreme confidentiality:
    1. Litigation Budgets;
    2. Liability Assessment Reports;
    3. Quantum Evaluations;
    4. Personal Assessments of Adverse Attorney (bad faith claims);
    1. 5. General data files: spreadsheets, calendars, and e-mails;
    2. 6. Electronic control modules data;

7. Satellite tracking systems data;

8. Trip recorders; and
    1. Any document that is subject to being transmitted electronically!
    1. Methods to Protect the Privilege

Although many state bar associations have indicated that e-mail is an acceptable, ethical means of communication, there has been no formal opinion by the courts declaring that e-mail is a reasonable and acceptable means of communication. Thus, attorneys should be aware of means to preserve the attorney-client privilege in cyberspace.

1. Encryption

Although encryption will protect against inadvertent disclosure, it has some drawbacks. First, the sender and all receiving parties must use the same software. Second, the keys must be programmed correctly in the sender’s computer as well as in all recipients’ computers in order for the encrypted message to be decoded and read. Third, encryption programs take up a large amount of computer memory. A law firm with a number of attorneys using encryption on the same system may experience a network overload. Fourth, some encryption programs are expensive so some firms/businesses will find it cost-prohibitive in comparison to the value.
    1. 2. Disclaimer/Confidentiality Notices

A disclaimer puts the actual recipient on notice that the e-mail (and attachments) contains privileged and confidential information and that if the e-mail is inadvertently sent to an unintended recipient, the e-mail should not be read, copied or forwarded. A sample disclaimer is:

This transmission is intended to be delivered only to the named
addressee(s) and may contain information that is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this information is received by anyone other than the named
addressee(s), the recipient should immediately notify the sender by
E-MAIL and by telephone ((318) 222-2426) and obtain instructions as to
the disposal of the transmitted material. In no event shall this
material be read, used, copied, reproduced, stored or retained by anyone other than the named addressee(s), except with the express consent of the sender or the named addressee(s). Thank you.

Of course, there are those who question the effectiveness of disclaimers. The value of disclaimers is limited, since the courts normally attach more weight to the substantive content of the communication and the circumstances in which it is made than to any disclaimer. Having said that, disclaimers may possibly be helpful if an issue ends up in court in various respects such as those described below and, since disclaimers cost (almost) nothing, it is worthwhile to use them. Even though their effectiveness in court is doubtful, they may provide a useful argument in negotiations to resolve a dispute. You still might be able to frighten people with them anyway if you have sufficiently scary lawyers. Just as an example of what not to say in a disclaimer and to see if anyone really reads this material consider the following:
    1. IMPORTANT: This email is intended for the use of the individual addressee(s) named above and may contain information that is confidential, privileged or unsuitable for overly sensitive persons with low self-esteem, no sense of humor or irrational religious beliefs. If you are not the intended recipient, any dissemination, distribution or copying of this email is not authorized (either explicitly or implicitly) and constitutes an irritating social faux pas. Unless the word absquatulation has been used in its correct context somewhere other than in this warning, it does not have any legal or grammatical use and may be ignored. No animals were harmed in the transmission of this email, although the Yorkshire terrier next door is living on borrowed time let me tell you. Those of you with an overwhelming fear of the unknown will be gratified to learn that there is no hidden message revealed by reading this warning backwards, so just ignore that Alert Notice from Microsoft: However, by pouring a complete circle of salt around yourself and your computer you can ensure that no harm befalls you and your pets. If you have received this email in error, please add some nutmeg and egg whites and place it in a warm oven for 40 minutes. Whisk briefly and let it stand for 2 hours before icing.
    2. IMPORTANT INFORMATION/DISCLAIMER

This document should be read only by those persons to whom it is addressed. If you have received this message it was obviously addressed to you and therefore you can read it, even it we didn’t mean to send it to you. However, if the contents of this email make no sense whatsoever then you probably were not the intended recipient, or, you are a mindless cretin; either way, you should immediately delete yourself & destroy your computer! Once you have taken this action please contact us. No you idiot, you cant use your computer, you just destroyed it, and by the way, you are also deleted, but we digress......

The Originator of this email is not liable for the transmission of the information contained in this communication, unless they are the originator in which case they probably are liable and rightly so considering the content of the aforementioned communication.

We take no responsibility for non-receipt of this email because we are running Windows NT & everyone knows how glitchy that can be. In the event that you do get this message then please note that we take no responsibility for that either. Nor will we accept any liability, tacit or implied, for any damage you may or may not incur as a result of receiving, or not, as the case may be, from time to time, notwithstanding all liabilities implied or otherwise, It's NOT, and NEVER WILL BE, OUR FAULT!

    1. 3. Password

      2. Another safeguard is making the attached documents accessible only through the use of a password, which prevents the recipient from being able to open the document unless the correct password is entered. The same drawbacks from encryption may exist, but the method is much simpler to use because both Word and WordPerfect allow an author to assign a password to a document.

    2. 4. Common Sense

Generally, the more confidential and sensitive the information is, the more protection it should be afforded.
  1. Discovery/Disclosure of Electronic Data

    2. Some commentators have concluded that a failure to pursue electronic data in discovery is malpractice. Electronic discovery is the process of requesting, obtaining and reviewing material that is not in "hard copy" paper medium (i.e. the paperless document).

    Electronic discovery is not separate from discovery of other more traditional material and attorneys in the United States should have been on notice that discovery requests include relevant electronic data. Anecdotal data suggests that few litigants conduct a comprehensive review of electronic data when responding to discovery requests and few people request electronic data.

    An attorney who is assigned trucking related claims should immediately place his client on notice to secure all relevant data, including possible electronic data. For example, you may consider sending an initial letter similar to the one in Appendix A.

    Likewise, the competent attorney will ensure that he asked for relevant electronic data from other parties. Sometimes, the eighteen-wheeler client is involved in a multiple eighteen-wheeler accident, which may require gathering electronic data from the other trucking companies. Only as a way of suggestion, and without any representation that this list is exhaustive, you may consider requesting information as outlined in Exhibit B.

  2. Ethical Websites

The World Wide Web provides an amazing vehicle for retrieving and sending information quickly, easily and inexpensively. Websites are surfed daily by millions of people. Unlike e-mail, there are some potential pitfalls with websites.
    1. Jurisdictional Issues
    2. Ethical Issues
    3. Pointers for Legal/Ethical Attorney Websites

1. Identity -- The site should provide full and accurate information on the identity and contact information of the Provider. The person(s) or organization(s) responsible for the information on a site should be clearly indicated on all pages of the site. Full contact details should be provided including address, phone, and or e-mail address. A government agency or court may choose to omit a telephone contact or e-mail address, but, as a minimum, a mailing address should be listed.

Given that anyone may publish on the web, statements of authorship help users to make judgments about the authority of the legal information and advice they encounter within a site. Authority can be implied when the information comes from a recognized organization, such as a government department or community legal center. When the information comes from an individual or less well-known organization, stating the credentials of contributing authors will assist users in judging authority. This can be achieved simply by including qualifications or the position held, along with an author’s name. Sometimes, a search engine takes users directly to pages within a site. Providing authorship details on every page ensures that users can ascertain the organization or person responsible for the information.

2. Revision Date -- The site should conspicuously post the last date the content was revised. This law, the necessity of which should be obvious to everyone, is changing all of the time. The user should be able to make a judgment about how the current the legal content is.

3. Jurisdiction -- The site should clearly state the jurisdiction to which any information relates. Non-lawyers often have little or no understanding of the jurisdiction. They may be unaware that laws vary from state to state or in some cases from county to county. If a website displays legal content, which is generic in nature, it needs to make clear in a statement that this legal content may not apply in the user’s jurisdiction and that it is valid only in a specific jurisdiction. The same guideline should be applied when a legal website offers form documents. If the legal content is state specific, there should be a notice, which indicates in which jurisdiction the law applies. If the "jurisdiction" to which the law applies is listed in Meta tags, search engines will be accurate in identifying legal information that applies to particular states. The jurisdiction to which the legal content relates should be contained in a disclaimer in the footer of each web page. Some sites give either no, or at best obscure, jurisdiction details, resulting in users being misinformed.

4. Disclaimer -- The site should provide conspicuous notice that legal information on the site does not constitute legal advice. The site should remind users about the limit of legal information in resolving legal problems. There should be a notice on the site that defines the difference between legal information and legal advice and a warning to the user that the site does not constitute legal advice and is not a substitute for the professional judgment of an attorney. One purpose of these guidelines is to remind users that legal information, by itself, is often insufficient in terms of resolving a legal problem. Users often need specific legal advice that applies to their facts and only lawyers who are members of the bar in the user’s jurisdiction can provide legal advice.

Similarly, when a web site offers document preparation services by an "attorney," it should be made clear whether the site is offering legal services and under what specific conditions, or whether the document preparation service is provided by a non-attorney and, therefore, the attorney/client relationship is not created. It is deceptive; for example, to claim that "professionals" review documents when the professionals are not members of the bar where the client is a resident. In some jurisdictions, document preparation by a non-attorney may constitute the unauthorized practice of law. These notices should be conspicuous to the user.

There are some web sites that advertise that the user can chat with a "lawyer" without making clear that the lawyer is providing legal information only and not legal advice. Laypersons are usually not aware that only an attorney who is a member of a bar can provide legal advice and the attorney can only provide legal advice about the law in the state in which he or she is a member of the state bar association. Users may believe that a "chat" with an attorney is the equivalent of receiving legal advice. Legal websites that offer this service should make it clear that the information to be given is not "legal advice," that it is "legal information only," and that this information can be provided by a non-lawyer such as a paralegal or even a trained legal information specialist. Typical disclaimers could contain the following text:

SAMPLES

"We are not a law firm. This web site and the legal information and legal documents it contains is not a substitute for the advice of an attorney."

Or

"Legal Information is not legal advice"

"This site provides information about the law designed to help users safely cope with their own legal needs. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation."

A thorough analysis of the difference between "legal information" and "legal advice" can be found in the article by John M. Greacen, formerly the Director of the Administrative Office of the Courts of the State of New Mexico, titled, "The Distinction Between Legal Information and Legal Advice: Developments Since 1995," at Management Information Exchange, Volume XIV, 2, Summer, 2000, and reprinted on the web at http://www.ajs.org/prose/greacen.htm. Also see discussion on the difference between legal information and legal advice on American Bar Association Find Legal Help web site at: http://www.abanet.org/legalservices/publicinfo.html

5. Links -- Where appropriate and available, users are directed to other quality sites and sources that contain related information. An annotation that briefly cites the authorship, content, or relevance of these sites enhances the usefulness of the link.

6. Legal Citations -- Where appropriate and available, the site should provides links to relevant case law and legislation in correct form. Links to underlying legislation and case law are very useful and support the authenticity and accuracy of the legal content displayed on the web site. The existence of such citations demonstrates to the user that the publisher has gone to the trouble of identifying the primary law source that supports the legal content displayed on the site. Not every legal information website will be able to achieve this goal, but it is a goal worth seeking because it supports the authoritative nature of the published legal content. When these links have been assessed for their relevance, the likelihood that users will find the information that they are seeking is enhanced.

7. Referrals -- Where appropriate, the site should provide users with information on how and where to obtain legal advice or further information. One purpose of these guidelines is to remind users that legal information, by itself, is often insufficient in terms of problem resolution. Users often need specific legal advice that applies to their facts and only lawyers who are members of the bar in the user’s jurisdiction can provide legal advice.

8. Permissions -- The site should obtain permission for content from other providers. The publisher of the website should have all appropriate permissions to use contents sourced from other providers and acknowledge the source of the content on the site.

Unless the content is acknowledged, there may be a breach of copyright and users will have a difficult time in assessing the quality of the content based on authorship. Framing the legal content provided by another legal information website creates problems as well. When a site is framed, the URL of the external site does not appear in the location box, which may cause users to assume that the information within the frame belongs to the original site. This may mislead the user into thinking that the information within the frame belongs to the original site. It also makes it difficult for users to make decisions about the authorship of the information.

9. Terms and Conditions -- The site should conform to best practice guidelines in informing site users of the terms and conditions of use. A "Terms and Conditions" or "Terms of Service," disclaimer, which defines under what terms a user is authorized to use the web site or to purchase products or services from the web site, should be conspicuously displayed and clearly inform the users about terms of services, refund policies, and methods of dispute resolution. The link to the "Terms and Conditions" statement should be "above the fold" and not located in a place that is hard to find or identify.

10. Privacy Statement -- The site should clearly state its privacy policy and its policy on security of communications. The site should have clearly worded privacy policies that address the potential use of personal information, including whether personal data is sold or transferred to third parties. For additional information on best practices in developing a privacy policy for consumer web sites, see generally, Federal Trade Commission, Policy Initiatives at http://www.ftc.gov/privacy/index.html.

Security, back up, and disaster recovery should also insure that the communications are private and not subject to unauthorized monitoring, even by authorized employees of the website publisher or the company that is hosting the website. When user communications are sent to the web site publisher, the user should be notified whether a secure protocol (SSL) is being used as distinguished from an insecure and open protocol.