Category Archives: Legal Ethics

Cloud Ethics Opinions

Bob Ambrogi notes, “The ethics of cloud computing remains an evolving area of law and research involving it needs constant updating.”

The energetic Mr. Ambrogi followed up by finding several cloud ethics opinions to supplement the ABA Legal Technology Resource Center’s list.

The bottom line looks good:

The good news here is that all 17 of the states that have considered the issue agree that lawyers may ethically use the cloud, provided they take reasonable steps to minimize risk to confidential information and client files.

Technethics or Same Old Ethics in Different Garb?

The Lawyerist article Astroturfing to Technethics, the New Vocabulary of Ethics explains several phrases gaining prominence as lawyers increasingly use technology. For example, “astroturfing” refers to phony positive user reviews.

In a comment, Carolyn Elefant takes exception to one of the terms, “technethics.” It arguably implies that technology creates a new standard for judging ethics conduct:

 [T]he ethics of social media are no different from ethics in the real world – the same rules apply in the ethics sphere. Once we start creating categories for special use rules, we make it more difficult for lawyers to use their discretion to evaluate the rules and determine how they apply – and instead, will have them wait for the bars to issue guidance, which as I’ve blogged at MyShingle is foolhardy.

Social Media vs. Client Confidentiality

Michael Downey’s article in the most recent issue of the ABA Law Practice Management’s Law Practice magazine raises an issue concerning the effects of social media on client confidentiality:

[T]he constant push for lawyers to post Internet content—blogging, tweeting and the like—substantially increases the risks to client information.

A great illustration of a lawyer generating Internet content to attract clients is Hunter v. Virginia State Bar, No. 121472 (Va. Feb. 28, 2013). In Hunter, a lawyer blogged about criminal cases he handled for clients without the clients’ permission.

A hearing panel found this unethical, but the Virginia Supreme Court reversed, concluding that a lawyer could report on publicly disclosed information at a client’s criminal proceeding without client consent. “To the extent [this] information is aired in a public forum,” the Hunter court explained, “privacy considerations must yield to First Amendment protections.”

Sign of the future? Hunter’s holding may be rejected as unpersuasive by other courts. Yet Hunter serves as a powerful reminder that lawyers and law firms may be inclined to promote their firms by revealing client confidences.

No doubt, social media create new ways in which lawyers can commit ethics violations, and new opportunities for them to do so. However, these pressures are not qualitatively different from those of years past. Unethical lawyers could always breach client confidences in articles, speeches, or even informal marketing pitches. Ethical lawyers didn’t then and won’t now.

Awareness of any intensified risks is great, and I commend Mr. Downey, but let’s be careful to avoid letting welcome conscience-raising descend into what Kevin O’Keefe has correctly described as “lawyers scaring lawyers from using social media.”

Lawyers and “Ghost Blogging”

Jim Calloway, Kevin O’Keefe and Sharon Nelson share opinions on the ethics of lawyer blogs using material not written by the lawyer, also known as “ghost blogging” a Digital Edge Podcast entitled Lawyers Swarm to Ghost Blogging, But is it Ethical? Digital Edge Podcast.

I don’t have a giant problem with law firms using marketing materials written by others. Vendors have been providing such materials for decades. To the degree a lawyer is presenting the blog as representing his unique insights, ghost blogging might be problematic in some situations.