By Jabez LeBret
Remember when you could stroll down the street on a sunny afternoon, comfortable that you are not at risk of violating your client’s confidentiality? Thank you Internet for making things in life easier—including accidentally violating Model Rule 1.6 Confidentiality of Information.
This is not intended to scare you. Technology has positively impacted the practicing of law. What seems to be causing most of the problems is the new nature of our hyper-connectivity. The rules that govern a client-attorney relationship were developed over vast lengths of time. Email, social media, and the Internet have only been commonplace for about 25 years.
The key to success in this situation is preparation. Know where you and your staff are most likely to slip up and you can avoid making mistakes. Similar to your marketing and solicitation guidelines, awareness is often the best approach to avoid ethics violations.
Here are the three places every lawyer should be concerned about accidentally spilling the beans:
Websites That Allow Reviews
Most lawyers are going to get at least one bad review in his or her lifetime. But how you respond to this negative review can have a larger impact than the actual review. Seeing a negative review about yourself causes an immediate knee jerk reaction; where the hell does this person get off saying things like this in public?
Before you start violently writing your retort to this review, walk away from the keyboard. As the ABA points out, you should tread lightly when responding to negative reviews.
Avoid mentioning anything— zip, zero—about the actual person or case. Instead write a response to the negative review that you want other prospects and clients read.
Social Media Sites
We see a couple of areas within social media that lawyers say too much: responding to clients and posting about cases. When someone posts something negative about you on social media follow the above guidelines for responding to a negative review.
What about when you are involved in a case? A great example of how complicated this can be is Gulliver Schools, Inc. v. Snay.
Mr. Snay won a judgment against Gulliver Schools, all good so far. Then his daughter posted on social media that her dad won a case against the school. This is a violation of the non-disclosure included in the settlement. Why? Because Mr. Snay should not have told his daughter about the specifics of the case and the posting to social media by his daughter just brought this to light.
There are also moments where lawyers post specifics about clients, cases, judges, jurors. It seems these lawyers have lost their minds. A good rule of thumb is to just avoid posting about your cases.
Blind Carbon Copy
The BCC line in email is both a blessing and a curse (more often a curse, actually.) The New York State Bar Association recently made an ethics opinion that provides guidance on where and why bcc’ing your client might be a bad idea.
It is not an ethics violation to blind copy your client, but it could lead to one. The scenario in the opinion is simple; lawyer emails opposing counsel with a settlement offer and blind copies her client. The client replies all with information that taints the settlement offer negotiations.
Even though BCC can be convenient, lawyers should take the extra second to email his or her client separately. If for nothing else to protect clients from themselves and making costly mistakes.