e-Ethics Brett J Trout www bretttrout com

New Ethical Considerations l Websites l email l Referral Services and Law. Lists l CLE online 2

Websites 3

Lawyer “Advertising” Subject to restrictions on l Dissemination methods DR 2 - 101(B) l Biographical content DR 2 -101(C) l Fee information DR 2 -101(D) l Practice areas DR 2 -101(E) 4

Lawyer “Advertising” Subject to restrictions on l Recommendations re institution of litigation DR 2 -101(F) l Designation as legal clinic or center DR 2 -101(G) l Size of Disclosures DR 2 -101(H) 5

Not “Advertising” Communications or solicitations for business between lawyers l Communications between a lawyer and an existing or former client, provided the lawyer does not know, or have reason to know the attorney-client relationship has been terminated l 6

Not “Advertising” l Communications by a lawyer that are in reply to a request for information by a member of the public that was not prompted by unauthorized advertising by the lawyer 7

Old Rules Website=Advertising l Prior to February 15, 2002 l Websites had to comply with: l l DR 2 -101 (Advertising) l DR 2 -105 (Description of Practice Area) 8

New Rules l Hyperlinked webpages ≠ Advertising l If your Homepage complies l Hyperlinked webpages no longer subject to: l DR 2 -101 (except (D) and (F)) l DR 2 -105 9

New DR 2 -101 Information available through a hyperlink on a lawyer’s Web site shall not be considered advertising subject to DR 2 -101 and DR 2 -105 10

New DR 2 -101 A lawyer or law firm hosting a site on the World Wide Web shall display any notice required by these rules notice on the website’s homepage 11

New DR 2 -101(B)(5)(b) l Whenever rules require a disclosure or notice, the lawyer hosting the website on the WWW shall display the required disclosure or notice on the website’s homepage 12

Notice no longer required The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by Rule of the Supreme Court of Iowa. 13

Notice no longer required Memberships and offices in legal fraternities and legal societies, technical and professional licenses, and memberships in scientific, technical and professional associations and societies of law or field of practice does not mean that a lawyer is a specialist or expert in a field of law, nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered. This notice is required by rule of the Supreme Court of Iowa. " 14

New Rules l Homepage l. Still must comply with disclosure requirements l. DR 2 -101(D) Fees l. DR 2 -101(F) Institution of Litigation 15

Allowable Fee Information DR 2 -101(D) Initial Consultation Fee l Availability of Fee Schedule l Contingent Fee Schedule-Must disclose l l If % is before or after costs l Client liable for costs win or lose 16

Allowable Fee Information DR 2 -101(D) l Fixed fee or fee range l Must state Only if within described services l Must offer fee until new publication issues or 90 days 17

Institution of Litigation If communication seeks to advise institution of litigation l Must state bringing case solely to harass or coerce settlement could be illegal and could lead to liability for malicious prosecution or abuse of process l 18

Online Audio DR 2 -101(B)(5) l Single non-dramatic voice l Not voice of the attorney l No other background sound l 19

Online Video DR 2 -101(B)(5) l No visual display other than that allowed in print as articulated by the announcer l 20

Online Audio/Video l Appears to apply only to Homepage l Hyperlinked pages l Not “advertising” l Apparently not restricted in this manner 21

Articles and Other Materials Not on Homepage l DR 2 -104(A)(4) l l Lawyer may speak or write publicly on legal topics l Must not emphasize lawyer’s own professional experience or reputation l Must not undertake to give individual advice 22

Record Retention DR 2 -101(B)(6) l Lawyer shall preserve a copy of all information placed upon the World Wide Web for at least three years l Record names and dates of medium through which material appeared l 23

Optional Notices Website information does not constitute legal advice l Unsolicited emails l l Non-confidential l Do not create attorney-client relationship 24

Optional Notices Do not rely upon website information without independent verification as to its accuracy and timeliness l Acknowledging accessing webpages is a request for information l 25

Take Home l Homepage is advertising l Keep it simple l Include Menu for access to more information l Nothing unverifiable, emotional or relating to quality of legal services 26

Take Home l Webpages l Do not give specific legal advice l Do not create attorney/client relationship l Keep Copies l At least three years l Record dates and medium 27

email 28

Types of email l Non-sensitive information l No unique restriction on email communication l Sensitive information l Lawyer shall not knowingly reveal a confidence or secret of a client DR 4 -101 l Must obtain written client acknowledgement of risk of violating DR 4 -101 l Must obtain written consent from client to email sensitive information 29

Non-Sensitive Information Ethics Opinion 96 -33 l Pure exchange of information or legal communication with clients is an exception to Homepage regulation l 30

Ethics Opinion 96 -33 l Sensitive material transmitted via email l Must have written acknowledgment by client of the risk of violation of DR 4 -101 l Acknowledgment must include consent l Must be protected as agreed between counsel and client. 31

Sensitive Material l Question of fact Ethics Opinion 96 -33 l Determined on a case by case basis 32

Sensitive Material DR 4 -101 l Minimal Test l Information gained in the professional relationship l disclosure of which would be embarrassing to client l disclosure of which would likely be detrimental to the client or l that client has requested be held inviolate 33

Sensitive Material Client’s opinion alone insufficient l Client's judgment should be augmented by counsel's independent judgment l Best guideline would favor the most strict standards. l 34

emailing Sensitive Material This strategy not specifically approved l Send client initial non-sensitive email l Include text of DR 4 -101 l Include written statements in email l l Client acknowledges risking violating DR 4 - 101 l Client consents to email of sensitive information over the Internet 35

emailing Sensitive Material l Request client l Read email and respond l Not send sensitive information in response l Respond with “I agree” in subject line l Store client response l Digital back up l Hard copy 36

Encryption Highly sensitive information l Reason to believe higher likelihood of interception l l Defendant has demonstrated capability l Others may read email l Client’s Employees l Client’s IT administrator 37

Optional Header for All Client email The following e-mail and associated attachments (if any) are intended solely for use by the aboveidentified party. If you are not the intended recipient, please do not read, copy, store, disclose or utilize this communication in any manner. If you are not the intended recipient, please reply to this e-mail, stating you received this e-mail in error before deleting the e-mail and any attachments from your system. Thank you. 38

Storage and Destruction Back-up all critical emails l Coordinate email destruction with other document destruction programs l Make sure deleted email is deleted l 39

Referral Services and Law. Lists 40

Referral Services ≠ Impermissible Law. Lists = Permissible 41

DR 2 -103 Lawyers cannot recommend employment of themselves, their partners, or associates, as a private practitioner, to a non-lawyer who has not sought advice regarding employment of a lawyer. 42

DR 2 -103 Lawyers cannot compensate or give anything of value to a person or organization to recommend or secure the lawyer’s employment by a client, or as a reward for having made a recommendation resulting in the employment by a client 43

DR 2 -103 Lawyers shall not request a person or organization to recommend or promote the use of the lawyer’s services or those of a partner or associate, or any other lawyer affiliated with the lawyer’s firm, as a private practitioner 44

Prohibited Referral Services Attorney Find, Inc. 02 -05 l Ask the Expert 02 -04 l Lawpages. com 00 -07 l ACEPA 00 -03 l LAW PHONE 89 -42 l Lawstar 97 -16 l 45

Non-monetary fees also prohibited Giving “one hour free” coupon 00 -09 l Giving “$25 off title opinion” coupon 99 -15 l Collecting fees for referring clients to registered investment adviser 99 -04 l Allowing client to advertise your name 94 -22 l 46

Allowed Referral Services Iowa Bar Association DR 2 -103(C)(1) l Better Business Bureau referral program 95 -26 l 47

Law Lists DR 2 -101(C) No rule prohibits inclusion in reputable law lists and law directories intended primarily for the use of the legal profession whether in print or online 48

Law Lists DR 2 -101(C) A law list is "intended primarily for the use of the legal profession" if it does not act as a client referral service or engage in active marketing to the lay public. 49

Reputable Legal Directory ICPR Contains a list of lawyers or firms l Designated geographical areas l Only information permitted under DR 2101 l 50

Reputable Legal Directory ICPR l Lawyers’ information presented in same size and type l Information presented in a dignified manner l Sole purpose is to assist laypersons and lawyers in selecting a lawyer in the geographical area which it covers 51

Fee-based Directory Not reputable unless: Listing available to every practicing lawyer in the geographical area Listing available on the same terms and conditions as every other lawyer in the area. 52

Fee-based Directory Always permissible if: Received the formal written approval of the Iowa Supreme Court Board of Professional Ethics and Conduct; or Received certification of the Law List Committee of the ABA 53

Continuing Legal Education 54

CLE DR 2 -105(B) 55

For Each Field of Practice l 100 hours practicing in that area l 10 percent of practice of law in that area l 10 hours of CLE in that field l Must report in writing which CLE applies to which area of practice 56

Practice Limited to Practicing Primarily in l 400 hours practicing in that area l 40 percent of practice of law in that area l 15 hours of CLE in that field 57

Hardship Extension l. Must use Commission forms l. No more than six months 58

Iowa Online CLE Effective July 1, 2002 l Up to six hours per calendar year l Must be interactive l 59

Iowa Online CLE Live with online discussion forum; or l Computer-based transmission l l May be prerecorded l Must be interactive 60

Must be Interactive Not defined in rule l Determined by Commission l l Definition may vary over time l Interactive forum l Must review all prior questions and answers l Must answer new questions within two business days 61

Substantiation Requirement l Certificate of Completion l Activity ID l Signed l Dated l Attach to CLE Report 62

Additional Links l Ethics Opinions http: //www. iowabar. org/ethics. nsf/e 61 beed 77 a 215 f 6686256497004 ce 492!Open. View 63

Additional Links l Standards of Professional Conduct http: //www. iowabar. org/Webdocs. nsf/2 b 85 a 4 ea 12 f 4 bfac 8625669 d 006 e 27 ab/f 42 a 7 f 9 3 ca 4 c 7 a 6 a 86256 b 7 d 0064 a 0 bb!Open. Docu ment 64

Additional Links l Code of Professional Responsibility http: //www. iowabar. org/Webdocs. nsf/bc 60 9 ca 0 b 8 a 3642 f 86256 b 9 d 0069 e 9 c 8/5329 c 4 ace 20 f 3 da 986256 c 5 b 0071 a 3 b 2/$FILE/Co de%20 of%20 Prof. pdf 65

Thank You Brett J. Trout www. bretttrout. com 66