Ethical Implications of Using the Cloud and the

Ethical Implications of Using the Cloud and the Internet 12: 00 pm – 1: 00 pm Presented By: Raffi V. Zerounian Appellate Defenders August 19, 2015

Presenter • Raffi Zerounian – Counsel at Hanson Bridgett LLP in Los Angeles and San Francisco • rzerounain@hansonbridgett. com • 415 -995 -5044 Raffi V. Zerounian © 2015 2

Law Practice and Social Networking Raffi V. Zerounian © 2015 3

Law Practice and Social Networking Raffi V. Zerounian © 2015 4

Law Practice and Social Networking: Bragbooking • “Case finally over. Unanimous verdict! Celebrating tonight. ” • “Another great victory in court today! My client is delighted. Who wants to be next? ” • “Won a million dollar verdict. Tell you friends and check out my website. ” • “Won another personal injury case. Call me for a free consultation. ” • “Just published an article on wage and hour breaks. Let me know if you would like a copy. ” Raffi V. Zerounian © 2015 5

Law Practice and Social Networking • Business and Professions Code section 6157(c) defines “advertise” or “advertisement” as: – [A]ny communication, disseminated by television or radio, by any print medium, including, but not limited to, newspapers and billboards, or by means of a mailing directed generally to members of the public and not to a specific person, that solicits employment of legal services provided by a member, and is directed to the general public and is paid for by, or on the behalf of, an attorney. • Rule 1 -400(A) defines “communications” for purposes of that rule as: “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client…” (emphasis added). – (1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or (2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or (3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or (4) Any unsolicited correspondence from a member or law firm directed to any person or entity. Raffi V. Zerounian © 2015 6

Law Practice and Social Networking • Specifically, rule 1 -400(D) provides, in pertinent part: – (D) A communication or a solicitation (as defined herein) shall not: (1) Contain any untrue statement; or (2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or (3) Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public; or (4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be; or (5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct. Raffi V. Zerounian © 2015 7

Law Practice and Social Networking • “Case finally over. Unanimous verdict! Celebrating tonight. ” Raffi V. Zerounian © 2015 8

Law Practice and Social Networking • “Another great victory in court today! My client is delighted. Who wants to be next? ” Raffi V. Zerounian © 2015 9

Law Practice and Social Networking • “Won a million dollar verdict. Tell you friends and check out my website. ” Raffi V. Zerounian © 2015 10

Law Practice and Social Networking • “Won another personal injury case. Call me for a free consultation. ” Raffi V. Zerounian © 2015 11

Law Practice and Social Networking • “Just published an article on wage and hour breaks. Let me know if you would like a copy. ” Raffi V. Zerounian © 2015 12

Law Practice and Social Networking: Judges as “Friends” ABA Model Code of Judicial Conduct • A judge… • Rule 1. 2 – shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety • Rule 2. 3 (A) – shall perform the duties of judicial office, including administrative duties, without bias or prejudice • Rule 2. 3(C) – shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment • Rule 2. 4(B) – shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s conduct or judgment • Rule 2. 9(A) – shall not initiate, permit, or consider ex parte communication. . . concerning a pending or impending matter • Rule 2. 10(A) – shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending before the court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing Raffi V. Zerounian © 2015 13

Law Practice and Social Networking: Judges as “Friends” ABA Model Code of Judicial Conduct • • Rule 3. 5(b) – A lawyer shall not: (b) communicate ex parte with [a judge] during the proceeding unless authorized to do so by law or court order Rule 8. 4(f) – It is professional misconduct for a lawyer to: (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law Raffi V. Zerounian © 2015 14

Law Practice and Social Networking: Judges as “Friends” • California Judges’ Association Formal Opinion No. 66 – Judges and attorneys who appear before them “may” be “friends, ” but “it is not permissible for the judge’ to interact with attorneys who have matters pending before the judge. ” • New York Opinion 13 -39 (May 28, 2013) – “[M]ere status of being a “Facebook friend, ” without more, is an insufficient basis to require recusal. ” – “With respect to social media relationships, the Committee could not “discern anything inherently inappropriate about a judge joining and making use of a social network” (Opinion 08 -176). However, the judge “should be mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge’s court through a social network. . . [and] must, therefore, consider whether any such online connections, alone or in combination with other facts, rise to the level of a. . . relationship requiring disclosure and/or recusal” (id. ). ” Raffi V. Zerounian © 2015 15

Law Practice and Social Networking: Online Criticism • Research Attorney for Appellate Court in Kansas – Tweets included: • “Holy balls, there are literally 15 cops here for the Phil Kline case today” • “You don’t think a sealed document is meant to be confidential. BURN. ” • She estimated that the man on trial, who was a lawyer on his own disciplinary proceeding, would be suspended for a period of 7 years. – “The overall tone of her comments revealed a disrespect for a litigant before the appellate courts as well as a disrespect for the Supreme Court panel hearing the case. ” – In a decision released this week, they recommended an informal admonishment and concluded attorney had violated several of the Kansas Rules of Professional Conduct. Raffi V. Zerounian © 2015 16

Law Practice and Social Networking: Online Criticism • Louisiana Attorney Encourages Social Media Campaign to Attempt to Influence Court – The attorney solicited others to make ex-parte contact with presiding judges and the Louisiana Supreme Court to make comments about the cases, which were sealed and confidential proceedings. – Tweets included the following • “GIMME Evidence! Want some? I got it. Think u can convince a judge to look at it? Sign this petition. ” • Judge. Gambrell at it again – turned a 4 YO child over to a validated abuser – PLEASE TELL ME WHAT IT WILL TAKE FOR EVERYON [sic] TO SAY ENOUGH” • “Please sign the petition, circulate it to all of your friends and families and call Judge Amacker and Judge Gambrell during the hours of 8: 30 to 5: 00 starting Monday, August 15 to ask why they won’t follow the law and protect these children. Let them know you’re watching and expect them to do their job and most of all, make sure these precious little girls are safe!” Raffi V. Zerounian © 2015 17

Law Practice and Social Networking: Online Criticism • • Attorney denied liability and claimed First Amendment protected her conduct. She also claimed to have been trying to help minor children. The Court disagreed: – “The appropriate method for challenging a judge’s decisions and evidentiary rulings, as respondent even conceded, is through the writ and appeal process, not by starting a social media blitz to influence the judges’ and this court’s rulings in pending matters and then claiming immunity from discipline through the First Amendment. ” – “Respondent’s misconduct is further distinguishable because of her use of the internet and social media to facilitate her misconduct. As a result, the petition and associated offensive postings had and still have the potential to reach a large number of people world-wide and remain present and accessible on the world wide web even today. Coupled with her complete lack of remorse and admitted refusal to simply allow our system of review to work without seeking outside interference, respondent’s misconduct reflects a horrifying lack of respect for the dignity, impartiality, and authority of our courts and our judicial process as a whole. ” Raffi V. Zerounian © 2015 18

Law Practice and Social Networking: Online Criticism • • Attorney denied liability and claimed First Amendment protected her conduct. She also claimed to have been trying to help minor children. The Court disagreed: – Respondent’s social media campaign conducted outside the sealed realm of the underlying judicial proceedings constitutes, in our view, an intolerable disservice to these traditions and our judicial system, which the constraints of our rules of professional conduct seek to safeguard against. Accordingly, we find her ethical misconduct warrants the highest of sanction—disbarment. ” – The Louisiana Supreme Court found that her misconduct “reflects a horrifying lack of respect for the dignity, impartiality, and authority of our courts and our judicial process as a whole. ” Raffi V. Zerounian © 2015 19

Legal Ethics in the Cloud • What is the cloud? – A communications network on the Internet. • What is cloud computing? – Using the Web server facilities of a provider on the Internet (i. e. , the “cloud”) to run applications. • What is cloud storage? – Storing or backing up data over the Internet. Raffi V. Zerounian © 2015 20

Use of the Cloud in Law Practice Raffi V. Zerounian © 2015 21

Client Files and Documents in the Cloud • A panel attorney places client documents in the cloud, where they can be readily accessed by the attorney from any location. • Does doing so have any ethical implications? Raffi V. Zerounian © 2015 22

Client Files and Documents in the Cloud • In California, attorneys have an express duty “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. ” (Bus. & Prof. Code, § 6068, subd. (e)(1). ) • Rules Prof. Conduct, rule 3 -100 & discussion provide: “[A] member may not reveal such information except with the consent of the client or as authorized or required by the State Bar Act, these rules, or other law. ” • Section 952 of the California Evidence Code, defining “confidential communication between client and lawyer” for purposes of application of the attorney-client privilege, includes disclosure of information to third persons “to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted. ” • Rule 3 -110(A) prohibits the intentional, reckless or repeated failure to perform legal services with competence. Pertinent here, “competence” may apply to an attorney’s diligence and learning with respect to handling matters for clients. (Rules Prof. Conduct, rule 3 -110(B). ) • The duty of competence also applies to an attorney’s “duty to supervise the work of subordinate attorney and non-attorney employees or agents. ” (Discussion to rule 3 -110. ) Raffi V. Zerounian® San Francisco 2013 23

Client Files and Documents in the Cloud • a) The attorney’s ability to assess the level of security afforded by the technology, including without limitation: – i) Consideration of how the particular technology differs from other media use. – ii) Whether reasonable precautions may be taken when using the technology to increase the level of security. – iii) Limitations on who is permitted to monitor the use of the technology, to what extent and on what grounds. • b) Legal ramifications to third parties of intercepting, accessing or exceeding authorized use of another person’s electronic information. • c) The degree of sensitivity of the information. • d) Possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product, including possible waiver of the privileges. • e) Client instructions and circumstances. Raffi V. Zerounian® San Francisco 2013 24

Inadvertent Disclosure and the Cloud • An attorney uses wireless at local coffee shop do to client work. • Does the attorney’s actions create any ethical issues? Raffi V. Zerounian® San Francisco 2013 26

Disclosure of Confidential Information and the Cloud • An attorney uses the cloud to store its data. A disgruntled former employee accesses the data and purposefully discloses confidential information. • Does the former employee’s actions constitute waiver of the attorney client privilege? Raffi V. Zerounian® San Francisco 2013 28

Disaster Recovery • A broken water pipe or catastrophe causes the loss of client data on a server. • Is there an ethical obligation to have a natural disaster plan in place? Raffi V. Zerounian® San Francisco 2013 30

Failure to Update • An attorney relies on firewall protection purchased in early 2006. During a long holiday weekend, the attorney’s servers are penetrated by a hacker. This results in the loss of all client information. Had the firm properly updated the security software, the intrusion would have been avoided. • Has the attorney violated any ethical obligations? Raffi V. Zerounian® San Francisco 2013 32

Transfer of Electronic Files • A client decides to retain new counsel. In transferring the file to successor counsel, the client and successor counsel demand the transfer of predecessor counsel’s electronic files, including electronic versions of emails correspondence, electronic versions of pleadings, and electronic versions of discovery requests and responses. • Must predecessor comply with the client and successor counsel’s request? Raffi V. Zerounian® San Francisco 2013 33

Transfer of Electronic Files • Rule 3 -700(D) of the Rules of Professional Conduct (“rule 3 -700(D)”) provides that, “[s]ubject to any protective order or non-disclosure agreement, ” an attorney “whose employment has terminated shall. . promptly release to the client, at the request of the client, all the client papers and property. ‘Client papers and property’ includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not. . ” (Rule 3 -700(D) & (D)(1). ) • The attorney must make such release of client papers and property at no cost to the client. Raffi V. Zerounian® San Francisco 2013 34

Electronic Discovery • • • What are an attorney’s ethical duties in the handling of discovery of electronically stored information? Rule 3 -110(C) permits an attorney to meet the duty of competence through association or consultation with an expert, including a non-lawyer technical expert. See Cal. State Bar Formal Opn. No. 2010 -179. Such expert may be an outside vendor, a subordinate attorney, or even the client, if they possess the necessary expertise. This consultation or association, however, does not absolve an attorney’s obligation to supervise the work of the expert under rule 3 -110, which is a nondelegable duty belonging to the attorney who is counsel in the litigation, and who remains the one primarily answerable to the court. An attorney must maintain overall responsibility for the work of the expert he or she chooses, even if that expert is the client or someone employed by the client. The attorney must do so by remaining regularly engaged in the expert’s work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e-discovery tasks at hand. The attorney should issue appropriate instructions and guidance and, ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI. Raffi V. Zerounian® San Francisco 2013 35

Thank you and please let me know if you have any questions. Raffi V. Zerounian Counsel Hanson Bridgett, LLP 555 S. Flower St. , Los Angeles CA 90017 415 -995 -5044 rzerounian@hansonbridgett. com Raffi V. Zerounian® 2015 36