Some Recent (and Ongoing) Developments in Legal Ethics

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society's webinar call. Today, June 22, we are having a CLE webinar to discuss some recent and ongoing developments in legal ethics. My name is Guy DeSanctis, and I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us William Hodes, Owner and President of The William Hodes Law Firm, and Judge Jennifer M. Perkins, Arizona Court of Appeals, Division One. Throughout the panel, if you have any questions, please submit them through the Question-and-Answer feature or the chat so that our speakers will have access to them for when we get to that portion of the webinar.

 

      With that, thank you for being with us today. William and Jennifer, the floor is yours.

 

William Hodes:  Okay. We have three separate topics and I'm going to start out with a discussion of latest developments with respect to Model Rule 8.4(g), which I am sure most people who are listening, or who are watching, are familiar with. This is far from the first time that that rule has been the subject of a webinar or a Teleforum, and that's even if you just limit it to The Federalist Society. Not only does the rule present a series of both constitutional and foundational policy issues, but it turns out that it's sort of the gift that keeps on giving. There seems to be a new development of some kind every four or five months -- five or six months.

 

      The brief history of it, which again, is probably familiar to many of you -- the rule was added to the existing Rule 8.4 -- Model Rule 8.4 -- by the ABA in August of 2016 after several years of contentious debate, much last-minute compromise. But by the end of 2020, only two states, which is Vermont and New Mexico, had adopted it verbatim and maybe another four or five or six, depending on how you counted, had adopted even a close version of -- or variation -- of it. And in those other cases, other than Vermont and New Mexico, the amendments that were made were eliminated or designed to address some of the chief criticisms that had been lodged against the rule. So, in a way, those aren't really adoptions of the rule, they are adoptions of the rule as a lot of the people who criticized thought that it should have been.

 

      During that same period, several state attorneys general issued opinions or warned their state supreme courts not to adopt this rule for their own states. Several state supreme courts or study commissions in various states explicitly rejected the rule and just went with their more generic anti-discrimination provisions that had been in many rules for a long, long time.

 

      So, here's a brief summary of the pros and cons -- the arguments pro and con to the rule which, for the first time as I just indicated, provided for enforceable and direct regulation of lawyers for sexual and other harassment or discrimination. But, for the first time, without reference to representation of clients or participation in the justice system. It was a more general code having to do with lawyer qua lawyer.

 

      The drafters -- the pros -- the drafters asserted, and included in the official comments, that this kind of misconduct, discrimination, harassment based on an array of factors—gender, race, religion, and many others—that this kind of misconduct required direct and special regulation beyond the civil rights laws that are applicable to people who are not lawyers because -- and this is a quote -- "that kind of bad conduct or bad speech undermined confidence in the legal profession and the legal system."

 

      And so it should be open, it was argued, to a self-regulating profession -- to self-regulate -- to make changes in the behavior, to make changes in the culture that were beyond that was applicable to other people. Now once restoring confidence in the profession or the rule of law itself was established as the state interest -- and I'm going to come back to the difference between state regulation and restrictions on what lawyers can do and private peer pressure and shaming, and moral suasion and so on -- once state interest justifying the regulation was restoring confidence in the rule of law itself, then the rule pushed beyond representation of clients, beyond engagement with other actors and justice system so as to include employment in law firms to bar association and law firm activities, including CLEs, social events, law firm picnics, the bar association meet and greet, and whatever it was, and with the explicit understanding that it would reach some conduct that would not be unlawful, would not be sanctionable, or whatever, if engaged in by non-lawyers.

 

      And proponents of the rule asserted that in order to accomplish the desired goal, it was necessary to also regulate verbal conduct in those other non-core, non-client settings where the words used -- and these were new definitions -- where words used were harmful or manifested, bias, or prejudiced. Moreover, sexual harassment in particular in the legal workplace should be punishable by bar regulation, whether or not it was "severe or pervasive" as is required, for example, in the federal civil rights laws.

 

      So, in order to restore confidence in the legal system and the rule of law, lawyers would be subject not only to broader regulation by a government agency, namely the state supreme courts in their states, but to a more demanding standard as well, and that was said not to be above, but one of the main features of why the rule was necessary.

 

      Now predictably, critics and opponents of the rule attacked along two main axis that were responsive to those two points. First, extending coverage to all things "related to the practice of law" left precious little that was outside of government regulation. Most things that lawyers do are related, in some way, to the practice of law and regulating in a more exacting fashion than for non-lawyers only made the intrusion into almost every aspect of lawyers' lives even worse. So, this particular form of governmental over-regulation critics, like me -- I'm certainly one of them -- said -- was based on the elitist notion that if a mechanic or an architect is prejudiced or makes off-color remarks in an informal setting, that is unfortunate. That's bad. It's not good for society. But that if a lawyer is similarly prejudiced, then that is a national disaster that really requires special governmental intervention.

 

      And by the way, again, as I’ve said before, the objection by critics is to governmental regulation and that kind of coercion is absent, of course, in the case of peer pressure or group shaming or shunning, all of which can be exhalatory, very effective, and so on. The discussion, or the charges that the critics were lodging, was that it was an overreach by a governmental -- by the big arm of the government.

 

      Second, because the prohibition against odious verbal conduct was included, there was a danger that constitutionally protected speech would be punished or chilled in a variety of out-of-court settings. And, again, I say everyone agrees, of course, that lawyers' speech is subject to some regulation that is -- that others are not subject to. Everybody agrees that the government could readily punish Johnny Cochran if he had said on TV, "Oh, yeah. O.J. Simpson confessed to me just last night." But that is a far cry from permitting punishment of "harmful or demeaning" speech at a law firm outing or CLE question and answer session or at the watercooler, or whatever. So that adds overbreadth and vagueness to the core First Amendment difficulty and especially, of course, in today's world where it seems like just about everything that anyone can say will trigger something or somebody.

 

      It doesn't mean that every remark will always be grieved, doesn't mean that everyone will be taken seriously by the authorities. But nonetheless, the fact that this is out there puts a [inaudible 12:19] on things. That was the argument that I, and many others, have made because it's chilling effect and you don't want to even have to take the response and the public opprobrium of having to -- the time and resources to respond to an overly sensitive grievance.

 

      So -- but now there were, as I said, almost like clockwork, there have been some interesting developments in the rule in addition to additional cases here and there. One of the most important, I think, was that in July of last year, 2020, the ABA issued Formal Opinion 493 -- which I think is in your materials -- to provide what it said was guidance on the purpose, scope, and application of Model Rule 8.4(g).

 

      But the opinion was unlike the preceding 492 opinions in that it really wasn't an explanatory document. It read like an advocacy document. I call it a response brief to the criticisms that had been lodged, and I’m in the process of co-authoring with Professor Margaret Tarkington a response to the opinion, which we are calling a reply brief, to keep up the adversary nature of the debate.

 

      Now, as a spoiler alert, I will just say that the ABA's brief was surprisingly weak as a piece of advocacy -- didn't mention several dozen Supreme Court cases that protect lawyers' speech and others. It used fairly weak strawman counterexamples and so on. But -- and I think he was quite naïve in saying, "Well, don't worry about the chilling effect because, after all, nobody's going to treat seriously a comment like, 'All Lives Matter' that's said in a CLE or sp.” And my response to that is, "do you want to be the one who is the test case to that?"

 

      Second interesting development was in -- there were others, but the one I want to highlight is that in December of last year the District Court for the Eastern District of Pennsylvania agreed with the assessment that the chilling effect, or what it called the sword of Damocles, was too great and that it was insufficient to simply trust bar regulators to quickly turn aside the inevitable complaints from over sensitive agreements. So, in the case called Greenberg v. Haggerty, the court enjoined -- and this was an on-its-face attack -- the court enjoined the Pennsylvania rule one day before it was to go into effect, even though the Pennsylvania rule, by the way, was one of those that had removed much of the most troubling, vague, and overbroad definitions. It didn't have a generic harmful definition, didn't have the generic derogatory or demeaning speech-language. But, nonetheless, the court thought that it was too chilling and enjoined it. Pennsylvania appealed to the Third Circuit but then dropped its appeal in March of this year.

 

      Finally, one other interesting development -- this is what I'll end with -- New York -- state of New York -- is on the cusp of final adoption of a competing version of Rule 8.4(g) and Connecticut just adopted a new version that will become effective on January 1 of 2022. The key distinctions in New York are that professional discipline -- government-sponsored discipline -- is limited to discrimination that is already unlawful under various federal or state provisions, and perhaps most significantly, harassment must be directed at a specific individual and must be severe or pervasive in order to violate the rule. And the text explicitly exempts public statements made in teachings, CLE presentations, and such, unless, of course, it's specifically targeted at members of the audience. Connecticut also requires targeting and explicitly exempts speech that is protected by the First Amendment.

 

      So, I believe that there is more than a decent chance, actually, that at least the no-targeting element to limit the definition of what counts as harassment or hate speech or whatever -- I think there's a fair prospect that that element at least will be accepted by the ABA which I think will go a long way towards alleviating the formal government-sponsored chilling effect of the cancel culture. In other words, a lawyer who makes improper, hateful, harmful comments, however you define them, in my view, can and should be subject to peer pressure, shunning, and so on, but should not be at risk of losing his law license or even having to fight for it. And I think that New York/Connecticut change might go a long way to at least reducing the temperature on that score.

 

      So, now I'll turn it over to Judge Perkins for some comments on lawyering in the electronic age which has also been the subject of more than a few CLEs in the past.

 

Judge Jennifer Perkins:  Yes. We will not be treading a lot of brand-new ground, but there have been developments in ground that's been percolating for a while.

 

      I'll just note there have been some chat comments about the materials. I don't have the answer, but I'm hoping that Guy or Nick or one of The Federalist Society folks can respond to you with regard to how you'll get the materials. We do have materials for you, though. We can assure you of that.

 

      So, I was going to start with good morning because it is morning here in the desert. But, I guess, happy afternoon to the rest of you. I have a lot of topics to hit. I'll do my best. We only have about 25 minutes for me. So my goal is not to plumb the depths of all of these topics but just to give more of a basic update.

 

      There have been some important recent ABA formal opinions in the area of technology in legal ethics. As you might imagine, technology, ethics, and the practice of law have been an interesting subject over the last 18 months in particular.

 

      Before I get going, I just wanted to say a quick thank you to the members of The Federalist Society's Professional Responsibility Practice Group executive committee, to David Lat of Original Jurisdiction, and to my own excellent summer externs and law clerks, all of whom provided me some assistance in preparing for today.

 

      So, here we go. First, responding to online criticism in the day of Yelp and such online venues, feedback and reviews of both lawyers and law firms are becoming more common. And that leads to the question: How do I properly handle a negative review? So, in, I think it was January of this year, the ABA issued Formal Opinion 496 -- and that should be in your materials -- you'll get them -- to give some guidance. So, our primary rule that we will look to is Model Rule 1.6 which requires that we -- as attorneys you maintain client confidentiality. The rule is quite broad -- prohibiting voluntary disclosure of any information relating to a client's representation, whatever its source, without the client's informed consent, implied authorization to disclose, or application of an exception to the general rule.

 

      Now, subsection (b)(5) provides a number of exceptions, but really only one would be applicable to online criticism. In other words, an online review forum is not a proceeding that allows disclosure for the purpose of responding to allegations in any proceeding concerning the lawyer's representation. It is also -- much as we might want to -- it is also not necessary to respond online in order to establish a defense to a criminal charge -- this is the language of the rule -- or civil claim against a lawyer based upon conduct in which the client was involved.

 

      So, as the opinion notes, a lawyer could respond directly to a person making such a claim, but making a public statement online is not a permissible response according to the ABA's Formal Opinion.

 

      So, the final potential exception could apply when the online criticism rises to the level of a controversy between the lawyer and client and responding online is reasonably necessary to defend against it. The ABA concluded that alone, a negative online review, because of its informal nature, is not a controversy between the lawyer and client within the meaning of the rule. So, no disclosure.

 

      Further, even if the online posting does rise to the level of a controversy, a public response is not reasonably necessary or contemplated in the rule to establish a claim or defense.

 

      Now, if you’re in Colorado, in 2019 the state issued an opinion finding that if the threshold answer is a yes, -- i.e., the criticism rises to the level of a controversy -- then the lawyer may ethically disclose limited confidential information. The Colorado Opinion urges caution in responding, and the ABA committee explicitly disagreed with that Colorado Opinion. So outside of Colorado, you really need to be very cautious in any sort of response that would disclose even very limited confidential information if that response is public.

 

      As an aside, the District of Columbia also came out differently on this question, but the D.C. rule is significantly different than the ABA Model Rule here.

 

      Here in Arizona we actually have an older opinion -- sort of pre-technology. It’s, I believe, from the early '90s -- pre-current technology. And our state bar concluded that a lawyer could agree to an interview and disclose confidential information to defend against accusations from a former client that that lawyer was incompetent and involved in a conspiracy against the client. The client had made accusations to the author of a proposed book and there were no pending or eminent legal proceedings, but in Arizona, that lawyer was permitted the opportunity to respond by way of an interview with that same author. So, there has been a little bit of discussion here about how that opinion might apply in this online age.

 

      The ABA has some best-practices suggestions. I do encourage you to look at the opinion in its entirety. But just to highlight a few of those, consider requesting that the host of a website or search engine at issue remove the post. You're not, through this process, allowed to disclose confidential information but if, for example, you're in a position to say that the post was inaccurate factually, or if you do not actually represent the person so they're not a client, you might have some success in getting the original post just taken down.

 

      The ABA and I urge you to resist the temptation to respond to the original poster. Typically, responses in one of these online forums just bump that post up and keep it at the top of the list, and they rarely convince the original posters to walk back their criticism. Now, you might consider asking if you can take the conversation offline if you think there might be a way to satisfy the person like, "Please contact me by telephone. I'd be happy to discuss your concerns." And then, finally, if the original poster is not or was not a client, it's possible you might consider just stating that fact in response, which could mitigate a little bit.

 

      Again, this is ABA Formal Opinion -- let me find the number again – 496, issued, I believe, in January of 2021. It should be in your materials, and I do commend it to you if you are struggling with online criticism or negative comments in some online forum.

 

      Now, let's talk about working remotely outside your state of licensure. This CLE itself is a picture of what the last 18 months or so have looked like for many of you in terms of remote work, which has given rise to a common question: Can you practice the law of a jurisdiction in which you are licensed while you are physically located in a jurisdiction in which you are not licensed? This has come up historically in some sort of predictable patterns. There was a notable ethics case from a number of years ago of an attorney licensed in New York, practicing New York law from Florida and some of the restrictions on that. But this year, in particular, we’ve had some more interesting questions.

 

      And so, in December of 2020, the ABA issued Opinion 495 and they tell us, the basic rule is lawyers may ethically engage in this sort of remote practice, but you need to pay attention to your circumstances. So, the ABA declined to reach the legal conclusion whether working remotely by practicing the law of one's licensing jurisdiction in a particular jurisdiction where one is not licensed constitutes the unauthorized practice of law.

 

      So, the ABA did not reject outright the possibility that there could be a finding of unauthorized practice of law. What the committee did is say, absent a local determination -- sort of a prospective determination that this sort of remote practice constitutes unauthorized practice of law, then you should consider yourself free to practice that law pursuant to the jurisdiction in which you are licensed even from a separate physical location where you are not licensed.

 

      So, bottom line there, if you are engaged in this sort of practice, you ought to look up what the unauthorized practice of law restrictions are in your physical location jurisdiction just to make sure they haven't reached such a finding. I'm not aware of a significant proliferation of decisions to that effect, but I believe there are some disciplinary cases -- historical disciplinary cases -- like the Florida one that I mentioned, that should give pause. I know there was also one out of Ohio with an Ohio/Kentucky lawyer. And so it's worth doing a little bit of research.

 

      And really, the key here is don't do anything -- if you're engaged in a remote practice, don't do anything that could – so, look at Model Rule 5.5(b) -- you should not be establishing an office or holding out to the public or otherwise that you are admitted in that physical jurisdiction. So, you shouldn't have that local address on websites, letterhead, business cards, advertising, and so forth, anything that would imply or potentially leave the implication that you are actually licensed in your physical location jurisdiction. You have a bit of comfort in Arizona, Maine, New Hampshire, and Utah, specifically. They have each expressly acknowledged that it is not the unauthorized practice of law to practice remotely. I did not -- I can't say I bottomed out -- but I did not see other states that have made that affirmative determination in a quick review.

 

      Okay. So, it looks like somebody has -- I'm trying to keep a little bit of an eye on the comments -- somebody -- James Folen (sp) notes there is a Florida Supreme Court opinion from 2020 affirming remote practice. So, you're good in Florida as well, it sounds like, but you might want to look at that opinion for any particular parameters.

 

      So, another factor of the digital age we find ourselves in are data breaches. We are -- data breaches, cyberattacks, are not exclusive to the federal government or important gas pipelines. As custodians of substantial sensitive information, law firms are a temptation to hackers, and we should be prepared for that. In 2017, the ABA issued and then revised a formal opinion that was sort of step one of this analysis directing that lawyers must use reasonable efforts when communicating client confidential information using the internet. So, in terms of your prospective obligations about how you communicate while using client confidential information -- that's opinion 477 -- are the revised version from 2017.

 

      Today I want to focus on the follow-on opinion, 483, and the ABA took up sort of the follow-up question: What are your obligations as an attorney -- what are your obligations as an attorney when a data breach exposes client confidential information or may have done so?

 

      So, we are speaking here just about the ethical obligations and so I want to note that we're not taking up privacy laws or other statutory or common law schemes that may apply in a potential data breach situation. And the ABA's treatment of this issue took 16 pages, and I'm already running behind on time a little bit. So, although I am a fairly ruthless editor, as some will tell you, I'm just going to hit some of the highlights of the opinion. Again, the number is 483 if you want a more detailed look.

 

      So, a thread through the rest of my presentation is our Model Rule 1.1, Duty of Competence. I think we're probably all -- or maybe hopefully all -- familiar with the updates that occurred in 2012's model rule -- new comment acknowledging that maintaining competence necessarily requires a lawyer to keep up to date on basic features of relevant technology. So at a minimum, lawyers should understand the technology being used to deliver legal services to their clients. And then you must use and maintain the technologies in a manner that will reasonably safeguard property and information that has been entrusted to you.

 

      So, what is a data breach? Not every possible episode involving data constitutes a data breach that triggers ethical obligations. The ABA tells us, for their ethical framework, a data breach occurs when material client confidential information is misappropriated, destroyed, or otherwise compromised, or when a lawyer's ability to perform the legal services for which you’ve been hired is significantly impaired by whatever the episode is. So, for example, if you’ve been locked out of all of your data, even if it has not been misappropriated or destroyed, that would constitute the kind of data breach that starts to give rise to obligations.

 

      Model Rules 5.1 and 5.3 require lawyers to ensure your firm has policies and procedures in place that provide reasonable assurance that all lawyers and all staff conform to the rules of professional conduct. So applying that, coupled with your competent and supervision obligations as an attorney, we conclude that lawyers must employ reasonable efforts to monitor the technology and office resources, things connected to the internet, external data sources, external vendors, any services that your office is providing related to the data and the use of data. So in other words, your ability to identify the existence of a breach, whether action is warranted, whether employees and vendors are adhering to cybersecurity policies, etc. -- none of that should be left to happenstance. You should have prospective reasonable policies in place that you will identify promptly and detect any kind of breach.

 

      Now to be clear, the failure to immediately detect a breach is not the touchstone of an ethical violation. But you're going to need to be able to demonstrate that you undertook reasonable efforts to avoid data loss or to detect cyber intrusion on an ongoing basis. Some lack of reasonable effort will lead in the direction of an ethical violation.

 

      So, let's say you have detected -- or you're suspicious that a breach occurred of protected client information. Rule 1.1 requires that you act reasonably and promptly to stop the breach and to mitigate damage. So this is situation-dependent. And you may want to have in place some type of incident response plan—specific plans, procedures, key members of a team to address the possibility of this—particularly if you are a high-profile lawyer or law firm. The elements of a plan like that that you'd put in place -- things I would suggest that are listed in this opinion -- identify and evaluate any potential network anomaly or intrusion, assess the nature and scope of such intrusion, determine whether any data or information was accessed or compromised, quarantine, -- be in a position where you can quarantine a threat or malware -- and prevent the exfiltration of information from your firm, have in place a plan for eradicating malware and restoring the integrity of your network.

 

      Again, you may want to consider putting together an incidence response team -- some folks that are tasked with being prepared to step in and implement these steps to make sure that data can be either restored or further secured. You need to do what you need to do to be promptly in a position to continue servicing the needs of your clients. Not just the clients whose data was breached, but other clients who are depending on you.

 

      And, of course, you're going to want to do a look-back at what occurred so that you can make accurate disclosure to the client. So, you have duties of communication and honesty under Model Rules 1.4 and 8.4. Let's look at the duty of confidentiality for just a moment. Since 2012, Model Rule 1.6(c) requires specifically that a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

 

      So, reasonable efforts -- factors guiding whether your efforts are reasonable are the sensitivity of the information. Obviously, more sensitive information needs to be treated more carefully. The likelihood of disclosure if traditional safeguards are not employed. The cost of employing additional safeguards. The difficulty of implementing the safeguards and the extent to which any safeguards may adversely affect your ability to represent clients. Again, the test is reasonableness, so you shouldn't be taking steps that make it not possible for you to effectively represent your client.

 

      So, in the case of a data breach, a big question would be: When do you need to provide notice and what type of notice do you need to provide to a client? Under Model Rule 1.15, which talks about -- gives rise to our record retention requirements -- you may have obligations to both current and former clients. So, Model Rule 1.4 generally addresses your communications with current clients and directs that you must keep the client reasonably informed about the status of the matter and explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

 

      So, the ABA concludes that your obligation to communicate with current clients exists if there is a data breach. So, if there is a data breach that did occur or that there is a substantial likelihood that one occurred involving material client confidential information, you have to notify that current client.

 

      Now, Model Rule 1.9(c) talks about maintaining confidentiality of information relating to the representation of a former client. So, there's no direct guidance in the rules regarding the unauthorized access, disclosure, or destruction of confidential information with regard to a former client. And the ABA committee declined to opine that you have any existing obligations with regard to former client's information notification obligations in the absence of a Black Letter Provision requiring notice.

 

      So, I would suggest, and the opinion does, as well, that as a matter of best practices, you might want to consider reaching agreements with clients before you conclude representation as to how you will handle electronic information in your possession and what might trigger any notification obligations. And, at a minimum, every firm should have a clear paper and electronic document retention policy that you consistently follow.

 

      And again, just to reiterate, this is -- I am speaking about your potential obligations under ethical rules. You may be under affirmative notification obligations by virtue of data privacy laws, common law duty of care, other contractual arrangements that you have reached for the client. Now, I think I noted this, but the nature and extent of your communication with either a current or former client is certainly situation-dependent. The ABA Opinion notes, "If a post-breach obligation to notify is triggered, the lawyer must make the disclosure irrespective of what type of security efforts were implemented before the breach." And your disclosure must be sufficient for the client to make an informed decision about what he should do next, if anything.

 

      At a minimum, you need to be prepared to communicate that there has been an unauthorized access to or disclosure of information or that you reasonably suspect that that access has occurred. And very key -- if personally identifiable information of clients or others is compromised, you should evaluate potential obligations under state and federal law. I think all 50 states, District of Columbia, Guam, Puerto Rico, Virgin Islands -- all have statutory breach notification laws. So, you should be aware of those if there is a breach.

 

      And I can't leave this topic without commenting on behalf of my IT guy husband. I would just strongly encourage that whatever you have in terms of an IT guy should be involved in your planning if you're putting together a response team so that there is communication between the legal and technical sides of your firm.

 

      All right. I am going to have to just kind of short shrift the last two subjects, but we'll talk very briefly about interactions on social media which is a nice lead-in from where we've been. It's amazing how fast things have developed. The universe of social media platforms is ever-expanding. It's outpacing the ability of ethics police to contemplate the boundaries of our appropriate use. When I first became involved in judicial ethics less than a decade ago, Arizona issued an ethics opinion concerning judicial use of social media primarily directed at Facebook, blogs, LinkedIn, a little bit of a touch on Twitter.

 

      Since then, there are platforms such as Instagram, Reddit, TikTok, Snapchat, Nextdoor, Parlor, WhatsApp, WeChat, Tumblr, Clubhouse, Gab, Twitch, Quora, Discord -- you get the picture and I'll stop. But there are dozens, if not hundreds, more. So, the realm of both potential benefits and pitfalls presented by participation in social media is massive.

 

      A few just quick suggestions. There is an intersection between technology and your duty to maintain competency. You should, by now, have concluded that you cannot be a Luddite and maintain your competency as a practicing lawyer. Not all states have adopted the updated comment to Rule 1.1 explicitly requiring you to be up-to-date with technology, but we're up to at least 35 -- I think it may be more than that now. So, even beyond a specific ethical requirement for you to understand what's out there in technology, you're not going to serve your clients well if you are not at least conversant in the basics of social media use. And this is especially true for our litigating attorneys who have -- I would argue -- even an affirmative duty to be familiar with the use of social media sites as an investigative tool. How else are you going to be able to track exactly when your client undermines your cases if you're not monitoring their social media use?

 

      You should always assume that ethical rules you're familiar with that govern your communication through traditional means apply equally in the online social media world. Don't lose sight of the communication guidelines in Model Rules 3.5, 4.2, 4.3. Govern your online conduct the way you would your in-person or telephone or letter-type conduct.

 

      There is not a consensus among states about the precise contours of using social media as an investigative tool, at least when we're talking about publicly available social media profiles. So, it's very important to remain up to date on guiding ethics opinions at your local level. For example, in 2012 in New York, the state issued an opinion that it is only proper for an attorney to view a juror's public social media profile if the juror will not be alerted that you have taken that view. But in contrast, in 2014 the ABA reasoned that such investigation is not inappropriate even if the juror learns of it. That juror finding out about this doesn't turn it into a prohibited communication. So, the extent of permissible interaction between attorneys, parties, witnesses, jurors, judges, is very platform-dependent, state-dependent, and context-driven.

 

      So, I just urge you to look at your local restrictions. There are a great deal of ethics decisions and opinions out there.

 

      This should be an obvious tip, but I'll just throw it out there. Do not use, ever, a false identity to gain access to a party's private social media information. There's a surprising number of disciplinary cases involving some use of deception to try to gain access to information that's behind some type of privacy limitation on social media. So, I'd stay away from that.

 

      And I don't think I'm really going to get to using artificial intelligence, which is sort of a good next step in this discussion, but I'll just note two quick things. Artificial intelligence is becoming a more and more prevalent tool in the research toolbox. So, again, think about your duties of both competency and supervision in using these.

 

      And I'll just recommend that you do a Google search. David Lat wrote a great article with some very helpful information and tips called "The Ethical Implications of Artificial Intelligence." So, if you Google that, you'll get some of the information that I was planning to share with you. But I'm cutting into Bill's time now for his final topic. So, I will be quiet and see if there are any questions that I need to answer.

 

William Hodes:  Okay. Thanks a lot. Before jumping into the last topic, which is Model Rule 1.2(d) and a very good ABA Formal Opinion 493 on it -- now, when you finally get a chance to look at Opinion 493, it's very straightforward in how it approaches the topic and so I'm just going to give some of the background and let you read the excellent advice and examples that they give.

 

      Model Rule 1.2(d) prohibits lawyers from knowingly -- and that's the key -- counseling or assisting clients -- and that includes potential clients, as well, from engaging in crime or fraud. I’ve always taken the view that Rule 1.2(d) really embodies one of the two or three most, at the core, propositions in all of the law of lawyering. It says, "Look, lawyers function as loyal and skilled agents of clients within the bounds of law, but they are simply unavailable. They are not for hire as partners in crime or facilitators of fraud --" no matter what you've seen on TV, no matter what you've read in books. That is an absolute core proposition.

 

      Now, several other rules that are important in their own right are also closely linked to Rule 1.2(d). In particular, in order to avoid assisting client fraud, a lawyer is obligated to decline representation, or to withdraw from representation if it has already begun, if the lawyer comes to the conclusion that, "now I know that client crime or fraud is afoot," in order to prevent or rectify client frauds or client crimes in which the lawyer's services have initially unwittingly been used but now the lawyer knows about it. Another absolutely core rule, which Judge Perkins already mentioned, the confidentiality rule, is subject to exceptions in that situation. Some information that would have been absolutely protected by client confidentiality, that's Rule 1.6, can now be, to a limited extent, disclosed in order to prevent harm or rectify harm in which the lawyer's services have been used. And there are even situations in which it is mandatory for a lawyer to disclose information that will protect the non-client from that kind of harm and to extricate the lawyer from possible liability for complicity.

 

      The main contribution of Formal Opinion 493, beyond confirming these well-known propositions, is a laser focus on the point that Rule 1.2(d) only applies and only brings all of those other consequences along with it if the lawyer knows or is knowingly counseling or assisting with the client crime or fraud. And thus it is a replay of one of the great classics in all of lawyering which is: what does a lawyer "know?" And how do we prove that the lawyer knew what we say that the lawyer knew?

 

      Now, over the years, there have always been significance to claim, "Well, look, lawyers don't really know anything. They are supposed to listen to their clients, trust their clients, and it's up to other people, such as the jurors, to figure out what is really going on, such as whether the clients are lying under oath. That's not for the lawyer to decide. That's for the jury to decide." But the ABA Opinion will have none of that thrusted aside.

 

      Knowledge is defined in the rules as actual knowledge with the crucial follow-on, which I think everyone is familiar with -- that knowledge -- actual knowledge -- may be inferred from circumstances. And it has long been held that one of the circumstances that's relevant in this context is that lawyers are university graduates, they're especially trained in analytical and critical thinking, they are accustomed to following through, thinking through -- well what of the consequence -- I observed this, the client is not really answering questions, though a client is unclear about where money came from, and so on.

 

      And so lawyers are particularly able, indeed, to know things as opposed to not being able to know things. Sure, they have to give -- you have to give the benefit of the doubt, you have to think it through, but in the end, lawyers are better able to know things, important things like this, than others.

 

      So quickly, ABA Opinion 493 -- I think I said it backwards before -- it's 491 -- to a thoughtful discussion full of practical examples of what would cause a lawyer to suspect that there is wrongdoing afoot. What steps must be taken either to confirm suspicions or to allay the fears? And many of these examples, by the way, parallel developments in banking and related fields with respect to preventing money laundering and terrorism financing.

 

      Now, I will just end with this thought, which is prominent in the opinion, because we are running out of time. And that is that this kind of inquiry is very uncomfortable because it cuts against this idea -- this notion that, well the lawyer and the client have this special bond, which they do. The lawyer is the client's special champion as against all the world. But it's also the case that at some point it is unacceptable, under the rules and under common morality and good citizenship, for a lawyer to one hundred percent just hide the head in the sand, in particular, because everywhere in the law, -- not just in law of lawyers, but everywhere -- deliberate avoidance of knowledge is the same as knowledge. And, therefore, what has sometimes been referred to as a Miranda warning to clients under Rule 1.4 of communicating with clients, or sometimes referred to as a client audit is in these very -- not very common, but nonetheless, not unknown -- really is – it’s an inescapable duty and requires lawyers make judgments to follow through. If the story gets better and better, that's wonderful. If it gets worse and worse, you have to press more and more and can't just back off, and so on.

 

      And then the final thought, which is that a searching inquiry, a reminder about what lawyers will not do for clients, and a sober statement of what will happen if the rare, dishonest client will not stand down -- that's the -- I either will disclose or I may have to disclose something -- that can lead to a change of heart on the client's part or, at least, a change of plans. And, in my view, -- and I think you can find some thought in the opinion -- that can be the epitome of the most loyal and the most competent service that a lawyer can actually provide to dissuade the client from crime or fraud rather than simply being the policeman or the investigator.

 

      So --

 

Judge Jennifer Perkins:  There are two --

 

William Hodes:  -- that’s all we have on the [inaudible 00:54:51] --.

 

Judge Jennifer Perkins:  -- questions in there.

 

William Hodes:  Okay.

Judge Jennifer Perkins:  I'll just comment real quickly on the AI with regard to federal regulatory framework -- that's outside the realm of what I have prepared. This is specific to ethics rules, so I can't really comment on federal regulatory framework with regard to -- or use of artificial intelligence, but I did put a link to the article in the chat. So, if you'd like to see the bounds of what David spoke about.

 

      And then, Bill, it looks like there's a question about the due diligence. What is the measure of due diligence a lawyer is required to perform to determine whether a lawyer is assisting crime or fraud? How far does one have to go?

 

William Hodes:  Right. And I wanted to comment on that and then one other comment that I saw before and then we'll have to go. That is, indeed, very much a question of how far a lawyer has to go. How far do you have to push? At what point do you have to give the client the benefit of the doubt and back off so that you don't destroy the lawyer-client relationship?

 

      Unfortunately, the only answer you can give to that is it's a matter of the lawyer's judgment and it's how -- why being a lawyer is very hard and requires really thoughtful, troubling, internal struggles, struggle with the client, and so on. And it's why I said, yes, it only applies when knowledge is there, but lawyers, because they are accustomed to and required to think things through and engage in that is that lawyers are -- that's part of the great difficulty, but also the great, I think, achievement of being a thoughtful lawyer that's really conscious of these things.

 

      One other comment back on Rule 8.4(g) -- someone made a private comment pushing back on my theme that if you have private shunning of lawyers who are using hate speech or discriminatory or nasty speech, or whatever, how is that any better -- that in today's world that can be -- who defines what's unacceptable and what's bad and so on?

 

      And my response to that is that I agree that just because it’s only private people doing it doesn't mean that there won't continue to be sharp, sharp disagreement about what is acceptable, what counts as hate speech, and what counts as harassment, and so on. But my response to that other questioner is that in the context in which it's not the government doing the defining, the one who has been charged with inappropriate or harassing-type speech has the opportunity to push back, in turn. And so that there can actually be -- in a separate article that I have in the works -- I'm saying that actually one of the problems with 8.4(g) is precisely that it takes this kind of peer-to-peer moral suasion and moral growth, in my opinion -- it takes it out of the hands of the lawyers and puts it into government hands where I think it is less effective and also less appropriate.

 

      And, let's see -- probably The Federalist Society needs to come in because we are just about out of -- we're passed the time. I don't know whether there's any magic witching hour, but --.

 

Guy DeSanctis:  Thank you. On behalf of The Federalist Society, I want to thank our experts, William Hodes and Judge Jennifer Perkins, for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by e-mail at [email protected]. As always, keep an eye on our website and your e-mails for announcements about upcoming Teleforum calls and virtual events.

 

      Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.