The increased use of technology makes it imperative that lawyers be well-versed not only in technology but also in the issues that may arise with the use of technology. The Rules Regulating The Florida Bar and various Florida Bar ethics opinions set forth guidelines and limitations of the use of technology.
Creating Inadvertent Relationships
Lawyers should not give off-the-cuff advice via social networking sites or other electronic communication, particularly specific advice in response to online questions, to avoid inadvertently creating a lawyer-client relationship. Ethics rules do not create lawyer-client relationships; instead, they guide the lawyer’s conduct once the relationship has been established. Whether a lawyer-client relationship has been established is a legal and factual matter based on the reasonable, subjective belief of the person seeking legal advice or services, not the lawyer’s intent or belief.
Lawyers may provide legal services over the Internet, as long as the services do not require in- person consultation with the client or court appearances (See Florida Ethics Opinion 00-4). All of the Rules of Professional Conduct apply to representation over the Internet, including diligence, competence, communication, confidentiality, conflicts of interest, etc. (Id.). Florida Ethics Opinion 00-4 was written before adoption of Rule 4-1.2(c), which permits limited representation as long as the limitation is reasonable under the circumstances, is not prohibited by law or rule, and the client gives informed consent in writing. Rule 4-1.2(c) applies if the Internet representation is a limited form of representation.
Many lawyers treat confidentiality as synonymous with privilege, but the two are distinct, and confidentiality is much broader. A lawyer may not disclose any information relating to a client’s representation, regardless of the source, without the client’s informed consent (with limited exceptions) (See Rule 4-1.6). For resources on how to keep information secure, see the Records Management section.
Many confidentiality issues relate to electronic communications. For example:
- Lawyers who use cloud computing must take appropriate care to ensure confidentiality of client information (See Florida Ethics Opinion 12-3).
- Lawyers who use electronic devices such as printers, copiers, and scanners should be aware that those devices can store data and take appropriate steps to secure client information (See Florida Ethics Opinion 10-2).
- A lawyer who uses electronic forms of communication should take care not to inadvertently provide confidential client information via metadata (see section on metadata below) (See Florida Ethics Opinion 06-2).
- When a lawyer outsources paralegal services, communication often occurs via electronic means. The lawyer should take appropriate steps to ensure confidentiality of client information, including investigating any non-lawyer services to be used and appropriately supervising the non-lawyers involved (See Florida Ethics Opinion 07-2). Consider a secure client portal when using outside services.
Inadvertent Disclosure via Metadata
Metadata is information about a particular document or data set that describes how, when and by whom it was created, modified and formatted. It helps users revise, organize, and access electronically created files. Lawyers who send documents electronically (outside the discovery context) should take appropriate steps to prevent the disclosure of confidential client information via metadata (See Florida Ethics Opinion 06-2). Lawyers should not “mine” the metadata of documents sent to them electronically (Id.). Lawyers who receive information inadvertently via metadata (e.g., tracked changes and comments) that were clearly not intended for them must notify the sender of the receipt of the information (Id.). After the adoption of Florida Ethics Opinion 06-2, Rule 4-4.4(b) was adopted, which states:
(b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.
The comment provides further guidance:
Subdivision (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this rule, “document” includes email or other electronic modes of transmission subject to being read or put into readable form.
Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 4-1.2 and 4-1.4.
Microsoft Word documents can contain the following types of hidden data and personal information:
- Comments, revision marks from tracked changes, versions and ink annotations.
- Document properties and personal information.
- Headers, footers and watermarks.
- Hidden text.
- Document server properties.
- Custom XML data.
In Microsoft Word, the Document Inspector can be used to find and remove hidden data and personal information in Word documents. Refer to the help function to search for instructions specific to a particular version of Word.
Impugning Integrity of Judges
Electronic communications create the possibility that lawyers may impugn the integrity of a judge, which is prohibited under the rules. Social media and blogging in particular create a situation in which lawyers may post information without thinking about the potential consequences (See Rule 4-8.2 and The Florida Bar v. Conway, Case No. SC08-326 (2008)).
Communication with/Investigating Witnesses
A lawyer generally may view the public social networking pages of a witness. A lawyer generally may subpoena the social networking page of a witness (See New York City Ethics Opinion 2010- 2). A lawyer may or may not be able to “friend” an unrepresented witness using the lawyer’s own name and profile. Although at least one state has taken the position that a lawyer may do so, The Florida Bar’s Professional Ethics Committee has not addressed the issue and may take the position that any friend request would have to clearly indicate that a lawyer is making the request in a representational capacity (See New York City Ethics Opinion 2010-2).
Rule 4-4.3 prohibits a lawyer from “stating or implying the lawyer is disinterested.” A lawyer also “may not engage in conduct involving fraud, dishonesty, deceit or misrepresentation” under Rule 4-8.4(c), nor violate the rules of conduct through an agent under 4-8.4(a). Thus, a lawyer may not create a false social networking profile to “friend” an unrepresented witness to obtain information, or use an investigator to create a false profile to make a “friend” request (See New York City Ethics Opinion 2010-2). A lawyer also may not use an investigator or other third person to “friend” an unrepresented witness to obtain possible impeachment material, because use of the third party is deceptive (See Philadelphia Ethics Opinion 2009-02).
Communicating With Represented Persons via Social Networks or Other Electronic Means
A lawyer may access the public pages of an opposing party’s social networking site (See New York State Bar Ethics Opinion 843 (2010)). A lawyer may subpoena an opposing party’s social networking site pages, including private portions of the profile (See Romano v. Steelcase, Inc., 907 N.Y.S.2d (N.Y. Sup. 2010)). A lawyer may not make a “friend” request to high-ranking employees of a represented corporation that is the defendant in a lawyer’s case who have supervisory authority, whose statements can be imputed to the corporation, or who can bind the corporation. They are considered represented for purposes of the ex parte rule (See San Diego Ethics Opinion 2011-2; Rule 4-4.2, 4-8.4(c)). A lawyer would not be able to use an investigator to do so either (See Rule 4-4.2, 4-8.4(c) and 4-8.4(a)).
A lawyer should be careful about use of “reply all.” A lawyer should not assume that an opposing counsel has given consent to direct communication with the opposing counsel’s client merely because the opposing counsel has copied the opposing counsel’s own client on an email. (See Alaska Ethics Opinion 2018-1; Kentucky Ethics Opinion E-442; New York City Bar Opinion 2009-1 .) Lawyers should also not copy their own clients on email because it risks a client “replying all” and waiving lawyer-client privilege or confidences. A better practice is to blind copy a client on email or forward an email to the client after sending it to opposing counsel. (Id.)
Social Networking, Electronic Communication and Judges
Judges should be careful regarding social networking. In Florida, a judge who is a Facebook “friend” of a lawyer who appears before the judge is not necessarily subject to disqualification according to Herssein and Herssein, P.A. v. United Services Automobile Association, 271 So.3d 889 (Fla. 2018). However, in Herssein, a concurring opinion “strongly urge[s] judges not to participate in Facebook.”
Judges also should avoid the potential for ex parte communications – at least 1 judge has received a public reprimand for ex parte communications on Facebook with a lawyer for a party in a pending matter before him (See North Carolina Judicial Standards Commission 08-234).
Similarly, judges should avoid ex parte communications via email. Judges should consider not communicating via email to avoid accidental ex parte, but if a judge chooses to communicate via email, the judge should be careful to copy both parties or their lawyers. See In re Contini, 205 So.3d 1281 (Fla. 2016).
Judges should be careful regarding their campaign activities relating to social media. In Florida, judges’ election committees may have social networking sites that comply with campaign requirements and may allow lawyers to list themselves as “fans” as long as the committees or judges do not control who may list themselves as fans (See Florida Judicial Ethics Advisory Opinion 2009-20).
Social Networking and Mediators
In Florida, a mediator may “friend” lawyers and parties appearing before the mediator on the mediator’s social networking page and may become a “friend” on the pages of parties or lawyers appearing before the mediator. However, doing so may limit a mediator’s ability to handle future mediations, as “friending” may create an appearance that the party or lawyer can influence the mediator, and the mediator would therefore lack the required impartiality (See Florida Mediator Ethics Advisory Opinion 2010-001).
Social Networking and Jurors
Lawyers may view public portions of prospective jurors’ networking sites. However, lawyers may not “friend,” contact, communicate or subscribe to Twitter accounts of jurors. Lawyers also may not make any misrepresentation or engage in any deceit in viewing jurors’ social networking sites (See New York County Ethics Opinion 743 (2011); New York City Formal Opinion 2012-2). Lawyers must bring juror misconduct to the court’s attention following rules on court and juror contact (Id.; see also Rule Regulating The Florida Bar 4-3.5). Lawyers also should be mindful of any rules of civil or criminal procedure that address juror contact (e.g., Fla. Civ. Pro. 1.431(h), Fla. R. Crim. Pro. 3.575, which prohibit a lawyer from communicating with a juror after trial unless the lawyer has legal grounds, has filed a motion, and has obtained an order permitting the contact).
Juror misconduct during trials relating to social media includes: researching information on the Internet, posting real time information about ongoing trials, “friending” a defendant in an ongoing trial, and polling friends to determine the juror’s verdict (See, e.g., “Social Media, Jury Duty a Bad Mix,” Miami Herald, May 5, 2012).