I'm a professional "neutral"--arbitrator, mediator and ALJ--who is also an avid tweeter and blogger. What began as just one more way to try to build market presence quickly became something I intrinsically enjoy--although, as apparent from my increasingly sporadic by-line dates, I have more trouble finding time to do it as my business does grow!
At any rate, because of my involvement in various social media, I am especially sensitive these days to how the digital era is challenging lawyers and decision makers in many ways. The Facebook issue has been well trod by me and others, but new issues seem to arise every month, a couple of which I'd like to talk about.
First, online lawyer ranking services--what about them? You know, Avvo, LegalMatch and such. In the old days there was just Martindale Hubbell, a listing for which an attorney pays even more than legal research, hoping to be positively "rated" by their "peers" who can also afford the pricey service. Do new attorneys even know about Martindale Hubbell? For their bottom line’s sake, I hope not. At any rate, in today's era of cheap or free, and democratized web access, a number of ranking services have cropped up in the void left by the otherwise largely unaffordable and impracticable Martindale Hubbell.
Some attorneys and legal ethicists (and perhaps the old school competitors) have wondered if these new sites promote an indiscriminate and potentially dangerous exchange of favorable rankings among friends and peers. However, the AB Ethics 20/20 Commission has studied the matter and concluded that whatever your personal views, there is no evidence that anyone has been caused harm by these ranking sites. Accordingly, the ABA has taken a "hands-off stance" towards them. See James Podgers, "Letting Them Be," ABA Journal, Oct. 2011.
Second, ethics issue have been raised about the use of cloud computing and email, and their impact on confidentiality. Two recent ABA ethics opinions discuss confidentiality and email, Formal Opinions 11-459 and 11-46. See James Podgers, "Read All Over," ABA Journal Nov. 2011. In Opinion 11-459, the ABA discussed the duty to protect confidentiality of email communications with one's client in the context of third party access to email communications. Companies may be able to scrutinize such emails as part of their email compliance policy, and this could be quite problematic. Imagine the effect in a whistle blower or other employment case, for instance. Thus, a lawyer must be mindful of and take precautions that confidential information is not disclosed via email.
In Opinion 11-460, the ABA continued the thread and discussed the duty that exists when a lawyer receives copies of a third party's email communications with their own counsel. For instance, say an employee copies the contents of her workplace computer, and in reviewing them the employee's attorney discovers some emails marked attorney-client privilege. Here, there is a twist, though. ABA Model Rule 4.4 states that lawyers shall promptly notify the sender if he or she receives a document related to representation that was sent inadvertently. However, such emails are not "inadvertently sent' when retrieved by a third person from the computer in which they are stored, and the "Model Rules do not independently impose an ethical duty to notify opposing counsel of the receipt of private, potentially privileged e-mail communications between the opposing counsel and his or her counsel." Id. The Opinion ultimately concludes, however, that resolution will be best made by the trial judge, and it will be int he recipient's best interest to seek a timely ruling on the admissibility of the documents before attempting to use them.
Finally, and this is very cutting edge, there is speculation about the eventual ubiquity of service of process on-line. In the old days, there was the option of service by general delivery when an exact physical address was unknown, but the general town was. There was also notice by publication. Judge's today are poo-pooing those as antiquarian and unreasonable in today's increasingly digital era. In at least one case a judge has permitted service by email, because the company did wide business via the Internet but lacked any know, physical location. See Stephanie Francis Ward, "Our Pleasure to Serve You," ABA Journal, Oct. 2011.
This causes some to ponder what is next--service by Facebook or text message? While many people no longer pick up mail or read the newspaper, you can bet they get texts on their cell, and many also have Facebook pages to stay in touch. Although neither of these methods of service are likely to be generally countenanced by the courts at this point in time, the times they are a changin' and at a steadily increasing rate. I think it would be interesting to review this issue in just a year or two. In the meantime, check out the ABA Science & Technology Law Section's Best Practices for Electronic Service of Process, adopted in 2004 and updated in 2006,
If you are interested in moderately tech savvy but always ethical arbitration, mediation services or private judge services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
