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Attorney E-Newsletter

Happy Holidays!

The Disciplinary Board of the Supreme Court of Pennsylvania wishes you and your family a safe and happy holiday!

December 2006

Justice Newman Announces Retirement

Justice Sandra Schutz Newman of the Supreme Court of Pennsylvania has announced she will retire from the bench effective January 1, 2007.

Justice Newman was the first and is still the only woman elected to a full term on the Supreme Court of Pennsylvania. She was first elected in 1995 and won retention to a second term in 2005. Prior to ascending to the bench, she also served on the Commonwealth Court, and in the office of the District Attorney of Montgomery County, where she was also the first woman named to her position.

Justice Newman will head the appellate practice division at Cozen O’Connor in Philadelphia.

Otherwise Engaged

On December 11, 2006, the Supreme Court of Pennsylvania adopted an amendment to Rule 217(j) of the Pennsylvania Rules of Disciplinary Enforcement. Previously, this section had defined the limits of activities which a formerly admitted attorney (disbarred, suspended, or on inactive status) could perform while “employed” by a law office. The new language makes it clear that the provisions of this subsection apply whenever a formerly admitted attorney is “engaged by a law firm or other organization providing legal services, whether by employment or other relationship.”

This amendment was proposed after an issue came up in several disciplinary cases as to whether Rule 217(j) applied in a situation where a law office hired a formerly admitted attorney as an “independent contractor” rather than an “employee” was subject to the requirements of Rule 217(j). The rule change makes it clear that those requirements apply to any working arrangement between a formerly admitted attorney and a law office or other legal organization.

The amendment will be effective immediately upon publication in the Pennsylvania Bulletin as to lawyers suspended, disbarred, or inactive as of that date, and after thirty (30) days as to lawyers suspended, disbarred, or inactive after that date.

E-mail and the Law Office

If you are reading this, you are already familiar with the role that e-mail has come to play in the modern law office. E-mail offers many advantages including instantaneous delivery, low cost, the ability to attach documents, and easy access, even when out of the office or on portable devices. Nonetheless, some lawyers are still concerned about the possibility of interception or violation of confidences when e-mail is used for sensitive considerations.

Much of the concern centers around the confidentiality requirements of Rule 1.6 of the Pennsylvania Rules of Professional Conduct. Rule 1.6 deals mainly with intentional disclosures of information, but it also carries with it a duty of care to take reasonable steps to protect the confidentiality of communications. Comment 23 to Rule 1.6 states, “A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision,” and Comment 24 adds, “When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” However, as to the extent of this duty, Comment 24 goes on to state, “This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy.”

Ethics opinions over the years have examined the security of e-mail in light of this “reasonable expectation of privacy” standard, and have concluded that the use of unencrypted e-mail is sufficiently secure to meet the expectations of care imposed by Rule 1.6. In 1997, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility concluded in Informal Opinion Number 97-130 [not published on PBA site, but available through Westlaw], and in 1999, the American Bar Association released Formal Ethics Opinion 99-413, coming to the same conclusion:

The Committee believes that e-mail communications, including those sent unencrypted over the Internet, pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy. The level of legal protection accorded e-mail transmissions, like that accorded other modes of electronic communication, also supports the reasonableness of an expectation of privacy for unencrypted e-mail transmissions. The risk of unauthorized interception and disclosure exists in every medium of communication, including e-mail. It is not, however, reasonable to require that a mode of communicating information must be avoided simply because interception is technologically possible, especially when unauthorized interception or dissemination of the information is a violation of law.

Although the use of e-mail for even confidential communications is now widely accepted, there are some cautionary considerations that the careful lawyer should keep in mind. The immediacy of the e-mail medium gives it some of the casual intimacy of face-to-face or telephonic conversation, but as with formal writing the writer does not receive feedback that might help to signal how the recipient is interpreting the communication. Researchers have found that people often overestimate the clarity with which they have communicated in e-mail, resulting in misunderstandings at the other end.

The ease of dissemination of e-mail can also result in adverse results, when the rapid pace of e-mail leads people to hit the “send” button before fully thinking through what they have written. Especially with the ease of forwarding information to other users, a personal exchange can quickly find its way to an incredibly wide audience, as one young lawyer found out in this exchange. [You didn’t really think a communication from this august body would link to THAT exchange, did you?]

The risk of unauthorized disclosure is also present in the injudicious use of certain e-mail features such as “reply to all” and distribution lists, where the lack of attention to the list of potential recipients can cause serious embarrassment.

Of course, lawyers are held to the same standards of honesty in e-mail communications as any other. In a recent Pennsylvania disciplinary case, a lawyer who had been using his firm e-mail address for personal e-mail was reprimanded for using another lawyer’s password (without permission) to obtain access to his former firm’s e-mail system, after his own access had been terminated. His use of someone else’s password was considered to be a misrepresentation of his identity.

Finally, lawyers who delegate communication to staff, whether by e-mail, fax, correspondence, or other means, should bear in mind the importance of being very clear about both the content of communications and also the recipients to whom they are to be directed. Rule 5.3(b) states that “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer,” and the clarity with which a lawyer provides direction to staff is certainly within the ambit of this requirement.

The evolution of technology is constantly presenting both new opportunities and new challenges in the practice of law. E-mail has become an indispensable tool for many, but with new tools come new cautions.

Next month: What’s hiding in your document? The landmine of metadata.

Tip of the Month:

While we’re talking about e-mail, can e-mail be used as a promotional device? Rule 7.2(a) now specifically allows a lawyer to communicate about the lawyer’s services by “electronic communications,” including e-mail, forums, bulletin boards, and blogs. A record of the communication must then be kept for two years. However, Rule 7.3(a), prohibits solicitation by “real-time electronic communication,” which would include means such as chat rooms or instant messaging. So NFW on the IM, KWIM?