Ethics Archives - The National Law Forum

WHO Publishes Guidance for Ethics and Governance of AI for Healthcare Sector

The World Health Organization (WHO) recently published “Ethics and Governance of Artificial Intelligence for Health: Guidance on large multi-modal models” (LMMs), which is designed to provide “guidance to assist Member States in mapping the benefits and challenges associated with the use of for health and in developing policies and practices for appropriate development, provision and use. The guidance includes recommendations for governance within companies, by governments, and through international collaboration, aligned with the guiding principles. The principles and recommendations, which account for the unique ways in which humans can use generative AI for health, are the basis of this guidance.”

The guidance focused on one type of generative AI, large multi-modal models (LMMs), “which can accept one or more type of data input and generate diverse outputs that are not limited to the type of data fed into the algorithm.” According to the report, LMMs have “been adopted faster than any consumer application in history.” The report outlines the benefits and risks of LLMs, particularly the risk of using LLMs in the healthcare sector.

The report proposes solutions to address the risks of using LMMs in health care during development, provision, and deployment of LMMs and ethics and governance of LLMs, “what can be done, and by who.”

In the ever-changing world of AI, this is one report that is timely and provides steps and solutions to follow to tackle the risk of using LMMs.

White House Office of Science and Technology Policy Releases “Blueprint for an AI Bill of Rights”

On October 4, 2022, the White House Office of Science and Technology Policy (“OSTP”) unveiled its Blueprint for an AI Bill of Rights, a non-binding set of guidelines for the design, development, and deployment of artificial intelligence (AI) systems.

The Blueprint comprises of five key principles:

The first Principle is to protect individuals from unsafe or ineffective AI systems, and encourages consultation with diverse communities, stakeholders and experts in developing and deploying AI systems, as well as rigorous pre-deployment testing, risk identification and mitigation, and ongoing monitoring of AI systems.
The second Principle seeks to establish safeguards against discriminative results stemming from the use of algorithmic decision-making, and encourages developers of AI systems to take proactive measures to protect individuals and communities from discrimination, including through equity assessments and algorithmic impact assessments in the design and deployment stages.
The third Principle advocates for building privacy protections into AI systems by default, and encourages AI systems to respect individuals’ decisions regarding the collection, use, access, transfer and deletion of personal information where possible (and where not possible, use default privacy by design safeguards).
The fourth Principle emphasizes the importance of notice and transparency, and encourages developers of AI systems to provide a plain language description of how the system functions and the role of automation in the system, as well as when an algorithmic system is used to make a decision impacting an individual (including when the automated system is not the sole input determining the decision).
The fifth Principle encourages the development of opt-out mechanisms that provide individuals with the option to access a human decisionmaker as an alternative to the use of an AI system.

In 2019, the European Commission published a similar set of automated systems governance principles, called the Ethics Guidelines f or Trustworthy AI. The European Parliament currently is in the process of drafting the EU Artificial Intelligence Act, a legally enforceable adaptation of the Commission’s Ethics Guidelines. The current draft of the EU Artificial Intelligence Act requires developers of open-source AI systems to adhere to detailed guidelines on cybersecurity, accuracy, transparency, and data governance, and provides for a private right of action.

For more Technology Legal News, click here to visit the National Law Review.

Marketing Ethics for Lawyers to Follow in 2020 and Beyond

Advertising and marketing have always played an important role in increasing a company’s brand awareness and in helping them acquire new customers to reach their corporate financial goals. Law firms are no exception. With the increasing competitiveness among law firms, it is extremely important that they understand the fundamentals of marketing in a competitive marketplace.

As early as the 1970s, most states didn’t allow lawyers to engage in any type of marketing efforts. In 1977, the US Supreme Court case of Bates v. Arizona, 433 US 350, changed all this and held that advertising regarding attorneys’ services was “commercially protected speech,” according to the First Amendment, and that truthful advertising should be allowed as a matter of public policy. The court held that lawyers serve society and that allowing them to advertise their services would provide consumers with valuable information about available legal assistance.

After this landmark case, attorneys could advertise to obtain clients. They relied on traditional marketing methods, like display ads, brochures, business cards, and word-of-mouth advertising. Although these marketing strategies are still effective in 2019 and beyond, lawyers must also combine them with other creative marketing strategies—including, but not limited to, pay-per-click; search engine optimization; email, article, video, and digital marketing; and social media marketing.

Additionally, attorneys who want to stay ahead of the marketing game must have stellar and properly optimized web content, engaging social media and blog posts, informative guest articles, engaging display ads, and more. However, unlike regular corporations, law firms are held to a higher standard of responsibility, in terms of marketing, than their corporate counterparts.

Law firms have to remain in compliance with rules and regulations concerning ethics and professional responsibilities, especially in advertising. This means that attorneys and their law firms have to be careful when treading the path of marketing their legal services. They have to engage in ethical and truthful marketing practices and have to steer clear of false or misleading marketing strategies.

That said, what are the ethics of marketing legal services? What should attorneys avoid to ensure that they don’t engage in any professional responsibility violations? Well, let’s have a look at the dos and don’ts of legal marketing.

Abide by Prospective Clients’ and Existing Clients’ Wishes

As an attorney, you have to be mindful when engaging in electronic marketing strategies. In my home state of Illinois, attorneys can’t continue to contact prospective and/or existing clients if they tell that attorney to not contact them. See Rule 7.3(b) of the Illinois Rules of Professional Conduct for details.

Basically, this regulation stipulates that you should never spam someone’s email or regular mail, even if they initially agreed to give you their email or physical mailing address in exchange for a free report or other offering. Therefore, if the individual asks you to “Take me off your list,” you must do so immediately. If you don’t, you will be in violation of Rule 7.3(b) or another professional conduct rule in your state.

Also note that certain state professional conduct rules, like Rule 7.3(c) in Illinois, require the words, “Advertising Material,” on the outside of every physical envelope mailed to everyone, as well as at the beginning and the end of every recorded or electronic solicitation—unless said contact person is exempt from this rule.

Avoid Making Misleading or False Claims

An important ethical element of legal marketing is that you practice honesty and refrain from making unsubstantiated or false claims that can’t be verified. Rule 7.1 of the Illinois Rules of Professional Conduct states that a law firm or an attorney cannot engage in misleading or false communication in reference to their service offerings. Any such miscommunication is a clear violation of the Illinois Rules of Professional Conduct.

One rule of thumb: Would a rational person read such statement and be misled by it? What would they believe to be true? If they would be misled by such statement, then you must alter the content so that you don’t violate any ethics rules. Always double-check facts before making any statements. Additionally, if you include any statistical information in your ads, make sure that it is correct.

Don’t Set Unrealistic Expectations in Your Ads

Whenever you create online and off-line marketing strategies, make sure that you maintain high ethical standards and don’t engage in any type of marketing efforts that might lead the reader to false assumptions. That is, set realistic expectations for your clients and be clear that “Results may vary.”

Yes, you can have a testimonial page but don’t include statements like “My lawyer got me more money than I ever dreamed of.” Although it might be true for this one client, this statement might create an expectation in the reader that you can do the same for all your clients. Instead, you should only include testimonials that share verifiable factual information and don’t forget to add disclaimers to keep client expectations in check.

Never Use Comparative Statements If Your State Disallows It

Some states have specific rules about using comparative statements in your advertising copy. So, if you’re in a state that disallows this wording, you should avoid it. For instance, in Illinois, you are not allowed to use comparative declarations, like, “We are the best bankruptcy law practice in Illinois.” The fact that such statements cannot be proven with verified facts leads them to fall under the category of “false and misleading communication.” On the other hand, you may be allowed to mention a few successes of your firm through statistical data, like recent court cases won. But make sure that such data is factual and verifiable and current. Either way, check your state’s professional conduct rules and then find a way to creatively convey your skills and instill confidence in prospective clients without violating any rules.

Avoid Claiming to Be an Expert

Several states have rules prohibiting attorneys from portraying themselves as an expert or a specialist. These rules have been created to ensure that no individual practicing law can make misleading claims in relation to themselves and/or their services.

I often recommend that law firms work with a marketing consultant that has legal experience for just this reason. I recently reviewed a prospect’s website and it stated among other things, that the firm specialized in family law. This is a big mistake in Illinois. Had the prospect worked with a marketing consultant who was also an attorney or who had legal experience, this could have been avoided.

In Summary

At the end of the day, effective marketing is the key to having a successful law practice. However, law firms must practice honesty in all their marketing and advertising efforts. By following the above-mentioned guidelines, firms can avoid ethics violations, can win the trust of clients, and can bolster long-term growth for their law firms, while assisting those who need the legal help the most.

ARTICLE BY Barry Zlotowicz, Esq. of LawFull Attorney Marketing.

For more on legal marketing, see the National Law Review Law Office Management section.

Gaming Industry Associations Agree on Universal Esports Principles

Earlier this month, a set of gaming industry representatives agreed upon and released a set of unifying esports principles. These representatives include the Entertainment Software Association (ESA), as well as associations from Canada, Australia and New Zealand, the UK, and Europe. These “Principles of Esports Engagement” were developed in a collaborative effort and form a set of values applicable in all aspects of the global esports environment.

The principles include the following:

Safety and Well-Being
- All esports community members deserve to participate in and enjoy esports in safe spaces and to be free from threats and acts of violence and from language or behavior that makes people feel threatened or harassed.
Integrity and Fair Play
- Cheating, hacking, or otherwise engaging in disreputable, deceitful, or dishonest behavior detracts from the experience of others, unfairly advantages teams and players, and tarnishes the legitimacy of esports.
Respect and Diversity
- Esports promotes a spirit of healthy competition. Whether in person or online, all members of the esports community should demonstrate respect and courtesy to others, including teammates, opponents, game officials, organizers, and spectators.
- Esports is truly global and brings together players from different backgrounds, cultures, and perspectives. We believe the broad and diverse player base of esports contributes to its success. We support an open, inclusive, and welcoming environment for all, no matter one’s gender identity, age, ability, race, ethnicity, religion, or sexual orientation.
Positive and Enriching Game Play
- Esports can help build self-confidence and sportsmanship and boost interpersonal communication and teamwork skills. Esports brings players and fans together to problem solve through strategic play, collaboration, and critical thinking. Participation in esports can also lead to the development of new and lasting friendships among teammates, competitors, and members of the broader esports community.

The goal of these organizations in releasing this set of principles is to foster an esports community that is responsible, welcoming, engaging, and of course, fun. Notably, in ESA’s press release announcing these principles, the association highlighted the growth of esports, citing research that estimates that, in 2019, global esports viewership will hit nearly 500 million and revenues will exceed $1 billion USD. With this level of growth, the esports community has a vested interest in supporting the best conditions for play and ensuring esports remains an exciting and inclusive activity and industry at all levels.

ARTICLE BY Mark A. Patrick of Sheppard, Mullin, Richter & Hampton LLP.

For more video gaming issues, see the National Law Review Entertainment, Art & Sports law page.

You’re Hired: President Trump Introduces Ethics Pledge For His Appointees With Serious Departures from Obama’s Ethics Pledge

On January 28, 2017, President Trump signed an executive order that requires all full-time political appointees to sign an ethics pledge (the “Trump ethics pledge”) that “contractually” binds them to certain ethical standards. The Trump ethics pledge supersedes and is different from the ethics pledge that President Obama required appointees to sign during his administration (the “Obama ethics pledge”), and includes a five-year lobbying ban that severely restricts the ability of covered appointees to engage in the policy advocacy business upon leaving government.

The Trump ethics pledge applies to all full-time, non-career political appointees regardless of whether they are appointed by the president, the vice president, an agency head, or other government official. It is unclear, without further guidance from the Office of Government Ethics, whether the Trump ethics pledge invalidates the Obama ethics pledge, or if that pledge remains intact for those who signed it. In any event, a summary of the Trump ethics pledge highlighting the key restrictions and key differences from the Obama ethics pledge is below. Please contact one of K&L Gates’ political ethics lawyers with any questions.

Appointees Leaving Government

Lobbying Ban

The Trump ethics pledge includes a “lobbying ban” that is far more restrictive than the Obama ethics pledge. Not only is the lobbying ban extended from two years to five years, the scope of the ban is substantially expanded. Under the terms of the Trump ethics pledge, covered appointees may not engage in “lobbying activities” with his or her former agency for five years upon leaving the government. “Lobbying activities” is the defined term that appears in the Lobbying Disclosure Act (“LDA”) that includes both lobbying contacts and background preparation and strategy work. This restriction also applies toengaging in lobbying activities with any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Trump Administration.

Therefore, as opposed to the Obama ethics pledge, which prohibited covered appointees from “lobbying” as defined as “acting as a registered lobbyist,” any covered appointee under the Trump ethics pledge is prohibited not just from acting as a registered lobbyist, but from engaging in the “behind the scenes” activity, regardless of whether the covered appointee’s lobbying contacts trigger lobbying registration. Given the incredibly restrictive nature of this provision, the Office of Government Ethics may produce additional guidance, in which case we will supplement this alert with further analysis.

Cooling-off Period

The Trump ethics pledge restores the one-year “cooling-off” restriction for certain senior administration officials on contacting employees in their former agency that is codified in Section 207(c) of Title 18 of the United States Code. Note that this is a broader restriction on making contacts than that of the lobbying ban since it applies to contacts with any employee of the former agency (as opposed to contacting covered officials and non-career Senior Executive Service appointees for purposes of the lobbying ban). This is a departure from the Obama ethics pledge, which extended the statutory prohibition on contacting and appearing before former agency officials for two years. As noted above, it is unclear whether this portion of the Obama ethics pledge still applies to signees of the Obama ethics pledge or if it has been invalidated.

Lifetime Ban on FARA Representation of Foreign Governments and Political Parties

The Trump ethics pledge also prohibits any covered appointee from engaging in any activity on behalf of a foreign government or political party that would require registration under the Foreign Agents Registration Act of 1938 (“FARA”) for the remainder of the appointee’s life. This is another massive departure from the Obama ethics pledge. FARA, which implements strict disclosure requirements for any person who represents a foreign entity in seeking to influence U.S. public opinion, policy, and laws, is enforced by the Department of Justice.

Appointees Entering Government

Ban on Participating in Matters Involving Former Client or Employer

The Trump ethics pledge imposes a two-year ban on covered appointees from participating in matters that are directly and substantially related to their former client or employer, including regulations and contracts, when the former client or employer is, or represents, a party to that matter. This includes any clients or employers for whom the covered appointee worked for during the two years prior to his or her appointment. This language is identical to the Obama ethics pledge.

Ban on Participating in Matters Lobbied in the Past

The Trump ethics pledge prohibits covered appointees from working on particular matters on which the covered appointee lobbied (as a registered lobbyist) in the two years prior to their appointment. This prohibition applies for two years after the covered appointee enters the government. It also applies to participating in any matter that falls within the same specific issue area. The terms of this prohibition are similar to those of the Obama ethics pledge. However, in another departure from the more restrictive Obama ethics pledge language, the Trump ethics pledge does not prevent a covered appointee from working in an agency that he or she lobbied in the past.

Gift Ban

Like the Obama ethics pledge, covered appointees under the Trump ethics pledge are prohibited from accepting gifts from registered lobbyists or lobbyist organizations during their time in the Trump Administration. The term “gift” has the same definition as under Office of Government Ethics rules, although covered appointees are not subject to all of the same exceptions. Of note, covered appointees may not accept gifts that fall under the de minimis exception ($20 per gift/$50 per year), and may not attend widely attended gatherings free of charge.

ARTICLE BY Michael G. H. Pfeifer, Tim L. Peckinpaugh & Michael J. O’Neil of K&L Gates

Trump Administration Executive Order on Ethics Breaks New Ground

President Trump signed an executive order on ethics this weekend that is similar in key respects to the Obama Administration’s executive order governing ethical conduct by presidential appointees. But in one key respect it is significantly broader in scope than the previous Obama executive order. The Trump executive order incorporates the concept of “ lobbying activities, ” a defined term that it imports from the federal Lobbying Disclosure Act.

Presidential appointees are required to agree that they will not engage in “lobbying activities” with respect to their agency for five years after the end of their term of office. Lobbying activities is a broad and amorphous term that covers not just actual lobbying contacts that may trigger lobbyist registration but also behind-the-scenes strategic advice and other work related to the lobbying contacts of others. In other words, whereas the restrictions in the Obama executive order applied to individuals who engaged in activities requiring lobbyist registration, the Trump executive order reaches even activity by non-registered lobbyists. This closes one of the major loopholes that President Obama had included in his administration’s executive order on ethics.

The Trump executive order also bars appointees from engaging in “lobbying activities” with respect to any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Administration. This provision applies not just to the appointee’s former agency but to the entire executive branch. And again, because it applies to “lobbying activities,” as that term is defined in the LDA, it applies to behind-the-scenes strategic advice that supports someone else’s lobbying contacts.

Incorporating the term “lobbying activities” will have very significant consequences for Trump administration appointees, subjecting them to much broader post-employment restrictions than was so for Obama administration appointees. It would be difficult for Trump appointees who sign the pledge to pursue employment as strategic advisors, much less lobbyists, for a period of time after leaving the administration.

The change in language is quite subtle, probably understood only by Lobbying Disclosure Act aficionados at this point. But it is likely to draw considerable attention as appointees begin to focus on the consequences of signing the pledge.

ARTICLE BY Robert Kelner of Covington & Burling LLP

Professional Liability: Punishing Effect of Rule 11 in Keister v. PPL Corp.

Federal courts correct bad litigation behavior, eventually.

People take being sued personally, and lawsuits can take an emotional toll on defendants, whether as an individual or as a representative of an employer. Anger and frustration always lead to the same questions: Can we sanction them for lying? Can I get my fees (or my insurance deductible) back? Won’t the court do something?

Federal courts can and do sanction attorneys for lying, failing to investigate claims and “posturing” a case to get a settlement. But sanctions are reserved for the worst offenders, and it often takes multiple violations before attorneys’ fees, costs or other monetary fines are imposed.

A Case in Point

In Keister v. PPL Corp., U.S. District Court Judge Matthew W. Brann of the Middle District of Pennsylvania directed Attorney X to pay opposing counsel’s fees and costs in excess of $103,000.

What did Attorney X, a solo practitioner in a rural Pennsylvania county, do to potentially warrant more than $100,000 in sanctions? In a 55-page Opinion (which supplemented a 48-page summary judgment opinion), the court explained that Attorney X:

Engaged in “litigious necromancy” by “conjuring” facts to support the age discrimination claim of his client, Ernest Keister, a 34-year employee of PPL and a union member, who worked in a unique position (i.e., his job could not be compared with others) and who was neither fired nor replaced by a younger worker.
Proceeded with the claim, in the absence of any evidence that Keister’s age was a factor in (1) his employer’s 2011 denial of a request to reevaluate his job title, duties, salary and management role or (2) the union’s decision not to support moving Keister’s position from the collective bargaining unit.
Alleged that Keister faced “ongoing” discrimination in order to avoid dismissal of his client’s lawsuit, despite the complete absence of evidence that anyone insulted or otherwise mistreated Keister.
Intentionally asserted claims that were directly contradicted by Keister’s testimony, failed to comply with local motion practice by failing to admit undisputed facts, and submitted documents that were “calculated” to confuse the court and opposing counsel.
Failed to investigate the facts and observe procedural requirements, including following the union’s grievance process and filing the federal action within the applicable limitations period (as established by the EEOC’s denial of a claim filed by Attorney X).
Amended the complaint for the sole purpose of forcing a mediation to settle a valueless case.
Engaged in this conduct after receiving two (non-monetary) Rule 11 sanctions in other cases as well as a public reprimand by the Pennsylvania Disciplinary Board.

Judge Brann repeatedly stated that Rule 11 sanctions are not a “general fee-shifting device” and are not available merely because one side was successful. Sanctions were imposed because Attorney X “is simply not getting the message,” despite prior federal court and state bar disciplinary reprimands. The court held that the “least severe sanctions adequate to serve the purpose” of punishing Attorney X’s conduct and deterring it in the future was to award all costs and fees to the defendants.

Summary

The Keister ruling suggests that a Rule 11 motion should only be filed when it can be proven that opposing counsel did not have the facts to back up a client’s claims and made an effort to hide the absence of a factual dispute. However, even when such proof can be found, federal courts will first award non-monetary sanctions for an attorney’s first and even second offense, as happened here with Attorney X.

When facing a litigation opponent who lies to the court, it is best to prove the lie, document it, and then decide the most appropriate way to bring it to the attention of opposing counsel and, if appropriate, the court or disciplinary authorities. The work might not yield monetary sanctions in the first instance, but the federal courts may not act to stop abusive litigators until presented with multiple examples of bad conduct.

In the short run, it may seem more cost-effective to ignore an opponent’s abusive actions because a judicial reprimand does not return money to the client. But in the long run, the federal courts will not protect a client from future bad acts or additional lawsuits until an attorney’s repeated pattern of deception is established.

ARTICLE BY William F. McDevitt of Wilson Elser Moskowitz Edelman & Dicker LLP

Case of First Impression: Federal Circuit Endorses Patent-Agent Privilege

In a case of first impression regarding whether communications between a non-lawyer patent agent and a client are legally privileged, a split panel of the US Court of Appeals for the Federal Circuit held that a patent-agent privilege is warranted on a limited basis where an agent is engaged in the congressionally endorsed, authorized practice of law. In Re Queen’s University at Kingston, PARTEQ Research and Development, Case No. 2015-145 (Fed. Cir., Mar. 7, 2016) (O’Malley, J) (Reyna, J, dissenting).

The opinion followed the plaintiffs’ petition for mandamus. At the district court, the petitioners withheld documents reflecting communications between the plaintiffs’ employees and the non-lawyer patent agents who prosecuted the patents-in-suit based on an alleged patent-agent privilege. The district court overruled objections to the magistrate’s order granting defendants’ motion to compel production over the alleged privilege, but agreed to stay the discovery order pending a writ of mandamus. Applying Federal Circuit law, the Court found that mandamus was warranted to decide the issue of first impression, which had split the lower courts.

The Federal Circuit first recognized that “Rule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting ‘common law principles.’” Finding that the respondents did not argue that a patent-agent privilege was foreclosed by the US Constitution, any federal statute or any rule prescribed by the Supreme Court of the United States, the Court turned to reason and experience, as directed by Rule 501, in order to determine whether recognizing a privilege was now appropriate. The majority concluded that it was, holding that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent litigation warranted an independent patent-agent privilege.

The Federal Circuit relied on the Supreme Court’s prior assertion that the preparation and prosecution of patent applications for others constitutes the practice of law. Further, the majority found that Congress had delegated to the commissioner of patents oversight authority concerning lawyers, agents or other persons representing applicants or other parties before the US Patent and Trademark Office (PTO), and that the commissioner had, in fact, allowed both lawyers and agents to practice before the PTO.

In further support, the majority panel cited both the Supreme Court’s recognition of Congress’s delegation of supervisory authority to the commissioner of patents for lawyers and agents alike, and related legislative history acknowledging the practitioners’ equivalent professional rights before the PTO. The majority found that a client has a reasonable expectation that all communications relating to obtaining legal advice on patentability and legal services in preparing a patent application will be kept privileged, and that denying privilege to agents would frustrate Congress’s intent to provide clients a choice between agent and lawyer. As a result, the majority found that a patent-agent privilege is coextensive with the rights Congress affords to patent agents, and serves the same important public interests as the attorney-client privilege.

The Court also noted that the new privilege’s scope is necessarily limited to communications with non-lawyer patent agents when those agents are acting within their authorized practice of law before the PTO. The Court found that the Code of Federal Regulations (CFR) sets forth the acts permitted by non-lawyer agents and helps to define the scope of communications covered under the privilege. For example, communications are due the privilege if made in furtherance of the performance of tasks specifically set forth in the CFR, or “are reasonably necessary and incident to the preparation and prosecution of patent applications or other proceedings before the [PTO] involving a patent application or patent in which the practitioner is authorized to participate.” The Court stressed that it is the burden of the person asserting the privilege to justify its applicability. The Court also cited examples of non-privileged communications, including those with a patent agent who offers an opinion on the validity of another party’s patent in contemplation of litigation or the sale or purchase of a patent, or on infringement.

In dissent, Judge Reyna argued that the public’s need for open discovery outweighed the need for the privilege. The dissent also argued against the new privilege with the following reasoning:

The privilege may adversely affect an agent’s duty of candor.
Agent communications are already routinely protected because of lawyer involvement.
Patent agents and clients are able to destroy written communications through implementation of document-destruction policies.
Determining the scope of the privilege is complicated and uncertain.
Congress and the Supreme Court have recognized a difference between agents and lawyers.
Evidence suggests that Congress did not intend that agents have a privilege.
No state has created an agent-client privilege.
The Judicial Conference Advisory Committee has not recommended creating the privilege.
Lawyers hold the privilege because of their professional status.
The Supreme Court has never held that patent agents practice law; it has merely recognized that the Florida Supreme Court has done so under Florida law.
Congress has never believed that patent agents practice law.

The Federal Circuit remanded the issue to the district court to determine whether the patent-agent privilege applied.

Lawyers in the United States Should Pay Attention to the Panama Papers

The Panamanian law firm that was the source of the “Panama Papers” says it was hacked, exposing its clients’ personal and financial data to the world.

For American lawyers subject to the Rules of Professional Conduct, the problems facing the Panamanian firm Mossack Fonseca should serve as a reminder to take extra care to secure electronic data. Lawyers have an obligation under Model of Rule Professional Conduct 1.6(c) to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” This data security obligation was added to Massachusetts Rule of Professional Conduct 1.6(c) last year.

In the Panama Papers case, Mossack Fonseca blamed the hack on an “unauthorized breach of our email server.” That should give American lawyers pause, even if they do not count the prime minister of Iceland, cronies of Vladimir Putin, or members of the Chinese Politburo among their clients. Massachusetts lawyers should pay attention, and consider what would happen if their clients’ confidential information became publicly available. Although exposure of such information might not make headlines, it could devastate clients if it fell into wrong hands.

What Constitutes “Reasonable Efforts?”

Rule 1.6(c) does not say what constitutes “reasonable efforts.” But Comment 18 to the rule says:

[f]actors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

Comment 18 also states that a lawyer does not violate Rule 1.6(c) if someone gains unauthorized access to information, notwithstanding reasonable efforts to prevent the access.

Still, it would be embarrassing, or worse, for any lawyer to explain to his or her client – and, possibly, the Board of Bar Overseers – that confidential documents were exposed because they were held in the lawyer’s Hotmail account, for which the password was “password.” Even if the password were stronger, lawyers must remember that someone who knows the answers to a security question might be able to gain access to web-based email. If the question is something like: “Where did you go to high school?” sensitive client information might be at risk to anyone who knows anything about you – or is willing to invest in a little internet sleuthing

The need to protect client information is not lessened if a lawyer’s clients are not public figures. Adversaries, business competitors and jealous ex-spouses, among others, may be highly interested in a client’s confidential electronic files, to say nothing of identity thieves and fraudsters.

Lawyers and firms should tailor their data security to their clients and their practices. There are numerous actions lawyers can take to protect their data, but some of the simplest and most non-burdensome steps include the following:

Adopt an information security policy that covers all information systems, including e-mail, voicemail, text messages, computers, cellphones, remote access and passwords, among others.
Use difficult passwords. A random collection of characters is far stronger than an English-language word. Letters and numbers can be added or switched to make the password easier to remember; for example, the dog’s name – “skippy” –might become “$k1ppy!” Change passwords regularly.
Lawyers who use web-based email should check their security questions, and make sure they are not obvious and well-known to others. All web-based email should also utilize two-step verification.
Consider retaining an outside IT expert to make sure your security is as strong as possible.
Finally, use common sense, and train your employees to do the same. For example, do not click on suspicious links and attachments, or keep your password written down in an obvious place on your desk.

The upshot is that it is better to consider – and possibly upgrade – your security before a hack, rather than to have to defend it afterwards.

Article By Thomas W. Kirchofer of Sherin and Lodgen LLP

Social Media Ethical Guidelines: What Lawyers Need to Know

Don’t let your online activities land you on the bar discipline docket.

The New York State Bar Association’s Commercial and Federal Litigation Section has published a set of Social Media Ethics Guidelines that provide useful guidance for all lawyers (not just New Yorkers) on the use of social media. While the Guidelines set forth a broad outline for dealing with social media, lawyers will still need to think hard about their particular situations. Below are some of the guidelines that lawyers and law firms should keep in mind.

On-Line Advice: What should you do if a Facebook friend posts a legal question? Answer it? Have you created an attorney-client relationship? Do you owe a duty to all of your friend’s Facebook friends who will see that advice and possibly rely on it? The New York Guidelines suggest that you should keep any reply broad and general. “A lawyer may provide general answers to legal questions asked on social media. A lawyer, however, cannot provide specific legal advice on a social media network because a lawyer’s responsive communications may be found to have created an attorney-client relationship and legal advice also may impermissibly disclose information protected by the attorney-client privilege.” (Guideline 2.A). Great social media advice, but the Guidelines do not say when a “general answer” becomes “specific advice.” A good rule of thumb would be – if the request is specific and includes specific information about your friend’s situation – do not answer the question on Facebook.

Advertising: The Guidelines also say that if you use your social media profile primarily for your law business – think LinkedIn – it is subject to the rules governing attorney advertising and solicitation. (Guideline 1.A). When using Twitter to market your practice, the Commentary to the Guidelines says that you may “utilize commonly recognized abbreviations for information that is required in attorney advertisements.” The Guidelines thus suggest that you will need to devote some of your 140 characters to complying with advertising rules, but they don’t say exactly what content would make for a compliant Tweet.

New York’s Rule of Professional Conduct 7.1(f) requires all lawyer advertising to say “attorney advertising.” Presumably, then, attorneys can say “Att’y Ad” or something similar in their Tweets. The Massachusetts Rules of Professional Conduct do not require “Attorney advertising” but do require that any advertising “include the name of the lawyer, group of lawyers, or firm responsible for its content.” Mass. R. Prof. C. 7.2(d). Thus, Massachusetts lawyers may have a few extra characters in their advertising Tweets than New York lawyers, though they should Tweet under their own names – not a clever screen name.

That said, the Massachusetts rules could still raise compliance issues for lawyers who use social media – particularly concerning Rule 7.3 which governs solicitation of professional employment. For example, the Office of Bar Counsel has previously advised that “bulletin boards, which display information in cyberspace and allow people to post and respond to messages, … do not involve real-time, live interaction between lawyers and prospective clients” and are thus in-bounds for lawyers to advertise and solicit clients. On the other hand, “solicitation through … interactive computer-accessed chat rooms is prohibited as in-person solicitation” where the chat rooms “offer conversation that is live, interactive and conducted in real-time or near real-time.” On this rationale, a lawyer who finds herself in a “real-time” Twitter or Facebook conversation could unwittingly breach Rule 7.3(d) (prohibiting “in person” solicitation).

Among the other useful tips from the New York Guidelines:

If someone posts a statement to your social media profile that does not comply with advertising guidelines, you may have an obligation to remove the post. (Guideline 1.C);
“A lawyer may view the public portion of a person’s social media profile or public posts even if such person is represented by another lawyer,” including in situations where the person’s account tracks the identities of the viewers. (Guideline 3.A);
A lawyer may request permission to view the restricted portion of an unrepresented person’s social media website or profile. However, the lawyer must use her full name and an accurate profile, and she may not create a different or false profile in order to mask her identity.” (Guideline 3.B);
The situation is different if the person is represented. “A lawyer shall not contact a represented person to seek to review the restricted portion of the person’s social media profile unless an express authorization has been furnished by such person.” (Guideline 3.C);
You can advise a client to “take down” a post, although the client may have an obligation to preserve the information removed. (Guideline 4.A).

The Guidelines are not universal, however, and the drafters caution that there are numerous conflicting opinions and rules around the United States. For example, a recent New Hampshire ethics opinion has a different take on Guideline 3.B, finding that a lawyer must disclose her involvement in a matter when sending a “friend” request to an unrepresented witness to view restricted portions of the witness’ profile. “[S]ending a Facebook friend request in-name-only constitutes a misrepresentation by omission, given that the witness might not immediately associate the lawyer’s name with his or her purpose and that, were the witness to make that association, the witness would in all likelihood deny the request.” N.H. Bar Ass’n Ethics Advisory Comm., Op. 2012-13/05.

As you incorporate social media into your practice, you must research the law, understand the capabilities of the social media platforms you use, and carefully consider your online activities in connection with the Rules of Professional Conduct. In Massachusetts, if in doubt, you could contact the Office of Bar Counsel’s ethics hotline and ask. The hotline is available between 2 and 4 p.m. Monday, Wednesday and Fridays at (617) 728-8750. Ultimately, your best defense against stepping into a social media ethics landmine is to stop and think before you click.

Article By:

Thomas W. Kirchofer

Of:

Sherin and Lodgen LLP

Tag: Ethics

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