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Young Lawyers: Living by the Rules in Our Electronic World

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STATE BAR OF NEVADA
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Nevada Lawyer Magazine
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“Be cautious, take the initiative to keep yourself ‘up’ on the latest rules and decisions and look at it as an opportunity to develop another niche.”
Young Lawyers
Laura Granier, Young Lawyers Chair
LiViNG BY tHE RULES iN oUR ELECtRoNiC WoRLD
In the 21st Century, we are immersed in a whole new world of technology. Information is instantly available. We have lectures and research, from all over the world, at our fingertips, through the Internet. According to the “Did You Know” video on YouTube, it is estimated that a week’s worth of the New York Times is more information than a person came across in a lifetime during the 18th century and that the top 10 jobs in 2010 did not exist in 2004. In order to process this endless universe of easily accessible information, children must learn critical thinking strategies and how to problem-solve. The materials they study may become outdated before they ever graduate. As of March 2009, Google was averaging 293.8 million searches per day (according to information available on the Internet). It is said that with its 200 million users, if Facebook were a country, it would be the fifth-largest in the world. So what does all of this mean to lawyers? Faced with this rapidly evolving technology, we must continuously consider how the rules governing electronic data are changing and how they apply to both attorneys and clients. Tweeting and blogging have become widespread and Internet marketing is on the rise. Viewmylawyer. com is dedicated to providing lawyer videos online through profiling listing attorneys. You already probably consider that anything you put out there is open for the world to read – potential clients, existing clients, judges and, yes, even opposing counsel. So a good rule of thumb is to never write anything you would not feel comfortable submitting to the court or publishing on a billboard with your picture and name on it. That does not necessarily mean you should avoid using these marketing tools out of fear of exposing certain areas of your personal life to your professional contacts. Some sites, such as Facebook, allow you to create professional privacy settings. Remember, though, even with the most restricted settings, your profile picture on Facebook may be seen by anyone looking up your name online. So consider using a picture you would hand to a client in paper marketing materials. You should also consider the legal ethics rules when you post or update your webbased profile or engage in blogging. Rules that apply to websites may also apply to your blog and web-based profile. You may be advertising in your personal or company profile on LinkedIn. Consider the ethical rules governing communication (prohibiting false or misleading communication about the attorney or her services), advertisement, solicitation and specializations. Be sure to avoid saying anything on your LinkedIn or other web-based profile that you would not say on your website. For example, if you do not have a specialty, according to the advertising rules, you should not say you do on your LinkedIn profile. With recent changes to LinkedIn, your profile has become more than just your online resume or biography. Attorneys responding to questions on legal issues should also consider whether or not they are creating the appearance of an attorney-client relationship in the mind of the person asking the questions. There are also websites that collect information about attorneys and generate an internal rating for each listed attorney. Individual attorneys can “claim” their profiles and update their information. The South Carolina Bar has issued an ethics advisory opinion requiring that attorneys police their web-based profiles. The South Carolina Bar’s Ethics Advisory Committee Opinion 09-10 concludes that a lawyer may “claim” a website listing, but that doing so means all information contained therein, including peer endorsements, client ratings and the company’s ratings, are subject to the rules governing communication and advertising. The committee opines that statements made on the website are not governed by the Rules of Professional conduct unless placed or disseminated by the lawyer or by someone on the lawyer’s behalf; however, once the attorney “claims” the listing, the lawyer is responsible for statements made and must be certain they comply with the ethical rules. Advertisements about ratings organizations such as Super Lawyer also have been considered and deemed permissible on the grounds that prohibiting
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advertisements of such designations is likely unconstitutional because they are factually verifiable. See, e.g., In re Opinion 39 of the Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008). As long as the rating is presented in a non-misleading way and is independently verifiable, including one’s rating in an online listing or elsewhere appears to be permissible. The committee’s opinion provides that an attorney has a continuing responsibility to monitor his web-based profile and, if at any time, any part of the listing cannot be brought into compliance with the ethical rules, the lawyer should remove the entire listing and discontinue use of the service. In light of the opinion, before “claiming” a web-based profile, an attorney should discover what control she may have over present or future content posted on the site or associated with the profile. Then there’s the issue of how the world of electronic information affects our clients. That is a whole other article in itself but you may want to take a look at the most recent 85-page opinion out of the Southern District of New York captioned “Zubulake Revisited: Six Years Later.” In Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, Judge Shira Scheindlin sanctioned 13 plaintiffs for negligence or gross negligence in identifying, preserving and collecting electronically stored information. Suffice it to say that attorneys and clients need to even more closely supervise and scrutinize their efforts to preserve electronic evidence. It is said we are living in exponential times and all of this technology can be difficult to keep up with but the fact is we cannot hide from it. Be cautious, take the initiative to keep yourself “up” on the latest rules and decisions and look at it as an opportunity to develop another niche. The new generation is said to have the “gene” for technology. Make use of that and embrace the change. In the great words of Dr. Seuss: “Oh, the places you’ll go! There is fun to be done! There are points to be scored. There are games to be won. And the magical things you can do with that ball will make you the winning-est winner of all. ...So be sure when you step. Step with care and great tact and remember that Life’s a Great Balancing Act. Just never forget to be dexterous and deft. And never mix up your right foot with your left. And will you succeed? Yes! You will, indeed! (98 and ¾ percent guaranteed).” Thanks for listening. It has been a privilege to serve as the Chair of the Young Lawyers Section of the State Bar of Nevada.
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