Legalethics.com

The issue resolved in City of Ontario v. Quon, __ US __ (2010), turned on whether a police officer’s Fourth Amendment rights were violated when his employer, the police department, reviewed text messages on his pager for legitimate business reasons. The Court held that the search was reasonable.

While criminal law is not our forte, this case has potentially enormous significance for privilege in electronic communications. At this time, a wave of cases addressing whether an employer, or (much more significantly), a third party, e-mails sent from an e-mail account maintained at a business where that business as an enforceable policy providing that personal e-mails are monitored and not confidential can, nonetheless, be claimed as privileged. Although the issue typically arises in employee-employer litigation, where the employer wants access to e-mails sent from the employee to his lawyer, the principle that privilege is waived would apply where a third-party seeks access as well.

Quon will likely influence this body of law, as well. Stay tuned.

A law graduate was held unfit to take a bar exam for the combined conduct of engaging in selling 300-500 Chinese knock-off DVDs and not disclosing the subsequent copyright infringement suit in In re Brown (Ohio May 5, 2010).

There’s a great story by CBS here concerning the fact that for the last eight years, most digital copies contain a harddrive that retains an image of the last 20,000 copies made. Law firms selling or otherwise discarding their copiers should consider treating them just like a laptop, and take appropriate steps to protect client confidences.

The story is here.

Professor Hricik’s paper on ethics and the Internet, which includes coverage of ethical issues created by use of social networking sites such as Facebook and MySpace, as well as linking by clients to lawyer webpages, and other issues, is available on-line here.

Not making this one up: the opinion is here.  In a split decision, the majority reasoned that “friending” a lawyer who appeared before the judge suggested improper influence.

If you see a judge today, don’t wave!

An article in Wired Magazine reports that half of the Internet’s top websites use a little known feature in the Flash plug-in that allows for tracking of browsing activity and gathering of “private” information.  Ryan Singel, You Deleted Your Cookies?  Think Again (Aug. 2009).

The South Carolina bar association addressed a hypothetical webside that listed attorneys without their involvement, and allows “clients” and others to “rate” the attorney.  The bar association held that a lawyer could claim his listing in this service, but that all comments made about him were subject to the advertising rules.  “[A]ll content in a claimed listing must conform to” the advertising rules, so held the opinion. It also basically says a laywer can’t solicit improper endorsements, and so on.

Frankly, this one baffles me.  I can understand why you can’t ask someone to say something about you that you can’t yourself say, because of Rule 8.4, but am I really under an obligation to make sure non-clients comply with the lawyer advertising rules?  Stay tuned, but in the meanwhile, you South Carolina lawyers better go read your various listings, I suppose including Face book!

It’s not online yet, but presumably shortly will be here.  I’ll gladly email you a copy if you email hricik_d@law.mercer.edu

There’s an article here about criminals using “anti-virus” software to plant trojan horses that let them intercept communications, and more.

     A Tennessee woman was arrested for virtually “poking” someone on Facebook, violating a TRO.  You can read about it here.

A few months back, a Philadelphia bar opinion held that a lawyer could not use a fake “name” on facebook to become befriended so as to gain access to an opposing party’s home page, as it violated Rules 4.2, 4.3 and 8.4.  That opinion is here.

There’s an interesting article on this subject here.

Vermont Bar Association Professional Responsibility Section Opinion 2009-1 concluded that a lawyer could “search” for metadata, but may have an obligation to notify the sender of the existence of the metadata pursuant to Rule 4.4(b)

In Russo v. Takata Corp., _ N.W.2d __ (S.D. 2009) after a person who became a juror was summoned, but before being seated as a juror, the person ran some Google searches pertaining to seatbelts made by the defendant in a wrongful death action. The verdict was set aside for juror misconduct.

New Hampshire attorneys may not search for, review, or use metadata in electronic materials received from opposing counsel. New Hampshire Bar Ass’n. Ethics Comm., Op 2008-2009/4 (April 16, 2009)

Pennsylvania lawyers who receive electronic content from opposing counsel can examine metadata hidden in documents and use it for the client’s benefits. Pennsylvania Bar Ass’n, Comm. on Legal Ethics and Professn’l. Responsibility, Formal Op. 2009-100