New Hampshire Ethics
“Technical Competence”
Christopher Hart, Foley Hoag LLP
Rita S. Heimes, IAPP
Clifford E. Nichols III, Day Pitney LLP
Presented By:
Presenter
Day Pitney LLP
Ethical Dilemmas Involving Technology
1. What is competent representation in the digital
age?
2. How does a lawyer preserve client confidences?
3. Can you mine metadata? Scrub metadata?
4. Can you gather evidence from social
media?
5. Should/must you use analytics or
technology-assisted searches?
Ethical Duties
1. Competency
2. Preservation
3. Supervision
4. Confidentiality
5. Fairness
6. Cooperation
7. Candor
8. Loyalty
ABA Model Rule 1.1: Competence
“A lawyer shall provide
competent representation
to a client. Competent
representation requires the
legal knowledge, skill,
thoroughness and
preparation reasonably
necessary for the
representation.”
ABA Model Rule 1.1: Competence
▪ Comment 8, added in 2012
▪ Maintaining Competence
▪ To maintain the requisite knowledge and skill, a lawyer
should keep abreast of changes in the law and its
practice, including the benefits and risks associated with
relevant technology, engage in continuing study and
education and comply with all continuing legal education
requirements to which the lawyer is subject.
New Hampshire Rule 1.1: Competence
(a) A lawyer shall provide competent representation to a client.
(b) Legal competence requires at a minimum:
(1) specific knowledge about the fields of law in which the lawyer practices;
(2) performance of the techniques of practice with skill;
(3) identification of areas beyond the lawyer's competence and bringing those areas to the client's
attention;
(4) proper preparation; and
(5) attention to details and schedules necessary to assure that the matter undertaken is completed
with no avoidable harm to the client's interest.
(c) In the performance of client service, a lawyer shall at a minimum:
(1) gather sufficient facts regarding the client's problem from the client, and from other relevant
sources;
(2) formulate the material issues raised, determine applicable law and identify alternative legal
responses;
(3) develop a strategy, in consultation with the client, for solving the legal problems of the client; and
(4) undertake actions on the client's behalf in a timely and effective manner including, where
appropriate, associating with another lawyer who possesses the skill and knowledge required to assure
competent representation.
NH Ethics Committee Comment
▪ The New Hampshire Rule continues the prior New Hampshire Rule,
expanding on the Model Rule to serve both as a guide and objective
standard. The Model Rule standards of legal knowledge, skill,
thoroughness, and preparation reasonably necessary are rejected as
being too general.
▪ ABA comment [8] … requires that a lawyer should keep abreast of . . .
the benefits and risks associated with relevant technology." This
broad requirement may be read to assume more time and resources
than will typically be available to many lawyers. Realistically, a
lawyer should keep reasonably abreast of readily determinable
benefits and risks associated with applications of technology
used by the lawyer, and benefits and risks of technology lawyers
similarly situated are using.
▪ Lawyers must understand the ins and outs of
technology in order to provide competent
representation to their clients.
How competent do you need to be?
Rule 1.1: Competence
“A lawyer shall provide
competent representation
to a client. Competent
representation requires the
legal knowledge, skill,
thoroughness and
preparation reasonably
necessary for the
representation.”
▪ In house counsel is faced with its first e-discovery
request.
▪ What should she/he do to protect its client:
▪ Retain technical consultants?
▪ Teach themselves quickly?
▪ Tell the CEO that they are not able to manage the
request?
Hypothetical
Duty of Competence
▪ Competence in locating, reviewing and
producing ESI in litigation and regulatory work is
among the greatest challenges for lawyers today
▪ Counsel’s ability to examine and produce ESI is
central to managing discovery in the modern
age
Duty of Competence: Legal Knowledge &
Skill
▪ When to hire a consultant:
▪ Anytime training and experience of your staff or
your client’s staff would make you uncomfortable
if you had to call them as witnesses
▪ Anytime conflicts of interest might really hurt your
case
▪ Anytime the current workload of your staff would
prevent them from focusing on your case
▪ Anytime your staff lacks the tools and equipment
to handle the job
It is critical that inside counsel, outside counsel, and all
third-party e-discovery vendors/consultants have a clear
understanding at the outset of litigation (or even earlier if
possible) of a company’s sources of electronically stored
information (“ESI”), including all potential custodians,
internal document retention policies, document retention
architecture, and key information.
WHY?
DISCOVERY: Technical Understanding
▪Court found plaintiffs’ counsel
“did not understand the technical
depths to which electronic
discovery can sometimes go”
▪Counsel has an obligation to
search for sources of
information to understand
where data is stored
▪Issued monetary sanctions due
to counsel’s failure to speak with
key figures at the company-In re A & M Florida Props. II, 2010 WL 1418861
(Bankr. S.D.N.Y. Apr. 7, 2010).
Duty of Competence: EDiscovery Knowledge
is an Obligation
Rule 1.1, Cmt. [8]: Maintaining Competence
“To maintain the requisite
knowledge and skill, a
lawyer should keep
abreast of changes in the
law and its practice,
including the benefits
and risks associated with
relevant technology…”
…so what does this mean?
▪ A new IT professional that has joined your company He is aware
that attorneys are required to be technically competent. He asks
you what is necessary in order to satisfy your obligations of
confidentiality and privilege. He tells you that it is no longer
sufficient for security to be farmed out to his team.
▪ What is your duty to make sure security systems are adequate?
▪ What is adequate relative to passwords, email encryption, anti-virus
software (including frequency of updates), firewalls, being vigilant
about phishing scams, etc.
▪ How should you think about this same duty with regard to third-party
vendors?
▪ How does this translate when the company is contemplating a
merger/acquisition?
Hypothetical
Rule 1.6: Confidentiality of Information
“(c) A lawyer shall make
reasonable efforts to
prevent the inadvertent
disclosure of, or
unauthorized access to,
information relating to the
representation of a client.”
…what efforts are reasonable to prevent disclosure?
New Hampshire Rule 1.6: Confidentiality of
information
▪ Follows ABA model rule
▪ (c) A lawyer shall make reasonable efforts to prevent
the inadvertent or unauthorized disclosure of, or
unauthorized access to, information relating to the
representation of a client.
NHBA Ethics Committee Opinion
▪ Border Law and Confidential Client Information: Practical
Considerations and Ethical Obligations
▪ #2018-19/1, published 5/6/2019
▪ “Given the possibility that a lawyer’s electronic devices may be
subject to search without reasonable suspicion both at the U.S.
border and within foreign countries, lawyers traveling abroad
may need to take special precautions to ensure that the
confidentiality of client information is not compromised.”
Your company is about to produce 1,000,000 documents.
▪ How do you know this does not constitute
inadvertent disclosure?
▪ What technology must be used to
protect confidentiality?
▪ How is privilege preserved in email and
what about mass-forwards?
Hypothetical
Duty of Confidentiality: Privilege Issues
▪ Protecting privilege in the era of electronic
discovery is growing increasingly difficult given
the volume of data
▪ Counsel should consider entering into a
protective order, clawback agreement or quick
peek agreement
▪ Counsel should also familiarize themselves with
Fed.R.Evid. 502
▪Court found privilege was
waived regarding e-mails sent via
company e-mail addresses using
company computers
▪Attorney should have been
aware client’s employer would be
monitoring and accessing e-mail
sent to that address since it is
now a common practice-Alamar Ranch, LLC v. County of Boise, 2009
WL 3669741(D. Idaho. Nov. 2, 2009).
Duty of Confidentiality: Attorney Beware
What about cloud computing?
▪ Cloud computing raises legal ethics issues,
particularly around competence and
confidentiality of information as information
stored in the cloud is outside the lawyer’s
control, and is often in numerous locations,
including different countries
▪ Lawyers must ensure steps are taken to
safeguard security and confidentiality of client
information
NHBA Ethics Committee Opinion
▪ The Use of Cloud Computing in the Practice of Law
▪ #2012-13/04, published 2/21/2013
▪ “The NHBA Ethics Committee adopts the consensus among
states that a lawyer may use cloud computing consistent with his
or her ethical obligations, as long as the lawyer takes reasonable
steps to ensure that sensitive client information remains
confidential.”
▪ An attorney working as in-house corporate counsel for a bank
instructs the information technology team to mark “privileged” all
documents related to the operation of its compliance program,
including all policies and procedures. In litigation, the bank refuses
to disclose the documents, claiming they are protected by attorney-
client privilege.
▪ Are the documents shielded from disclosure?
Hypothetical
Rule 3.3: Candor Toward The Tribunal
“(a) A lawyer shall not
knowingly:
(1)make a false
statement of fact or
law…
***
(3) offer evidence that
the lawyer knows to
be false”
New Hampshire Rule 3.3: Candor toward
the tribunal
▪ Follows ABA model rule
▪ (a) A lawyer shall not knowingly:
(1) make a false statement of fact or law …
(3) offer evidence that the lawyer knows to be false…
▪“Distorted representations” of
discovery production and
accuracy contradicted
defendants’ duty of candor to the
court
▪Court ordered defendants to pay
$1,000 in sanctions for discovery
misconduct-Baez-Eliza v. Instituto Psicoterapeutico de
Puerto Rico, 275 F.R.D. 65 (D.P.R. 2011).
Duty of Candor: Dishonesty Will Cost You
▪ An in-house lawyer advises the CEO and the Board that the
company is out of compliance with mandatory information security
standards, and indeed has recently experienced a security incident
that the lawyer believes requires notification to customers and
regulators under federal and state laws. The CEO and Board
determine that no action shall be taken to improve security
standards or notify affected consumers or regulators.
▪ May (should) the lawyer inform customers and the regulators?
(Model Rules 1.13)
Hypothetical
Rule 3.4: Fairness
Unobstructed Process & Access to
Evidence; Preservation
“A lawyer shall not:
(a) unlawfully obstruct another
party’s access to evidence
or unlawfully alter, destroy
or conceal a document or
other material having
potential evidentiary value.
A lawyer shall not counsel
or assist another person to
do any such act….”
New Hampshire Rule 3.4: Fairness
Unobstructed Process & Access to
Evidence; Preservation
▪ Follows ABA model rule
▪ A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or
unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act …
▪ After a data breach, in-house counsel engages a technical
consultant experienced in digital forensics as part of the post-breach
investigation. Counsel’s final report, written with assistance from the
consultant, discloses and discusses the fact that access controls
were not in place as required by the company’s policies and state
regulations. When the state regulatory agency investigates, it
inquires whether the access controls were in place.
▪ What portions (if any) of the report must counsel disclose?
Hypothetical
Duty of Fairness: Unobstructed Process &
Access to Evidence
Scott Adams, Inc./Dict. by UFS, Inc.
Rule 3.4: Fairness
Non-Frivolous Litigation Tactics
“A lawyer shall not:
(d) in pretrial procedure,
make a frivolous discovery
request or fail to make
reasonably diligent efforts to
comply with a legally proper
discovery request by an
opposing party….”
New Hampshire Rule 3.4: Fairness
Non-Frivolous Litigation Tactics
▪ Follows ABA model rule
▪ A lawyer shall not:
(d) in pretrial procedure, make a frivolous discovery request or
fail to make reasonably diligent effort to comply with a legally
proper discovery request by an opposing party…
▪Plaintiff failed to abide by local
rule requiring attorneys to meet
and confer in good faith before
filing motion to compel
▪Court warned the parties to “act
less like armed combatants and
more like highly skilled
professionals” going forward-B & B Hardware, Inc. v. Fastenal Co., 2011 WL
2115546 (E.D. Ark. May 25, 2011).
Courts Require Good Faith Efforts
United States District Court,
E.D. Arkansas,
Western Division
B & B HARDWARE, INC., Plaintiff,
v.
FASTENAL COMPANY., Defendant.
No. 4:10CV00317 BRW/JTR
May 25, 2011
▪Attorneys “embarked upon a
course entailing a conscious
effort to maximize litigation and
to make certain [it] was as time-
consuming, difficult, unpleasant,
and expensive as possible”
▪Two attorneys were held
personally liable in the
amount of $3,750 each, to be
paid without reimbursement
from the law firms or clients.-Alford v. Rents, 2010 WL 4222922 (S.D.
Ill. Oct. 20, 2010).
Courts Are Losing Patience for
Uncooperative Counsel
▪ What is a reasonable inquiry for mobile devices? How does the
answer change for:
▪ Company owned devices
▪ BYOD
▪ Personal devices with commingled business information
▪ Independent Contractors
Hypothetical
Rule 4.4: Respect for Rights of Third
Persons
“(b) A lawyer who receives a
document or electronically stored
information relating to the
representation of the lawyer’s client
and knows or reasonably should
know that the document or
electronically stored information
was inadvertently sent shall
promptly notify the sender.”
New Hampshire Rule 4.4: Respect for
Rights of Third Persons
▪ (b) A lawyer who receives materials relating to the representation of
the lawyer’s client and knows that the material was inadvertently
sent shall promptly notify the sender and shall not examine the
materials. The receiving lawyer shall abide by the sender’s
instructions or seek determination by a tribunal.
▪ Ethics Committee Comment▪ Paragraph (b) differs from the ABA model rule in three respects: the broader term “materials”
replaces “document;” the phrase “reasonably should know” is deleted setting an objective
standard for “knowledge”; and a second sentence is added. The second sentence
incorporates the New Hampshire Bar Association’s Ethics Committee’s June 22, 1994,
Practical Ethics Article, “Inadvertent Disclosure of Confidential Materials.” The Committee
concluded that notice to the sender did not provide sufficient direct guidance to lawyers.
▪ The term “materials” includes, without limitation, electronic data.
NHBA Ethics Committee Opinion
▪ Disclosure, Review and Use of Metadata in Electronic
Materials
▪ #2008-09/04▪ “…Lawyers sending electronic materials to opposing counsel are ethically
required to take reasonable care to avoid improper disclosure of confidential
information contained in metadata, … There can be no per se rule on what
constitutes reasonable care in transmission of metadata...”
▪ “Receiving lawyers have an ethical obligation not to search for, review or use
metadata containing confidential information …”
▪ “This opinion does not address issues relating to the discovery of electronic
materials in adjudicative proceedings, which are handled under applicable rules
of court and law.”
▪ You have received PDF versions of contracts with
comments and changes embedded in the metadata.
What do you do?
▪ The CEO wants to monitor a closed Facebook group.
Do you tell him to go ahead?
Hypothetical
Social Networking & Blogs
▪ Use of social networking sites and blogs creates
potential for ethical violations or disciplinary
action for misconduct
▪ Raises confidentiality, integrity and propriety
issues
▪ Attorneys cannot “friend under false
pretenses” to gain access to profiles and
information otherwise kept private
Social Networking & Blogs
▪ As an example, the Florida
Bar reprimanded and fined
an attorney $1,200 for
violating ethics rules, by
writing on a courthouse
blog the judge was an “evil,
unfair witch” with an “ugly,
condescending attitude”
Social Media: a staple in everyday communication
▪ Digital consumers spend 2.5 hours every day on social networks and social messaging
Source: hootsuite.com
In June 2019, surpassed 2.41 billion users
Source: statista.com
In March 2019, reported 321 million users
Source: hootsuite.com
In May 2019, had 630 million users
Source: omnicoreagency.com
Facebook users 2008 -2019
▪ 88% of businesses with more than 100
employees use Twitter for marketing
purposes. (statusbrew, 2017)
▪ 2 million businesses used Facebook for
advertising in 2018. (hootsuite, 2018)
▪ Many companies now leverage enterprise
social networks for communications within the
organization
Social Media: more than personal communication
Many websites now offer
4+ links to share on social
media!
Why you should care about social media
“The reality of today's world is that social media,
whether it be Twitter, Facebook, Pinterest,
Google+ or any other site, is the way people
communicate and to some extent has
supplemented email for many people.”— Hon. Matthew Sciarrino
In People v. Harris, 945 N.Y.S.2d 505
(N.Y. City Crim. Ct. 2012)
(emphasis added)
Why lawyers should care about social media
Social Networking
Site
Number of Times
Referenced in Reported
Cases*
Est. Number of Users**
1. Facebook 3,763 2,410,000,000
2. YouTube 804 1,900,000,000
3. Instagram 253 1,000,000,000
4. LinkedIn 360 630,000,000
5. Twitter 788 321,000,000
6. Pinterest 96 250,000,000
7. Snapchat 114 186,000,000
8. MySpace 652 50,000,000
* Based on a Westlaw “allcases” federal and state search performed on August 1, 2019.
** According to data compiled by hootsuite, statisca, omnicoreagency, expandedramblings.com
Social Media Ethics
▪ Lawyers can (freely?) troll the publicly available portions
of social media sites for helpful evidence. ▪ Oregon State Bar Legal Ethics Comm., Op. 2013-189 (Feb. 2013) (lawyer may
always access “publicly available information;” also noting that a lawyer “may
not advise or supervise another’s deception to access a person’s nonpublic
information” as part of an investigation);
▪ N.Y. State Bar Assoc., Ethics Op. 843 (Sept. 10, 2010) (lawyers may access
another party’s social media site for potential impeachment material “as long
as the party’s profile is available to all members in the network and the lawyer
neither ‘friends’ the other party nor directs someone else to do so”);
▪ Philadelphia Bar Assoc., Ethics Op. 2009-02 (March 2009) (as long as attorney
attempted to friend third-party witness himself, using his real name, there was
no ethical violation as conduct did not involve “dishonesty, fraud, deceit or
misrepresentation”).
BUT IT’S NOT A FREE-FOR-ALL
▪ Lawyers may not friend represented parties.
▪ San Diego County Bar Assoc., Legal Ethics Op. 2011-2 (May 24,
2011) (“We have concluded that [the rules of ethics] bar an
attorney from making an ex parte friend request of a represented
party.”)
▪ Lawyers may not act in a deceptive manner in friending
third parties.
▪ Philadelphia Bar Assoc., Ethics Op. 2009-02 (March 2009)
(attorney’s agent could not attempt to “friend” a third-party witness
because the action was deceptive – i.e., the attorney’s agent did
not plan to reveal his affiliation with the attorney)
▪ Lawyers may not use social media to communicate with
jurors.
▪ N.Y. City Bar Ass’n, Formal Ethics Op. 2012-02 (June 2012)
Social Media Tips: “False Friending”
▪ A lawyer may not attempt to gain access
to a social networking website under
false pretenses, either directly or through
an agent
▪ NY State Bar Association – Formal Opinion
2010-2
▪ An attorney must disclose his true
intentions when attempting to access
social media, noting other ethical rules
prohibit attorneys from engaging in
dishonesty, fraud, deceit or
misrepresentation
▪ Philadelphia Bar Association Professional
Guidance Committee – Ethics Opinion No.
2009-02
THOU SHALT NOT
FALSE FRIEND
NHBA Ethics Committee Opinion
▪ Social Media Contact with Witnesses in the Course of
Litigation
▪ #2012-13/05, published 6/20/2013
▪ “The Rules of Professional Conduct do not forbid use of social
media to investigate a non-party witness. However, the lawyer
must follow the same rules which would apply in other contexts,
including the rules which impose duties of truthfulness, fairness,
and respect for the rights of third parties. ”
Respect for Rights of Third Persons
▪ Court determined attorneys’ retention of a
computer forensic expert to retrieve the
privileged e-mails and the subsequent use of
those e-mails violated Rule 4.4(b)
▪ Attorneys’ did not set aside the arguably privileged
messages and failed to notify the plaintiff or seek
court permission for use
▪ Referred to trial court what remedy was
appropriate (including disqualification of the firm)
▪ Stengart v. Loving Care Agency, Inc., 201 N.J. 300,
990 A.2d 650 (N.J. 2010).
Rule 8.4: Maintaining the Integrity of the
Profession
“It is professional
misconduct for a lawyer to:
(a) violate…the Rules of
Professional Conduct…
(c) engage in conduct
involving dishonesty, fraud,
deceit or
misrepresentation…”
New Hampshire Rule 8.4: Maintaining the
Integrity of the Profession
▪ Follows the ABA Model rule
▪ It is professional misconduct for a lawyer to:(a) violate … the Rules of Professional Conduct …
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
Maintaining the Integrity of the
Profession
▪ Plaintiff’s “flagrant defiance” of numerous court
orders and warnings, intentional destruction of
computers and hard drives, and blatant
disregard of discovery obligations resulted in a
“tremendous waste of resources”
▪ Dismissal was only viable sanction
▪ Aliki Foods, LLC v. Otter Valley Foods, Inc., 726 F.
Supp. 2d 159 (D. Conn. 2010).
Maintaining the Integrity of the
Profession▪ Court awarded $1,049,850.04 in attorney’s fees
and costs as a sanction for discovery abuse
▪ “Defendants’ misconduct affected the entire
discovery process since the commencement
of this case.”
▪ Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-
2662 (D. Md. Jan. 24, 2011) (part of the “Victor
Stanley II” decisions that began in September 2010).
Order was affirmed by the District Court: Victor
Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv-
02662-MJG (D. Md. June 15, 2011).
▪ Article 39 of the EU’s General Data Protection
Regulation requires data protection officers to
“cooperate” with supervisory authorities (lead privacy
regulators) of EU member states in the event of an
investigation.
▪ What ethical issues are raised by attorneys serving the
role of DPO in addition to in-house counsel?
▪ How can these be managed, if at all?
Hypothetical
