Legal Services for Online Students: Client Consultations ... · photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or

Legal Services for Online Students:Client Consultations and Ethical Issues

Gene Roberts, JD (Attorney) Danielle Hammond (Instructional Designer)Stephen Turner (Instructional Design Specialist)

A true story of one online student….

http://gato-docs.its.txstate.edu/jcr:071dcef6-4e89-4cb8-b141-0e64bdc74472/Nov%202016%20Final%20Board%20Book%20.pdf

http://gato-docs.its.txstate.edu/jcr:071dcef6-4e89-4cb8-b141-0e64bdc74472/Nov%202016%20Final%20Board%20Book%20.pdf

http://gato-docs.its.txstate.edu/jcr:9aaa9ce7-8175-4d64-ac55-beea12b46dc8/Minutes%20Regular%20November%202016.pdf

Why even think about this?

94% of SHSU undergraduate students take at least one online course

87% of SHSU graduate students take at least one online course

50% of SHSU online students live within 60 miles of our main campus (query…how accurate is this?)

50% of students in college, nationally, take at least one online course

Average age of 100% online students: 29

3 Desires

Provide services to all students

Maintain revenue

To be good stewards of time and money

Today’s students are used to—and want—content

2017 Survey of College Students

99% own a mobile device

Use an electronic device every 48 minutes

94% want to use cell phone in class for academic purposes

62% want videos in their course materials

https://www.vitalsource.com/press/students-want-more-from-classroom-tech-survey-reveals

https://campustechnology.com/articles/2017/12/12/students-want-to-use-their-cell-phones-in-class.aspx

https://pushingsocial.com/understanding-the-shift-from-social-media-to-content-marketing/

55% of Generation Z (1995 –2010) prefer face-to-face communication instead of IM or email.

Observed negative attention Millennials received about reliance on text, IM, email

Grew up with Skype, Facetime, Snapchat

Used to communications with full range of sound and motion

True digital natives (grew up with free Wi-Fi, no wire connections)

Expect others to conform to their needs (similar to Millennials and Boomers)

https://www.forbes.com/sites/morganstanley/2017/11/30/incorporating-inclusive-growth/#15845c37318b

https://pushingsocial.com/understanding-the-shift-from-social-media-to-content-marketing/

Social Media (Busy Work)

Content(Usefulness)

The students…and their technology…are facing us.

What do we do?

Remember the good ol’ days?

Elder, E. (2001) Ethical Use of Emerging Technologies in Law Practice




http://www.nysba.org/CustomTemplates/Content.aspx?id=5463

NY State Bar Association Opinion 749 (2001)

Finally, the inquiry that has prompted this opinion underscores the need for all lawyers to exercise care in using Internet based e-mail. Accordingly, we reiterate the admonition we offered in N.Y. State 709 (1998) that "lawyers must always act reasonably in choosing e-mail for confidential communications, as with any other means of communication.”

https://www.americanbar.org/groups/law_practice/publications/techreport/2016/virtual_law_practice.html

2016 ABA Legal Technology Survey Report



(23 States adopt Comment 8 verbatim or with local changes)

ArizonaArkansasConnecticutDelawareIdahoIllinoisIowaKansasMassachusettsMinnesotaNew HampshireNew Mexico

New YorkNorth CarolinaNorth DakotaOhioPennsylvaniaUtahVirginiaWashingtonWest VirginiaWisconsinWyoming









The rise of the virtual office and virtual communication relationships

Robertson (2014).

Robertson (2014).

Virtual Communication Relationship

Ethically, laws against hacking, etc. are good enough for us, right?

Federal Wiretap ActAmended by the Electronic Communications Privacy Act (1986) & for wireless/cellular communications (1994)18 USC 2511

• One intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication; or

• Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when the device is affixed to or transmitted through a wire, cable, or other like connection used in wire communication….or

• Intentionally discloses or uses, or endeavors to disclose or use the contents of any wire, oral, or electronic communication….

• Injunctive relief• $500.00 civil fine• Criminal penalties

Privileged materials stay privileged!18 USC 2517

No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.

Electronic Communications Privacy Act18 USC 2701

• One intentionally accesses without authorization a facility through which an electronic communication service is provided or

• Intentionally exceeds an authorization to access that facility• And obtains, alters, or prevents authorized access to a wire or electronic

communication while it is in electronic storage in such system

• ECS = a service to send wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications

• Up to 5 years federal prison and/or fine if for commercial advantage, malicious destruction, or private commercial gain

• Up to 1 year federal prison and/or fine otherwise, for first offense

Computer Fraud & Abuse Act18 USC 1030

• Criminalizes unauthorized access to computers to obtain financial information or commit fraud

• Criminalizes hacking and malicious viruses

• Prison 1 – 10 years• Fines

2014: 500 million users. Names, email addresses, dates of birth, phone numbers

2014: 145 million users. Names, email addresses, dates of birth

2017: 143 million customers. Names, dates of birth, SSN, DLs

2014: 76 million homes; 7 million businesses. Names, addresses, phone numbers, email addresses, “root security”

2014: 22 million current/former federal employees. “Detailed security clearance information and fingerprint data”

https://www.csoonline.com/article/2130877/data-breach/the-16-biggest-data-breaches-of-the-21st-century.html

When was the last time you cautioned a client about the risks associated with:

Use of a letter?Use of a fax?Use of a telephone?Use of an email?That their phone/fitbit is

tracking them and a hacker might know they are at an attorney’s office?

So, what have the gurus said about our ethical obligations in (electronic) communications with our clients?

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html

ABA Model Rule of Professional Conduct

1.6(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 the client.


NY State Bar Association Professional Committee on Professional Ethics Opinion 749 (2017)

A lawyer’s ethical duty of competence extends to the manner in which he provides legal services to the client as well as the lawyer’s substantive knowledge of the pertinent areas of law. The duty of competence expands as technological developments become integrated into the practice of law. Lawyers should be aware of the disclosure risks associated with the transmission of client confidential information by electronic means, and should possess the technological knowledge necessary to exercise reasonable care with respect to maintaining client confidentiality and fulfilling e-discovery demands. Further, a lawyer’s duty of competence in a litigation or investigation requires that the lawyer have a sufficient understanding of issues relating to securing, transmitting, and producing electronically stored information (“ESI”). The duty of technological competence required in a specific engagement will vary depending on the nature of the ESI at issue and the level of technological knowledge required. A lawyer fulfills his or her duty of technological competence if the lawyer possesses the requisite knowledge personally, acquires the requisite knowledge before performance is required, or associates with one or more persons who possess the requisite technological knowledge.


NY State Bar Association Professional Committee on Professional Ethics Opinion 749 (2017)

Compliance with RPC 1.6 requires that lawyers who use technology to store or transmit a client’s confidential information, or to communicate with clients, use reasonable care with respect to those uses. The lawyer must assess the risks associated with the use of that technology to determine if the use is appropriate under the circumstances.

Lawyers should be aware that the storage and transmission of a client’s confidential information electronically carries a risk of disclosure if the stored or transmitted data is hacked, or if human, software or hardware error results in an inadvertent disclosure.

https://www.floridabar.org/wp-content/uploads/2017/11/2017-RRTFB-Chapter-6-11-20-17.pdf

Rules Regulating the Florida Bar Rule 6-10.3(b) (2017)

Each member must complete a minimum of 33 credit hours of approved continuing legal education activity every 3 years. Five of the 33 credit hours must be in approved legal ethics, professionalism, bias elimination, substance abuse, or mental illness awareness programs and 3 of the 33 credit hours must be in approved technology programs, which are included in, not in addition to, the regular 33 credit hour requirement.

https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL%202015-193%20%5B11-0004%5D%20(06-30-15)%20-%20FINAL.pdf

The State Bar of California Standing Committee on Professional Responsibility and ConductFormal Opinion No. 2015-193

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.

https://www.legalethicstexas.com/getattachment/9936985b-f798-41c6-bc9f-97d4e0bff9de/Opinion-648

The Professional Ethics Committee for the State Bar of TexasOpinion No. 648 (2015)

Having read reports about email accounts being hacked and the National Security Agency obtaining email communications without a search warrant, the lawyers are concerned about whether it is proper for them to continue using email to communicate confidential information.

A determination of whether a lawyer violates the Disciplinary Rules, as opposed to fiduciary obligations, the law, or best practices, by sending an email containing confidential information, requires a case-by-case evaluation of whether that lawyer knowingly revealed confidential information to a person who was not permitted to receive that information under Rule 1.05.



Those ethics opinions often make two points in support of the conclusion that email communication is proper. First, the risk an unauthorized person will gain access to confidential information is inherent in the delivery of any written communication including delivery by the U.S. Postal Service, a private mail service, a courier, or facsimile. Second, persons who use email have a reasonable expectation of privacy based, in part, upon statutes that make it a crime to intercept emails



The issue in Opinion 572 was whether a lawyer may, without the client’s express consent, deliver the client’s privileged information to a copy service hired by the lawyer to perform services in connection with the client’s representation. Opinion 572 concluded that a lawyer may disclose privileged information to an independent contractor if the lawyer reasonably expects that the independent contractor will not disclose or use such items or their contents except as directed by the lawyer and will otherwise respect the confidential character of the information.



In general, considering the present state of technology and email usage, a lawyer may communicate confidential information by email. In some circumstances, however, a lawyer should consider whether the confidentiality of the information will be protected if communicated by email and whether it is prudent to use encrypted email or another form of communication. Examples of such circumstances are:



1. communicating highly sensitive or confidential information via email or unencrypted email connections;

2. sending an email to or from an account that the email sender or recipient shares with others;

3. sending an email to a client when it is possible that a third person (such as a spouse in a divorce case) knows the password to the email account, or to an individual client at that client’s work email account, especially if the email relates to a client’s employment dispute with his employer

4. sending an email from a public computer or a borrowed computer or where the lawyer knows that the emails the lawyer sends are being read on a public or borrowed computer or on an unsecure network;

5. sending an email if the lawyer knows that the email recipient is accessing the email on devices that are potentially accessible to third persons or are not protected by a password; or

6. sending an email if the lawyer is concerned that the NSA or other law enforcement agency may read the lawyer’s email communication, with or without a warrant.



In the event circumstances such as those identified above are present, to prevent the unauthorized or inadvertent disclosure of confidential information, it may be appropriate for a lawyer to advise and caution a client as to the dangers inherent in sending or accessing emails from computers accessible to persons other than the client.

What is reasonable…under the circumstances?

Unauthorized Practice of Law in Other States?

What do we do now on the USLSA listserv?Hello fellow listservers:

We have a student who attends our university and received a speeding ticket and a MIP over spring break in Wisconsin. The student was part of the university’s “Service Spring Break.” What’s the law on Wisconsin about deferred? Does the student have to physically appear in court? Two other questions: will this impact the student’s immigration status and is the Rule in Shelley’s case implicated?

Thanks!

Rules of the Supreme Court of Arizona31 (a)(2)(A)

“Practice of law” means providing legal advice or services to or for another by:

(1) preparing any document in any medium intended to affect or secure legal rights for a specific person or entity;(2) preparing or expressing legal opinions;(3) representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitration and mediation;(4) preparing any document through any medium for filing in any court, administrative agency or tribunal for a specific person or entity; or(5) negotiating legal rights or responsibilities for a specific person or entity.

Texas Government Code 81.101“Practice of law" means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.

Texas Government Code 81.101

(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.

Texas Government Code 81.101

(c) In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney....

Tension between access to legal services and advertising, marketing, and unauthorized practice of law.

http://www.nationalmagazine.ca/Articles/November-2014-Web/ABS-and-access-to-justice.aspx

ABA Model Rule 7.2(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

ABA Model Rule 7.3(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer; or(2) has a family, close personal, or prior professional relationship with the lawyer.

(b) A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress or harassment.

ABA Model Rule 7.3(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

Disclaimers—Should You Have One?Disclaimer:

Information provided at this site does NOT constitute legal advice. It is intended for information and educational purposes only. Every situation is unique, and if you need specific legal advice, please consult an attorney. Our ability to keep the information contained at this site updated and the accuracy of the information cannot be guaranteed. Neither the downloading of materials nor any communication constitutes the formation of an attorney-client relationship.

Disclaimer:

The Information contained in this web site does not constitute legal advice nor is it intended to constitute legal advice. It is not a substitute for consulting an attorney regarding one's particular case. The information and opinions contained herein are those of the student legal service and are not necessarily those of the University. All materials contained herein are the property of the University Student Legal Service and its attorneys – All Rights Reserved.

General Information or Particular

Advice

Get your own attorney

Informal, non-scientific survey of Texas attorneys on a closed Facebook group

What does our market want?

What does our market expect?

Can video conferencing help our offices?

Does video conferencing help treat all students the same?

What steps do we need to take to be ethical?

What technical assistance do we need to provide our students? In

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Documents

Legal Services for Online Students: Client Consultations ... · photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or