Legal Ethics: Technology in Law Practice

Richard Mayberry taught this class or sections of it to Northern Virginia lawyers for continuing legal education: 

Steer Clear of New Ethical Pitfalls Inherent in Evolving Technology Use


Session Time: March 24, 2011 from 2:00 PM - 3:30 PM  
Presenter: Richard Mayberry

  1. Changing Technology Brings New Ethical Dilemmas
    1. 20100 ABA Ethics Opinion 10-457
  2. The Duty of Competence and Diligence
    1. Why Lawyers Must Acquire New Technical Knowledge
    2. Wireless Communications: E-mail, Voice Mail, Text Messages, Instant Messages
    3. Metadata, "Hash" and Signature Analysis, Steganography, Spyware, Digital Watermarking
    4. Servers, Networks, Filtering, Application Software
    5. Personal Digital Assistants, Compact Discs, Thumb Drives
    6. Spam, Viruses, Trojan Horses
    7. Back-Up and Archiving of ESI
    8. When to Use Forensic Experts
    9. When to Refer Out the Case
  3. E-Data Stonewalling
    1. The Duty of Fairness: to the Court and to the Adversary
    2. Rambo Tactics are More Costly Than Ever
    3. Judicial Sanctions: How the Courts Punish Modern Day Offenders
    4. Referral to Bar Associations
    5. Which Trumps: the Duty of Fairness or the Duty to Represent the Client Zealously?
  4. Ethical Traps in the Use of E-mail
    1. When is There a Presumption of Confidentiality?
    2. Use and Misuse of Metadata: How the Bar Associations Have Weighed In
    3. Use of Disclaimers: Can They do More Harm Than Good?
    4. "Scrubbing" Programs: Are They Ethically Required?
  • Expectations of Confidentiality in Electronic Communications
    1. Playing on Offense and Playing Defense
    2. Interception of E-mail and Cell Phone Calls
    3. Employee Use of "Company" E-mail and Internet Access
    4. Employer Monitoring of Employee E-mails and Internet Searches
    5. Protection of Trade Secrets: The Lawyer's Responsibility
    6. Digital Recording: When can Lawyers do It?
  • Assertions of Privilege and Inadvertent Disclosures
    1. The Cost of Getting to the "Truth" in the Digital Age
    2. New Responsibilities Under the New Federal Rules and to the Bar
    3. "Sneak Peeks" and "Clawback" Agreements
    4. What to do if You Inadvertently Disclose Confidential ESI to Your Adversary
    5. What to do When Your Adversary Discloses Confidential ESI to You
  • March 24 2011 
    National CLE Teleconference  2:00 – 3:30 pm EST

    As your use of online and mobile tech in legal practice evolves, so do the ethical dilemmas you may face in using it. With ABA's recently renewed efforts to clarify the application of old ethics rules to new technologies, you need to be doubly on guard. Protect your clients and yourself - 

    • Learn how the "old rules" and recent ethics opinions apply to today's virtual law practice.
    • Understand how the duties of competence and diligence are being re-defined and what you must do to comply.
    • Discover the ethical traps in the use of email and how the courts have responded.
    • Find out what you must do during instances of inadvertent confidential ESI exposure.
    • Take a closer look at how technology has heightened the vulnerability of the attorney-client privilege and clarify your role in protecting it.