This article updates the September article in this column regarding the ethical issues that arise when lawyers travel internationally while carrying electronic devices containing client confidential information, and highlights two recent ethics opinions, one addressing confidentiality concerns when lawyers discuss client matters on social media, and one outlawing participation in Avvo by New York lawyers.
In “Threading the Needle: Protecting Client Information From U.S. Border Searches,” N.Y.L.J., Sept. 1, 2017, p.3, this column discussed recent New York City Bar Ethics Opinion 2017-5. While commending the Ethics Committee for raising awareness of the risks that may arise when lawyers cross back into the United States with their digital devices, the article noted that the Opinion neither illuminated the basic rule that lawyers have a duty to act reasonably to protect client confidential information, nor offered clear and uniform guidance as to what this requires lawyers to do in practice. Since writing that column, I have heard two constructive, practical suggestions for what lawyers can do to better protect confidential information when returning to the United States. First, lawyers who are not already members of the Global Entry program (GOES), a U.S. Customs and Border Protection Program, https:/ttp.cbp.dhs.gov, should consider joining. For a fee of $100, members of the program bypass the long lines to pass through an otherwise mandatory immigration check by an immigration officer. Instead, using an automated kiosk, members show their passports, give their fingerprints, and receive a ticket which permits them to proceed straight to the U.S. Customs hall, after handing in the ticket (to show that they are members) on the way. Membership is renewable (again for $100) every five years. Although this does not give complete assurance that the returning lawyer won’t be stopped, it may reduce the odds of that happening. And it has the added (and intended) advantage that passage through both immigration and customs is greatly accelerated.
The second suggestion, although not affecting the likelihood (or not) of being stopped and asked to produce one’s devices, enables a lawyer who has the misfortune of being stopped to delay the government’s actual review of the contents of the devices while seeking court protection for the information stored on the devices. And it is simple and practical: (1) make sure that all devices are password protected; and (2) turn all devices, including phones and tablets, off before going through immigration and customs. The reason for this advice is that even if the device also has biometric (e.g., fingerprint) protection, whenever the device is first turned on it will (or can be set to) automatically ask for the password before the biometric process activates. For more information on this feature, see https://www.engadget.com/2014/10/31/court-rules-touch-id-is-not-protected-by-the-fifth-amendment-bu/. Whether or not the unfortunate lawyer has a Fifth Amendment right not to provide his or her password is beyond the scope of this article, but if she declines to provide the password at this point, she is at a standoff—and the agent has taken custody of the device. But it takes time for the authorities to break into the device, if they are minded to do so. Accordingly, when the lawyer is eventually permitted to proceed—presumably without the seized devices—he or she can then get counsel or make a bee-line for the courthouse and pro se seek appropriate protective assistance from the court. For the government’s perspective on all this, see this link to the Department of Homeland Security’s tip card while traveling: https://www.dhs.gov/sites/default/files/publications/Cybersecurity%20While%20Traveling_7.pdf
Client Information on Social Media
Although this column does not often discuss ethics opinions from other states, a recent opinion form Wisconsin is notable for the clarity and good sense that it offers to lawyers who are active blawgers or users of other social media tools. The principal issue addressed in Wisconsin Formal Ethics Opinion EF-17-02 is whether it is permissible to disclose the identity of a client for purposes of marketing the lawyer’s or law firm’s practices on social media if the disclosure is harmless, or if the identity of the client is already a matter of public record.
The opinion makes it clear that disclosure of a client’s identity, without informed consent, is prohibited unless the disclosure falls under limited exceptions, based on Wisconsin Supreme Court Rule (SCR) 20:1.6, which, for these purposes is functionally the same as New York Rule of Professional Conduct (RPC) 1.6, and Model Rule 1.6. Since in both states, and in the Model Rule, these rules prohibit lawyers from revealing information “related to representation of a client,” the Opinion addresses whether client identity falls within this category. The Comments to the rules state that the confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever the source.” Importantly, the ABA Ethics Committee previously considered the scope of the duty of confidentiality in Formal Ethics Op. 04-430 (2004), and found that the “protection afforded by Rule 1.6 is not forfeited even when the information is available from other sources or publicly filed, such as in a malpractice action against the offending lawyer” (emphasis added).
The duty of confidentiality applies automatically even if the client does not request the information be kept confidential or if the client does not consider it confidential. In order to disclose information relating to the representation of a client, it is the lawyer’s obligation to obtain informed consent, or determine if there is another exception that allows disclosure of the information. Even if the lawyer thinks that disclosure of the information is harmless, it does not mean that the disclosure is permitted, absent seeking and obtaining actual client consent.
The Opinion also rightly recognizes that attorneys also have duties with respect to confidences received from prospective clients, and that the duty of confidentiality continues beyond the death of a client.
Notably, the advertising rule in Wisconsin SCR 20:7.2, and in NYCR 7.2 are consistent with this confidentiality obligation in that these rules also allow lawyers only to disclose the names of regularly represented clients in attorney advertising with consent.
The ethical duty of confidentiality is extremely broad, applying not just to the identity of the client but also to any information related to the representation of a client no matter the source.
One other point needs to be made, about using social media to advertise a successful outcome in a matter by describing the matter but leaving out the client’s name. This is extremely risky, as viewers of the post, (or tweet, or whatever), may be able to identify the client because they are sufficiently familiar with the story to put two and two together. Merely omitting the client’s name may not be sufficient to protect the confidence. And here again the solution for the lawyer who is or wishes to actively trumpet her successes in social media venues is very simple—just ask the client before making the post or sending the tweet.
In Opinion 1132 (8/8/17), the New York State Bar Association Committee on Professional Ethics considered the broad topic of whether is permissible for lawyers to pay nonlawyers for a recommendation or referral. However, the Opinion in fact focuses on whether the New York RPCs permit New York lawyers to pay Avvo’s marketing fees. The Opinion describes in explicit detail how clients pay a fixed or flat fee to have access to lawyers listed on Avvo’s website. Every lawyer is assigned a rating by Avvo, but lawyers who provide information to Avvo receive a higher rating than those who choose not to participate in any way. However, lawyers cannot offer their services through Avvo unless they meet Avvo’s minimum criteria and sign up with Avvo to be listed on the site and agree to Avvo’s pricing schedule and marketing fees. The Opinion exhaustively describes how clients pay to access Avvo listings, how lawyers pay marketing fees, and how the amounts paid by clients after they select a lawyer are paid over to the lawyers minus Avvo’s fee. The Opinion focuses on the application of RPC 7.2(a) which states: “A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client” (emphasis added). The Opinion notes that “[u]nder Rule 7.2, although lawyers may ethically pay nonlawyers for advertising … and that the Comment 1 to RPC 7.1 states that “[t]o comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral” (emphasis added). While noting that providing a bona fide rating is not the same as a recommendation, the Opinion reaches the determination that “the way Avvo describes in its advertising material the ratings of participating lawyers either expressly states or at least implies or creates the reasonable impression that Avvo is ‘recommending’ those lawyers.” Accordingly, the Opinion concludes that ‘[a] lawyer paying Avvo’s current marketing fee for Avvo Legal Services is making an improper payment for a recommendation in violation of Rule 7.2(a).”
The Opinion also identifies, but does not resolve, other possible problems that may arise were lawyers permitted to pay Avvo marketing fees, including (among other concerns) whether the ratings are in fact “bona fide” (if not the lawyer would violate RPC 7.1′s prohibition of “false, deceptive or misleading advertising.”); whether by agreeing to provide limited services for fixed fees as advertised by Avvo, they are agreeing to provide what may amount to less than competent services; and whether the payment arrangements constitutes improper fee sharing with nonlawyers.
Notwithstanding that opinions on the public policy issues regarding the value and utility of any of the rules governing lawyer advertising may differ—and may be ripe for a fuller debate—while the rules remain in force in their present form, New York lawyers may not participate in Avvo by paying the service marketing fees.
Anthony E. Davis is a partner of Hinshaw & Culbertson and is a past president of the Association of Professional Responsibility Lawyers.