Technology and Ethics (“Technethics”) – 2013 in Review – Part Two

Originally published as Ethics Watch: Technology and Ethics (“Technethics”): 2013 in Review, South Carolina Lawyer 14 (March 2014)

Bidding on the name of a competitor firm to obtain a sponsored link above the competitor in a Google search does not violate Wisconsin’s privacy law.  Under Wisconsin law use of a person’s name for advertising purposes without the person’s consent violates the right of privacy.  In Rottier v. Cannon, 828 N.W.2d 876 (WI Ct. App. 2013), rev. denied, 839 N.W.2d 616 (2013), the defendant law firm purchased the names of the plaintiffs from Google, Yahoo!, and Bing. Whenever a searcher entered the names of the plaintiffs, the defendant’s sponsored link would appear above the plaintiffs’ organic link in the search results.  The plaintiffs sued claiming that the defendants conduct violated Wisconsin privacy law.  The state court of appeals held for the defendants.  It found that the defendants’ purchase of the plaintiffs’ names for internet search purposes did not amount to public use of their names.  The court analogized the situation to one in which a business moves its operation near to that of a competitor in order to obtain some of the competitor’s traffic.  The court did not decide whether the defendant’s conduct violated federal trademark law because it found the argument to be “insufficiently developed.”

ABA Ethics Committee cautions lawyers about use of Deal-of-Day marketing programs. In Opinion 465 issued October 21, 2013, the Committee analyzed two types of programs: coupon and prepaid. In a coupon program, the purchaser buys a voucher entitling the purchaser to a discount on legal fees. In the prepaid plan, the purchaser pays a lump sum for a described legal service or specified number of hours. The Committee concluded that coupon plans could probably be structured to comply with the Rules of Professional Conduct. On the other hand, prepaid plans, while not per se unethical, posed problems with regard to handling and refund of legal fees.

New Hampshire opinion advises lawyers on use of social media to contact witnesses in the course of litigation.  In Opinion 2012-13/05 the New Hampshire Ethics Advisory Committee dealt with a number of issues connected with contacts with witnesses in the course of litigation.  The committee began its analysis with the lawyer’s duty of competency: “counsel has a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”  Based on this duty of competency, the committee advised that lawyers could seek to obtain publicly available information from a witness’s or party’s social media account.  The duty of competency, however, is subject to a number of ethical restrictions.  In seeking social media information an attorney may not engage in deceitful conduct in violation of Rules 4.1 and 8.4.  This means that an attorney may not use a false name or other false identifying information to obtain access to a witness’s restricted social media information.  The committee advised that it was not sufficient for a lawyer to use only the lawyer’s name when making a friend request because that form of request contained an implied representation that the lawyer was disinterested. While committees in Pennsylvania and San Diego agree with this position, the New York City Bar has taken a contrary view.   If a witness is represented by counsel in connection with a matter, the lawyer may not communicate with the witness either through social media or any other form without the consent of the witness’s counsel.  Lawyers may not use third persons, such as investigators, to acquire social media information in ways that the lawyer could not do.  However, a lawyer may ethically advise a client of the client’s right to obtain such information.   In addition, if a third person, not acting at the direction of the lawyer, acquires a witness’s restricted social media information and provides the information to the lawyer, the lawyer may ethically use the information.

Lawyers may use text messaging to contact potential clients but with so many limitations that the method may not be practically useful.  The Ohio Disciplinary Board has advised that lawyers may use text messaging to contact potential clients.  In addition, the Board decided that text messaging generally did not amount to “real-time electronic contact” in violation of Rule 7.2 dealing with solicitation, distinguishing text messaging from contact in chat rooms.  Ohio Opinion #2013-2.   However, the committee also advised that text messages must comply with all of the requirements governing advertising, including identification of the name and address of the responsible lawyer, statement that the message constitutes “Advertising Material,” and provision of other disclosures required by the Ohio Rules.  The committee also discussed a number of other restrictions that would apply to the use of text messages.  The limitations in the opinion are so burdensome that most lawyers will probably find text messaging to be an impractical and risky means of trying to acquire clients.

Virginia ethics opinion approves use of virtual offices and executive suites but cautions lawyers on complying with their ethical obligations.   In recent years an increasing number of lawyers engage in the practice of law through virtual offices that provide a mailing address and phone number without a physical presence by the lawyer.  Virtual offices are often combined with executive suite rentals in which the lawyer rents access to a shared office suite.  Executive rentals have a variety of levels of service including separate offices, copying and fax, staff availability for designated prices, etc.   In Opinion 1872, the Virginia Ethics Committee advised that lawyers may ethically operate their practice through virtual offices and executive suites.  The committee discussed various rules that are applicable to law offices generally and virtual office/executive suites in particular.  In the context of virtual offices/executive suites, compliance with these duties may require a higher level of precaution than applicable to law firms generally. The committee pointed out that reference to a virtual office/executive suite as the lawyer’s law office could be misleading if the lawyer did not actually provide legal services from that location.

Other materials of note

Use of a database to acquire information about a potential client’s payment history is ethically permissible provided the client gives informed written consent.   Texas Opinion, #622.

Small Law Firm Committee of the New York City Bar issues report on Cloud Computing giving guidance to lawyers with regard to their due diligence obligations.  Browser > “New York City Bar” + “cloud computing.” [or see comment and link here]


See also Technology and Ethics (“Technethics”) – 2013 in Review – Part One