🏛️ MTC: The Perils of Hot Mics and Hasty Clicks: A Wake-Up Call for Tech-Savvy Lawyers 🚨

Always proofread your e-mails “before” you send them!

In the digital age, lawyers must navigate a minefield of potential ethical pitfalls as they embrace technology in their practice. A recent non-disciplinary admonition of an attorney highlighted by Professor Mike Frisch on the Legal Profession Blog serves as a stark reminder of the dangers lurking in our everyday digital interactions.

The case involved an attorney who faced a non-disciplinary admonition for two separate incidents of inappropriate behavior. 😬 In the first incident, the attorney made inappropriate comments during a June 2023 Aroostook County Unified Criminal Zoom docket call that was overheard by other participants. In a separate event, the attorney sent emails containing perceivably sexist language to a continuing legal education (CLE) provider. These cases vividly illustrate how easily digital missteps can occur in various professional settings and the consequences they can bring.

The Virtual Courtroom Conundrum 🏛️💻

As courts have increasingly adopted virtual proceedings, attorneys must adapt to new norms of professional conduct. The incident during the Zoom docket call highlights the critical importance of maintaining courtroom decorum, even in a virtual setting. It's essential to remember that the same standards of professionalism apply whether you're physically present in a courtroom or appearing via videoconference.

The Zoom Trap 🎥🔊

watch out for hot mic moments when in zoom courtroom hearing!

Zoom and other videoconferencing platforms have become indispensable tools for legal professionals, especially in the wake of the COVID-19 pandemic. However, they also present unique challenges. The line between formal and informal communication can blur, leading to a false sense of privacy or casualness. It's crucial to remember that even when you think you're muted, or your camera is off, there's always a risk of being heard or seen.

💡 TIP: I use a device called “MuteMe.” It’s a big button that is USB-wired to my computer. I have it set for “green” when my mic is “on” and “red” when I’m muted. It’s a clear indicator for me when not to speak less than professionally.

The Email Eternity 📧⏳

Emails and instant messages pose a different but equally significant risk. Unlike verbal conversations, these written communications create a permanent record that can be easily forwarded, screenshotted, or retrieved long after you've clicked "send." What might seem like a harmless quip or offhand remark at the moment can come back to haunt you months or even years later.

Ethical Implications 🤔⚖️

e-mails with inappropriate comments or language can take a life of their own - they live forever on the internet!!!

The ABA Model Rules of Professional Conduct require lawyers to maintain client confidentiality and to avoid conduct that could prejudice the administration of justice. While these rules don't impose strict liability for technology use, they do expect lawyers to exercise reasonable care. This includes being mindful of the potential for inadvertent disclosure or inappropriate behavior in digital spaces.

Best Practices for Tech-Savvy Lawyers 📚💼

1. Assume you're always "on": Treat every virtual court proceeding and Zoom meeting as if your microphone and camera are live at all times. 🎙️👀

2. Think before you type: Before sending any electronic communication, ask yourself if you'd be comfortable with it being read aloud in court. 💭✍️

3. Use secure platforms: Ensure that the technology you're using meets appropriate security and privacy standards. 🔒🛡️

4. Educate yourself: Stay informed about the latest developments in legal technology ethics and court rules for virtual proceedings. 📚🧠

5. Implement safeguards: Use features like waiting rooms and passwords for Zoom meetings to prevent unauthorized access. 🚪🔑

learn from others mistakes!

The incidents highlighted by Professor Frisch serve as valuable learning opportunities for all legal professionals. They remind us that in our increasingly digital world, the boundaries between professional and personal, public and private, are more porous than ever.

As we continue to embrace technology in our legal practice, we must remain vigilant about our ethical obligations. The convenience and efficiency offered by digital tools should never come at the expense of professionalism and integrity. By staying mindful of the potential risks and implementing best practices, we can harness the power of technology while upholding the highest standards of our profession.

Final Thoughts 🧐

Being a tech-savvy lawyer isn't just about knowing how to use the latest tools—it's about using them wisely and ethically. Let this serve as a reminder to all of us to pause, think, and double-check before we unmute that mic or hit that send button, whether in a virtual courtroom or in our daily communications.

MTC

Happy Lawyering! 😊⚖️🖥️

My Two Cents: Other Issues to Learn from an MA Lawyer's Misconduct - Don't be Lazy and Hit “Reply all” in Your Emails - Check Your Work!

by not proofing your e-mail before just “replying all,” you can create a slew of ethics issues for yourself! 😱

In Massachusetts, a lawyer faced public reprimand after inappropriately advising a bankruptcy attorney to ignore a court's call. The lawyer, defending a company and its owner in a pretrial hearing, suggested the possibility of a bankruptcy filing to the court. However, during the session, he covertly emailed and texted the bankruptcy lawyer with the message "Don't pick up your phone," an act he didn't disclose to the judge but accidentally revealed to opposing counsel by including him in the email to the bankruptcy lawyer. This action breached multiple professional conduct rules, leading to his reprimand. So, what lessons can we learn from this (aside from not engaging in conduct that is prejudicial to the administration of justice)?

From this story, attorneys can learn the critical importance of attentiveness when managing email communications. Notably, we should:

1. Be wary of the "reply all" function to avoid inadvertently sharing information with unintended recipients.

2. Always confirm the recipient list before sending sensitive information.

3. Understand that digital communications are not private and can be disclosed in court.

4. Recognize that actions taken in the heat of the moment can have serious professional consequences.

5. Keep in mind the ethical implications and rules of professional conduct when communicating during legal proceedings.

practical e-mail management can help create a more peaceful and ethically compliant law practice! 😀

I think the most important lesson is to always check your work before submitting it! I am not encouraging lawyers to be deceptive in their work, break laws, or not follow the rules of ethics.  But a lot of these problems (aside from his unethical behavior) would have been prevented if the lawyer just proofread his work (including who he was sending his work to) before he sent it. 🙄

My Two Cents: Attorneys can limit client expectations in the world of 24/7 e-mail.

Set client expectations early with how and when you use e-mail!

E-mail can be a godsend for attorneys. E-mail messages offer attorneys the benefits of time efficiency and convenience. With e-mail, attorneys can quickly communicate with clients and colleagues without the need for a physical meeting or phone call. E-mails can also be sent and received at any time, allowing attorneys to work outside of traditional business hours. Additionally, e-mails provide a written record of communication that can be easily referenced in the future. Many benefits can be weighed down by unintended consequences.

It is important to set boundaries and expectations with your clients from the start. That does not mean we don't work nights and weekends. After a long day or long week, it's great to clear out your e-mail inbox after dinner or a Saturday afternoon. When clients and colleagues get e-mails at any hour on any day, it creates the expectation that we are available all day, all week. I don't think we really want this, as we are entitled to some personal time.

Its nice to get a handle on e-mail communications during quiet evenings and weekends … but take measures so client’s don’t expect immediate results 24/7!

To help keep the illusion that I don't work 24/7, I use a program called Mailbutler (Mac and Windows and can be used in Outlook, G-Mail, and Apple Mail).  It allows me to write e-mails and then schedule them to send later, e.g., the next workday. There are many similar programs like this, and many of the e-mail client programs are beginning to bake this into the software. (Just be careful you don't have to keep the program open in order for the send later function to work!)

Granted, e-mail has become a preferred method of communication for attorneys due to the expectations of our clients and colleagues, but it does not mean you cannot limit expectations while getting some work done behind the scenes!         

MTC.

Happy Lawyering!!!