NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION ETHICS

NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION “ETHICS FOR TRANSACTIONAL ATTORNEYS: ETHICAL ISSUES IN USING TECHNOLOGY IN TRANSACTIONAL PRACTICE” NOVEMBER 30, 2016 Brett R. Harris, Esq. Business, Nonprofit and Technology Attorney Wilentz, Goldman & Spitzer, P. A. Woodbridge | Eatontown | New York | Philadelphia www. wilentz. com

Cloud Computing Ø “cloud computing” or “software as a service” is a type of software that is delivered over the Internet via a wen browser rather than installed directly on the user’s computer Ø The cloud offers advantages because of minimal upfront costs, flexibility, mobility and ease of use Ø disadvantages include security concerns Ø ethical issues implicated because places client data and law firm work product on remote servers outside of the lawyer’s direct control Ø can relate to all of firm’s files or a transactional dataroom 2

Cloud Computing Ø Opinion 701 “Electronic Storage and Access of Client Files” issued by New Jersey’s Advisory Committee on Professional Ethics in 2005 Ø at the time, term “cloud computing” didn’t exist, but opinion discussed storing client files in digital format (like PDF) Ø inquirer giving rise to the opinion cited a benefit of digitizing documents was that they “can be retrieved by me at any time from any location in the world” Ø Committee noted that raises possibility of being retrieved by others as well, implicating RPC 1. 6 on Confidentiality 3

Cloud Computing Ø Opinion 701 refers to Opinion 692 which found certain types of documents are client property and thus cannot be preserved merely by being digitized in electronic form – original wills, trusts, deeds executed contracts, corporate bylaws and minutes Ø Opinion 692 had also acknowledged that file would include other documents – correspondence, pleadings, memos, briefs, notes Ø Opinion 701 commented that traditionally client files were paper files, but found that nothing in the RPCs mandates a particular medium for archiving documents 4

Cloud Computing Ø Opinion 701 applies standard of reasonable care Ø Requires that the vendor must have an enforceable obligation to preserve confidentiality and security Ø must use available technology to guard against foreseeable attempts to infiltrate data 5

Cloud Computing - NY Ø New York Opinion 842 Ø applies standard of reasonable care Ø vendor must have an enforceable obligation to preserve confidentiality and security, and should notify lawyer if served with process for client data Ø must use available technology to guard against foreseeable attempts to infiltrate data Ø lawyer must investigate vendor security practices and periodically review them to make sure remain up to date Ø Investigate potential security breaches or lapses by vendor to ensure client data not compromised 6

Cloud Computing - PA Ø Pennsylvania Opinion 2011 -200 Ø applies standard of reasonable care Ø Exercise reasonable care to ensure materials stored in cloud remain confidential Ø Employ reasonable safeguards to protect data from breach, data loss and other risk Ø Opinion lists 15 points as possible safeguards 7

Metadata in Documents Ø “metadata” is embedded information in electronic documents that is generally hidden from view in a printed copy of a document Ø Metadata is generated when documents are created, revised, reviewed or otherwise handled electronically Ø in essence, is everything about an electronic document other than the document’s contents Ø not apparent from the face of the document but can be mined by those who know how from the electronic files containing the document 8

Metadata in Documents Ø December 2014 New Jersey Supreme Court created a Working Group on Ethical Issues Involving Metadata in Electronic Documents Ø “The Rules of Court that govern attorney ethics were not written with today’s technology in this area in mind” Chief Justice Stuart Rabner in the press release announcing the Working Group Ø “The Working Group will help the court consider what guidelines it should provide to attorneys given recent advances in technology and information systems” 9

Metadata in Documents Ø Working Group Chair Associate Justice Anne Patterson Ø Working Group Vice Chair Thomas Scrivo, then of Mc. Elroy Deutsch Mulvaney & Carpenter; subsequently appointed as Governor Christie’s Chief Counsel Ø 23 members of the Working Group Ø judges, academics, court personnel and practicing attorneys from various contexts – Office of the Attorney General, Office of the Public Defender, Legal Services, in -house counsel and private law firms from solos to large multi-national firms Ø I served on the Working Group as designee of NJSBA 10

Metadata in Documents Ø Working Group charged with looking at the ethical obligations regarding metadata on part of both those who send and those who receive electronic documents Ø Working Group divided into two Subcommittees – 1 on ethics, 1 on discovery and e-filing of documents by parties in court actions 11

Metadata in Documents Ø Working Group issued Report and Recommendations in September 2015 included in the written materials Ø Supreme Court considered and adopted various recommendations in Administrative Determinations in April 2016 included in the written materials Ø Reflected in Amendments to Rules Governing the Courts in August 2016 included in the written materials 12

Metadata in Documents Ø “Measures are designed to protect sensitive client data, clarify attorneys’ professional obligations, and foster education programs so that the legal community may be better equipped to meet the unique challenges inherent in exchanging documents electronically -- a modern reality that is ubiquitous in the contemporary practice of law. ” Judiciary press release in April 2016 13

Metadata in Documents Ø Rule of Professional Conduct 4. 4(b) –Respect for Rights of Third Persons Ø Unrequested Metadata That May Be “Inadvertently Sent” Ø amendments to Rule of Professional Conduct 4. 4(b) and addition of an official comment stating that lawyers who receive electronic documents may review unrequested metadata, provided that the receiving lawyer reasonably believes that the metadata was not inadvertently sent. 14

Metadata in Documents Ø Rule of Professional Conduct 1. 0 – Terminology Ø Electronic Information and Metadata Ø “electronic information” included into the definition of “writing” in Rule of Professional Conduct 1. 0 Ø official comment was added to provide a definition of metadata Ø word “email” replaced with “electronic communication” 15

Metadata in Documents Ø Court Rule 4: 10 -2(f) Ø Metadata and Discovery in Civil Cases Ø General Civil Part discovery rule, Rule 4: 10 -2, amended to specifically address metadata in electronic documents Ø an official comment was added Ø clarifying language was added to the comment regarding privileged documents 16

Metadata in Documents Ø Court Rule 4: 18 Ø Production of Discovery including Metadata in Civil Cases Ø Official comment added on metadata 17

Metadata in Documents Ø Metadata in Documents Electronically Filed with the Judiciary Ø determination that steps should be taken to minimize the disclosure of metadata in documents electronically filed with the Judiciary Ø Education on Metadata in the Legal Community Ø determination that judges, lawyers, and law students be educated about metadata issues as a component of judicial education programs, continuing legal education, and law school curricula 18

Brett R. Harris, Esq. Wilentz, Goldman & Spitzer, P. A. 90 Woodbridge Center Drive Woodbridge, New Jersey 07095 -0958 Tel: (732) 855 -6122 E-Mail: bharris@wilentz. com Follow on Twitter @Brett. Harris. Esq for tweets on business and nonprofit matters, technology law and issues of interest to professional women 19