Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Many professionals are transitioning from paper to electronic files. As a result, professionals tend to rely more heavily on electronic signatures. However, professionals must be cautious that e-signature technology does not violate any requirement to maintain traditional signatures with official filings.
We appear to be in the midst of a new fitness renaissance. Trendy fitness programs such as CrossFit, Zumba and SoulCycle dominate social media mentions, while many others stick with tried and true exercise favorites such as running, swimming, biking, yoga, or a gym membership. Workouts and personal records are celebrated on people’s blogs, Facebook pages, and Instagram accounts. The apparent surge in fitness enthusiasm has brought with it a flood of new products designed to take advantage of the market; perhaps none more ubiquitous than wearable fitness trackers, such as those made by FitBit, Nike, Garmin and Samsung. These devices – which can track an astounding array of data, from heart rate to blood sugar to steps taken in a day – are an excellent resource for any fitness enthusiast, or anyone looking to create a healthier lifestyle. However, the demand for wearable tech designed to track our vital information may also prove crucially important to the manner in which we collect information to be used in litigation.
It wasn’t long ago when filing deadlines forced attorneys to rely on the speed and reliability of their process-server or messenger. How many filings were missed due to a flat tire or traffic? If the filing wasn’t stamped before the court closed at 4 PM, the filing could be considered late and the attorney left answering to the client. The dawn of electronic filing has changed this process. Many courts accept filing up to midnight of the due date and hand-delivery is no longer a requirement. But how many of you have considered some of the risks of e-filing? How about the importance of monitoring your filings and safeguarding your e-filing password? Consider the lesson taught to an attorney subject to discipline in New York for allowing non-attorneys to use his e-filing information without proper oversight.
Innovations in technology have blurred the lines between work and private life. Many professionals regularly utilize personal devices, such as smart phones and tablets, while in the office, and can likewise access company files electronically through work-issued computers while at home. Given the lack of a bright-line distinction between that which is work and that which is private, employees may be tempted to engage in conduct on personal accounts or devices that would otherwise be clearly prohibited in the office.
Professional Liability Matters is pleased to present a multi-part blog series exploring a new opinion on the ethics of social media management. As sites like Twitter, Instagram, and Facebook continue to skyrocket in popularity, the use (and abuse) of social media in the business world remains a hot topic in the professional liability realm. Without fail, most networking events, seminars, and CLE presentations include a social media component and for good reason. Social media can be a great tool for all professionals, but can also be a source of risk and unexpected pitfalls. The law continues to adjust to emerging and dynamic technology; as a result, attorneys are sometimes left wondering how to best harness this technology to serve clients, and generate business while still staying in compliance with ethical rules. The Pennsylvania Bar Association recently issued an opinion that may help.
As you’ve no doubt heard, hackers recently accessed dozens of female celebrities’ personal cloud-based storage accounts, releasing hundreds of nude photographs and videos onto the web. Many of the photographs were taken by cell phones, which automatically backed up the files to popular cloud services, such as iCloud and Dropbox. Some suspect that the hackers then employed targeted attacks in which “brute force” programs were used to randomly guess weak passwords for a given username until it found a match. Once inside the celebrities’ cloud accounts, the hackers could access all manner of personal information. This is how many criminals operate today and all professionals should pay attention.
Today, everyone is a potential news source. Through a handheld device we can instantaneously upload photographs or content via social media to be delivered to an anonymous (and often eager) audience. In a sense, the world is shrinking due to instant access and connectivity. This technology has impacted the way we prosecute and defend cases. It plays into our strategy. Some attorneys use technology in an attempt to strengthen their case. But there are risks and limits. Take for example the Texas attorney who used Twitter to gain an arguably improper advantage.
The security of confidential information is an increasingly hot topic in the age of cloud-based commerce. Indeed, the all-important attorney-client privilege could be subject to waiver if confidential information is revealed to a third party. Yet, in the age of e-communications, almost all contact between attorney and client involves a third party. Consider the Dropbox program for example, which is utilized by many professionals to store client and case information in the cloud. Does the attorney-client privilege still apply given that this third-party may have access to confidential materials stored in the program? Perhaps you’ve overlooked the danger that cloud based storage constitutes a disclosure of confidential information and constitutes a waiver of any privilege.
Many employers have made great strides in adapting to the risks posed by online activity. Some maintain employee handbooks with social media and computer use policies. Others provide training and many monitor employee use of employer-provided devices. But risks still remain. Take, for example, the recent Indiana appellate decision regarding potential employer liability for an employee’s online conduct.
Search engine optimization provides a marketing edge. Would-be clients may be more apt to contact those professionals at the top of the online list. So, some professionals spend considerable resources to maintain a priority position in search results. There are marketing tricks to achieve priority status, and tools to employ. But, professionals must not go too far. Take for example the New Jersey attorneys who allegedly stole a competitor’s website content to generate more hits on their website.