Welcome to Class

The Syllabus

• Due dates for assignments (Tuesday of that Unit)• Self-check quizzes• Midterm project and midterm exam• Final project• Office Hours• Discussion Board Requirements

About the Course

• Once I grade an assignment, you cannot revise it – that is the policy of the School of Legal Studies. You should try very hard to turn work in on time!

• All late work has to be in by the end of Unit 8 to be considered – that is a firm deadline

• Discussion boards cannot be made up late.

About the Course

• Students in the course are at different levels regarding their understanding of technology – if you know more, please share your understanding with them on the DB; if you don’t understand something, please ask!

• This is an introductory course regarding legal technology – you may at times know more than we are discussing at that time.

About the Course

• If that happens, enjoy that time and use it to read ahead or work on upcoming projects.

• I don’t want to offer too much information for fear that those without much technology background will feel overwhelmed.

• You can always email me or post a note/question though

Review for Test

• Computers are being used with higher frequency to share information in digital format between: remote offices, courthouses, government agencies and clients.

• Computer files are shared by the use of Internet as well as in the form of CDs, DVDs and as: attachments to emails.

Review Continued

• The security and confidentiality of legal documents sent in electronic format are of an increasing concern for the legal team.

• The recent amendments to the Federal Rules of Civil Procedure have had a major impact on thinking about technology in the practice of law.

• In large law offices, corporate legal departments, and government offices there is usually an IT department or technical support staff.

Review Continued

• Outsourcing has become the buzzword for shipping work out of the office or overseas to save money.

• Voice-recognition software, like Dragon Naturally Speaking, PDAs, cell phones, Legal Version, allow the legal team to dictate working legal drafts into almost any program.

• The trend in computer and related computer devices has been toward: miniaturization and portability.

Review Continued

• Hardware in many law offices today include the: wireless telephone and laptop computers.

• Remote access allows members of the legal team working on cases out of the office to connect with the office file server to retrieve documents, work on them, and send them to the legal team anywhere in the world..

• The trend to use computer systems where program and fields are maintained on a centralized server and each user has access through a dumb terminal is referred to as the: thin client.

REVIEW CONTINUED

• Lawyers and their paralegal may be connected anywhere in the world and send documents electronically back and forth as if they are in the same building due to hot spot locations.

• Using the Internet to conduct meetings and share documents is: online collaboration .

• The office where documents are created, stored, received, and sent electronically is sometimes referred to as the: paperless office.

Final Review Slide

• Judges are embracing the use of electronics and computer-based systems in the courts.

• As judicial budgets allow, courtrooms are being outfitted with computers and audiovisual presentation systems

Unit 1: Attorney-Client Privilege

How is Technology Used in a Law Office

• Word Processing• Spreadsheets• Time and Billing • Accounting• Calendars• Trial Prep• Email and Document Delivery

Technology and Confidentiality

• Legal assistants and nonlegal staff have access to confidential data and need to understand the nature of confidentiality so that client confidences are not disclosed

• Attorneys have a duty to keep client confidences, and those doing work for the attorney are similarly bound

Key Concepts for Confidentiality

Duty of Confidentiality (and its exceptions)

The Attorney-Client Privilege The Work Product Rule Inadvertent Disclosure

The Model Rules

ABA Model Rule 1.6

• Covers all client information, regardless of the source

• Generally covers client statements made in the presence of third parties

Allows disclosure to prevent client crimes only if the crime is likely to result in imminent death or substantial bodily harm

How Do the Ethics Rules Apply Confidentiality to Legal Assistants?Professional Responsibility Rules apply the duty of

confidentiality to the lawyer’s employees and associates (including paralegals and computer consultants)

NALA guidelines requires legal assistants to preserve client confidences and secrets before, during, and after the course of the professional relationship

Exceptions to the Duty of Confidentiality

When can client confidences be broken?

implied authorizations needed to carry out the representationPreventing criminal behavior by the clientdefending claims made against the lawyer criminal charges made against the lawyer

malpractice claims made against the lawyerdisciplinary charges made against the lawyer

collecting fees

Technology and Client Confidentiality

• Email• Fax Machines• Mobile or Cellular Phones

According to the ABA and many jurisdictions, communicating in these ways does not violate the duty of confidentiality because there is a reasonable expectation of privacy with this technology, and because federal law prohibits wiretapping.

The Attorney-Client Privilege

• Is related to the ethics duty of confidentiality• Is found in witness competency statutes• Is an evidentiary rule• Protects against compelled disclosure of confidential

communications

The Paralegal’s Work Product and the Attorney-Client Privilege

Statements made to the paralegal in an attempt to seek legal assistance are covered by the attorney-client privilege, even where the jurisdiction’s attorney-client privilege statute doesn’t mention paralegals

But, for the paralegal’s work product--created during the course of litigation--to be covered by the attorney-client privilege, the work must have required professional skill (i.e. attorney skill)

Summarizing the Confidentiality Family Tree

1.The Duty of Confidentiality (ethics rules: MR 1.6 or DR 4-101) prohibits the voluntary disclosure of client information

2.The Attorney-Client Privilege (witness competency statutes)prevents compelled disclosure of confidential communications

3.The Work Product Rule (civ. pro. rule 26(b)(3))presides over the discoverability of lawyer and employee-created evidence, prepared in connection to litigation

4.The Inadvertent Disclosure Doctrine (evidence rule 501(b))provides the opportunity after fouling up

Protecting Against Breaches of ConfidentialityUse encrypted emailGet client permission to communicate by emailChange computer passwords frequentlyBe careful on the phone Be careful in common office spaceProtect files and other client documentsRemember the WWII phrase, “loose lips sink ships”

Protecting Against Inadvertent Disclosure

Mark protected or privileged materials in a permanent way

When in doubt about whether certain discovery materials should be sent to the other side, confirm with your lawyer

If you think you may have inadvertently sent protected materials, or have received privileged materials, tell someone quickly

Voice Recognition Software and Thin Clients

• What did you think of the section in the first Chapter about voice recognition software?

• Do you think this will enhance the role of the legal assistant or could lead to a lesser need for legal assistants?

• What did you think about the section on “thin clients?”

Do You Presently Work in a Lawfirm?• If so, what type of technology is used?• Do the attorneys where you work take paper files to

court or computers?• Are PDA and Blackberry devices used? Do paralegals

get them too?

This Week’s Assignment Confidentiality

How does technology change or impact an attorney's ethical obligation of confidentiality? Furthermore, what does that mean for the paralegal and her/his responsibilities? Write a one-page response essay, drawing from the material in this unit to support your assertions.  You should be using 1-inch margins, 12-point font, and double spacing for this assignment.

• Submit your short essay to the Dropbox by the end of Unit 1. 

Practice Questions!

Question # 1

Plaintiff's attorney told an IT consultant that his client told him that she ran a red light.  Did the attorney violate the attorney/client privilege?

A)Yes

B)No

Answer: Question # 1

• Yes! An attorney or legal assistant cannot reveal information that is learned in the course and scope of a client representation. This was not an agent or “other person” needing to know this as part of the representation.

Question # 2

At a criminal jury trial, client tells attorney that client insists on testifying falsely.  Attorney attempts to persuade client to testify truthfully and explains the consequences of perjury.  Still, the client is adamant. Will the attorney violate the duty of confidentiality by telling someone?

Answer: Question # 2

• No. If the client is going to commit a future crime or perjury, the attorney cannot allow the client to take the stand and can reveal that without violating the duty of confidentiality.

Question # 3

Defendant says to his lawyer, "I committed the murder, and I'm glad.  Will you represent me?"  Defendant's statement is:

Question # 3

A) Not privileged because of the crime/fraud exception.

B) Privileged, but only if the attorney undertakes the representation.

C) Privileged.D) Privileged, but only if the client pleads guilty.

Answer: Question # 3

• C – Privileged!

Question # 4

The attorney-client privilege does NOT apply if:

A. The attorney charges their client a whole lot of money

B. The attorney takes the stand as a character witness for their client

C. The confidential information is exchanged immediately following the crime

D. The attorney gives advice in furtherance of a crime

Answer: Question # 4

• D. The attorney cannot give advice in furtherance of a crime!