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Ethics

Tuesday, September, 1, 2009

Back To School II — Dear Publicly Viewable Diary: The Ethics Of Blogging

Toolbox was shocked recently, simply shocked, to see his 11-year-old niece, to whom the family affectionately refers as "Little Hammer," writing an old-fashioned diary. And she wasn't posting her entries to MySpace, Facebook, Blogger or any other publicly viewable forum. Perhaps the rest of the World could learn a thing or two from Little Hammer. In fact, when Toolbox got within three feet of Little Hammer as she was writing, she scolded, "That's confidential," to which her Uncle replies, "C'mon it's the Internet era; nothing is confidential. And if you're so into confidentiality, you should consider law school." Then Little Hammer gaveled the conversation to a close. (O.K., she got up and left the room to go play Wii Fit, which Toolbox positively stinks at—nothing worse than a computer telling you, "You're overweight.") The point, anyway, and Toolbox does have one, is that in this crazy era of 24-hour on-ness, we forget that it's possible to have private thoughts, opinions and realizations. We don't always have to share, and especially for lawyers, the modern desire to do so should be weighed against ethical proscriptions.

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Posted at 3:38PM | Permalink | Comments (0)

Thursday, August, 27, 2009

David A. Lewis (Proskauer Rose LLP) discusses the impact mobile technology is having on professional responsibility, specifically on inadvertent disclosures

PLI: Given the ease and speed with which the transmission of information and documents can occur in today's technological world, isn't it fairly easy for lawyers to inadvertently disclose confidential or sensitive information?

DAVID A. LEWIS: It can be. New and convenient technological methods of communication absolutely bring with them the risk of professional conduct problems if users are not extremely careful.

Today, all it takes to inadvertently disclose confidential or sensitive information is a single click of a button. This type of mistake can occur in a fraction of a second, but the potential consequences can last a lifetime.

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Posted at 3:40PM | Permalink | Comments (0)

Tuesday, August, 4, 2009

Refrigerate After Opening? Avoiding Evidence Spoliation

Does anyone (maybe there are etymologists out there) know why spoliation isn't spoilation, or vice versa—why isn't spoil spoliate? That's an English conundrum Toolbox has never been able to figure out. There is a word "spoilation," which means "the act of stripping and taking by force." And apparently, spoliation is a synonym of spoilation. (But Microsoft Word auto-corrects "spoilation" to "spoliation," so Toolbox says, "Uncle," and accepts this as something that will not be resolved in this issue, especially when all that matters here is spoliation, which is the "destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). The Model Rules of Professional Conduct make spoliation a no-no (see Rule 3.4), so no matter how you slice it, engaging in spoliation can spoil your practice. But in a world where evidence is created by the minute (those darned computers), how do you know if you're not engaging in spoliation. (Would that be expoliating?)

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Posted at 11:47AM | Permalink | Comments (0)

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