Last month, NC adopted 2017 FEO 1, finding:
(1) that lawyers may use subscriber based text services to send texts with links to the lawyers website; and
(2) it is not a violation of 7.3(a) if the subscriber has the option to reply to the text message as follows:
- Texting Service: Have you or someone you know been injured at work? If so, type YES.
- Subscriber: YES
- Texting Service: Lawyer can help. May we contact you at this number? If so, type YES.
- Subscriber: YES
- Texting: Service Thank you. A representative will contact you soon.
- If the subscriber replies YES to both questions, ABC Texting provides the subscriber’s cell phone number to Lawyer. Lawyer will then contact subscriber directly.
The committee also confirmed that it is not a violation of 7.3(a) if the second text message from includes the lawyer’s phone number and an invitation to call the lawyer.
Yesterday, the ABA issued a formal opinion on attorney email encryption, providing that while encryption is not required always, it may be – and to determine if it is, a lawyer must understand certain things, including how information is transmitted and where it is stored.
Model Rule 1.4 may require a lawyer to discuss security safeguards with clients. Under certain circumstances, the lawyer may need to obtain informed consent from the client regarding whether to the use enhanced security measures, the costs involved, and the impact of those costs on the expense of the representation where nonstandard and not easily available or affordable security methods may be required or requested by the client. Reasonable efforts, as it pertains to certain highly sensitive information, might
require avoiding the use of electronic methods or any technology to communicate with the client altogether.
Great summary of (and link to) the opinion here.
H/T to Jim Calloway @ Law Practice Tips.
When a lawyers tries to withdraw for a client’s failure to pay, the lawyer must take care to avoid breaching the Rule 1.6 duty of confidentiality, according to the December 2016 opinion. But what does this mean, practically speaking? I see this as yet another tension between the law as a profession v. the law as a business.
“If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business. A lawyer can’t be a professional unless she can get paid.”
More thoughts via the ABA Journal article Lawyers Should Tread Carefully Before Quitting a Troublesome Client.
Slides for teaching “whether Sally Yates is subject to discipline” available below.
Among the tributes to Monroe Freedman in the current issue of the Hofstra Law Review, PR: A Contemporary Approach co-author Peter Joy, Henry Hitchcock Professor of Law @ Wash U. has the following article: Monroe Freedman’s Influence in Legal Education.
A new 10-minute video is available from the ABA exploring implicit bias and criminal defense.
h/t to Tigran Eldred @ Behavioral Legal Ethics Blog.