Resource Page: Electronic Communication & Practice

 Informal Opinion 2018-09

• QUESTION: May Attorney use “cloud computing” in a way that is consistent with Attorney’s ethical obligations?
• ANSWER: Attorney may use cloud computing in the practice of law without violating the Rules of Professional Conduct if Attorney maintains competence in the use of relevant technology (Rule 4-1.1) and makes reasonable efforts to safeguard confidential information from inadvertent or unauthorized disclosure or access, as warranted by the particular facts and circumstances of each client’s matter (Rules 4-1.6(c) and Comments [15] and [16]; Rule 4-5.3 and Comment [3]). Attorney should read carefully the cloud computing provider’s terms and conditions of service. Attorney should ensure adequate provider policies and practices as to (1) ownership and security of client information, and (2) attorney and provider access to client information. Reasonable efforts to safeguard confidential information may include (but are not limited to) ensuring adequate provider policies and practices regarding:
  • Security measures protecting confidentiality of client information during transmission and storage;
  • Prompt notification of Attorney in the event of a security breach or provider’s receipt of a subpoena for client information;
  • Ownership of data solely by Attorney or Attorney’s firm;
  • No access rights by the provider to client information, except as required by law;
  • Regular data backup by the provider;
  • Handling of client information in the event Attorney’s relationship with the provider is terminated;
  • Compliance with applicable law regarding data storage and transmission;
  • Reliable access to data by Attorney;
  • No access to data by third parties, including advertisers, except as required by law; and
  • Domestic storage of data, or, alternatively, storage in a jurisdiction subject to United States data protection laws or equivalent.
  Because what constitutes adequate provider policies and practices in these areas may change as relevant technology evolves, Attorney is encouraged to consult with a qualified information technology professional, take continuing legal education courses on use of technology in practice, and/or engage in regular self-study of materials from reputable sources to maintain competence in the use of cloud computing in the practice of law. 

Informal Opinion 2014-02

• QUESTION 1: Does Attorney have an ethical obligation regarding metadata in electronic documents sent by an opposing party or counsel to inform the sender that the document contains metadata of which the sender may or may not be aware?
• ANSWER 1: Metadata embedded in an electronic document received by Attorney may constitute a document inadvertently sent, governed by Rule 4-4.4(b). Whether a lawyer “knows or reasonably should know” the inclusion of the metadata was inadvertent will depend on the facts and circumstances surrounding each transmission. If Attorney believes the metadata was inadvertently sent, Rule 4-4.4(b) requires Attorney to promptly notify the sender.
• QUESTION 2: Does Attorney have an ethical obligation regarding metadata in electronic documents sent by an opposing party or counsel to refrain from mining or reviewing and/or using the metadata?
• ANSWER 2: Rule 4-4.4 does not address Attorney’s ability to seek, review, or use metadata, except to prohibit Attorney from obtaining evidence illegally. According to Comment [3] to Rule 4-4.4, where applicable law does not require Attorney to return a document inadvertently sent, the decision as to whether to do so is governed by Attorney’s independent professional judgment. Whether applicable law requires Attorney to return a document containing metadata or refrain from affirmatively seeking, reviewing, or using metadata is outside the scope of this informal opinion.
• QUESTION 3: Does Attorney have an ethical obligation to make good faith efforts to prevent the inadvertent electronic transmission of embedded metadata to opposing party or counsel in the context of litigation?
• ANSWER 3: Pursuant to Rule 4-1.6, Attorney must use reasonable care to ensure no information related to the representation of Attorney’s client is revealed without client consent, and this obligation requires Attorney to use reasonable care to ensure no confidential information is contained in embedded metadata. This may require “scrubbing” documents before transmitting them or using alternative methods of transmission. Efforts to protect confidential information must be exercised in light of Attorney’s obligation pursuant to Rule 4-3.4(a) not to unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal evidence. Removing metadata with evidentiary value before transmitting certain documents may constitute a violation of laws governing discovery and therefore violate Rule 4-3.4(a). This informal opinion does not render an opinion about the existence of discoverable evidence in particular metadata or about the effect on substantive legal privileges of the pre-transmission removal or lack of removal of metadata.

• QUESTION: Is Attorney required by the Rules of Professional Conduct to include a disclaimer on e-mails sent by Attorney to Client that e-mail is not a secure form of communication and that Attorney is communicating to Client via e-mail because Client has consented to the use of e-mail for Attorney-Client communication?
• ANSWER: No. The Rules of Professional Conduct do not require Attorney to use a disclaimer on e-mails sent to Client. As with any form of communication with Client, Attorney must take reasonable precautions to prevent the unintended interception of confidential information, as explained in Comments [15] and [16] to the Confidentiality of Information Rule, 4-1.6. Special circumstances or the need to transmit highly sensitive information may require special security measures in order to comply with Rule 4-1.6. For further information about the use of e-mail for client communication, Attorney may consult Informal Opinions 990007, 980137, 980029, 970010, and 970161.

Informal Opinion 20090003

• QUESTION:  Attorney represents Defendant in a personal injury case.  Plaintiff maintains an account on a social networking site such as MySpace or Facebook.  Plaintiff is allegedly making statements on the social networking site that would hurt Plaintiff’s case.  A third party witness is unwilling to print said information off of the networking site. Can Attorney create an account on the social networking site and send a message to Plaintiff asking to be invited as Plaintiff’s friend?  After being accepted as Plaintiff’s friend Attorney would have access to Plaintiff’s statements.  Plaintiff is represented by counsel.  If Attorney created an account on a social networking site and asked Plaintiff to be invited as a friend what ethical problems arise?  Would said contact constitute communication with a person known to be represented?
• ANSWER:  Attorney’s request to be invited as a friend of Plaintiff’s Facebook/MySpace account would be a “communication” for purposes of Rule 4-4.2. Attorney may not send such a communication directly to plaintiff, in light of that rule.

Informal Opinion 20060005

• QUESTION: Rule 4-7.2(f) states that advertisements or communications must conspicuously contain the statement: “The choice of a lawyer is an important decision and should not be based solely on advertisements.” Attorney has a website and a small listing in the Yellow Pages. Does the information referred to in Attorney’s website and Yellow Page ad need to contain the statement set forth in Rule 4-7.2(f)?
• ANSWER: Rule 4-7.2(f) applies to websites. Websites are considered advertising. It is not necessary to include the Rule 4-7.2(f) statement in a print ad or website that is limited to the information listed in Rule 4-7.2(g). Rule 4-7.2(g) exempts an advertisement from 4-7.2(f) if it is limited to some or all of the following: (1) the name of the law firm and the names of lawyers in the firm; (2) one or more fields of law in which the lawyer or law firm practices; (3) the date and place of admission to the bar of state and federal courts; and (4) the address, including e-mail and web site address, telephone number, and office hours.

Informal Opinion 970038

• QUESTION: Does Missouri have specific rules related to Internet advertising?
• ANSWER: Missouri does not have any specific rules relating to Internet advertising. The general rules on advertising apply to any form of advertising, including Internet advertising. The Missouri rules on advertising are Rules 4-7.1 through 4-7.5 of Supreme Court Rule 4, the Rules of Professional Conduct.

 Informal Opinion 2018-08

• QUESTION: May Attorney respond to a negative online review about the representation of a former client if Attorney confines the response to comments directed to information already disclosed by the former client in the review?
• ANSWER: In most circumstances, Rules 4-1.9(c) and 4-1.6 prohibit Attorney from revealing information relating to the representation of a client in response to a negative online review, even where the client or someone writing on behalf of the client has posted criticism of the quality of Attorney’s representation. Per Rule 4-1.9(c), Attorney has a duty to a former client not to reveal confidential information except as would be permitted with respect to a client. A negative online review generally does not constitute a “controversy” sufficient to trigger the exception in Rule 4-1.6(b)(3) and permit a lawyer to reveal confidential information to the extent reasonably necessary to establish a defense in a controversy between the lawyer and the client. Even if the information is not privileged as a matter of law such that Attorney could be compelled to disclose it in a legal proceeding, Rule 4-1.6 does not permit the voluntary disclosure of confidential information by Attorney in response to an online review. See Comment [3]. Rule 4-1.6 protects all information related to the representation, whatever its source. Comment [3]. Also prohibited are disclosures by a lawyer that do not reveal protected information but could reasonably lead to the discovery of such information by a third person. Comment [4]. If Attorney chooses to post a response to an online review, the response may acknowledge an attorney’s obligation to comply with professional obligations and must reveal no information related to the representation in violation of Rule 4-1.6.

Informal Opinion 2018-08

QUESTION: May Attorney respond to a negative online review about the representation of a former client if Attorney confines the response to comments directed to information already disclosed by the former client in the review?

ANSWER: In most circumstances, Rules 4-1.9(c) and 4-1.6 prohibit Attorney from revealing information relating to the representation of a client in response to a negative online review, even where the client or someone writing on behalf of the client has posted criticism of the quality of Attorney’s representation. Per Rule 4-1.9(c), Attorney has a duty to a former client not to reveal confidential information except as would be permitted with respect to a client. A negative online review generally does not constitute a “controversy” sufficient to trigger the exception in Rule 4-1.6(b)(3) and permit a lawyer to reveal confidential information to the extent reasonably necessary to establish a defense in a controversy between the lawyer and the client. Even if the information is not privileged as a matter of law such that Attorney could be compelled to disclose it in a legal proceeding, Rule 4-1.6 does not permit the voluntary disclosure of confidential information by Attorney in response to an online review. See Comment [3]. Rule 4-1.6 protects all information related to the representation, whatever its source. Comment [3]. Also prohibited are disclosures by a lawyer that do not reveal protected information but could reasonably lead to the discovery of such information by a third person. Comment [4]. If Attorney chooses to post a response to an online review, the response may acknowledge an attorney’s obligation to comply with professional obligations and must reveal no information related to the representation in violation of Rule 4-1.6.