"AvoidAClaim" Blog

In the course of an investigation of an alleged cheating incident, Harvard University administrators apparently accessed (without notice) and reviewed the contents of the email inboxes of several resident deans, triggering criticism by the deans and by the public at large.

If you are a law firm manager, are you legally entitled to snoop through staff inboxes? And if you are so entitled, is it ever a good idea?

Most employers are, in fact, legally entitled to access all the information stored on their servers, and most larger employers ensure that employees have notice of this entitlement: usually by setting it out in a privacy, technology, or information management policy. If you do not have such a term in an appropriate workplace policy, you should stop reading now, and go insert one. There are legitimate reasons for reserving yourself this right; facilitating the prompt investigation of employee fraud is at the top of the list.

But presuming you do have the right to snoop through email, and you’ve communicated it in a policy, it’s a good idea from an internal PR perspective to think carefully before exercising your right. One of the criticisms being levelled at the Harvard administration is a proportionality argument: the deans have argued that the intrusiveness of the search was out of proportion to its investigative purpose (to prove that someone had inappropriately forwarded a document). Consider the impact on morale in your office if it were revealed that you searched everyone’s email not because you’d been alerted to a potential fraud, but because you were suspicious that someone had breached internet usage policy by booking a restaurant reservation online.

You would also do well to ensure that before rushing to snoop, you have appropriate procedures in place. For example, you may want to consider carefully whether a search without notice is essential to preserve the evidence you are looking for. You should also conduct as limited a search as possible, for example, searching within a narrow date or time window, searching a limited number of computers, or searching based on specific keywords rather than open-ended snooping. Finally, you should have safeguards in place to protect the privacy of the information accessed, and to maximize discretion. For example, consider who will be permitted to access the information: Would employees feel more comfortable if the individual doing the search were a third party with instructions to provide specific results, for example, “which user authorized a transfer of $8,000 from X to Y on March 22nd?” While you may be of the view that innocent employees should have nothing to hide, consider how you would feel if, for example, your supervisor had just learned the date and time of your colonoscopy appointment. Legal? Probably. But neither necessary, nor nice. It’s worth the time to consider, in advance, how you would proceed (and communicate) if the need to review employee email ever arose.

This article by Simon Chester of Heenan Blaikie LLP is from the Winter 2007 “Aging Boomers” edition of LAWPRO Magazine. All past LAWPRO Magazine articles can be found at www.lawpro.ca/magazinearchives

An earlier article on privacy (see www.lawpro.ca/LawPRO/privacy.pdf) raised the possibility that a law firm might find itself the subject of a Privacy Commissioner’s investigation. A recent finding of the federal Privacy Commissioner not only drives this home, but also has implications for Ontario lawyers.

On May 2, 2006, the Privacy Commissioner of Canada released its first findings concerning the business activities of law firms. The cases involved two law firms which obtained consumer credit reports on individuals from credit bureaus, as part of their litigation preparation. The lawyers had hoped that the credit reports would reveal whether a potential party was worth suing and would assist in a dispute involving the law firm’s clients.

The law firms hadn’t reckoned with the fact that they could be considered to have breached their contract with the consumer reporting agency, and violated the Ontario Consumer Reporting Act and the Federal Personal Information Protection and Electronic Documents Act.

By the time the Privacy Commissioner’s finding was released, thelaw firm’s consumer reporting agency membership had been cancelled, and the provincial Registrar of Consumer Reporting Agencies had conducted an inconclusive complaint investigation.

The Privacy Commissioner asserted its jurisdiction and argued that the firms had both collected personal information on individual’s without their consent and without fitting into any of the exemptions provided for in the legislation.

Initially neither firmtook the Privacy Commissioner’s investigations terribly seriously. It took a threat by the Commissioner’s litigation counsel to take the matter to the Federal Court before the firms agreed to implement the findings. The fact that the firms backed down left some of the jurisdictional issues unsettled.

The findings make sobering reading. The Commissioner found that in doing the credit check, the firms had collected personal information without the consent of the subject. The firms could not point to any applicable exemption in the Act. They had breached federal law.

The finding ended with recommendations that the firms implement a policy to ensure consent when obtaining consumer reports or conducting other background checks.

Privacy experts are scratching their heads about the finding since it seems to apply broad language under federal law to override detailed provincial law establishing the specific circumstances under which credit reports can be lawfully obtained. The findings can’t easily be squared with the 2004 Superior Court decision in Ferenczy v. MCI Medical Clinics, dealing with video surveillance of a personal injury plaintiff.

Nevertheless, the fact that the firm’s jurisdictional arguments cut no ice with the Commissioner is worth noting. We can hope that Parliament’s current review of the federal Act or future court decisions clarify how the issues of competing federal and provincial statutes should be resolved. It should be noted that there are significant differences of opinion on this matter, especially regarding how far the process of civil litigation will be affected by federal privacy legislation (see, for example, PIPEDA Case Summary #352: “Airline delays granting access to personal information, citing ongoing litigation”).

On one side, this federal legislation is limited in the extent to which it can regulate property and civil rights, given that it was arguably enacted as an extension of the federal trade and commerce power. But on the other side, the Supreme Court of Canada has begun to afford privacy a quasi-constitutional status. Either way, re-characterizing legal professional privilege is not a trivial matter.

But that sort of interpretive wrangle should not detract from the serious impact of the findings. What should Ontario lawyers do?

• Prudence suggests rereading your membership contract with the credit bureau, if you rely on the bureau to help you assess the credit worthiness of potential clients.
• Familiarize yourself with the Consumer Reporting Act, and the provisions under which you can access credit information.
• Review the Personal Information Protection and Electronic Documents Act, and in particular Schedule 1, and train your lawyers to recognize the obligations it imposes.
• Treat any investigation by the Privacy Commissioner seriously. While the two law firms weren’t named, it’s clear that they both initially rebuffed the enquiry and then backed down.
• Recognize that in today’s technologically-empowered practice, privacy will become an increasingly serious concern. Better to get your firm ahead of the law.

LAWPRO has a generic policy, which you can use as a precedent and checklist to guide you as you examine your own firm’s procedures for dealing with confidential information. The policy deals with a fictitious firm called Smith & Partners. It is available at www.practicepro.ca/privacypolicy.

This article by Dan Pinnington (VP, Claims Prevention & Stakeholder Relations at LAWPRO) originally appeared in the July 20 issue of The Lawyers Weekly published by LexisNexis Canada Inc.

Family law lawyers should keep in mind that their 20 and 30-something clients grew up with technology. They live online 7/24. Facebook posts, YouTube videos, Instagram pictures, texting and tweeting are intertwined in the fabric of their daily lives. Young people also tend to be very open and will post personal and intimate details of almost every activity online, regardless of whether it is in the office, the kitchen, the bedroom or Vegas.

Needless to say, some of this online information will be relevant evidence on family law matters.
Lawyers and their clients need to know how to handle social networking information and the dangers inherent with it. Here are nine rules they should follow:

1. There are really no secrets on social media sites

The amount of information other people see on social media sites is controlled by privacy settings or permissions. While the sharing levels have different names on different sites, they are some variation of private, friends, friends of friends or everyone. Practically speaking, it is very hard to lock things down as default permissions usually favour widespread sharing. Assume that most clients will not appreciate how broadly the information they post online is shared.

To lock things down, encourage your clients check their privacy settings for all the social networking tools they use. The Always Up-to-Date Guide to Managing Your Facebook Privacy post on the LifeHacker blog can help with locking down a Facebook page. The MyPermissions.org site can help with other sites.

2. Friends means friends forever, or at least friends of friends forever

“Unfriending” the ex is one of first things people do after a separation. Unfortunately, unfriending may not prevent the ex from accessing posted information. Although direct sharing with the ex is stopped, an unfriended person may still have access as a friend of a friend or through applications that share information. Use the resources cited in the previous rule to better lock things down.

3. Give clients a “don’t be stupid on social media” warning

Most clients can’t help themselves online – their real personalities and actions will shine through in HD. Social media will be better than a lie detector or cross examination at finding the truth. For this reason, you need to firmly give your clients a warning that is a variation of something they have heard on television 10 million times: “Anything you say or do on Facebook can and will be used against you in a court of law.”
And, if you get the slightest hint that your client is stretching, bending or hiding the truth, ask more questions and dig deeper. You don’t want be called out by the other side or a judge.

4. Don’t use social networking tools for lawyer/client communications

You may find your clients wanting to communicate with you with Facebook messages or chat, Twitter DMs or LinkedIn messages. Don’t do it. You can’t assume these communications will be private. Tell your clients to use a private email address instead.

5. Be aware of electronic evidence and e-discovery obligations

Electronic stored information (ESI), including posts on social networking sites, will often be relevant evidence on family law matters. Family law lawyers need to understand this and be familiar with the obligations they have to identify, find, preserve and produce relevant ESI.

Proportionality is very important in family law matters – you won’t have the time or a budget for an in-depth e-discovery investigation. To avoid taxing the court, annoying the judge and incurring unnecessary expenses, work to get a smaller selection of emails or sample posts that are truly helpful in proving the key facts you need to argue your position. Five really good emails or post are better than 50 mediocre ones – and the judge is more likely to carefully read them.

And remember, a client that deletes information on a Facebook page could be found to have destroyed evidence. Be careful not to be seen to be counselling or acquiescing to your client taking steps to destroy evidence.

6. Social media can prove interesting things

Social media can give you far more than just nasty comments and embarrassing pictures. It may provide evidence to establish the existence of denied relationships, to show poor parenting skills or judgement, to support or refute an alibi, to show capacity to work (e.g., someone with an allegedly sore back out bungee jumping or dancing) or to show smoking or the use of other substances not normally associated with someone who is a law abiding citizen and exemplary patent. In one case, a husband who swore in an affidavit that he had lost a valuable necklace, shortly thereafter posted a picture on Facebook of his new girlfriend wearing it on New Years’ eve. Oops!

7. All the above comments apply to everyone else that touches a case

Almost everyone is on social media, so all the above comments apply to everyone else involved in a family law matter. This includes the client’s family members and friends, access drivers and supervisors, as well as social workers.

8. Family lawyers shouldn’t be friends with clients on Facebook

Facebook and the other social media sites are wonderful business development tools. They make it easy to reach out and connect with all sorts of existing and potential clients. However, for some areas of the law – and family is one of them – you really can’t be friends with a client given the personal nature of the information that is typically shared on Facebook pages.

9. You can’t be anonymous on the web

It takes seconds to create a Facebook or other social networking account using a fake name. It is also easy to post comments using a name other than your real name. Many people will post nasty comments while hiding behind the shroud of anonymity. Don’t be tempted to do this – and make sure you clients don’t do it either. Through legal process, computer forensics or just digging around, you can often figure out who posted anonymous content. You – and your clients – don’t want to be caught doing this. It’s also not proper for a lawyer to pretend to be someone else to friend a person to get access to information in a social media account.

Facebook Timeline is probably the biggest thing that has happened to family law since the no-fault divorce. What is the most common way cheaters are now caught? Forgetting to logout of their Facebook page. Facebook and similar social networking tools have introduced interesting new communication and evidentiary challenges for family law lawyers. Use the above rules to keep you and your clients out of trouble.

Again this year, the always exciting 60 Sites in 60 Minutes plenary session concluded ABA TECHSHOW 2012. Presenters Natalie Kelly, Dan Pinnington, Catherine Sanders Reach and TECHSHOW Chair Reid Trautz shared variety of serious and funs sites with the packed room. It was a lot of fun to do 60 sites. For those that could make it, here is a full list of the sites we presented:

Sites to help you do your job

• ABA Preview of Supreme Court Cases: Everything you want or need to know about what is happening at the Supreme Court, past, present and future. americanbar.org/publications/preview_home.html
• Fastcase and Mobile Sync: Legal research on your desktop, iPhone or iPad. Bar Association users can use the Mobile Sync feature to keep one research session going across all platforms. www.fastcase.com
• CellularAbroad is a helpful site to find the best mobile phone and coverage option specific to your phone and carrier when traveling overseas. www.cellularabroad.com
• Google Scholar adds treatment to citing cases scholar.google.com/
• Jureeka: Turn legal citations in web pages into hyperlinks that point to online legal source material in Chrome or Firefox jureeka.blogspot.ca
• TinyEye: Reverse image search: find out source of an image, other uses of it, higher resolution versions, etc. www.tineye.com
• Google Images lets you search by dragging and dropping an image www.google.com/imghp
• Meevsu: Have a live confrontation or debate via webcam, with the audience voting for the winner meevsu.com

Helpful information

• Law Practice Today e-zine archives is full of terrific articles on all aspects of law practice management www.americanbar.org/publications/law_practice_magazine
• Room77: See what your hotel view is like, before you book the room www.room77.com
• Priceblink: Find lower prices while you shop and set notifications for desired price points. www.priceblink.com
• The Holotypic Occlupanid Research Group exists for one purpose. You’ll have to see for yourself because you won’t believe it until you see it. www.horg.com/horg/intro.html
• PMA Pipe: Keep up with all the law practice management blogs feeds.feedburner.com/PmaPipe
• MarineTraffic: Watch the movement of ships around the world, tracked by GPS in real time MarineTraffic.com/ais/
• AllTop: See the top headlines on the most popular news sites and blogs alltop.com
• The World at 7 Billion: With seven billion people in the world, where do you fit in? Just enter your birthdate and find out! www.bbc.co.uk/news/world-15391515
• Handsfreeinfo: See what your state’s cell phone and texting laws for drivers prohibit – or are about to prohibit. Handsfreeinfo.com
• WhoIsTheMostFamous:With just a first name, try to guess the most famous surname. WhoIsTheMostFamous.com
• Scoopertino is the parody blog of all things Apple (based in Coopertino, CA) that recently claimed Apple would replace the complete iTunes library with songs sung by Siri, starting with Stairway to Heaven! scoopertino.com
• US Department of State provides important travel information for every country in the world www.state.gov/misc/list/index.htm
• An American’s Guide to Canada tells you everything you want to know about life in the Great White North, including “Canadianisms” and how to immigrate. AmericansGuide.ca

Technology tools and sites

• Adobe provides great online tools for collaboration and converting and editing PDF documents acrobat.com
• Alternativeto: If you’ve decided to replace a software application, this site will recommend alternatives based on user feedback. alternativeto.net
• FollowUpThen: Schedule followups to emails you don’t need to deal with now, by simply forwarding them to this site. followupthen.com
• Snipreel: Clip YouTube videos so you can share just the best parts. Snipreel.com
• GreatApps: Helps you weed through the 1,000s of apps out there by featuring the best 25 at a time. greatapps.com
• “If This Then That” write “recipes” and tasks to automate actions between “channels” like Facebook, Twitter, Email, Dropbox, Evernote and more ifttt.com
• Thsrs Find shorter synonyms for longer words ironicsans.com/thsrs/
• Zamzar is an oldie but a goodie site that coverts computer files you upload into other formats; great for old WordPerfect docs you now need to access via MS Word zamzar.com
• Down for everyone or just me? Find out if a website is down www.downforeveryoneorjustme.com
• Ninite: Pick all the popular software you want to install right from one page www.ninite.com
• FacebookCheating: Read and share stories of cheating that happened via Facebook. Also access spying and therapeutic resources for online activity. facebookcheating.com
• Factory Reset Wiki: Find factory reset codes and procedures for all kinds of products. Factory-Reset.com
• Join.me is a free, yet robust screen sharing and conference call system that is extremely easy to set up and/or join. join.me/
• TextMechanic allows you to manipulate and play with text in all sorts of different ways (for example, pick a random line of text) TextMechanic.com/Random-Line-Picker.html

Social media tools & resources

• Visual.ly: Generate a cartoon avatar and infographic for your Twitter account visual.ly/twitter
• Tips to surviving the zombie apocalypse (and other disasters) from the Centres for Disease Control blogs.cdc.gov/publichealthmatters/2011/05/preparedness-101-zombie-apocalypse/
>MemoLane: emails you reminders of your social media past memolane.com
• Frequency.com is a video aggregator that provides a convenient platform to find and view informative and humorous videos in one place. www.frequency.com
• Twylah creates a visually great-looking website out of your tweets and the links they contained. www.twylah.com
• MyPermissions lets you examine and clean up all the permissions you’ve given social media apps to access your private data mypermissions.org

Law practice management

• HBS Elevator Pitch Builder The good folks at the Harvard Business School have created the on-line pitch builder to help you hone your, well, elevator pitch. Try it! www.alumni.hbs.edu/careers/pitch
• Thinkstock: A huge supply of the best stock images thinkstock.com
• 99Designs is a new on-line graphics marketplace to have law firm logos and website graphics designed at extremely low rates, thanks to the winner-take-all nature of the marketplace. 99designs.com

Online privacy and dangers

• Google Privacy Tools: All the ways Google gives you control over the information you share and store with them: google.com/policies/privacy/tools/
• ScamTrends: Keep track of all the constant attemps to scam you by email, social media, phone, etc www.scamtrends.com
• AvoidAClaim This blog about law practice management and claims prevention also features warnings about the latest fraud attempts against lawyers www.avoidaclaim.com
• FCC Small Biz Cyber Planner: Information on how smaller companies can secure themselves against cyber crime www.fcc.gov/cyberplanner
• SecretSync is a great way to easily share proprietary, sensitive information using online synchronization utilities getsecretsync.com
• StartPage: A search engine that doesn’t collect your personal data startpage.com

Non-billable Time

• MapCrunch lets you randomly teleport anywhere in the world via Google Streetview Mapcrunch.com
• MyExWife’s Wedding Dress: Family lawyers will especially get a kick out of this site started by a man whose wife purposely left behind her wedding dress when they separated, and what he did with it to get even. myexwifesweddingdress.com
• VeryFunnyAds: Pretty self explanatory! VeryFunnyAds.com
• AbsolutelyMadness: collects the funniest pictures on the internet absolutelymadness.tumblr.com/
• PhotoShop Disasters: A collection of the worst examples of bad Photoshop efforts PSDisasters.com
• Monk-e-Mail: In just a few minutes you can customize an animated message complete with your own voice to send a birthday greeting or other fun greeting. Hosted by CareerBuilder.com of all things, but why not? www.careerbuilder.com/monk-e-mail/default.aspx
• PoopSenders For friend or foe, res ipsa loquitor. www.poopsenders.com
• Craftastrophe:A collection of the tackiest examples of homemade crafts Craftastrophe.net
• WhySiriWhy? Amusing Siri quotes and awkward voice-text failures whysiriwhy.com
• AwkwardWorkplacePhotos.com. Go. Laugh. Get back to work! workplacephotos.com
• Devolve Me: Upload a photo of yourself (or someone else) and devolve it to see what you would look like 1.8 million years ago.www.open.ac.uk/darwin/devolve-me.php
• MultiPlayerPiano: Play the piano online with whoever else is on the site at the same time multiplayerpiano.com

If you liked these sites, you can see the sites that were featured in previous ABA TECSHOW 60 Sites in 60 Minutes presentations as well as the ABA TECSHOW 60 Sites in 60 Minutes Hall of Fame

If you are not careful, the Internet can be a dangerous place that can expose you to malpractice claims. LAWPRO Magazine has featured articles on Social media pitfalls to avoid and how there may be no coverage for some online activities: Danger Signs: Five activities generally not covered by your LAWPRO policy.

Another recent LAWPRO Magazine article on Practice pitfalls contains a section on Internet liability, which points out that “statements that lawyers make on the Internet, whether on law firm or other websites, or on social media sites such as Facebook, are a significant potential growth area for claims.”

On his The Trial Warrior blog, Toronto lawyer Antonin Pribetic has a great post that contains sage advice on the dangers of breaching client confidentiality with a blog post — Too Much Information: Blogging about your client.

Not only does the post contain great practical advice; it backs it up by citing relevant rules and commentary from the Law Society of Upper Canada’s Rules of Professional Conduct.

“In the end,” Pribetic concludes, “ask yourself this question: why am I writing this blawg post about my client’s case? If the answer is ego-fulfillment, self-promotion or catharsis, stop typing and delete the post. Even if your reasons are altruistic, get your client’s express consent first, and then save your draft and post after the final judgment is rendered and all appeals are exhausted.”

If you have a blog you should read Pribetic’s Too much information: The dangers of blogging about your client post.

Cross posted on Slaw.ca

The current #1 on the New York Times most popular articles list is an item that appeared in the Technology section on the weekend: The 3 Facebook Settings Every User Should Check Now.

In terms of complexity, the Facebook privacy settings lie somewhere between the calculations behind a space shuttle launch and figuring out what the Maple Leafs need to do to win a Stanley Cup. These things are simply beyond most of us mere mortals. I think it is safe to say that most Facebook users do not appreciate all the nuances of Facebook privacy settings, especially when it comes to third-party apps.

This is the clearest explanation of the basic Facebook privacy settings I have ever come across. If you are a Facebook user you should read this article and tweak your privacy settings.

Cross posted on Slaw.ca