Guarding against Inadvertent Disclosure: Properly Remove Metadata and Redact Before Transmitting Digital Docs.

Guard against inadvertent disclosures by properly removing metadata and redact confidential information before transmitting those digital documents.

Some lessons are so important, they bear repeating. For years the Practice Management Advisors at the PLF and through out the USA and Canada have cautioned lawyers about scrubbing metadata from documents.

Here is a brief snippet from my May 2006 Oregon State Bar Bulletin Managing Your Practice article, Metadata: danger or delight?

“…Much hype has surrounded metadata ever since the March 4, 2004, CNET News.com disclosure that SCO Group’s lawsuit against defendant DaimlerChrysler for alleged violation of their Unix software agreement was initially prepped as a lawsuit against Bank of America for copyright infringement. You may have enjoyed the benefit of using a suite of programs like Microsoft Office, especially because it is easy to pull data from one program into another, such as copying part of an Excel worksheet into a Word document. However, if you do this from the Edit menu using the “Paste Special” feature and selecting “Microsoft Excel Worksheet Object,” you may be in for a surprise. Double-click on the Excel worksheet object in your Word document and you’ll discover that the entire worksheet document is visible, including other worksheet tabs that may contain sensitive information. The entire Excel worksheet is known as an embedded object and is metadata that travels with the Word document. Thus, the full Excel worksheet can be viewed by the receiver of the Word document, even though you didn’t intend that result. The detriment of exposing more that a select portion of an Excel spreadsheet may be exponential if the additional figures pertain to your negotiation strategy on settlement offers or disclose profit projections for complex financing plans.

In complying with discovery requests, you are required to provide only the documents and data set out in the discovery demand. Beware — if supplying electronic versions of your documents — that you are not providing more information than required by inadvertent disclosures in document metadata.”

And a year later, then OSB General Counsel now Executive Director Sylvia Stevens warned lawyers about the perils of being unaware of metadata and referenced the August 2006 ABA Formal Opinion 06-442 Review and Use of Metadata in her April 2007 OSB Bulletin Bar Counsel article, Metadata: Guarding Against the Disclosure of Embedded Information.

“The ABA opinion stands as an important reminder that it behooves lawyers to learn and understand technological advances that are integral to their practice so that they do not inadvertently send information that they might later wish they had not.”
 

And a few years ago, OSB General Counsel Helen Hierschbiel cautioned lawyers about the perils of inadvertent disclosures when sending documents electronically in the June 2012 OSB Bulletin Bar Counsel article, Revealing Bits & Bytes:
Guarding (and Exploiting) Metadata
.

“Two rules inform a lawyer’s duties when sending documents electronically. Oregon RPC 1.1 requires a lawyer to provide competent representation to a client, meaning the lawyer must possess the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” In addition, RPC 1.6(a) requires a lawyer to “not reveal information relating to the representation of a client.” “Information relating to the representation” is a defined phrase under RPC 1.0(f) and includes both information that is subject to the attorney-client privilege and other information gained during the course of the representation that the client has asked be kept secret or the disclosure of which would be embarrassing or likely to be detrimental to the client. With these two rules as a backdrop, the OSB Legal Ethics Committee concludes that competency in relation to metadata requires a lawyer who uses electronic communications to maintain at least a basic understanding of the technology and the risks of revealing metadata or to use adequate technology support. OSB Formal Op. No. 2011-187.”

To safely redact confidential and/or protected information when producing discovery or eFiling, be sure to use Adobe Acrobat XI Pro and follow the easy steps I shared in my June 2012 OSB Bulletin On Professionalism article, Easier Acrobatics: New Adobe Features Especially Appreciated by Attorneys.

“How to Remove Visible Data or Do Redaction from PDF Files in Four Easy Steps:

This can be done in Acrobat XI Pro only.

1. In Acrobat XI, choose Tools > Protection.

2. Click Mark for Redaction.

3. Go through your PDF and highlight the text or images you want to redact.

4. Click Apply Redactions. Acrobat permanently deletes the selected information from the file, replacing it with black blocks or other formatting of your choice.”

Why all the concern? Lawyers are continuing to trip when they should be treading carefully, as stressed in this Law360 post: E-Filing Error Can Destroy Trade Secret Status that you can read in its entirety with a free 7-day subscription.

 “First rule of thumb in trade secrets litigation? A trade secret must be kept secret. It is painfully obvious, but modern practitioners must not grow complacent due to the convenience of electronic filing. Although trade secrets law does not command absolute secrecy, a recent e-filing snafu in HMS Holdings Corp. v. Arendt offers a cautionary tale from New York on how one botched upload could jeopardize a client’s most prized possession.”

Make no mistake, ABA Model Rule 1.1 specifically addresses the need to be competent when using technology, see the December 2013 Your ABA article Duty of Competence in the 21st Century

Model Rule 1.1:

Client-Lawyer Relationship
Rule 1.1 Competence

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Comment 8:

Maintaining Competence

[8] “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

Be safe out there!

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Just Say, “No.”

One of the most important things you may need to tell your existing and potential clients is, “no.” When to say no can be difficult for some lawyers to determine. With memories of the 2008 economic climate and awareness of overhead, many lawyers struggle with turning away business. If there is a person with a problem, the lawyer says yes quickly without consideration of anything but the lawyer’s need for revenue or gratitude. If the scenario sounds familiar, consider for a minute, that you may be turning away a malpractice claim or an ethics complaint. Then saying no isn’t so hard, is it?

Lawyers have a duty of competence. If you aren’t competent, then you are supposed to get competent or associate with someone who is competent. You may find yourself in a situation where neither seems to be an option. I talked with a lawyer who was relatively young in law practice experience and did not have the level of experience, knowledge, or adequate capital to handle a medical malpractice case. A pro bono one! Happily, the lawyer was able to say no and get the case off to someone with the current skills and resources to help.

Lawyers have a duty to communicate with their clients. Sometimes, what needs to be communicated isn’t good news, such as communicating that upon review you have discovered that the case has no merit and not a chance of prevailing at court. One lawyer found this out after saying yes and engaging in a lot of puffery about being able to get the client money. Understandably, the lawyer was reluctant to say, no. No case. No ethical way to pursue this. That was a hard no. Likely, the lawyer toned down enthusiasm with the next potential case until investigating the facts revealed worth pursuing.

Lawyers have a duty to safeguard client property. Some clients  push for their check to be cut now. But if the funds for the client are not actually in the trust account, because the issuing bank of the check has not transmitted funds to the Lawyer Trust Account, then there are no client funds to be disbursed yet. You otherwise are robbing Peter to pay Paul. Best to say, no, the funds are not yet available and they will be disbursed to the client just as soon as they are available.

Lawyers have a duty to not take on a case, or if engaged to withdraw from representing a client, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. What if the lawyer has represented the client for a long time and the client wants the lawyer to continue to finish up the matter? What if the lawyer cannot see or even concentrate because of the pain of treatment for terminal cancer? What if the lawyer has been admitted to a drug and alcohol treatment facility for detoxing or in a lock down for mental illness? The client may want the lawyer to continue but if the lawyer’s physical or mental condition render the lawyer incapacitated, then the lawyer must say no, not now. Hopefully the lawyer’s cell phone has been collected at the hospital door, but I have heard of clients calling and calling and calling, despite being told that the law office is temporarily closed.

What about those clients who are friends? How easy it is to get into a situation where you continue to do legal work for free because it is your friend. Some lawyers get themselves too busy helping friends, and friends of friends, with myriad legal matters that are beyond the lawyer’s ability to properly attend to with the competence and diligence required. You don’t get a pass on ethics violations or acts of malpractice just because it is a friend who is not paying for legal services. You undertake providing legal services, you need to provide the services ethically and without committing malpractice.

Comment 5 to ABA Model Rule 1.4 (Communication) states “…The guiding principle is  that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.” Make sure your clients are being given reasonable expectations. Hold the client’s best interest foremost in mind and you will do the right thing, even if the right thing is to say, “no.”

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Lawyers in Distress

The practice of law can be very stressful, and for lawyers who suffer from depression, it can be deadly.

Oregon like many states across the nation has lost a number of good attorneys to suicide. The Oregon State Bar Bulletin February/March 2015 issue had an excellent article, “From Stigma to Safety Net Attorney Suicides Initiate Nationwide Conversation About Mental Health and Prevention,” by Melody Finnemore. In it, she states that depression often takes root during law school. As a former high school and middle school teacher, I can say that it takes root far sooner than law school.

What pushes people? For some, there is an inner hole that cannot be filled. No acquisition, no achievement is good enough to take away the pain of not being enough. Some turn to self medicating with alcohol and drugs. But sooner or later, without some intervention by mental health care professionals, including drug and alcohol counselors, something terrible is going to happen.

What can we do? We can pay better attention to our colleagues – and to our families and friends. Put down the iPhone and iPad and look at the person while listening. We each give a great gift when we are truly present to others. If you need to shore up these skills, consider mindfulness meditation training. You will notice a difference in your relationship. If being heard is becoming a rarity in your office and home, do some mindful listening, which is listening without waiting for the pauses to interject your agenda or well-intentioned advice. There is time for both later. First, just listen.

Are there signs to watch for that may signal trouble? There are resources available nationally and locally. The article mentioned above has a helpful sidebar, “Signs to Look for Ways to Help.”  The American Association of Suicidology has an entire page devoted to warning signs and a mnemonic IS PATH WARM? Ideation; Substance Abuse; Purposelessness; Anxiety; Trapped; Hopelessness; Withdrawal; Anger; Recklessness; Mood Changes.

Here in Oregon, we are fortunate to have the Oregon Attorney Assistance Program (OAAP) with four caring attorney counselors, Shari Gregory, Kyra Hazilla, Mike Long, and Doug Querin. If you are struggling or concerned that someone you care about is struggling, their services are confidential and free. It doesn’t get much better than that! Nationally, the American Bar Association has the Commission on Lawyer Assistance Programs (COLAP)where you can find resources and links to programs available in other states and provinces.

And how about yourself? Are you headed for becoming a lawyer in distress? You can and should Knock Out Burnout!   You and your friends and family will be glad that you did!

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Departing a firm ethically with grace

I get a lot of calls from associates and partners wanting to leave their current firm to pursue the opportunity of moving to another firm or to pursue the dream of opening their own law office. The PLF has a variety of helpful materials on this topic “Departing a Firm” including checklists, sample letters for notifying clients and getting the direction of what the client wishes to do, instructions for setting up email bouce-back notices and articles from our Oregon Bar Counsel Helen Hierschbiel, General Counsel, and Amber Hollister, Deputy GC. There are many good CLEs held on this topic. This past week I attended a CLE from Bloomberg BNA on this topic called, “Lawyer Mobility: Ethical Issues Arising From Lateral Hires, Partner Withdrawals and Law Firm Dissolutions.” You may be able to watch this 90 minute on-demand by contacting Bloomberg BNA Professional Learning. www.bna.com

Here are some of the issues you need to consider before acting: you have a duty to your clients to communicate. Oregon RPC 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. The fact that you will be leaving the firm impacts your clients. They came to you for help in solving a legal problem. No matter your personal feelings of disenchantment with your firm, do not drag your clients into the middle of any conflicts.

Here are some frequent questions that cause anxiety:

“When can I ethically tell my clients I am planning to leave?” The common sense answer: “Tell your clients after you tell your firm.” That’s right, after. You get this one wrong and your relationship with your present firm is damaged. If you are a partner, you have a duty to your fellow partners and to the firm. If you are an associate, you have a contractual relationship with your employer.

“When do you need to tell your firm you are planning to leave?” If you are a partner, look to your partnership agreement. Remember you are withdrawing from the partnership. If you are an associate, look to your employment contract or personnel manual.

“What if my firm does not have anything in writing?” If there is nothing in writing to guide you, most professionals provide at least 30 days notice if not 60 days notice. You don’t want to damage your firm, merely move on. If you are in a general partnership, see the Oregon Revised Partnership Act, ORS 67 for governing provisions. If you are in a Limited Liability Partnership, LLP, see the Uniform Limited Partnership Act, ORS 70 for governing provisions.

“What about getting information for my conflicts of interest database?” If you have billed on a client matter, you have knowledge of client information that means a potential conflict of interest going forward.Some firms supply year-end and month-end reports of your billing matters. If not, you will want to ask your firm for this information.

“What about when I tell my firm about my plans?” Take the time to plan how this event will take place. Preparing an annotated status report of client maters you are responsible for or have been working on is important and appreciated. Additionally, you may want to have a packet of materials with you when you notify your firm: client status report, proposed letter to clients, copy of article addressing ethical guidelines, proposed timeline of your exit and transition of remaining clients to another attorney in the firm. Be sure to make a copy for yourself which will be important if the firm tells you to leave immediately or by the end of the day or week.

“What about forms and sample documents I’ve used or even created while at the firm?” Consult a lawyer about this. Generally speaking, if something was created during your employment by a firm, it belongs to the firm. Most firms have monitoring provisions in place, or the ability to do so. Your efforts to download documents from your firm’s server is not under the radar. There are records of this and there may be consequences if you help yourself to property of the firm with the intention of converting it to your own use at your next firm. You wouldn’t dream of collecting office supplies. Consider that the firm’s form bank is far more valuable than post-it notes and paper clips!

Finally, to ensure that you are going to exit your firm ethically and gracefully, consider seeking ethics advice from the Oregon State Bar Ethic Counsel or hire outside ethics counsel to guide you through your situation. Whether you are a partner or an associate, you are an Oregon attorney-at-law, a professional. Conduct yourself accordingly. Good luck in your future endeavor.

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15 Resolutions for a More Rewarding Law Practice in 2015

15 resolutions you may want to adopt for your own:

1. Check email in the morning and sort into three folders: Do, Delegate, Delete; you want to use email as a tool not get swallowed up by it.

2. Unless urgent, return calls at 11:00 a.m. and 4:00 p.m. daily; you’ll save time batch calling.

3. Have a Work in Process (WIP) meeting Monday mornings for reviewing and updating status of all open matters; you will catch what would otherwise slip through the cracks.

4. Call a different client each day off the clock to check in about how the client is doing; you’ll be rewarded from this simple action.

5. Plan time for a health break daily for a brisk walk, meditation, or yoga session; you’ll perform better if well-balanced.

6. Learn to say “no” to cases that you don’t want to do; your time is a valuable resource to invest wisely.

7. Send a handwritten thank you note when a matter is finished and enclose two business cards; appreciation is contagious.

8.  Monitor your financials: receivables, expenses, profitability; your clients need you to succeed.

9. Dust off your business plan and review quarterly; make it dynamic.

10. Plan regular networking breakfasts with colleagues and potential referral sources; don’t become isolated or overlooked.

11. Pick up the phone if a client is 45 days late in paying the bill; find out if there a problem tobe solved.

12. Use clearly written fee agreements; keep your client relationships positive.

13. Do an office audit to identify any inefficiencies and potential sources of malpractice claims and ethics complaints; call a PMA for help.

14. Focus on improving service to clients and increasing job satisfaction; don’t settle for mediocrity.

15. Create a case timeline, case budget, and scope of representation for clients before beginning work; keep the focus sharp.

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Tech When an Upgrade isn’t an Upgrade

I recently went through tech trauma that I want to share with you so you don’t need to repeat my experience. I had an iPhone 4S. Yes, I know, old technology replaced by cool technology I wasn’t yet ready to pay for. I knew I wanted to hold out for iPhone 6 and was waiting for Verizon to make me an offer I couldn’t refuse. Meanwhile, I dutifully upgraded iOS until coming up against messages that I lacked sufficient storage size. The lure of promised “security fixes” compelled me to action. Darn! After awhile, I finally sighed and proceeded to dump apps and photos and anything that I could delete so I could download the memory-hogging upgrade. My battery life became shorter. Then my charging cord didn’t seem to work well. Tried other outlets, other charging cords. Puttered on.

Last week I flew down to see my family in California. While watching Breaking Bad on Netflix with my sister who is evidently the only one in her house who didn’t see it, I noticed my iPhone was completely out of juice. So plugged it in. Red skinny bar. Showed charging zag but obviously something wrong. Tried various charging methods. Next morning still no juice. Made trip to Verizon. Verizon let me know that the upgrade messed up my battery. Nice Apple! How about telling us that we can’t upgrade the older 4 iPhone with the newer 8.12 iOS as we take your word that we need to upgrade. But I digress.

The Verizon store could examine my phone but would need new battery to do so. $99 to look at what is wrong with phone or $199 to buy new iPhone 6. Not much of a decision dilemma! Traveling without iPhone, felt like I was near amnesiac in a foreign country! Verizon only had an iPhone 6 Plus which was ridiculous to hold for phone in my hand. Couldn’t switch to any other Droid phones because I am too locked up in Apple. So off to Apple Store.

Meanwhile, I am stressing because this has changed from a “quick errand” before heading to a comedy show with my sister to a major time consuming process as Apple Store filled with post-storm Christmas shoppers wanting to get their Apple goodies or kill time. Big problem. When I get stressed, my memory winks out. What is my password? What is my Apple ID? Everything important was saved in my eWallet app on the dead iPhone 4s. Yes, I have another eWallet on my MacBook Air and iPad which are home in Oregon. Husband at work so no one could help.

Got reunited with Apple ID. Went over to another Apple Care Station to download a restore of my old phone’s data from the iCloud. Can’t believe my luck! I will have a better phone and all my old phone stuff including that eWallet app with the keys to my digital life in there. But, the storm affected the iCloud per the Apple munchkins. So after 4 attempts they sent me off with a iPhone 6 with my phone number. The attempted restores from iCloud put older contacts and apps on phone. Good enough until I could get home to Portland to safely wipe new phone and attempt to do a full restore from the iCloud. Happy to report success! It worked and everything back. Thank you, God of Technology!

But some lessons. That eWallet app to store passwords and user names is nice BUT if it is on a phone that becomes inaccessible due to dead battery or damage or being lost or stolen, you are out-of-luck. Yes, I had it on 2 other locations – lap top and iPad–but the problem is what if you don’t have access to those other things? Or there is some urgency? My sister has all her passwords written down. A jumble. Not a good solution either in my opinion but she’s my older sister and I can’t convince her. There are other apps that include access to your passwords via the internet. Might help. But then again, might have lack of internet. So think about your own situation. Gives you a headache doesn’t it?

So the lesson I started with is that upgrade may not be an upgrade for you. Especially if you don’t have the latest device. Maybe check suitability before hitting the “Upgrade Now” button lest it be the last thing you see on your tech tool. Maybe just go have an eggnog and be glad with me that I am home with a new phone with old important stuff on it thanks to backing it up.

Happy holidays!

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Tis’ the Season for Embezzlement

Embezzlement season is upon us. Why? Because the Holidays are a time of overspending and stress from trying to meet expectations. More, more, more. How to pay for it may sadly be with your firm’s money.

Here is a checklist to help you prevent Fraud and Embezzlement:

All law firms should adopt an effective, documented system of internal controls to protect against acts of dishonest lawyers and staff. Incorporating the following procedures can greatly narrow if not eliminate windows of opportunity for wrongdoers.

Bank and credit card statements can be delivered to the managing partner at a home or separate address for the MP’s personal review.

Checks and debit memorandum should be reviewed with the statements.

Checks and wire transfers should require two signatures and signatures should be verified.

A copy of the bank reconciliation should be attached to each monthly bank statement and reviewed by two parties.

Finance or accounting personnel should not be signers on all bank accounts.

Checks received in the mail should be immediately endorsed by a two-person team who opens and processes the mail.

After checks are properly endorsed, the accounting or bookkeeping department should take charge of the checks for deposit.

Whenever possible, a check-protector machine should be used for entering the amount on the firm’s checks.

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