Ethical parameters to pro bono practice reviewed at CLE

Credit for 1.5 CLE hours in ethics and professionalism was just one of the takeaways from a Nov. 8 presentation on “Pro Bono Ethics: The Risks of Technology.”

Julia Green Sewruk of Harter Secrest & Emery LLP moderated the educational program, with panelists Nicole Black and Sarah Snyder Merkel contributing to the discussion of how technology is reshaping the practice of law.

The program (including continental breakfast) took place at the Genesee Valley Club. It was sponsored by HS&E and attendees were asked to make a $100 contribution to the Campaign for Justice in exchange for their CLE credits — in essence making this a fundraiser for civil legal services just as the 2017 Campaign for Justice kicks off.

Panelists

Black is a local attorney who is known nationally for her expertise in cloud computing and internet-based technology. She has authored hundreds of articles for numerous publications and regularly speaks at conferences regarding the intersection of law and mobile technology.

Merkel has both state and federal court litigation experience and currently is a member of the University of Rochester Office of Counsel, where she concentrates her practice on all aspects of labor and employment law.

Sewruck focuses her practice in the areas of higher education and labor and employment law as a partner at HS&E. Her work with higher education clients often involves counseling on student affairs and day-to-day operational issues, in addition to Title IX compliance.

Online Portal

A little over a year ago, the American Bar Association rolled out a new web program — ABAFreeLegalAnswers.org — to give income-eligible users the ability to pose civil legal questions to volunteer attorneys via a virtual advice clinic. Within the first six months, 30 states rolled out their version of the online walk-in clinic, and New York was one of the first out of the gate.

The New York State Bar Association’s (NYSBA) website is NY.freelegalanswers.org. The state bar suggests this as an easy way for attorneys to take on short-term volunteer assignments and fit them into their schedule.

So if a lawyer does this type of ad hoc, online, pro bono work, what are the ethical issues to consider? Data security, potential conflict of interest, competency in a particular area of law, and scope of the civil legal question were all matters to consider. The printed course materials included relevant NYS Rules of Professional Conduct while the panelists discussed the application of those rules.

Webcams and such

Volunteer Legal Services Project (VLSP) has been facilitating the Family Law Remote Assistance Project by partnering with outlying offices of Legal Assistance of Western New York (LawNY), allowing a rural resident to consult with a Rochester attorney via webcam.

For a period of time, a similar program called “Closing the Gap” offered civil legal resources to underserved rural clients, often facilitating the online meeting through a local library. When funding for Closing the Gap ended, VLSP added consumer debt to the Family Law Remote program and as you read this, perhaps one of your colleagues is chatting with a client in Olean or Bath.

VLSP’s Scott MacPherson coordinates the volunteer assignments for Family Law Remote, which again, allows a “short-term” pro bono session to happen without the volunteer attorney leaving his/her desk.

The discussion of ethical issues associated with the “less formal” client-attorney setting also included discussion of online confidentiality along with privacy concerns regarding email.

NYSBA ethics opinions

In 2010, the NYSBA issued Ethics Opinion 842 which discusses an attorney’s responsibility in using online data storage systems, a/k/a “the cloud.”

So what is an attorney’s duty to confirm (and reconfirm) that an internet provider’s security measures are effective? It isn’t a once-and-done proposition, so technology advances require some periodic confirmation of security.

Or how about NYSBA Ethics Opinion 709 from way back in 1998: “A lawyer who uses Internet email must stay abreast of evolving technology to assess any changes in the likelihood of interception as well as the availability of improved technologies that may reduce such risks at a reasonable cost.”

What’s a reasonable cost changed a lot between 1998 and 2017, leading Nicole Blake to write: “Email is an outdated mode of communication and it’s inherently unsecure. Emails are akin to sending postcards written in pencil through the post office, making it incredibly easy for those who have the know-how to intercept emails — and their attachments — and read them.”