Working online is often touted as the way of the future for lawyers, and it may well make much of what they do easier.
But the worldwide web also holds hidden traps for the unsuspecting, as Ottawa lawyer David Ian Amber discovered. He was just looking for a software program that would help with a case's paperwork when he accidentally posted Crown disclosure from his client's fraud case, including her name, photo, phone number, birthdate, employment records, credit card numbers, driver's licence and other personal data on freelancer.com.
“It wastes time to have to ask a judge to order the other party to unredact information,” Anber explained in his freelancer.com post. “I would like a simple program that can allow me to remove black boxes redactions and to save them in their unredacted format in pdf.”
The Ottawa Police, tipped off about Anber's unintentional breach of confidentiality, launched a sting operation where an undercover officer offered to provide the desired program, which Anber agreed to purchase for $500.
After the Crown found out about the police sting, it went to court demanding return of the posted disclosure. Ontario Superior Court Justice Robert Maranger went one step further, ordering Anber to return all disclosures supplied to him by the Crown for that case and all others. Describing Anber's conduct as “egregious” Justice Maranger also ordered him to be mentored by three senior lawyers for at least an hour a week, for three months.
Anber's case is a cautionary tale for all lawyers working in the Internet Age. His error – by all accounts innocent – was the electronic equivalent of tapping a fellow lawyer on the shoulder and asking for help. “The problem is that posting anything in an online forum – even one that you believe to be private and protected – is not legally the same as a person-to-person conversation,” said David Fraser, an Internet, technology and privacy lawyer with McInnes Cooper in Halifax. “Once you hit ‘Send' and post your query or comment, it is there for the whole world to see – and now entirely out of your control.”
On the internet, “there is really no such thing as privacy,” said Kirsten Thompson, counsel with McCarthy Tetrault's National Technology Group in Toronto. “Given the fact that anything put onto the web has the potential to go public, you have to assume this to be the case with all of your online communications, and act accordingly. In other words, when you're online and a lawyer, you are always wearing the robes; even on your personal Facebook and Twitter accounts.”
Here's where things can become even more confusing: “Just because the internet is new technology, doesn't mean that there are new rules governing its use by lawyers,” Fraser said. “In fact, the old longstanding rules of professional conduct and responsibility still apply.”
This is certainly the case in Ontario.
“Lawyers must meet standards of conduct that include professionalism, ethics and confidentiality when communicating in any medium, including online,” said Zeynep Onen, the Law Society of Upper Canada's Executive Director of Professional Regulation. “Lawyers have a legal and professional duty to protect, and not to disclose, solicitor-client privileged information or confidential communications and other information belonging to a client.”
Due to the uncertainties of working with the web – especially for older legal practitioners who are not as comfortable with the medium as their younger colleagues – some lawyers are running afoul of the LSUC's Rules of Professional Conduct.
The Law Society receives complaints about lawyers' websites or their on-line communications, said Onen, though he wouldn't discuss specific instances.
“In some cases these relate to civility. In other cases the complaints concern advertising that the complainant viewed as unprofessional or misleading. There have also been complaints about confidential information that was posted on a lawyer's website.”
The Law Society addresses most issues of online mistakes without formal discipline, says Onen.
“Where a matter is serious, or where the licensee does not appreciate the Law Society's view of the conduct issue, we may undertake a more formal response up to and including formal discipline.”
Anber voluntarily reported his error to the Law Society of Upper Canada. The three-person LSUC panel reprimanded him for his “terrible mistake” and fined him $7,205 in costs. It did not impose the two-month suspension sought by Law Society prosecutor Suzanne Jarvie, who herself had noted Anber's admission of guilt and efforts to make amends. In fact, the panel's decision was in line with the penalty sought by Anber's counsel Michael Johnston, because Anber didn't want LSUC members to bear the costs of his hearing.
The simple rule of thumb: If there's any chance of violating client confidentiality, or any other aspects of your applicable code of professional conduct by posting something online, don't do it.
“Also be careful of what you say in Twitter,” advised Thompson. “With its 140-character limit per tweet, this is not a good medium for accurate legal communications.”
The bottom line: "When you put something on the Internet, you have to assume that it is there for good," concluded Fraser. "So follow your code of professional conduct to the letter, and if there's even the smallest chance that a posting could violate it – including for conflict-of-interest reasons – don't post it!"
James Careless is a freelance journalist.