“The world is gray. It’s hard to understand.”
That’s how Philip Favro, discovery counsel at Symantec Corp., appropriately set the tone for SuperConference 2013’s first ethics session. The well-attended discussion focused on several topics governing ethics in the legal profession, including the Model Rules of Professional Conduct and internal communications.
Favro kicked off the discussion with a focus on the Model Rules, which require in-house counsel to stay abreast of technology and ensure their clients keep up with any changes. “We need to know technology, how it’s used,” said panelist Kathleen Edmond, chief ethics officer for Best Buy. “But we also need to know how it’s misused and where it can go wrong.”
The panelists discussed several specific challenges to the Model Rules, such as Rule 1.6, which requires the preservation of confidentiality. Recent technology, such as email, text messaging and social media, has presented particular challenges for legal departments with regard to privilege. “[Privilege] is not new,” said Pat Gage, senior principal and deputy general counsel at Promontory Financial Group. “But the way we now deal with it is new.”
Favro and the panelists suggested that all companies do an analysis of their communications risk factors, such as how easy it is to disclose information to third parties or mistakenly send a message to the wrong recipient, among others. Gage pointed to Cc and “reply all” options in email, which opens up myriad opportunities for privilege violations. “This didn’t happen back when you wrote things down on a piece of paper,” she added.
Short of disabling functions of software to prevent these types of slipups or oversights, training employees about appropriate email usage is the only tried and true method for prevention, according to the speakers.
The panelists discussed best practices for these digital age communications, such as creating effective social media policies and training employees on those policies. But Gage also warned about not crossing any lines. “If you’re writing a policy, be mindful of the [National Labor Relations Board] and the work they’ve been doing the past year,” she said.
The discussion also focused on the challenges of cloud computing, which could put a company’s information at risk of being accidentally disclosed, as well as the challenges to BYOD (bring your own device), which Favro referred to as “bring your own disaster.”
In the end, all the panelists agree, the changing technology regularly keeps in-house counsel up at night.
“There will never be a bright line,” Edmond said. “As soon as you think you’ve got it, you don’t. It’s always changing.”