Tuesday, October 25, 6:00 – 8:15 p.m.
Ethics and New Technologies

The FCBA Professional Responsibility and Privacy and Data Security Committees will sponsor a CLE on Tuesday, October 25 from 6:00 – 8:15 p.m. entitled “Ethics and New Technologies.”  This program will be held at Cooley LLP, 1299 Pennsylvania Avenue, NW, (enter from 12th and E Streets), Suite 700.

AGENDA

6:00 – 6:05 p.m.     Welcome and Introductions

6:05 – 7:05 p.m.    Cloud Computing and Other Internet Tools: Using Them Ethically and Preventing and Mitigating Their Abuse
A panel of experts will discuss professional responsibility obligations in using and securing the cloud, in leveraging technology, and in preventing and mitigating the effects of breaches of privileged information. The panel will highlight obligations to safeguard client confidences and the ethical use of search engines and metadata.

• Using the cloud ethically: What must a lawyer tell a client about the firm’s use of cloud-based services? What terms should an engagement letter include? What if the cloud servers are located in another jurisdiction or country? What specific disclosures should govern particularly sensitive data, such as health information?
• Preventing, mitigating and notifying clients of a data breach: What steps and attorney should be taking to be informed about whether client data has been breached or compromised? What steps should be taken to ensure subordinate attorneys and staff, contract attorneys, and vendors employ reasonable data security? What precautions could be taken in advance to mitigate the harm of any potential breaches (such as de-identification or hashing)?
• Marketing on the internet and social media: What are the ethical limits to search engine-based advertising? To the use of endorsements on social media or websites? To the use of unsolicited emails?
• Representing the client competently: To what extent do the Professional Conduct Rules require basic mastery of electronic searching and Internet security?
• Keeping client confidences: When can failure to remove metadata or to redact appropriately violate this duty?
• Safeguarding client property: What if a lawyer mishandles a client’s hard drive, losing or damaging evidence?

Moderator:
Gregg P. Skall, Partner, Womble, Carlyle; former Co-Chair, FCBA Professional Responsibility Committee

Speakers:
Adrienne Fowler, Privacy and Data Security Attorney, Harris, Wiltshire & Grannis LLP; Co-Chair, FCBA Privacy and Data Security Committee
Bradley Shear, Privacy and Data Protection Lawyer, Managing Partner, Shear Law
Drew Simshaw, Staff Attorney & Teaching Fellow, Georgetown Law, Institute for Public Representation; former member, Indiana State Bar Legal Ethics Committee (2014-2015)

7:05-7:15 p.m.  Break

7:15-8:15 p.m.  Ethical Limits to the Non-Traditional Office
Telework, the “virtual office,” a completely online legal service—these forms of legal service range far beyond the brick-and-mortar location.

• Ethical limits on remote practice: Do you have to be a member of the Bar when you reside in that state but practice elsewhere? Are there constraints on teleworking, either on a weekly or more seasonal basis? Which jurisdiction’s laws govern in the various applicable scenarios?
• Need for a physical presence: Does a lawyer need an office of any kind? Will an Internet address suffice? Renting or sharing a space? Can a large law firm with lawyers across the country manage without a physical office and use only the Internet? Could a lawyer in such a firm located and admitted in California handle a D.C. matter for a client located in D.C.?
• Impact of state rules on an exclusively Federal practice: Can a lawyer with an exclusively Federal practice work from a state in which he or she is not admitted: When does a “Federal” practice qualify for exemption from the Unauthorized Practice of Law (UPL) rules?
• Boundaries of virtual practice: What are the constraints on offering advice or other services over the Internet? Must a lawyer be licensed in some state? Must a lawyer be licensed in the specific state in which he or she is practicing virtually? What are the limits on what law clerks can do without violating the UPL rules?

Moderator:
Gregg P. Skall, Partner, Womble, Carlyle; former Co-Chair, FCBA Professional Responsibility Committee

Speakers:
Charles Davant IV, Partner, Williams & Connolly LLP (Member of firm’s Ethics Committee); Member, D.C. Court of Appeals Committee on Unauthorized Practice of Law; Member, D.C. Board of Professional Responsibility Hearing Committee
Thomas B. Mason, Partner, Harris, Wiltshire & Grannis LLP (Chair, Legal Ethics and Malpractice Group); Best Lawyers’ Washington, D.C., Ethics and Professional Responsibility Lawyer of the Year (2014 & 2016); Co-Chair FCBA Professional Responsibility Committee
Cynthia G. Wright, Chair, D.C. Court of Appeals Committee on Unauthorized Practice of Law