December 10, 2017

Archives for July 6, 2016

The Ethical Danger of the Microsoft/LinkedIn Merger

Editor’s Note: This post originally appeared on Stuart Teicher’s blog, “Keeping Lawyers Out of Trouble,” on June 16, 2016. Reprinted with permission.

Headshot-Stuart-TeicherBy Stuart Teicher

This week it was announced that Microsoft is buying LinkedIn. There are some hidden attorney ethics implications about which we all need to be aware.

A review of the recent news articles announcing the acquisition reveals that a key motivating factor in Microsoft’s purchase of LinkedIn was access to LinkedIn’s data.  Of course, sharing data is nothing new. But when companies improve their ability to share our data across various platforms, my ears perk up. Not just because it’s creepy or because of obvious privacy implications. The type of data sharing they’re contemplating in the Microsoft/LinkedIn combination makes me worry about confidentiality (and other) issues.

Why they are merging:

According to the Wall Street Journal, Microsoft sees a critical synergy with LinkedIn:

“LinkedIn’s users are, arguably, Microsoft’s core demographic. They also offer Microsoft something it has long sought but never had—a network with which users identify. Microsoft needs to persuade LinkedIn users to adopt that identity, and use it across as many Microsoft products as possible.

Access to those users, as well as the enormous amounts of data they throw off, could yield insights and products within Microsoft that allow it to monetize its investment in LinkedIn in ways that the professional networking site might not be able to. [Microsoft CEO] Mr. Nadella already has mentioned a few of these, including going into a sales meeting armed with the bios of participants, and getting a feed of potential experts from LinkedIn whenever Office notices you’re working on a relevant task.“

In other words, Microsoft wants to have your Outlook and other Microsoft software products speak to your LinkedIn profile. The intersection of that data is valuable—various sellers of products and services would be willing to pay for it.

It appears that Microsoft wants to be able to read through the work we do on their products like Word, review our upcoming appointments in our Outlook calendar, search for keywords in our emails, and then find connections with people with our LinkedIn connections. That’s what they are searching for—connections they could monetize.

For instance, let’s say accountant X has an Outlook Calendar appointment which sets a meeting with “Charles McKenna of Account-Soft Corp.” Microsoft could then search LinkedIn and it would learn that McKenna works for a company that sells workflow management software. Well, now Microsoft knows the accountant is in the market for workflow management software… and they could sell that knowledge to other software companies who would then direct solicitations in the accountant’s direction. That’s an annoyance for an accountant, but a potential ethics disaster if he/she were a lawyer.

Basic issue, Confidentiality:

If Microsoft scours our Word documents and emails, then there could be Rule 1.6 confidentiality issues.  That’s so obvious that we don’t need to spend time talking about it now. I think the more unusual issues come from the Calendar function…

If they leverage the data in our Calendar, it could reveal our client relationships:

The substance of what we learn from the client is confidential, but so is the very existence of the lawyer-client relationship. Will the integration of these platforms make it easier for people to figure out who we represent?

Think about how much information Microsoft could piece together from our Calendar. They might see a potential client introduction (which lists Pete Smith as present), a court appearance (which lists Pete Smith as present), and a meeting for settlement purposes (which lists Pete Smith as present). It’s not going to be too tough for the Microsoft bots to figure out that Pete Smith is your client.

If they leverage data in our Calendar, it could reveal key substantive information that could harm the client:

If Microsoft looks at our Calendar they can see that we’re heading to a particular locale. They might then cross reference our LinkedIn connections and send a message to one of them that says something like, “Your connection Bruce Kramer is going to Chicago next week. Why don’t you look him up?”

That heads-up might give someone the incentive to look into our movements a bit more… and who knows what they could find. What if that info was given to a real estate agent that we know in Chicago… and maybe we are representing a successful land owner… and we’re clandestinely scouting a real estate purchase because we don’t want people to figure out that we’re there on behalf of our deep-pocketed client… because if they know, the purchaser will run up the price. That LinkedIn message tipped off the real estate agent and it could cost the client a lot of money.

If they leverage data in our Calendar, it could end up revealing a misrepresentation:

Imagine that Client A asks you to accompany them to a meeting in Los Angeles. You tell her that you can’t go because you’ll be on vacation on the East Coast. That’s not true, however. The truth is that you’ve already scheduled a meeting with a potentially new client in Los Angeles. You didn’t want Client A to know that you’d be in town because you didn’t want to have to shuffle between clients—it would just be too much work. You could have told Client A that you’d be in town but you didn’t have time to meet her, but you thought she’d be insulted. It was just easier to say you’re far away and be done with it.

Later, Client A gets a LinkedIn message that says, “Your Connection Mary Smith is going to be in Los Angeles next weekend… send her a message and try to link up!” Do you know what you are now? Busted. And not only do you have egg on your face, but you may also have committed an ethical violation.

Is the white lie that you told your client going to be considered a misrepresentation or deception per Rule 8.4(c)? That rule states: “It is professional misconduct for a lawyer to (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…”

I know what you’re thinking… it was a half-truth. No harm no foul. Well, I searched the ethics code, and I didn’t find the term “white lie” or “half-truth” anywhere in the code. You should also note that Rule 8.4(c) does not require that the misrepresentation be “material.” It doesn’t allow you to lie about inconsequential things and there’s no modifying language- it just says that you can’t lie or deceive.

These are just a few issues. Some of these are clear ethics concerns, others are more akin to PR nightmares. Are they so terrible that we all need to get off LinkedIn right away? That might be a bit premature. After all, they only just announced the merging of the platforms- they haven’t actually done anything yet. I don’t know what dangers will actually be realized, or whether any dangers will be realized at all. What I do know is that part of being a responsible attorney in this technological age is to be diligent in thinking about these issues. As lawyers practicing in an ever-changing technological environment, we need to be aware of the potential problems. Keep your eye on the news and stay abreast about the details regarding the integration of these two platforms. Then, if you determine that you need to act, do so.  That way we are “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Comment [8], Rule 1.1.

Save the Date!

Stuart Teicher will be at the CLE offices on Thursday, September 8, 2016, to present two ethics programs. Registration is not yet open, but mark your calendars and don’t miss these important programs.

 

Stuart I. Teicher, Esq. is a professional legal educator who focuses on ethics law and writing instruction. A practicing attorney for over two decades, Stuart’s career is now dedicated to helping fellow attorneys survive the practice of law and thrive in the profession. Stuart teaches seminars and provides in-house training to law firms/legal departments.

Stuart helps attorneys get better at what they do (and enjoy the process) through his entertaining and educational CLE Performances. His expertise is in “Technethics,” a term Stuart coined that refers to the ethical issues in social networking and other technology. He also speaks about “Practical Ethics”– those lessons hidden in the ethics rules that enhance a lawyer’s practice. Stuart writes the blog “Keeping Lawyers Out of Trouble.”

Mr. Teicher is a Supreme Court appointee to the New Jersey District Ethics Committee where he investigates and prosecutes grievances filed against attorneys, an adjunct Professor of Law at Rutgers Law School in Camden, New Jersey where he teaches Professional Responsibility and an adjunct Professor at Rutgers University in New Brunswick where he teaches undergraduate writing courses. He is a member of the bar in New York, New Jersey and Pennsylvania. In 2014, he authored the book Navigating the Legal Ethics of Social Media and Technology (Thomson Reuters).

Colorado Court of Appeals: Trust Beneficiaries Can Recover for Breach of Fiduciary Duty Owed to Settlor

The Colorado Court of Appeals issued its opinion in In the Matter of Donald C. Taylor and Margaret Ann Taylor Trust on Thursday, June 30, 2016.

Revocable Trust—Fiduciary Duty—Breach—Standing—Attorney Fees—Exception to American Rule.

Donald and Margaret Ann Taylor were married to each other. They each had children from prior marriages: defendant is Donald’s son, and plaintiff and intervenor (plaintiffs) are Margaret Ann’s children. Donald and Margaret Ann created a revocable trust, the primary purpose of which was to benefit whichever spouse survived the other. Upon the death of the surviving spouse, half of the trust’s remaining assets were to be distributed to Donald’s children, with the other half going to Margaret Ann’s children. Donald and Margaret Ann also each had investment accounts, which would pass to only their respective children upon death. Upon Donald’s death, defendant became co-trustee with Margaret Ann. Shortly before her death, Margaret Ann, at defendant’s urging, transferred into the trust monies that she had separately placed in her investment accounts and designated as payable upon death only to her children. A jury found that defendant had breached his fiduciary duty. The court entered judgment and awarded attorney fees to plaintiffs.

On appeal, defendant contended that the trial court erroneously allowed plaintiffs to recover damages when there was no evidence of a breach of fiduciary duty to Margaret Ann. Because plaintiffs here alleged an injury-in-fact to a legally protected interest, they had standing to assert the breach of fiduciary claims. Therefore, plaintiffs could pursue a claim for a breach of fiduciary duty that proved harmful to them, even though the duty was owed to Margaret Ann.

Defendant also contended that the trial court erred in awarding plaintiffs attorney fees under C.R.S. § 15-10-504(2). Here, the jury determined that defendant had breached a fiduciary duty owed to Margaret Ann and the undisputed evidence was that defendant was a trustee, Margaret Ann was a trust beneficiary, and defendant and his siblings stood to personally gain by the inclusion of the challenged property in the trust. Under these circumstances, the requirements for recovery of attorney fees under the breach of trust exception to the American Rule are satisfied.

The judgment and order awarding attorney fees were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Expert Testimony Relating to Victim’s Veracity Erroneously Admitted

The Colorado Court of Appeals issued its opinion in People v. Relaford on Thursday, June 30, 2016.

Sexual Assault—Child—Testimony—Truthfulness—Bad Acts or Character Evidence—Colorado Sex Offender Lifetime Supervision Act.

A jury convicted Relaford of 27 offenses related to sexual assaults against two child victims, and the trial court sentenced him to an aggregate indeterminate term of 204 years to life under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), CRS §§ 18-1.3-1001 to -1012.

Relaford appealed the judgment and sentence. He argued that the therapist’s testimony regarding the circumstances in which a child might fabricate claims of sexual assault and her statement that she had never encountered sexual assault fabrications in any other circumstances constituted impermissible opinion testimony that the victims in this case were not lying.  The Court of Appeals agreed, and this evidence should not have been presented to the jury. However, because defense counsel failed to object to the testimony, the error was not obvious, and there was substantial evidence to prove Relaford’s guilt, it was not plain error to admit the therapist’s statements.

Relaford also argued that the trial court reversibly erred in admitting numerous sex toys and pornography found at his home. Although Relaford conceded that the admission of evidence regarding sex toys that the children identified was proper, he argued that the trial court erred in admitting evidence of the other sex toys and the pornography that the children didn’t identify because it was irrelevant and constituted impermissible bad acts or character evidence. Some of this evidence probably should not have been admitted, but any error in this respect was harmless, given the substantial evidence to prove Relaford’s guilt and the prosecutions argument to the jury not to consider this evidence as other bad acts.

Additionally, Relaford contended that SOLSA is unconstitutional. Relaford did not raise the constitutional challenges at trial, and the Court thus declined to review them. However, the Court stated that even if it were to exercise its discretion to review Relaford’s constitutional claims it would conclude that he is not entitled to relief; several divisions of the Court previously considered constitutional challenges to SOLSA and concluded it is constitutional.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Within Statutory Authority to Sua Sponte Set Sentencing Hearing

The Colorado Court of Appeals issued its opinion in People v. Reyes on Thursday, June 30, 2016.

Revocation of Probation—Resentencing—Hearing—Separation of Powers—Sua Sponte—Equal Protection—Discretion.

Reyes was serving a sentence. A revocation of probation complaint was filed, Reyes entered into a plea agreement, and the district court resentenced him to four years in community corrections. Reyes was subsequently terminated from the community corrections program for violating its policies. The court held a resentencing hearing sua sponte and resentenced Reyes to five years in the custody of the Department of Corrections.

On appeal, Reyes contended that the court lacked the statutory authority to set a resentencing hearing without a request from one of the parties. The district court can increase an offender’s sentence as long as it holds a resentencing hearing, and there is no statutory requirement that one of the parties must request that hearing.

Reyes also contended that the sua sponte hearing violated separation of powers because the prosecutor did not request the hearing. Discretion to request a resentencing hearing does not lie solely with the prosecutor, and the district court did not violate separation of powers principles.

Additionally, Reyes argued that the court violated his equal protection right by singling him out from other defendants and setting a resentencing hearing just because it disagreed with the prior judge’s four-year sentence. The Court of Appeals found that the court’s decision to set a resentencing hearing was rationally related to a legitimate governmental objective and did not violate Reyes’s right to equal protection.

Finally, Reyes asserted that even if the court did not violate his equal protection right, it abused its discretion by setting the resentencing hearing because its decision was manifestly arbitrary and abrogated the previous judge’s sentence, which was the law of the case. Here, the court’s decision to set a hearing was rationally based on Reyes’ particular circumstances, and the court did not abuse its discretion.

The five-year sentence was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/5/2016

On Tuesday, July 5, 2016, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Ellis v. Lemons

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.