Intellectual Property Law

LEGAL AND ETHICAL IMPLICATIONS OF COMPUTER MISUSE BY ATTORNEYS

By IBLS Editor

As a greater percentage of lawyers become computer savvy, there is a marked increase in ethical violations committed via computers. These violations can lead to both civil and criminal liability, as well as to disciplinary sanctions.

A number of recent cases have highlighted ethics violations that were committed by attorneys by their misusing the Internet. Three major areas in which the misuse of computers has led to ethical sanctions involve: (a) the unlawful violation of others? privacy; (b) unethical attempts to gain a competitive advantage over other attorneys; and (c) attempts to avoid fines or sanctions. Penalties have ranged from 90-day suspensions to wholesale disbarment and criminal sanctions.

A number of cases have involved lawyers who unlawfully accessed computers to obtain personal information.

In one case, a lawyer in West Virginia suspected that his attorney wife was having an affair with one of the partners in her firm. He knew that his wife?s password to her office e-mail was her last name, so he decided to spy on her emails. In addition, he accessed the e-mail accounts of eight of his wife's unsuspecting co-workers on almost a daily basis for over a two-year period. He did not cease or disclose his actions until he learned that the firm's computer experts were on the verge of discovering the perpetrator of the unauthorized intrusions. Not only was the firm forced to expend valuable time and resources to investigate the matter, but it was also required to disclose the unfortunate events to its clients, opening itself up to potential lawsuits and loss of income. The firm reported the lawyer to the state ethics board, which suspended the lawyer from the practice of law for two years.

In another case, an attorney inappropriately accessed confidential e-mails in an effort to obtain an advantage in a campaign to unionize employees in her workplace. The attorney used both her office and home computers in an attempt to access the e-mail accounts of more than 40 employees and at least one member of the employer?s Board of Directors. The purpose of this access was to monitor anti-union sentiment during a unionizing effort that she initiated and supported. Some of the messages she deleted had not yet been read by the recipients. The messages the lawyer chose to delete contained anti-union information or sentiment. None of this activity was authorized. The lawyer was suspended for two years.

Lawyers who use their computer knowledge to obtain a competitive advantage against other attorneys can also face sanctions based on their activities.

In one such case, a New York lawyer called his competitor's voice mail system, logged in, and reviewed and deleted voice mails. He was charged in a Federal indictment with violating Federal felonies related to the unlawful access to stored communications. New York disciplinary authorities successfully sought the lawyer?s disbarment.

In another case, a Maryland attorney had a disagreement with his managing partner in a small firm over compensation. He decided to leave the firm and establish his own practice. However, before he left, he took a number of client files, claiming that the clients would want him to continue representing them. The attorney augmented his efforts by deleting the clients? files from his old firm?s computer system. Although somewhat sympathetic, the Maryland Court of Appeals imposed a 90-day suspension.

Finally, lawyers have committed computer-based crimes in an effort to avoid paying fines and penalties.

In one such case, an FBI investigation in Washington, D.C. revealed that on twenty occasions a Washington D.C. attorney, employed by the District of Columbia Bureau of Traffic Adjudication ("BTA") as a hearing examiner, dismissed citations issued to vehicles registered to him, his wife, and two of his daughters. The lawyer effected the dismissals by logging into the BTA computer system with his identification code and secret password. With respect to a majority of those tickets, he used a disposition code for the dismissed tickets that reflected that a hearing examiner other than him adjudicated the tickets. The lawyer pled guilty to a misdemeanor of conflict of interest. The D.C. Court of Appeals found that although the attorney had ?only? pled guilty to a misdemeanor, his misdeeds constituted an offense involving moral turpitude and the attorney was disbarred.

A major culprit in the proliferation of computer-based crimes is the tendency by many individuals to allow easy access to their computer and e-mail passwords. In many cases, passwords are shared with a number of people or may be too obvious. In particular, firms should institute a policy against using easy-to-detect passwords such as last names, the firm?s name, or the individual?s birthday as a password.

Firms have a fiduciary responsibility to preserve the confidentiality of records on their computers, such as clients? files or government records. Based on this responsibility, a system should be created that monitors access to these records on a daily basis and that provides a continual detection mechanism for unauthorized access.

Disciplinary boards view attorney misconduct with computers harshly. Attorneys who commit these ethical violations are, generally, subject to discipline, but the nature of such discipline varies by jurisdiction. If an actual crime is committed, attorneys may be disbarred based on the commission of a crime of moral turpitude. If no actual crime was committed, the length of the suspension will generally depend on the attorney?s motives and the harm suffered by clients as a result of such misconduct.

Conclusion:
Lawyers have used computer technology to commit a variety of ethics violations and computer crimes. Lawyers who engage in questionable computer-based activities should be on guard that state disciplinary ethics boards tend to treat computer-based ethical violations with the same severity as other similar violations and that the penalties for committing Internet-based ethics breaches can lead to suspension or disbarment, particularly in cases where the lawyer has committed a crime.

Full post as published by IBLS Internet Law Blog on October 08, 2008 (boomark / email).