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LawBiz® TIPS – Week of November 20, 2012

LawBiz(r) newsletter

Winter is here. We seem to have skipped Fall, having an extended hot Summer. And it's good to be home, at least for a few weeks, before I hit the airport again. I've been getting quite a few calls from lawyers around the country who want advice about selling their practice. The timing is perfect because my new book, Life After Law: What Will You Do With the Next 6000 Days will be released soon. And, at the request of some of the lawyers wanting to prepare their practice for sale in the next few years, I'll be creating a new coaching program. Stay tuned for the announcement.

Best wishes for a very happy holiday season, and particularly Thanksgiving this week. Stay stress free. That's the best way to enjoy this time of year. My kids and grandkids will come over; I'll cook a turkey and really get to enjoy my family. Enjoy your family ... and eat well.

Ed signature

Are You Preserving Your Social Media?

It might seem that nothing would be more temporary than a quick email, text or Twitter message. Yet these messages are increasingly subject to a duty of preservation, whether that duty is for a lawyer specifically, or a lawyer on behalf of a client. Consider these issues.

Rule 1.6(c)
This past summer the ABA's House of Delegates added to Rule 1.6, Confidentiality, a new subparagraph (c) requiring a lawyer to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." In this sense, "information" refers to electronic communication. Although the comments to this rule specifically says that complying with state and federal privacy laws for this communication is beyond the scope of the rule, that doesn't absolve lawyers from the responsibility to keep confidential electronic messages confidential.

Producing Electronic Messages in Discovery
Since 2006 the Federal Rules of Civil Procedure require producing not just paper but all electronic documents and data for trial, or face penalties from the court. That includes emails and other electronic messages. In the precedent-setting case on this issue, Zebulake v. UBS Warburg in 2004, a federal judge in New York found that the employees of the defendant had deleted numerous e-mails relevant to the case after the defendant's legal counsel had issued a litigation hold, giving instructions to preserve all such electronic data. The court penalized Warburg and its counsel. Anyone who can be sued, including a law firm, has this same obligation to produce electronic messages in discovery.

The Internet is Forever
Most significantly, this duty to preserve does not just mean big corporate lawsuits. One family law practitioner with whom I work has suggested that if a person involved in a divorce takes down or changes a Facebook page or other social media posting that might provide juicy insights to opposing divorce counsel, it could constitute spoliation of evidence - and thus be a crime. This lawyer suggest printing and saving screen shots of such postings before deleting them, in case they need to be produced in court. Such concerns reinforce what many of us have already learned the hard way: whether we like it or not, the Internet is forever and, for a lawyer, it seems that so too is the lawyer's duty to preserve what is lurking in cyberspace.

Disaster Preparedness & Recovery Planning
for Law Firms

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In this issue:

Are You Preserving Your Social Media?

Disaster Preparedness & Recovery Planning for Law Firms - Special Price: $45

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What Clients Are Saying:

"It is a joy and pleasure working with Ed and I look forward to each coaching sessions. My only regret is that I did not start sooner!"

Atlanta, GA

"It has been a pleasure and a real assistance speaking to Ed on a weekly basis about issues as they came up, and about developing a roadmap for future actions. It was great to know that no matter what the issue, Ed has been there to field questions and provide amazing ideas."

Central California

Ed Poll, LawBiz® Management   |   |   |
©2011 LawBiz® Management. All rights reserved.

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