Oregon’s Social Media Law

I first wrote about Oregon’s social media law when HB 2654 was passed by the Senate in May 2013.

A year later, Dan Webb Howard has penned an interesting article for the May 2014 issue of the Oregon State Bar Bulletin, A Cure Worse than the Disease? Oregon’s New Social Media Law.”

The idea behind HB 2654 was to protect the social media privacy rights of employees and job applicants.  But as Howard describes, the law may have unintended consequences:

The “Employer Account” Exception

Social media accounts that are “provided by” or “used on behalf of the employer” are an exception to the non-disclosure provisions of HB 2654.  Howard points out that the exception is “so broadly worded that it could have the perverse effect of forfeiting an employee’s control over personal information contained in a social media account that he or she created.”

Employees Cannot be Compelled to Permit “Shoulder Surfing” or add the Employer as a Social Media Contact

Next Howard discusses the meaning of the term “compel.”  HB 2654 fails to provide a definition, which opens the door for speculation.  Why does this matter?  Because two of the key provisions of the law prohibit compelling employees or applicants to (a) add the employer as a social media contact or (b) access password protected social media content in the presence of the employer.

When are “Supervisors” also “Employers” under HB 2654?

The last murky detail concerns vicarious liability for actions of supervisors.  Howard suggests preparing for the worst-case scenario: “that even the lowest-level supervisor might ultimately be deemed an ’employer’ for purposes of HB 2654.”

Read the Hypotheticals and Suggested Solutions

Throughout the article, Howard provides a series of hypotheticals to illustrate his points.  He also offers spot-on advice for employees and employers.  Read the full article here.



Your Ethical Obligation to Find a Missing Client

What must you do if your client suddenly drops off the face of the earth?

In this month’s Oregon State Bar Bulletin, Deputy General Counsel Amber Hollister gives the following recommendations:

Search for the missing client using one of (or all) of the following approaches:

  • Mailing, e-mailing and telephoning a client at all known addresses and telephone numbers.
  • Utilizing web search services such as Google and social networking sites to locate additional contact information.
  • Researching public records such as property, tax, voter, marriage and court records and reviewing the client file for alternate contact information.
  • Visiting (or sending a staff member to visit) the client’s home or place of employment.
  • Contacting the client’s family members, co-workers, employer or medical providers.
  • Hiring a private investigator to search for the client, particularly where stakes are high or large sums of money are involved.

I would add:

  1. Look for red flags. Clients who move frequently, change jobs often, or have no friends or family in the community are more likely to fall out of touch.
  2. Always collect the names, addresses, telephone numbers, and e-mail addresses of at least two emergency contacts from every client. The Professional Liability Fund New Client Information Sheet provides a convenient way to do this. For a sample form, visit the PLF Web site > Practice Aids and Forms > File Management > New Client Information Sheet.  Get additional names and contact information if the situation warrants.
  3. Stress to clients the importance of keeping in touch with your office at all times. Some law offices add language to their fee agreement or engagement letters giving the responsible attorney the right to withdraw if the client fails to cooperate in the client’s case. This can include requiring the client to keep a current address and telephone number on file with the lawyer’s office at all times.
  4. If a client becomes unresponsive or difficult to reach, the situation is not likely to improve. Carefully document your efforts to communicate with the client and give strong consideration to withdrawing from representation when the problem first develops.
  5. Take extra precautions with impaired clients. One solution may be to learn the names and numbers of the other professionals with whom your client has regular contact.  (Case workers, social workers, psychologists, and physicians are examples.)  Get your client’s authorization to establish and maintain contact with these professionals.
  6. Recognize that certain practice areas such as criminal law involve clients who are more likely to move without notifying you.
  7. If you decide to withdraw from representation, read and comply with the  applicable disciplinary and court rules.
  8. If it’s too late and your client has already disappeared, conduct as thorough a search as possible. Take all the steps described above by Ms. Hollister, then working from the information on your intake sheet, call the client’s workplace and emergency contacts.  If you decide to visit your client’s last known address, consider talking to the neighbors. Run a DMV search or skip trace.  Follow this rule of thumb:  apply the same level of diligence in searching for your client as you would in locating and serving the opposing party in your case.

Accepting Settlement Offers

Can you accept a counteroffer for an amount less than your demand if you cannot reach your client?  Does it matter if the counteroffer is only open for a short time and you believe the amount is reasonable?  The answers are “no” and “no.”  Ms. Hollister explains:

RPC 1.2(a) provides that it must always be the client’s decision whether or not to settle a matter. Because the lawyer is the client’s agent, the lawyer cannot act without authority from the client. OSB Formal Op No 2005-33. Even if an attorney believes that a settlement offer is eminently reasonable, she is not allowed to supplant the decision of the client. Instead, the lawyer must diligently attempt to communicate the settlement offer to the client while it is still open. RPC 1.3; 1.4. If the lawyer is unable to communicate with the client, the lawyer must reply that she is without authority to accept the offer. Alternatively, the lawyer could seek additional time within which to respond to the offer.

(This answer assumes the client has not previously given the lawyer authority to settle her case for a lesser amount or within a specified range.)

Filing a Complaint to Beat the Statute of Limitations

In this instance, you are ethically permitted to file a complaint to preserve the client’s claim assuming you made “reasonably diligent efforts to contact the client and you have sufficient information to support the filing of a complaint. RPC 1.4; RPC 3.1.”  This is also the correct result from a malpractice avoidance standpoint.  You can then seek to withdraw, provided you “…make a reasonably diligent effort to notify the missing client of the pending withdrawal, and take all reasonably practicable steps to protect the client’s interests. RPC 1.16(d).”  If you find yourself in this situation, contact the Professional Liability Fund and ask to speak to one of the on-call claims attorneys.

Informing Opposing Counsel

Should you tell opposing counsel you have lost contact with your client?  There is no easy answer.  You must balance your duty of confidentiality against the competing obligation to avoid materially misleading the other side.  “Similarly, the lawyer would likely have an obligation to reveal the fact a client is missing if the lawyer believes that opposing party is or may be relying on his previous incorrect assertions or assertions that are no longer true.”

If the fact that a client is missing is confidential information that cannot be disclosed, “the lawyer will need to seek to withdraw without disclosing the client’s status as missing, even if that will leave opposing counsel with a misunderstanding of the facts. RPC 1.16(a); see e.g. OSB Ethics Op No 2005-34 (an attorney whose client commits what the attorney knows to be perjury must ask the client to correct the perjury and, if the client refuses, seek leave of the court to withdraw without disclosing the client’s perjury).”

Stay tuned for Part II in next month’s Bar Counsel column.

All Rights Reserved 2012 Beverly Michaelis

15 Steps You Can Take Now to Protect Sensitive Data

The October issue of the Oregon State Bar Bulletin contains a must-read article entitled The Data Dilemma: Law Firms Strive to Strengthen E-Security as Potential Threats Continue to Rise. 

To understand why you should be concerned, read the article.  To take steps now to protect your firm, read John Simek and Sharon Nelson’s sidebar, “E-Security Pros Offer 15 Tips to Help Law Firms Better Protect Sensitive Data” posted as a PDF on the OSB Web site.  Among John and Sharon’s recommendations:

  • Use unique passphrases for each Web site/account/software program   (Passphrases are better than passwords)
  • Properly encrypt laptops, flash drives, and backup media
  • Physically lock up your server
  • Properly vet all cloud service providers
  • Secure Wi-Fi networks
  • Wipe data with Darik’s Boot and Nuke if you donate/dispose of your computer, digital copier, or similar equipment
  • Consider cyber insurance (Your Professional Liability Fund coverage does not protect against data loss).

Read all 15 tips here.

Difficult to Pronounce Name? Add it to Your Email Signature

The current issue of the Oregon State Bar Bulletin includes a nifty tech tip about audioname, a Web site that allows you to record your name, in your own voice, and “use it everywhere.” Single user/individual accounts are free.  Businesses can sign up for audioname at a cost of $1 per user per month.  A complete pricing breakdown is available here.

The Oregon State Bar Bulletin tip suggests using audioname to record your name and add it to your e-mail signature.  This way clients can hear you pronounce your name in your own voice.  Audioname’s service will also accommodate a brief bio.  (Recording length is 30 seconds.)

Audioname has already caught on with Portland-area law firms Stoel Rives, Miller Nash, Gervurtz Menashe, and others who appear on the company’s home page or in testimonials.

Here’s how it works:

  • Sign up for an individual account. It’s free!
  • Verify your account by responding to an e-mail confirmation
  • Create your unique Audioname URL
  • Record your name and brief bio by calling the toll-free phone number or via your computer

Listen to my audioname as an example.

Coping with the Stress of a Legal Malpractice Claim

A significant measure of a person is not whether he or she avoids trouble, but how he or she meets it when they find each other.  Bruce Schafer

I couldn’t agree more.

In this month’s Parting Thoughts Bruce Schafer, our Director of Claims, shares some important advice on how to handle the emotional effects of a legal malpractice claim.  Here is an excerpt:

Stress and professional liability claims go hand-in-hand; stress is either a cause of the claim or a product of the claim. For persons living on the edge or sinking into the abyss of depression, substance abuse, financial ruin or other personal chaos, the claim is usually a product of what is going on outside of the office, and the claim may be the least of the covered party’s problems. On the other hand, many a high-functioning, conscientious lawyer is affected by either his or her error or the accusation of malpractice or wrong-doing. In this scenario, the claim triggers the stress or distress, which can range from mild to severe, depending upon the makeup of the lawyer, the nature and magnitude of the claim and the lawyer’s support system (or lack thereof).

Many lawyers’ emotional responses to claims evolve during the life of the claim. The initial reaction may be anger, denial, shame or fear. As the lawyer “gets used to” the process, those feelings may become less acute and the lawyer is more able to objectively deal with the claim. The experienced claims attorneys at the PLF and defense counsel (where retained) are able to reassure the covered party and convey the sense the claim can be managed. The reasonable goal is to manage and cope with the stress generated by a professional liability claim. It is difficult to completely eliminate it. Motivated, conscientious professionals care; that is to be expected and respected.

From my experience, the first claim is the one most likely to affect the lawyer. The claim symbolizes imperfection, which can then initially be elevated to feelings of general incompetence. Perhaps the lawyer has been judgmental of other lawyers who made mistakes; now she judges herself just as harshly. The “first-timer’s” anxiety is also fueled by fear of failure and of the financial, reputational and existential consequences. Will I get through this? Well, by and large, they do get through it. Subsequent claims, although not welcomed, are at least less fearsome.

A significant measure of a person is not whether he or she avoids trouble, but how he or she meets it when they find each other. I have been impressed with how brave most of our covered parties are when faced with a claim. Notwithstanding the unpleasantness or threat of facing accusations of incompetence or worse, with the range of potential adverse consequences, most of our covered parties continue to function professionally and meaningfully participate in their defense and “make it through.” Bravery involves overcoming fear or surviving a difficult experience. Among the bravest are those lawyers whose cases go to a jury trial. While the plaintiff is presenting its case, the covered party has to sit and listen to opening statements, plaintiff’s story and expert witnesses’ criticisms of the covered party’s conduct. In some cases, the prayer exceeds the coverage. I have developed immense respect for many of our covered parties, not because of their perfection as lawyers (they weren’t perfect), but because of how they coped with the claim.

As I have observed in the crucible of professional liability claims, the above are just a few examples of how lawyers are no different from other people. They fear failure. They desire approval and respect. Some feel unjustly accused, and some are. Many make obvious mistakes that cause little or no harm. Others commit small errors that cause a lot of harm. Some want to apologize or compensate to make it right. Others want to fight. For most, the experience is unpleasant, but they get through it. Most meet the challenge with their integrity, decency and careers intact. Not only do they survive the experience, but they earn our respect by how they cope.

The full article is posted here.