The Internet & The Market: Reading Assignments

Part V: The Online Lawyer

1.  Topics in e-Lawyering

Reading

  1. e-Document Retention
    1. Jim Carroll, E-mail promises to challenge corporate sector (Mar. 12, 2002)
    2. Andersen, Policy statement: Client Engagement Information - Organization, Retention and Destruction, Statement No. 760
    3. Andersen, Policy statement: Notification of Threatened or Actual Litigation, Governmental or Professional Investigations, Receipt of a Subpoena, or Other Requests for Documents or Testimony (Formal or Informal), Statement No. 780
    4. Andersen, Copy of two emails
  2. e-Disclaimers
    1. Red Earth Software, White Paper, Email disclaimers.
    2. Simon Halberstam, The Legal Position of E-mail Disclaimers (March, 2000)
  3. Web Pages
    1. Office of Disciplinary Counsel v. Palmer, 761 N.E.2d 716 (Ohio Bd. Unauth. Prac., No. UPL 01-1, Dec. 12, 2001) (Westlaw)
    2. Florida Bar Assoc. on the regulation of web pages.  Compare the old rule (Jan. 1996) with the current rule (Dec. 1999)
  4. Other random e-Policies
    1. Alex Berenson, New York Times, Enron Fired workers for Complaining Online (Jan. 21, 2002)
    2. Robert J. Ambrogi, Lawyer-Client E-mail OK, But Watch The Spam (1997) (google cache)
    3. Charles R. Merrill, Revisiting The Question Of Attorney/Client Internet E-Mail Encryption,  6 NO. 12 Internet Newsl. 5 (March, 2002) (Westlaw)
  5.  Joel Michael Schwartz, Practicing Law Over the Internet: Sometimes Practice Doesn't Make Perfect, 14 Harv. J. L & Tech. (2001)

Thinking

  1. Your law firm web page is viewable in every state.  Does this create unauthorized practice of law problems, or amount to illegal advertising in states where you are not admitted?
  2. Your partner likes to hang out in chat rooms and give legal advice under an AOL 'Screen Name'.  Should you be concerned?  Does it matter what the screen name is?
  3. The Red Earth Software White Paper was prepared for an English audience and the Halberstam essay is by an English lawyer.  Is what they say good advice in the US? Why?
  4. What would you need to know before preparing an e-document retention/destruction policy for a client?
  5. Which of the following are good or bad advice:
    1. "if drafting or reviewing a retention policy for a client, make certain that the policy doesn't become the most damaging piece of evidence in the case. While it may be advisable for the policy to be worded so as to make compliance compelling, it should not give  the impression that the client has anything to hide."
    2. "a retention policy needs to take into consideration the storage capacity of the particular network in use. The retention policy also should clearly delineate regularly scheduled deletions of e-mails stored on the network, laptops, Palm Pilots and any other company owned equipment."
    3. "Delete all e-mail 30 days after receipt to save search costs in event of ever being subjected to discovery."
    4. "Policies for e-mail should be the same as policies for paper."
    5. "Forbid all e-mail forwarding outside the firm."
    6. "Assume more than half of the employees will not follow the policy."
  6. Does the following quote from Lewy v. Remington Arms Co.; 836 F.2d 1104, 1112 (8th Cir. 1987) (citations omitted) alter any of your answers?

  7.  
      First, the court should determine whether [the] record retention policy is reasonable considering the facts and circumstances surrounding the relevant documents. For example, the court should determine whether a three year retention policy is reasonable given the particular document. A three year retention policy may be sufficient for documents such as appointment books or telephone messages, but inadequate for documents such as customer complaints. Second, in making this determination the court may also consider whether lawsuits concerning the complaint or related complaints have been filed, the frequency of such complaints, and the magnitude of the complaints.

      Finally, the court should determine whether the document retention policy was instituted in bad faith.  In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction .... Similarly, even if the court finds the policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy. For example, if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved. Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy.

Doing

  • Is the disclaimer on this page the best on the web or can you find a better one?
  • Optional

    1. State policies on electronic access to court records (.pdf) (July 5, 2001)
    2. Patriot Saints, Judicial Watchdog Website Ordered Down by Judge [why Palmer's web site, amoralethics.com, is no longer on line]
    3. Simon Romero And Geraldine Fabrikant, New York Times, Secret List of Potential Suitors for Global Crossing Exposed, (April 10, 2002)
    4. Raymond R. Panko & Hazel Glenn Beh, Monitoring for Pornography and Sexual Harassment, 45 Comm. ACM 84 (Jan. 2002) (.pdf)
    5. Vivien K.G. Lim, Thompson S.H. Teo & Geok Leng Loo, How Do I Loaf Here? Let Me Count the Ways, 45 Comm. ACM 66 (Jan, 20002) (html) (.pdf)

    2.  Disputing Online

    Reading

    1. American Bar Association, Task Force on E-Commerce and ADR, DRAFT Guidelines for Recommended Best Practices for Online Dispute Resolution Service Providers (Apr. 5, 2002)  (.pdf) (word)
    2. ICANN, Uniform Dispute Resolution Policy (UDRP) substantive Policy & procedrual Rules
    3. Michigan Act No. 262 (Jan. 9, 2002) (also known as H.B. 4140 (2001)). (.pdf) (txt)
    4. Michigan Supreme Court, Proposed Addition of Subchapter 2.700 and Amendment of Various Other Provisions of the Michigan Court Rules (March. 28, 2002) (you only need to read pp. 1-9 of this .pdf link)
    5. UK Lord Chancellor, Money Claim Online
      1. Who Can Use This Service
      2. Who cannot use this service
      3. Getting Started

    Thinking

  • To what extent does the ICANN UDPR comply with the ABA's Draft Best Practices?
  • To what extent does the Michigan proposal comply with the ABA's Draft Best Practices?
  • Consider the purpose of proposed Amended Rule 8.115 of the Michigan Rules of Court:

  • Courtroom Decorum
    (A) Display of Flags. The flags of the United States and of the State of Michigan must be displayed in a conspicuous place adjacent to the bench at all times and be visible at some point during the transmission of an Internet broadcast of the Cyber Court when court is in session.
  • Comments on the ABA Draft are due May 31, 2002.  What suggestions for improvement would you make?
  • Optional

    1. American Bar Association, Task Force on E-Commerce and ADR, DRAFT Report on Addressing dipsutes in Electronic Commerce (Apr. 5, 2000) (.pdf) (word)
    2. Froomkin,  ICANN's "Uniform Dispute Resolution Policy"– Causes and (Partial) Cures  (forthcoming, Brooklyn Law Review 2002)
    3. Michigan CyberCourt.net
    Last modified: Apr. 11, 2002

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