Tag Archive: Rules

Which rules should we follow? When is it appropriate to change a rule?

In this month’s issue of the American Bar Journal, an article was written about the CEO of the U.S. Anti-Doping Agency, Travis Tygart, and his efforts to prove that Lance Armstrong “cheated” in his bike racing. In the article, reference was made to his being a Christian and Lance Armstrong to being an atheist.

Such reference was gratuitous and does not make one a good person and the other a bad person. Religion does not make the accused guilty or the accuser innocent.  Religion detracts from the message of the article.

Also, two issues of significant importance were not addressed. One was why a U.S. agency was so “hot to trot” over a French event, the Tour de France? It devolved into what was seemingly a personal vendetta between two opinionated and arrogant personalities.

What was not mentioned is more important to the issue.  Technology has improved the performance on the bike by make the bike lighter and more aerodynamic; nutrition has improved the performance of the athletes by making them healthier; and psychology has improved the focus of athletes. Why should not science also be able to improve the performance of the athlete by using his own blood? We allow training at high elevation. How different is this? “Doping” has been an element of racing in the Tour for decades. Just check out wikipedia  for details.

In the free speech movement in the 1960s, in prison reform and in civil rights, we have made many changes over the years. If one were arrested before such changes, were they considered unethical? They were chastised and even arrested, and some killed.

Perhaps the more important issue in this case should be whether the rule should be changed, whether people ought to use the latest and best technology for both their equipment and their bodies? In this discussion, that the rule may wrong does not get reviewed.

Should lawyers care about this issue? Isn’t it “old hat” at this point? We are being urged to be creative, to use new technologies and new or at least not previously test modalities of management and client services. At what point will the Bar say lawyers overstepped the boundaries of propriety? While being created and assertive (perhaps “aggressive” or “uncivil”), some might say we/you have crossed the line of propriety.


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Wireless network rules

<auer Brown writes about a new California Bar opinion that addresses wireless network use.

Quoting from their note, they say:

"Attorneys owe their clients a duty of confidentiality and competence. But when an attorney uses wireless Internet to communicate or access files, such as in an airport or other public location, is that communication over an unencrypted wireless network confidential? And is an attorney competent if he or she broadcasts client confidences, including employer confidences for in-house counsel, over an unencrypted network?

On January 20, 2011, the State Bar of California issued formal opinion no. 2010-179, addressing these questions. The opinion provides six factors that attorneys should consider when determining whether a particular technology is appropriate for their communication.

  • The level of security afforded by that technology, including whether reasonable precautions may be taken to increase that level of security by, for example, encrypting email.
  • The legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information—that is, whether the form of communication is protected by law, like telephones and information stored on computers.
  • The degree of sensitivity of the information—the more sensitive the information, the more security is appropriate.
  • The possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product—again, the more severe the consequences, the more security is appropriate.
  • The urgency of the situation—if a message absolutely must be delivered immediately, security is a secondary consideration.
  • The client’s instructions and circumstances, such as access by others to the client’s devices and communications—if, for example, a client has specified that email is not confidential enough, or that a particular kind of communication must be encrypted, the attorney must comply with those instructions."  See their note for more.

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