NCIS: What in the world were they thinking, and why does that matter for lawyers, legal professionals, and anyone else who has to keep information confidential?

Lawyers, paralegals, legal support staff, and other businesses that must maintain the confidentiality of client and other information must be careful not to allow devices such as Amazon Alexa, Google Assistant, and Apple's Siri to listen to and record conversations with this type of sensitive information. This podcast focuses on a recent episode of NCIS in which Forensic Scientist Kasie Hines is speaking to and getting information from an Alexa in her criminal investigatory lab.

What Kasie did cannot possibly be appropriate, and probably violates lots of rules and regulations. If a lawyer did that, however, he or she could be subject to discipline for violating the Rules of Professional Conduct. In other words, What were the NCIS writers thinking when they wrote those scenes? Or were they merely doing a product placement?

Listen to Attorney and Technologist Daniel J. Siegel as he discusses the ethical implications of NCIS in the latest episode of The Legal Tech Podcast, sponsored by the Law Offices of Daniel J. Siegel, LLC and Integrated Technology Services, LLC.

Transcript

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Hello. Welcome to the latest episode of the Legal Tech Podcast. I'm Dan Siegel, and I'll be taking you on a little bit of a discussion about NCIS. What in the world were they thinking, and why does that matter for lawyers, legal professionals, and anyone else who has to keep information confidential? The podcast is sponsored by the law offices of Daniel J. Siegel, LLC, and Integrated Technology Services, LLC. We provide a variety of services for lawyers and small businesses, including ethical and technoethical guidance. But now let me turn to the topic of today's program NCIS and their December 5, 2022 episode called Too Hot for Teacher. Now, you may be wondering, what in the world does a crime drama have to do with lawyers and confidential information? And, yes, most of us watch the program for the simple reason that we want to be entertained. But sometimes something comes up that you have to just shake your head and say, what in the world were they thinking? What were the writers thinking when they wrote this information? So let me talk to you about this. In NCIS. They solve crimes. And one of the people who solves the crimes is Kasie Hines, who is a forensic scientist. And her job is to look at information. It could be medical, it could be computers. It could be any type of information and then help figure out who committed the crime. Usually a murder. Kasie does her job, does it well, is very smart, et cetera. But this week, she did something, and she had something in her office that was bizarre. So let me talk to you about it. She was there discussing the murder that they were investigating with her colleagues when suddenly she turned and asked Alexa a question. Now, Alexa is not another cast member. Alexa is the code word for the Amazon device that many of us have in our homes. And whenever you have an Alexa, you could also have a Google Assistant. You could have Apple and Siri, but with all of them, once you say a code word, the device begins to listen, record, and respond to you. Certainly, criminal investigators do not want devices in their office that are doing just that. And, yes, Alexa can and does record conversations. The official explanation is that Alexa is always listening, but it may not be recording until it hears the code word, just like your Google Assistant needs to hear the code phrase of, okay, Google or Siri needs to hear her code words, and Alexa has her code word. Well, once Kasie started talking and talked to Alexa, it was recording. And it shouldn't be. An Alexa or any similar device. Certainly does not belong in any office or facility where they're doing anything confidential, which criminal investigations would certainly fit that bill. And NCIS is, by definition, the Naval Criminal Investigation Service. So their investigations are private. So what in the world does this have to do with lawyers and confidential information. So let me take you back and explain that to you. What does it have to do lawyers one of the first things we learn as law students in law school, in which we are supposed to be advising our staff and anyone else who works with us, we have an obligation under the Rules of Professional Conduct to keep information confidential. That means that information about our clients, about our matters, are not for public consumption. We're not supposed to talk about them, just the way doctors aren't supposed to talk about patients. And they have the signs in the elevators that say, please don't talk about your patience while you're in the elevator. Well, lawyers have an obligation, and it falls under Rule of Professional Conduct. One six, which varies slightly from state to state, but applies in every state, and one six says that you have to keep information confidential. In Pennsylvania, where I practice, you have to keep information relating to the client confidential. And therein lies the Alexa issue. And the Alexa issue really came to four in 2020 when the pandemic hit, because when the Pandemic hit, most of us were forced to work, at least in the legal industry and in a lot of other businesses where you're dealing with confidential or sensitive information. We were obligated to work remotely, which means we could be working as I was, for example, in my kitchen. Other people may be working in a variety of other rooms in the house, but it's not unusual for people to have the Alexa type devices in their kitchens or other areas because they may ask it to set a timer, to order something from Amazon, to do all of those types of things because it's convenient and we all love convenience. Well, when you're dealing with client information, I could be talking about a client and their estate planning issues, or discussing the injury someone suffered in a car accident or any variety of different things, or talking about one of my clients who has ethical issues or disciplinary issues. Well, the last thing I want is a device that is not mine in terms of where the recording is made. It goes to someplace that Amazon controls. The last thing I want is that listening, thinking it may have heard the code word and then beginning to record. We can't do that. As a result of those types of considerations, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, which I chair, we issued guidance to lawyers in 2020. It was called opinion. Formal opinion. 2000 and 2300 ethical obligations for lawyers working remotely. And in that opinion, we specifically discussed issues like Alexa. We said that when working at home or from other remote locations, all communications with clients must be and remain confidential. This requirement applies to all forms of communication, including phone calls, emails, chats, online conferences, and text messages. We further explained that when speaking on a phone or having an online or other conference. Attorneys have to dedicate a private area where they can communicate privately with clients and take reasonable precautions to assure that others are not present and cannot listen to the conversation. Then we added that smart devices such as Amazon's Alexa and Google's Voice Assistants may listen to conversations and record them. Companies such as Google and Amazon maintain these recordings on servers and hire people to review the recordings. Although the identity of the speakers is or may not be revealed or disclosed to the reviewers, they might learn enough detail to be able to connect a voice to a specific person. As a result, we concluded that if you are working remotely, you must disable those features or turn off those devices so that they are not eavesdropping whenever you are dealing with client or sensitive information. Which brings us back to the original point of today's podcast. NCIS is a really entertaining show. Lots of people have watched it. It's in its 20th year and has spawned multiple other shows, including NCIS La and NCIS Hawaii. But the point is that the show tries, or you think it tries to demonstrate some level of reality. Well, it clearly failed here. Which means the writers failed here because they either never considered it or if they did consider it, they disregarded the fact that the last thing that Kasie wanted was for her conversations about her investigation and what her testing and other actions revealed would be then somehow transmitted to Amazon where others could listen to the conversations, etc, etc. For lawyers, that brings us right back to the Pennsylvania Bars guidance, which was, as I said, Formal Opinion 2020-300, which is available from me. All you have to do is send me an email at dan@danieljsiegel.com and we will be happy to send you a copy of the opinion. But more importantly is that lawyers, legal professionals, and any other business people who are dealing with confidential and sensitive information need to think about that. That means your iPhone, your Android phone, your Alexa, your Google assistants, and anything else that you're using that may be recording needs to be disabled before you talk about client information. Yes, we all know you wouldn't want to talk or shouldn't talk about your clients in front of your children and everyone else, and that's why we have closed doors for conferences, etc. Etc. But the reality is that you could have a false sense of security if you just watched this week's version of NCIS, which really did a disservice to its staff, the criminal investigative staff, I mean, and sent a bad message to anyone who was watching. But lawyers, remember, your obligations to keep information confidential apply, whether you're at home, whether you're in your office, whether you're working remotely or anywhere else. Those duties do not change. Thank you for listening. I'm dan siegal. This has been the Legal Tech podcast sponsored by the Law offices of Daniel J. Siegel, LLC, where you can find us at danieljsiegel.com, D-A-N-I-E-L-J-S-I-E-G-E-L dot com and Integrated Technology Services, LLC, a consulting firm which does a variety of things, including providing technoethical counsel and also providing training and other services. And you can reach integrated technology services at our website, techlawyergy.com. T-E-C-H-L-A-W-Y-E-R-G-Y dot com. I'm Dan Siegel. Thanks for listening listening to today's episode of the Legal Tech podcast.