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Eye on Ethics
New Ethical Challenges — Electronically Stored Information
By Frederic G. Reamer, PhD
May 2017

Last year I met with a group of lawyers, all of whom are seasoned litigators, at a professional conference that focused on ethical and malpractice issues. These lawyers devote their legal practice to cases involving practitioner liability (lawsuits) and disciplinary action (cases in which practitioners must defend themselves against licensing board complaints). The attorneys' clients typically include health and behavioral health professionals (e.g., physicians, nurses, dentists, social workers, psychologists, and so on).

One of the prominent themes of our discussion was how today's practitioners need to think very differently about the kinds of ethics-related evidence that could be used against them or to exonerate them. We talked about how, back in the day, evidence introduced in litigation and licensing board cases was limited to witnesses' oral testimony and written records related to the delivery of services to clients (e.g., clinical notes, formal assessments, correspondence, and billing records). In contrast, today many comparable cases include electronically stored information (ESI).

During the past couple of years, I have consulted on a number of court and licensing board cases in which formal evidence included copies of social workers' Facebook postings, text messages, e-mail messages, and electronic health records, among other forms of electronic communications. All of these cases focused on ethical issues, including the ways in which social workers managed boundaries, conflicts of interest, confidential information, documentation, and termination of services. In several cases, the social workers were shocked to discover that their digital records could be subpoenaed and introduced as evidence against them. All of these social workers concluded their formal social work education before this technology existed. During the discussions we had before their depositions, trials, and licensing board hearings, these practitioners admitted that they were naïve about the ways in which their digital footprints (a new term to them) could surface during these court and licensing board proceedings.

During my meeting with the attorneys at the conference I attended, we discussed a range of cases, including the following involving social workers:

• A social worker's former client filed a licensing board complaint alleging that the social worker violated ethical standards related to boundaries and dual relationships. The complaint alleged that the social worker terminated the professional-client relationship in order to engage in an intimate relationship with the client. After several months, the intimate relationship ended. The lawyer for the social work licensing board introduced as formal exhibits copies of selected e-mail and text messages exchanged between the social worker and former client. These electronic communications were shared with the licensing board's investigator during the initial investigation following the complaint.

• A social worker who had been employed by a mental health center was fired from his job. His supervisor claimed that the social worker's performance was below the agency's standards and that his behavior was erratic. The social worker sued the agency for wrongful termination. He claimed that the supervisor discriminated against him and treated him unfairly. During the court trial, the attorney representing the agency produced e-mail messages and digital logs indicating that the social worker spent a great deal of time at work—often hours each day—communicating with friends and acquaintances online, posting messages on Facebook, and shopping online. The attorney also produced evidence that the social worker had used the agency's computer on four occasions to visit pornography websites. The social worker was surprised to learn that his employer had access to all of these electronic activities.

• A social worker in independent practice was sued by a former client who claimed that the social worker violated his confidentiality rights when the social worker shared information, which the client had disclosed during a one-on-one counseling session, with an attorney representing the client's estranged wife. The wife had participated in several couple's counseling sessions with the social worker. Copies of e-mail messages exchanged between the social worker and the wife's attorney—introduced as formal exhibits in the case—demonstrated that the social worker shared her clinical observations about her client's mental health challenges and difficulty he was having caring for the couple's child. The social worker did not have the husband's consent to share this information.

• A social worker employed at a mental health center became sexually involved with a client. The social worker visited the client's home on numerous occasions, even though home-based services were not part of the treatment plan. The social worker was providing services to the client following a serious automobile accident that resulted in the client's brain injury, depression, and substance abuse. The social worker was criminally charged based on a state law that prohibits sexual abuse of a client by a mental health professional. During the criminal court trial, the prosecuting attorney introduced forensic evidence that the social worker had used the client's home computer to visit religious websites in the client's presence. The former client testified that the social worker shared the website with the client, told her that "the Lord" wants her to heal from her head injury and know intimacy again, and that the social worker was sent into her life to help her address these intimacy issues. The social worker was convicted and sentenced to prison.

The Nature of ESI
ESI is generally defined as all information stored in computers and other electronic or digital devices. This includes e-mail, voicemail, instant and text messages, databases, metadata, and any other digital images and files. During legal proceedings, attorneys typically seek to discover this information, usually through subpoenas and court orders. In fact, there is now a subspecialty known in legal circles as e-discovery, which refers to any process in which electronic data are sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case.

At the conference I attended I listened for several hours to e-discovery experts teach attorneys how to access this information and about pertinent legal guidelines concerning what can and cannot be discovered. For example, the Federal Rules of Civil Procedure, which, since 1938, have governed court procedure for civil cases in federal courts, have been amended to include guidelines pertaining to discovery of ESI. The rules now state that a party in a civil matter may formally request that another party "produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control … any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form" (Rule 34).

The emergence of ESI is yet another example of how contemporary social workers need to think very differently about how they function in the digital age, especially with respect to their compliance with ethical standards. To protect clients (and themselves), social workers should apply time-honored ethical standards when managing ESI, especially related to client privacy, confidentiality, informed consent, documentation, boundaries, and management of records. Social workers should be especially mindful of emerging ethical standards pertaining to protection and encryption of clients' sensitive information, disclosures of ESI in response to subpoenas and court orders, retention and destruction of electronic records, and clients' right to access their electronic records through online portals. These phenomena require social workers to think outside the box and to appreciate the relatively new fact that each time they record or share information electronically, they automatically—and possibly irrevocably—create permanent records and digital trails that require unprecedented ethical judgment.

— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work at Rhode Island College. He's the author of many books and articles, and his research has addressed mental health, health care, criminal justice, and professional ethics.