Did you know that thirty-five states have expressly included knowledge of technology in the official comments for their Rules of Professional Conduct? Most states have adopted language similar to comment 8 of the ABA Model Rule 1.1: Competence. Two states – Florida and North Carolina – now require attorneys to take CLE courses on technology during each of their CLE cycles.
More and more, technology is integrating into the practice of law and affecting many different areas and raising different ethical issues. Lawyers do not need to be IT experts, but they do need to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” As you begin to delve further into the matter through ethics opinions and other documents, you will also find that lawyers are held to a “reasonable efforts” standard with regard to technology.
What do “reasonable efforts” look like? State and ABA ethics opinions give us some ideas:
- Recognize the nature of the threat to confidentiality, including how to treat materials based on their sensitivity.
- Understand how confidential information is stored and transmitted.
- Understand and use reasonable security methods, both on and offline
- Conduct due diligence on vendors who have access to client information
- Train attorneys and staff on how to use technology and security methods.
There is still debate amongst the legal community regarding how these new(ish) rules will be implemented, but the issue is escalating based on some prominent issues coming to light. On January 8th, 2019, Paul Manafort’s attorneys filed a response to claims made by Special Counsel Robert Mueller. It was soon discovered that whomever redacted the document failed to do so properly, allowing anyone to read the “redacted text” by copying and pasting the blacked out sections. While there is likely a staff member at one of the firms being blamed for the problem, attorneys and law students should remember that the attorneys who sign the documents also take responsibility for the contents of the documents. Should sanctions or a malpractice suit come of out of this situation, “my secretary did it” is not a valid excuse.
Client confidentiality is a huge issue that needs to remain on an attorney’s radar at all times, but it is not the only concern in the legal realm with regards to technology. Technology audits, such as those the (in)famous Casey Flaherty required of Kia Motors’ outside counsel, raised the question “in which technologies should a ‘competent’ attorney be proficient?” There are some who opine that if you are capable of serving your client more efficiently using technology, but refuse to learn how to do so, you are overbilling your clients. Problems may also arise while representing your client if you do not understand how technologies function. For instance, in the video below, we see what happens when prosecutor Bernie de la Rionda tries to question a witness about a social media technology that he does not understand.
This type of questioning hurts the client, the attorney, and the attorney’s firm. This behavior reasonably leads back to the ethics rule of competence and whether the attorney was adequately prepared to represent his client.
Embracing technology is not something that one can do for a single moment in time, either. The concept of technology continually evolves. At one point in time, when people discussed technology, they spoke of the wheel, a bicycle, or even a telephone. Today, however, those technologies are so ingrained in our society that most people would not include them in a conversation about learning to use technology — unless referring to a smart telephone.
As the technologies evolve, so, too, does the need for attorneys’ knowledge of these technologies. It should not surprise anyone, for example, that the American Academy of Matrimonial Lawyers reported in 2015 that 99% of attorneys surveyed said that text messages are being introduced as evidence in divorce cases. Also, 67% of attorneys surveyed have noted a rise in evidence from apps.
Great leaps are being made in the assumption of attorney’s technological knowledge in small periods of time, however. For instance, in a November 2018 Canadian judicial opinion, a judge deciding upon an award of attorney’s fees refused to allow a $900 research fee, in part because the attorney did not use “artificial intelligence” sources.
Thus, in three short years, we went from attorneys needing to know enough about how text messages and apps function to use them as evidence to using artificial intelligence to conduct legal research.
Now that you understand the implications of NOT embracing technology, what should you do in order to avoid those pesky malpractice claims and bar grievances? I recommend the following topics:
- MS Office, including Word, Excel, PowerPoint, and Outlook. These programs are industry standards and you need to understand how to use them efficiently and effectively.
- General principles of increasing efficiency and effectiveness, such as document and service automation, collaboration technologies, and portability.
- The creation and manipulation of PDFs, including redaction.
- A thorough understanding of what metadata is, how it is generated, and how to remove it from a wide variety of materials, including documents, images, movies, audio clips, etc. (metadata scrubbing).
- Cybersecurity, including how to select vendors who will help you protect your data, acquiring cyberinsurance policies, and training employees on best practices and use of available tools.
- The threats and opportunities involved with using personal devices to complete legal work.
- An understanding of the technologies that your clients use or which your opponent may utilize, such as accident recreation software.
- If you are a planning to be a trial attorney:
- Courtroom technologies, including exhibit presentation software, voir dire software, etc.
- eDiscovery platforms, principles, and specific court rules.
- General practice software, such as case management systems, billing software, efiling systems, and common mobile productivity applications.
- Google and specialized searches, such as public records and social media.
- Data Analytics.
- Keep an eye on cutting edge technologies, for
- Artificial Intelligence (already very active in the legal realm)
- Augmented and Virtual Reality
- 3D printing
- Blockchain and cryptocurrencies
This list may look overwhelming, but remember, attorneys do not need to be IT specialists. They need to have a general awareness of the technological issues and be willing to increase their knowledge and skills should their practice require it. Attorneys will also differ in their knowledge based on the type of law that they practice. A trial attorney will need to know different technologies than a real estate attorney or a mediator.
The key is a willingness to learn.
Jennifer Wondracek will be speaking at a session at ABA TECHSHOW on March 1. The topic is “Technology in Law Schools: A Single Course or Curriculum Integration?” This session will address different teaching approaches, discussing the opportunities and challenges of various formats, along with the feasibility of scaling legal tech instruction.
More on ABA Model Rule 1.1: Competence
Student Lawyer: Essential tech skills for the new lawyer
Center for Professional Responsibility: Searching for the Mr. Spock in you
Ethics Series: Ethics and Technology – Avoiding Traps and Pitfalls
Before the Bar: More on the topic of Technology