Alt Legal’s guide to ethics and practice in a fast-moving world
Legal tech is here to stay, and many state bar associations are now requiring attorneys to be technologically competent: you simply can’t afford to keep your practices analog. What are the ethical obligations attorneys need to consider when adopting legal technology?
The technological duty of competence
Historically, the majority of state bars that have adopted ABA Model Rule 1.1 have a duty of competence, but this duty has recently expanded because of the advancement of technology in the legal industry. As of August 2, 2017, 27 states have adopted Comment 8 to Model Rule 1.1, which states that maintaining competence means one must keep “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
The expansion of the ethical duty of competence has already impacted practicing lawyers: they can no longer claim technological illiteracy as an excuse for professional failures. For example, in James v. National Financial LLC C.A. No. 8931 VCL (Del. Ch. Dec. 5, 2014), Vice Chancellor Laster rejected the lead defense counsel’s lack of computer proficiency as an excuse to play an active role in the discovery process. The court expressed particular disappointment in the lead counsel’s explanation:“I have to confess to this court, I am not computer literate. I have not found presence in the cybernetic revolution … This was out of my bailiwick.”
Similarly, in Johnson v. McCullough 306 S.W. 3d 551 (Mo. 2010), plaintiffs sought a new trial based on a juror’s nondisclosure of his litigation history. The court found, however, that “In light of advances in technology allowing greater access to information...it is appropriate to place a greater burden on the parties to bring such matters to the court's attention at an earlier stage. Litigants should not be allowed to wait until a verdict has been rendered to perform a Case.net search for jurors' prior litigation.” Attorneys in this case had a duty to perform searches in line with their duty of technological competence. And in specialized practice areas like IP, the duty of technological competence obligates lawyers to obtain a certain level of proficiency.
In In re Tachner No. D2012-30 (USPTO Dir. April 12, 2013), the USPTO Office of Enrollment and Discipline brought an action against a solo patent attorney after he missed several filing deadlines for clients’ filings. The attorney relied on an office manager and a manual docketing system, using at first notebooks and then a word document to keep track of deadlines. The attorney admitted to a pattern of neglect and was suspended for five years.
The duty to supervise and the duty of confidentiality
There are several other ethical rules that attorneys should consider in adopting technology. Although we’re not aware of any cases applying the following model rules, this provides a helpful framework for the relationship between attorneys and technology, particularly as AI and automated systems are able to do more within the legal industry.
For example, the duty of supervision of nonlawyers may also have implications for adopting technology. Model Rule 5.3(b) states, “With respect to a nonlawyer employed or retained by or associated with a lawyer...a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.”
The rise of cloud computing has brought many changes to how lawyers deal with client data. The “cloud” in cloud-based software indicates that information is not stored locally but in servers owned and operated by outside vendors, enabling more efficient and focused operations. According to the 2016 ILTA/InsideLegal Technology Purchasing Survey, 62% of lawyers value above all the mobility provided by cloud solutions, and the percentage of lawyers who use cloud-based software doubled between 2011 and 2015.
The obligations that lawyers have in dealing with client information, including the duties of client confidentiality and security, have changed with the rise of cloud computing. Model Rule 1.6 states that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent [or] the disclosure is impliedly authorized in order to carry out the representation [and] a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Because cloud-based systems store information out of the direct control of practices, lawyers must take increased care to protect client confidentiality: there are more people with potential access to the data.
Along these lines, Model Rules 1.15 and 1.16 outline a lawyer’s obligation to protect, preserve, and responsibly destroy a client’s information. Rule 1.15 states that clients’ “property shall be identified as such and appropriately safeguarded.” The rule also says that records “shall be kept by the lawyer and shall be preserved for a specified period after representation.” Rule 1.16 states that “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.” Combined, these rules suggest that attorneys must ensure that their client’s information is protected or destroyed as needed-—an obligation that involves special care given the outside storage of this data.
Although ABA model rules aren’t binding for individual states, almost 40% of state bar associations have issued cloud ethics opinions. Each of these 19 state bar associations have permitted cloud services while mandating a standard of reasonable care (Here is an ABA list of each state’s cloud ethics opinion). While the use of cloud-based technology is allowed and often encouraged, its use sometimes makes attorneys uneasy. As the one representing your client, the obligation falls onto you as the attorney to keep abreast of your ethical obligations.
As long as attorneys stay aware of the ethical obligations above and work to ensure compliance with them, legal technology can often dramatically improve their efficiency. Technology can help lawyers automate grunt work and increase productivity. When used correctly and ethically, legal technology allows attorneys to focus on meeting clients’ needs.