What You Do Not Know Will Only Hurt You: The Risks and Rewards of Technology in the Legal Profession
Photo by James Clayton
Note from the Editors: Recently, The Campbell Law Observer hosted a write-on competition to recruit new staff writers. Each student was to discuss the role of changing technology in the legal profession. Below, you will find the article that received the highest score from the editorial board. Next week, we will publish another student’s write-on prompt in an attempt to display two perspectives.
Good intentions can sometimes lead to grave consequences. Situations arise every day in the practice of law where inadvertent violations of an attorney’s professional duties may occur in the name of efficiency and efficacy. Take for instance an attorney who is meeting a client out of the office to prepare for a deposition. The attorney soon realizes that he has left behind certain videos and documents he planned to show the client. The files are too large to send by email and the attorney is too far away to return to the office, so the attorney decides to ask a paralegal to upload the files to the paralegal’s Dropbox account. The paralegal uploads the files and emails the attorney a link to the folder so he may download the files. The solution is quick, efficient, and easy, and it has now placed protected work product on the internet that anyone, in theory, could access. This simple illustration underscores how technology can impact the legal profession for better and for worse.
An Attorney Has a Duty to Use and Understand New Technologies in the Practice of Law
The Preamble of the American Bar Association’s Model Rules of Professional Conduct defines an attorney’s role as “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” The Preamble goes on to list various functions an attorney performs while representing a client’s interests, including that of an informed advisor, a zealous advocate, an honest negotiator, and a trusted evaluator. Advancements in technology frequently provide attorneys with new ways in which to perform these representative functions.
There is no mistaking the fact that it is incumbent upon an attorney to maintain a certain level of competency in all facets of his or her representation of past, present, and prospective clients. In fact, Rule 1.1 of the Model Rules addresses an attorney’s level of competence, specifically stating that “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Moreover, the final comment to Rule 1.1 states that an attorney should “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” While comments to the rules are not authoritative, every attorney practicing law would be wise to treat this advice as a requirement and not a recommendation.
This sage advice was emphasized recently by the ABA’s Government & Public Sector Lawyers Division, which sponsored a panel entitled “Locked Down: Security in Using Cloud Services and Mobile Devices.” 3 One of the presenters, John Simek of computer forensics and legal technology firm Sensei Enterprises, advised the audience that competence “requires understanding the benefits and risks associated with the relevant technology.” Simek further encouraged those in attendance to either “get a baseline knowledge or get help.”
While technology has undoubtedly helped facilitate the attorney-client relationship, technology has also made the accompanying duties of fiduciary, confidant, and conscientious advisor all the easier to violate, sometimes with only the simple click of a button. A cursory review of the formal ethics opinions issued over the past several years by the American Bar Association’s Committee on Ethics and Professional Responsibility emphasizes this precise point. Of the six most recent formal opinions issued since 2010, four involve technology-related issues including websites, email, and social media.
An attorney cannot zealously advocate for a client if he does not utilize every resource at his disposal, and new technologies are developed every day that can help further a client’s interests. Using a new form of technology in the practice of law does not necessarily require an attorney to go out and buy the latest and greatest trial software, transition to a paperless file system, or even find a copier that makes coffee. Instead, an attorney should stay abreast of the changing technological landscape and be prepared to think creatively in addressing a client’s needs. For example, something as simple as discovering the contents of a Google search may provide the evidence that makes or breaks a case. However, despite the advantages to be gained through technological advancements, an attorney cannot blindly charge ahead with any new technology that strikes his or her fancy.
Attorneys Have a Duty to Be Aware of the Risks Involved When Using Old Technologies and Adopting New Ones
Selecting the appropriate technology to use in the workplace is an important consideration, but knowing how to then properly use that technology is of equal significance. Such concerns are not of recent import, as shown by a formal ethics opinion from 1992 which addressed the “proliferation of facsimile machines and electronic mail” and the dangers of inadvertently disclosing confidential and privileged materials. 4 While the ABA imposed additional duties upon an attorney receiving the inadvertently disclosed materials in 2005, the fact remains that a failure to properly use and understand technological advancements, even those seemingly as simple as email, has been an issue for decades. Additionally, the thirteen years between the identification of a problem and the recognition of a solution shows how adoption and understanding of new technologies in the legal profession can sometimes move at a glacial pace.
Email and websites are prime examples of technology used by a vast majority of attorneys to market legal services and communicate with clients. The manner of an attorney’s communications with clients and the content of an attorney’s website are fairly well-regulated by the ABA’s Model Rules. Nevertheless, the mere existence of an email account or website alone can present entirely different problems for an attorney. Websites can be vandalized and email accounts can provide a gateway to a law firm’s confidential internal files. Just ask the (former) firm of Puckett & Faraj, PC, which learned the lesson the hard way after the firm’s website and email accounts were hacked in February of 2012. When the firm earned a favorable resolution for a Marine accused of participating in unauthorized killings in Iraq, the “hacktivist” group Anonymous decided to take matters into its own hands. The hackers defaced the firm’s website and exposed the firm’s private emails, many of which contained confidential client information and documents. These events occurred before anyone at the law firm had an inkling of what was happening.
The extent of the damage resulting from the exposure of clients’ data and communications was far too great for the firm to bear, and the firm went from celebrating a high profile resolution for its client to no longer being in existence less than a month later. Could this have been prevented? Possibly not, seeing that the FBI and other government agencies were hacked by the same group, but the firm did not make it any harder on the hackers by using weak passwords for employee email accounts. The utter destruction of a law firm’s credibility resulted from someone failing to recognize that “passw0rd” or “iraq2003” were not the most secure of passwords. Although the termination of a law firm is surely an extreme result, it goes to show that a simple disregard for what many would consider standard procedure can have a devastating effect on both attorneys and their clients.
Email and websites have been around long enough that they should be old hat, but newer technologies, such as online file storage services like Dropbox present new ways for attorneys to violate longstanding duties. The Dropbox situation presented at the outset is a common example of what may be faced by an attorney today and in the future. Dropbox was started in 2007 and is now one of the most popular and widely-used file storage services on the internet. When a link to a user’s files is created it can then be intentionally or inadvertently sent to virtually anyone, and, while highly unlikely, could even be guessed by a third party. A paralegal creating a link to a folder is not singular to Dropbox and can be accomplished with any of the numerous file storage solutions on the internet. Most, if not all, have similar policies on how user data is handled, and the example stresses the need to understand just how such a service operates before deciding to use it to store and share important files. Dropbox promotes its own strong compliance with internet security standards, but the service cannot account for user error.
Most importantly, while opposing counsel has a duty to inform an attorney of an inadvertent disclosure, such ethical duties are not imposed on those outside of the legal profession. The practice of law can move at a quick pace, but taking the necessary amount of time to be trained on mastering and utilizing a new technology can go a long way toward avoiding the grave costs which may be incurred otherwise. Like every law student learns in his first-year contracts class, there is a duty to read. Or in this case, a duty to understand just how a new technology works before deciding to use it.
Scientia Potentia Est: Knowledge is Power
The representative functions espoused by the American Bar Association serve as a guide to every practicing attorney in how to approach new technology in the legal profession. To truly be an informed advisor, an attorney should strive to have more than a mere rudimentary level of technological competence. To truly be a zealous advocate, an attorney should strive to utilize the most from the technology employed in the daily practice of law. To truly be an honest negotiator, an attorney should not take advantage of those who are less knowledgeable, whether they are other attorneys or clients. And to truly be a trusted evaluator, an attorney should do everything in his power to avoid the mistakes suffered by those who did not believe it could happen to them. To quote Proverbs, “[a] wise man is strong; yea, a man of knowledge increaseth strength.” What you do not know will only hurt you.
