How often have you heard the lament, "I went to law school to practice law, not to..."? The "not to" might refer to practice management, or to technology, or to a variety of other topics that lawyers either don't want to or don't think they should know about.
As a result of changes that went into effect Nov. 21, the Rules of Professional Conduct now require lawyers to recognize and understand the ethical issues that arise in a variety of subjects, including technology. In particular, the comment to Rule 1.1 ("Competence") states that "to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."
In addition, Rule 1.6 ("Confidentiality of Information") has been amended to include Paragraph (d), which states that "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."
Both of these amendments are technology-focused and make it clear that lawyers can no longer claim that technological ignorance is acceptable. While the comment to Rule 1.1 seems self-explanatory, it really is not. First, what technology is the rule referring to? Although the framers of the new rule do not specify what technology the rule addresses, there is only one logical conclusion: The new comment requires lawyers to be aware of and consider the risks and benefits of any technology that is relevant to their practices and their clients.
Thus, a trial lawyer who goes to trial without using any software may well be failing to practice using the requisite standard of care. Similarly, an attorney who does not consider whether a Word document provided by opposing counsel has relevant metadata may have failed to represent his or her client fully. Or, an attorney who does not warn his or her client about social media and the impact it could have on the client's matter is almost certainly failing to adequately represent a client. There are many more examples.
The Report of the ABA Commission on Ethics and Professional Responsibility offered three scenarios under new Rule 1.6(d):
When an email is sent to the wrong person;
When information is accessed without authority, such as when a third party hacks into a law firm's network or a lawyer's email account; and
When employees or other personnel release confidential information without authority, such as when an employee posts confidential information on the Internet.
Plus, with the advent of cloud computing (when data is stored offsite through a vendor or service such as Dropbox), lawyers must assure that such data is secure. That is why the commentators noted that lawyers have an ethical obligation to take reasonable efforts to prevent these types of disclosures by using reasonably available administrative, technical and physical safeguards. It is also why the commission noted that "technology is changing too rapidly to offer [more specific] guidance and that the particular measures lawyers should use will necessarily change as technology evolves and as new risks emerge and new security procedures become available."
Consider two recent examples. In the first, the Supreme Court of South Carolina suspended an attorney because she failed to have an email address, as required by South Carolina Bar Rule 410(g). When the court initially discovered that the attorney did not have an email address, it ordered her to create one, which she did—email@example.com. However, the attorney did not monitor the email address and instead created an automatic response that merely directed the court and others to "the current directory for contact information." As a result, and after numerous communications with the court, the attorney claimed that she had no Internet access and was "retired." The court disagreed, and instead suspended the attorney, concluding that her conduct posed a "substantial threat of serious harm to the public or the administration of justice."
An extreme set of facts? That is far from clear. Just consider how many attorneys fail to include their email addresses on pleadings and other filings, even though it is required by various local, state and federal Rules of Civil Procedure.
What happens when clients use social media, as happens all the time? What are an attorney's duties? Recently, the Pennsylvania Bar Association committee on legal ethics and professional responsibility issued an informal opinion (No. 2013-35) answering the question of whether the inquirer was prohibited from "posting a request that people 'like' or 'share'" his law office website.
In response, a committee member concluded that (1) the attorney was permitted under the rules to post a request that people "like" or "share" his website; (2) it did not matter whether the attorney's request came from his personal or his law office's email account; and (3) the Rules of Professional Conduct, and the limitations upon advertising, apply to all content he posted on Facebook and other social media websites.
In response to this inquiry, the committee member cited Rule 7.1 ("Communications Concerning a Lawyer's Service"), which prohibits a lawyer from making false or misleading communications about his or her services. The author of the opinion also noted that Rule 7.1 governs all communications about a lawyer's services, including advertising permitted by Rule 7.2, and implicates advertising policies regarding not just Facebook but all social media.
But if the lawyer did not consider the implications of the new comment to Rule 1.1, it could pose problems. Thus, according to the opinion, "any statements on Facebook or on any other website must be truthful, may not mislead the public and should convey only objective verifiable information. Because Facebook and many other social media sites used as a means for advertising permit posts and comments from third-party individuals, [the attorney was advised that he] must monitor postings on [his] social media website to assure that any statements made about [his] qualifications are truthful, do not convey unreasonable or unquantifiable expectations, and are not misleading. If any of them is, [the attorney was instructed to] immediately remove them from the page."
The opinion also noted that "a lawyer must also be aware of creating unintended lawyer-client relationships through social media postings [because] online forms and comments that elicit information about a client's specific needs or provide advice to an individual could constitute the formation of a lawyer-client relationship." Thus, "lawyers must be careful never to reveal confidential client information on a social media or other website," thereby implicating the amendment to Rule 1.6.
Technology changes daily, and lawyers can no longer ignore its role in their practices, whether as an advertising medium, as a method of prosecuting or defending claims, or as a means of storing and accessing client data. Thirty years ago, lawyers used IBM Selectric typewriters, carbon paper and onion skin. Shortly thereafter, they began using fax machines (some firms still refer to their telecopier phone number on their letterhead), and eventually they had word processors and dial-up Internet.
Times have continued to change, and so must attorneys. Not only is it the right thing to do for clients, but it is also now the ethical thing to do. •
Siegel is the principal of the Law Offices of Daniel J. Siegel, and the president of Integrated Technology Services LLC, a consulting firm that helps law offices improve their workflow through the use of technology.