There is no doubt that big data and analytics are vastly changing how lawyers conduct legal research and discovery, predict matter outcomes, select juries and draft contracts, reduce back-office costs and help land new clients. But for lawyers, who are bound by rules of legal ethics, the use of analytics has also raised ethical concerns related to issues such as confidentiality, communication, records and supervision, as well as questions surrounding privacy and security.
Lawyers need to keep in mind that even with new technology tools, professional conduct rules – like protecting client confidences – still apply, says Renee Knake, professor of law and Doherty Chair in Legal Ethics at the University of Houston Law Center. “As technology tools proliferate, lawyers should not only be ethically obligated to at least familiarize themselves about advantages and disadvantages in their adoption and use, but also to communicate with clients about this,” she says, pointing out that Comment 8 to ABA Model Rule 1.1, which governs the duty of competence, was amended in 2012 to require that lawyers keep up with relevant technology. “I can see that being extended to include an obligation to communicate with clients about whether their case could be improved by using predictive analytics,” she says.
Some lawyers and law firms are embracing analytics tools and thinking carefully about ethics issues, but others who may be reluctant to embrace analytics might not realize the rules that now apply, she explains. “As these tools become increasingly used to improve law practice they may have an ethical obligation not only to ‘keep abreast’ of changes in the law and its practice, including the benefits and risks associated with relevant technology, but also to communicate and consult with clients about whether and how advanced technology tools should be used in the representation.”
Ethical challenges also don’t simply arise from the tools themselves, points out Tom Barnett, chief of data science, analysis and investigation at Paul Hastings LLP. There is no doubt that law firms need to internally develop or retain outside expertise in using technology that has the power to increase efficiency and reduce client cost, he says. However, if the technology is deployed incorrectly, it can lead to unintended disclosure of private, protected information and data security risk.
“Having the right tools is important but not sufficient,” he explains. “A thorough understanding of what the tools can and cannot do, the sources of the data, the content, and the legal and ethical obligations associated with using and potentially producing the data are required.” And, he adds many of these considerations are not necessarily within the day-to-day scope of many lawyers’ comfort zone and expertise.
That means it’s essential for firms to address the use of complex data analytics tools at a firmwide, policy level, says Barnett. “Having individuals with varying level of expertise and experience make ad hoc judgments and decisions is a recipe for risk.”
Some firms engage in technology audits, which can be beneficial, adds Knake. “I think it can be helpful not only in understanding who within the firm has individual expertise but also in sharing throughout the firm best practices and other insights.”
The bottom line, says Barnett, is that there is tremendous power in the ability to rapidly analyze and understand large complex data sets, but this power does not come without risk. “Legal and regulatory compliance as well as basic ethical obligations come into play in ways that were largely unforeseen before the recent revolutions in computer processing power and analytical tools,” he says. “Ethical duties of competence are front and center as well as the duty to supervise non-lawyers and outside vendors given the risks of disclosure of protected information and associated security concerns.”
Sharon Goldman has been covering B2B technology topics for more than 10 years, including for publications such as CIO.com, Adweek, Digital Insurance, Shopper Marketing and DMNews.