Attorneys, Technology, and Ethics

- Richard Brock

Lawyers using various forms of computer technology in their practice is a given. From cloud storage, social media, and chatbots, to utilizing AI in routine office software and procedures, all these modalities and many others represent the face of technology today with more advances on the horizon. The question is how to best use technology in a safe and ethical manner.

Competency and Confidentiality

There are many rules of ethics for attorneys to follow when using technology. Two of the most basic rules revolve around competency and confidentiality. There are no shortcuts – these two areas must be guarded with due diligence.

First, and the most obvious, lawyers must understand and be competent when using technology in their practice. Attorneys are required to grasp the technology used concerning confidentiality matters, safekeeping of trust property, communicating with opposing counsel, and in supervisory roles for lawyers, as well as non-lawyers.

Second, regarding confidentiality, attorneys are required to take reasonable precautions to maintain confidentiality and not inadvertently, or otherwise, allow unauthorized access to confidential material.

From the American Bar Association 2018 Midwinter Meeting:

“A lawyer should make reasonable efforts to prevent disclosures or access, such as avoiding a lawyer’s sending an email to the wrong person, someone’s “hacking” into a law firm’s network, or staff’s posting client information on the internet.”

 Maintaining Safe Technology

In addition to competency and confidentiality, the ABA also encourages lawyers to maintain quality technology and keep it updated and guarded against potential hacks or loss of vital information. The following points were established:

  • A lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.
  • A lawyer should make sure that his or her computer system has updated antivirus software and other security software, including a firewall. He/she should consider keeping software current but also replacing software that is no longer being updated.
  • A lawyer should consider regular automatic backups of computer systems. In anticipation of natural disasters, a lawyer should also consider having such backups in more than one location or at least remote geographically from the primary computer system.

Ethical Lapses

Simply ignoring technology is not a solution, either. It impacts nearly every aspect of the legal profession. Failing to understand technology or trying to dismiss it can constitute an ethical lapse. For example, there can be penalties for lawyers who do not realize their moral obligations regarding technology. Several cases have resulted in judgments against lawyers who failed in fulfilling their cyberworld ethical duties. Examples include monetary sanctions, orders to write articles detailing lapses, and being forced to accept reduced fees.

Cases cited for ethical lapses include:

  • Swofford v. Eslinger, 2009 LEXIS 111064 (M.D. Fla. Sept. 28, 2009) (sanctions imposed against in-house counsel for failure to preserve evidence);
  • St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508 (N.D. Iowa 2000) (counsel ordered to write an article explaining why it was improper to assert unfounded objections);
  • Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash July 7, 2009) (attorney’s novice eDiscovery skills could not command the rate of experienced counsel).

A Word about AI (Artificial Intelligence)

As technology advances AI is almost certainly going to play a more significant role in nearly every profession, the legal profession being no exception. Jose Lazares, vice president of Product Strategy and Business Management at Intapp says, “I think when we are talking about ethics, and AI…we’re really talking about machines and algorithms replacing human decision-making and the implications of that.”

If it raises a red flag that having a machine make decisions for us might not be in our best interest, Lazares has an answer for that concern. He says, having a human oversee and possibly override AI decisions mitigates the issue because a human will have a chance to “review and understand” how the initial AI decision was reached.

Perhaps, but others point out some AI decisions are very complicated and may not be easy to understand and review. Additionally, some AI companies will not be eager to share information on proprietary technology and may not want to reveal the fact that AI decisions are not always a 100 percent accurate.

Finally, Johannes Stiehler, CTO at e-discovery and analytics company Ayfie, cites ethical concerns with AI that revolve around accountability.

“The question of culpability is going to be key to these ethical discussions, in law as much as in medicine,” he says.

Summary

As AI and other technologies evolve, what ultimately remains to be seen is how the legal profession will continue ensuring adherence to its ethical responsibilities as it continues using all forms of technology.

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