We have reached the point at which any

Transcription

1 Technology and Ethics in the Practice of Family Law JEFFREY ALLEN We have reached the point at which any discussion of the interrelation of technology and the practice of law requires addressing the issue of ethics. Note that I chose to use the term interrelation rather than use, as I believe we have reached the point at which we have to concern ourselves with the fact that the failure to use available technology can present an ethical dilemma as well as concerning ourselves with the risks posed by the use of technology in the practice. The issues of ethics and technology include the relatively common discussions of the need for security, strong passwords, and so on. But, they go beyond those concerns and in this article I explore some of the other technology-related ethical concerns that family law attorneys need to address to protect clients, your license, and your financial well-being. Most legal research has not yet moved to the cloud. HISTORICAL BACKGROUND In 2001 I participated on a CLE panel presented by California s Continuing Education of the Bar. The panel also included an attorney whose practice focused on legal ethics, ethical problems faced by attorneys, and defending disciplinary actions undertaken against attorneys by the California State Bar. By 2001 most law offices had moved beyond carving words into stone tablets or writing with quill pens on papyrus (when I started that was the standard just kidding; when I started, however, most law offices still used typewriters and carbon paper). By 2001, we had what passed for some fairly sophisticated technology, but nothing approximating the level of current technology. Many attorneys did some or all of their legal research online; but most legal research had not yet moved to the cloud. We used computers and word-processing equipment as well as portable telephones and personal digital assistant, or PDA, devices. Phones had become much brighter than in the past, but by comparison to those we have today would hardly justify the appellation of smartphones. During the course of the discussion, I asked the ethicist whether we had yet reached the point that the decision not to use available technology could constitute an ethical issue for attorneys. I found his response interesting, if not enlightening. He said that he did not believe we had yet reached Copyright 2014 Jeffrey Allen. All rights reserved. Jeffrey Allen is the principal in the law firm of Graves & Allen (Oakland, Calif.) with a general practice that, since 1973, has emphasized negotiation, structuring, and documentation of real estate acquisitions, loans, and other business transactions, receiverships, related litigation, and bankruptcy. Mr. Allen also works extensively as an arbitrator and a mediator. He serves as the editor of the Technology ereport and the Technology & Practice Guide issues of GP Solo Magazine. He regularly presents at substantive law and technology-oriented programs for attorneys and writes for several legal trade magazines. In addition to being licensed as an attorney in California, he has been admitted as a Solicitor of the Supreme Court of England and Wales. He holds faculty positions at California State University of the East Bay and the University of Phoenix. Mr. Allen blogs on technology and the practice of law at You can contact Mr. Allen via at jallenlawtek@ aol.com. 12

2 TECHNOLOGY AND ETHICS IN THE PRACTICE OF FAMILY LAW 13 that point; but that we were moving towards it and would get there soon. Standards will lag behind evolution of technology. IS IT UNETHICAL NOT TO USE TECHNOLOGY? I recognize that standards vary from jurisdiction to jurisdiction; I, however, believe that we have reached that point now, at least in some places; and that others will join the juggernaut in the immediate future. As attorneys, most jurisdictions impose upon us an obligation to represent our clients effectively. They also impose an obligation to charge reasonably for our services. Given how much more quickly Internet-based legal research is updated than printed matter, it becomes difficult to argue successfully that checking hard copy to make sure we have the most current information will suffice, when in doing so, an attorney misses a case decided so recently by a high level appellate court that the printed updates have not yet caught up to it, but that readily appears online. Similarly, the highly sophisticated search algorithms used by the better known online legal research providers generally find more of the relevant cases faster than a human search engine consisting of a single attorney and possibly a helpful paralegal. If, as a result, it takes 6.0 hours of the attorneys time to complete a research project using old school methods (books), but it would take only 2.5 hours to locate and review the same cases using the computer search engine, it would appear that billing for 6.0 hours of the attorney s time would represent an arguably unreasonable charge for the work that the attorney could have (should have?) finished in 2.5 hours. If we assume a rate of $300/hour, the difference on that one project alone would come to $1,050. Although that may not seem significant if the client is a large multinational corporation and you are working on a multi-million dollar case, it certainly is significant to Harry and Hannah Householder who are terminating their 40-year relationship, after both have retired and depend on Social Security as their primary source of income. Even if you are handling a case involving parties with the ability to absorb that extra $1,000, that does not mean that they want to or that they should have to do so. Moreover, remember that $1,000 relates to just one research project. It could repeat itself several times in the same case. As technology continues to evolve and infiltrate the practice of law, the standards of what an attorney must do to perform appropriately and competently will have to evolve to address that technology. Given the nature of the beast, it is a good bet that the evolution of the standards will continue to lag behind the evolution of the technology. It will, nonetheless move forward and the fact remains that we find ourselves in a state of fluctuating standards that require considerable and consistent diligence to ensure that we do not fail to adhere to our ethical obligations as they become modified by the advent of technological advancement. DIFFERENT METHOD OF GAUGING PERFORMANCE In some (even most) cases, the issue will not be the creation of a new ethical obligation, but merely the evolution of a different method of gauging our performance and ensuring that we act in a manner consistent with a longstanding requirement in the face of newly elevated technology. Note that the two examples that I discussed previously relating to the failure to use technology did not create a new ethical requirement or argue that the technology had done so. Rather, they represent evolutions of longstanding requirements in play in many, if not most, jurisdictions. What has changed? The technology available for our use in performing our duties as attorneys has created a new playing field. The venue has moved to the new field and we need to bring our game to that field and adapt it to the playing surface. Most client information comes electronically. As technology evolves for attorneys and for society in general, we find more and more law offices and their clients have a growing dependency on technology and, in particular, electronic communications and electronic recordkeeping. The significance of this evolution manifests itself in numerous ways that affect the practice of family law. Most of the information that we get from clients these days likely comes to us electronically. We get s, PDF files on thumb drives, electronic files as downloads from various cloud facilities, such as Dropbox or transmittals

3 14 AMERICAN JOURNAL OF FAMILY LAW through Hightail or other comparable facilities. More often than not discovery comes to us as an electronic file or files; with document productions coming as PDF files or in another agreed-upon format. More and more courts, recognizing this phenomenon have adopted electronic discovery (e-discovery) rules and procedures to facilitate the exchange of electronic files during the discovery process. Small firms are more likely not to have IT staff. UNDERSTANDING DISCOVERY RULES As with any governing rules, attorneys who fail to familiarize themselves with the rules run an increased risk of violating them. Unlike other rules, understanding the e-discovery rules and the obligations and rights of a party in connection with the e-discovery procedures requires some technological knowledge and sophistication. An attorney who does not have that knowledge runs a serious risk of ethical blunder or malpractice (or both) by engaging in e-discovery practice. As, in some locations, attorneys have no choice but to deal with e-discovery and the applicable rules, practicing at a basic level of competence requires that the attorney either acquire the requisite knowledge or retain the services of a consultant who can advise the attorney as to the technology issues that must be addressed to comply with the court s rules and that must be addressed to successfully embark upon any required e-discovery work. The failure of an attorney to learn the required technology or obtain the required consulting assistance has real potential to place the attorney at risk for ethical violations and malpractice liabilities. These concerns affect all attorneys, but likely hit solo and small firm practitioners (such as family law attorneys) hardest. Larger firms will, in most cases, have IT staff that has the technological competence to help them through the e-discovery technological maze. Sole practitioners and attorneys in smaller firms will, more likely than not, have no IT staff to provide this assistance and will likely need to retain the services of a consultant to facilitate their work in this area. Although, in my perception, this hits solo and small firm attorneys the hardest, the fact remains that an attorney in any firm without IT staff on board will face the same issues. ABA MODEL RULES Although not all states follow the ABA Model Rules, those guidelines serve to illustrate a point that none of us should ignore. The ABA Ethics 2020 Commission proposed significant revisions to the model rules respecting technology either in the form of modifications to the rules or through explanatory comments to the rules. Those new guidelines, approved by the ABA, impose requirements on attorneys respecting technology that previously did not exist. Although a number of the changes relate to technology, I want to call your attention to two of them. Model Rule 1.1 (relating to competence) would now admonish attorneys to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. One could easily craft the argument that this change in the comments to the Model Rule not only imposes an obligation on attorneys to learn about the available technology, but that it carries with it the implicit requirement that competent practice requires implementation of beneficial technology in the practice. Model Rule 1.6 and its comments (relating to confidentiality and protection of client data) would now require the lawyer to use reasonable efforts to protect confidentiality and provide a list of factors to be considered in determining whether the lawyer was employing reasonable precautions. A comment to Rule 1.6 would provide, in part, that: Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts

4 TECHNOLOGY AND ETHICS IN THE PRACTICE OF FAMILY LAW 15 to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client s information in order to comply with other laws, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. WHAT CONSTITUTES REASONABLE CONDUCT These factors recognize the issues of the cost of the protection and sensitivity of the information. Although not all states have spoken on the issue, those that have generally have gravitated toward a standard of reasonableness. The problem has been the lack of clarity as to what constitutes reasonable conduct in this context. The benefit of the new comments is that they provide some guidelines in establishing that standard. By recognizing that sensitivity of the information and cost of the protection are appropriate factors to consider, the Rule would support the argument that when looking at standards for protecting data, we should look at scalability. The comment makes it clear that not all data needs the same level of protection, and not all law firms have the ability to provide the same level of protection. What does it mean for an attorney to learn the benefits and risks of modern technology? Does it suffice for Alice Attorney to proudly announce that she bought a new iphone and between her 12 year old and the trainers at the Apple Store she got the iphone set up, established an Apple ID, learned how to buy Apps and media from the itunes Store, send and receive a text message, send and receive , surf the net, do video chats, and make phone calls? Is it sufficient that Larry Lawyer knows that sometimes s do not get delivered or that telephone calls get dropped in marginal coverage areas? I would argue that it does not. On the other hand, I do not think Alice or Larry needs to know how to build an A8 processor (or even an A7 processor). Not all data needs the same level of protection. I do think that a middle ground exists and that Alice and Larry both need to find it. Alice s understanding of what she can do with the iphone will come close to passing muster on the benefits side (although there are many more things that it can do that might prove helpful to lawyers that she should learn to fully understand its benefits). On the risk side, both Alice and Larry need to learn about and appreciate the risks posed by unprotected data, unsecured accessibility of the device and the information it contains, all the issues associated with the use of the Cloud for storage of data, and the risks of inadvertent transmittal of confidential information. The failure to understand these issues can open the door to a world of hurt. CONCLUSION Using the smartphone as an example (as almost all attorneys have smartphones these days) many have no real appreciation for the power and the risk associated with the device they carry. I could just as easily have used tablets, laptop computers, desktop computers, the Cloud, or portable storage devices. The issue remains the same, no matter what the technology. Simply put, as lawyers we cannot merely become consumers and users of technology. We have an obligation to become knowledgeable consumers and users of technology. If we fail to do so, we risk breaching our ethical duties as attorneys and, in so doing, place ourselves, our firms, and our malpractice insurance carriers at risk for potential liability to clients for the failure to take reasonable precautions to protect the confidentiality of their data.

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