Compliance with ethical duties. This has been one of the main day-to-day concerns of attorneys for centuries. However, a new wrinkle has been thrown in by the modern world – digital technology.
In terms of both legal technology and broader forms of technology (such as social media) lawyers need to navigate a more complicated ethical landscape than ever before.
First, you need to understand the various ethical problems that can be raised by technology. Then, you should come up with personalized strategies to mitigate these risks.
Avoiding legal technology is no solution to these challenges — in fact, that is an unsustainable approach. It’s better to educate yourself on the common pitfalls in ethics and technology so that you can safely navigate these issues.
Attorney’s duty of tech competence
The most basic ethical duty an attorney owes to their client is competent representation.
Today, your duty of competence includes competence in relevant technology.
But what does that really mean?
Attorney competence now requires familiarity with legal tech
ABA Model Rule 1.1, which has been adopted by most states, provides that the attorney’s competent representation of a client includes the legal knowledge, skill, and preparation that is reasonably required.
Most states have also adopted comment 8 to Rule 1.1, which extends the rule to require attorneys to keep up with relevant technology and understand its risks and benefits.
That means that you have to know at least a little bit about popular technologies. Consider how things like fitness trackers with GPS functions, smart speakers that listen for activation words, and other common technologies can affect your cases.
Since the use of legal technology is booming, this puts some additional demands on the profession.
Legal tech is now employed for numerous purposes in the legal industry — legal research, document management, court filings, contract drafting and management, client billing, and timekeeping, just to name a few. If you fail to employ these technologies when needed, your tech competency could be lacking.
eDiscovery requires tech proficiency
Electronic discovery (eDiscovery) is one of the main areas where legal tech competence is a necessity.
Since eDiscovery pertains to electronically stored information (ESI), attorneys dealing with eDiscovery matters must understand different ESI types, formats, and sources.
You need to become familiar with eDiscovery platforms, effectively preserve your client’s relevant ESI, and manage eDiscovery projects. And you must be able to make accurate representations regarding these projects and any eDiscovery disputes to opposing counsel and the court.
While you’re at it, you should learn some of the basics of secure data management. Any time you store data digitally — which is pretty much all the time now — you’re responsible for making sure that you can find it when you need it, but nobody else can get to it.
That brings us to the next point.
Duties to maintain security
In addition to a duty of competence, an attorney owes their client a duty of confidentiality.
This means that you must use technology securely so the client’s information is not subject to loss or theft. This includes secure communications with clients and securing data held by the firm.
It also includes the ability to use Wi-Fi securely. Keep your network secure and never do confidential work on public Wi-Fi networks such as the one at your local coffee shop.
There are lots of other tech security measures you can and should take. Some of the basics are things like good password management habits and keeping a separate computer for your personal needs. Be mindful of the software you install on your work computer and never download anything that isn’t absolutely necessary.
If you’re not confident that you have good cybersecurity habits, this is a great time to start learning.
How legal tech tools can help with ethical compliance
Fortunately, legal tech does not simply result in greater difficulties with ethical compliance. Just the opposite, in fact – many of these tools can help ensure you meet your ethical obligations.
Calendaring tools can help you meet critical deadlines and never miss court appearances.
Billing and time-keeping tools can increase accuracy in these areas.
Status updates can be provided to clients through secure online portals.
Legal tech can be an opportunity to avoid ethics pitfalls more easily in the long run. Like all tools, it’s up to you to use it responsibly.
Worth mentioning: ethics concerns with social media
The prevalence of social media has raised numerous ethical concerns for the legal profession.
Even a single social media post can result in serious ethical violations. Because of the vast reach of social media communications, attorneys must tread carefully here.
Consider just a few recent examples of ethical harms resulting from social media in the legal world.
- New York state judges were forced to resign over problematic social media posts involving anti-LGBT messages or expressing alignment with law enforcement.
- A Pennsylvania attorney was suspended for practicing law while his license was inactive, as revealed by a LinkedIn profile the attorney opened under a pseudonym.
- Two criminal defendants in Pennsylvania, both Black Muslim men, sought new trials based on unearthed Facebook posts from their attorney (appointed by the public defender agency) denigrating Muslims and Black people.
These examples demonstrate that you and your firm must prioritize responsible online behavior.
Be aware that social media posts can never be allowed to undermine your honesty, integrity, or ability to demonstrate fairness.
Also be aware of any client confidentiality concerns that could be compromised by an errant post.
Attorneys are held to higher standards of conduct than much of the rest of society, and this is especially true with judges and government attorneys such as prosecutors and public defenders. Act accordingly on social media.
Final thoughts
While the rise of digital technology might seem to present a landmine of ethical dangers, this does not have to be the case.
Legal tech tools can actually help with your ethical compliance, while also increasing your productivity and effectiveness as an attorney. This means maintaining your tech proficiency can be a net benefit, not a burden.
Add in the responsible use of social media, and you can steer clear of the biggest ethical pitfalls of our tech-driven world.
