Don’t Be a Robot: You Cannot Automate Your Ethical Considerations

As published in the New York State Bar Association Corporate Counsel Inside Newsletter Winter 2016.

I could say that today’s lawyer faces a myriad of challenges when it comes to staying abreast of emerging technology and client considerations, but let’s face it, every generation has its challenges.

A few years ago, I wrote articles and spoke on panels regarding Cloud computing and I hope you paid attention. Cloud computing is now the backbone of most emerging technologies out there. More and more, technology vendors base their platforms in the cloud. It is cost effective, mobile, and more secure.

To illustrate it in simple terms, have you noticed the trend of diminishing hard drives and cell phones that come in 32GB models? Do you wonder why? Simply, the trend is to now store everything in the cloud and for good reason. TECH FAILS. The only thing that can help you avoid data loss is redundancy. Sure, you can store your information on a local hard drive but you are doing your clients a disservice by not storing data in the cloud.

To address the mounting concerns and opinions regarding the legal profession and technology, the American Bar Association drafted a model rule in which it is imperative that the attorney stay abreast of legal trends. No longer is ignorance of technology an excuse for not fulfilling your ethical obligations. On March 28, 2015,  the New York State Bar Association agreed by adopting a variation of the ABA’s model rule 1.1 pertaining to competence:

To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and

(iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R. Part 1500.

In other words, lawyers cannot be ignorant of technology in their practice or, even, their day-to-day lives because our ethical obligations do not stop when we leave the office. We carry around our laptops, cell phones and various points of electronic vulnerabilities so that we need to be vigilant. Vigilant in terms of password protection, knowing how to wipe your data remotely and even checking the permissions of a mobile app you are downloading.

Notably, the rule says benefits AND risks. I am an early adopter. I like technology and we have a rapport. That’s not to say that I think that all technology is for everyone. Part of your ethical duty is knowing your limits. Just because a software boasts of all the bells and whistles, if you can’t learn the software (it may not be you but them), don’t use it. You are putting your clients at risk because you know just enough to be dangerous.

For a moment, let’s take a step back in time. Let me take you, once again, through the basics of cloud computing. In simple terms, cloud computing is any data that does not reside on your hard drive or on your local server (if you have servers in your office). The first iteration of the cloud is voicemail. Answering machines were replaced with voicemail, which meant that your messages were stored on a remote server that required you to use a code to retrieve them. Although this was a shift in where personal and official information was stored, I cannot remember anyone wondering whether this would be an issue of confidentiality or otherwise.

In the various local and state bars you will find more than a handful of opinions about the cloud and technology in general, and I think, it all boils down to the adopted rule above. Use technology. Your clients and your practice demand that you do but be smart about it. Know the risks. What I find the most interesting, and seems a bit counterintuitive, is the relaxing of the rules when it comes to legal practice and ethical obligations. This, by no means, reflects on the relaxation of our ethical obligations but in a testament to the evolving technology.

When lawyers began to use third party emails such as Gmail, the question was whether there were ethical issues with using unencrypted email. If you’ll recall, there were vendors (and they probably still do exist) that sell encrypted email platforms, one that requires authentication to open the email. Not to say there isn’t a place or a reason for this, but not many of us would need that level of security. It is also cumbersome and delays pertinent information to your client.

So how do the courts view this use of the cloud? An opinion rendered in 1998 in New York State said that a lawyer may use unencrypted email to transmit confidential information since it is considered as private as any other form of communication. The reasoning was that there is a reasonable expectation that email will be as private as other forms of telecommunication. However, the attorney must assess whether there may be a chance that any confidential information could be intercepted. For example, if your client is divorcing his or her spouse, an email that both spouses share, or even an email to which the non-client spouse has access, should not be the method of communication. The attorney must seek alternate methods of communicating.

Gmail will also scan keywords in your email and provide relevant advertising. For instance, if you were discussing shoes in an email, the email service provider would tailor ads when you were in the email inbox and you would now be receiving advertisements for Zappos or any other shoe vendor. After all, nothing is better than a captive audience.

So, the question now becomes whether a lawyer can use an email service that scans emails to provide computer-generated advertisements. The New York State Bar Association opined in Opinion 820 (2/8/08 (32-07)) that, yes, it was okay, since the emails were scanned by machine and not by human eyes. If the emails were read by someone other than sender and recipient, the opinion would have certainly been different.

Which now brings us to emerging technologies. This can come in so many different forms such as keyword searches to automated documents to utilizing big data (i.e., databases of information) to gain an edge over your adversary. We are all familiar with these concepts in one form or another such as HotDocs, OCR, and litigation review platforms but the technology continues to be more sophisticated and more intuitive. Even to the point that there are services out there marketing to in-house counsel that their software can review contracts and technologies that will help you parse together a contract, all at the click of a button.

How ethical can this be and where is the line of streamlining legal fees for your clients and just malpractice?

Pursuant to ABA Rule 5.4, a lawyer, when advising his or her client, must exercise independent professional judgment.

The rule of thumb being, you can use technology up to a point. The attorney still needs to review the work product and maintain a level of control over the final product. You can use technology as it was meant to be, a tool, but you are the one representing the client. It is up to you to present independent legal counsel to them. The technology is there to help you help your client.

Some of the best practices in utilizing emerging technology is sourcing the right technology for you and your practice. What will help you in your field to best represent your client? This could mean document automation, an online docketing system or an online intake platform. Also, recognize whether your clients will be open to this technology. After all, if your clients won’t want to use this technology, you are now hindering your representation of them.

You should also be careful to vet your technology vendors. What is their reputation? Where do they store your information and how can they ensure the confidentiality of your client’s information? These are all questions that need to be addressed. Vendors that service the legal industry should easily be able to give you the answer to these questions. Read their terms of service. If you don’t like something, negotiate. We are lawyers, after all!

And, most importantly, if you decide to discontinue the use of the software, what will become of your data? Is it data you’ll want to export out or ensure that it is destroyed?

The New York State Bar Association Ethics Opinion 842 offers some guidance on choosing vendors, specifically, cloud vendors, which as I mentioned above, since most legal technology does run in a cloud environment:

  • Ensure that the online storage provider has an en- forceable obligation to preserve confidentiality and security and will notify you of a subpoena.
  • Investigate the online storage provider’s security measures, policies, recoverability methods, and other procedures.
  • Ensure that the online storage provider has avail- able technology to guard against breaches.
  • Investigate storage provider’s ability to wipe data and transfer data to the attorney should you decide to sever the relationship.

Our obligations to keep abreast of changing law don’t stop there. We owe it to our clients to take advantage of technology in our practice and to do so safely. Pick and choose what works for you and leave what doesn’t. Technology, after all, is only as good as its user and that’s okay.