By Gary Gosselin
Dolan Media Newswires
You may not breach ethics rules if you don’t know the latest and greatest computer programs, but you ignore the need to stay technologically proficient at your own peril.
Rule 1.1 of the State Bar of Michigan and the American Bar Association’s Rules of Professional Conduct require that a lawyer be competent to handle a given matter, measured as the standard of care in the local community.
Specifically, according to the ABA:
“[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …”
But you don’t need to be a teenage computer whiz to be competent, said John G. Cameron Jr. of Dickinson Wright PLLC in Grand Rapids and a member of the SBM’s Professional Ethics Committee.
“There is a basic requirement that the lawyer be competent and provide competent representation, and the rules don’t say you have to be” a technological expert, he said, noting that he wasn’t speaking on behalf of the committee. “Clearly people younger than 30 are much better than those over 60, but you can’t draw a bright line.”
Be mindful of metadata
Joan P. Vestrand, associate dean at The Thomas M. Cooley Law School, said that an important and sometimes overlooked technological source of problems can be with metadata.
Metadata is information embedded in a document that provides information about earlier changes in that document.
That would be addressed in MRPC 1.6, Vestrand said.
“That includes a number of points about protecting confidentiality, and metadata can be an easy source to reveal information that other parties should not be privy to,” she explained.
There is scrubbing software that will erase the metadata, she said, noting some states say it’s ethical to mine documents for such data and others say it is not. But if you potentially expose a client’s confidential information, that can be an ethical and professional breach, she said.
She said it’s relatively easy to stay informed about the latest trends through Institute of Continuing Legal Education courses, local bars and through the SBM’s Practice Management Resource Center.
Vestrand also pointed to the annual ABA TECHSHOW in Chicago, saying it’s an excellent resource for lawyers get acquainted with technology and services available specifically for lawyers. (The next show is set for March 27-29, 2014, at the Hilton Chicago.)
The SBM said Michigan does not have an ethics rule that specifically addresses an attorney’s use of technology, so it could not comment, but referred Michigan Lawyers Weekly to the American Bar Association.
“There’s no requirement to get so many hours of training in Michigan,” said Michael P. Downey, an ethics lawyer and litigation partner at Armstrong Teasdale LLP in St. Louis and chair of the ABA Law Practice Management Division. “But they are certainly required to be competent. There are plenty of ways to get [training] hours, particularly with tech issues; they’re hot these days.
“There are lots of opportunities for paid seminars, free seminars. A lot of this education can be brought to your door,” he added.
Concerning confidentiality
There are four basic areas to pay attention to with technology and ethics. The first is related to handling client information and whether that information is handled appropriately and securely; the second refers to lawyers promoting in advertising; the third relates to legal delivery; and the fourth is in litigation and discovery.
First, Downey said, don’t automatically count on younger lawyers to bail you out in a sticky technology situation.
“There is an assumption that younger lawyers understand technology and can help out with things you may not know about,” he said. “Yes, they use it every day, but they don’t necessarily understand how it works. Just because they’re younger doesn’t mean they understand it,” any more than an older person would understand how a television works.
Perhaps the worst area is in discovery, Downey said, especially with the boom in e-discovery and the fact that nearly all information is now stored electronically.
It’s easy for someone without expertise to quickly be floundering over their head. The answer is to get help immediately, he said.
A lot of times lawyers get into trouble for doing things without a lot of foresight or common sense, Downey said, like blogging about clients — without their permission.
“The big push is the desire to post new content on the Internet, and a good source is your clients, but the confidentiality issue has to be raised,” he said. “A rule of thumb is to have clients’ permission, and you could be so vague that you couldn’t ID the client.”
A vitally important part of ethically serving the client is with keeping their information confidential.
“Law firms are the target of hacking in about 10 percent of instances, according to some statistics,” Downey said. “They are seen as holders of a lot of relevant information and if they don’t take precautions, they certainly will be victims of hacking or information theft.”
You better shop around
The biggest mistakes continue to be keeping information on unencrypted drives, cellphones, laptops and even removable devices.
It’s easy to just download information onto a thumb drive to work on later, but if that drive is lost, there are immediate security issues as well as reporting issues and potential ethics and professional breaches.
“Technology is very affordable and being used in a lot of ways and what law firms are doing is using consumer products in the workplace,” Downey said. “And a lot of these were designed without security. Do your homework. There are plenty of security programs out there; you just have to know that these off-the-shelf products will probably need some help” via additional security software.
Many firms are going to cloud, or offsite storage of data, he said, and that can be an easy point of neglect. Most free services offer no security to speak of.
Lawyers have to shop around for the service that best suits their needs, but there are limits.
“The reality for most lawyers is they don’t have the ability to negotiate — so you shop around to find what terms are best for you,” Downey said, noting professional organizations often have group discounts and/or better terms. “If your bar doesn’t have a favored technology, look around to other bars and see what they offer, there is at least some vetting of the vendor if you’re going through a bar group.”
Downey said a little work, a little common sense and a little effort can help lawyers avoid the pitfalls of technology.
“It’s here to stay,” he noted.
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