Ethical risks from the use of technology.

AuthorBeckerman-Rodau, Andrew

ABSTRACT

The pervasive use of modern technology has resulted in law firms increasingly creating and maintaining files, litigation materials, confidential client information and other data in digital form. This form of data is easy to update, transfer and search. Hence, it can save time and increase efficiency while minimizing errors. Nevertheless, certain risks accompany use of digital data. For example, client data must be maintained in confidence. It must be preserved so that it can be recovered in the future if it is needed. Also, it must be preserved such that it can be produced with reasonable assurance it is in its original unmodified form. These risks create the potential for an attorney to run afoul of rules of professional conduct. To avoid this, an attorney today must be both cognizant of these risks and take reasonable steps to minimize such risks. This article will identify these risks, identify the applicable rules of professional conduct and suggest reasonable actions an attorney must take to avoid violating these rules.

TABLE OF CONTENTS INTRODUCTION I. ETHICAL CONCERNS THAT ARISE FROM THE USE OF COMPUTER TECHNOLOGY IN THE PRACTICE OF LAW A. Maintaining confidential nature of client information B. Meeting the reasonableness standard II. DATA SECURITY ISSUES ARISING FROM THE USE OF DIGITAL DATA A. Introduction B. Low-tech access--physical security measures C. Passwords D. Protecting data integrity 1. Data backups 2. Virus protection 3. Spyware protection 4. Computer use policy 5. Firewall software 6. Attorney and employee education 7. Modems and wireless access points 8. Automating data integrity protections 9. Storage media longevity E. Traveling--security concerns F. Unintended document replication G. Equipment replacement issues H. Legacy support issues I. The hidden data problem J. The need for computer personnel CONCLUSION INTRODUCTION

Many aspects of the practice of law have changed over the last two decades. The use of technology has dramatically increased. (1) Attorneys typically do not rely on support staff to take notes in shorthand. Dictating devices, carbon paper and IBM Selectric typewriters are no longer ubiquitous items in a law office. Today, computers appear almost universally in law offices on the desks of both support staff and attorneys. (2) Documents are created both by support staff and attorneys on computers using popular word processing software such as WORD or WORDPERFECT. Drafts may be electronically transmitted from an attorney's desktop computer to a support staff member via an internal network since connecting office computers together via a network is relatively easy and inexpensive and consequently quite common today. The widespread and inexpensively priced availability of both dialup and high speed Internet connections has resulted in office computers being connected both to internal networks and to the external Internet, Internet connections allow broad access to information and resources used by attorneys. The Internet enables mundane uses such as e-mail or instant-messaging. (3) Additionally, searching case law and other types of research are increasingly being conducted via the Internet. Large commercial databases such as LEXIS-NEXIS (4) and WESTLAW (5) provide instantaneous access to virtually all U.S. law and many other resources. (6) Many courts now provide information, including in some cases complete opinions, via websites on the Internet. (7) Non-profit services such as the Cornell Legal Information Institute at Cornell Law School provide free automatic e-mails alerting subscribers to recent Supreme Court decisions. (8) It is also quite common for law firms to maintain extensive web sites available to anyone with Internet access. (9) Finally, electronic communications with clients is increasingly common. It can include simply exchanging e-mails or sending documents as e-mail attachments. (10) More advanced uses can involve communal editing of documents by individuals at different locations via electronic connections over the Internet. (11)

The widespread use of computer technology in the practice of law is here and will continue to grow as business and commercial enterprises continue an ever increasing reliance on such technology in the interests of efficiency and profit maximization. (12) Consequently, attorneys will continue to use such technology since it will be demanded by clients. Such reliance on computers can raise ethical risks for attorneys. (13) This article addresses the general ethical issues which are a concern. It then provides a primer on technology issues that can trigger ethical concerns. Finally, it offers recommendations on minimizing running afoul of these ethical concerns in the practice of law.

  1. ETHICAL CONCERNS THAT ARISE FROM THE USE OF COMPUTER TECHNOLOGY IN THE PRACTICE OF LAW

    1. Maintaining confidential nature of client information

    In the course of representing clients, lawyers receive confidential information. Such information may relate to the client personally or to a business enterprise she is involved in. Maintaining the confidentiality of such information is a basic premise of the U.S. legal system. (14) It enables a client to freely speak with an attorney in the course of a client-attorney relationship. (15) Absent this ability, a client would may be unwilling to freely communicate with his or her lawyer thereby making it difficult for the attorney to represent the client to the best of his or her ability. (16) Consequently, attorneys are required to maintain the confidentiality of most client information.

    The ABA Model Rules of Professional Conduct provide, in part:

    RULE 1.6: Confidentiality of Information

    (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted * * * by [certain limited and specific situations]. (17) Official comments to Rule 1.6 state, in part:

    A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer * * *. (18) When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. "Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information ... A client ... may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule." (19) "The duty of confidentiality continues after the client-lawyer relationship has terminated." (20)

    Representation of a client often requires an attorney to utilize non-attorneys which may include support personnel, paralegals, accountants, investigators, law student interns and experts. (21) Ethical rules binding attorneys do not bind non-attorneys. (22) However, an attorney may be responsible for insuring that such personnel comply with the ethical obligations binding the attorney. (23) Hence, an attorney must take appropriate steps to insure that all personnel, including technology staff, safeguard confidential client information. (24)

    The ABA Model Rules of Professional Conduct provide, in part:

    RULE 5.3: Responsibility Regarding Nonlawyer Assistants

    With respect to a nonlawyer employed or retained by or associated with a lawyer:

    (a) a partner, a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, and the law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

    (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

    (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

    (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

    (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (25)

    Official comments to Rule 5.3 state, in part:

    Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. (26) [The Rule] * * * requires lawyers with managerial authority within a law firm, and the firm itself, to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional...

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