E-filing from the local coffee shop: a practical look into confidentiality, technology, and the practice of law.

• Author: Crews, Kevin

With the development and increased use of email, e-filing, e-service, and e-discovery, technology has become an important part of any modern law practice. Loving the latest iPhone app or abhorring technology's ceaseless encroachment on daily life is a choice each lawyer can make. But no matter what, technology plays a role in the modern practice of law. Technology is everywhere and poses risks. Lawyers must understand technology in order to avoid its dangers.

The rules of professional conduct don't change as technology changes. In 2000, The Florida Bar acknowledged the rules of professional conduct extend to uses associated with the Internet. (1) Since then, with the increase in various forms of technology, risks have only multiplied.

For example, in Iowa, one attorney was disciplined in part for not responding to 35 text messages from a client--thereby not diligently representing the client. (2) Text messaging is just one of the numerous applications of technology that could present risks. Misusing technology or not understanding it should not be excuses for improper conduct.

Further, lawyers still must protect client confidences, pursuant to Rule 4-1.6, (3) despite the increasing risk of inadvertently breaching confidentiality when using modern electronic tools. Lawyers instinctively know not to talk about confidential information when someone else is listening. The same principles apply to protect confidences when using electronic tools. Unfortunately, it is more difficult--and not always as instinctive--to know when confidentiality is in jeopardy when using technology.

To minimize risk, lawyers need to learn about technology in order to understand when confidential information is in danger. The following investigates a few of the current areas of risk posed by technology.

Background: The Only Constant is Change

Lawyers tend to resist change, due in large part to ethical demands to protect client confidences and the danger posed by new tools. Modern skepticism toward technology may be similar to the feelings attorneys had when the telegraph came into existence in the 1850s. Telegrams could be intercepted if unauthorized people tapped the wire. (4) Therefore, lawyers were reluctant to embrace the technology at first. (5) Lawyers knew they needed to integrate technology, but approached it cautiously. (6)

In the modern world, lawyers still need to welcome technology in order to stay relevant. As long as lawyers embrace technology thoughtfully, they can embrace it thoroughly.

Risk Area: E-filing and E-service

No one wants to be the attorney in Maryland who failed to answer key requests because a "blizzard of electronic filings" caused the paralegal monitoring the system for new files to miss a key document. (7) The court would not allow the attorney to cure a mistake caused by the "oversight" of the paralegal and the supervising attorney. (8) Therefore, it is imperative for lawyers to ensure they have systems and operating procedures in place to minimize the risk of oversights.

E-filing is a fact of life. (9) In 2012, The Florida Bar noted lawyers can provide their login credentials to "trusted" nonlawyer employees. (10) These employees can file documents at the lawyer's direction, just as nonlawyers have long been able to file paper documents with the clerk. (11)

Many lawyers are fearful of e-filing "because of many attorneys' lack of computer knowledge." (12) But lack of knowledge cannot be an excuse. The best way to reduce anxiety is to gain comfort with the use of e-filing systems and develop a strong network of tech-savvy assistants or peers. This comfort level can be developed with education and support. (13)

Attorneys and staff should take advantage of any online training, such as the thorough training provided for e-filing in federal bankruptcy court. (14) Also, the Florida Courts E-Filing Authority and Florida Bar website have numerous resources, manuals, and videos to help lawyers transition to mandatory e-filing procedures. (15)...