Professional Responsibility: Making "smart" Ethical Decisions While Making the Most of "smart" Technology

• Publication year: 2022

48 Creighton L. Rev. 737. PROFESSIONAL RESPONSIBILITY: MAKING "SMART" ETHICAL DECISIONS WHILE MAKING THE MOST OF "SMART" TECHNOLOGY

PROFESSIONAL RESPONSIBILITY: MAKING "SMART" ETHICAL DECISIONS WHILE MAKING THE MOST OF "SMART" TECHNOLOGY

CYNTHIA A. BROWN(fn*) AND CAROL M. BAST(fn**)

I. INTRODUCTION

Technological advances are increasing at a quantum rate of speed, and the enormity of their impact is challenging to keep up with, let alone evaluate. It is not difficult, however, to see the revolutionary effects these new technologies wield across segments of society. They are changing how users listen to music,(fn1) watch television,(fn2) read books,(fn3) work,(fn4) shop,(fn5) socialize,(fn6) learn,(fn7) and even speak.(fn8) Multiscreening(fn9) digital omnivores(fn10) now populate not only the nation, but almost every corner of the world. Digital devices and platforms proliferate as dramatic changes in technology cultivate individuals who are more "connected" than ever before(fn11) and almost the entirety of our planet is engaged in this media revolution.(fn12)

No small contributor to this advance is the development of the mobile device known as a smartphone. Integrating mobile telephone capabilities with many of the features of handheld computers, Google's Android, Apple's iPhone, and Blackberry's Blackberry have truly taken the world by storm. Global smartphone sales reached 1.3 billion in 2014, a thirty-one percent increase over 2013.(fn13) Smartphone users worldwide number more than 1.75 billion, and global smartphone penetration among current mobile phone users is expected to near fifty percent by 2017.(fn14)

A number of factors further the rise in smartphones' adoption, but the devices' diverse and numerous functions certainly facilitate their wide approval. Compact, on-the-go cellular communication supplemented by universal end points for data access and networked computing add to the phones' approval, as does their ability to serve as hand-held gaming tools, music players, digital cameras, and portable recording units. Anyone with a smartphone in hand possesses the capability to quickly morph into roving gamer, disc jockey, photographer, or spy.

The billions of units sold globally certainly attest to the staggering rise in popularity of the smartphone, and Americans' enthusiasm for the technology is well documented. Falling behind China, the United States is the world's second-largest smartphone market with over 180 million users.(fn15) Thus, the homes, streets, and workplaces of America serve as a stage for over 180 million gamers, amateur disc jockeys, shutterbugs, and undercover agents, many of whom are lawyers.

The technology includes capabilities that permit recording audio, as well as video, and places easy-to-use, compact, and convenient equipment in the user's hands. Smartphone owners can record on-the-go with unprecedented accessibility and opportunity. No longer are additional, expensive audio recorders required. The ease of use and proximity to the owner promote recording as a natural extension of the device's primary role, a telephone, and the recorder is already at the fingertips of the user.

Click on the smartphone's mobile application ("app") for news, and one can easily find a recent article where someone armed with a recording device records a conversation with another who was unaware of the recording. A bank employee surreptitiously records the conversation with his boss during his performance review.(fn16) A number of angry restaurant employees secretly record conversations with their supervisors during meetings where they complained about compensation and working conditions.(fn17) Union employees discreetly record the company's manager questioning each of them about their union activities.(fn18) These occurrences are no longer the exception, and the convenience of smartphone recording only increases the number of people who now possess readily accessible recording capabilities. Crediting the smartphones' recording functions, spy craft is no longer exclusively left to the professionals. One Texas employment lawyer reported that more than fifty percent of the aggrieved employees seeking her legal services bring with them digital evidence in the form of a recording.(fn19)

The enticement to secretly record statements and comments increases with the convenient and easy-to-use technology presented by the smartphone. Undeniably, many attorneys with their smartphones in handy reach may also find appealing the idea of recording, for posterity, the words spoken by a potential witness or adversary. The recording preserves evidence and protects parties, potentially providing proof of wrongdoing or substantiation of a story should the witness's version change. It is advisable for everyone considering such action, including attorneys, to exercise caution reflecting on whether obtaining such evidence is legal. Notwithstanding the lawfulness of such recordings, an additional consideration for lawyers is the ethicality of secretly recording conversations. With the success and popularity of the smartphone and the ease with which the device records, wisdom counsels attorneys to consider the legality and ethicality of such recordings before engaging in such undertakings.

This Article proffers some assistance by examining both the lawfulness and the legal ethics of an attorney's secretly recorded conversations. The Article's purpose is twofold: first, to demonstrate that there may be overlooked dangers associated with the benefits of the ubiquitous nature of smartphones and the convenience of their recording capabilities; secondly, to emphasize the need for counsel to make oneself aware of relevant statutory and legal ethics rules to ensure pitfalls are avoided. Part I begins with a brief historical overview of the smartphone's technological development. Part II offers an introduction to the statutory law governing secret recordings. In Part III, the Article provides an overview of the American Bar Association's legal ethics regulations relevant to an attorney conducting clandestine recordings.

II. TECHNOLOGY: HISTORICAL OVERVIEW

Computer technological advances in the 1980s reduced mainframe systems, previously the size of small warehouses, and led to the development of the personal desktop computer, one of the most remarkable innovations of the last century. Introduction of the personal computer dramatically altered life for us all. Collecting, storing, and analyzing large amounts of information became easy and convenient for the masses. By the 1990s, the advent of the internet and the delivery of the World Wide Web(fn20) to our living rooms beckoned still more advances and even greater changes. The planet's population now had a mechanism through which sharing massive amounts of information electronically again, became easy and convenient, but also fast.

As the beginning of another century neared, cellular technology untethered us from phone lines and allowed us the freedom to make telephone calls and communicate wirelessly lounging in our front yards, sitting in traffic, walking the dog, shopping at the mall, or while doing almost anything from anywhere provided cellular services were available. Now, cell phone technology has leapt forward again delivering smartphone advances to our doorstep. In addition to simply talking on the telephone from almost anywhere, smartphones allow users to accomplish a great deal more.

By combining the traditional personal digital assistant ("PDA") and a cellular phone, smartphones(fn21) provide a handheld mobile device that integrates mobile telephone capabilities with many of the features of handheld computers. They permit users to not only make telephone calls, but also to transmit emails, access the internet, watch television, read books, listen to music, play games, store information, and install other capabilities though programs or applications known as "apps."(fn22) The pocket-sized, compact communication tool provides its user with powerful hand-held functions that go beyond mere communication. Gaming aficionados pay homage to their interest, music lovers have libraries of music at their fingertips, everyone is a photographer, and anyone can become a spy. The smartphone is "an all-in-one, portable device that combines the functions of a cell phone with the functions of a computer."(fn23)

Little known "Simon" was, in fact, the first commercially available mobile device that could be called a "smartphone."(fn24) Invented by International Business Machines ("IBM") and demonstrated at the Computer Dealers' Exhibition ("COMDEX") trade show in Las Vegas in 1992, it was the first cell phone to offer calendaring, email service, and even a touch screen.(fn25) IBM and BellSouth Cellular teamed to turn Simon into a commercial product, which they did not make available to the public for another two years, late in 1994.(fn26) Unfortunately, the phone's sixty-minute battery life and cost of nearly nine hundred dollars per unit contributed to its short-lived availability.(fn27) After selling only about fifty thousand units, IBM removed it from the market just six months after its introduction.(fn28)

For the next decade Nokia, Ericsson, Blackberry, and Palm all followed IBM introducing their versions of an enhanced cell phone that combined characteristics of a PDA.(fn29) In 2002, the smartphone revolution advanced significantly with the...