South Carolina Lawyer
SC Lawyer, November 2006, #2.
Unintended Consequences: Maintaining Basic Understandings of Technology an Ethical Obligation
South Carolina LawyerNovember 2006Unintended Consequences: Maintaining Basic Understandings of Technology an Ethical ObligationBy Eleanor B. KellettIf you are a legal scholar, you may have the luxury of time to review this article with thoughtful contemplation and circumspection. However, if you are a legal practitioner engaged in the active practice of law either as a retained lawyer with clients or as an in-house counsel for public, private or semi-private concerns, you may also want to pay special attention. Consider new stories, postings at the ABA Web site and actions by various state bars addressing concerns related to ESI. What is ESI? The acronym means "electronically stored information" and is specifically discussed in the electronic information-focused and much-heralded amendments to the Federal Rules of Civil Procedure due to become effective December 1, 2006 (unless Congress acts to the contrary). Seewww.ediscoverylaw.com and www.prestongates.comfor more in depth discussion of the specific amendments. Lawyers are on notice that they must have a basic technical understanding not only of their clients' ESI how their client receives, maintains and stores electronic information but lawyers must also know what is happening with their own ESI. So ask yourself, in your practice of law, are you savvy enough about electronic information and the technologies supporting this information?
A lawyer's ethical obligations require the provision of competent representation to clients, and competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for this representation. See Rule 407, SCACR, Rules of Prof. Conduct, Rule 1.1. This rule, through the comments, suggests that lawyers can provide adequate representation when in a wholly novel field through necessary study. It also states that, to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education. Horne v. Peckham, 158 Cal. Rptr. 714 (Cal. Ct. App. 1979) stands for the proposition that a lawyer must engage in continuing education. "It is the duty of an attorney who is a general practitioner to refer his client to a specialist or recommend the assistance of a specialist if under the circumstances a reasonably careful and skillful practitioner would do so." Horne, 158 Cal. Rptr. at 720. "[E]ven with respect to an unsettled area of the law, ... an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem." Id. at 721, citing Smith v. Lewis, 13 Cal. 3d 349, 359 (Cal. Sup. Ct. 1975).
In providing competent representation, all practicing lawyers should be aware of the ramifications of the technology they and their clients use and the potential "minefield" of technology-engendered unintended consequences. Also to be considered are the requirements of the December 2006 FRCP amendments.
In the past several years, there have been spates of embarrassing issues that arose for high profile players that involved or were brought about by the unintended consequences of today's technology. These slips arose primarily from an unknown and unintended sharing of sensitive electronic information. Inadvertent sharing has occurred involving a variety of media formats. Information intended to be private and personal has been inadvertently shared via information embedded in graphical images, also known as Joint Photographic Experts Group format (known variously as either .jpg or .jpeg), information contained in notes to Microsoft Powerpoint presentations and information embedded in Microsoft Word documents. Information has also been inadvertently shared electronically through imperfectly redacted...