The Ethical Lawyer and the Tao of Technology

• Publication year: 2022
• Citation: Vol. 48

48 Creighton L. Rev. 709. THE ETHICAL LAWYER AND THE TAO OF TECHNOLOGY

THE ETHICAL LAWYER AND THE TAO OF TECHNOLOGY

BRETT J. TROUT(fn*)

I. INTRODUCTION ................................... 709

II. NEW TECHNOLOGY MEETS OLD ETHICAL RULES ............................................. 710

III. CHARTING A PATH ................................ 711

A. Understanding the Rules ........................ 713

1. The Rules ................................... 713

2. The Evolution of the Rules ................... 713

3. The Interpretation of the Rules .............. 714

B. Understanding the Technology ................... 715

C. Identifying the Most Likely Culprits ............. 720

1. Electronic Transmissions .................... 720

2. Legal Information vs. Legal Advice ........... 721

3. Creating a Client-Attorney Relationship ...... 723

4. Unauthorized Practice of Law ................ 725

5. Electronically Stored Information ............ 726

6. Failure to Secure Client Data ................ 728

IV. THE TAO OF TECHNOLOGY ETHICS ............. 731

V. CONCLUSION ..................................... 735

I. INTRODUCTION

Today's lawyer has both an ethical obligation to understand current technology and an ongoing duty to keep abreast of new technology relating to the practice of law.(fn1) Given the speed of technological growth, any approach to the ethical practice of law that involves simply trying to apply current ethical rules to current technology will be outdated even before it can be implemented. What is required is to develop a predictive model based upon the evolution of ethical rules that anticipates how ethical rules might evolve to address the use of new technologies. Once the predictive model is developed, the practitioner needs to identify the practitioner's unique goals and determine how technology might assist the practitioner in accomplishing those goals within the predictive model.

This holistic approach requires combining the evolution of the ethical rules with technology and the practitioner's long-term goals. The combination must incorporate both the letter and the spirit of the relevant ethical rules. Unlike a heuristic approach, the holistic approach to technology and ethics allows a lawyer to maximize the benefit of technology to the benefit of both lawyers and clients. The holistic approach also minimizes the likelihood of encountering an ethical problem when implementing newly adopted technology.

Forging a path through the dense thicket of technology and the ethical rules may seem daunting. Avoiding ethical problems associated with new technology requires education and vigilance. Merely practicing law as one has done in the past and remaining willfully ignorant of ever-changing ethical rules and new technology is a recipe for disaster. Just because a lawyer has not yet received an ethical reprimand is not evidence that the lawyer is practicing ethically. Proactive identification and continuous implementation of a holistic model of ethical practice in the face of new technology is every lawyer's duty, regardless of whether or not the lawyer's activities are ever reviewed by an ethics committee.

II. NEW TECHNOLOGY MEETS OLD ETHICAL RULES

The difficulty in implementing new technology into the practice of law can be off-putting to many lawyers. Most ethical rules were written with the postal service and landlines in mind. As a result, trying to make sense of ethical rules in a time of email, mobile devices, and electronically stored information is not unlike trying to force a square peg into a round hole. How then is a lawyer to approach new technology with only old ethical rules in hand?

Ethical rules regarding technology typically evolve after reports of incidents involving lawyers misusing new technology. It is axiomatic that ethical rules specifically addressing a particular type of new technology cannot appear before the new technology appears. Even after the new technology appears, the promulgators of ethical rules are in no rush to enact new ethical rules specific to that technology, choosing instead to take a wait-and-see approach to craft the rules to more specifically address the likely ethical concerns. Often, a lawyer must use the new technology in an unethical manner before the rule-making bodies know what conduct to prohibit. As unethical use of technology often goes unreported, it is not until someone actually reports an abuse of the new technology before rule-making bodies even consider enacting an ethical rule specific to that technology. It is often not until after an investigation and adjudication of an abuse that all the facts necessary for new rule promulgation come to light. Even then, someone must propose a new rule, which must be discussed and revised, before the body enacts a new ethical rule addressing the use of the new technology. As a result, there may be a span of several years between the time lawyers begin using the new technology and the ethical rules regarding its use are promulgated.

Even after years of discussion regarding appropriate new ethical rules governing new technology, it is unusual that the resulting ethical rules are perfectly drafted to address the use of the new technology.(fn2) Given the limitations of language, and relative unfamiliarity of some ethics committees with new technology, new ethical rules governing the use of new technology often substitute broad, vague language for precise boundaries. These broad rules leave it to later adjudicators to apply the vague language to specific incidents on a case-by-case basis. On the upside, such an approach allows later adjudicators more leeway to judge cases after time has passed and when a particular technology is perhaps better understood. On the downside, broad, vague ethics rules may provide lawyers with even less guidance and more potential pitfalls than the old rules. Over time, these new ethical rules are revised to more narrowly address the specific new technology. The hope of future narrowing revisions are unfortunately of little guidance to the lawyer using the technology today.(fn3) Where then can lawyers look for guidance on the ethical application of new technology to the practice of law?

III. CHARTING A PATH

Existing ethical rules, while not specifically addressing the use of the newest technology, still represent the best resource for a lawyer charting a path for the ethical use of new technology in the practice of law. If lawyers can track the ongoing evolution of ethical rules, they can not only extrapolate how existing ethical rules might apply to existing technology, but they can make informed predictions as to how even newer ethical rules may emerge governing the use of new technology. Because inexact predictive models do not bind new ethical rules regarding new technology, lawyers would be well advised to use such models both cautiously and conservatively until new ethical rules governing the new technology actually emerge. While even a cautious and conservative approach to such predictive models is no guarantee of avoiding an ethical violation, defending an action based on a cautious implementation of an informed predictive model is a far better defense than one premised upon maintaining one's head firmly under the sand.

Navigating the ethical minefield of technology can be equally daunting to both the technophobe and the technophile. Many techno-phobes are more experienced lawyers.(fn4) While they may have a firm grasp of the ethical rules, they fear the misapplication of poorly understood technology to those rules. As a result, they avoid new technology, compounding the problem and leaving themselves susceptible to an ethical violation when they are eventually forced to use a new technology. Conversely, many technophiles are less experienced lawyers. While newer lawyers may understand the letter of the ethical rules, they lack the insight that comes with years of seeing how the rules are applied in practice and which rules present the greatest danger of violation. Compounding the problem is the technological hubris that often goes hand-in-hand with technological proficiency. One way people become proficient with technology is simply immersing themselves in the technology prior to gaining a full understanding of its limitations. Technophiles often employ a heuristic approach, sometimes even learning more from failures than successes. While such an approach can dramatically flatten the technological learning curve for technologies such as video game and operating systems, such an approach can prove to be professional suicide when it comes to technologies like document security and e-discovery.

Interestingly, technology can help both the technophile and the technophobe avoid a catastrophic collision between the ethics rules and new technology. Developing a predictive model for the ethical use of new technology in the practice of law begins with three initial steps: understanding the rules, understanding the technology, and identifying the most likely culprits.

A. UNDERSTANDING THE RULES

The first step in developing a predictive model for the ethical use of new technology is understanding the ethical rules. This means understanding not only the applicable ethical rules, but also how those rules have developed over time and how those rules are interpreted by both the courts and ethics committees.

1. The Rules

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