Thinking Ethics Still Coping with New Technology, 050113 KSBJ, Vol. 82 J. Kan. Bar Assn 5, 9 (2013)
By Hon. Steve Leben, Kansas Court of Appeals, Topeka
Lawyers have always had to cope with change. I can recall as a young lawyer having an experienced practitioner recite to me just a few of the statutory compilations and key sets of rules—the Uniform Commercial Code, the Uniform Probate Code, the Federal Rules of Civil Procedure, and the Federal Rules of Evidence among them—that had all been enacted after he had graduated from law school. Keeping up with changes in the law can be a daunting task.
Today's lawyers not only must stay on top of changes in the law, they must also stay on top of changes in technology. Those changes are important in many ways. Discovery in a lawsuit now entails not only documents but also metadata. Marketing for lawyers and law firms may be more likely to include social media than traditional outreach methods. In addition, lawyers must consider how a lawyer's ethical duties may play out in new settings that have been changed by technology.
Two years ago, I provided an initial look at some early but well-developed ethics opinions in this area.[1] The good news is that those opinions remain an excellent starting place. New York Ethics Op. 842 (2010) addressed steps lawyers should take when storing electronic but confidential client information in cloud storage sites run by third parties. The overriding principle—which has been reinforced in later ethics opinions from several other states—is that the lawyer must exercise reasonable care to maintain the confidentiality of client information. The opinion recommends several specific steps that a lawyer should undertake, including making sure that the online data storage provider has an enforceable obligation to preserve confidentiality and security; making sure that the provider will notify the lawyer if served with process requiring production of client information; and investigating the provider's security measures, ability to purge and wipe data, and ability to move data to a different host at the lawyer's request. A second opinion, California Formal Ethics Op. 2010-179 (2010), also found cloud storage of files acceptable. A lawyer will be well served by maintaining a file showing that the lawyer has done research (such as reviewing the New York and California ethics opinions) about what to do and showing reasonable efforts to...
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