Volume 20, Number 4
June 2003
NOT USING NEW TECHNOLOGY: ETHICAL AND LIABILITY RISKS?
A LAWYER'S JUDGMENT WILL NEVER BE AUTOMATED
By Mark Tuft
Mark Tuft is a trial lawyer with the law firm of Cooper, White & Cooper, LLP, in San Francisco, California. His trial practice involves civil and criminal litigation in state and federal courts, and he also represents individual attorneys, law firms, and corporate law departments on professional responsibility and liability matters. He is a member of the ABA Center for Professional Responsibility and the Association of Professional Responsibility Lawyers.
For many in the legal profession, certain advanced levels oftechnology are indistinguishable from magic. Many people decide to attend law school because they do not do particularly well in math and science, and bar exams do not test for proficiency in using the web, BlackBerries, satellite backup systems, or other technology skills. Yet technology has become a conventional tool in law practice and effective client service. Recent technological advances, having clearly revolutionized availability of information and delivery of legal services, provide sophisticated resources for delivering fast and efficient legal services to clients.
The ethical issues associated with integrating technology in the practice of law have been and continue to be debated. But what about the ethical position of not using technology? Have we reached the point where technology is so essential to the legal system that it is no longer ethically permissible for lawyers not to use computers and the Internet in their practice? The answer is, and must be, no.
Ethics Considerations
The right to practice law requires that lawyers be competent, prompt, and diligent in all professional functions.1 The emergence of the Internet and multiple information-age technologies as modern staples of communication does not equate to professional competence or diligence as defined by rules of professional conduct. In order to practice law competently, a lawyer must employ the requisite knowledge and skill in a particular matter and apply the degree of thoroughness and preparation reasonably necessary for the representation.2 Competence as an ethical matter is based on the lawyer's legal ability, not technical ability, and implies keeping abreast of new developments in law. Employing electronic research may be efficient, but if a lawyer is able to find the law and apply it correctly, the lawyer is acting competently regardless of how the information was obtained.
In addition to being competent, a lawyer must act with reasonable diligence and promptness in representing a client.3 Technology certainly can aid lawyers in the prompt and efficient provision of legal services and can enable competitive advantages and significant cost savings. However, diligence is not necessarily equated with speed. The duty of diligence is intended to advance the strong public interest that lawyers are reliable and will not neglect a client or a legal matter entrusted to them. So long as lawyers use the requisite degree of commitment and dedication to the client's matter, how they meet their professional responsibilities and what tools they use to accomplish the client's objectives are for the individual lawyer to decide. When lack of diligence becomes a discipline issue, it is usually because a lawyer procrastinated and not because she used a book instead of digital technology to find the answer. A lawyer who has an aversion to flying can take a bus, as long as she shows up at court on time. It may take longer, but the lawyer is, nevertheless, acting with diligence under the ethics rules.
Lawyers are ethically obligated to communicate with their clients. This means keeping clients reasonably informed about the status of their matters, consulting with clients about the means by which the clients' objectives are to be accomplished, and promptly complying with reasonable requests for information.4 Modern technologies afford efficient means of communication, including e-mail, extranets, and other wireless and web-based systems. Which to use, however, is for lawyers and their clients to work out. Clients often have preferences, and not all clients have access to, or can afford, the latest communication technologies. Electronic communication may not serve as well as an in-person client consultation, but so long as adequate communication takes place, the lawyer's ethical duty is met, regardless of the means used to deliver the information.
Developing technology will continue to influence what lawyers do and how they do it. Providing efficient and automated legal services through technology has many benefits. In certain specialties, the use of particular software and electronic communication capabilities may be important aspects of the practice. Lawyers need to remain competitive, and they have a professional responsibility to improve ways to provide affordable legal services and information to the public. Modern technologies provide important tools for public access to our legal system and increase the availability of legal services. It is the result of using tools, however, rather than the choice of which tool to use that is the measure of a lawyer's competence.
Potential Drawbacks
If we accept the proposition that lawyers cannot ethically practice without using electronic communications to some extent, however, the question arises how much technology is enough to ensure competence? Not everyone may be able to keep up with the latest gadgets and gizmos. It is not unusual for a firm to invest significant capital in the latest portals and litigation support systems only to find that the technologies are out-dated by the time the efficiencies are mastered. More efficient technologies always will enter the market. But to equate professional competence and diligence with their use would require lawyers to stay on top of constant breakthroughs in that field, rather than permit them to find a comfortable level of efficiency that helps fulfill their professional responsibilities.
With all the benefits offered by computer technology and the Internet, corresponding risks must be considered. Computers and other technologies automate tasks that traditionally have been performed manually by lawyers and office staff: conflict management, time management, calendaring, document and file management, and word processing. An automated and sophisticated computerized conflict system, for example, can improve efficiency and reduce errors. But any system is only as good as the information it receives and the reports it generates. Professional competence requires knowing what to do with the information once it is found-the exercise of professional judgment by a legally trained mind.
Lawyers who employ sophisticated technologies in their practice are ethically responsible for understanding how they work and knowing their limitations. An attorney cannot delegate ethical responsibilities, and these cannot be waived by clients. The more dependent a lawyer becomes on the use of sophisticated technology to better serve clients (and remain competitive), the more technically proficient the lawyer must become in order to practice competently under the rules. This can create a Catch-22 situation. Each application of new technology can result in new sources of ethical problems. Web-based systems, such as alternative service providers (ASPs), offer convenient online support services, such as data storage, document retrieval, and accounting. Lawyers can outsource many services or hire technical support to operate electronic systems, but they retain a duty to supervise staff, outside vendors, and independent contractors in the performance of their professional responsibilities.5 Lawyers who have supervisory authority over the work of non-lawyers and lawyers with managerial authority within the firm are required to establish internal policies and procedures designed to provide reasonable assurance that non-lawyers in the firm will act in a manner compatible with the rules of professional conduct.6
Attorney conduct under the ethics rules is not measured by the same standards as civil actions based on claims of attorney malpractice or professional negligence. Certain practice areas may require the use of specific software or electronic discovery tools and e-filing in order to practice consistent with the accepted standard of care in that field. It is also true that some insurance carriers offer premium discounts to lawyers and law firms that use certain office automation as a means of reducing malpractice claims; some even require this.
Failure to use computerized legal research or the Internet conceivably could be the basis for a legal malpractice claim. Online computer-assisted legal research systems, for example, have been available since the 1970s. Failure to use a computer or other technology in the practice of law, however, has not become a generally accepted standard of care in malpractice cases. Issues of time sensitivity, cost, and other factors are considered in deciding whether the lawyer acted reasonably under the circumstances. Generally, lawyers are liable for legal malpractice for failure to perform adequate research rather than failing to use technology to do so. In the 1975 landmark case Smith v. Lewis,7 Jerome Lewis was found civilly liable for failure to use his research skills in finding the relevant law and determining how it applied to his client. The failure in Smith v. Lewis was one of legal analysis, not lack of technology. If Lewis had been able to conduct online legal research and still missed the relevant statute, the availability of technology would not have changed the decision.
More than 60 years ago, Learned Hand found a tugboat captain liable for failing to use radio-receiving technology to obtain a warning of a storm that sank a barge.8 In 1932 a tugboat captain at sea could obtain broadcast weather reports only from radio-receiving technology. The choice was between obtaining adequate weather reports and being ignorant of the weather. Today's tugboat captain has many choices. He can use a laptop to visit an online weather site, use a cell phone to call the National Weather Service, turn on the weather channel, or read the newspaper. As soon as he checks the weather report, Learned Hand would likely say, he has met the standard of care.
So it is with lawyers who today must decide among available alternatives to ascertain the law. Whether a lawyer should resort to Westlaw or Lexis to find the latest case or utilize other electronic media resources or go to a law library depends on the circumstances. The fact that technology provides greater efficiencies and may afford lawyers a competitive advantage does not mean that it is unethical not to use technology. In the end it is the quality of the legal work and not the speed at which it is done that matters. Given today's technologies and the inventions that will serve lawyers in the future, the practice of law still requires the exercise of judgment by the legally trained mind. Although access to law may become automated, the practice of law will not.
Notes
1. Model Rules of Prof'l Conduct, Pmbl.; Cmt [4] (2002).
2. Id., Rule 1.1.
3. Id., Rule 1.3 (2002).
4. Id., Rule 1.4(a) (2002).
5. Id., Rule 5.3 (2002).
6. Id., Rule 5.3; Cmt. [2] (2002).
7. 13 Cal. 3d 349 (1975).
8. T. J. Hooper v. N. Barge Corp., 60 F. 2d 737 (1932).