American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Winter 1998
© American Bar Association. All rights reserved.

technology.law

BY J. MICHAEL JIMMERSON

J. Michael Jimmerson is a technology consultant and founder of Legal Counsel & Computing. He is the co-author of A Survival Guide for Road Warriors, a best-selling book on mobile computing for lawyers, published by the American Bar Association. His next book is Windows for Lawyers, to be released in Fall 1997. He can be reached by phone (773/506-9870), e-mail (jimmer@legalcounsel.com) or the Web (www.legalcounsel.com).

Computers can sure be handy. Until things go wrong, and anyone who has relied on a computer can recount instances where they failed at the most inopportune times. If you have not made contingency plans, you may be on the receiving end of a malpractice claim.

Almost five years ago in this column (a.k.a. "The Electronic Lawyer"), David Vandagriff laid out five ways to commit malpractice with your computer (The Compleat Lawyer, Spring 1993). Briefly, David provided five surefire ways to land in hot water:

  • Don't back up your data.
  • Keep your calendar and docket system only on your computer.
  • Don't proofread documents produced from computer forms.
  • Never learn how your computer works.
  • Ignore how your secretary uses the computer.

Shortly after that seminal column, David Vandagriff teamed up with David Bilinsky at TECHSHOW ‘96 for a program called "Ten Ways to Commit Malpractice with Your Computer." Incorporating the five mentioned above, the pair added five more ways to get into trouble:

  • Install a new operating system without a recovery disk and without backing up data.
  • Let your kids play on your computer in the evening.
  • Don't worry about security precautions.
  • Don't ever use Computer-Assisted Legal Research.
  • Don't consider long-term data storage and recovery.

While we can all learn from these lessons, they are not enough, particularly in a world that has changed dramatically in the last few years. The increased usage of portable computers and the Internet has created even more pitfalls for the unwary. Let's look at a few more ways that you can commit malpractice with little more than a computer and a lack of common sense.

Leave Your Notebook Waiting for Thieves

Last year, more than a quarter of a million laptops were stolen. Yours could easily have been one of them. Hah, you scoff, no way! Ever put your computer through airport security? Unless you are watching it like a hawk, it could easily sprout legs and walk off. The most common scenario involves two thieves working together. After you put your computer case on the X-ray conveyor, one cuts in front of you through the magnetometer. Unfortunately, this person has more metal than a scrap yard, causing the magnetometer to howl. Security will not let you through until this person clears. Meanwhile, the accomplice lifts your notebook case and calmly walks off.

The best way to avoid this scenario is to wait until no one is in front of you before putting your computer case through the X-ray. Clean out your pockets, step in front of the magnetometer and then put the case on the conveyor. And watch it like a hawk all the time. If you do not clear and must be checked with the wand, ask one of the security personnel to retrieve and hold your notebook.

Why is this relevant to malpractice or ethical issues? Well, if you have confidential client information on your computer and it is stolen, the information could be compromised, not to mention the work product that must be recreated. Passwords could be used to secure your computer and documents, but you must use multiple layers to provide reasonable protection. So watch your computer like a hawk and never let it out of your sight.

Ignore Anti-Virus Software

Ever download files off the Internet? Trade diskettes with a colleague? Open a document attached to an e-mail message? If so, you run the constant risk of "catching" a computer virus. If you work as a solo or a small firm practitioner, you might be able to minimize your exposure using common sense. But if you are in a large network setting, your control diminishes rapidly. You must acquire and use anti-virus software on your computer.

In fact, I would suggest using more than one vendor's software. Personally, I use at least four anti-virus packages regularly. Why use more than one software package? Unfortunately, the anti-virus programs do not provide absolute security, and some provide better protection than others.

Failure to use anti-virus software could easily result in a malpractice claim. If you have a crucial memo or pleading that must be filed and your computer has died from a computer virus, the next call might be to your malpractice carrier. These problems can occur quickly and without warning. But if you have taken precautions (and backed up your data), you might be able to minimize the damage.

Rely Upon a Single Provider for Electronic Communication

E-mail has become a regular part of our business routine. Exchanging messages and documents with clients has enhanced client communication. However, in August 1996, America Online users were not able to send or receive e-mail for more than 18 hours. System glitches still occur, as recently as last month. If you rely upon only one service provider for e-mail and client communication, things could get bleak. What if you were counting on some crucial information from your client on the day that America Offline went dark?

Better to always have a backup, preferably using an Internet Service Provider (ISP). Savvy users often have more than one ISP. Alternatively, keep a CompuServe or Prodigy account for emergencies.

Hit the "Reply to All" Button

Anyone who uses e-mail regularly has probably already made this mistake. You receive a message and decide to respond. Without thinking, you hit the "Reply To All" button and fail to check the list of addressees. Unwittingly, you send the message out and everyone on the original mail list sees the message, including an unintended recipient. Perhaps you say something less than kind about the person or you breach a confidence. In either case, the "Reply To All" button can land you in hot water.

If you are responding to e-mail messages, particularly sensitive matters, always check the list of addresses. Even better, set the default in your mail program to respond only to the sender. Other recipients can then be manually added. This give you complete control over the audience.

Send Confidential Client Communications Without Using Encryption

Exchanging messages and documents with clients can be very effective. However, if the information is privileged material, you may be waiving the privilege if you do not use encryption tools. Some jurisdictions have found that using e-mail without encryption is deemed a waiver of the privilege. In others, such as Illinois, the Supreme Court has stated that e-mail is no different than any other form of communication.

This latter approach is more realistic. For example, have you ever considered what happens to your documents sent via overnight mail? These packets are routinely opened if there is a "problem" in transit. We are all complacent about the postal system and overnight mail but we are scared to death of e-mail.

Whether required or not, the best course is to use encryption or other security measures to protect your documents. Why not confine privileged material to a word processing document with a password? This is easily accomplished using WordPerfect or Word. Attach the document to a brief e-mail and phone the client with the password. For the truly paranoid, you can encrypt your messages using encryption software. The degree of security will vary depending upon the content of the message. Nevertheless, you should always err on the side of caution.

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